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(June 1969)
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
MANUAL TRANSMITTAL SHEET
Release
3-336
Date
09/17/2012
Subject
H – 3809-1 – Surface Management
1. Explanation of Materials Transmitted: This release transmits an entirely new Handbook
Section, H-3809-1 - Surface Management. The Handbook incorporates changes in
policies resulting from the revision of regulations in 43 CFR 3809.
2. Reports Required: None
3. Materials Canceled: None
4. Filing Instructions: File as directed below
REMOVE
INSERT
N/A
H – 3809 -1 (339 pages)
/s/ Michael D. Nedd
Michael D. Nedd
Assistant Director, Minerals and Realty
Management
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Surface Management Handbook
BLM Handbook H-3809-1
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Table of Contents
Chapter 1 Introduction ................................................................................................................. 1-1
1.1 Purpose............................................................................................................................... 1-1
1.2 Objective ............................................................................................................................ 1-1
1.3 Authorities.......................................................................................................................... 1-1
1.3.1 Statutes ........................................................................................................................ 1-1
1.3.2 Regulations ................................................................................................................. 1-1
1.4 Roles and Responsibilities ................................................................................................. 1-2
1.4.1 BLM Director.............................................................................................................. 1-2
1.4.2 BLM State Director..................................................................................................... 1-2
1.4.3 District, Field, and Monument Managers ................................................................... 1-2
1.4.4 Program Specialist ...................................................................................................... 1-3
1.4.5 Delegation of Authority .............................................................................................. 1-4
Chapter 2 Casual Use Activity..................................................................................................... 2-1
2.1 Negligible Disturbance ...................................................................................................... 2-1
2.2 Not Casual Use .................................................................................................................. 2-1
2.2.1 Cumulative Effects...................................................................................................... 2-2
2.2.2 Occupancy................................................................................................................... 2-2
2.2.3 Operator Notification .................................................................................................. 2-2
Chapter 3 Operations Conducted Under Notices ......................................................................... 3-1
3.1 Pre-January 20, 2001 Notice-Level Operations ................................................................. 3-1
3.1.1 Continued Pre-2001 Operations .................................................................................. 3-1
3.1.2 Extended Pre-2001 Notice .......................................................................................... 3-1
3.1.3 Change of Operator on Pre-2001 Notice .................................................................... 3-2
3.1.4 Modified Pre-2001 Notice .......................................................................................... 3-2
3.1.5 Additional Acreage on Pre-2001 Notice ..................................................................... 3-2
3.1.6 Expired Pre-2001 Notice............................................................................................. 3-3
3.2 Filing a Notice.................................................................................................................... 3-3
3.2.1 Required Filing ........................................................................................................... 3-3
3.2.2 Reviewing the Filing ................................................................................................... 3-7
3.2.3 Operator Notification ................................................................................................ 3-10
3.2.4 Authorization ............................................................................................................ 3-12
3.2.5 Commencing Operations .......................................................................................... 3-13
3.3 Notice Modification ......................................................................................................... 3-13
3.3.1 Modifying a Notice ................................................................................................... 3-13
3.3.2 BLM Required Modification .................................................................................... 3-13
3.3.3 Modification Review ................................................................................................ 3-14
3.3.4 Commencing Operations .......................................................................................... 3-14
3.3.5 Continued Operations ............................................................................................... 3-14
3.3.6 Change of Operator ................................................................................................... 3-14
3.4 Notice Term ..................................................................................................................... 3-14
3.4.1 Initial Term ............................................................................................................... 3-14
3.4.2 Notice Extension ....................................................................................................... 3-15
3.5 Expired Notice ................................................................................................................. 3-17
3.5.1 Inspection .................................................................................................................. 3-17
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3.5.2 Closing the Case File ................................................................................................ 3-17
Chapter 4 Plan of Operations – Content and Processing ............................................................. 4-1
4.1 Requirement to File a Plan of Operations .......................................................................... 4-1
4.1.1 Existing Plans of Operations ....................................................................................... 4-2
4.2 Plans of Operations - Overview of Processes .................................................................... 4-2
4.2.1 Plan Review Timeline ................................................................................................. 4-3
4.2.2 Plan Review Level of Detail and Effort ...................................................................... 4-3
4.3 Plan of Operations – Filing and Content............................................................................ 4-4
4.3.1 Pre-Plan Coordination ................................................................................................. 4-4
4.3.2 Completeness Requirement ...................................................................................... 4-13
4.3.3 Proposed Operations and Operator Identification..................................................... 4-13
4.3.4 Additional Information Requirements ...................................................................... 4-29
4.3.5 Reclamation Cost Estimate Information Requirement ............................................. 4-31
4.4 Processing the Plan of Operations ................................................................................... 4-32
4.4.1 Completeness Review ............................................................................................... 4-32
4.4.2 NEPA Analysis ......................................................................................................... 4-39
4.4.3 Issuing a Decision ..................................................................................................... 4-44
4.5 Beginning Operations ...................................................................................................... 4-48
4.5.1 State and Federal Permit Requirements .................................................................... 4-48
4.5.2 Phased Approvals or Development ........................................................................... 4-48
4.6 Modifications to Plans of Operations .............................................................................. 4-49
4.6.1 Operator Requested Modifications ........................................................................... 4-49
4.6.2 Required Modifications ............................................................................................ 4-49
4.6.3 BLM Review of Plan Modifications ......................................................................... 4-51
4.6.4 Modifications to Plans Approved before January 20, 2001 ...................................... 4-52
4.6.5 Modifications to Plans Pending on January 20, 2001 ............................................... 4-53
4.7 Cost Recovery .................................................................................................................. 4-53
Chapter 5 Performance Standards and Operating Requirements ................................................. 5-1
5.1 Requirement to Prevent Unnecessary or Undue Degradation ........................................... 5-1
5.1.1 Requirements, Standards and Applicable Laws.......................................................... 5-2
5.1.2 Activities that are Reasonably Incident ...................................................................... 5-2
5.1.3 Levels of Protection Required by Law ....................................................................... 5-2
5.2 General Performance Standards ......................................................................................... 5-3
5.2.1 Technology and Practices ........................................................................................... 5-3
5.2.2 Sequence of Operations .............................................................................................. 5-3
5.2.3 Land Use Plans ........................................................................................................... 5-4
5.2.4 Mitigation Measures ................................................................................................... 5-4
5.2.5 Concurrent Reclamation ............................................................................................. 5-5
5.2.6 Pertinent Federal and State Laws ................................................................................ 5-6
5.3 Specific Performance Standards ........................................................................................ 5-6
5.3.1 Access Routes ............................................................................................................. 5-7
5.3.2 Mining Wastes ............................................................................................................ 5-9
5.3.3 Performance of Reclamation....................................................................................... 5-9
5.3.4 Air Quality ................................................................................................................ 5-15
5.3.5 Water Quality ............................................................................................................ 5-15
5.3.6 Solid Waste ............................................................................................................... 5-16
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5.3.7 Fisheries, Wildlife and Plant Habitat ........................................................................ 5-17
5.3.8 Cultural and Paleontological Resources ................................................................... 5-17
5.3.9 Protection of Survey Monuments ............................................................................. 5-19
5.3.10 Fire Prevention ........................................................................................................ 5-20
5.3.11 Acid-Forming, Toxic, or Deleterious Materials Management................................ 5-21
5.3.12 Leaching Operations and Impoundments ............................................................... 5-23
5.3.13 Maintenance and Public Safety............................................................................... 5-26
Chapter 6 Financial Guarantees ................................................................................................... 6-1
6.1 Financial Guarantee Requirements .................................................................................... 6-1
6.1.1 Pre-January 20, 2001, Notices .................................................................................... 6-1
6.1.2 Pre-January 20, 2001 Plans of Operations .................................................................. 6-3
6.1.3 Casual Use .................................................................................................................. 6-3
6.1.4 New Notices ................................................................................................................ 6-3
6.1.5 New Plans of Operations ............................................................................................ 6-3
6.1.6 Compliance and Enforcement ..................................................................................... 6-4
6.2 Reclamation Cost Estimates .............................................................................................. 6-4
6.2.1 Operator’s Estimate .................................................................................................... 6-4
6.2.2 Review of Reclamation Cost Estimates .................................................................... 6-20
6.2.3 Acceptance of Reclamation Cost Estimates ............................................................. 6-21
6.2.4 Periodic Reviews ...................................................................................................... 6-23
6.3 Types of Financial Guarantees......................................................................................... 6-26
6.3.1 Individual Financial Guarantees ............................................................................... 6-26
6.3.2 Blanket Financial Guarantees ................................................................................... 6-28
6.3.3 State Approved Financial Guarantees ....................................................................... 6-29
6.3.4 Trust Funds or Other Funding Mechanisms ............................................................. 6-31
6.4 Financial Guarantee Replacement or Reduction.............................................................. 6-38
6.4.1 Duration of Coverage ................................................................................................ 6-38
6.4.2 Replacement Financial Guarantee ............................................................................ 6-38
6.4.3 Reduction of Financial Guarantee ............................................................................ 6-39
6.4.4 Release of Responsibility.......................................................................................... 6-42
6.4.5 Change of Operator ................................................................................................... 6-43
6.4.6 Change in Land Ownership ...................................................................................... 6-44
6.5 Forfeiture of Financial Guarantee .................................................................................... 6-45
6.5.1 Initiating Forfeiture ................................................................................................... 6-45
6.5.2 Collecting the Forfeited Guarantee ........................................................................... 6-46
6.5.3 Insufficient Forfeited Funds ...................................................................................... 6-47
6.5.4 Excess Forfeited Funds ............................................................................................. 6-47
6.5.5 Bankruptcy ................................................................................................................ 6-47
6.6 Joint Federal-State Financial Guarantees......................................................................... 6-48
6.6.1 Joint Program and Deferral Agreements................................................................... 6-48
6.6.2 Long-Term Funding Mechanisms............................................................................. 6-48
Chapter 7 Cessations and Abandonment ..................................................................................... 7-1
7.1 Cessation and Abandonment of Activity Conducted under a Notice ................................ 7-1
7.1.1 Requirements for Periods of Non-Operation .............................................................. 7-1
7.1.2 Determination of Abandonment ................................................................................. 7-2
7.2 Activity Conducted under a Plan of Operations ................................................................ 7-3
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7.2.1 Requirements if Activity Stops ................................................................................... 7-3
7.2.2 Determination of Abandonment ................................................................................. 7-4
7.3 Forfeiture of Financial Guarantee upon Abandonment ..................................................... 7-5
7.4 Operator Responsibilities ................................................................................................... 7-5
7.5 Bankrupt Operations .......................................................................................................... 7-5
7.5.1 Maintaining Compliance during Bankruptcy.............................................................. 7-6
7.5.2 Use of Onsite Equipment to Reclaim Bankrupt Operations ....................................... 7-6
Chapter 8 Special Situations and Land Use Planning .................................................................. 8-1
8.1 Withdrawn and Segregated Lands ..................................................................................... 8-1
8.1.1 Validity Determination ............................................................................................... 8-1
8.1.2 Allowable Operations ................................................................................................. 8-2
8.1.3 Time Limits Suspended .............................................................................................. 8-3
8.1.4 Cease Operations ........................................................................................................ 8-3
8.1.5 Prior Authorizations .................................................................................................... 8-3
8.2 Common Variety Minerals ................................................................................................ 8-3
8.2.1 Proposed Operations ................................................................................................... 8-3
8.2.2 Interim Authorization.................................................................................................. 8-4
8.2.3 Operating with an Escrow Account ............................................................................ 8-5
8.2.4 Determination of Uncommon Variety ........................................................................ 8-5
8.2.5 Determination of Common Variety ............................................................................ 8-6
8.3 Split Estate Lands .............................................................................................................. 8-6
8.3.1 Stock Raising Homestead Act (SRHA) Lands ........................................................... 8-6
8.3.2 Other Split Estate Lands ............................................................................................. 8-7
8.3.3 Non-Federal Minerals ................................................................................................. 8-7
8.3.4 Mining Claims under a Notice or Plan of Operations................................................. 8-8
8.3.5 Surface Owner Agreement .......................................................................................... 8-8
8.4 Suction Dredging ............................................................................................................... 8-8
8.4.1 State Authorization ................................................................................................... 8-10
8.4.2 BLM Authorization ................................................................................................... 8-10
8.4.3 Threatened or Endangered Species ........................................................................... 8-11
8.5 Powersite Withdrawals .................................................................................................... 8-11
8.6 Timber Resources ............................................................................................................ 8-13
8.7 Land Use Plans ................................................................................................................ 8-14
8.7.1 Performance Standard ............................................................................................... 8-14
8.7.2 Opening Lands to Mineral Entry .............................................................................. 8-14
8.7.3 Post-Mining Uses ...................................................................................................... 8-15
8.7.4 Casual Use Areas of Concern ................................................................................... 8-15
8.7.5 Suction Dredging Use Areas ..................................................................................... 8-15
8.8 Pre-Existing Disturbances and Facilities ......................................................................... 8-16
8.8.1 Proposed Operations ................................................................................................. 8-16
8.8.2 Existing Operations ................................................................................................... 8-16
8.8.3 Operator Liability...................................................................................................... 8-17
8.8.4 Previous Operator ..................................................................................................... 8-17
Chapter 9 Inspection and Enforcement ........................................................................................ 9-1
9.1 Conducting Inspections ...................................................................................................... 9-1
9.1.1 Authority ..................................................................................................................... 9-1
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9.1.2 Frequency and Timing ................................................................................................ 9-2
9.1.3 Inspection Activities ................................................................................................... 9-3
9.1.4 Safety .......................................................................................................................... 9-4
9.1.5 Documentation of Inspections .................................................................................... 9-7
9.2 Enforcement Actions ......................................................................................................... 9-7
9.2.1 Prohibited Acts............................................................................................................ 9-7
9.2.2 Regulatory Overlap of Enforcement Actions ............................................................. 9-8
9.2.3 Types of Enforcement Orders ..................................................................................... 9-9
9.2.4 Preparation of Enforcement Orders .......................................................................... 9-13
9.2.5 Serving an Enforcement Order ................................................................................. 9-14
9.2.6 Duration of Order ...................................................................................................... 9-15
9.2.7 Failure to Comply ..................................................................................................... 9-15
9.3 Criminal Penalties ............................................................................................................ 9-17
9.3.1 Individuals................................................................................................................. 9-17
9.3.2 Organizations ............................................................................................................ 9-17
Chapter 10 Decisions and Appeals ............................................................................................ 10-1
10.1 Decisions ........................................................................................................................ 10-1
10.1.1 Decision Content ..................................................................................................... 10-1
10.1.2 Appeals Language ................................................................................................... 10-1
10.1.3 Issuing the Decision ................................................................................................ 10-3
10.2 Administrative Review Process ..................................................................................... 10-3
10.2.1 Decisions Subject to Administrative Review ......................................................... 10-3
10.2.2 Decisions Not Subject to Administrative Review .................................................. 10-4
10.2.3 Standing to Seek Administrative Review ............................................................... 10-6
10.2.4 Where and When to File a Request for Administrative Review ............................ 10-6
10.2.5 Full Force and Effect .............................................................................................. 10-7
10.3 State Director Review Procedures ................................................................................. 10-7
10.3.1 SDR Request ........................................................................................................... 10-7
10.3.2 Decision to Review ................................................................................................. 10-7
10.3.3 Purpose of SDR....................................................................................................... 10-7
10.3.4 State Director Meeting ............................................................................................ 10-8
10.4 IBLA Appeals ................................................................................................................ 10-9
10.4.1 IBLA Background ................................................................................................... 10-9
10.4.2 IBLA Appeals ....................................................................................................... 10-10
10.4.3 Intervenors ............................................................................................................ 10-13
10.5 Litigation in Federal Court........................................................................................... 10-13
10.5.1 Judicial Challenges ............................................................................................... 10-13
10.5.2 Legal Representation ............................................................................................ 10-13
10.5.3 Judicial Enforcement ............................................................................................ 10-14
Chapter 11 Public Visits ............................................................................................................ 11-1
11.1 Public Requests .............................................................................................................. 11-1
11.2 Processing a Request for Public Visit ............................................................................ 11-1
11.3 Operator Responsibilities ............................................................................................... 11-2
Chapter 12 Federal-State Agreements ....................................................................................... 12-1
12.1 Existing Agreements ...................................................................................................... 12-1
12.2 New Agreements ............................................................................................................ 12-1
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12.2.1 Memorandum of Understanding (MOU) ................................................................ 12-1
12.2.2 Joint Management Agreement ................................................................................ 12-2
12.2.3 Defer to State Administration ................................................................................. 12-2
12.2.4 Suction Dredging Agreement ................................................................................. 12-7
Chapter 13 Records Management .............................................................................................. 13-1
13.1 Records .......................................................................................................................... 13-1
13.2 Records Management Responsibilities .......................................................................... 13-2
13.3 Case Files ....................................................................................................................... 13-2
13.3.1 Case File Procedures ............................................................................................... 13-3
13.3.2 Case File Content .................................................................................................... 13-3
13.3.3 Case File Organization ............................................................................................ 13-7
13.4 Privacy Act, Confidential, and Proprietary Information ................................................ 13-8
13.4.1 Holding File ............................................................................................................ 13-8
13.4.2 Taxpayer Identification Numbers ........................................................................... 13-8
13.4.3 Confidential or Proprietary Information ............................................................... 13-10
13.4.4 Attorney-Client Communications ......................................................................... 13-11
13.5 Use and Occupancy Cases ........................................................................................... 13-11
13.6 Case File Closure ......................................................................................................... 13-12
13.6.1 Retention of Records............................................................................................. 13-12
13.6.2 Debt Collection ..................................................................................................... 13-12
13.7 Administrative Review ................................................................................................ 13-13
13.7.1 Transmitting the Case File .................................................................................... 13-13
13.7.2 Transmitting Privacy Act, Proprietary/Confidential and Attorney-Client Privilege
Information ...................................................................................................................... 13-13
13.7.3 Avoiding Ex parte Contacts with IBLA................................................................ 13-14
13.8 Electronic Records Management ................................................................................. 13-14
13.8.1 Data Standards ...................................................................................................... 13-14
13.8.2 Bond Review Report ............................................................................................. 13-15
Glossary ...................................................................................................................................... G-1
Abbreviations ............................................................................................................................ G-10
Appendix A - Templates ............................................................................................................. A-1
Template 2.2-1 - Proposed Activity does not qualify as Casual Use ...................................... A-2
Template 3.2-1 - Proposed Operation Requires a Plan of Operations .................................... A-3
Template 3.2-2 - Processing Notice or Plan Suspended ......................................................... A-4
Template 3.2-3 - Determination of Required Financial Guarantee Amount .......................... A-5
Template 3.2-4 - Notice Not Complete................................................................................... A-7
Template 3.2-5 - Modification Required (New Notice) ......................................................... A-9
Template 3.4-1 - Notice Expired .......................................................................................... A-10
Template 3.4-2 - Conditional Extension ............................................................................... A-11
Template 3.5-1 - Reclamation Required ............................................................................... A-12
Template 4.3-1 - Reclamation Cost Estimate for Plan Required .......................................... A-13
Template 4.4-1 - Complete Plan Submitted.......................................................................... A-14
Template 4.4-2 - Plan Not Complete .................................................................................... A-15
Template 4.4-3 - Additional Actions Required..................................................................... A-17
Template 4.4-4 - Decision on Plan ....................................................................................... A-18
Template 6.2-1 - Unacceptable Reclamation Cost Estimate ................................................ A-20
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Template 6.2-2 - Financial Guarantee Increase – Ongoing Operations................................ A-21
Template 6.4-1 - Required Financial Guarantee Amount -Reduction .................................. A-22
Template 6.5-1 - Forfeiture of Financial Guarantee ............................................................. A-23
Template 6.5-2 - Notice of Liability, Demand for Payment ................................................. A-25
Template 9.2-1 - Noncompliance Order ............................................................................... A-27
Template 9.2-2 - Notification of Intent to Issue a Suspension Order ................................... A-29
Template 9.2-3 - Suspension Order ...................................................................................... A-30
Template 9.2-4 - Immediate Temporary Suspension Order ................................................. A-32
Template 9.2-5 - Suspension Order Terminated ................................................................... A-33
Template 9.2-6 - Order Requiring Plans ............................................................................... A-34
Template 9.2-7 - Notification of Intent to Nullify Notice/Revoke Plan ............................... A-35
Template 9.2-8 - Nullification of Notice/Revocation of Plan............................................... A-37
Template 10.1-1 - Field Office Decision – Appeal Language .............................................. A-38
Template 10.1-2 - State Director Decision – Appeal Language ........................................... A-39
Template 10.1-3 - Request for a Stay ................................................................................... A-40
Appendix B - Present Value Determination ............................................................................. A-41
Appendix C – Example Formats ............................................................................................... A-48
Format 3.2-1 - Notice ............................................................................................................ A-50
Format 4.3-1 - Plan of Operations ........................................................................................ A-55
Appendix D - Compiling an Administrative Record ................................................................ A-63
Appendix E – Surface Management Action Codes .................................................................. A-81
Appendix F – Arrest Warrant or Summons upon Complaint ................................................... A-99
Appendix G – Visitor Pass ...................................................................................................... A-101
Figures
Figure 3.2-1 - Filing and Reviewing a Notice ............................................................................. 3-4
Figure 4.2-1 - Plan of Operations Process ................................................................................... 4-5
Figure 4.2-2 - Plan of Operations -- Completeness Review ........................................................ 4-6
Figure 4.2-3 - Plan of Operations -- Environmental Review ....................................................... 4-6
Figure 4.2-4 - Plan of Operations -- Approval and Financial Guarantee..................................... 4-7
Figure 4.2-5 - Plan of Operations -- Compliance Monitoring ..................................................... 4-8
Figure 4.2-6 - Plan of Operations -- Closure and Financial Guarantee Release ........................ 4-10
Figure 4.2-7 - Plan of Operations -- Modification ..................................................................... 4-11
Figure 4.2-8 - Plan of Operations -- Administrative Review..................................................... 4-12
Figure 4.4-1 - Approvable Plans and NEPA Analysis ............................................................... 4-42
Figure 6.1-1 - Financial Guarantee Process ................................................................................. 6-2
Figure 6.2-1 - Reclamation Cost Estimate Summary Sheet ...................................................... 6-14
Figure 6.2-2 - Operator Reclamation Cost Estimate Checklist.................................................. 6-16
Figure 6.2-3 - Reclamation Cost Model for Notice-Level Exploration ..................................... 6-18
Figure 8.4-1 - Suction Dredging .................................................................................................. 8-9
Figure 9.2-1 - Inspection and Enforcement Order ..................................................................... 9-10
Figure 10.2-1 – Administrative Review Process ....................................................................... 10-5
Figure 12.2-1 – Deferral Agreement Development ................................................................... 12-5
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Chapter 1 Introduction
1.1 Purpose
This handbook provides the procedures and processes for the Bureau of Land Management
(BLM) employees to implement the BLM’s surface management program. This handbook
conveys the BLM policies and procedures applicable to all surface disturbing activity conducted
under the Mining Law of 1872, as amended,1 the Federal Land Policy and Management Act of
1976 (FLPMA), and intersecting laws as given below under Authorities. Any interpretation of
the guidance contained in this handbook is subservient to the applicable legal and regulatory
mandates.
1.2 Objective
This handbook is to facilitate the administration of exploration, mining, and milling activities on
the public lands, or interests in such lands in order to prevent unnecessary or undue degradation
(UUD) of these lands.
1.3 Authorities
1.3.1 Statutes
Mining Law of 1872 (30 U.S.C. 22-42) as amended
Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701) as amended
Surface Resources Act of 1955 (30 U.S.C. 612)
1.3.2 Regulations
43 CFR 3809 - Surface Management
43 CFR 3715 - Use and Occupancy under the Mining Laws
43 CFR 3730 - Public Law 359 Mining in Powersite Withdrawals
43 CFR 3821 - Oregon and California (O&C) Lands
43 CFR 3838 - Special Procedures for Locating and Recording Mining Claims and
Tunnel Sites on Stock Raising Homestead Act (SRHA) Lands
1
Note that minerals that are considered locatable minerals under the Mining Law are leaseable minerals on acquired
lands and are not covered by the Surface Management Regulations.
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1.4 Roles and Responsibilities
1.4.1 BLM Director
The Director, through the Assistant Director for Minerals and Realty Management, provides
national oversight for the BLM’s surface management program. This includes developing and
implementing programmatic policies and guidance, and conducting internal program reviews.
Surface management program resources are allocated to the BLM State Offices through the
budget process and program priorities are set at the national level.
1.4.2 BLM State Director
The State Director provides oversight to the District/Field Offices regarding program
implementation in the state. This responsibility is delegated to the appropriate Deputy State
Director, who allocates surface management program resources to the various District/Field
Offices and sets statewide priorities. The State Office provides technical support and review to
ensure uniform application of the regulations by the District/Field Offices. The role and
responsibilities of the State Office are to:
Review and approve mineral reports before authorizing mining operations on lands with
suspected common variety minerals and lands segregated and withdrawn from mineral
entry under the Mining Laws.
Adjudicate all financial guarantees; this includes acceptance, obligation, termination,
modifications, collection of financial guarantees, and tracking bankruptcy filings. Also,
the office responsible for adjudicating financial guarantees will maintain the physical
possession of all original bond contracts and their accompanying financial instruments.
Conduct State Director Reviews and forward any appeals of the State Director’s decision
to the Interior Board of Land Appeals (IBLA) within 10 business days of receiving a
Notice of Appeal.
Enter into statewide agreements with state and other Federal agencies concerning the
management of operations authorized by the mining laws on public lands.
Provide oversight and program guidance to the District/Field Offices.
Provide technical support and review to ensure uniform application of the regulations by
the District/Field Offices.
1.4.3 District, Field, and Monument Managers
District, Field, and Monument Managers are responsible for the day-to-day implementation of
the surface management program. They provide direction to Program Specialists to implement
program activities and resolve program issues. They ensure that the Program Specialists receive
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the necessary technical, administrative, and safety training. In addition, the managers oversee
the program budget and budget submissions at the District/Field Office level. Manager
responsibilities are to:
Serve as the line officer for accepting Notices and approving or denying Plans of
Operations (Plan).
Establish the amounts of financial guarantees for reclamation of exploration and mining
activities.
Ensure that UUD does not occur from accepted Notices and approved Plans of
Operations.
Determine the appropriate enforcement action to take.
Forward appeals to the appropriate parties (either the State Director or IBLA, and Office
of the Solicitor) within 10 business days of receiving a Notice of Appeal.
Sponsor public visits to mines if requested.
Enter into agreements for management of site specific operations.
Determine if escrow accounts are needed for a Notice or Plan until the status of the
mineral material is determined.
Maintain administrative records, case files, and the Legacy Rehost 2000 (LR2000)
system database in accordance with BLM data and recordkeeping standards.
Ensure that the qualifications of the program specialists are appropriate for the scope of
the duties performed.
Organize interdisciplinary teams (ID Teams), if necessary and when appropriate, to
conduct environmental analysis and verify an operation’s compliance with the terms and
conditions of 43 CFR 3809.
1.4.4 Program Specialist
The program specialists, acting through the District/Field Manager, are responsible for the dayto-day implementation of the surface management program. They coordinate with other BLM
resource specialists and applicable state or Federal agencies on the review of Notices and Plans
of Operations. The roles and responsibilities of program specialists are to:
Review submitted Notices, Plans of Operations, and associated modifications.
Review and verify the amounts of reclamation cost estimates submitted by the operator
for proposed activities and recommend the reclamation cost estimate amount to the
manager.
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Identify the need for a trust fund or other funding mechanism to ensure the continuation
of long-term, water quality, and post mining maintenance requirements.
Conduct field inspections and make compliance determinations for operations conducted
under a Notice or Plan.
Identify situations of noncompliance or prohibited actions and recommend corrective
actions to the manager.
Ensure enforcement actions are implemented and monitored for a noncompliance
situation.
Serve as the point-of-contact between the BLM and an operator conducting activities on
public lands.
Prepare necessary documents to implement cost recovery.
Prepare, or coordinate preparation of, the appropriate National Environmental Policy Act
(NEPA) documents for approval of Plans of Operations and associated Plan
modifications.
Prepare, or cause to be prepared, mineral reports for determining mining claim validity
before approving mining activity within a withdrawn area, or common variety
determinations before approving operations under the Mining Law.
Receive and properly handle confidential business information and information protected
under the Privacy Act.
Maintain administrative records and case files for surface management activities.
Update the LR2000 database in accordance with BLM standards.
1.4.5 Delegation of Authority
The BLM Manual 1203, Delegation of Authority, and State Manual Supplements should also be
consulted. These manuals are updated on a regular basis and will clarify the level at which
decision-making authority is held within your respective state.
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Chapter 2 Casual Use Activity
Under 43 CFR 3809.5, activities that ordinarily result in no or negligible disturbance of the
public lands or resources are termed “casual use.” In general, the operator may engage in casual
use activities without consulting, notifying, or seeking approval from the BLM.2 The operator
does not need to file a Notice or Plan and does not need to provide the BLM with a financial
guarantee. Such activities, including suction dredging (see Section 8.4 Suction Dredging) in
certain situations, are considered to be casual use under the surface management regulations.
This chapter provides guidance for determining when an operation is considered casual use
under the 3809 regulations.
2.1 Negligible Disturbance
Activities that generally cause no or negligible disturbance would be considered casual use for
purposes of 43 CFR 3809.5, including collecting geochemical, rock, soil, or mineral specimens
using hand tools; hand-panning; or non-motorized sluicing. Use of certain equipment, such as
small portable suction dredges, metal detectors, gold spears, small drywashers,3 and other
battery-operated devices, would generally be considered casual use. Operators may use
motorized vehicles for casual use activities provided the use is consistent with the applicable
regulations,4 off-road vehicle use designations contained in the BLM land-use plan(s), and the
terms of any temporary closures ordered by the BLM.
As the term “negligible disturbance” is subjective, the field staff and management must use their
professional judgment in determining what activities would ordinarily result in no or negligible
disturbance. Except for the use of equipment specifically listed in the regulations, the type of
equipment itself or the commercial intent of the operator does not define whether an activity can
be considered casual use. The amount and type of disturbance created by the activities of an
operator, or the cumulative disturbance caused by the proximity of several operators, ultimately
determines whether or not a particular activity will be determined to be casual use.
While no financial guarantee is required for casual use activity, the operator(s) remains
responsible to prevent UUD and ensure full reclamation of any disturbance created while
engaging in casual use activities, as required by 43 CFR 3809.1 and 43 CFR 3809.10.
2.2 Not Casual Use
Activities that result in more than negligible disturbance are not considered casual use. As
defined in 43 CFR 3809.5, use of certain equipment, including mechanized earth-moving
equipment, truck-mounted drilling equipment, and motorized vehicles in areas closed to off-road
vehicle use, are not casual use. Operations that use chemicals in the recovery or processing of
minerals, e.g., cyanide leaching, or explosives are also not considered casual use.
2
43 CFR 3809.10(a).
Battery-powered and gas-powered drywashers under 10 horsepower (hp) may be considered casual use as long as
the activity only results in no or negligible disturbance.
4
43 CFR 8340.
3
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2.2.1 Cumulative Effects
Within certain areas, the cumulative effects of activities that individually would normally be
considered casual use may result in more than negligible disturbance when the activity is
conducted by a group, at a larger than usual scale, or over time. Whether these activities are
conducted by an individual or a group, they are not considered casual use and require a Notice or
Plan of Operations.
The State Director may designate specific areas where individuals or groups must contact the
BLM before beginning such activities. These designated areas are established through the
BLM’s land use planning process. When established, the responsible BLM District/Field Office
must notify the public via publication in the Federal Register of the boundaries of such specific
areas and such information must be posted in each local District/Field Office having jurisdiction
over those lands. A party that desires to undertake activities in these areas must notify the
District/Field Office prior to commencing such activities. See Section 8.7 Land Use Plans for
guidance on the cumulative effects of casual use activities.
Where an individual or group intends to conduct casual use activities within one of these
designated areas, they must contact the District/Field Office a minimum of 15 calendar days
before beginning activities.5 Within that 15-day period, the District/Field Office will determine
whether a Notice or Plan is required or that the activity is casual use and does not contribute to
the cumulative effects of other disturbance in the area, and notify the individual or group of such
finding in writing. Where required, submission and review of the Notice or Plan of Operations
must conform to the requirements of 43 CFR 3809.300 through 3809.336 or 43 CFR 3809.400
through 3809.434, whichever is applicable.
2.2.2 Occupancy
Under 43 CFR 3715.0-5, occupancy on the public lands longer than 14 days in any 90-day period
within a 25-mile radius of the initially occupied site, for purposes of conducting activities under
the Mining Law, does not qualify as casual use and must be conducted under a Notice or a Plan
of Operations.6 Occupancies must be authorized by the District/Field Manager under the Use
and Occupancy Regulations at 43 CFR 3715. The information reporting requirements of 43 CFR
3715.3-2 must be met through the submission of a Notice or a Plan.
2.2.3 Operator Notification
Official communications with the operator concerning their proposed activity must be made in
writing. A decision will be issued when the District/Field Office makes a decision that the
proposed activity does not qualify as casual use (see Appendix A, Template 2.2-1, Proposed
Activity does not qualify as Casual Use). Where the District/Field Office is simply requesting
additional information, a letter may be the most appropriate communication.
5
6
43 CFR 3809.31(a).
43 CFR 3809.5.
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Chapter 3 Operations Conducted Under Notices
This chapter provides guidance for processing notice-level operations conducted under the
regulations at 43 CFR 3809.300 through 3809.336. A Notice is required for exploration activity,
greater than casual use, causing surface disturbance of 5 acres or less on public lands.7 Activity
causing more than negligible disturbance (Section 2.2 Not Casual Use) that does not qualify as a
notice-level operation, including all mining, must be conducted under an approved Plan of
Operations (Section 4.1 Requirement to File a Plan of Operations).
The following are section-by-section descriptions of the filing, reviewing, and operating
requirements for notice-level operations.
3.1 Pre-January 20, 2001 Notice-Level Operations
Specific provisions of the regulations apply to notice-level operations that were on file with the
BLM on January 20, 2001.8
3.1.1 Continued Pre-2001 Operations
Under 43 CFR 3809.300(a), an operator identified in a Notice on file with the BLM on
January 20, 2001, was authorized to conduct operations for 2 years after that date, under the
terms of the existing Notice and the regulations in effect immediately before that date. The
ability to continue operating through the provisions of 43 CFR 3809.300(a) applied to all Notice
operations that were on file with the BLM on January 20, 2001, even those operations that would
have required a Plan of Operations under 43 CFR 3809.11 because they were for mining
activities, rather than exploration activities.
An operator may modify such Notice operations or the District/Field Manager may require a
modification under 43 CFR 3809.330 and 3809.331 (see Section 3.3 Notice Modification).
3.1.2 Extended Pre-2001 Notice
Pre-January 20, 2001, Notices that were extended for 2 years under 43 CFR 3809.333 may
continue to be extended (see Section 3.4.2 Notice Extension). However, after January 20, 2003,
operations conducted under the terms of an extended9 Notice are subject to the enforcement and
other procedural requirements of the current surface management regulations. In addition,
before operations may continue under an extended Notice, the operator must provide the BLM
with an acceptable financial guarantee (see Chapter 6 for the reclamation cost estimate and
financial guarantee review and acceptance requirements).
The ability to continue operating on an extended Notice after January 20, 2003, applies to all pre2001 Notice operations, even those operations that would require a Plan of Operations under 43
7
43 CFR 3809.21(a).
43 CFR 3809.300.
9
43 CFR 3809.333.
8
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CFR 3809.11. The operator may modify the extended Notice, or the District/Field Manager may
require a modification under 43 CFR 3809.330 and 3809.331. However, if the modification
materially changes the terms of the original Notice or allows surface disturbance outside the
outline of the acreage described in the original Notice, the operations will be subject to all
provisions of the current surface management regulations.
3.1.3 Change of Operator on Pre-2001 Notice
If there is a change of operator to a pre-2001 Notice on file with the BLM, the new operator,
upon satisfying the financial guarantee requirements of 43 CFR 3809.552, assumes the roles and
responsibility of the previous operator10 (see Section 3.3.6 Change of Operator). The new
operator is not required to file a new Notice under 43 CFR 3809.301 or Plan of Operations under
43 CFR 3809.401.
3.1.4 Modified Pre-2001 Notice
The operator may modify, or the District/Field Manager may require a modification, as provided
at 43 CFR 3809.330 and 3809.331. If the modified Notice does not alter the terms of the Notice,
i.e., does not include additional acreage or otherwise make any material changes, the operator
may continue to conduct operations under the regulations in effect immediately before
January 20, 2001.11 To be able to continue operating under the original Notice, the terms of the
Notice, including operations facilities and activities described in the Notice, may not be modified
in any material way. If the proposed modifications will cause material changes to the pre-2001
notice, then the new activities and surface disturbance are subject to current regulations.12
Material changes are defined in the regulations as:
Changes that disturb areas not described in the existing Notice; change your
reclamation plan; or result in impacts of a different kind, degree, or extent than
those described in the existing Notice.13
3.1.5 Additional Acreage on Pre-2001 Notice
When a modified Notice includes operations on any additional acreage not identified in the pre2001 Notice, the operations on that additional acreage are subject to all provisions of the current
surface management regulations, including 43 CFR 3809.11 and 3809.21.14 The operator may
be required to submit a Plan of Operations under 43 CFR 3809.401, if the modification causes
the total unreclaimed disturbance to exceed 5 acres, or if the proposed operations meet one or
more of the criteria requiring a Plan of Operations. If a Plan of Operations is filed in these
circumstances, the entirety of the operations is subject to the current regulations. Before the
additional surface disturbance may occur the Notice must be accepted or Plan of Operations
approved, and an acceptable financial guarantee must be provided to the BLM (see Section 6.1
Financial Guarantee Requirements).
10
BLM Form 3809-5, Notification of Change of Operator and Assumption of Past Liability.
43 CFR 3809.300(c)(1).
12
43 CFR 3809.300(c)(2).
13
43 CFR 3809.331(a)(2).
14
43 CFR 3809.300(c)(2).
11
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3.1.6 Expired Pre-2001 Notice
If the pre-2001 Notice expires because the operator failed to notify the BLM as to its intent to
extend the Notice on or before the expiration date, had not provided additional information
within the specified timeframe, or had not provided a financial guarantee within the specified
timeframe (see Section 3.4 Notice Term and Section 3.5 Expired Notice), the operator may file a
new Notice or Plan of Operations subject to all provisions of the current surface management
regulations, including 43 CFR 3809.11 and 3809.21.
3.2 Filing a Notice
3.2.1 Required Filing
For exploration activity greater than casual use and which causes surface disturbance of 5 acres
or less of public lands, the operator must file a complete Notice with the responsible BLM
District/Field Office 15 calendar days before commencing operations.15 Mining activity,
regardless of acreage disturbed, may not be conducted under a Notice filed under the current
regulations.
Figure 3.2-1, Filing and Reviewing a Notice, presents the main operator responsibilities in filing
a Notice and the BLM District/Field Office’s responsibilities in reviewing the filing. Proposed
operations that require submittal of a Plan of Operations are addressed under 43 CFR 3809.11
(see Section 4.1, Requirement to File a Plan of Operations).
3.2.1.1 Complete Notice
The BLM does not require that a Notice filing be on a particular form. However, for a Notice to
be considered complete under 43 CFR 3809.301(b), the operator must provide specific operator
information, activity description, reclamation plan, and reclamation cost estimate (RCE). An
example format for a Notice submission is provided in Appendix C – Example Formats, Format
3.2-1 Notice.
3.2.1.2 Notice Content
The content requirements for a Notice are listed below and should be applied as thoroughly as
needed in order to understand what the operator is proposing. The content of the Notice will
determine whether the operation qualifies as a notice-level operation and will not cause UUD.
The District/Field Office will not require the submission of operational details that are not
relevant to this objective.
15
43 CFR 3809.21.
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Figure 3.2-1 - Filing and Reviewing a Notice
(1 of 2)
Notice filed by the operator in the BLM District/Field Office
with jurisdiction over the lands involved - 3809.301(a)
Required Information to be considered complete 3809.301(b)
Operator Information - 3809.301(b)(1)
Name, address, phone, taxpayer identification
number
BLM serial number of involved unpatented claims
Point-of-contact for corporations
30-day notification for any change in operator
Description of Activities - 3809.301(b)(2)
Measures to prevent UUD
Maps showing all activity and facility locations
Schedule of activities
Reclamation Plan Requirements - 3809.301(b)(3)
Reclamation Cost Estimate - 3809.301(b)(4)
Additional information required by BLM - 3809.301(c)
The BLM reviews the Notice within 15 days to determine
if the operator has submitted all information required under
3809.301(b) and (c) - 3809.311(a); and to determine that
the operation qualifies as a Notice-level operation under
3809.21. - 3809.313(e)
Operator responds to the
BLM information request
BLM notifies the Operator
the Notice is not complete
per 3809.311(b) and (c)
within 15 days
No
Is the Notice complete
per 3809.301?
Yes
The BLM notifies the operator if certain actions are
required under - 3809.313 to process the Notice:
The BLM requires additional time to complete
review, not to exceed 15 days - 3809.313(a)
Operator must consult with the BLM on access
routes - 3809.313(c)
The BLM determines an onsite visit is necessary 3809.313(d)
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Figure 3.2-1
Filing and Reviewing a Notice
(2 of 2)
The BLM evaluates the Notice:
Will the operation as proposed
cause UUD?
Yes
Operator resubmits revised Notice
See 43 CFR 3809.301(a) and (b)
No
The BLM Field Office (FO)
notifies the operator of any
specific modification needed to
prevent UUD – 3809.313(b)
The BLM FO notifies the operator
that the Notice is complete and the
operation as described will not
cause UUD - 3809.312(a) and (b)
BLM FO issues a decision as to the
amount of the required financial
guarantee - 3809.554(b) (BLM
notification and financial guarantee
decision should be combined into a
single decision to the operator)
Operator provides BLM with an
acceptable financial guarantee 3809.312(c), .500(b), and .503(c)
The BLM notifies operator that the
financial guarantee is accepted 3809.312(c) and 500(b)
Operator may commence operations
- 3809.312(c), 500(b), and .503(c)
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3.2.1.2.1 Operator Information
The operator(s) must provide their name, mailing address, phone number, U.S. taxpayer
identification number, and the BLM serial number(s) of any unpatented mining claim(s) where
the disturbance would occur.16 If the operator is a corporation, the filing must identify one
individual as the point of contact. Procedures for dealing with individual taxpayer identification
numbers (Social Security number for an individual) and other protected privacy information are
addressed in Chapter 13 Records Management. This issue is addressed in 43 CFR part 2, subpart
G. The Collection and Billing System (CBS) also has procedural rules that prohibit the release
of a person’s Social Security number.
3.2.1.2.2 Activity Description
A complete Notice must include a description of the proposed activity with a level of detail
appropriate to the type, size, and location of the activity. The description17 must include:
The measures that the operator will take to not cause UUD during operations.
A map showing the location of the project area in sufficient detail for BLM to be able to
find it and the location of access routes the operator intends to use, improve, or construct.
A description of the type of equipment the operator intends to use.
A schedule of activities, including the date when the operator expects to begin operations
and the date the operator expects to complete reclamation.
3.2.1.2.3 Reclamation Plan
The Notice must describe how the operator will complete reclamation to the standards described
at 43 CFR 3809.420.18 The operator must provide sufficient information for the BLM to assess
the adequacy of the proposed reclamation plan. This may involve the operator providing a
description of the equipment, devices, or practices they propose to use during reclamation to
meet the performance standards. See Section 5.3, Specific Performance Standards for Notices
and Plans of Operations, and BLM Handbook H-3042-1, Solid Minerals Reclamation Handbook,
for additional guidance on the reclamation requirements.
The reclamation plan must provide for the regrading and reshaping of disturbed areas, where
applicable. Typical reclamation plans should include a description of the equipment to be used,
slope grade, location and size of any runoff controls, cross-sections, etc. A post-grading
topographic map showing the planned regrading, though not required, can be the best way to
illustrate the regrading plan.
The reclamation plan needs to describe the location, plant species, seeding or planting rates, and
any treatment methods proposed to re-establish vegetation over disturbed areas. Also, the plan
16
43 CFR 3809.301(b)(1).
43 CFR 3809.301(b)(2).
18
43 CFR 3809.301(b)(3).
17
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must propose the criteria for what would constitute successful revegetation and describe any
additional measures, such as temporary fencing or noxious weed control, which might be used on
the reclaimed area.
Where applicable, the reclamation plan must describe how drill holes are going to be plugged.
The District/Field Office’s review must verify that plugging procedures will be in compliance
with applicable state drill-hole plugging requirements.
3.2.1.2.4 Reclamation Cost Estimate
An estimate acceptable to the BLM of the cost to fully reclaim the operations, as required at 43
CFR 3809.552 (see Section 6.2, Reclamation Cost Estimates), must be included for the Notice
filing to be considered complete.19 The RCE must be based on the standards set forth at 43 CFR
3809.554(a) and adequate to meet all operator obligations identified in the reclamation plan.
3.2.2 Reviewing the Filing
3.2.2.1 Completeness
Within 15 calendar days of receipt of a Notice, the District/Field Office will review the filing to
determine if it is complete according to 43 CFR 3809.301(b)20 and includes the operator
information, activity description, reclamation plan, and RCE as discussed in Section 3.2.1.2,
Notice Content. The reclamation plan must include all reclamation, closure, and postreclamation requirements needed to meet the performance standards described at 43 CFR
3809.420. The District/Field Office’s review must determine that the submitted information is
not only complete but also accurate.
3.2.2.2 Unnecessary or Undue Degradation
The BLM review is to confirm that the operations conducted under the Notice will not cause
UUD. This means determining that there is a reasonable expectation that the proposed operation
will:
Comply with the performance standards.21
Comply with the terms of the filed Notice.
Comply with other Federal and state laws related to environmental and cultural resource
protection.
Conform to the requirements of 43 CFR 3715.
As part of this review, the District/Field Office will, whenever possible, conduct an onsite visit
prior to determining if the proposed operation will cause UUD. As part of this onsite visit the
BLM will document all existing disturbance.
19
43 CFR 3809.301(b)(4).
43 CFR 3809.311(a).
21
43 CFR 3809.420.
20
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3.2.2.3 Enforcement Program
The BLM review and acceptance of a Notice is part of its enforcement program to ensure that
operators comply with their legal responsibility to not cause UUD (see Section 9.2, Enforcement
Actions). Any decision concerning the need, amount, acceptability, and/or forfeiture of a
financial guarantee is also part of the BLM’s compliance and enforcement program, but not an
approval of the Notice (see Section 6.1, Financial Guarantee Requirements).
3.2.2.4 Additional Information
The District/Field Manager may require the operator to provide additional information to ensure
that the operations will comply with the regulations.22 For example, the District/Field Office
may require some fairly simple baseline information, such as the depth to groundwater, or
specific operations information, such as the nature and types of drilling fluid additives to be
used. However, the District/Field Office should not require the operator to submit details that
are not relevant to determining whether the operations will cause UUD or otherwise qualify as
notice-level operations.
3.2.2.5 Additional Reviews
If the District/Field Manager takes any action listed at 43 CFR 3809.313, operations, having
otherwise filed a complete Notice and provided the BLM with an acceptable financial guarantee,
will not begin until the action is completed and any additional conditions are satisfied. If
additional reviews are being required according to 43 CFR 3809.313, the responsible BLM
District/Field Office must give written notice to the operator within 15 calendar days of receipt
of the complete Notice.
3.2.2.5.1 Additional Review Time Needed
Where a complete Notice has been submitted, but the District/Field Office needs additional time
to review the Notice to ensure the proposed operation will not cause UUD, the District/Field
Manager will immediately give written notice to the operator. Operations may not begin until
the District/Field Office has completed its review. The District/Field Office review is limited to
15 additional calendar days.23
3.2.2.5.2 Modifications Required
If the District/Field Office notifies the operator that the Notice must be modified to prevent
UUD, the Notice must be modified before operations may commence.24 The District/Field
Manager will provide a written notification informing the operator that a modification is
necessary.
22
43 CFR 3809.301(c).
43 CFR 3809.313(a).
24
43 CFR 3809.313(b).
23
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3.2.2.5.3 Access Routes
Any concerns with existing and proposed access routes must be addressed before operations may
commence.25
3.2.2.5.4 Onsite Visits
If the District/Field Office determines that additional time is necessary to conduct an onsite visit,
operations may not commence until this site has been examined.26 Any concerns arising from
the visit must be resolved to the BLM’s satisfaction before operations may begin. If a site visit
cannot be conducted within the initial 15-calendar day review period, the BLM will notify the
operator and include the reason(s) for the delay.
3.2.2.5.5 Plan Required
If the District/Field Office notifies the operator that the proposed operation does not qualify as a
notice-level operation under 43 CFR 3809.21, the operator must submit and obtain approval of a
Plan of Operations before beginning operations.27 For example, bulk sampling that proposes to
remove 1,000 tons or more of presumed ore (taking into consideration all material to be tested,
whether or not it ultimately is determined to be ore grade material) requires the operator to file a
Plan of Operations. Onsite field-scale testing using chemicals such as cyanide or sulfuric acid to
evaluate leachability (e.g., test heaps) does not qualify for a Notice and must be done under a
Plan of Operations, regardless of test sample size. Areas closed to off-road vehicle use require a
Plan of Operations.28 In addition, mining may not be conducted under a Notice filed under the
current regulations.
If the District/Field Office determines that the proposed project has been segregated by filing a
series of Notices for the purpose of avoiding filing a Plan of Operations, the District/Field Office
will notify the operator that a Plan is required.29
The District/Field Manager will issue the determination that the proposed operation does not
qualify for a Notice in a written decision that includes the appropriate appeals provisions (see
Appendix A, Template 3.2-1, Proposed Operation does not qualify as a Notice).
3.2.2.6 Coordination with Other Agencies
Other Federal, state, and local agencies may require similar information concerning the proposed
operation. The BLM should coordinate its information requirements with these other agencies to
arrive at a standard level of detail. Since no particular form is required, the use of information
required by other agencies, where appropriate, can be used to satisfy the BLM’s Notice content
requirements. If appropriate under existing agreements the BLM has with state and/or local
agencies, the District/Field Office will ensure the appropriate state or local agency is provided a
copy of the Notice.
25
43 CFR 3809.313(c).
43 CFR 3809.313(d).
27
43 CFR 3809.313(e).
28
43 CFR 3809.11(c)(5).
29
43 CFR 3809.21(b).
26
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3.2.2.7 Multiple Operators’ Filings
If two or more operators file Notices (or Plans of Operations) on the same area, the BLM will
notify the respective operators and identified mining claimants of the potential conflict.
Resolving mining claim ownership or a Notice and/or Plan conflict is a matter between the
private parties. A conflict does not warrant the BLM taking any action under 43 CFR 3809.313
that would delay operations from commencing. The BLM will review each Notice based solely
on its obligation to prevent UUD.30
If, because of mutually exclusive or conflicting activity, the BLM is not able to determine
whether the operator(s) will cause UUD, the District/Field Manager may suspend the review
until the conflict is resolved. The suspension will be issued in the form of a decision (see
Appendix A, Template 3.2-2, Processing Notice or Plan Suspended).
3.2.3 Operator Notification
Official communications with the operator concerning the Notice filing must be made in writing,
whether it is in the form of a letter, notice, or decision. A decision will be issued when the
District/Field Office takes final action on a Notice or when the District/Field Office determines
the amount of the required financial guarantee (see Appendix A, Template 3.2-3, Determination
of Required Financial Guarantee Amount). However, where the District/Field Office is notifying
the operator that specific information is needed for the Notice filing to be complete, a letter may
be the most appropriate communication.
3.2.3.1 Incomplete Filing
If the Notice is incomplete, the District/Field Manager will give written notice to the operator of
the additional information required.31 Prompt notification is necessary to comply with the
requirement in the regulations to make a determination within 15 calendar days of the filing.
Appendix A, Template 3.2-4, Notice Not Complete, provides an example notification to the
operator that the filing does not meet the requirements at 43 CFR 3809.301.
3.2.3.1.1 Written Notice Required
The BLM District/Field Manager must give written notice of those areas deemed deficient. The
District/Field Manager may, at his or her discretion, suggest corrective actions for any identified
deficiencies.
3.2.3.1.2 Unacceptable Reclamation Cost Estimate
A Notice is not complete if the RCE is not acceptable.32 For example, the BLM must advise the
operator to incorporate the appropriate administrative costs if they are not included in the RCE.
The responsible BLM District/Field Manager may suggest procedures for determining specific
cost components or may provide the operator with the BLM’s cost estimate for reclaiming the
proposed operation.
30
43 CFR 3809.311.
43 CFR 3809.311.
32
43 CFR 3809.554(b).
31
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3.2.3.1.3 Timeframes
The timeframes identified at 43 CFR 3809.311, 3809.312 and 3809.313 are not effective until the
District/Field Office determines that the operator has filed a complete Notice. The Notice is not
complete until the District/Field Office receives all of the information requested.33
In requesting additional information from the operator, the District/Field Manager should attempt
to identify all deficiencies in the initial review and notification, and may establish a timeframe
within which the additional information must be submitted. If a timeframe is included, the
notification will let the operator know that the BLM will discontinue processing the Notice if the
required information is not submitted in a timely manner.
The District/Field Office will review, within 15 calendar days, any additional information
submitted by the operator.
3.2.3.2 Complete Filing
The District/Field Manager must notify the operator when the Notice is determined to be
complete and issue a decision on the amount of the required financial guarantee.
The notification must be in writing, specifying the date the Notice is complete. This notification
must be made within 15 calendar days of receipt of an acceptable Notice.34 The notification
must include a statement that the BLM has determined that the operation as proposed will not
cause UUD.
When the BLM has received a RCE and finds that it is acceptable, the District/Field Manager
must provide the operator with a written decision which will state the amount of the financial
guarantee required (see Appendix A, Template 3.2-3, Determination of Required Financial
Guarantee Amount).35 The decision will state that operations may not commence until an
acceptable financial guarantee has been obligated by the BLM (see Section 6.3, Reclamation
Cost Estimates) for the operation. A copy of this decision must be provided to the BLM office
responsible for adjudication of the financial guarantee.
Notification that the Notice is complete and the decision on the amount of the required financial
guarantee will, where practical, be combined into a single decision.
3.2.3.3 Modification Required
The District/Field Manager must notify the operator to modify a notice when necessary to
prevent UUD.
3.2.3.3.1 New Operations
When a modification is required during the initial completeness review, the District/Field
Manager will notify the operator that the Notice will cause UUD and modification is required
33
43 CFR 3809.311(c).
43 CFR 3809.311(a).
35
43 CFR 3809.554(b).
34
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before the BLM can accept the Notice. In the notification, the District/Field Manager will
inform the operator that operations must not begin until the Notice is modified to prevent UUD.
The District/Field Manager will provide written notification to the operator.36 The notification
will state the reason(s) for which the notice was determined to cause UUD (see Appendix A,
Template 3.2.5, Modification Required).
3.2.3.3.2 Existing Operations
At any time, the District/Field Manager may require the operator to modify the Notice to prevent
UUD.37 When a modification is required, the District/Field Manager will provide written
notification informing the operator that a modification is necessary to prevent UUD. The
notification will include the reason(s) for which the notice was determined to cause UUD.
3.2.4 Authorization
The BLM does not approve a Notice and therefore notice review does not require an
environmental review under NEPA.38 The BLM accepts Notice filings, and reviews a complete
Notice to ensure the proposed operation qualifies as a notice-level operation according to 43
CFR 3809.11 and that the operator is able to conduct the proposed operations without causing
UUD. The BLM will not issue a decision “approving” a notice; however the District/Field
Office will issue a decision, Determination of Required Financial Guarantee Amount (see
Appendix A, Template 3.2-3), stating the amount required for the financial guarantee. The BLM
office responsible for adjudicating financial guarantees will issue a decision on the obligation of
the financial guarantee.
Any decision concerning the need for, amount of, and/or acceptability of the RCE is considered
part of the BLM’s compliance and enforcement responsibilities, and not an approval of the
Notice. The BLM office responsible for adjudicating financial guarantees will notify the
operator and other affected entities when the BLM obligates a financial guarantee for the Notice.
A copy of this decision will be provided to the BLM District/Field Office. Decisions concerning
the required financial guarantee amount also do not require an environmental review under
NEPA. All compliance and enforcement decisions are, however, subject to appeal under the
provisions at 43 CFR 3809.800 through 3809.809.
The notice-level operation may be subject to authorization under the Use and Occupancy
Regulations at 43 CFR 371539 if the proposed operations involve occupancy (e.g., placement of
fences, gates, signs or occupancy at the site). Any proposed occupancy associated with noticelevel operations must be approved by the District/Field Manager according to the 3715
regulations.
A completed Notice constitutes off-highway vehicle (OHV) authorization in areas designated as
“limited” to off-road vehicle use, as defined by 43 CFR 8340.0-5(h). A separate authorization
under 43 CFR 8344.1 and subpart 2930 is not required for notice-level operations in “limited”
areas.
36
43 CFR 3809.313 (b).
43 CFR 3809.331(a).
38
43 CFR 3809.312(a).
39
43 CFR 3809.312(d).
37
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3.2.5 Commencing Operations
If the BLM does not take any of the actions described in 43 CFR 3809.313, the operator may
begin operations after 15 calendar days from the date the District/Field Office received the
complete Notice and the BLM has obligated a financial guarantee.40 If the operator does not
receive an acknowledgement from the BLM, or has any doubt about the date the BLM received
the complete Notice, the operator should contact the office to which the Notice was submitted. If
the BLM provides the operator with a written notification that the review of the Notice has been
completed before the end of the 15-calendar day period and the BLM has obligated the financial
guarantee, the operator may begin operations.
Operations conducted under a Notice must meet all applicable performance standards;41 see
Section 5.3, Specific Performance Standards for Notices and Plans of Operations, for a full
discussion of the applicable performance standards.
3.3 Notice Modification
3.3.1 Modifying a Notice
The operator may submit a modification to its Notice at any time, if the operator wants to
materially change or modify the Notice activity.42 The operator is required to modify the Notice
before any material changes are made to the operation.43 Material changes are changes that
propose to disturb areas not described in the Notice on file with the BLM, change the
reclamation plan, or change the type, intensity, or scope of activity. The operator must submit a
Notice modification at least 15 calendar days before making any material changes to the
operation. Information required for the Notice modification is at 43 CFR 3809.301(b), and the
review process is similar to that required for the original Notice. The operator must not modify
the activity/operation described in the current Notice until the modification has been reviewed
and accepted.
3.3.2 BLM Required Modification
At any time, the District/Field Manager may require the operator to modify the Notice to prevent
UUD.44 Modification may be required by the BLM based on results of a compliance inspection,
a change in site conditions, or availability of new information.
When a modification is required, the District/Field Manager will provide written notification
informing the operator that a modification is necessary. The BLM will require the operator to
modify the Notice when UUD is occurring and whenever the District/Field Manager determines
a modification is needed to prevent UUD from occurring.
40
43 CFR 3809.312(a).
43 CFR 3809.420.
42
43 CFR 3809.330(a).
43
43 CFR 3809.331(a)(2).
44
43 CFR 3809.331(a).
41
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3.3.3 Modification Review
The District/Field Office will review the Notice modification in the same manner as a new
Notice.45 The District/Field Office will provide a written notification to the operator providing
the date a complete Notice modification was accepted. If the modification results in the
District/Field Office establishing a new RCE, the District/Field Manager will issue a decision
setting that new amount.
3.3.4 Commencing Operations
Except in the instance where immediate action is necessary to prevent UUD, the operator must
provide the BLM an acceptable financial guarantee that meets the requirements of the
regulations and is obligated by the BLM before beginning operations under the modified
Notice.46
3.3.5 Continued Operations
Unless otherwise directed by the BLM District/Field Manager to prevent UUD, operations
described in the original Notice may continue, pending completion of BLM’s review of the
proposed modification.
3.3.6 Change of Operator
The operator must notify the responsible BLM District/Field Office, in writing, within 30
calendar days of any change of operator or corporate point of contact, or of the mailing address
of the operator or corporate point of contact.47 The operator must notify the responsible BLM
District/Field Office using Form 3809-5, Change of Operator, of any proposed change of
operator. The BLM District/Field Office must approve the operator change subject to
satisfactory financial guarantee being accepted and obligated to cover the proposed operator.
The BLM District/Field Office will update LR2000 accordingly, as soon as possible.
3.4 Notice Term
3.4.1 Initial Term
A Notice remains in effect for 2 years from the date the BLM issued a decision on the amount of
the required financial guarantee48 unless the operator requests a Notice be terminated before that
date or the BLM nullifies a Notice as part of an enforcement action under 43 CFR 3809.602 (see
Section 9.2, Enforcement Actions). The BLM decision establishing the amount of the required
financial guarantee must state the effective date and expiration date of the Notice.
45
43 CFR 3809.330(b).
43 CFR 3809.312(c).
47
43 CFR 3809.301(d).
48
43 CFR 3809.332.
46
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3.4.2 Notice Extension
An operator may extend the Notice for an additional 2 years according to 43 CFR 3809.333. The
Notice may be extended more than once.
3.4.2.1 Notification
To extend the original Notice, the operator must provide the District/Field Manager with written
notice on or before the expiration date, indicating the operator intends to continue operations
under the terms of the existing Notice for an additional 2 years. A Notice may not be extended if
it has already expired.
Any information required for a complete Notice, according to 43 CFR 3809.301(b), that has
changed or was never provided in the original filing must be included in the extension
notification. Further, the operator must provide a revised RCE based upon the proposed
operations.
Regardless of when the operator provides an extension notification or when the operator
provides the BLM with an acceptable financial guarantee, the Notice expiration date is 2 years
from the date the BLM issued a decision, Determination of Required Financial Guarantee
Amount (see Appendix A, Template 3.2-3), as to the amount of the required financial guarantee.
If a decision has been issued by the District/Field Manager establishing a revised cost estimate
for an entire operation, and the operator requests a Notice extension in compliance with the
regulations,49 the Notice expiration date is the 2-year anniversary date of that decision. Normally
this situation would occur when the Notice is modified.
The District/Field Manager may consider an extension request anytime within the 2-year term of
the Notice.
3.4.2.2 Notification Review
Where the BLM has received notification of an extension, the District/Field Manager must
review the original Notice and any additional information submitted by the operator to verify that
(1) the Notice qualifies for an extension (i.e., that it has not already expired), (2) the operation
will not cause UUD, and (3) all information required for a complete Notice50 has been submitted,
including an acceptable revised RCE. If it is determined the Notice is complete and the
operations as described in the filing will not cause UUD, the District/Field Manager must issue a
decision as to the amount of the required financial guarantee (see Appendix A, Template 3.2-3,
Determination of Required Financial Guarantee Amount).
If the District/Field Manager determines that the Notice has already expired, the BLM will notify
the operator that the Notice cannot be extended due to the operator’s failure to comply with the
requirements at 43 CFR 3809.333 and 3809.335 (see Appendix A, Template 3.4-1, Notice
Expired).
49
50
43 CFR 3809.333.
43 CFR 3809.301(b).
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Where an operator has filed for an extension of the Notice and the operator is also in
noncompliance, the responsible BLM office will notify the operator of this noncompliance and
any corrective actions necessary (see Section 9.2, Enforcement Actions). The existence of an
outstanding noncompliance order will not, by itself, preclude a Notice from being extended.
However, where a suspension order or immediate temporary suspension order has been issued,
an extension will be withheld until such time as the order has been terminated.
3.4.2.3 Conditional Extension
When the operator notifies the BLM of its intent to extend the Notice on or before the expiration
date, but the District/Field Manager determines that updated or additional information is
required, and that information cannot be obtained before the expiration date, the Notice may be
extended, conditioned upon the receipt of the required information.
Where the Notice has been extended subject to certain conditions, the operator and District/Field
Office must promptly take the required actions to ensure those conditions are addressed. For the
BLM, the required action may include notifying the operator of the required information (see
Appendix A, Template 3.4-2, Conditional Extension) or issuing a decision on the amount of the
required financial guarantee (see Appendix A, Template 3.2-3, Determination of Required
Financial Guarantee Amount). Whether it is a letter requesting additional information or a
decision on the amount of the required financial guarantee, the communication with the operator
must include a due date when the information and/or financial guarantee must be provided and a
statement that failure to provide the required information and/or acceptable financial guarantee
within the specified timeframe will result in the Notice expiring immediately upon conclusion of
the timeframe. At that point, the BLM will notify the operator that the Notice has expired, that
all activities except for reclamation must cease, and that the operator may submit a new Notice
or Plan of Operations if the operator intends to continue operations (see Appendix A, Template
3.4-1, Notice Expired).
3.4.2.3.1 Additional Information Request
Where the District/Field Manager requires the submission of additional information, the operator
must submit the required information within 30 days. Failure to provide the required
information within the specified timeframe will result in the Notice expiring immediately upon
conclusion of the timeframe unless the District/Field Manager determines an additional
information request is warranted. If the District/Field Manager determines that additional
information not originally requested or received is necessary, the manager may issue one
additional request for information. The operator must submit the required information within 30
days of this second notification. Failure to provide the required information within the specified
time will result in the Notice expiring immediately upon conclusion of the response period (see
Appendix A, Template 3.4-1, Notice Expired).
3.4.2.3.2 Increased Financial Guarantee Required
Where an increase in the amount of the existing financial guarantee is required, the operator must
provide the BLM with an acceptable financial guarantee within 60 days from the date when the
District/Field Manager issues the decision on the amount of the financial guarantee (see
Appendix A, Template 3.2-3, Determination of Required Financial Guarantee Amount). Failure
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to provide an acceptable financial guarantee increase within the specified timeframe will result in
the Notice expiring immediately upon conclusion of the timeframe. A noncompliance order may
also be issued for failure to maintain an adequate financial guarantee (see Appendix A, Template
9.2-1, Noncompliance Order).
3.5 Expired Notice
The Notice expires when (1) the operator fails to extend the Notice on or before the expiration
date, (2) fails to provide any additional information required by the BLM within the timeframe
provided, or (3) fails to provide the BLM with an acceptable financial guarantee within the time
allowed. The BLM will notify the operator that the Notice has expired, that all activities except
for reclamation must cease, and that the operator may submit a new Notice or Plan of Operations
if the operator intends to continue operations (see Appendix A, Template 3.4-1, Notice Expired).
When a Notice expires, the operator must cease all operations, except reclamation.51 The
operator must promptly complete all reclamation according to the Notice. See Section 7.1,
Activity Conducted under a Notice, for requirements when a Notice expires.
If an operator wishes to continue mining operations after expiration of a Notice, the operator
must immediately submit a new Notice or Plan of Operations, if required by 43 CFR 3809.11.
The new Notice must be accepted or Plan of Operations approved, and a financial guarantee
obligated before operations, other than reclamation, may commence again.
3.5.1 Inspection
When a Notice has expired, as provided at 43 CFR 3809.332, the BLM District/Field Office will
promptly conduct an inspection to verify whether the operator has met the reclamation
obligations and will provide the operator with written notice of its findings, including a decision
as to the amount of the required financial guarantee based on successful reclamation. Where
appropriate, that decision would indicate that no financial guarantee is required.
Where the operator has let the Notice expire and has not commenced reclamation or submitted a
new Notice or Plan of Operations, the responsible BLM District/Field Office must take the
necessary enforcement actions at 43 CFR 3809.601 through 3809.605 and/or 43 CFR 3715 (see
Section 9.2, Enforcement Action and Appendix A, Template 9.2-1 Noncompliance Order). If
necessary, the BLM will initiate forfeiture procedures of the financial guarantee according to 43
CFR 3809.595 through 3809.599 (see Section 6.5, Forfeiture of Financial Guarantee) (see
Appendix A, Template 6.5-1, Forfeiture of Financial Guarantee).
3.5.2 Closing the Case File
An operator’s reclamation obligations continue beyond the expiration or any termination of the
Notice until all reclamation requirements are satisfied.52 Before the case file may be closed, the
BLM must inspect the site, notify the operator of any outstanding reclamation requirements, and
51
52
43 CFR 3809.335.
43 CFR 3809.335(d).
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ensure all required reclamation has been completed. The District/Field Office must not close the
case file until the operator has completed all reclamation obligations, or in situations where the
operator fails to reclaim the operation, the BLM completes the reclamation. In such cases, the
case file may need to remain open until the debt is collected or written off.
When the District/Field Manager is notified that operations have ceased and reclamation is
complete before the Notice expires, the District/Field Office will promptly conduct an inspection
to verify if all reclamation responsibilities have been fulfilled. The District/Field Manager will
notify the operator in writing of its findings (see Appendix A, Template 3.5-1, Reclamation
Required). The District/Field Manager may then terminate the Notice53 and close the case file
(see Chapter 7 Cessations and Abandonment).
53
43 CFR 3809.332.
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Chapter 4 Plan of Operations – Content and Processing
This chapter explains the operator’s filing requirements and the BLM District/Field Offices’
review and approval procedures for a Plan of Operations. It includes guidance on when a Plan of
Operations is required, what needs to be included in the Plan, the steps for review, approval, or
denial of a Plan, and the procedures to follow when considering a modification to a Plan of
Operations.
4.1 Requirement to File a Plan of Operations
A Plan of Operations is required for surface disturbance greater than casual use, unless the
activity qualifies for a Notice filing.54 Surface disturbance greater than casual use on certain
special category lands requires the operator to file a Plan of Operations and receive BLM
approval (i.e., operations may not be conducted under the Notice provision of the regulations at
43 CFR 3809.11(c). Special category lands include the following:
54
Lands in the California Desert Conservation Areas (CDCA) designated by the CDCA
plan as “controlled” or “limited” use areas.
Areas in the National Wild and Scenic Rivers System, and areas designated for potential
addition to the system.
Designated Areas of Critical Environmental Concern (ACEC). This does not include
lands merely nominated for ACEC designation, but lands that have been designated
through the land use planning process.
Areas designated as part of the National Wilderness Preservation System administered by
the BLM are subject to the 3809 regulations. Because such lands are withdrawn from
location, subject to valid existing rights, the processing of a Plan of Operations requires a
full mineral examination under 3809.100(a) and a determination that the mining claim is
valid before approving the Plan. Note the regulations at subpart 3802 apply to lands
under wilderness review (Wilderness Study Areas). Consult those regulations to process
operations proposed in BLM Wilderness Study Areas.
Areas designated as “closed” to off-road vehicle use, as defined in 43 CFR 8340.0-5(h).
Note that a Plan of Operations is not required for areas with a “limited” designation, even
if such a designation limits travel to existing roads and trails and the surface disturbance
would occur off-road. An accepted Notice constitutes OHV authorization in limited
areas. An approved Plan of Operations constitutes OHV authorization in limited or
closed areas. A separate authorization under 43 CFR 8344.1 and subpart 2930 is not
required for operations in these areas.
Any lands or waters known to contain federally proposed or listed threatened or
endangered species or their proposed or designated critical habitat, unless the BLM
allows for other action under a formal land use plan or threatened or endangered species
43 CFR 3809.11.
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recovery plan. The requirement to file a Plan of Operations does not apply where the
habitat is not occupied unless the habitat has been proposed or designated as “critical” in
a recovery plan. In proposed or designated critical habitat, a recovery plan or land use
plan may be used to establish a Notice-Plan threshold for exploration at less than the 5acre disturbance threshold. This threshold would be based upon a programmatic review
of mineral activity in the recovery area and development of standard operating practices
through consultation between the BLM and the U.S. Fish and Wildlife Service (FWS).
National Monuments and National Conservation Areas administered by the BLM. A
Plan of Operations is always required for surface disturbance greater than casual use in
these areas. In addition, many of these areas are withdrawn from location, subject to
valid existing rights, and the processing of a Plan of Operations requires a full mineral
examination under 3809.100(a) and a determination that the mining claim is valid before
approving the Plan.
Lands patented under the SRHA with Federal minerals. A Plan of Operations is required
for activity greater than casual use on these lands only when the operator does not have
the written consent of the surface owner. The requirements at 43 CFR 3814 are also
applicable for processing these Plans.
On split estate lands other than those patented under the SRHA, either a Notice or Plan of
Operations must be filed with the BLM regardless of whether the operator has surface
owner consent.
4.1.1 Existing Plans of Operations
For Plans of Operations that were either already approved or pending approval when the 43 CFR
3809 regulations were promulgated in 2001, the operator does not have to comply with the new
Plan content requirements or the new performance standards unless the operator chooses to have
those sections apply. Instead, the Plan content and performance standards that were in effect
before January 20, 2001 are applicable.55 All other portions of the current regulations such as the
financial guarantee requirements, inspection and enforcement procedures, appeals processes,
etc., must be followed. See Section 4.6.4 and 4.6.5 for a discussion on processing modifications
to these Plans.
4.2 Plans of Operations - Overview of Processes
The stages in the BLM’s review of a Plan of Operations can be divided into six general
categories:
55
Completeness review.
Environmental analysis.
Financial guarantee establishment.
43 CFR 3809.400.
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Approval decision.
Monitoring.
Reclamation and Closure.
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These processes are not strictly sequential. The completeness review and environmental analysis
are iterative, i.e., involve review, evaluation, modification, and reevaluation in order to develop
both a complete Plan and a final environmental analysis. In addition, there can be overlap as the
Plan completeness review may identify issues for the environmental analysis; scoping for the
environmental analysis may target areas in the Plan of Operations where additional detail is
needed to describe the proposed action for study in the environmental analysis document. Plan
review and environmental analysis will likely result in changes to the financial guarantee
requirements.
Plans may also be modified after they are approved, either by the operator or as required by the
BLM. The BLM decisions approving, approving with conditions, or denying a Plan of
Operations can be appealed or challenged in court. The general relationship between these
processes is shown in the flowchart in Figure 4.2-1, Plan of Operations Processes.
4.2.1 Plan Review Timeline
The amount of time required to review and approve a Plan of Operations will vary considerably
depending upon the type and complexity of the activity being proposed, resources potentially
affected, required level of environmental analysis, amount of interagency coordination needed,
and level of public controversy.
4.2.2 Plan Review Level of Detail and Effort
The intensity of the review effort is determined by the BLM’s mandate to prevent UUD. This
means that the scrutiny during Plan review is determined by the proposed level of activity and
the anticipated impacts. A Plan of Operations for a one season, 6-acre exploration proposal will
probably require less extensive review and analysis than a Plan of Operations for a 1,300-acre
open pit, heap leach operation that is to be conducted over a 15-year mine life. The Plan content
and processing regulations at 43 CFR 3809.401 through 3809.411 are to be applied as thoroughly
as needed to determine whether the operation will cause UUD while review of operational details
not relevant to this objective is to be avoided.
The level of detail needed in a Plan of Operations should be driven by site-specific conditions.
BLM State Offices can develop state-specific review criteria or checklists, but the BLM reviewer
must exercise considerable judgment in identifying the applicable information and levels of
detail required from the operator and not rely on a one-size-fits-all approach.
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For example, usually it is not important for the operator to specify the size of the dozer that will
be used to reduce a dump slope, only that the slope will be reduced to a specific grade. In other
situations, the size of the dozer could be important factor because the width of the access road is
limited or because the duration or noise level of equipment operation could affect a particular
wildlife species. In these cases, the Plan of Operations must describe the size/type of equipment
to be used so that the impacts can be evaluated.
For a more detailed description of the process regarding the review, approval, and management
of a Plan of Operation refer to Figures 4.2-2 through 4.2-8.
4.3 Plan of Operations – Filing and Content
Operators who are required to file a Plan of Operations must file the Plan in the BLM
District/Field Office that has jurisdiction over the lands involved. A specific form is not required
but the Plan must contain all the information required under 43 CFR 3809.401(b) in order to be
considered complete. An example format (Format 4.3-1, Plan of Operations) for a Plan
submission is provided in Appendix C – Example Formats. Additional information on
environmental conditions and reclamation costs is required to be provided under 3809.401(c) and
(d), respectively. An operator does not need to provide the information requested under
3809.401(c) or (d) in order for the Plan to be considered complete; however, the BLM may be
unable to process the Plan until such information is provided.
Plan content should be as specific as necessary for the BLM to determine whether the proposed
action will cause undue or unnecessary degradation. However, consideration should be given to
operational flexibility so that frequent modifications are not necessary. For example, an operator
may wish to indicate a range of earth-moving equipment that may be used rather than identify a
specific make and model. Operational flexibility is considered appropriate as long the scope and
intensity of the of the plan is not altered.
4.3.1 Pre-Plan Coordination
The BLM is available to meet with the operator and other local, state, or Federal agencies that
may be involved in the approval process to discuss (1) what to include in the Plan of Operations
and (2) what may be needed to support the NEPA analysis, especially for large projects. It may
be beneficial to all parties for the BLM to informally review a pre-plan, conceptual plan, or study
plan prior to the formal filing of the Plan of Operations to give the operator guidance on what to
include in the submission and how the review process will be conducted.
Pre-Plan discussions are especially beneficial when extensive baseline studies are necessary to
support NEPA review of a Plan, where collection of baseline data is anticipated to take several
years, or where cost recovery is required. The more common types of baseline studies include
(1) rock characterization for acid rock drainage (ARD) analysis, (2) hydrologic baseline studies,
(3) wildlife and plant inventories, and (4) cultural resources inventories. To ensure the Plan of
Operations approval process proceeds in a timely manner, operators need to provide sufficient
water-related baseline data to the BLM when the Plan is submitted. For example, groundwater
baseline data to support review of a Plan involving a large heap-leach metallic mining operation
may require 2 years to collect and the drilling of several deep monitoring wells. Advanced
planning with the operator for this type of baseline data collection is encouraged.
BLM HANDBOOK
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Figure 4.2-1 - Plan of Operations Process
2. Environmental Review
1. Completeness Review
3809.401(c)(1)
3809.411(a)(3)
3809.420(a)-(b)
40 CFR 1500-1508 (NEPA)
3809.401(a)
3809.401(b)(1-5)
Plan Modification
3809.430 - 434
3809.580
4. Compliance Monitoring
3809.415
3809.420, 421 & 424
3809.431
3809.552(b) & 553(b)
3809.600 - 701
5. Closure & Bond Release
3809.420(b)(3)
3809.590 - 599
BLM HANDBOOK
3. Plan Approval &
Bond Establishment
3809.401(d)
3809.411(d)
3809.412
3809.500
Administrative or
Legal Review
3809.800-809
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Figure 4.2-2 - Plan of Operations -- Completeness Review
Plan of Operations submission by the operator - 3809.401(a)
Must be filed in BLM District/Field Office
No particular form required
Must demonstrate operations would not cause UUD
Per 3809.411(a) BLM reviews the Plan of Operations submission within
30 days to determine if it satisfies the content requirements of
3809.401(b):
Operator Information Requirements - 3809.401(b)(1)
Name, address, phone, taxpayer identification number
BLM serial number of involved unpatented claims
Point of contact for corporations
30-day notification required for any change in operator
Description of Operations Elements - 3809.401(b)(2)
Maps showing all activity and facility locations
Preliminary designs and operating plans
Water management plans
Rock characterization and handling plans
Quality assurance plans
Spill contingency plans
Schedule of operations from start through closure
Plans for access, power, water, or support services
Reclamation Plan Requirements - 3809.401(b)(3)
Drill-hole plugging plans
Regrading and reshaping plans
Mine reclamation, with pit backfilling information
Riparian mitigation plans
Plans for wildlife habitat rehabilitation
Topsoil handling plans
Revegetation plans
Plans to isolate and control toxic or deleterious material
Plans to remove/stabilize buildings, structures, and facilities
Provisions for post-closure management
Monitoring Plan Requirements - 3809.401(b)(4)
Description of resources subject to monitoring plans
Type and location of monitoring devices
Sampling parameters and frequency
Analytical methods
Reporting procedures
Procedures for responding to adverse monitoring results
Reliance on other Federal or State monitoring plans
Interim Management Plan - 3809.401(b)(5)
Measures to stabilize excavations and workings
Measures to isolate or control toxic or deleterious materials
Plan for storage or removal of: equipment, supplies, structures
Measures to maintain the area in a safe and clean condition
Plans for monitoring site conditions during non-operation
Schedule of anticipated non-operation
Provisions to notify BLM of changes in non-operation period
Begin internal scoping for the
environmental analysis concurrent
with the Plan completeness review
BLM HANDBOOK
Operator responds to the
BLM information request
BLM notifies the Operator
the Plan is not complete per
3809.411(a)(2) and details
the information required by
3809.401(b) to make the Plan
complete (Example 1)
No
Is the Plan of
Operations
Complete?
Yes
BLM notifies the Operator the
Plan is complete per
3809.411(a)(1) and advises as
to further steps under
3809.411(a)(3) that must be
completed prior to Plan
approval (Example 2)
Continue to
Environmental
Review Process
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Figure 4.2-3 - Plan of Operations -- Environmental Review
Scoping Process – Identification of issues – 40 CFR 1501.7*
Start scoping during or before Plan Completeness Review
Conduct EIS-level formal public scoping period that
begins with Federal Register Notice of Intent
Public scoping for an EA is optional
Identify issues for use in alternatives development
Assist in defining scope of baseline data needs
Initiate consultation(s) required by 43 CFR
3809.411(a)(3)(iii,iv,vii,viii,ix):
*40 CFR 1500-1508 are the regulations implementing NEPA
Development of Alternatives – 40 CFR 1502.14
Evaluate potential impact of Operator’s Plan of Operations
Develop alternative(s) to address impacts of the Operator’s
Plan that may not meet performance standards or cause UUD
Develop alternatives to address issues identified during
internal, public or agency scoping
o Usually there are at least three alternatives:
o The no action alternative (mandatory for EISs)
o The Operator’s complete Plan of Operation as the
proposed action
o Operator’s proposed Plan with BLM-added mitigation
needed to prevent unnecessary or undue degradation
Prepare EA (40 CFR 1508.9) or draft EIS (40 CFR 1502.8 –
1502.18)
Analyze impacts of the Plan and alternatives
Assume full implementation of the Plan and alternatives
Analysis of exploration projects does not need to assess
impacts from mining unless mining reasonably foreseeable
Amount of financial guarantee does not determine impacts
Monitoring is not mitigation unless tied to response actions
Revise alternatives to prevent UUD or minimize resource
conflict, if appropriate, and re-analyze
Identify the BLM’s preferred alternative
Complete the EA (40 CFR 1508.9) or EIS (40 CFR 1502.9(b))
documents to:
Address substantive agency or public comments
Include results of consultation(s) made under 43 CFR
3809.411(a)(3)
Produce EA with FONSI; or the final EIS
Identify the BLM preferred alternative in the document
Release final EIS 30-days prior to DR/ROD (40 CFR
1506.10(b))
BLM HANDBOOK
Identify operational or baseline information
necessary to conduct NEPA Analysis per 43
CFR 3809.401(c)(1) and (c)(2)--Could include:
Information on public and non-public land
around project
Information on geology, paleontology, cave
resources, hydrology, soils, vegetation,
wildlife, air quality, cultural resources and
socioeconomic conditions
May require operator to conduct static or
kinetic testing to produce information on
acid generation or leachate character
Notify Operator of information
required under 43 CFR
3809.401(c)(1) per 43 CFR
3809.411(a)(3)(i)
Operator provides the studies or
information needed to support
NEPA analysis
BLM reviews within 30-days Is the
Information adequate to prepare the
NEPA analysis?
Yes
No
Provide for public comment on
the Plan per 43 CFR
3809.411(c). If combined with
public comment on NEPA
document allow:
30-day minimum on EAs
60-day minimum on EISs
Continue to Plan of Operations
approval and bond
establishment process
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Figure 4.2-4 - Plan of Operations -- Approval and Financial Guarantee
Pre-decision Checklist:
Site visit conducted?
Consultations complete under
3809.411(a)(3)(iii,iv,vii,viii,ix)?:
NHPA, ESA, Fisheries Act
Native American Tribes
Other surface managing agency
Private surface owner
State water quality agency
Public comment sought per 3809.411(c)?
Completed EA or EIS?
Issue Decision Record/FONSI or Record of
Decision stating what the decision is on the Plan
of Operations:
Plan approved as submitted, or
Plan approved subject to changes required
to prevent UUD
-OR Plan is denied or approval withheld
because:
Does not meet content requirements
Operations would cause UUD
When issuing a Record of Decision, include
information required by 40 CFR 1505.2.
No
Yes
Advise operator of specific
items to be completed before
the BLM can issue a
decision on the Plan.
3809.411(b)
approvals, if
necessary
Request the operator provide
reclamation cost estimate and
information for the anticipated
preferred alternative when
appropriate (3809.401(d))
Operator provides the BLM a
reclamation cost estimate
Review within 30-days:
Any deficiencies or additional
information needed for the
BLM to determine the final
financial guarantee amount?
Yes
No
Issue Plan decision to the operator by certified
mail that states:
The BLM decision on the Plan (approve,
approve with conditions, approval withheld,
or approval denied)
A list any conditions of approval
The final financial guarantee amount
A statement that activity may not begin
until bond instrument is accepted
Any applicable appeal language
Operator provides the financial
guarantee for reclamation
Financial instrument(s)
determined adequate under
bond adjudication process
Surface disturbing
activities begin
Appeals Process 3809.800
By Operator
By Third Parties
State Director Reviews
IBLA Appeals
Federal Complaint
BLM HANDBOOK
Continue to Plan of
Operations compliance
monitoring process
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Figure 4.2-5 - Plan of Operations -- Compliance Monitoring
BLM onsite inspection and
monitoring of compliance with
the approved Plan of
Operations
Operator-submitted
monitoring results per the
approved Plan of Operations
BLM Evaluation
Operation meeting performance
standards (3809.420)?
Operations following conditions of
approval (3809.411(d)(2))?
Preventing unnecessary or undue
degradation (3809.415)?
Operator monitoring programs
providing sufficient information?
No
Consider the need for Plan
Modifications under 3809.431
and/or possible enforcement
action under 3809.421 and
3809.600-701
Proceed to Plan
Modification process
BLM HANDBOOK
Yes
Continue to monitor
operations for compliance
through final reclamation
Proceed to Closure and
Financial Guarantee
Release process
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Figure 4.2-6 - Plan of Operations -- Closure and Financial Guarantee Release
Upon completion of reclamation and according to the approved
Plan, the operator may request per 3809.590(a):
BLM approval of reclamation adequacy
Reduction of the required financial guarantee amount in
whole or in part; or both
The BLM inspects the reclaimed area to determine:
Whether the reclamation meets the Plan of Operations
requirements
That the performance standards have been met
The remaining reclamation liability for which a financial
guarantee must be maintained
Has the operator has successfully completed reclamation?
Including backfilling, regarding; establishment of drainage
control; and stabilization and detoxification of leaching
solutions, heaps, tailings, and similar facilities on that
portion of the project area (3809.591(b))
No
Yes
Release no more than 60% of the total
reclamation financial guarantee
Is revegetation of the disturbed area
successful and one of the following
conditions met?
No effluent present
Effluent from the reclaimed area
has meet applicable requirements
for 1 year without treatment
(3809.591(b-c))
operator has established a
funding mechanism under
3809.552(c) to guarantee longterm treatment of effluent
(3809.591(b-c))
No
BLM HANDBOOK
Per 3809.590(c) publish notice
of the final release and invite
public comment for 30 days
Yes
Public comments received and
considered on final release of
the financial guarantee
Final release of the financial
guarantee; close the case file
Where funding mechanism
required under 3809.552(c);
Do not close the case file until
funding mechanism required
under 3809.552(c) has been
terminated
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Figure 4.2-7 - Plan of Operations -- Modification
Operator-Initiated Plan Modification
BLM-Required Plan Modification
To make any changes in the approved
Plan of Operations submitted under
3809.401(b) (3809.431(a))
To address impacts from unanticipated
events or conditions listed in
3809.431(c)(1-7)
To prevent unnecessary or undue
degradation (3809.431(b))
To address impacts from
unanticipated events or conditions
(3809.431(c)(1-7))
Operator Submits Modification
proposal to BLM District/Field Office
No
Review the Modification using
the same process used to review
Plans of Operations (3809.432(a))
BLM review per 3809.432(a) and (b)
Is the proposed Modification a
minor modification under
3809.432(b)?
Yes
Document consistency of
the minor modification with
the approved Plan and
NEPA analysis
Go to the Completeness Review
Process starting at 3809.401(a)
Notify Operator that the
modification has been
accepted as a minor
modification
Continue to Plan of
Operations compliance
monitoring process to
monitor modification
implementation
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Figure 4.2-8 - Plan of Operations -- Administrative Review
Decision Issued
Only adversely affected parties with standing may appeal
to IBLA or request State Director Review (3809.800)
IBLA appeal or request for State Director Review (SDR)
must be filed within 30 days receipt of the decision
(3809.801, 3809.804)
Decisions remain in effect unless a Stay is granted by
IBLA (3809.803) or the State Director (3809.805) (43 CFR
4.21)
Appeal to IBLA
State Director Review Request
Filed with the State Director
Must include statement explaining
why decision should be changed
(3809.805(a))
May request a Stay of the decision
during the SDR (3809.808(a))
State Director has 21 days to accept
or deny review request
Notice of Appeal is to be filed in the BLM
office that issued the decision
Acknowledge appeal within 5 days
Original case file and appeal is sent to
IBLA by BLM within 10 days
Statement of Reasons must be filed with
IBLA by appellant within 30 days of the
Notice of Appeal (43 CFR 4)
IBLA Review
SDR Request Accepted
SDR Request Denied
Party may also request a
meeting with the State
Director (3809.805(b))
Party may appeal
original decision to
IBLA within 30 days
SDR Process
Based on the record
May consider material
submitted by appellant
May result in a State
Director meeting
SDR halted if case appealed
to IBLA by any party
SDR Completed
Issue written decision
Generally within 90 days
Affirm, remand, or modify
parts or all of the original
decision
May be appealed to IBLA
BLM HANDBOOK
Appellant may request a Stay
The BLM can respond to Stay requests
The BLM can file response to Statement
of Reasons
Operator may ask to intervene in third
party appeals
Any party can request expedited
consideration
Decision under appeal is removed from
BLM jurisdiction (43 CFR 4)
IBLA Decision
May take years on normal docket
schedule unless expedited
Written decision issued that could
affirm, vacate, remand, or modify the
original BLM decision
Final for the Department, but
reconsideration may be requested (43
CFR 4)
Federal Complaint
Next level of appeal after IBLA
Federal complaint may be filed prior to
or during IBLA appeal because a Stay is
not automatic (43 CFR 4)
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This pre-Plan coordination is not required by the regulations, but may be arranged as a
convenience to the operator. Be sure to document pre-Plan submissions and meetings for later
inclusion in the case file if and when a proposed Plan of Operations is filed. Generally costrecovery does not apply to pre-plan coordination (see Section 4.7).
4.3.2 Completeness Requirement
The regulations at 43 CFR 3809.401(b) list the items to be included in the Plan of Operations,
when applicable to the proposed activity. Overall, the Plan of Operations must describe the
proposed operation at a level of detail sufficient for the BLM to determine whether or not the
proposed operations will cause UUD. Upon satisfying the requirements of 43 CFR 3809.401(b),
the operator has submitted a complete Plan of Operations (see Section 4.4.1.1 and 43 CFR
3809.411(a)(1)).
A complete plan of operation will contain accurate operator information. To the extent that the
information is verifiable, the BLM will review available public and internal records to ensure
operator data in accurate. Provided mining claim data will be verified through the use of the
BLM LR2000 mining claim database.
A complete Plan of Operations does not include environmental information needed to support
the NEPA analysis, nor does it include the RCE (unlike a Notice which requires the RCE to be
considered complete). The environmental information and the RCE are separate requirements.
Rather, a complete Plan of Operations is a description of how the operator is proposing to
conduct their operations. It contains information unique to that particular operation that only the
operator can provide. It is this complete proposal that will constitute the proposed action in the
NEPA analysis.
A complete Plan of Operations submission under 3809.401(b) may or may not be adequate to
prevent UUD. The point of completeness is for the BLM to understand what the operator is
proposing. It is only after the BLM conducts its environmental review that a determination can
be made on whether the operator has proposed a Plan of Operations that would cause UUD.
4.3.3 Proposed Operations and Operator Identification
Section 3809.401(b) requires the operator to describe the proposed operations in five general
categories. The categories are:
Operator Information
Description of Operations
Reclamation Plan
Monitoring Plan
Interim Management Plan
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The description must be at a sufficient level of detail for the BLM to identify the operator and to
evaluate the proposed Plan of Operations to determine if the Plan would cause UUD.
4.3.3.1 Operator Information
The operator must provide basic identifying information. This includes the name, mailing
address, phone number, taxpayer identification number(s), and the BLM serial number(s) of any
unpatented mining claims upon which the surface disturbance would occur. Provided the land is
open to mineral entry under the Mining Law, a mining claim is not required in order to conduct
operations, and a Plan of Operations can be approved absent a mining claim.56 In those cases,
there may not be any mining claim serial numbers to include with the operator information.
4.3.3.1.1 Corporations and business entities
Corporations, LLCs, and other business entities must identify one individual as the point of
contact. All business entities must provide a U.S. taxpayer identification number.
4.3.3.1.2 Individuals
For individual operators, the taxpayer identification number is the operator’s social security
number. Social security numbers are personally identifiable information under the Privacy Act
and must be protected from disclosure. Operator social security numbers are not to be kept in the
project case file that may be available to the public (see Chapter 13 Records Management).
4.3.3.1.3 Change of Operator
Operators must notify the BLM, in writing, within 30 days regarding any change in corporate
point of contact or mailing address. Form 3809-5 is available for operators to file a proposed
change of operator with the BLM. New operators must meet the operator information
requirements, clearly acknowledge the assumption of any outstanding reclamation liability, and
satisfy the financial guarantee requirements under 43 CFR 3809.551, 3809.581, and 3809.582
before a change of operator can be accepted. A change of operator is an administrative function
and does not require a modification to the Plan of Operations under 43 CFR 3809.430 or
3809.431.
4.3.3.1.4 Multiple Plans
If two or more operators file Plans of Operations on the same area, the BLM will notify the
respective operators of the potential conflict. The BLM will review each Plan based on the
BLM’s requirement to prevent UUD. See Section 4.4.3.3, Plan of Operations Denied or
Approval Withheld, for guidance when there are mutually exclusive proposals that do not enable
the BLM to evaluate whether the Plans would cause UUD.
56
The BLM employees must not advise operators on the need to locate or not locate a mining claim for their Plan of
Operations, nor give operators the impression that by filing a Plan of Operations they are secure from rival
operators. A mining claim is required for operations on split estate lands or in segregated or withdrawn areas. See
Handbook Sections 8.1 and 8.3.
BLM HANDBOOK
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4.3.3.2 Description of Operations
The description of the operations57 can require the preparation of large volumes of information
by the operator. Please note that while this section requires the operator to describe the
equipment, devices, or practices proposed for use during operations, it is conditioned by the
statement “where applicable,” (e.g., maps or designs of a tailings disposal area are not required
for an exploration project). The regulations intentionally list general subject areas so the BLM
can determine the level of detail needed for its review. Close coordination with state and other
Federal agencies is necessary to arrive at a consistent level of detail needed to review the project.
Since no particular form must be followed, information required by other agencies can be used to
meet the BLM’s Plan content requirements (see Appendix C – Example Formats, Format 4.3-1,
Plan of Operations, for a Plan submission example). The following discusses the categories of
information that may be required in the description of operations.
4.3.3.2.1 Map Requirements
Good maps are the key to understanding how the project is going to function and where the
impacts are likely to occur. The operator must provide a map of the project area at an
appropriate scale showing the location of exploration activities, drill sites, mining activities,
processing facilities, waste rock and tailing disposal areas, support facilities, structures,
buildings, and access routes.58
Maps vary in content, scale, etc., depending on the individual project proposed. Maps submitted
to the BLM must be tied to the public land survey system so activities can be located on the
ground and potentially affected public lands depicted with respect to the proposed exploration
disturbance or mine facilities.
Maps must be of sufficient detail to allow the BLM can review, analyze, and make a decision on
the proposed operations. For example, most exploration projects can be adequately reviewed
from hand-plotted drawings made on enlarged U.S. Geological Survey (USGS) topographic
quadrangles. At the other end of the spectrum, for review of complex mining projects, it may be
advantageous for the operator to provide drawings, or maps and cross-sections in an agreed-upon
electronic format, so that resource information can be overlaid and volume and area calculations
conducted by the BLM. In addition to providing maps, the BLM District/Field Office may
require the operator to mark or flag the proposed disturbance on the ground so that the area can
be inspected concurrent with Plan review.
4.3.3.2.2 Preliminary or Conceptual Designs and Plans
Preliminary or conceptual designs, cross sections, and operating plans are required for mining
areas, mineral processing facilities, waste rock or tailing impoundment locations, haul roads,
etc.59
57
43 CFR 3809.401(b)(2).
43 CFR 3809.401(b)(2)(i).
59
43 CFR 3809.401(b)(2)(ii).
58
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The design information needed for the initial Plan review is feasibility or conceptual level
information so the BLM can understand the basics of where the facility is going to be
constructed, how big the facility is going to be, how it would operate, the types of waste
generated, and the limiting engineering factors that may affect its performance. Final
engineering designs or plans are not required at the beginning of Plan review and can be
incorporated into the Plan of Operations as a condition of Plan approval per 43 CFR
3809.411(d)(2). In addition to engineering designs, information may be needed on the
equipment size, type, traffic levels, and periods of operation for these same facilities in order to
assess the effects from operation.
Often the operator may need to size certain structures such as a waste rock dump or leach pad to
account for changes or uncertainty regarding cut-off grades or the limits of the deposit. In these
cases, the operator can propose an upper limit on the facility size or operating rate to
accommodate their potential needs and to avoid fragmenting the approval process later with
modifications. Ensure the geotechnical analysis addresses the adequacy of the engineered
structures at each operating level as construction or loading proceeds in phases.
4.3.3.2.3 Water Management Plans
Water management plans include plans for management of all waters on the mine site,
stormwater control, management of process solutions in leaching facilities, and the handling of
any mine drainage including acid rock drainage (ARD)60 and pit lake waters.61 Key components
include establishment of the design storm event, a determination of runoff from the design storm
event, the location and sizing of runoff control structures (especially those control structures
whose construction requires disturbance of public lands), the ability to contain leaching solutions
during wet periods or extreme precipitation events, and contingency plans for the disposal or
treatment of excess solutions (see also the discussion of the performance standards in Section
5.3, Specific Performance Standards for Notices and Plans of Operations).
Water management plans should integrate requirements from state or Federal agency permits for
discharge under the National Pollutant Discharge Elimination System (NPDES) or dredge and
fill permits under the U.S. Army Corps of Engineers’ 404 permit program, and be prepared in
coordination with the Regional Water Control Board and other state regulations or standards.
This will help to ensure consistency between the construction of water management structures
and the location of mine facilities.
Detailed plans for water treatment that will be conducted during mine operations, or will
continue post-reclamation, must be provided. This includes information on treatment methods,
system design, outfalls, rates, treatment threshold, and the expected duration of treatment. Other
Federal or state permits that may be needed for the operation of the treatment system must be
identified.
60
BLM Technical Note – Passive Treatment System for Acid Mine Drainage
(http://www.blm.gov/nstc/library/techno2.htm).
61
43 CFR 3809.401(b)(2)(iii).
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4.3.3.2.4 Rock Characterization and Handling Plans
Rock characterization and handling plans describe how the operator will manage rock that may
require special handling, e.g., due to its potential to generate acid or deleterious leachate, is to be
managed.62 The plans must include the analytical protocols and criteria that will be used to
identify potential acidic or reactive rock. The plan must include how such material is to be (1)
identified by testing prior to and during mining, (2) selectively handled, (3) processed or treated,
and (4) reclaimed. These plans are integral to the “source control” of acid-forming, toxic, or
other deleterious material as described in the performance standards (Section 5.3.11.1, Source
Control Requirements).
Whether a particular deposit will be acid-generating requires a site-specific evaluation that
considers factors such as deposit mineralogy, structure, hydrology, climate, mining method,
milling process, etc. There is a large volume of technical information available on how to assess,
handle, and reclaim potentially acid-forming materials. Consult BLM’s Solid Minerals
Reclamation Handbook, H-3042-1, for a list of information sources.
4.3.3.2.5 Quality Assurance Plans
Quality assurance plans describe the programs, plans, and procedures for how the operators
intend to ensure their mine facilities are constructed as designed.63 These plans include
procedures and protocols for items such as compaction testing of foundation materials or seam
testing of leach pad or pond liners. Even the best environmental engineering system designs will
fail to function if not properly constructed and thus result in UUD. Therefore, the operator must
incorporate thorough quality assurance and control procedures in the Plan of Operations to
ensure the environmental compliance of mine facilities constructed on BLM lands.
Quality assurance plans for critical components such as leach pads, tailing impoundment, or
solution storage ponds, may require operators to retain a third-party engineering firm to oversee
facility construction and provide quality control reports to the BLM and applicable state
agencies.
4.3.3.2.6 Spill Contingency Plan
A spill contingency plan is required for every Plan of Operations that involves chemical
processing or the use or storage of hazardous substances.64 These plans must describe what
measures an operator will take to avoid spills of chemicals or hazardous substances including
transport, storage, handling, and disposal as well as how an operator will respond to a spill,
including containment and clean-up procedures, enhanced monitoring measures, and notification
procedures to the appropriate regulatory agencies.
A copy of the spill contingency plan required by a state or other Federal agency will generally
meet the BLM requirement for a spill contingency plan. However, the Plan must include who,
62
43 CFR 3809.401(b)(2)(iv).
43 CFR 3809.401(b)(2)(v).
64
43 CFR 3809.401(b)(2)(vi).
63
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when, and how the operator will notify the BLM when a release or spill occurs on or that may
affect BLM-managed lands. Review of the proposed spill contingency plan must be coordinated
with the State Office or District/Field Office Hazardous Materials Coordinator.
4.3.3.2.7 Schedule of Operations
A schedule from startup through closure is needed to accurately predict potential impacts and
ensure timely reclamation.65 The schedule helps the BLM determine if the project would meet
the performance standards in 43 CFR 3809.420, assess periods of non-operation under 43 CFR
3809.424, and evaluate the duration of potential impacts for the NEPA analysis.
An operation that intends to run for 5 years will likely have different potential impacts than one
that will operate for 10 years, even if both are ultimately the same size and type. Similarly,
knowing if the plan is to operate 24 hours a day compared to only during daylight hours, or
seasonally compared to year-round, are critical to understanding the nature of the potential
impacts, determining whether the impacts would result in UUD, and in developing necessary
mitigating measures.
The schedule can be modified by the operator under 43 CFR 3809.430. While there is no limit
on the duration an approved Plan of Operations can remain in effect, the BLM will not approve
Plans with open-ended, or indefinite, operating schedules. Where Plans propose a mine life
longer than 10 years, the BLM will include provisions in the approval decision for periodic
reviews. Section 3809.431(c) can then be used to evaluate whether there are any changes in
circumstances or conditions that may warrant requiring the operator to submit a Plan
modification.
4.3.3.2.8 Support Facility Plans
Plans for access roads, conveyors, water supply pipelines, and power or utility services or any
other such support facility to be built and run by the operator for the project are considered as
part of the Plan of Operations and not as a separate right-of-way (ROW) permit where such
facilities would be constructed to serve exploration or mining activity on BLM lands under a
specific Plan of Operations.66 However, an operator is not precluded from filing for a ROW
under 43 CFR Group 2800, if the operator wants long-term protection or exclusive use of the
route.
Plans for support facilities must include a basic description of the facility purpose, size,
disturbance area, construction procedures, operating capacity, and reclamation procedures.
Third-party local or regional roads, power lines, or other utility services passing through or near
the project area do not require approval as part of the Plan of Operations provided they exist
independently of the Plan and have a separate authorization for where they cross public lands,
most likely in the form of a right-of-way.
65
66
43 CFR 3809.401(b)(2)(vii).
43 CFR 3809.401(b)(2)(viii).
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If approval of the Plan of Operations would result in upgrades, expansions, or increased
maintenance requirements to local or regional roads, powerlines, or other support facilities
operated by the third parties, the potential impacts of such support facilities need to be analyzed
in the NEPA document prepared for the Plan because the approval of such facilities is connected
to the proposed action. Therefore, the potential impacts of these facilities must be analyzed in
conjunction with the proposed action for direct, indirect, and cumulative impacts. Involvement
of the BLM realty specialist will be necessary to determine how to handle these situations.
4.3.3.3 Reclamation Plan
The reclamation plan may be the most important component of the Plan of Operations for the
long-term mitigation of impacts and achievement of sustainable development levels or
objectives. The reclamation plan serves as the basic construction plan for calculating the
reclamation cost and financial guarantee amount, so detail is important. The operator is required
to provide a description of the equipment, devices, and practices the operator proposes to use
during reclamation in order to meet the performance standards in 43 CFR 3809.420.
The operator also needs to provide estimated volumes or quantities of earthwork that will be
conducted, as appropriate. It may not always be relevant or appropriate to require the
information listed in this paragraph, as not all operations will include the features listed for
reclamation. See the BLM’s Solid Minerals Reclamation Handbook H-3042-1 for technical
guidance on reclamation requirements.
4.3.3.3.1 Drill Hole Plugging
Drill holes include all exploration holes, monitoring wells, water supply wells, and piezometers
associated with the project.67 Reclamation plans must include a description of how drill holes
(that are not approved to be mined-out) are going to be sealed or plugged. Drill hole plugging
procedures must describe measures to prevent:
Mixing of waters from different aquifers.
Impacts to beneficial uses.
Downward water loss.
Upward water loss from artesian conditions.
The inflow of surface water into the drill hole.
The open hole from creating a surface hazard.
Plugging plans can be as simple as shoveling the cuttings back in the hole for shallow, dry drill
holes, or as involved as engineered grouting requirements where groundwater is encountered
67
43 CFR 3809.401(b)(3)(i).
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under artesian pressure. The BLM engineers in the oil and gas program have experience with
plugging requirements and should be consulted where complex plugging procedures are
proposed or needed. At a minimum, all proposed plugging plans must meet state drill hole
plugging requirements.
4.3.3.3.2 Regrading and Reshaping Plans
The plans for the regrading and reshaping of disturbed areas must be provided in the Plan of
Operations68. The plans must include:
A description of the amount and location of material to be moved.
Equipment to be used.
Slope grade.
Spacing of benches.
Location and size of run-on/run-off controls.
Cross-sections.
A post-operation topographic map showing the planned surface configuration is usually the best
way to (1) illustrate the regrading plan, (2) allow for verification of the amount of material to be
moved at closure, and (3) assess the adequacy of runoff controls needed to manage post-closure
sedimentation. For some mine waste units, such as ore heaps, the location of the leach pad liner
relative to the regraded spent-ore is needed to determine the adequacy of post-closure leachate
management.
Obtaining information on the overall stability of the reclaimed facility is a critical requirement.
Elements needed to determine stability include, but are not limited to, pre- and post-disturbance
landform, original site topography, geology, depth to groundwater, regrade slope, construction
methods, and type of material.
4.3.3.3.3 Closure Plans for Mine Openings and Pit Backfilling Information
Information on closure of all mine openings is required, whether the opening is an open pit, an
adit, a portal, or a shaft associated with an underground operation. 69 The plans must include
information on where the closures would be constructed, the nature of the material or devices
used to achieve closure, and a description of any long-term care or maintenance requirements
associated with closure of the opening. Information required for closure of underground
operations includes items such as gate or bulkhead design, backfill placement and amendments,
and provisions to control hydrostatic pressure.
68
69
43 CFR 3809.401(b)(3)(ii).
43 CFR 3809.401(b)(2)(iii).
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Mine pit backfilling may be part of the reclamation plan proposed by the operator or required by
the BLM as a condition of approval. Pit backfilling is one aspect of the reclamation plan where
the operator must provide the BLM with specific information so the BLM can determine the
appropriate amount of backfilling, if any, required. The operator is required to provide
information and analysis on pit backfilling that details economic, environmental, and safety
factors. This includes information on the anticipated backfilling costs, character of the potential
backfill material, stability of highwalls or backfill material, size and quality of potential pit lakes,
and safety issues that may be associated with backfilling. An operator statement of “pit
backfilling is not feasible” without providing supporting technical, environmental, or economic
data does not meet the Plan content requirement.
Reclamation plans for open pits must describe the likely presence or absence of a pit lake and the
anticipated water quality and quantity over time, and include a description of post-closure safety
controls around the pit.
While there is no set formula for how to consider information provided by the operator on the
feasibility of pit backfilling, the BLM must weigh the costs, impacts, and difficulties of pit
backfilling with the anticipated environmental and safety benefits on a case-by-case basis in
order to determine the appropriate amount of pit backfilling, if any, needed to meet the
performance standards (see Section 5.3.3.2, Reclamation Elements).
4.3.3.3.4 Riparian Area Mitigation Plans
The reclamation plan must describe how the operator proposes to avoid impacts to riparian areas,
and if impacts cannot be avoided, plans to reclaim or restore the riparian area.70 Mitigation plans
must address the replacement of soil and re-establishment of riparian conditions and vegetation.
If the riparian area is not to be re-established after mining (i.e., if covered by a waste rock dump
or other mine facility), then the reclamation plan must describe (1) the revegetation that will
occur and (2) any new riparian areas proposed to be established during reclamation that may
offset the loss in riparian acreage.
4.3.3.3.5 Wildlife Habitat Rehabilitation Plans
Wildlife habitat rehabilitation may include plans for re-establishing the same type of wildlife
habitat, or plans for a change in habitat more suitable to the altered landform.71 Plans for
rehabilitation of wildlife habitat must be aligned with plans for revegetation. Providing for
wildlife forage and cover through revegetation is part of wildlife habitat rehabilitation. The
reclamation plans must place special emphasis on wildlife habitat rehabilitation measures to
rehabilitate or restore critical value, pre-mine wildlife habitat, such as winter range or calving
areas.
When a habitat is proposed to be restored or created, the plan must address how the proposed
landform and vegetation will provide adequate shelter, habitat, and forage. To the extent
70
71
43 CFR 3809.401(b)(3)(iv).
43 CFR 3809.401(b)(3)(v).
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practical, the BLM wildlife biologists are available to assist operators in development of their
wildlife habitat rehabilitation plans.
4.3.3.3.6 Soil Handling Plans
The reclamation plan must describe the salvage, storage, redistribution, and treatment of topsoil
(or growth medium) that is to be used in reclamation.72 Soil handling plans must specify:
How soil will be salvaged in advance of construction.
Salvage depth.
Salvage cutoff criteria.
Segregation of topsoil and subsoil.
Direct haul feasibility versus storage.
Soil stockpile location and volumes.
Measures to protect the stockpile from erosion.
Measures to preserve soil viability.
Placement thickness at reclamation.
4.3.3.3.7 Revegetation Plans
All reclamation plans must include plans for revegetation of the disturbed area.73 Revegetation
plans must specify:
Seeding location.
Species type.
Seeding or planting rates.
Treatment methods such as fertilization or inoculation.
Stabilization of the reclamation area during vegetation establishment.
Revegetation plans must also include proposed criteria for what would constitute successful
revegetation and describe any measures such as temporary fencing or noxious weed control that
would be used on the reclaimed area.
72
73
43 CFR 3809.401(b)(3)(vi).
43 CFR 3809.401(b)(3)(vii).
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4.3.3.3.8 Plans to Isolate or Control Acid-Forming, Toxic, or Deleterious Materials
Reclamation plans must include plans for the isolation and/or control of any acid-forming, toxic,
or deleterious materials.74 Specific reclamation covers proposed to isolate or control these
materials must be described in detail and take into account the nature of the materials being
reclaimed. The reclamation plans must incorporate identification, handling, and reclamation
measures appropriate for such materials into the overall mine plan. For example, soil placed
directly over strongly acid-generating waste rock can acidify, impeding the revegetation effort.
Plans for the reclamation of acid-forming or deleterious mine wastes must follow the general
hierarchy of:
Source control of the material to prevent generation of contaminants.
Migration control to prevent the movement of contaminants to where they can cause
harm.
Capture and treatment of contaminants.
Reclamation plans must be integrated with the rock characterization and handling plans used
during mine operations.
While most waste from mineral extraction and processing is exempt (under the Bevill
Exemption) from the Resource Conservation and Recovery Act (RCRA) and considered a solid
waste, it is possible that certain aspects of the operation may generate some wastes which are not
exempt. The plans for the isolation or control of toxic or deleterious materials must describe
how the operator will remove or dispose of any nonexempt waste products which may constitute
a hazardous waste under RCRA Subtitle C.
The disposal of other waste, such as solid wastes from office facilities, labs, packing materials,
etc., must also be described in the reclamation plans.
4.3.3.3.9 Plans to Remove or Stabilize Buildings, Structures, and Support Facilities
Reclamation plans must include a description of what the operator is proposing to do with any
buildings, process equipment, or support facilities that are used during operations.75 Usually,
this requirement means the removal or demolition of support facilities. It may be necessary to
leave certain structures in place for long-term, post-reclamation use, such as monitoring wells,
ponds for stormwater management, or powerlines for treatment facilities.
Reclamation plans may include provisions for the BLM to accept ownership of some buildings,
structures, or facilities after operations cease through a written agreement with the operator.
74
75
43 CFR 3809.401(b)(3)(viii).
43 CFR 3809.401(b)(3)(ix).
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Operators may propose post-closure economic uses of facilities through partnerships with the
local community and third-party business interests. These sustainable development opportunities
may utilize the existing mine infrastructure (e.g., buildings, roads, power lines, water lines, etc.),
such that reclamation and demolition of the site would be minimized to allow for use by a third
party. For these options, it is critical the third party assumes the reclamation liability, if the
operator transfers its interest in the facilities.
4.3.3.3.10 Post-Closure Management Plans
Sometimes reclamation-related activities must continue long after the majority of reclamation
work has been completed.76 Fencing may need to be maintained, signs replaced, water treatment
systems operated or maintained, reclaimed slopes repaired, etc. The duration of such activity
may be months, years, decades, or in the case of water treatment, the end date may be indefinite.
The reclamation plan must clearly identify these post-closure activities and the operator’s
commitment to performing the required work over the necessary time period. See Section 6.3.4,
Trust Funds or Other Funding Mechanisms for a discussion of post-reclamation financial
guarantees to ensure performance of these requirements.
4.3.3.4 Monitoring Plans
4.3.3.4.1 Purpose
The Plan of Operations must include monitoring plans.77 The purpose of monitoring is to:
Demonstrate compliance with the Plan of Operations and other Federal or state laws and
regulations.
Provide early detection of potential noncompliance.
Supply information to assist in directing corrective actions.
For each resource to be monitored the respective monitoring plan must describe the:
76
77
Type and location of the monitoring devices.
Sampling parameters and frequency.
Analytical methods.
Reporting procedures.
Procedures for responding to adverse monitoring results.
43 CFR 3809.401(b)(3)(x).
43 CFR 3809.401(b)(4)
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4.3.3.4.2 Resources to Monitor
Monitoring programs may be needed for the resources potentially affected and the issues
identified during project review. The operator’s monitoring plan must propose to monitor those
resources with statutory monitoring needs or where monitoring may be essential to prevent the
operator from causing UUD.
Examples of monitoring programs that may be required include surface and groundwater quality
and quantity, air quality, meteorological conditions, revegetation condition, noise levels, slope
movement, or wildlife mortality.
4.3.3.4.3 Type and Location of Monitoring Devices
The monitoring plan must describe what samples or measurements will be collected, by whom,
and how often. A map should be included to show the location of monitoring points (whether for
air, water, soil etc.) with respect to the mine facilities or activity, and tied to a description or table
that lists the constituents to be sampled and states the frequency in which samples will be
collected.
4.3.3.4.4 Sampling Parameters and Frequency
Monitoring programs can include sampling by the operator, a consultant, or some combination of
the two. Quality control and assurance procedures must be included in the monitoring plan to
ensure that samples collected are representative of site conditions. The BLM may take check
samples to verify the results provided by the operator or consultant.
4.3.3.4.5 Analytical Methods
The monitoring plans must describe how samples will be analyzed, observations taken, and
results documented. This includes:
Whether it will be a field measurement or laboratory analysis.
Whether the analysis will be done internally or by an outside lab.
The specific test method to be employed.
The quality control and assurance program that will be followed to ensure accurate
results.
There can be considerable variation between field and lab results. Certain analytical methods are
required by regulatory agencies for compliance purposes and their input should be sought when
reviewing the operator’s monitoring plans.
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4.3.3.4.6 Reporting Procedures
The monitoring plan must describe how the results will be reported and to whom. Monthly
monitoring reports may be standard for larger projects. Smaller projects may only warrant
quarterly or annual monitoring reports to be submitted to the BLM. Reporting requirements
depend on the resources being monitored. For example, while daily reporting may be necessary
for water quality at a sensitive spring or wetland, the submittal of annual reporting may be all
that is necessary for air quality. Issues identified during Plan review should be used to assist in
determining the desired reporting frequency for the monitoring plan.
4.3.3.4.7 Response Actions to Adverse Monitoring Results
Monitoring does not constitute mitigation. The monitoring plan must be tied to a mitigation,
response action, or corrective measure to reduce or prevent impacts if the monitoring results are
adverse or unacceptable.
All monitoring plans must contain trigger levels that would require some action being taken to
prevent the operator from causing UUD. Trigger levels may be linked to statutory requirements,
such as a water quality standard or developed for that particular site, as in the case of acceptable
soil loss on a reclaimed slope. Response actions could vary from enhanced monitoring to
remedial actions. Development of trigger levels and response actions is a site-specific
consideration that depends on the resources present and the activity proposed by the Plan of
Operations.
4.3.3.4.8 Reliance on other Federal or State Monitoring Programs
Another important aspect of monitoring plans is to avoid duplication with the monitoring
requirements of state or other Federal agencies. The operator can, and is encouraged to,
incorporate other monitoring requirements into their Plan of Operations. In the following
example, the monitoring described may be part of a state groundwater protection permit or an
Environmental Protection Agency (EPA) discharge permit under the NPDES permit system.
Combining the review of the Plan of Operations with the development of these permits is
preferable to conflicting or duplicative monitoring programs, or to developing monitoring
programs before it is known where and under what conditions the mine facilities might be
approved by the mine permitting agencies.
4.3.3.4.9 Monitoring Example
The following is a hypothetical description from a monitoring plan for a single water quality
parameter to illustrate the monitoring concepts:
Monitoring well X-1 will be completed in the shallow alluvial aquifer 200 feet
downgradient of the leach pad as shown on map 1. The well will be sampled
daily by mine personnel and tested for cyanide. The test will be conducted using
a DR100 colorimeter. All test results will be submitted on a monthly basis to the
BLM and the state. Any test results showing free cyanide at greater than 0.05
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mg/L will be reported to BLM and the state within 24 hours. In the event that
results exceed 0.05 mg/L, a sample will be collected and send to an outside lab for
analysis. The well will be continuously pumped and the solution discharged into
the leach pad until such time as cyanide levels drop to below 0.05 mg/L as
confirmed by an outside lab analysis.
As shown in this simple example, the monitoring plan describes what is to be monitored, where
and how it is monitored, and what is done when adverse results are reported. Whether the
monitoring plan in the example is adequate to prevent the operator from causing UUD is
determined during review of the Plan of Operations. Perhaps the well should be sampled twice a
day, or maybe only once a week. The level of detail provided in the operator’s monitoring plan
allows the BLM reviewer to make that judgment.
A good monitoring plan has the effect of building mitigation into the Plan of Operations. This
allows the BLM to include the effectiveness of the monitoring and associated response action
when assessing impacts in the NEPA analysis. In the above example, perhaps the daily
monitoring and pump-back contingency reduces potentially significant impacts to less than
significant. It is preferred to review the Plan of Operations concurrently with state or other
Federal permitting requirements that involve monitoring. This concurrent review ensures the
monitoring program provides useful feedback on the Plan of Operation’s effectiveness in
preventing UUD and avoids duplication of effort.
4.3.3.5 Interim Management Plans
All Plans of Operations must contain an interim management plan. These plans establish actions
required during periods of temporary or seasonal closure under 43 CFR 3809.424 to avoid
causing UUD. There are six items that must be covered by the interim management plan:78
Measures to stabilize excavations and workings.
Measures to isolate or control toxic or deleterious materials.
Provisions for the storage or removal of equipment, supplies, and structures.
Measures to maintain the project area in a safe and clean condition.
Plans for monitoring site conditions during periods of non-operation.
Schedule of anticipated periods of temporary closure.
Operators may have prepared or other government agencies may have required a “care and
maintenance” plan, which is the mining industry equivalent to a an interim management plan.
Such a plan may be accepted by the BLM if it contains the content required at 43 CFR
3809.401(b)(5).
78
43 CFR 3809.401(b)(5).
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The interim management plan also provides the BLM with a basis for determining when an
operation might be considered abandoned. Interim management plans that propose inactive
status for longer than 5 years are generally not acceptable.
4.3.3.5.1 Stabilize Excavations and Workings
If the project has any open excavations or drill holes, the interim management plan must describe
how such openings will be closed during the period(s) of non-operation.79 Temporary closure is
usually accomplished by temporary measures: adits may be gated, trenches may be partially
filled or fenced, temporary plugs or surface plugs can be placed in drill holes, and soil stockpiles,
roadcuts, or slopes can be seeded with cover crops to limit erosion. If the period of nonoperation is only a few days and the proposal is to leave excavations open, the proposal must
also be clearly described as part of the interim management plan.
4.3.3.5.2 Isolate or Control Toxic or Deleterious Materials
The interim management plan must describe measures the operator proposes to prevent impacts
from a variety of materials and conditions during the period of non-operation.80 Interim fluid
management plans are required in order to maintain leaching solution volumes at low levels to
avoid overtopping or spills during the period of non-operation. For example, if there is a
particularly reactive stockpile of sulfide waste rock that should be covered, or a cyanide process
pond that needs to be detoxified prior to the period of non-operation per 43 CFR
3809.420(c)(12)(vii), the interim management plan must clearly describe the measures the
operator will take to avoid causing UUD.
4.3.3.5.3 Storage or Removal of Equipment, Supplies, and Structures
The interim management plan must provide for the storage or removal of equipment and supplies
during the period of non-operation.81 If equipment and supplies are to be stored onsite, the plan
must describe where they are proposed to be stored and how they will be secured, both for
liability reasons and to ensure environmental protection.
4.3.3.5.4 Maintain the Project Area in a Safe and Clean Condition
Interim management plans must address how the operator proposes to keep the project area in a
clean and safe condition during the period of non-operation.82 A simple commitment to remove
trash and unneeded equipment may address the “clean” requirement. To address safety, the
interim management plans must include measures to remove public safety hazards during periods
of non-operation, such as measures to secure mine openings, fuel, and processing reagents. The
operator must also commit to maintaining any necessary permits during the period of nonoperation.
79
43 CFR 3809.401(b)(5)(i).
43 CFR 3809.401(b)(5)(ii).
81
43 CFR 3809.401(b)(5)(iii).
82
43 CFR 3809.401(b)(5)(iv).
80
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4.3.3.5.5 Monitoring During Non-Operation
The interim management plan must address the monitoring that will be conducted during the
period of non-operation.83 This could vary from no monitoring during the seasonal shutdown of
an exploration or small mining operation, to continued implementation of the approved
Monitoring Plan described in 43 CFR 3809.401(b)(4) for large mines. The amount and type of
monitoring needed during a period of non-operation depends upon a variety of factors including
the type of operation, risk of environmental impacts, and duration of the non-operational period.
4.3.3.5.6 Schedule of Temporary Closure or Non-Operation
The interim management plan must include a schedule of anticipated periods of temporary
closure and describe the timing of any temporary closure or planned non-operation, as in the case
of anticipated seasonal shutdowns. During these periods, the operator would implement the
interim management plan, including provisions for notifying the BLM of any additional
unplanned or extended temporary closures.84
Unplanned or extended periods of non-operation are, by definition, difficult to address in the
interim management plans as part of the Plan of Operations. Many operations may not “plan” to
have a period of non-operation at all. However, factors beyond the operator’s control may force
a situation where the operator has to shut down, sometimes for years. This may be the result of
depressed commodity prices, changing financial conditions, natural disasters, or personal
difficulties. It is therefore important that every Plan of Operations interim management plan
include procedures for managing the project area should it enter a period of unplanned and/or
extended non-operation. In addition, all interim management plans need to include provisions
for notifying the BLM if the period of non-operation will exceed that originally anticipated. This
notification allows the BLM to determine what, if any, changes need to be made to interim
management plans to account for the new circumstances and will factor into the BLM's analysis
when determining whether operations should be considered “abandoned” under 43 CFR
3809.424(a)(4).
4.3.4 Additional Information Requirements
The BLM may require the operator to provide information under 43 CFR 3809.401(c) in addition
to the completeness requirements under paragraph 3809.401(b). This may include information to
assist the BLM with its environmental analysis under NEPA, its National Historic Preservation
Act (NHPA) consultation, or any other review process associated with the Plan of Operations. A
Plan of Operations can still be considered “complete” without this information, but the BLM
may not be able to finish processing the Plan until the information is provided (see also Section
4.4.1.3, The Plan is Complete - Other Information or Actions Required).
4.3.4.1 Operational or Baseline Information for NEPA Analysis
Under 43 CFR 3809.401(c)(1), the BLM may require the operator to conduct operational and
baseline environmental studies so the BLM can analyze potential environmental impacts as
83
84
43 CFR 3809.401(b)(5)(v).
43 CFR 3809.401(b)(5)(vi).
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required by NEPA and to determine if the operator’s Plan of Operations will prevent UUD. The
BLM may require the operator to supply baseline studies on a variety of resource subjects,
including, but not limited to geology, paleontology, cave resources, hydrology, soils, vegetation,
wildlife, air quality, cultural resources, and social and economic conditions. Resource
information may be required on both Federal lands and for resources present on adjacent nonpublic lands, where the potential effects have to be considered and disclosed in the
environmental analysis. See BLM’s National Environmental Policy Act Handbook, H-1790-1,
for further guidance.
4.3.4.1.1 Assisting the Operator
The BLM will assist the operator by detailing the operational or baseline information required.
The BLM must independently evaluate the information submitted, verify its accuracy, and follow
the procedure outlined at 40 CFR 1506.5(a) to use the information in preparing the
environmental analysis.
4.3.4.1.2 NEPA and Cost Recovery
While the BLM can require the operator to supply environmental information needed to support
the NEPA analysis, the BLM cannot require the operator to prepare or pay for an environmental
assessment (EA). If the operator chooses to have a contractor prepare the EA, an agreement
must be entered into with the BLM that details roles and responsibilities for the analysis
consistent with the regulations at 40 CFR 1506.5(b). Regardless of who prepares the EA, the
BLM has responsibility for the scope and content of the EA, and must independently evaluate the
document.
If the NEPA analysis on the Plan of Operations is to be done at the EIS-level, then the cost
recovery provisions at 43 CFR 3800.5(a) apply and the operator must pay for both the EIS
preparation and for the BLM’s internal costs to process the action. If a contractor is used for the
preparation of an EIS, the BLM must follow the requirements of 40 CFR 1506.5(c) to avoid a
conflict of interest. Like the EA, the BLM is ultimately responsible for the content and scope of
the EIS.
4.3.4.1.3 Required Testing
The BLM can require testing of the overburden, waste rock, and ore in order to evaluate the acidforming potential of the material. Testing may include, but is not limited to, acid-base
accounting tests, simulated weathering tests, leachate extraction tests, and whole rock analysis.
Consult the BLM’s Solid Minerals Reclamation Handbook, H-3042-1, for additional information
regarding the appropriate level of testing and test protocols for rock characterization. Because
these characterization tests can be time-consuming and expensive, the BLM and the operator
must jointly develop an acceptable testing plan. State or other Federal agencies are to be
consulted to ensure the testing program will meet all parties’ requirements.
4.3.4.2 Other Required Information
The BLM may require the operator to supply other information as described at 43 CFR
3809.401(c)(2) in the event additional information is needed to evaluate the Plan of Operations
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that is not covered by the Plan content or environmental data requirements listed above.
Examples of other required information include slope stability studies, special air or water
quality modeling, and ethnographic studies.
4.3.4.3 Scope of Required Information
The BLM must not use the Plan of Operations to require an operator to obtain information or
perform studies that are not relevant to evaluating the Plan of Operations. Environmental
inventories and studies required from the operator are to be driven by the issues associated with
the Plan of Operations, and not by research proposals or planning inventories that would
normally be funded out of the agency’s budget. The project-level NEPA analysis drives the
environmental information requirements.
4.3.5 Reclamation Cost Estimate Information Requirement
The operator is required to provide the BLM with an RCE. However, the cost estimate cannot be
determined until the Plan review and approval process has progressed to the point where the
BLM and the operator can anticipate what the approved Plan might look like. Therefore, at 43
CFR 3809.401(d), the BLM is directed to advise the operator when it is appropriate to submit the
RCE during the Plan review and approval process (see Appendix A, Template 4.3-1,
Reclamation Cost Estimate for Plan Required).
For small, non-controversial Plans, the operator may be requested to provide the cost estimate
with or soon after the BLM receives the Plan of Operations in anticipation that the Plan will be
approved much as it was submitted. For other Plans with complex issues and alternatives, it may
not be appropriate to request the RCE until after an EA or Final EIS is published identifying a
preferred alternative and including all mitigating measures that will likely be required as
conditions of approval.
4.3.5.1 Reclamation Cost Estimate Review
The operator’s RCE must include all costs as outlined in 43 CFR 3809.552 and 3809.554 (see
Section 6.2, Reclamation Cost Estimates, for further information on cost estimating). Within 30
days of receipt, the BLM will review the cost estimate and notify the operator of any deficiencies
in the RCE and/or additional information required.
The types of information the BLM may identify as deficient or incomplete in the operator’s RCE
could include, but are not limited to, assumptions regarding equipment rates, material volumes to
be moved, equipment time and efficiency factors, mobilization locale, heap pumping volumes,
material costs, labor costs, overhead and contingency costs, or availability of onsite equipment.
The BLM’s response will specifically identify any area of disagreement with the operator’s RCE
and propose any alternative cost assumptions that the BLM believes to be appropriate (see
Appendix A, Template 6.2-1, Unacceptable Reclamation Cost Estimate).
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4.3.5.2 Establishing Financial Guarantee Amounts
The financial guarantee amount is set by the District/Field Manager, usually in consultation with
the state, and after considering the operator’s RCE and any supplemental information provided in
response to the BLM. For some projects, the process of cost estimate review, revision, and
resubmission may undergo several iterations. Also, it may take several meetings between the
operator, the BLM, and the state before all factors are considered and a final RCE is established.
The final RCE is the basis for the amount of the financial guarantee for the approved operations.
The BLM will not obligate a financial guarantee until it receives a copy of the District/Field
Office’s decision establishing the amount of the financial guarantee.
The decision on the final RCE setting the financial guarantee amount is subject to appeal.
Therefore, the process used to establish the RCE and the resulting financial guarantee amount
must be carefully documented in the 3809 case file (see Appendix A, Template 3.2-3,
Determination of Required Financial Guarantee Amount).
Close coordination between the adjudication staff and District/Field Office staff is necessary to
ensure:
Copies of appropriate correspondence concerning the RCE and financial guarantee are
included in the State Office bond case file.
Copies of appropriate bond adjudication and decisions are included in the District/Field
Office case file.
If an agreement or Memorandum of Understanding (MOU) exists between the BLM and
the state, copies of all pertinent BLM and operator correspondence are sent to the state.
LR2000 Plan of Operations data corresponds to appropriate Bond and Surety System
(BSS) data, and vice versa.
4.4 Processing the Plan of Operations
This section discusses the steps the BLM takes when processing the Plan of Operations
submitted by the operator. It covers the completeness review process and NEPA analysis
procedures, consultation requirements, and the issuance of a final decision on the operator’s
proposed Plan. The BLM review, environmental analysis, and approval process should be
coordinated with other evaluation or permitting procedures of local, state, or Federal agencies as
much as possible in order to avoid conflicting or overlapping requirements or delays.
4.4.1 Completeness Review
The regulations require the BLM to review the operator’s proposed Plan of Operations for
completeness and give notice within 30 calendar days as to one of three possible outcomes of
that review.85 The BLM may determine that the Plan is complete, not complete, or complete but
other information or actions are required before a decision can be issued on the Plan.
85
43 CFR 3809.411(a).
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Figure 4.2-2, Plan of Operations - Completeness Review Process, illustrates the completeness
review procedures and requirements.
4.4.1.1 The Plan is Complete
A complete Plan of Operations is one that meets the content requirements at 43 CFR
3809.401(b). Once the operator has submitted all the information required at 43 CFR
3809.401(b), the BLM must notify the operator that the Plan is complete (see Appendix A,
Template 4.4-1, Complete Plan Submitted) and that the next step in the review process is for the
BLM to solicit public comment on the Plan of Operations under 43 CFR 3809.411(c), either
separately from or as a part of the NEPA process. This step must occur before making an
approval decision on the Plan of Operations according to 43 CFR 3809.411(d). The operator is
to be advised as to the probable time required for the BLM to complete its review and make an
approval decision on the Plan.
A complete Plan of Operations is not necessarily adequate to meet the performance requirements
of the regulations and avoid UUD. The completeness determination states the operator has
submitted sufficient information about its proposed operation as required under 43 CFR
3809.401(b) for the BLM to begin evaluating whether the plan complies with the 3809
regulations.
4.4.1.2 The Plan is Not Complete
A Plan of Operations is not complete if the Plan is missing any of the information required by
3809.401(b). Within 30 days of receiving the Plan of Operations, the BLM must send the
operator, by certified mail return receipt requested, a letter clearly identifying the missing
information required by 3809.401(b) that must be provided to the BLM before the BLM can
continue processing the Plan of Operations.
Completeness questions or deficiencies can range from the very specific (e.g., What is the
thickness of the PVC liner for the leach pad?) to the general (e.g., Provide the interim
management plan required under 3809.401(b)(5)). An example completeness letter is shown in
Appendix A, Template 4.4-2, Plan Not Complete.
The operator is not required to submit the identified information to the BLM within a certain
timeframe. The cycle of operator submission and completeness review by the BLM may be
repeated until the BLM determines that the Plan of Operations is complete. On major mining
projects it would not be unusual for the completeness review process to take over a year and
involve four or five iterations. For each information request, it is important for the District/Field
Office to document the completeness review and correspondence in the case file.
4.4.1.3 The Plan is Complete - Other Information or Actions Required
The BLM may determine that the description of the proposed operation is complete under
Section 3809.401(b), but that the BLM cannot make a decision on the Plan of Operations until
certain additional processes are completed or information provided. There are a variety of
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factors which influence when the BLM can make a decision on the Plan of Operations. The
BLM will send a letter notifying the operator that the Plan is complete (i.e., meets the content
requirements of 3809.401(b)), but advising the operator as to any baseline data requirements or
reviews that must conducted before the BLM can issue a decision on the Plan of Operations.
Appendix A, Template 4.4-1, Complete Plan Submitted, and Template 4.4-3, Additional Actions
Required, are examples of such a notification to the operator.
4.4.1.3.1 Baseline Data
In addition to providing a complete description of the operations, the operator must also provide
operational or baseline environmental information for the BLM to analyze impacts under NEPA
and assess the potential for UUD.86 Providing additional baseline data is separate from, but just
as important as, the operator requirement to provide a complete Plan of Operations. Until the
BLM has adequate baseline data on the project area, the necessary reviews cannot be completed
to reach a decision on the Plan of Operations.
While ideally any baseline data requirements are communicated to the operator early in the
process, perhaps even before a Plan of Operations is submitted, it could be that the long-term
nature of some baseline data collection will have to continue after the Plan of Operations is
determined complete (see Section 4.3.3.4 Monitoring Plan). The operator is to be advised as to
any outstanding data collection requirements that must be satisfied before the BLM can process
the Plan of Operations.
The BLM reviewer may need to consult the Council on Environmental Quality (CEQ)
regulations at 40 CFR 1502.22 on incomplete or unavailable information to determine what
information is required to support an agency decision under NEPA (see also BLM’s National
Environmental Policy Act Handbook, H-1790-1).
4.4.1.3.2 NEPA Analysis
The BLM must complete the environmental review required under NEPA (either with an EA or
EIS) before it can issue a decision on the Plan of Operations.87 Whether the environmental
analysis is prepared by the BLM or by an outside contractor, the NEPA analysis has to be
reviewed and accepted by the BLM. The operator will be advised as to the anticipated
timeframe for completion of the NEPA process. Guidance regarding NEPA analysis of a Plan of
Operations is discussed in detail in Section 4.4.2, NEPA Analysis on a Plan of Operations (see
BLM’s National Environmental Policy Act Handbook, H-1790-1).
4.4.1.3.3 NHPA or Wildlife Consultations
The BLM will notify the operator of any consultation that must be completed by the BLM under
the NHPA, the Endangered Species Act (ESA), or the Magnuson-Stevens Fishery Conservation
and Management Act (Magnuson-Stevens Act) before the BLM can make a decision on the Plan
86
87
43 CFR 3809.411(a)(3)(i).
43 CFR 3809.411(a)(3)(ii).
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of Operations.88 These Acts require consultation with other government agencies and parties in
timeframes not always determined by the BLM.
The operator will be informed about any consultation requirements under these Acts and invited
to participate in the consultation process where appropriate (see Appendix A, Template 4.4-3,
Additional Actions Required). Consultation required under NHPA, ESA, or the MagnusonStevens Acts is to be initiated as soon as practical after receipt of the initial Plan of Operations so
that concerns and comments of these agencies can be considered during the completeness review
process.
Completion of consultation may require the adoption of certain operating requirements or
constraints that cause the operator to change the Plan of Operations or result in the BLM placing
certain conditions of approval on the Plan. The District/Field Office must document the
consultation process and results in the case file.
4.4.1.3.4 Native American Consultation or Other Responsibilities
The operator will also be notified of any other BLM or Department of the Interior (DOI) reviews
or consultations that must be conducted along with an anticipated timeframe for completion.89
For some Plans, the BLM must complete consultation with Native American governments before
making a decision on the Plan of Operations.
Consultation with Native American governments regarding the potential impacts of the Plan of
Operations on Tribal trust resources is a responsibility of the BLM and DOI that cannot be
delegated.
Consultation may occur at a variety of levels and in different forums. It may involve written
correspondence, discussions between the respective Tribal government staff and BLM program
specialists, on-the-ground visits to the project area, and meetings between the Tribal government
and the BLM decision maker. The appropriate level and extent of consultation will depend upon
the site-specific circumstances and the potential for the Plan of Operations to affect trust
resources. Tribes are entitled to confidential discussions with agency officials on the
identification and protection of trust resources. While it is desirable to include the operator in
such consultation, the operator can only participate with the concurrence of Tribal officials.
The consultation process does not mean Tribes have veto authority over the Plan of Operations;
however, when necessary, measures must be adopted to identify and protect Tribal trust
resources.90 The result of consultation may not always be agreement between the BLM and the
Tribal government on the acceptability of the Plan of Operations or even on the measures needed
to protect trust resources. The consultation process and results must be thoroughly documented
in the case file.
88
43 CFR 3809.411(a)(3)(iii).
43 CFR 3809.411(a)(3)(iv).
90
43 CFR 3809.420(a)(4).
89
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4.4.1.3.5 Onsite Visit
The regulations give the BLM the option to delay action on a Plan of Operations until a site visit
can be conducted.91 The operator must be notified by letter that a site visit is required to process
the Plan of Operations, citing the reason(s) for the site visit, when it might take place, and
inviting the operator to be present (see Appendix A, Template 4.4-3, Additional Actions
Required).
4.4.1.3.6 Public Comments
The BLM must not issue a decision on a Plan until it has considered all the public comments
submitted within the comment timeframe. 92 If the public comment period is conducted as part
of the NEPA analysis (either the EA or EIS) then there would normally not be a need to delay
action on the Plan of Operations.
Section 3809.411(c) requires that after a complete Plan of Operations is filed, but before the
BLM acts on it, that the BLM will publish a notice of the Plan’s availability for review in either a
local newspaper of general circulation or through the NEPA process. The BLM will accept
public comments on the Plan of Operations for at least 30 calendar days. This means Plans of
Operations, and Plan modifications made under 43 CFR 3809.432(a), are subject to public
comment for at least 30 days. The requirement to solicit public comment includes all Plans,
from the simplest exploration-level Plan, to Plans for large multi-year mining operations. The
required public comment period does not apply to minor Plan modifications made under 43 CFR
3809.432(b).
While the mandatory public comment period cannot begin until after the Plan of Operations is
determined complete under 43 CFR 3809.411(a), this provision does not preclude the BLM from
formally beginning to solicit the public scoping process before the filed Plan is determined
complete. In fact, public input on an EIS-level Plan in the form of scoping comments during the
completeness review can be beneficial, especially on large projects. Similarly, internal scoping
for an EA-level Plan can also be useful for identifying potential alternatives and issues.
The comment period required under 43 CFR 3809.411(c) may be conducted in combination with
the release of an EA or draft EIS. Since there is a mandatory 45-day minimum comment period
on all BLM draft EISs,93 the comment period required under 43 CFR 3809.411(c) would not add
to the overall processing time. Although EAs do not require a public comment, some form of
public involvement is required.94 It is recommended that any public review or comment sought
on the EA be concurrent with the 30-day public comment period required on the Plan of
Operations by 43 CFR 3809.411(c). Comments received on the EA and Plan can then be
addressed in the Decision Record (DR) (and revised EA, if applicable).
91
43 CFR 3809.411(a)(3)(v).
43 CFR 3809.411(a)(3)(vi).
93
BLM NEPA Handbook H-1790-1, Sec. 9.3.2.
94
BLM NEPA Handbook H-1790-1, Sec. 8.2.
92
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Public notification of the comment period is provided for EIS-level Plans through the normal
Federal Register notification that is issued on the availability of the draft EIS and the usual press
releases. If there is no EIS, public notification is conducted through press release, legal
notice(s), or distribution using a mailing list.
The requirement at 43 CFR 3809.411(c) is intended to solicit public comment on the Plan of
Operations itself, not necessarily the attendant NEPA document. This distinction does not make
much difference in the type of comments likely to be received since the Plan of Operations is the
proposed action in the EA or EIS. However, it will be necessary to have copies of the complete
Plan available to those requesting it, or a viewing copy for large volume/oversized Plan material.
Another option is to make the Plan of Operations available through the State or District/Field
Office website. All substantive comments received on the Plan of Operations and/or the
environmental analysis must be addressed in the final EIS (or revised EA or Decision Record, if
preparing an EA) prior to issuing a decision on the Plan.
Information on the RCE and/or the financial guarantee amount, while public information, is not
included in the environmental analysis nor is public comment requested. The RCE and the
financial guarantee amount are not required components of a complete Plan of Operations but are
part of the BLM’s enforcement program. The public comment period should focus on the Plan
of Operations and the associated environmental analysis.
4.4.1.3.7 Surface Managing Agency
In cases where the BLM does not have responsibility for managing the surface, the BLM
consults with the appropriate surface-managing agency before making a decision on the Plan of
Operations.95 While these situations are anticipated to be rare, they could occur on lands
managed by the Bureau of Reclamation (BOR), FWS, or other Federal agencies. These agencies
do not have surface management regulations for locatable mineral development, yet the land is
open to location under the Mining Law or has valid existing development rights that predate the
withdrawal of these lands.
In these situations, the BLM must work closely with the surface-managing agency and operator
to incorporate the concerns of all parties into the Plan of Operations. The operator should be
invited to participate in these discussions, where appropriate. It is desirable to include the
surface managing agency as a joint lead, or cooperating agency, in preparation of the NEPA
document. Joint lead status is only appropriate where the other agency has the authority to make
a decision. Where the decision is ultimately the BLM’s, cooperating agency status is more
appropriate. When joint lead status is used, an MOU should clearly delineate the decisionmaking role of each agency.
4.4.1.3.8 Surface Owner
In cases where the surface is owned by a non-Federal entity, the BLM consults with the surface
owner.96 The BLM must work with the surface owner and the operator to incorporate concerns
95
96
43 CFR 3809.411(a)(3)(vii).
43 CFR 3809.411(a)(3)(viii).
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of both parties into the Plan of Operations. The BLM must follow procedures under the
regulations at 43 CFR 3814 for protecting the surface owner improvements if the project is
located on SRHA lands. (See Section 8.3, Split Estate Lands, for further discussion on the
requirements for split estate lands.)
4.4.1.3.9 Water Quality Compliance
The BLM may delay making a decision on a Plan of Operations until it completes consultation
with the state to ensure operations will be consistent with state’s water quality requirements.97 If
consultation with the applicable state authority is required, the BLM will notify the operator that
the Plan of Operations cannot be approved until the BLM has completed consultation with the
state (see Appendix A, Template 4.4-3, Additional Actions Required).
The BLM, the state, and the operator should jointly participate in these discussions and include
any operational requirements for compliance with water quality laws into the Plan of Operations.
Written certification from the state or the issuance of discharge permits by the appropriate state
water quality authority (or by EPA in non-primacy states) will constitute evidence that the
permitting authority believes the project capable of complying with the water quality laws and
completes the consultation requirement. The District/Field Office must document all
consultation efforts and results in the case file.
4.4.1.3.10 Mineral Examination Report
The BLM will not make a decision on a Plan of Operations until it completes preparation of a
mineral examination report for proposed operations on lands that have been withdrawn from
mineral entry to determine if the claim(s) are valid.98 The operator will be advised as to the
anticipated timeframe for completion of the report (see Section 8.1, Withdrawn and Segregated
Lands).
4.4.1.4 Approval of Certain Actions During Plan Review
Pending approval of a Plan of Operations, the BLM may approve any operations that may be
necessary for timely compliance with requirements of Federal and state laws, subject to any
terms and conditions that may be needed to prevent UUD. This provision at 43 CFR
3809.411(b) provides a mechanism where the BLM may approve certain activities immediately
if needed for the operator to comply with other laws. This could include environmental or
Mining Law requirements, or court orders. Examples where this might be applied include
construction of monitoring wells and capture systems after a contaminant release, remediation of
slope failure or prevention of imminent slope failure, installation of access roads to support
cleanup, construction of treatment facilities, and emergency installation of runoff controls. Use
this provision to avoid a regulatory conflict where another agency orders certain surface
disturbing activity to be taken immediately, yet the action is not covered by the operator’s
approved Plan of Operations.
97
98
43 CFR 3809.411(a)(3)(ix).
43 CFR 3809.100(a).
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The expedited approval of activity needed to comply with environmental laws or mitigate
undesirable events may have to be given quickly, in a matter of days or even hours in the case of
emergency actions. During that time, the BLM official must decide upon any terms or
conditions that are to be placed on the activity to prevent UUD and communicate those in writing
to the operator. This approval must be of limited duration and specify that the operator must
follow up by filing for approval of the surface disturbing activity under the normal Plan of
Operations process.
It may not be possible to complete the NEPA analysis required on these expedited surface
disturbance actions prior to their implementation.99 “Alternative arrangements” may be
established to comply with NEPA in an emergency. Alternative arrangements do not waive the
requirement to comply with NEPA, but establish an alternative means for compliance. In the
event of an emergency, you must contact the BLM Washington Office, Division of Decision
Support, Planning and NEPA (WO-210) and complete the appropriate level of NEPA analysis
for any activities approved under this provision of the regulations, as soon as practical. Where
emergency circumstances necessitate that the BLM approve operator actions that BLM believes
have significant environmental impacts without completing the NEPA process, the BLM must
consult with the CEQ as described in 40 CFR 1506.11 and the BLM’s National Environmental
Policy Act Handbook, H-1790-1, Section 2.3.
It may also not be possible to get an acceptable reclamation financial guarantee in place prior to
such surface disturbances. As soon as practical, the amount of the reclamation financial
guarantee will be modified to reflect the additional reclamation liabilities on the ground.
The District/Field Office may decide actions taken under this provision of the regulations must
be disclosed to the public by letter or through the press. All such disclosures will be released
through the local or state Public Affairs office.
4.4.2 NEPA Analysis
The BLM must complete the environmental review required under NEPA (either with an EA or
EIS) before the BLM can issue a decision on the proposed Plan of Operations or on a
modification to an existing Plan under 3809.432(a).100 While BLM’s NEPA Handbook provides
general guidance on how to prepare an environmental analysis under NEPA, the following
guidance is specific to NEPA analysis of a 3809 Plan of Operations, whether prepared by the
BLM or for the BLM by an outside contractor:
The operator’s complete Plan of Operations constitutes the proposed action. Preparation
of the NEPA document cannot proceed beyond the scoping phase until the Plan of
Operations is determined to be complete under 3809.401(b).
99
Emergency actions to prevent a public health and safety situation, and circumstances that require immediate
action to prevent environmental damage are exempt from NEPA (43 CFR 46.150).
100
A determination of NEPA adequacy (DNA) finding that the existing environmental analysis is sufficient to cover
the modification is most likely the extent of the NEPA documentation required for a minor modification to a Plan of
Operations under 43 CFR 3809.432(b). See Section 4.6.3.1-Minor Modification Procedures.
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The focus of the NEPA analysis is the Plan of Operations, and not the operator. The
environmental analysis of potential impacts from a particular Plan of Operations is based
on the merits of the Plan itself and does not change depending upon the compliance
history, resources, or experience level of the operator (compliance history is, however, a
factor when conducting inspection and enforcement activity—See Chapter 9 Inspection
and Enforcement).
Evaluate the Plan of Operations and any alternatives on their inherent merits assuming
full implementation, including all operation, mitigation, monitoring, reclamation, closure,
and post-reclamation actions. While risk analysis or stability discussions with respect to
acceptable engineering practices may be appropriate, do not prepare the NEPA analysis
assuming there will be deviations from the Plan, noncompliance events, or worst-case
analysis.101 Because the operator is required by regulation to follow the approved Plan of
Operations, it is not appropriate to speculate on impacts from actions outside either the
proposed action or one of the alternatives.
Provided the subject land is open to entry under the Mining Laws, a validity examination
is not required to process a Plan of Operations and the NEPA analysis does not need to
address mining claim status or validity. Nor does the NEPA analysis need to discuss how
the information gained under a Plan of Operations could support an application to patent
a particular mining claim. The issuance of mineral patents is a separate nondiscretionary
action not subject to NEPA review.
No Action Alternative - The “no action” alternative (i.e., not approving the Plan) must be
fully analyzed as an alternative. This alternative does not mean no mining indefinitely,
but that this particular Plan or Plan modification would not be approved. While an EA is
not required to fully present and analyze a “no action” alternative, the inclusion of this
alternative helps identify baseline conditions and provides a contrast for the action
alternative(s). At a minimum, the EA must contrast the impacts of the proposed action
and alternatives with the current condition and expected future condition in the absence
of the project. When the proposed action is a modification to an existing Plan, the no
action alternative would be continued operation under the already approved Plan without
the modification.
Preferred Alternative - If BLM determines that mitigation is necessary to prevent UUD,
the proposed Plan of Operations, with any BLM-added mitigation measures needed to
prevent UUD, is usually analyzed as a separate alternative and normally constitutes the
preferred alternative. The EA or EIS must also disclose any impacts of implementing the
mitigation measures, the effectiveness of the mitigation measures proposed, and residual
effects of adverse impacts that would remain after mitigation measures are taken.102 103
This allows the effectiveness of the mitigation measures the BLM recommends to be
evaluated and compared to the Plan as proposed without the mitigation or with mitigation
measures proposed by the operator. In addition, analyzing the potential impacts of
101
There is no requirement to do a “worst case analysis” in a NEPA document.
43 CFR 46.130 .
103
BLM NEPA Handbook, H-1790-1, Sec. 6.8.4.
102
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mitigation measures (for example, building a pipeline to bring supplemental water to
mitigate the impacts of dewatering) in the EIS will allow all the mitigation measures to
be implemented immediately if the need arises, rather than having to authorize the
mitigation measure as a separate Federal action later. Including a simple list of
mitigation measures in the NEPA document that might be required without an assessment
of how they would change the impacts does not satisfy the environmental analysis
requirement.
104
Sustainable Development Alternatives - Opportunities for sustainable development,
whether proposed by the operator as part of the reclamation plan or developed as a
separate alternative, must be addressed in the NEPA document. If appropriate, this can
be addressed as part of the Preferred Alternative.
Baseline Data - Baseline data required under 3809.401(c) are usually reflected in the
Affected Environment and Impacts sections of the analysis. Do not request the operator
to supply additional baseline data or studies unless it is needed to support the analysis.
Mining Claims - Mining claim status is not an environmental issue to be covered in the
NEPA analysis. Nor is a validity examination required to process a Plan of Operations,
unless the provisions or 43 CFR 3809.100 or 3809.101 apply.
Exploration Plans - NEPA analysis of exploration Plans of Operations may need to
analyze the potential environmental impact of possible mine development. Exploration
does not always lead to mining, but may be considered an indirect or cumulative effect as
defined at 40 CFR 1508.7 and 1508.8. When analyzing indirect and cumulative effects
of an exploration plan, you must include reasonably foreseeable actions.104 The analysis
should not be limited to funded or licensed projects, but should also avoid speculation.
The discussion of the potential environmental impacts should be commensurate with the
size, stage, and history of the operations. See BLM NEPA Handbook, H-1790-1, Sec.
6.8.3, for more information about how to analyze indirect and cumulative effects.
Financial Guarantee - The amount of the financial guarantee or a long-term trust is not
subject to NEPA analysis, but is part of the enforcement program. The operating and
reclamation plans determine potential impacts and constitute mitigation, not the
reclamation financial guarantee amount. When assessing impacts, assume full
implementation of the operating and reclamation plans independent of the financial
guarantee amount. The financial guarantee does not constitute mitigation.
Mitigation vs. Monitoring - Monitoring requirements are not to be confused with or be
substituted for mitigation requirements. Monitoring by itself is not mitigation. The
mitigation is the planned response action triggered by an undesirable monitoring event at
a preset level of impact. Remember, the NEPA analysis is an estimate or prediction and
not a guarantee as to the impacts that would occur.
BLM NEPA Handbook, H-1790-1, Sec. 6.8.3.4.
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New information and/or changed circumstances - If, prior to making the decision about
whether to approve the Plan, there is a significant change in the affected environment or
significant new information, it may be necessary to supplement the NEPA analysis and/or
require changes to the Plan before making the decision. See BLM NEPA Handbook, H1790-1, Sec. 5.3.2, page 30, for more information about how to address new information
in the context to NEPA.
4.4.2.1 Unnecessary or Undue Degradation
The relationship between the procedural requirements of NEPA to evaluate and disclose impacts,
and the substantive requirement of FLPMA to prevent UUD when making the decision analyzed
in the NEPA document, is shown in Figure 4.4-1 – Approvable Plans and NEPA Analysis.
Figure 4.4-1 - Approvable Plans and NEPA Analysis
Are Significant Impacts
Anticipated? (40 CFR 1508.27)
Yes
Would the Plan Prevent
Unnecessary or Undue
Degradation? (43 CFR 3809.5)
No
Yes
EIS-level
analysis
required
EA-level
analysis
sufficient
Approve Plan
No
Plan not
approved
For a Plan of Operations to be approved, the Plan, including any required mitigation measures,
must be adequate to prevent UUD and the appropriate level of NEPA analysis must be
completed before the BLM makes the decision regarding whether to approve the plan. The level
of NEPA analysis is independent of the requirement to prevent UUD. The two requirements,
while different, are interrelated:
105
106
The level of required NEPA analysis for a Plan of Operations depends upon the
anticipated impacts of the Plan and whether they are “significant” as defined by 40 CFR
1508.27. Actions that are anticipated to result in significant impacts, or actions that have
been analyzed in an EA and determined to have significant impacts, require the
preparation of an EIS. Actions that would not normally result in significant impacts can
be approved after preparation of an EA, if the analysis in the EA results in a Finding of
No Significant Impact.105 106
Minor Plan modifications under 3809.432(b) can be accomplished with a DNA, but must also not result in UUD.
NEPA is a procedural law, requiring the agency to analyze the proposed action, but not necessarily select the
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A Plan of Operations that would result in significant environmental impacts can be
approved after an EIS is prepared as long as operations under the Plan would not result in
UUD. Example: A Plan to disturb 2,500 acres and mine 400 million tons of rock would
likely result in significant impacts. The Field Office would be required to prepare an EIS
before deciding whether to approve the Plan. However, based on the analysis in the EIS,
the Field Office may very well determine that the impacts, while significant, do not rise
to the level of UUD and/or that the mitigation measures required under the selected
alternative are adequate to prevent UUD.
Plans that would result in or not prevent UUD cannot be approved.
Occasionally a Plan may be submitted where it is obvious that UUD would not be
prevented. Use the Plan completeness review process (Figure 4.2-2) to obtain at least a
nominally acceptable Plan from the operator before beginning the NEPA analysis (i.e., do
not waste time or resources preparing NEPA analysis on a grossly inadequate Plan).
As the Plan review and analysis progresses, the EA or EIS may identify impacts
(significant or insignificant) that indicate UUD would occur. In these instances, the
applicant may need to develop mitigation or new alternatives to include in the NEPA
analysis so that one or more of the Plan alternatives will be approvable (green column).
Mitigation in the form of conditions of approval in the Decision Record (DR) or Record
of Decision (ROD) and in the 3809 decision document can be applied to prevent UUD,
thus making the Plan approvable. The mitigation could also reduce what would be
significant impacts to less than significant, allowing for Plan approval at an EA-level of
NEPA analysis.107
4.4.2.2 NEPA Decision Documents
The DR or ROD must explain how the selected alternative (the approved Plan) meets the
requirements of the regulations to prevent UUD and is in conformance with the applicable land
use plan(s).
Mitigating measures to the operator’s proposed Plan must be required as “conditions of
approval” in the DR or ROD and the 3809 decision document, with an explanation as to why the
measures are needed to prevent UUD.
If the Plan contains any elements of occupancy,108 the approval decision must also contain a
written determination of concurrence or non-concurrence regarding the occupancy.109
alternative with the least potential environmental impacts.
107
BLM NEPA Handbook, H-1790-1, Sec. 7.1.
108
43 CFR 3715.3-4 and 3715.3-5.
109
Appeals of decisions issued under the regulations at 43 CFR 3715 are directly to the IBLA, without a State
Director Review. If a “3715” determination is combined with a Plan approval decision, the separate appeal
procedures should be noted.
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4.4.3 Issuing a Decision
Section 3809.411(d) describes the actions the BLM may take after finishing the Plan of
Operations review, including the analysis and decision documents under NEPA, consideration of
public comments, and completing any consultation requirements.
There are three possible courses of action BLM may take when issuing its decision on a Plan of
Operations. The BLM may decide to:
Approve the complete Plan basically as submitted.
Approve the Plan subject to certain conditions imposed to ensure the operation meets the
performance standards (see Chapter 5 Performance Standards) and does not result in
UUD.
Disapprove or withhold approval of the Plan.
The BLM decision must be sent to the operator via certified mail, return receipt requested, and
include the appropriate appeals language (see Appendix A, Template 4.4-4, Decision on Plan).
The BLM District/Field Office decision on Plan approval goes into effect immediately and
remains in effect while appeals are pending unless a written request for a stay of the decision is
granted (see Chapter 10 Decisions and Appeals). The decision may be included as part of the
DR or ROD; there is no requirement that the ROD be a separate document from the decision.
However, if the decision is included in the same document as the DR or ROD, it must still be
sent to the operator as described above (in other words, publication of the document including
both the DR or ROD and plan decision alone will not constitute the service on the operator
described above).
4.4.3.1 Plan of Operations Approved
A complete Plan of Operations that will not cause UUD may be approved basically as submitted.
Small exploration Plans, or Plans in areas without sensitive resource issues will generally not
take as long to review and approve. In these situations, the BLM may sign the approval decision
after completing the NEPA analysis and public comment period, and communicate the
reclamation financial guarantee amount to the operator.
4.4.3.2 Plan of Operations Approved Subject to Conditions
The BLM may approve a Plan of Operations subject to any changes or conditions of approval
needed to prevent UUD. The difference between what the operator is proposing in the Plan and
actions that the BLM determines are needed to prevent UUD will become the conditions of
approval that the BLM attaches to its decision. The conditions of approval must be written so
that the desired on-the-ground results are achieved without mandating a specific design.
All mitigation measures applied as conditions of approval must be analyzed in the
environmental analysis so that their effectiveness is determined and the residual impacts after
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implementation of the mitigation are disclosed. 110 The conditions of approval must be clearly
stated in the DR or ROD on the Plan with an explanation as to why the conditions are being
required. 111
A decision approving the Plan of Operations and stating the conditions of approval must be sent
to the operator by certified mail, return receipt requested. The decision must state the estimated
reclamation cost determination and the financial guarantee amount. The decision must also
remind the operator that surface disturbing activity cannot begin until the financial guarantee has
been accepted and obligated by the BLM (see Appendix A, Template 4.4-4, Decision on Plan).
Also, post-approval, the BLM may require the operator to update or revise the Plan content so as
to reflect other agency permits, final designs, or certain stipulations. This allows for a single
document describing the approved operation in detail that can be checked without having to
consult other supplemental plans or permits. For example, the BLM may approve the Plan but
condition it with the requirement that 18 inches of growth medium be placed over a certain waste
rock dump instead of the proposed 12 inches. To create a comprehensive Plan of Operations
document, the operator would supply replacement pages to the Plan, wherever needed, to change
the reference from 12 inches to 18 inches.
For example, if another agency permit is required, such as an National Pollution Discharge
Elimination System (NPDES) permit for discharge, it could be committed to by the operator and
appended to the Plan once issued by the authorizing state or Federal entity. Deciding what and
whether to require incorporation of such material into the Plan of Operations is a project-specific
determination to be made by the individual District/Field Office.
In addition, the BLM must also include any other BLM requirements in the Plan approval
decision. For example, inclusion of the BLM’s determination regarding concurrence or nonconcurrence on proposed use and occupancy is required by 43 CFR 3715.3-4 to be included in
the BLM decision approving, modifying, or rejecting a Plan of Operations.
4.4.3.3 Plan of Operations Disapproved or Approval Withheld
The third possible outcome from the BLM review of a Plan of Operations is for the BLM not to
approve the Plan.112 The BLM may either disapprove or withhold approval of a Plan of
Operations. There is a distinct difference between the two decisions.
4.4.3.3.1 Disapprove the Plan of Operations
A decision that disapproves the Plan of Operations is synonymous with denying the Plan of
Operations. “Disapprove” or “Deny” should be used in the BLM decision when the intent is to
issue a final BLM decision on the Plan’s adequacy in preventing UUD. The decision must
clearly state why the proposed Plan was denied (see Appendix A, Template 4.4-4, Decision on
Plan).
110
BLM NEPA Handbook, H-1790-1, Sec. 6.8.4.
BLM NEPA Handbook, H-1790-1, Sec. 8.5.1.
112
43 CFR 3809.411(d)(3).
111
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4.4.3.3.2 Withholding Plan of Operations Approval
A decision that says the BLM is “withholding” approval on the Plan of Operations is usually
based on some procedural or legal requirement that must first be satisfied before the BLM can
make a final determination on whether to approve or disapprove the Plan of Operations (see
Appendix A, Template 3.2-2, Processing Notice or Plan Suspended).
4.4.3.3.3 Rationale
Four situations where it would be appropriate to disapprove or withhold approval on a Plan of
Operations are discussed below.
Inadequate Information113 - The BLM cannot approve or even begin analyzing the Plan until
sufficient and appropriate information is received to make the Plan complete and to prepare the
associated NEPA analysis. The BLM decision to withhold Plan approval can be issued after an
extended time has elapsed without a response from the operator to one or more of the content
requirements in 43 CFR 3809.401. In these cases the decision is conditional because the BLM
would resume processing the Plan of Operations if the information were provided within time
established in the decision. As such, no appeals language is included in a decision to withhold
plan approval pending submission of adequate information.
A BLM decision to disapprove a Plan should be issued if the operator refuses to provide the
required information within the specified timeframe or when there is no expectation of a
meaningful response from the operator to BLM’s information requests.
Lands Closed to Operation under the Mining Law114 - If a Plan of Operations is proposed on
lands and a valid existing rights determination of the involved mining claims is pending under 43
CFR 3809.100, the BLM may issue a decision withholding final action on the Plan of Operations
pending the outcome of the mineral examination/valid existing rights determination. If the
mineral examination concludes that some or all of the mining claims or mill sites located on
withdrawn or segregated lands do not have valid existing rights, and if the Plan could not be
modified to include only the valid claims and/or open lands, the BLM will continue the
suspension of its processing of the Plan of Operations pending final Departmental decision
declaring the mining claims null and void and any subsequent appeal. Following final
Departmental decision to void the claim, the BLM will reject the proposed Plan and order any
reclamation that may be necessary. See Section 8.1 Withdrawn and Segregated Lands for
additional discussion on the requirements for segregated or withdrawn lands.
If a Plan of Operations is received that has no potential for the existence of valid existing rights
(i.e., the Plan is proposed on segregated or withdrawn lands with no mining claims present), the
Plan of Operations is to be “rejected.” The Plan is to be rejected without going through the
completeness review or NEPA analysis processes because there is no mechanism for the BLM to
approve such a Plan under the surface management regulations.
113
114
43 CFR 3809.411(d)(3)(i).
43 CFR 3809.411(d)(3)(ii).
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Plan of Operations Does Not Prevent UUD115 - In some cases it may not be possible to develop
the mitigation measures needed to prevent UUD. If after consideration of all reasonably
available mitigation measures that might be imposed under 43 CFR 3809.411(d)(2) as conditions
of approval, the Plan of Operations would still result in UUD, it must be disapproved. Examples
include actions that would violate the Endangered Species Act, or actions that would not meet
one or more of the performance standards in 43 CFR 3809.420 because those actions would be
considered de facto UUD.116
If the BLM anticipates problems with the approvability of a portion of the Plan, the BLM must
communicate its concerns early in the review process so the operator has the opportunity to
modify the Plan before the BLM must issue a decision disapproving the Plan of Operations. A
fundamental consideration is, at what point does BLM disapprove an unacceptable Plan of
Operations versus trying to make it approvable through the imposition of mitigation measures.
While there is no set threshold, the BLM is not to assume the responsibility for redesigning the
operator’s Plan. As a general rule, the BLM should simply disapprove the Plan of Operations
instead of imposing conditions of approval so extreme that the conditions radically change the
design of the operation (e.g., require underground vs. open-pit mining or vat leach vs. heap
leach, etc.).
The BLM decision to disapprove the Plan of Operations must clearly state why the proposed
project would result in UUD and why BLM was unable to develop mitigation measures that
would prevent the UUD. The decision should not be written in a fashion that precludes any
future re-submittals by the operator once the matter of UUD is resolved, and the operator may
modify the Plan of Operations and resubmit it to the BLM at a later time.
Multiple Plans that are Mutually Exclusive - Generally, when there is more than one Plan of
Operations proposed in the same geographic area, the BLM reviews each Plan based on its own
merit and whether it will cause UUD. However, circumstances may exist where two or more
Plans of Operations (or Notices) are filed that contain mutually exclusive activity. In such cases,
the BLM does not get involved in disputes between rival claimants and/or operators. Relief for
mine operators in such cases must be sought in a court of competent jurisdiction and not from the
BLM.
For example, if one operator proposed to mine at a certain location at the same time a second
operator proposed to construct a waste rock dump or facility on the same ground, the approval of
such conflicting Plans would be almost impossible to assess in a NEPA analysis or in the
analysis of whether operations under the plans would cause UUD. In addition, it would be
extremely difficult for the BLM to calculate the RCE for each of the Plans, or take other
enforcement action for the Plans after they are approved in cases of noncompliance.
In these cases, the BLM will withhold approval on conflicting or overlapping segments of either
Plan until the priority rights have been resolved between the operators in a court of competent
jurisdiction (see Appendix A, Template 3.2-2, Processing Notice or Plan Suspended).
115
116
43 CFR 3809.411(d)(3)(iii).
43 CFR 3809.5.
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4.5 Beginning Operations
The operator must not begin operations until the BLM District/Field Office approves the Plan of
Operations and the BLM office responsible for adjudicating financial guarantees issues a
decision accepting and obligating the operator’s financial guarantee for the estimated cost of
reclamation.117 All correspondence with the operator on Plan approval and financial guarantee
decisions must clearly state when operations may begin.
4.5.1 State and Federal Permit Requirements
The BLM approval of a Plan of Operations does not constitute certification that the operator has
obtained whatever other local, state, or Federal permits or approvals might be necessary for its
operation (i.e., the BLM can approve a Plan without waiting for the operator to obtain other
permits needed for the operation). Approval of a Plan of Operations by the BLM does not
eliminate the requirement for the operator to obtain all other applicable local, state, and Federal
permits (see Section 9.2.2 Regulatory Overlap of Enforcement Actions).
To prevent conflicting permit requirements and facilitate a comprehensive review, the BLM
should coordinate its approval decision with the state or other Federal agencies that are also
reviewing the operation when such permits are critical to the overall project plan (e.g., a National
Pollutant Discharge Elimination System (NPDES) Permit for a tailing impoundment). Where
the operator is relying on a particular permit to meet the Plan content requirements of 43 CFR
3809(b) (e.g., spill contingency plan or wetlands mitigation), the BLM may condition its
approval on the operator obtaining the specific local, state, or Federal permit. The BLM may
require the operator to provide a copy of the permit to be included in the Plan of Operations.
Over the life of the operation, the BLM may ask the operator to provide proof that the permit is
still in place.
4.5.2 Phased Approvals or Development
The scope of the BLM evaluation and decision on the Plan of Operations is to cover the entire
operation. However, where the approved operation is to proceed in phases and the operator is
posting a financial guarantee for only a part of the operation, the extent and limits of the on-theground activities that are being authorized must be clearly stated in the BLM decision.118 For an
authorized operation to proceed to a new phase, additional BLM authorization, other than those
related to the RCE and financial guarantee, is not required.
Modifications to an approved Plan must be addressed under 43 CFR 3809.430 through 3809.434
and must not be incorporated into phased authorization (see Section 4.6 Modifications to Plans
of Operations).
While phased approvals and financial guarantees are appropriate tools for the operator to manage
project costs, at no time can the surface disturbance exceed the scope of the approval given for a
particular Plan of Operations, nor can the reclamation liability exceed the amount of the financial
117
118
43 CFR 3809.412.
43 CFR 3809.553(a).
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guarantee in place. See Section 6.2 Reclamation Cost Estimates and Section 6.3 Types of
Financial Guarantees for further discussion of phased financial guarantees.
4.6 Modifications to Plans of Operations
Sections 3809.430 through 3809.434 of the regulations address modifications to the Plan of
Operations, either at the request of the operator, or when required by the BLM.
4.6.1 Operator Requested Modifications
The operator may request a modification to their Plan at any time. Due to the incremental nature
of exploration and mining, it is expected that operators may modify their Plans of Operations.
As additional ore reserves are blocked out or cutoff grades change, or as areas are reclaimed,
operators may propose to modify their Plans of Operations to increase or decrease the
disturbance area, change mine facility layout, or modify mineral processing methods.
There is no limit on the number, type, or size of modifications that may be made to a Plan of
Operations provided the modification is reviewed as required under the regulations. A single
Plan of Operations may proceed through multiple modifications, from the early exploration stage
through mine development and expansion, over decades, with some modifications exceeding the
original disturbance acreage.
The NEPA analysis must capture the impact of all past modifications, as well as the present
modification under review, in order to avoid overlooking the cumulative impacts of past, present,
and reasonable foreseeable future actions on the environment.
4.6.2 Required Modifications
The operator must modify their Plan of Operations when making changes in the approved plan,
to prevent unnecessary or undue degradation, and to address unanticipated events or conditions.
4.6.2.1 Before Making Changes in the Approved Plan
The operator cannot deviate from their approved Plan of Operations without a modification
approved by the BLM,119 During the initial approval, the BLM should communicate to operators
that the approved Plan of Operations limits what can be done on the ground; and that any change
outside the scope of the approved Plan the operator wants to make that alters the manner and
degree of the plan must be made through the modification process. This may include adding
disturbance area, changes in the size, configuration, timing, and equipment use as well.
Modifications may also be needed for changes in monitoring plans or interim management plans.
The BLM and the operator need to have a common understanding as to the scope of the activity
approved under the Plan and what changes in operation would trigger a minor or major
modification of the Plan. For example, a change in equipment size or disturbance area to less
119
43 CFR 3809.431(a).
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than that approved may not require a minor modification. The scope of the approval and when a
modification (minor or major) is required is both site specific and project specific, depending on
what impacts were analyzed and what limitations or conditions of approval were placed on the
approved Plan.
4.6.2.2 To Prevent Unnecessary or Undue Degradation
If the BLM identifies or anticipates UUD (actions or conditions not meeting the performance
standards) the BLM may order the operator to modify the Plan of Operations.120 Modification
orders can be made effective immediately as part of the inspection and enforcement program121
(see also Chapter 9 Inspection and Enforcement). All BLM-ordered modifications still have to
go through the review and approval process under 3809.432(a) if they do not qualify for
acceptance under 3809.432(b) as a minor modification.
4.6.2.3 To Address Unanticipated Events or Conditions
A major or minor modification may be required before the final closure of operations in order to
address impacts from unanticipated events, conditions, newly discovered circumstances, or
information.122 This requirement is intended to ensure that all Plans of Operations are reviewed
prior to final closure in order to check for changes that need to be addressed during final
reclamation. The above requirement does not preclude the BLM or the operator from addressing
these concerns during operations. The following list is not exhaustive of the conditions or events
that might lead to a modification of the Plan of Operations.
Installation of treatment systems or changes in reclamation and monitoring plans may be
needed to address development of acidic or toxic drainage.
To the extent loss of surface springs or water supplies were not anticipated in the initial
NEPA analysis, such events may warrant a Plan modification to address the conditions
and develop mitigation.
Operations where a need for long-term water treatment or other maintenance activities
are later identified usually constitute a substantial change from the original Plan of
Operations. To account for the long-term commitment, a modification in the Plan of
Operations is usually needed. As a result of modifying the Plan of Operations it may
become necessary to establish a long-term trust fund to address the long term water
treatment costs. (See Section 6.3 Types of Financial Guarantees, for further discussion
on trust funds.)
To the extent repair and maintenance of reclamation were not addressed in the Plan of
Operations, a modification may be necessary if it involves ongoing use of earthmoving
equipment or changes in stormwater management structures.
120
43 CFR 3809.431(b).
3809.421 and 3809.600 through 3809.605.
122
43 CFR 3809.431(c).
121
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Because the exact nature of mine waste or leachate may not be known in advance, a
modification may be needed to include measures required to manage closed waste units.
This would be especially appropriate if long-term care and maintenance involves the use
of mechanized earthmoving equipment or the use of vehicles off-road.
Specific plans for post-closure monitoring and maintenance may not be finalized until
after the closure activity is completed and site conditions are known. In these situations
the plans for post-closure management submitted under 43 CFR 3809.401(b)(3)(x) may
need to be modified.
Hazards to public safety that result from the Plan of Operations must be reduced or
eliminated as part of final reclamation. New or unanticipated hazards may require a Plan
modification so that the necessary protective measures are included in the final closure
plan.
4.6.3 BLM Review of Plan Modifications
The BLM will review and approve a modification to a Plan of Operations in the same manner as
it reviewed and approved the initial Plan under 43 CFR 3809.401 through 3809.420 unless the
modification is considered minor.
Increasing the area of disturbance, adding new mine facilities, or substantially changing mineral
processing would require a modification that is processed similar to the initial Plan of Operations
under 43 CFR 3809.401 through 3809.420. Modifications to change mine facility design or
capacity may require the operator follow the Plan of Operations approval process. For example,
if waste rock dump stability were a major issue during the initial Plan approval, then
modification to the dump configuration might not qualify as a minor modification and processing
would have to follow the more formal review and approval process.
Whether an action requires a formal modification or a minor modification depends in a large part
on what issues were identified during the initial Plan approval. If the adequacy of cover soil
thickness for reclamation were an issue during Plan review, then reducing the amount of soil to
be spread from 10 inches to 8 inches may require a formal modification as it could impact
reclamation performance. On the other hand, if the soil thickness were to be increased from 10
inches to 12 inches, a formal modification may not be needed since impacts to reclamation
performance would not be anticipated. Conversely, if the issue were dust and traffic from haul
trucks, then increasing the amount of soil to be applied by 20 percent could trigger a
modification if limits given for truck traffic in the initial Plan of Operations were to be exceeded.
The review and approval process for modifications should focus on the changes proposed to the
Plan of Operations and not create a second review and approval for actions already approved in
the initial Plan. The appropriate type of NEPA document should be determined in consultation
with the local NEPA coordinator and by referring to the NEPA Handbook, H-1790-1. The
NEPA document prepared for the modification must disclose the impacts of the past actions by
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reference or by tiering123 to the NEPA analysis that has already been completed in order to
maintain an assessment of all the impacts of the project. An impact assessment is especially
important if an EA is being used for the modification’s NEPA analysis in order to ensure that
impacts from the modification are not significant when considered in combination with past
project approvals. Note: The environmental analysis for a modification may tier off prior
analyses; this does not constitute a supplemental EIS.
4.6.3.1 Minor Modification Procedures
The regulations provide that the BLM will accept a minor modification without formal approval
if the modification is consistent with the approved Plan of Operations and does not constitute a
substantive change from the activity analyzed in the NEPA document.124
Examples of minor modifications may include, but are not limited to, minor road realignments,
facility design changes within approved design limits, minor changes in monitoring parameters
or frequency, some changes in the schedule of operations, variations in the seed mixture used for
revegetation, and additional drill holes on existing disturbance.
The BLM will prepare a Determination of NEPA adequacy (DNA), or other checklist-type
NEPA review, in order to document that the minor modification is consistent with the approved
Plan of Operation and does not constitute a substantial change that requires additional
environmental analysis (see BLM Handbook H-1790-1, National Environmental Policy Act,
Chapter 3 Using Existing Environmental Analysis). All minor modifications are to be
documented in the case file and tracked to ensure they do not cumulatively exceed the minor
modification threshold. A public comment period is not required on a minor modification.
Although the modification may be minor, some adjustment in the amount of the financial
guarantee may be necessary.
4.6.4 Modifications to Plans Approved before January 20, 2001
Where a Plan of Operations was approved prior to January 20, 2001, under the “old”
regulations,125 there are two types of Plan modifications that may be received by the BLM. The
operator may request to build a new mine facility or the operator may request a modification that
changes an existing mine facility that was initially approved under the old regulations. The
applicability of the January 20, 2001, regulations to each of these situations is discussed below.
Under any modification submitted to the BLM, the operator can elect to have the new Plan
content and performance standards apply.
4.6.4.1 Modification to Add a New Mine Facility
Modifications for new mine facilities must follow the review, approval, and performance
standards listed in the new regulations. If the operator proposes to modify the Plan of Operations
123
BLM NEPA Handbook, H-1790-1, Sec. 5.2.2.
43 CFR 3809.432(b).
125
43 CFR 3809.433.
124
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by constructing a new facility, such as waste rock repository, leach pad, impoundment, drill site,
or road, then the Plan contents requirements126 and performance standards127 of the surface
management regulations apply to the new facility. Mine facilities not included in the
modification may continue to operate under the terms of the Plan of Operations that existed prior
to January 20, 2001.
4.6.4.2 Modification of an Existing Mine Facility
If the operator proposes to modify the Plan of Operations by modifying an existing facility, such
as expansion of a waste rock repository, leach pad, or impoundment, layback of a mine pit, or
widening of a road, then the plan contents requirements and performance standards of the current
regulations apply to the modified portion of the facility, unless the operator demonstrates to the
BLM’s satisfaction it is not practical to apply the current regulations and standards for economic
environmental, safety, or technical reasons128. If the operator makes the demonstration, the Plan
content requirements129 and performance standards130 that were in effect immediately before
January 20, 2001, apply to the modified facility (see 43 CFR parts 1000-end, revised as of
November 21, 2000).
Regarding the cyanide leaching and acid-forming materials performance standards, every effort
is to be made to achieve compliance with the standards in the current regulations at the modified
facility. The cyanide leaching and acid-forming materials performance standards are critical to
the prevention of UUD, usually required to meet state standards, and have been part of BLM
policy since 1991 and 1996, respectively.
4.6.5 Modifications to Plans Pending on January 20, 2001
A pending modification is one that was submitted to the BLM prior to January 20, 2001 and the
BLM had determined was substantially complete under the old 3809 regulations. If there are any
pending modifications, the requirements are analogous to those described above for Section
3809.433.
4.7 Cost Recovery
The BLM regulations at 43 CFR 3800.5 require that an applicant for a Plan of Operations must
pay a processing fee on a case-by-case basis as described in 43 CFR 3000.11 whenever the BLM
determines that consideration of the Plan of Operations or Plan modification requires the
preparation of an EIS-level environmental analysis. The processing fee must cover the cost of
the BLM’s review of the Plan of Operations, preparation of the EIS (or review of an EIS
prepared by an outside consultant), and review of the RCE.
126
43 CFR 3809.401.
43 CFR 3809.420.
128
43 CFR 3809.434(b).
129
43 CFR 3809.1-5 (revised as of November 21, 2000).
130
43 CFR 3809.1-3(d) and 3809.2-2 (revised as of November 21, 2000).
127
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Chapter 5 Performance Standards and Operating Requirements
This chapter explains the operating requirements and performance standards that operators must
achieve when conducting prospecting, exploration, and mine development activities on BLMadministered public lands. It includes guidance on how to review a Notice or Plan of Operations
to determine if the operations will cause UUD under 43 CFR 3809.415, and how to ensure that
operators are complying with the performance standards under 43 CFR 3809.420.
FLPMA prohibits anyone using the public lands from causing “unnecessary or undue
degradation” (UUD).131 By definition in 43 CFR 3809.5 as well as under 3809.415, operators
cause UUD when they fail to comply with all the applicable performance standards. These
performance standards are divided into two types, general performance standards and specific
performance standards. The performance standards in 43 CFR 3809.415 applies to activities
conducted under either a Notice or Plan of Operations.
As a practical matter, these same performance standards are generally applicable to Notices or
Plans that were in effect before January 20, 2001. This is because the regulations at 43 CFR
3809.420 incorporated the pre- January 20, 2001, performance standards, and the then-existing
policy requirements for management of operations using cyanide or with potential to produce
acid rock drainage. See also Section 3.1 and Section 4.6.4.
5.1 Requirement to Prevent Unnecessary or Undue Degradation
This section takes the definition of unnecessary or undue degradation from 43 CFR
3809.5 and restates it as operating requirements. Operators avoid causing UUD while
conducting operations on public lands by operating in accordance with the requirements
in 43 CFR 3809.415(a) through (c).
As defined at 43 CFR 3809.5, UUD means conditions, activities, or practices that meet
one of the following:
131
Fail to comply with one or more of the performance standards in 43 CFR 3809.420, the
terms and conditions of an approved Plan of Operations, operations described in a
complete Notice, and other Federal and state laws related to environmental protection and
protection of cultural resources.
Are not “reasonably incident” to prospecting, mining, or processing operations as defined
in 43 CFR 3715.0-5.
Fail to attain a stated level of protection or reclamation required by specific laws in areas
such as the California Desert Conservation Area (CDCA), Wild and Scenic Rivers, BLMadministered portions of the National Wilderness System, and BLM-administered
National Monuments and National Conservation Areas.
43 CFR 3809.415.
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5.1.1 Requirements, Standards and Applicable Laws
To prevent UUD, operators must comply with the performance standards in 43 CFR 3809.420,
which includes following their accepted Notice or approved Plan of Operations, and complying
with other Federal and state laws related to environmental protection and protection of cultural
resources.132 Operators who deviate from the terms of their Notice or Plan are, by definition,
causing UUD. This is true even if the action occurring on-the-ground is conducted exactly how
it would have been if covered by a Notice or Plan. That is, one way operators cause UUD is by
operating without a Notice or Plan for that particular activity, independent of the impacts to the
public lands that may result.
If the operations do not fall within an accepted Notice or an approved Plan, fails to maintain an
acceptable financial guarantee, or if the operations are not in compliance with applicable state
and Federal laws (see section 5.2.6 for more information), the BLM will initiate enforcement
action under 43 CFR 3809.600, et seq. The purpose of the enforcement action is to get the
operator to file or modify the Notice or Plan of Operations to cover the operations, provide the
required financial guarantee, or to bring the operations into compliance with applicable laws (see
Section 9.2 Enforcement Actions).
5.1.2 Activities that are Reasonably Incident
Under the Surface Resources Act of 1955,133 mining claims may not be used “for any purposes
other than prospecting, mining or processing operations and uses reasonably incident thereto.”
Any activity that is not reasonably incident as defined in 43 CFR 3715.0-5 is by definition UUD
within the meaning of 43 CFR 3809.5.
This means that all activities conducted under a Notice or Plan must be reasonably incident to
prospecting, mining, or processing operations and uses. The BLM cannot accept any Notice or
approve any Plan that proposes activities not related to mineral exploration or development, even
if the activity itself will not harm the public lands.
5.1.3 Levels of Protection Required by Law
In some special management areas, operators must attain a certain level of resource protection or
reclamation as required by specific laws.134 Such areas include the California Desert
Conservation Area Plan, as amended (CDCA), Wild and Scenic Rivers,135 BLM-administered
Wilderness Areas,136 and BLM-administered National Monuments and National Conservation
Areas. Such special management areas have separate statutory authority requiring operations to
achieve certain levels of resource protection or certain standards of reclamation. An operation
that does not meet these performance standards, in addition to those at 43 CFR 3809.420, is
causing UUD.
132
43 CFR 3809.415(a).
30 U.S.C. 612.
134
43 CFR 3809.415(c).
135
BLM Manual 8351, and 43 CFR 8351 and 36 CFR 297.
136
BLM Manual 8560 and 43 CFR 6300.
133
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5.2 General Performance Standards
The general performance standards for Notices and Plans of Operations are broad in nature,
apply across a variety of environmental media (e.g., air, water, wildlife, vegetation, etc.), and to
more than one type of operation or mine facility.
5.2.1 Technology and Practices
The operator must use equipment, devices, and practices that will meet the performance
standards of the surface management regulations.137
This general standard gives the BLM some say in “how” the operator meets the performance
standards. Specifically, in reviewing the Notice or Plan, the BLM looks to see if the equipment,
devices, or practices that the operator is proposing to use are technically feasible to meet the
performance standards, will perform the activity in a timely fashion, or will perform with minor
or minimal secondary impacts. The intent is for the standard to screen out proposals on a broad
scale that are not feasible, while not dictating the exact equipment or practice to be used by the
operator.
For example, in recontouring a road constructed across an extremely steep slope, an excavator or
backhoe would be considered appropriate equipment to meet the performance standard for road
reclamation. A bulldozer cannot operate on side slopes or push uphill when the grade is steeper
than about 50 percent and as such would generally not be appropriate equipment for such steep
slopes.
5.2.2 Sequence of Operations
The operator must avoid unnecessary impacts and facilitate reclamation by following a
reasonable and customary mineral exploration, development, mining, and reclamation
sequence,138 This performance standard is designed to prevent unnecessary impacts from
operations that are conducted out of sequence with the reasonable and customary mineral
exploration, development, mining, and reclamation cycle. (See also 43 CFR 3715.0-5, which
defines “reasonably incident,” in part as, “using methods, structures, and equipment appropriate
to the geological terrain, mineral deposit, and stage of development” (emphasis added).)
This standard is to be applied on a broad scale. For example, an operation that proposes
stripping soil from an area for mining purposes prior to even attempting to identify the presence
of a mineral deposit using standard industry practices would not meet this performance standard.
Another example would be the construction of a large network of access roads without proposing
any associated exploration activity. By contrast, this standard for determining UUD and
“reasonably incident” should not be applied on such a small scale that the BLM is verifying
exploration results on an individual drill hole basis or reviewing “ore” grades at every step in
mine development.
137
138
43 CFR 3809.420(a)(1).
43 CFR 3809.420(a)(2).
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5.2.3 Land Use Plans
Consistent with the mining laws, operations and post-mining land use must comply with the
applicable BLM land use plans and activity plans, and with coastal zone management plans
under 16 U.S.C. 1451, as appropriate.139 The NEPA analysis should document this compliance,
usually within the “Proposed Action and Alternatives” section of an EA140 or an EIS.141
This means that the BLM can use its land use plans to address, on a regional or area basis, the
operating requirements to be followed to protect environmental and cultural resources
anticipated to be found on public lands in the planning area. Part of the land use planning
process identifies actions to take or avoid when operating in a particular part of the planning
area. As part of developing land use plans, the BLM has to consider the potential impact on the
mineral exploration and development as well as potential environmental benefit of any planninglevel management prescriptions for locatable mineral activities.
Land use plans can be used to set reclamation objectives or identify the location of applicable
measures needed to meet the performance standards. For example, a land use plan may be used
to identify the location-specific measures that need to be in a fisheries rehabilitation plan
submitted under 43 CFR 3809.401(b)(3)(v), in order to meet the fisheries rehabilitation
requirement under 43 CFR 3809.420(b)(3)(ii)(E). Another example is for the land use plan to
describe the species, seed mix, or treatments applicable to reclaiming surface disturbance in
certain portions of the planning area. Providing such management prescriptions in the land use
plan can assist both the operators and the BLM in processing Notices and Plans, and ensure
reclamation consistency and performance.
Land use planning for locatable minerals activity can provide the operator with guidance on what
is expected in the Notice or Plan submittal. It also provides the BLM reviewer some criteria for
evaluating the consistency of the particular Notice or Plan of Operations with the land use plan
and assist in preventing UUD.
5.2.4 Mitigation Measures
This performance standard142 requires that the operator implement the mitigation
measures specified by the BLM in order to protect public lands. “Mitigation,” as defined
by the CEQ at 40 CFR 1508.20, may include one or more of the following:
Avoiding the impact altogether by not taking a certain action or parts of an action.
Minimizing impacts by limiting the degree or magnitude of the action and its
implementation.
139
43 CFR 3809.420(a)(3).
BLM NEPA Handbook H-1790-1, Sec. 8.3.4.3.
141
BLM NEPA Handbook H-1790-1, Sec. 8.2.7.
142
43 CFR 3809.420(a)(4).
140
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Rectifying the impact by repairing, rehabilitating, or restoring the affected
environment.
Reducing or eliminating the impact over time by preservation and maintenance
operations during the life of the action.
Compensating for the impact by replacing, or providing substitute, resources or
environments.143
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In the context of Notices and Plans of Operations, the BLM has limited discretion to impose
“mitigation” measures as defined under the CEQ regulations. In part, this is because the CEQ
regulations do not apply to Notices because Notices are not subject to NEPA review. More
importantly however, the BLM’s authority to regulate mining operations under the Mining Law
is limited to preventing UUD; consequently, the “mitigation” specified in the ROD and plan
approval is more like a plan modification, rather than what is typically considered “mitigation”
of direct, indirect, or cumulative impacts identified in the NEPA document. “Mitigation”
measures required to prevent UUD include any required plan modifications that a state or other
Federal agency informs the BLM are necessary to comply with applicable law. The BLM can
work with the operator to develop further mitigation measures for impacts that do not rise to the
level of UUD, and can, if the operator concurs, incorporate these measures as conditions of the
BLM’s approval of the Plan. However, without operator consent, the BLM cannot require
“mitigation” or plan modification beyond what is necessary to prevent UUD.
Another aspect of mitigation is compensating for the impact by replacing or providing substitute
resources or environments. Reclamation of surface disturbance is the major form of mitigation
for most Notices or Plans. In certain circumstances requiring the operator to provide substitute
resources or habitat may be appropriate mitigation. For example, providing an alternate water
source for wildlife or replacement of critical winter range may be an appropriate mitigation
strategy for a large project or where such resources are scarce.
Offsite mitigation on non-public lands may be used to reduce impacts on public lands. However,
there must be an enforceable commitment from the operator to implement such mitigation or it
cannot be relied upon to prevent UUD on the public lands. Before incorporating offsite
mitigation into a Plan approval or Notice acceptance, contact the Solicitor’s Office to verify that
the commitment is enforceable.
5.2.5 Concurrent Reclamation
The operator must initiate reclamation at the earliest economically and technically feasible time
on those portions of the disturbed area that the operator will not disturb further. Early initiation
of reclamation will stabilize soil, control runoff, and otherwise prevent UUD. This concurrent
reclamation standard144 means that the operator must reclaim parts of the operations even as
activity is continuing in other portions of the project area. The intent is that operators not defer
143
144
40 CFR 1508.20.
43 CFR 3809.420(a)(5).
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all the reclamation until the closure phase of the project. Waiting on some yet-to-occur
technological breakthrough or change in economic factors, such as metal prices, does not justify
withholding areas from concurrent reclamation.
Concurrent reclamation prevents open or unreclaimed areas from continuing to cause impacts
even though mineral activities may no longer be occurring at that specific locale. Unreclaimed
surface disturbance can continue to cause or exacerbate conditions such as loss of wildlife
habitat, erosion, dust emissions, and noxious weed infestations. These conditions can lead to
UUD on the public lands and increase reclamation costs for the mine operator.
When reviewing a Plan or Notice, the BLM must ensure that the Plan or Notice provides for
ongoing reclamation. For example, the Plan or Notice may include provisions for direct hauling
and application of stripped topsoil to previous disturbances, placement of waste rock at final
grade with revegetation, backfilling of sequential mine pits, decommissioning and reclaiming
heaps and dumps that have reached capacity, and other measure as applicable. It is generally
economically and technically feasible to conduct concurrent reclamation when the mine facility
(rock dump or heap) has reached its capacity or is no longer producing economically viable
leachate. For more information about reclamation, see Section 5.3.3.
5.2.6 Pertinent Federal and State Laws
The operator must conduct all operations in a manner that complies with all pertinent Federal
and state laws, including local requirements.145 Failure to meet other Federal and state
requirements means the operator has also failed to meet a BLM performance standard and is
causing UUD.
A key consideration to administering this performance standard is that the BLM does not
determine whether the operator has complied with the laws or regulations that are the
responsibilities of other agencies, nor does the BLM enforce those requirements. Rather, the
BLM relies on those other agencies to determine compliance with the laws or regulations they
administer prior to the BLM determining whether or not the operator has met a particular BLM
performance standard and is causing UUD.
If a violation of another Federal or State agency’s rules or regulations is taken by that agency, a
noncompliance order should be issued in conjunction with that agency’s enforcement action.
5.3 Specific Performance Standards
The following are specific performance standards for a variety of environmental media or for
certain types of the most common mine facilities. See the BLM’s Solid Minerals Reclamation
Handbook, H-3042-1, for a more complete discussion on the technical components of
reclamation.
145
43 CFR 3809.420(a)(6).
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5.3.1 Access Routes
The performance standard146 for access routes addresses right of access and requirements for
design, consultation, commercial hauling on existing roads, support facilities, roads within or to
operating mines, and minimization of surface disturbance.
5.3.1.1 Design Requirements Generally
Access routes may only be the minimum width needed for operations and should follow natural
contours, where practicable, to minimize cut and fill. The minimum width is determined by the
type of equipment that will be utilized on the road, which in turn is tied to the particular stage in
exploration or mine development. Designed roads are different than ways or “two tracks” used
for customary access. These customary routes across public lands are generally usable for earlyphase operations such as exploration. These routes may need upgrades to be useful when
crossing drainages or relocation to avoid on-the-ground impacts.
The importance of using, upgrading, or constructing all forms of roads on or as close to the
contour as possible cannot be overemphasized. Grades that cut across contour at greater than 12
percent are difficult to maintain and protect from erosion without extensive erosion control
measures (e.g., water bars, cutouts).
Constructing roads in flatter terrain is generally preferred since the steeper the side-slope, the
greater the cut and fill involved and the greater the surface disturbance. Roads constructed
across steep slopes (greater than 33 percent) can be extremely difficult to reclaim. Even where
the route were somewhat longer, if the terrain is flatter, it may be less expensive to construct and
reclaim, and have less environmental impact, than a more direct route.
5.3.1.2 Consultation on Access Routes
When construction of access routes involves slopes that require cuts on the inside edge in excess
of 3 feet, the operator may be required to consult with the authorized officer concerning the most
appropriate location of the access route prior to commencing operations. Although all Notices
and Plans require the inclusion of access routes, this requirement places special emphasis on
construction of roads in area where cuts greater than 3 feet are required.
Due to the potential for impacts from road cuts of greater than 3 feet, the BLM may require the
operator to use an alternate access route. However, if the road cuts are actually part of the
exploration activity (the road serves as an exploration trench as well), then cuts greater than 3
feet are acceptable. Roads with cuts greater than 3 feet are also acceptable if there is no other
feasible access route. Reclamation of road cuts will usually require the use of an excavator to
pull side cast material back up into the cut slope.
146
43 CFR 3809.420(b)(1).
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5.3.1.3 Right of Access
Mining claimants (or their authorized designees) are entitled to non-exclusive access to their
claims. Access to mining operations must be managed in a way to balance this right and the
requirement to prevent UUD. Any access to an operation must be reasonably incident as defined
by the Use and Occupancy regulations found at 43 CFR 3715.
Non-exclusive access, while guaranteed to mining claimants or their designee by the Mining
Law, is not unfettered. In special status areas, where the operations would present a risk to the
resources that support the special status area designation, the BLM can condition access
placement, design, and periods of use where needed to limit impacts. After considering the
effects on other resources, the BLM may limit access to constructed roadways or decide in some
circumstances that access by means other than a motor vehicle (such as via aircraft or pack
animal) is sufficient for the operator to complete their desired activity.
5.3.1.4 Access and Support Facilities
The location of access routes, service roads or airstrips, or other forms of access needed for the
operation must be included as part of the Notice or Plan of Operations and must be counted a
part of the disturbance acreage.
A separate right-of-way authorization is not required for activities conducted under the Mining
Law or facilities incident to those activities (e.g., pipelines, power lines, phone lines, conveyors,
etc.). Where facilities are installed and maintained by a utility company to serve the operator,
the operator remains responsible for their removal and reclamation upon cessation of operations
unless the approved reclamation plan allows for their retention.
Operators are generally not allowed to exclude others from the public lands. However, the
Notice or Plan may include provisions for restricting public use for safety purposes. On most
mine sites, and especially those with large amounts of heavy equipment traffic or use of
chemicals, the BLM may require the operator to secure the area from general public access. The
operator must also obtain concurrence to exclude public access under the 43 CFR 3715
regulations.
If an access road or utility line serves only mining operations on patented mining claims or nonpublic lands, a right-of-way under 43 CFR 2800 is the appropriate authorization.
5.3.1.5 Minimize Access Roads
The operator can be required to use existing roads to minimize the amount of disturbance. When
reviewing a plan that proposes to construct a new access road, the BLM may require the
operator to share access roads with adjacent operators and other public land users where sharing
will minimize surface disturbance and not jeopardize public or operator safety.
If new road construction is determined necessary, the operator may be required to follow a
transportation or utility corridor designated during the BLM’s planning process.
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5.3.1.6 Commercial Hauling on Existing Roads
When commercial hauling is involved for exploration or mining purposes and the use of an
existing public or BLM road is required, the operator may be required to make appropriate
arrangements for the use of the road with the county or state and to enter into a maintenance
agreement with BLM. Heavy traffic on roads in the BLM-road network may require the operator
to maintain the road in whole or in part depending upon the proportion of maintenance needs
caused by the operator’s activities.
5.3.1.7 Roads Within or Associated with Operating Mines
During mining, it is not unusual for a haul road to require a 100-foot running width. Roads
within operating mines must meet the requirements of the MSHA regulations at 30 CFR 56/57
Subpart H. Additional state-mandated safety provisions may also apply to these roads.
Together, these standards will guide any final road design. BLM road standards will not be
applied to haul roads.
5.3.2 Mining Wastes
During exploration, mining, or reclamation, the operator must manage all tailings, rock dumps,
deleterious material or substances, and other waste produced from the operations to prevent
impacts that would violate applicable Federal or state laws.147 Proper disposal of mining wastes
means that all such material must be identified in advance, placed in locations to minimize the
potential for environmental impact, and reclaimed in a manner that maximizes the long-term
stability while eliminating or minimizing the formation and release of deleterious leachate.
Appropriate management practices for these waste materials are discussed under other sections
of the performance standards, and at length in the BLM’s Solid Minerals Reclamation
Handbook, H-3042-1. There are a number of technical reference materials available on the
management of mine waste.
5.3.3 Performance of Reclamation
All operators are required to reclaim disturbed areas in accordance with the performance
standards148 and their approved reclamation plans. “Reclamation” is defined at 43 CFR 3809.5
as:
[t]aking measures required by this subpart following disturbance of public lands
caused by operations to meet applicable performance standards and achieve
conditions required by BLM at the conclusion of operations. For a definition of
“reclamation” applicable to operations conducted under the mining laws on Stock
Raising Homestead Act lands, see part 3810, subpart 3814 of this title. Components
of reclamation include, where applicable:
147
148
43 CFR 3809.420(b)(2).
43 CFR 3809.420(b)(3).
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Isolation, control, or removal of acid-forming, toxic, or deleterious substances;
Regrading and reshaping to conform with adjacent landforms, facilitate
revegetation, control drainage, and minimize erosion;
Rehabilitation of fisheries or wildlife habitat;
Placement of growth medium and establishment of self-sustaining revegetation;
Removal or stabilization of buildings, structures, or other support facilities;
Plugging of drill holes and closure of underground workings; and
Providing for post-mining monitoring, maintenance, or treatment.
5.3.3.1 Timing of Reclamation
Reclamation is required at the earliest feasible time and must address impacts to Federal lands
that are both directly and indirectly attributable to the project. The “earliest feasible time”
provision means that reclamation must be accomplished as soon as feasible without interfering
with planned future operations. Plans for such anticipated future operations must either be under
actual review or in active development. Areas may not be withheld from reclamation because
future development may be possible given some yet-to-occur technical or economic change.
The only exception to the “earliest feasible time” provision is that areas with evidence of
mineralization may be left unreclaimed to support the claimant’s contention of a “discovery of a
valuable mineral deposit” as required under the Mining Law. However, this does not mean such
discovery areas are exempt from reclamation. Reclamation of the discovery area must be
included in the reclamation plan and covered by the reclamation financial guarantee.
Management of disturbance areas left unreclaimed to preserve evidence of mineralization must
be addressed by the Interim Management Plans, when applicable (see Section 4.3.2.5 Interim
Management Plan).
5.3.3.2 Reclamation Elements
The following are the basic elements of a reclamation plan. The BLM will verify that the
reclamation plan contains information about each of these aspects of reclamation, as applicable.
5.3.3.2.1 Saving Topsoil
Topsoil, or growth medium, must be salvaged in advance of construction of mine facilities and
placed in a location where it will be preserved for future use. It is often desirable to salvage soil
in two lifts, separating the topsoil from the subsoil. A soil survey and salvage plan prepared in
advance of construction is recommended to ensure efficient soil salvage and guarantee the
needed quantities are obtained for reclamation. Sometimes reclamation plans will call for
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hauling salvaged soil from a new construction area and placing it directly on a previously
disturbed area, thus avoiding stockpiling and double-handling.
During exploration road construction, the soil is stockpiled as part of the sidecast. Pulling up the
sidecast during reclamation recontouring may be sufficient to replace the soil profile and support
revegetation. Soil stockpiled in the sidecast may need to be stabilized with interim seeding or
other erosion controls.
5.3.3.2.2 Erosion, Landslides, and Runoff
The reclamation plan must also address erosion control through various means including,
reshaping the disturbed area, conveyance of runoff water, and establishment of vegetation.
Reshaped or regraded disturbance must achieve a stable configuration. The BLM should ask the
operator to provide an engineering evaluation when slope stability is uncertain or a slope failure
would result in significant environmental or safety impacts.
Regraded waste rock dumps and heap leach piles must be reduced to a slope considerably less
than the angle of repose in order to form a base that will support growth medium without
slippage or excessive erosion and to support vegetation. If a barrier-type reclamation cover is to
be used that involves placement of a synthetic liner, the operator should determine the allowable
steepness of the reclaimed slope through a geotechnical analysis to ensure the slope
configuration will be stable.
Post-reclamation runoff or run-on control structures must be incorporated by the operator into
the overall reclamation plan and built to accommodate flows from the design storm event.
Inadequate consideration of the runoff area(s), control designs, or improper runoff management
procedures, can cause cascading downgradient reclamation failures that may seriously affect the
overall reclamation success.
Rock faces left in pit highwalls and where road cuts are left for post-reclamation access, cannot
have slopes steeper than vertical (overhanging).
5.3.3.2.3 Isolate, Remove, or Control Toxic Materials
The reclamation plan must address how the operator will deal with potentially toxic materials.
Such material may be isolated from mobilizing agents such as air and water, removed to an
alternate location where isolation or treatment can be achieved, or controlled through a variety of
treatment or mitigating measures.
Isolation includes measures such as covering or burying to prevent materials from becoming
windborne or to limit contact with precipitation. Isolation also includes prevention of run-on
waters from entering the toxic material, mobilizing contaminants, and causing a release to the
environment. Diversion of run-on waters is especially important for reclaimed heaps or waste
rock in order to avoid creating large additional volumes of contaminated leachate that then
require special handling or treatment.
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It may also be necessary to have certain materials removed from the site for treatment and
disposal. Lab wastes and sludge from process ponds are two examples of materials that may not
be suitable for onsite disposal. Certain tests149 are available to determine if the material requires
special handling or disposal.
Sometimes control of toxic materials may be done with onsite treatment. Examples include the
treatment of leach pad waters with hydrogen peroxide, the removal of metals from acid rock
drainage (ARD) with lime precipitation, or the encapsulation of certain sludges in concrete or
synthetic materials. Treatment using active, passive, or semi-passive treatment systems can all
be part of reclamation.
5.3.3.2.4 Reshaping, Soil Placement, and Revegetation
Part of reclamation is regrading and reshaping, including pit backfilling, and the closure of
surface openings to underground mines. Where the stability of the final proposed design is open
to question, the operator will be required to provide an engineering analysis which clearly shows
a stable slope design.
Topsoil application must achieve the desired soil thickness. Soil compacts during placement, or
is unevenly distributed, and a 12-inch soil lift ends up being 8-10 inches when checked after
revegetation. Soil also needs to be checked for fertility and viability. Soil left in stockpiles for
only a few years may lose the majority of the necessary microorganisms to support the nutrient
cycle and should to be tested and possibly treated prior to use.
Revegetation by itself is a complicated science. It becomes even more complicated when
combined with mine waste management goals of limiting infiltration and reconstructing the soil
profile. To the extent practical, native plant species should be used to facilitate future multiple
use objectives and promote healthy landscapes (Integrated Vegetation Management Handbook,
H1740-2).
Several approaches can be used to address the revegetation standard. One option is to establish a
reference area on a similar slope and aspect to test the revegetation performance goal. The
reference-area approach works well where the vegetation to be planted is the same species or
type as present in the reference area.
Another approach is to use a simple plant density or diversity criteria. These criteria can be
established during the Plan review and approval process (generally not needed for a Notice).
A third option is to simply use professional judgment when examining the vegetation to make
sure it is self-sustaining while looking for signs of plant stress or weed infestations. This
approach is probably the most appropriate for Notice-level projects or where the area to be
reclaimed has favorable soil and moisture characteristics, making revegetation success likely.
149
EPA-1312 Leach Method, Synthetic Precipitation Leach Procedure, Toxicity Characteristic Leaching Procedure,
and Meteoric Water Mobility Procedure.
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Usually at least two to three growing seasons are needed before a final evaluation can be made
regarding vegetation reestablishment. Weed control and supplemental infill seeding may be
required for even a longer period on difficult sites.
5.3.3.2.5 Mine Pit Backfilling
Backfilling of an open pit may be appropriate in certain circumstances. Any pit backfilling,
whether proposed by the operator or required by the BLM, needs to be thoroughly evaluated.
While there is no set formula for how to consider the feasibility of pit backfilling, the BLM must
weigh the costs, impacts, and difficulties of pit backfilling with the anticipated environmental
benefits in order to determine the appropriate amount of pit backfilling to meet the performance
standards. Generally speaking, backfilling for only aesthetic benefits is hard to justify. The
BLM must be cautious when requiring backfilling to the extent that the backfilling may foreclose
the financial viability of the operation.
The following are some factors relative to pit backfilling as a performance standard to consider
when assessing operating and reclamation plans:
Economic - The relatively high cost of backfilling may reduce the proposed mine life or
preclude mining the deposit altogether. Even where economically feasible for the
operation under review, backfilling may reduce or preclude the viability of any remaining
subeconomic mineralization left at the end of mine life. Backfilling could cause future
mining of the underlying resource to remain uneconomic even if commodity prices were
to later increase.
Engineering - Certain engineering limitations may affect the technical feasibility of pit
backfilling. Due to swell, not all material extracted from a pit can be put back in the pit.
This may constitute as much as one-third of the mined rock. Nor can unconsolidated
rock necessarily be placed back in the pit in the same configuration as the original
consolidated bedrock existed before it was mined. .
Water Quality - Covering reactive sulfide material in the pit floor or wall by backfilling
can help prevent the formation of ARD. Conversely, placement of reactive mine waste
near or below the water table may result in less effective source control of acid-forming
materials and degrade groundwater or adjacent surface water.
Runoff Control - Even partial backfilling can be used to create a surface that promotes
runoff flow out of the pit area. This limits the accumulation of stagnant water and
prevents infiltration of water into underlying mineralized zones where it could impact the
groundwater system.
Pit Lake Control - The amount and placement of backfill relative to the static water level
can determine whether, and to what extent, a pit lake forms. The BLM must evaluate
whether a pit lake is desirable on a case-by-case basis. In addition, sub-aqueous
placement of reactive mine waste is one approach to controlling sulfide oxidation. Pit
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lakes can serve as enhancements to wildlife habitat in certain situations where acceptable
water quality can be maintained.
Revegetation - Pit backfill can create a workable surface for placement of cover soil and
establishment of vegetation in areas that otherwise would not be vegetated. Disposing of
mine waste as pit backfill minimizes the overall mine disturbance area, especially where
it can be done concurrently with mining operations.
Safety - Pit backfilling can eliminate or reduce physical hazards to the public, livestock,
and wildlife posed by pit highwalls or pit lakes. Conversely, backfilling operations may
increase risks to employees where highwalls are subject to rock falls or slope failure.
Aesthetics - Backfilling can improve post-mining aesthetics by recreating, in whole or
part, the original topography and eliminating the visual effects of highwall benches.
Potential Environmental Impacts - Backfilling operations will have their own set of
potential impacts to air quality, noise levels, wildlife, and aesthetics due to equipment
operation. If backfilling does not begin until the end of mine life, such impacts may be
similar in duration to that of the mining operation. Reclamation of mine waste units to be
used as a backfill sources may need to be delayed until the end of operations, thereby
limiting concurrent reclamation.
5.3.3.2.6 Fisheries, Wildlife, and Plant Habitat
The operator is required to rehabilitate or repair damage caused to fisheries or wildlife habitat.150
This may require reconstruction of certain landforms or planting of specific vegetation types
during reclamation.
The requirement to rehabilitate fisheries and wildlife habitat does not always mean the exact
same habitat that was present pre-disturbance must be reestablished upon completion of mining
activities. The general intent is for this standard to be applied on a broad basis when large-scale
landscape alteration is involved; however certain types of mining, such as placer mining, should
always include measures to rehabilitate fisheries and wildlife habitat given its potential effect on
instream and riparian habitats.
This standard allows for a change in fisheries or wildlife habitat type without requiring a
restoration of the original habitat provided that the overall effect on fisheries or wildlife is in
accordance with BLM policy (e.g., Aquatic Resource Management Policy 6720) and 43 CFR
3809.420. For example, construction of a tailings impoundment that resulted in the development
of riparian habitats could be replaced with non-riparian habitats reclamation, but should be
consistent with surrounding upland vegetative communities. Conversely, fisheries habitats
altered by placer mining operations should be rehabilitated to provide a stable channel form with
adequate vegetation to reduce erosion, dissipate stream energy, and promote the recovery of
150
43 CFR 3809.420(b)(3)(ii)(e).
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instream habitats similar to levels which were present prior to mining and consistent with BLM
policy.
5.3.3.2.7 Notification of Reclamation Completion
The operator must notify the BLM when reclamation in part or all of the project area has been
completed so that the BLM may inspect the area.151 After the BLM receives notification from
the operator, the BLM will verify reclamation has or is being conducted according to the
reclamation schedule in the Notice or Plan of Operations and will take corrective action early if
the reclamation work is not adequate.
5.3.4 Air Quality
All operators must comply152 with applicable Federal and state air quality standards, including
the Clean Air Act.153 The BLM does not make direct determinations that a particular Notice or
Plan of Operations will or will not comply with air quality standards, or even whether an air
quality permit is required for the operation. Such legal conclusions are the responsibility of the
respective permitting authority.
The BLM may require operators to demonstrate they have the required air quality permits for
their operations by providing copies of the permits or certifications from the permitting
authorities.
Although the BLM does not permit air emissions, the BLM must analyze the potential impacts to
air quality in the NEPA document prepared for a Plan of Operations. In addition, the BLM
should conduct the Plan review and environmental analysis in conjunction with the state or
Federal regulatory authority that is responsible for permitting under the Clean Air Act.
5.3.5 Water Quality
All operators must comply154 with applicable Federal and state water quality standards, including
the Federal Water Pollution Control Act, as amended.155
Meeting the performance standards for water quality is similar to the process discussed above for
air quality. Most states have groundwater protection requirements as well as delegated authority
to enforce the Clean Water Act and issue National Pollutant Discharge Elimination System
(NPDES) permits. The BLM must analyze potential impacts to water quality in the
environmental analysis document prepared for the Plan of Operations. The BLM can
independently require mitigation measures affecting water quality under its FLPMA authority
and consistent with applicable land use plans. Where state regulations are absent or incomplete,
151
43 CFR 3809.420(b)(3)(iii).
43 CFR 3809.420(b)(4).
153
42 U.S.C. 1857 et seq.
154
43 CFR 3809.420(b)(5).
155
30 U.S.C. 1151 et seq.
152
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and measures are needed to address potential impacts to groundwater, measures must be
developed during the Notice review or Plan approval.
The best approach to ensure that operators meet water quality standards is to include the
corresponding state or Federal water quality permitting agency in the review and/or approval
process for the Notice or Plan of Operations. This approach allows the BLM to evaluate
potential pollution sources and controls in the mine plan simultaneously with treatment options
and effluent limits in order to verify that the applicable agency has determined that the operator
is meeting the water quality standards. Alternatively, certification from the state or Federal
water quality permitting authority can serve as evidence that the proposed operation is expected
to comply with applicable water quality standards.
5.3.6 Solid Waste
All operators must comply with applicable Federal and state standards for the disposal and
treatment of solid wastes,156 including regulations issued pursuant to the Solid Waste Disposal
Act as amended by the Resource Conservation and Recovery Act (RCRA).157
Mining waste (waste from the extraction and beneficiation of ore) is exempt from regulation
under RCRA158 as a hazardous waste (Bevill-exempt); although, it is still subject to regulation
under the state and Federal mining and reclamation requirements. There are also some wastes
that are not exempt from RCRA regulation that do occur at mining operations. These include
laboratory wastes, wastes from water treatment plants, or certain smelter wastes. To classify a
particular waste stream for purposes of evaluating the Plan or Notice, the BLM requires that the
operator follow the testing procedures and legal determinations found in 40 CFR 264.
A variety of garbage or refuse is generated by even a small mining operation. Examples include
trash from day-to-day activity, office waste, broken equipment or parts, shipping containers,
reagent containers, and used oil or lubricants.
Used or inoperable equipment, parts, or reagent containers must be removed by the operator and
not stored or disposed of onsite. It may be acceptable for certain inert wastes such as wood,
cardboard, or paper to be disposed of by onsite burial in a pit or waste rock dump. However,
such disposal must be included in the Notice or Plan and has to be covered by the appropriate
state or county permits.
The operator must periodically remove petroleum waste products, such as used oil, hydraulic
fluids, old fuel, etc., from the site and send the waste to the appropriate recycling center or
disposal facility. The operator is not to dispose of used petroleum products by applying them on
disturbance areas for control of dust. Generally, used tires are not to be disposed of onsite.
156
43 CFR 3809.420(b)(6).
42 U.S.C. 6901 et seq.
158
42 U.S.C. 6921(b)(3)(A)(ii).
157
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5.3.7 Fisheries, Wildlife and Plant Habitat
The operator must prevent adverse impacts to Federal threatened or endangered species and their
habitat that may be affected by operations in the proposed Plan or Notice.159 This performance
standard does not give the BLM authority to create an independent process for determining
whether species or habitat will be “adversely impacted” by mining operations; rather, the BLM
will rely on the regulatory requirements under the Endangered Species Act (ESA) to determine if
the operator is meeting this performance standard.
If the BLM determines that the operation may affect a listed or proposed species or designated or
proposed critical habitat, consistent with BLM Manual 6840, the BLM should prepare a
Biological Assessment and initiate consultation or conferencing with the U.S. Fish and Wildlife
and/or the National Marine Fisheries Service under Section 7 of the ESA. The operator may
request “applicant” status, in which case they would be afforded the opportunity to be involved
in the ESA conference or consultation process if the action that requires approval or
authorization by the BLM may affect federally threatened, endangered, or proposed species. See
the BLM Manual 6840 “Special Status Species”, Section .1.F.8 for a more complete discussion
of applicants pursuant to Section 7(a)(2) of the ESA. The BLM’s approval of the Plan must
include a requirement that the operator must follow any reasonable and prudent measures and
associated terms and conditions that are issued in the incidental take statement that accompanies
the Biological Opinion issued by the Services.
Consultation is not required for Notice-level operations. However, if threatened or endangered
species or their critical habitat is present in the project area, a Plan of Operations may be required
instead of a Notice, unless the BLM allows for other action under the applicable land use plan or
recovery plan.160 Consequently, when processing a Notice, the BLM should inform the operator
of threatened or endangered species or habitat in the project area, and inform the operator about
the requirements under Section 7 of the ESA.
5.3.8 Cultural and Paleontological Resources
5.3.8.1 Disturbance of Resources
Operators must not disturb, alter, injure, or destroy any scientifically important paleontological
remains or any historical or archaeological site, structure, building, or object on Federal lands.161
This standard refers to cultural and paleontological resources identified prior to the initiation of
surface-disturbing activities. It should not be misinterpreted to mean that cultural and
paleontological resources can never be disturbed.
To comply with the standard for cultural resource protection, the operator is not to disturb such
resources prior to the BLM completing the required consultation under Section 106 of the
NHPA. As a result of consultation under Section 106, the operator may be required to follow
certain site-specific mitigating measures.
159
43 CFR 3809.420(b)(7).
43 CFR 3809.11(c)(6).
161
43 CFR 3809.420(b)(8).
160
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Operators are not to disturb any scientifically important paleontological remains until the BLM
completes an investigation and recovery of the resource. Scientifically important paleontological
remains may be vertebrate or invertebrate, and include any one or more of the following:
Uniquely well-preserved specimens of educational or research value.
Specimens that fill in evolutionary gaps in the paleontological record.
Fossils of previously unknown life forms.
Fossil remains of all vertebrate species.
5.3.8.2 Pre-Disturbance Inventory
As noted in 43 CFR 3809.401(c)(1), the operator must provide the inventory of cultural and
paleontological resources needed to process a Plan of Operations. The BLM is responsible for
providing the necessary inventory in advance of activities conducted under a Notice. An on-theground inventory is not mandated for all projects. The BLM specialists will provide input as to
the level of inventory required in a particular project area prior to surface disturbance.
5.3.8.3 Resources Discovered After Operations Begin
If, after the commencement of surface-disturbing activities, the BLM or the operator discover
resources that were not noted in the earlier surveys, the operator must immediately cease surface
disturbing activities near the find and notify the BLM District/Field Manager of any potential
cultural and/or paleontological resources on Federal lands that might be altered or destroyed by
continued operations.
The operator must leave such discovery intact until receiving written notice to proceed from the
District/Field Office. The District/Field Manager will evaluate the discoveries brought to his or
her attention, take action to protect or remove the resource, and allow operations to proceed
within 10 working days after notification to the District/Field Office of such discovery, unless
alternative arrangements are negotiated with the operator. If the resources discovered are objects
subject to the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA),
then operations can be suspended for 30 days.162
Discoveries of cultural resources eligible for listing on the National Register, remains under
NAGPRA, or paleontological resources of significant scientific value, may be cause for the BLM
to negotiate with the operator for additional time to conduct protection or recovery activities.
5.3.8.4 Financial Responsibility
The BLM has the responsibility and must bear the cost of investigations and salvage of cultural
and paleontological resources discovered after a Plan of Operations has been approved, or where
162
43 CFR 10.4(d)(2).
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a Plan is not involved.163 This particular standard does not require the BLM to fund or complete
within a certain time limit the cultural resource inventories required in advance of surface
disturbance before the Plan of Operations is approved.
5.3.9 Protection of Survey Monuments
The performance standard on protection of survey monuments164 consists of the following two
requirements:
Operators must not damage survey monuments (including witness corners, reference
monuments, bearing trees, and line trees) without receiving prior authorization from the
BLM. The BLM may authorize the removal or alteration of survey monuments if
removal or alteration is determined necessary to conduct operations. Such authorization
will be made to the operator in writing and prescribe the requirements for the restoration
or reestablishment of such monuments.
If in the course of operations, any monuments, corners, or accessories are destroyed,
obliterated, or damaged, the operator must immediately report the matter to the
District/Field Office. Operators must restore or reestablish any survey monuments or
corners that they remove or damage, even accidentally, in accordance with the written
directions provided by the District/Field Manager.
5.3.9.1 Restore or Reestablish Survey Monuments
Where the proposed activity may disturb Public Land Survey System (PLSS)/Cadastral Survey
corners (or has already done so), the operator is responsible for the cost of restoring or
reestablishing the corners as necessary. The State Office Cadastral Survey Section, through inhouse personnel, contract personnel, and contributed service agreements, or a registered
professional land surveyor, can provide the necessary work.
The following performance standards and guidelines are to be provided, as applicable, to the
operator by the District/Field Manager when making a determination requiring the restoration or
reestablishment of survey monuments:
163
164
The PLSS/Cadastral corner monument(s) must be the base for locating reference
monuments.
The section corner, quarter corner, or subdivision corner will be referenced prior to any
monument disturbance. The BLM Geographic Coordinate Data Base (GCDB) will be
utilized to assist in identifying corner monument locations.
The establishment of “reference monuments” should be in accordance with the Manual of
Surveying Instructions 2009. Referencing variations to the Manual are acceptable if
43 CFR 3809.420(b)(8)(iii).
43 CFR 3809.420(b)(9).
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survey grade Global Positioning System (GPS) technology and standards are utilized, and
the utmost regard to the fixed location of the corner monument is observed, as well as
taking all steps necessary to provide for an efficient and accurate corner restoration
process.
Once referenced, a copy of the corner monument description(s) as well as a map at an
appropriate scale showing and describing the reference monuments and their bearings
and distance relationships to the corner monument, is to be submitted to the District/Field
Office for acceptance and placed in the case file.
The corner monument may be disturbed once referenced. If disturbance is simply
monument burial, the monument may be left in place. If it is destruction or damage, the
corner monument is to be removed and retained until restoration can take place.
Once operations are complete, the removed corner monument(s) is to be restored back in
the original location(s) from the established reference monuments in accordance with the
current Manual of Surveying Instructions, its circulars and amendments.
In the event a corner monument cannot be restored back to its original location or when it
is impracticable to occupy its location (e.g., under water, rock cliff, swamp/marsh land,
etc.), the restoration of a corner monument is not required and may be waived in writing
by the authorized officer. The corner monument (stone/wood post/brass cap) is to be
delivered to the District/Field Office for return to the State Office, Cadastral Survey
Section.
Prior to reclamation acceptance, the monument(s) restoration or reestablishment
verification will be reviewed and approved in writing by the BLM District/Field Office
and State Office, Cadastral Survey Section.
Restoration or reestablishment of survey monuments is a component of reclamation and
is subject to the financial guarantee requirements to ensure its performance. Restoration
or reestablishment costs are to be included in the reclamation cost estimate.
5.3.10 Fire Prevention
Operators must comply with all applicable Federal and state fire laws and regulations, and will
take all reasonable measures to prevent and suppress fires in the project area.165 Operators
working under a Plan of Operations may be required to incorporate certain fire control measures
into their operations. Such measures could include maintaining fire suppression equipment,
construction of firebreaks around the operations, and removal of slash piles that constitute a fire
hazard. Mining operations that exercise standard care in fire prevention probably do not require
special restriction as to operating hours.
Operators working under a Notice may be required to comply with all fire restrictions that apply
to other public land users. This includes restrictions on off-road travel, operating hours, open
165
43 CFR 3809,420(b)(10).
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flames, spark arrester requirements for equipment, and requirements to carry fire suppression
equipment.
Operators working under either a Notice or Plan may be held financially responsible for fires
caused by their activities.
5.3.11 Acid-Forming, Toxic, or Deleterious Materials Management
The operator must incorporate identification, handling, and placement of potentially acidforming, toxic, or other deleterious materials into the operation procedures, facility design,
reclamation, and environmental monitoring programs to minimize the formation and impacts of
acidic, alkaline, metal-bearing, or other deleterious leachate.166
The Plan or Notice must state how the operator will identify, handle, treat, and reclaim all acid
forming, toxic, or other deleterious material during all phases of the operation. Such measures
must be integrated into the mine plan and not left for later consideration. Successful
performance of this standard includes taking reasonable measures to identify such materials both
in advance of, and concurrent with, mining.
Determining whether rock or overburden materials require special handling is based on a variety
of tests (acid-base accounting, humidity cells, leachate extraction tests, whole rock analysis,
etc.). While standard protocols are available for most tests, a final determination as to the acid
generating character of the material requires evaluating the test results against site-specific
environmental and mineralogical conditions under a specific mine plan. There are no established
testing criteria to determine whether acid generation will or will not be an issue without also
considering the site-specifics of the particular mine plan. For example, rock with a net acid
generating potential greater than 20 could present no problem in a dry underground mine, but
might require extensive special handling at an open pit mine in a wetter environment. Consult
the BLM’s Reclamation Handbook for an overview of the ARD issue and a list of references on
ARD evaluation.
5.3.11.1 Source Control
The operator must handle, place, or treat potentially acid-forming, toxic, or other deleterious
materials in a manner that minimizes the likelihood of acid formation and toxic and other
deleterious leachate generation.
As a performance standard the operator must make a good faith effort to use all reasonably
applicable technology to keep mine waste from generating leachate that could cause
environmental impacts. The primary environmental controls that must be used are methods that
will stop or minimize the formation of deleterious leachate.
166
43 CFR 3809.420(b)(11).
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For potentially acid forming materials this standard could require that such materials be either:
Mixed with acid-neutralizing materials or additives.
Treated to stop or slow the acid generating reactions.
Placed away from potential contact with surface or ground waters.
Covered to limit or prevent the infiltration of precipitation.
Some combination of the above.
Operators generating other mine wastes that could generate alkaline or metal-bearing leachate
are required to apply similar source control measures to meet this performance standard.
5.3.11.2 Migration of Mine Drainage
To the extent that the operator cannot prevent the formation of acid, toxic, or other deleterious
drainage, they must minimize migration of leachate. The standard recognizes that it is not
always possible to totally prevent the formation of acid, toxic, or other deleterious drainage.
When this occurs, measures must be taken to keep reaction products from migrating out of the
mine waste and into the environment. Some environmental control measures that the operator
might need to use to meet this performance standard include:
Diverting run-on water or penetration of meteoric water to keep it from entering and
mobilizing reaction products.
Installation of capillary breaks to prevent upward migration of reaction products.
Diverting or drawing down groundwater to keep it from migrating through the mine
waste.
Some combination of the above.
5.3.11.3 Capture and Treatment
The operator must capture and treat acid drainage, or other undesirable effluent, to the applicable
standard if source controls and migration controls do not prove effective. The performance
standard recognizes that when it is not possible to prevent the formation or migration of leachate
or effluent, the operator must capture and treat it to meet the applicable water quality standard.
While complete capture of seepage is not always possible, the treated discharge, when mixed
with the un-captured leachate, must meet the applicable effluent limit at the point of compliance.
Long-term, or post-mining, effluent capture and treatment are not acceptable substitutes for
source and migration control; and the operator may rely on them only after all reasonable source
and migration control methods have been employed. While capture and treatment can be highly
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effective at limiting environmental impacts, in order to meet this performance standard, the
operator must first apply source and migration control measures to the mining and reclamation
plans in order to minimize treatment needs. Operating plans that propose to “treat water if
necessary” must include source control measures to satisfy this performance standard.
Water treatment systems can include active, passive, or semi-passive approaches. In addition to
requiring approval during the Plan of Operations review process, water treatment systems must
comply with any separate authorizations from the state or Federal permitting authority and
require an NPDES permit where discharging to surface water. Water treatment systems must be
operated and maintained in compliance with all state or other Federal standards.
All treatment systems generate some waste product, whether it is sludge, liquid concentrate, or
solid waste residue. Measures for removal, stabilization, control, and reclamation of waste
products from water treatment systems must be integrated in the operating and reclamation plans.
Disposal and reclamation of waste product must achieve long-term stability in the postreclamation environment and in conformance with applicable state and Federal environmental
standards.
The operator is responsible for any costs associated with water treatment or facility maintenance
after project closure. To make sure the operator meets all responsibilities to cover all costs
associated with water treatment or facility maintenance after mining has ceased, the
District/Field Office may consider establishing a long-term trust fund under 43 CFR
3809.552(c). See Section 6.3 Types of Financial Guarantees, for further discussion on trust
funds.
5.3.12 Leaching Operations and Impoundments
This performance standard applies to process waters in leach pads, vats, ponds, or tanks and the
associated solution circuit for all types of solution mining.167 The standard applies to tailings
impoundments, holding ponds, reagent mixing ponds, or other process solution and wastewater
containment structures.
5.3.12.1 Design and Operating Requirements
The operator must design, construct, and operate all leach pads, tailings impoundments, ponds,
and solutions-holding facilities according to standard engineering practices so as to achieve and
maintain stability and facilitate reclamation.
One method to ensure this standard is met is for the operator to have the facility designed by a
licensed professional engineer, with construction oversight and verification by an engineering
firm using standard quality assurance procedures. A stability analysis should be performed as
part of the design evaluation using acceptable engineering standards for structures in that
particular seismic region.
167
43 CFR 3809.420(b)(12).
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In order to facilitate reclamation, ore heaps and tailing impoundments will be designed so that
the transition from operation to reclamation can be easily accommodated. For example, an ore
heap proposed to be regraded on the leach pad liner at a 3H:1V slope does not facilitate
reclamation if it is loaded at a 2H:1V slope up to the margin of the leach pad. The extra material
either has to be off-loaded, an expensive and time-consuming process, or the liner has to be
extended along the perimeter at closure.
5.3.12.2 Liners and Leak Prevention
The operator must have a low-permeability liner or containment system designed and
constructed that will minimize the release of leaching solutions to the environment. The operator
must monitor to detect potential releases of contaminants from heaps, process ponds, tailings
impoundments, and other structures and remediate environmental impacts if leakage occurs.
While a large volume of technical material (see BLM Solid Minerals Reclamation Handbook, H3042-1) has been written on how to design, build, and operate leaching facilities or tailings
impoundments, this performance standard emphasizes some basic requirements.
The operator must construct such facilities with a low permeability liner or containment system.
The standard is met when the release of leaching solutions to the environment has been
minimized using the best available technology.
The operator must monitor for the release of leaching solutions. Such monitoring can be
accomplished by placing monitoring devices beneath or between the heap, pond, or tailing
impoundment liner system or by adjacent monitoring wells or lysimeters. Environmental
impacts caused by the leakage or seepage of process or waste solutions must be remediated in
order to satisfy this performance standard.
5.3.12.3 Containment Requirements
The operator must design, construct, and operate cyanide or other leaching facilities and
impoundments to contain precipitation from the local 100-year, 24-hour storm event in addition
to the maximum process solution inventory. The containment must include allowances for
snowmelt events and draindown from heaps during power outages in the design.
The 100-year, 24-hour storm event is a site-specific standard. Obtaining precipitation data for
the project area, or extrapolating the design event based on existing data, is a critical step in
establishing the design criteria at the project locale in order to meet this performance standard.
The facility layout must route upgradient run-on waters around or under the process or
wastewater facility so the precipitation does not enter the containment system during the design
storm event. Ideally, the only water entering the system would be from direct precipitation.
Modeling of precipitation, evaporation, water loss, and the addition of make-up water should be
conducted to determine the amount of storage available throughout the anticipated life of the
mine facility.
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Once all additions and losses are accounted for, predictions can be made comparing the
remaining freeboard168 with the design storm event and a determination made whether the
operation would meet this performance standard. Land application disposal of process solutions
will not be relied upon to satisfy the 100-year, 24-hour storm event containment requirements in
this performance standard.
Vats, tanks, pipes, or other parts of the process circuit may break or leak. These components can
contain high concentrations of leaching solutions or process reagents that if released could create
significant impacts. The operator must construct a secondary containment system around vats,
tanks, or recovery circuits that can retain the anticipated maximum amount of solution from a
leak or failure, thereby preventing the release of toxic solutions to the environment. Secondary
containment can be achieved by incorporating berms or lined areas around these facilities.
Generally, secondary containment areas are designed to contain 110 percent of the maximum
volume of solution that would be released from a leak or failure.
5.3.12.4 Solution Access
The operator must exclude access by the public, wildlife, or livestock to solution containment
and transfer structures that contain lethal levels of cyanide, metals, acidity, or other constituents
in solution. All fencing and signing to exclude the public must supported by the materials
required by 43 CFR 3715.3-2 and be approved under 43 CFR 3715.3-4.
This may be accomplished by fencing, netting, or enclosure to meet this performance standard.
It should be noted that hazing methods, such as using loud music to scare aware water fowl, have
not proven totally effective at preventing waterfowl from coming in contact with leaching
solutions.
What constitutes “lethal levels of cyanide or other solutions” under the regulations is difficult to
determine. This performance standard was initially developed in response to migratory bird
deaths from open ponds containing cyanide. Few bird deaths have been observed where cyanide
solutions contain less than about 20 parts per million of free cyanide. While this should not be
considered a definitive standard, it may be useful to identify the issue for further evaluation.
Other constituents in solutions may also pose a threat to the public, livestock, or wildlife.
Careful characterization of exposed solutions is needed in order to determine the extent which
the operator is required to exclude access.
5.3.12.5 Solution Detoxification
In order for reclamation to be considered complete, operators must have detoxified leaching
solutions and spent ore heaps to the applicable regulatory criteria and manage tailings or other
process waste to minimize impacts to the environment from contact with toxic materials or
leachate. Often there is a state standard that determines the detoxification requirement. The
detoxification criterion should be established during the Plan of Operations approval process. If
168
The distance between normal water level and the top of a structure, such as a dam, that impounds or restrains the
water.
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no standards have been developed in advance for the project, then detoxification must reduce
cyanide content to levels where discharge would be in compliance with the applicable water
quality standards.
Acceptable practices to detoxify solutions and materials include natural degradation, freshwater
rinsing, chemical treatment, biological degradation, or equally successful alternatives methods.
While active treatment of cyanide using reagents such as hydrogen peroxide or hypochlorite are
effective, consideration should be given to the potentially deleterious by-products when
compared to natural degradation. Upon completion of reclamation, all materials and discharges
must meet applicable effluent standards.
5.3.12.6 Temporary or Seasonal Closure
In cases of temporary or seasonal closure, the operator must provide adequate maintenance,
monitoring, security, and financial guarantee. The BLM may require the operator to detoxify
process solutions, particularly in locations accessible to the public, livestock, or wildlife.
To meet this standard, the operator must maintain a presence onsite as long as toxic solution
levels are present. The operator must maintain liners, fences, and netting in good repair,
continue monitoring of the leak detection systems, maintain site security to prevent public
access, and keep in place the financial guarantee amount needed to complete any remaining
reclamation obligations, including detoxification of process solutions.
If the operator does not plan to continue site maintenance, monitoring, and security, then the
process solutions must be detoxified before the temporary or seasonal closure (see Section
4.3.2.5 Interim Management Plans and Chapter 7 Cessations and Abandonment).
5.3.13 Maintenance and Public Safety
During all mine operations, the operator is responsible for maintaining the structures, equipment,
and other facilities in a safe and orderly manner.169 Hazardous sites or conditions resulting from
operations have to be marked by signs, fenced, or otherwise identified to alert the public in
accordance with applicable Federal and state laws and regulations.
The proposed Plan or Notice must contain specific measures that may be needed to maintain
public safety, including controlling site access, fencing, and signing of hazardous solutions, and
placement of fences, barriers or berms along the top of pit highwalls. Fencing, signing, or
placing access restrictions around mine openings may also be needed to protect public safety.
The operator must obtain concurrence for these access restrictions under the 43 CFR 3715
regulations in addition to obtaining acceptance or approval of their placement under the 43 CFR
3809 regulations.
All site facilities and visitors must comply with safety requirements of the Mine Safety and
Health Administration (MSHA) and the corresponding state safety agency and applicable BLM
safety guidance (see BLM Handbook Safety and Health Management, H-1112-1, and Safety and
Health for Field Operations, H1112-2).
169
43 CFR 3809.420(b)(12).
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Chapter 6 Financial Guarantees
This chapter covers operator and BLM responsibilities for establishment, maintenance,
termination, and forfeiture of financial guarantees under 43 CFR 3809.500 through 3809.599.
The regulations at 43 CFR 3809 use the term “financial guarantee” in reference to the contracted
document and any financial instrument used to guarantee that the operator will perform
reclamation required by the regulations.170 The surface management regulations that were in
effect before January 20, 2001, used the term “bond” to describe such legal and financial
instruments.
This handbook does not cover the adjudicative responsibilities and procedures for processing,
accepting, rejecting, obligating, and maintaining financial guarantees. See BLM Handbook H3809-2, Surface Management Bond Processing, for guidance on the adjudication process.
6.1 Financial Guarantee Requirements
The financial guarantee requirements differ depending on the level of activity, type of
authorization, and time the authorization occurred. Figure 6.1-1, Financial Guarantee Process,
flowcharts the main steps in posting a financial guarantee. The financial guarantee requirements
also apply to all operations authorized by the Mining Law on public lands where the mineral
interest is reserved to the United States.171
6.1.1 Pre-January 20, 2001, Notices
For Notices that were filed with the BLM before January 20, 2001, and had not been modified
under 43 CFR 3809.330 or 3809.331, or extended under 43 CFR 3809.333, the operator was not
required to provide BLM with a financial guarantee for that operation.
6.1.1.1 Extended Notices
Notices that were filed with the BLM before January 20, 2001, may have been extended under
43 CFR 3809.333; as part of that extension request, the operator must have provided an
acceptable reclamation cost estimate (RCE) that met the requirements of 43 CFR 3809.552(a)
and 3809.554(a). The operator must have provided the BLM with an acceptable financial
guarantee for the entire Notice that met the requirements of the current regulations.
6.1.1.2 Expired Notices
If an operator chose not to extend a pre-January 20, 2001, Notice under 43 CFR 3809.333, no
financial guarantee was required, but the operation must have been reclaimed. An operator’s
reclamation obligations continue beyond the expiration or any termination of the Notice until all
reclamation requirements are satisfied.
170
A financial guarantee consists of BLM Form 3809-1, Surface Management Surety Bond, or BLM Form 3809-2,
Surface Management Personal Bond and the financial instrument that secures the personal bond.
171
43 CFR 3809.2.
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Figure 6.1-1 - Financial Guarantee Process
In conjunction with the filing of a new or
modified Notice or Plan, Notice extension,
or at the direction of the BLM, an operator
submits a reclamation cost estimate to the
appropriate BLM District/Field Office 3809.301(b) .330(b) .333 .401(d) .432(a)
.552(b) and .553(b)
The BLM reviews the reclamation cost
estimate - 3809.311 .330(b) .401(d) and
.432(a) .552(b) .553(b) and .554(b)
Does the reclamation cost estimate meet
the requirements of 43 CFR 3809.552(a)
and .554(a)?
Yes
Operator submits to the BLM a revised
reclamation cost estimate - 3809.552(a)
and 554(a)
The BLM District/Field Office notifies the
operator the cost estimate is not
acceptable, including identification of any
deficiencies, omissions, or errors that led
to this decision (notification may be in the
form of a letter or a formal decision) 3809.554(b)
No
BLM District/Field Office issues a
decision as to the amount of the required
financial guarantee. Copy to the BLM
office responsible for adjudicating
financial guarantees - 3809.554(b)
Based on the existing or proposed
operation, the BLM District/Field Office
prepares a cost estimate (such an
independent action by the BLM may be
necessary where the operator is unable or
unwilling to prepare the required cost
estimate, especially for existing
operations) - 3809.552(b)
Operator provides the BLM with an
acceptable financial guarantee or evidence
of an existing unobligated financial
guarantee - 3809.312(c), .500(b), and
.503(c)
The BLM notifies operator that the
financial guarantee is obligated, with a
copy of the decision to the District/Field
Office - 3809.312(c) .412 and .500(b)
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6.1.1.3 Modified Notices
For Notices that were filed with the BLM before January 20, 2001, and have been modified
under 43 CFR 3809.330 or 3809.331, the operator must have provided the BLM with an
acceptable financial guarantee for the entire operation before continuing operations under the
modified Notice. Any proposed modification must be accompanied by an estimate of the cost to
fully reclaim the operation as required by 43 CFR 3809.552. The RCE and financial guarantee
required for the operation under a modified Notice must have been for the entire Notice, not just
the area of change.
6.1.2 Pre-January 20, 2001 Plans of Operations
For Plans of Operations approved prior to January 20, 2001, the operator must have provided the
BLM with an acceptable financial guarantee that met the requirements of the regulations by
November 20, 2001. A new financial guarantee was not required if a financial guarantee already
existed that satisfied the regulations.172
6.1.3 Casual Use
Operators of activities that are considered by the BLM to be casual use are not required to
provide the BLM with a financial guarantee. Casual use is defined at 43 CFR 3809.5 as
activities ordinarily resulting in no or negligible disturbance of the public lands or resources.
6.1.4 New Notices
For Notices filed or modified with the BLM after January 20, 2001, the operator must provide an
acceptable RCE that meets the requirements of 43 CFR 3809.552(a) and 3809.554(a). An
acceptable RCE must be provided to the BLM for the Notice to be considered complete under 43
CFR 3809.301(b). Prior to commencing operations, the operator must provide the BLM with an
acceptable financial guarantee. The financial guarantee must meet the requirements of the
regulations as specified by 43 CFR 3809.551 through 3809.573.
6.1.5 New Plans of Operations
For all Plans of Operations filed or modified with the BLM after January 20, 2001, the operator
must provide an acceptable RCE that meets the requirements of 43 CFR 3809.552(a) and
3809.554(a). The RCE should be submitted to the BLM at a time specified by the BLM. The
operator must provide the BLM an acceptable financial guarantee prior to commencing
operations. The financial guarantee must meet the requirements of the regulations as specified
by 43 CFR 3809.551 through 3809.573.
172
43 CFR 3809.551 through 3809.573.
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6.1.6 Compliance and Enforcement
Any decision concerning the need, amount, acceptability, and/or forfeiture of a financial
guarantee is part of the BLM’s compliance and enforcement program, and not an authorization to
conduct operations. All decisions concerning the need, amount, acceptability, and forfeiture of a
financial guarantee are subject to appeal under the provisions of 43 CFR 3809.800 through
3809.809.
6.2 Reclamation Cost Estimates
6.2.1 Operator’s Estimate
6.2.1.1 New or Modified Operation
When submitting a new Notice or Plan of Operations,173 the operator must provide the BLM with
an RCE that meets the requirements of 43 CFR 3809.552(a) and 3809.554(a), and must be
acceptable to the BLM as required by 43 CFR 3809.554(b). Where an existing Notice or Plan of
Operations is proposed to be modified, the operator must provide the District/Field Office with
an estimate of the reclamation costs for all components of the existing and proposed operation
that will be affected by the modification.
The operator should include detailed documentation on how the cost estimates were calculated,
including cut and fill volumes, push distances, haul distances, and the source of the equipment
costs, as part of the RCE. Although not required, the BLM should encourage the operators to
submit the RCE both in hardcopy and in a standardized electronic format that could be easily
updated with current costs by the BLM for future reviews.
6.2.1.2 Cost Estimate for Part of an Operation
Where the District/Field Manager authorizes an operator to provide the BLM with a financial
guarantee under 43 CFR 3809.553 that covers only the current or proposed phase of the
operations (“phased financial guarantee” or “phased bonding”), the operator must prepare an
RCE for the phase of the operations to be covered by the financial guarantee. The RCE for a
phased financial guarantee must conform to the same standards as the RCE for a financial
guarantee for the entire operation. In addition to providing the cost estimate for the proposed
phase, the operator must also prepare a separate RCE for all operations proposed in the Plan of
Operations on public lands before surface disturbance can occur.
6.2.1.3 Long-Term Funding Mechanism
When a trust fund or other funding mechanism is required under 43 CFR 3809.552(c), the
operator must provide the District/Field Office with a cost estimate for the monitoring,
construction, operation, maintenance, replacement, and other activities for the required facilities,
treatment, or other needs documented in the Plan of Operations. The operator’s estimate must
173
43 CFR 3809.301(b)(4) and 3809.401(d)
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project when the cost obligations will occur. For recurring costs, such as maintenance of a water
treatment facility, the frequency, timing, and duration of the obligation should be estimated for
each cost component. The operator’s cost estimate prepared for long-term obligations to be
covered by the long-term financial guarantee under 43 CFR 3809.552(c) should be documented
separately from the RCE.
6.2.1.4 Assumptions and Conditions
The RCE must be based on the following assumptions and conditions:174
The estimate must cover all relevant operation, maintenance, and administrative costs for
all reclamation required under the filed Notice or approved Plan of Operations.175 The
cost estimate may however provide more reclamation details than is specified in the
Notice or Plan.
Costs must be estimated as if the BLM were hiring a third party contractor to perform all
required reclamation.
Costs must include the use of offsite equipment as if the project area was vacated, and the
estimate must include all associated mobilization and demobilization costs.
The estimate must include, when applicable, all interim maintenance required to keep the
area of operation in compliance with applicable safety and environmental requirements
while reclamation contracts are developed and executed.
The estimate must cover costs to construct and maintain any long-term treatment
facilities or post-closure structures required by the filed Notice or approved Plan of
Operations.
Labor costs must be based on federally mandated labor rates, as required by the DavisBacon Act (40 U.S.C. 3141 et seq.) and the Federal Acquisition Regulations (FAR), 48
CFR 22.403-1) for contracts over $2,000. If the reclamation is solely for the dismantling,
demolition, or removal of improvements and no other actions, such as ripping or
reseeding of the disturbance, are involved, then contracting is under the Service Contract
Act (48 CFR 22.1002) and Davis-Bacon wage rates do not apply. If construction,
alteration, or repair of the improvements is contemplated, even if such work is under a
separate contract, then the Davis-Bacon wages apply.176
6.2.1.5 Maximum Reclamation Cost
The RCE must reflect the maximum cost of reclamation for the proposed disturbance to be
covered by the financial guarantee. The point of maximum reclamation costs is often when there
is the greatest area of disturbance, greatest volume of materials needing special handling, or
174
43 CFR 3809.552(a) and 3809.554(a).
43 CFR 3809.301(b)(4), 3809.401(d), 3809.552(a) and for extended Notices 43 CFR 3809.1-3(d).
176
www.access.gpo.gov\davisbacon.
175
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some other factor or combination of factors escalating the cost to reclaim. The maximum cost of
reclamation is generally not at the end of the project life.
6.2.1.6 Operating and Maintenance Costs
Reclamation operating and maintenance costs reflect the direct current costs of reclamation
based on the filed Notice or approved Plan of Operations. Where applicable, reclamation costs
should be estimated for the following closure tasks: interim operation and maintenance,
hazardous materials treatment, water treatment, demolition, removal and disposal, earthwork,
drill hole plugging, revegetation, mitigation, and post-reclamation operation, maintenance, and
monitoring requirements.
6.2.1.6.1 Interim Operation and Maintenance
If an operator abruptly ceases and abandons operations, the BLM may contract with a third party
to maintain the area of operation in compliance with applicable safety and environmental
requirements. The RCE must include the cost of providing immediate site operation and
maintenance, where appropriate.
Interim operation and maintenance costs may vary significantly depending on the individual site
needs, and may include labor, equipment, and materials for pumping of fluids to prevent
overflow of process ponds, costs for support equipment and electricity to operate the pumps, and
site security. There is no set time period to use in estimating the costs for the care and
maintenance of a site prior to the start of reclamation; much depends on the BLM’s ability to
obtain access to the financial guarantee, especially in bankruptcy cases. It is a good rule-ofthumb to allow for a minimum of 6 months of interim operation and maintenance by a
contractor. Large operations or project areas with limited seasonal access may warrant a longer
time period.
6.2.1.6.2 Hazardous Materials
The RCE must include the cost of decontaminating, neutralizing, disposing, treating, or isolating
hazardous materials used, produced, or stored on the site. The estimated cost for handling
hazardous materials should assume, unless otherwise documented, that the materials are properly
stored and labeled.
If upon site inspection, the BLM determines that the operator is using, producing, or storing
material onsite that could be hazardous, e.g., unlabeled barrels, and if the BLM is unsuccessful in
enforcing the operator’s obligation under the Plan or Notice to properly manage those materials
(operator has failed to comply with a BLM noncompliance order, see Section 9.2 Enforcement
Actions), the BLM must update the RCE to reflect the potentially higher cost of disposing of
such material. This distinction is important as the disposal of properly managed hazardous
materials may be a fraction of the disposal cost for materials not properly stored and identified.
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6.2.1.6.3 Water Treatment
The RCE must identify all necessary construction and maintenance water treatment costs needed
to ensure that mine discharge or drainage will meet relevant standards. The cost of long term,
post-reclamation operation, maintenance, and replacement requirements may be addressed in a
trust fund established under 43 CFR 3809.552(c).
6.2.1.6.4 Mine Facilities
The RCE must include the costs of demolition, removal, and disposal of all mine facilities,
equipment, and materials from the project area. No salvage value for structures, equipment, or
materials is allowed in the cost estimate.
The RCE must exclude disposal costs for those facilities that have been approved in writing by
the BLM for post-reclamation BLM use.
The RCE may also exclude the removal and disposal costs for operable mobile equipment, e.g.,
trucks, dozers, etc., from the cost estimate. However, if the BLM determines during routine site
inspections that the mobile equipment is inoperable and the operator refuses to repair or will not
remove the inoperable equipment from the project area (operator has failed to comply with a
BLM noncompliance order, see Section 9.2 Enforcement Actions), the BLM must update the
RCE to include the cost of removing and disposing of that inoperable equipment. In such
circumstances, an updated RCE should not replace vigorous enforcement of the performance
standards. Rather the RCE should be updated as part of the overall enforcement process.
6.2.1.6.5 Earthwork
The RCE must include the costs of all required earthwork. The RCE must address the cost of
hauling, placement, regrading, and backfilling to reclaim mine features, including roads that have
not been specifically identified and approved to remain open.
6.2.1.6.6 Drill Holes
The RCE must include the cost of plugging, capping, and isolation of drill holes, including
exploration, production, and monitoring holes, and water monitoring and piezometer wells,
where applicable. In determining the plugging costs, it must be considered whether drill holes
encounter water, water under artesian pressure, or are dry. Proposed plugging must meet all
applicable Federal and state requirements.
Where the operator is proposing drilling, the RCE must include, at a minimum, the estimated
cost of plugging the maximum number of drill holes that may be open at one time. In
determining the number of drill holes that may be open at any one time, there can never be less
than one drill hole for each drill rig that will be working in the project area. Where the submitted
Notice or approved Plan of Operations calls for drill holes to be plugged, but does not
specifically require the drill holes be plugged before the drill rig has been moved from the drill
pad, the RCE must include the plugging cost for all drill holes identified in the Notice or Plan of
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Operations, or the plugging cost for all drill holes authorized in a particular phase of an operation
where the financial guarantee is being phased under 43 CFR 3809.553(a).
For all drill holes, and water, monitoring, and piezometer wells authorized to be left open for an
interim period, the estimated plugging cost must be included in the RCE.
6.2.1.6.7 Revegetation
The RCE must include the cost of obtaining the seed mix specified in the reclamation plan and
the cost of soil preparation, such as ripping or harrowing; soil amendments, such as mulching or
fertilizer; application of the seed mix; noxious weed control; and placement of tree and shrub
seedlings, if required in the Notice or Plan. The RCE must also include the cost for hauling and
placement of growth medium, if not addressed under earthwork and the cost of watering seed
beds and seedlings, if necessary, to establish growth.
6.2.1.6.8 Mitigation
The RCE should include costs of reclamation work for mitigation, which may include avoiding,
minimizing, rectifying and reducing, or eliminating the operation’s impacts, or compensating for
the impacts, that are required in the Plan of Operations. The RCE should also include the cost of
any deferred compensatory mitigation the BLM is requiring the operator to perform. For
example, where the approved Plan requires the operator to develop new wetlands to compensate
for wetlands lost; until that wetland development is completed the cost estimate must include the
cost of that mitigation.
6.2.1.6.9 Post-Reclamation Costs
The RCE must include the costs of meeting any long-term construction, operation, maintenance,
or replacement of any treatment facilities and infrastructure that are not ensured by a trust fund
established by 43 CFR 3809.552(c).
6.2.1.7 Identified Costs
In calculating the cost to perform these interim operations, reclamation, closure, mitigation, and
monitoring tasks discussed above, the operator’s estimate must identify the relevant operating
and maintenance costs relating to reclamation including:
Equipment rental or acquisition costs.
Equipment operation costs.
Equipment maintenance costs.
Cost of operating supplies.
Labor costs for operations, maintenance and supervision.
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Site maintenance including roads, infrastructure, power lines, fences, and monitoring
facilities.
Reclamation materials acquisition costs.
Mobilization and demobilization costs.
6.2.1.8 Data and References
Data and reference sources that may be useful in preparing and reviewing the RCE are applicable
parts of the Office of Surface Mining Handbook for Calculation of Reclamation Bond
Amounts;177 BLM’s Solid Minerals Reclamation Handbook H-3042-1; Caterpillar Performance
Handbook;178 products and services by CostMine (use for operator costs only-does not consider
third party contract estimates);179 R.S. Means Site Work & Landscaping Cost Data and R.S.
Means Heavy Construction Cost Data; 180 and Equipment Watch’s Cost Reference Guide and
Rental Rate Blue Book for Construction Equipment.181 The user of these and other reference
materials must be cognizant of how to apply the data to the RCE. For example, the RCE must
reflect the BLM’s cost to have a third-party contractor perform the work; owner/operator cost
data does not reflect the BLM’s contracting cost.
6.2.1.9 Administrative Costs
The RCE must include all costs as if the BLM were hiring a third-party contractor to perform all
required reclamation.182 These costs include the BLM’s direct and indirect contracting costs,
which are, in part, based on the FAR (48 CFR parts 1-53), plus standard costs associated with
government and industry contracting practices. The responsible BLM specialist will coordinate
with the State Office procurement analyst concerning current labor wages, contracting
requirements, and advice on various types of contracts, contract language, and administration.
This handbook contains suggested percentages for some of these administrative costs. Unless
otherwise noted, these percentages are rules-of-thumb and not specified by regulation or law.
Figures or percentages, other than those listed below, should be included in a calculation if they
are explicitly addressed in a Federal-State Agreement regarding the financial guarantee and/or
are required by Federal or state law.
Administrative costs that the RCE should include, as appropriate, are engineering, design and
construction plan, cost contingency, prime contractor’s profit, contractor’s liability insurance
177
Office of Surface Mining, Department of the Interior (http://www.wrcc.osmre.gov/).
Caterpillar Inc., Peoria, IL 61629 (www.cat.com).
179
MineInfo USA, CostMine, 1120 N. Mullan Rd. Suite 100, Spokane Valley, WA 99206
(http://costs.infomine.com/).
180
RSMeans, 63 Smiths Lane, Kingston, MA 02364-9988 (http://www.rsmeans.com/index.asp).
181
Penton Media, Inc., EquipmentWatch, 1735 Technology Drive, Suite 410, San Jose, CA 95110-1333
(http://www.equipmentwatch.com/).
182
43 CFR 3809.552(a) and 3809.554(a).
178
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premium, contractor’s performance and payment bonds, BLM contract administration, and BLM
indirect costs.
6.2.1.9.1 Engineering, Design and Construction Plan
An engineering, design, and construction plan provides the details needed for contracting the
reclamation construction work. The RCE should reflect the costs to prepare such plan. Should
the operator fail to reclaim, the BLM or its contractor may need to undertake a number of tasks
including:
Prepare maps and plans to show the extent of required reclamation.
Survey of topsoil and growth medium stockpiles to determine amount of material
available.
Sample and analyze waste rock, tails, heap material, surface and ground water, etc.
Sample and analyze topsoil and waste piles to determine whether special handling or
treatment is necessary.
Evaluate structures to determine requirements for demolition and removal.
Evaluate storm water facilities and process solutions or water impoundments to
determine if treatment, clean out, or other improvements are necessary.
Prepare an environmental analysis or site studies before reclamation may commence.
Not all operations will require a line item for an engineering, design, and construction plan in the
RCE. Specifically, notice-level and some other small or uncomplicated operations may not
require the BLM to develop detailed engineering information.
The actual cost of developing the engineering, design, and construction plan will depend to a
great extent on the specifics, including reclamation complexities, of the proposed operation. The
amount or percentage to apply should be based on available data within the state. Absent
specific local or state data, the BLM should estimate the cost for an engineering, design, and
construction plan, where necessary, as 4 to 8 percent of the estimated reclamation operation and
maintenance costs, depending on the size of the operation. See Illustration 6.2-1 for specific
guidance of what percentage to apply.
6.2.1.9.2 Contingency
A contingency allowance is for cost overruns that regularly occur in reclamation contracting but
cannot be ascertained when an operation plan is being reviewed. Contingency costs generally
reflect the level of detail and completeness of the cost estimate, as well as the level of uncertainty
in the assumptions used for the RCE.
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Development of the engineering, design, and construction plan reduces the amount of operational
unforeseen circumstances and costs. However, contingency costs are not intended to account for
changes in the scope of the operation, or unforeseeable or unanticipated events such as
earthquakes, labor strikes, or floods. An operator is not required to provide a financial guarantee
to address unanticipated events or worst-case scenarios.
Where the proposed operation involves a relatively small, uncomplicated reclamation effort, and
development of an engineering, design, and construction plan is not anticipated, there may not be
a need to include a contingency line item in the RCE. Contingency costs would generally not be
required for Notice-level operations.
Federal and state agencies that routinely prepare construction cost estimates apply contingencies,
ranging from 3 to 45 percent of the operation and maintenance costs. The amount or percentage
required should be based on available reclamation or construction contract information within
the state. Absent specific local or state data, the BLM should calculate the contingency cost,
where applicable, as 4 to 10 percent of the estimated reclamation operation and maintenance
costs, depending on the size of the operation.183 See Illustration 6.2-1 for specific guidance on
what percentage to apply.
6.2.1.9.3 Contractor Profit
Government contracts generally include a line item for prime contractor’s profit over and above
the estimated reclamation operating and maintenance costs. The operator’s RCE must account
for prime contractor’s profit.
The RCE must use state or local contract information to determine the amount or percentage of
prime contractor’s profit. Where state law specifies an amount or percentage, BLM must use
that figure. Absent specific local or state data, the RCE should estimate contractor profit as 10
percent of the estimated reclamation operation and maintenance costs.
The line item for prime contractor’s profit should not be added where operating and maintenance
costs already include the contractor’s profit. In such cases, the operator’s reclamation operating
and maintenance estimate must document or itemize the inclusion of the prime contractor’s
profit.
6.2.1.9.4 Liability Insurance
The RCE should include the cost of obtaining contractor’s liability insurance. The RCE may
contain a separate line item for liability insurance premium, or it can itemize the insurance
premium in the reclamation operating and maintenance estimate. The contractor’s liability
insurance premium should be estimated as 1.5 percent of the estimated labor costs for the project
and included in the RCE.
183
Include a contingency allowance for all operations with estimated reclamation operation and maintenance costs
over $100,000.
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6.2.1.9.5 Performance and Payment Bonds
Federal construction contracts exceeding $100,000184 require payment of premiums for both a
performance bond and a payment bond, as required by the Miller Act, must be included in the
cost estimate. A set amount equal to 3 percent of the estimated contract cost should be used to
calculate the payment of premiums for both a performance bond and a payment bond.
6.2.1.9.6 Contract Administration
Contract administration costs include the BLM’s labor and operations costs for the District/Field
and State Offices to administer the contract. These costs must be included in the RCE. The
amount required to cover the BLM’s contract administration costs will depend to a great extent
on the specifics, including reclamation complexities, of the proposed operation. Absent
available state or local data, estimate the BLM’s contract administration and inspection cost for
reclamation contracts using 6 to 10 percent of the estimated operation and maintenance costs,
depending on the size and complexity of the proposed operation. Generally the larger the
amount of the financial guarantee, the lower the percentage needed for contract administration.
6.2.1.9.7 Indirect Costs
Certain BLM indirect costs must be included in the amount of the required financial guarantee.
The indirect costs to be covered are calculated as a fixed 21 percent of the estimated BLM
contract administration cost.185 If the BLM is required to administer a reclamation contract
under a forfeited financial guarantee, the funds made available by this 21 percent will remain
within the state where the reclamation work will be done. These funds are available to pay for
within-state indirect costs (building rental, telephone, etc.) associated with the project and any
project support needed from other offices such as the National Operations Center, contract
officers, or inspectors.
6.2.1.9.8 Federal-State Agreements
If a Federal-State Agreement made through 43 CFR 3809.200 provides for joint administration
or deferral of the administration of financial guarantees to the state, the RCE may reflect the
state’s administrative costs for contracting the required reclamation under certain situations. The
Federal-State Agreement must specify that the amount of the financial guarantee must be
calculated based on the completion of both Federal and state reclamation requirements as
required by 43 CFR 3809.203(d), must be redeemable by the Secretary, and the BLM must
concur in the approval, release, or forfeiture of a financial guarantee for public lands. See
Section 6.6 Joint Federal-State Financial Guarantees and Section 12.2 New Agreements for
further discussion on joint or deferred bonding.
6.2.1.10 Reclamation Cost Estimating Tools
Summary sheets, checklists, and cost models are available to assist the operator in developing
and District/Field Office in reviewing the cost estimate. Individual BLM State Offices or
184
185
40 U.S.C. 3131 to 3134.
21% of 6-10% equals 1.26-2.1% of the estimated operation and maintenance costs.
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District/Field Offices may develop their own tools to support the reclamation cost estimating
process. When practicable, BLM personnel will use a cost model such as “Sherpa for
Reclamation Bonds” to check the reclamation cost estimate and a cost service such as InfoMine
USA’s CostMine, Mining Cost Service will be used as the source of cost information. The
results of the calculations and engineering analysis for an RCE will become a part of the
administrative record for that RCE.
Figure 6.2-1, Reclamation Cost Estimate Summary Sheet, is provided as an additional aid to the
District/Field Office and operator to assist in documenting the RCE. The user should enter those
values in the cost estimate that are appropriate for the operations. Complete details of the
reclamation costs should be included in worksheets that support the Reclamation Cost Estimation
Summary Sheet.
Figure 6.2-2, Operator Reclamation Cost Estimate Checklist, is a listing of common operational
components. The checklist, in addition to the Reclamation Cost Estimate Summary Sheet,
should be used by the District/Field Office and operator as a guide to ensure all operational
components are addressed in the RCE.
Standardized reclamation cost estimating processes, that include standardized unit costs,
schedules, spreadsheets, and models, are useful tools that provide a simplified, efficient,
defensible, and consistent means of estimating reclamation costs for both Notices and Plans of
Operations. Where appropriate, BLM State and District/Field Offices are encouraged to develop
processes based on standardized unit costs to facilitate the review and approval of the operator’s
RCE.
A process that uses standardized costs may be developed, based on local and/or regional costs, to
reclaim typical activities (roads, drill pads, drill-hole abandonment, trenches, pits, structure
removal, site stabilization, re-vegetation etc.) for specific kinds of terrain (topography). Figure
6.2-3, Reclamation Cost Model for Notice-Level Exploration, presents an example of a
spreadsheet used to calculate the reclamation costs for Notice operations. Note, this sample
spreadsheet and the description of the inputs and parameters are provided as an example of the
kind of standardized costing tool that a State or District/Field Office may develop. It is not
recommended a District/Field Office use this spreadsheet without first evaluating the cost inputs
and calculations used in the model.
Where a standardized reclamation cost estimating process is used, the amount of a financial
guarantee must be sufficient to meet the requirements of 43 CFR 3809.552(a) and 3809.554(a).
The assumptions used in developing the cost inputs must be consistent with both state and
Federal regulations and laws. Determining consistency with state and Federal regulations and
laws goes beyond the applicable environmental requirements. The assumptions used must also
be consistent with applicable contracting requirements, such as Federal Acquisition Regulations
(FAR) (48 CFR parts 1-53). For example, under Federal contracting (48 CFR 22.103-2, 48 CFR
52.222-2 and 48 CFR 52.222-4) contractors must perform all contract work, so far as practicable,
without using overtime. As such, the RCE must not be based on the assumption that the
reclamation contractor will conduct the work using the same employees over a double shift.
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Figure 6.2-1 - Reclamation Cost Estimate Summary Sheet
(1 of 2)
Earthwork/Recontouring
Roads
Drill Site(s)
Drill Hole Abandonment
Pits/Adits/Trenches
Process Ponds
Heaps
Dumps (Waste & Landfill)
Tailings
Structure & Building Areas
Storage & Equipment Areas
Drainage Control
Mobilization/Demobilization
Miscellaneous
Revegetation/Stabilization
Roads
Drill Site(s)
Pits/Adits/Trenches
Process Ponds
Heaps
Dumps (Waste & Landfill)
Tailings
Structure & Building Areas
Storage & Equipment Areas
Drainage Control
Monitoring
Miscellaneous
Detoxification/Water Treatment/Waste Disposal
Process Ponds/Sludge
Heaps
Dumps (Waste & Landfill)
Tailings
Surplus Water Disposal
Fluid Management
Monitoring
Miscellaneous
Structure, Equipment & Facility Removal
Hazardous Materials
Mitigation
Operation & Maintenance TOTAL
Administrative Costs
ED&C Plan
Contingency
Contractor Profit
Liability Insurance
Performance & Payment Bond
BLM Contract Administration
BLM Indirect Cost
Administrative TOTAL
GRAND TOTAL
BLM HANDBOOK
Labor
Equipment
Material
Total
Labor
Equipment
Material
Total
Labor
Equipment
Material
Total
Total
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Figure 6.2-1 - Reclamation Cost Estimate Summary Sheet
(2 of 2)
This summary sheet was developed to aid the operator in developing and the BLM review of the reclamation cost
estimation.
1. Wage rate estimates may include base pay, payroll loading, overhead and profit. To avoid double counting of any
of the identified administrative costs, the operator must itemize the components of the labor cost estimates or
provide the BLM with a signed statement, under penalty of perjury as provided in 18 U.S.C. 1001, that identifies
what specific administrative costs are included in the quoted hourly rate.
2. Where costs are included in one of the summary sheet’s Miscellaneous categories, each item should be
documented on accompanying worksheets.
3. Fluid Management may only be used when mineral processing activities are involved. Costs provided under this
category represent the costs of maintaining proper fluid management to prevent overflow of solution ponds during
premature cessation or abandonment of the operations. These are direct costs, including power, supplies,
equipment, labor, and maintenance, to manage the fluids while third-party contracts are developed and executed.
4. Handling of hazardous materials includes the cost of decontaminating, neutralizing, disposing, treating, and/or
isolating all hazardous materials used, produced, or stored on the site.
5. The cost of any deferred compensatory mitigation the BLM is requiring the operator to perform must be
included in the RCE. Mitigation may include measures to avoid, minimize, rectify and reduce or eliminate the
impact, or compensate for the impact.
6. Engineering, design and construction (ED&C) plans provide details on the reclamation needed to contract for
the required work. To estimate the cost to develop an ED&C plan, use 4-8 percent of the operation and
maintenance (O&M) cost. Calculate the ED&C cost as a percentage of the O&M cost as follows: up to and
including $1 million, use 8 percent; over $1 million to $25 million, use 6 percent; and over $25 million, use 4
percent. Inclusion of a line item for the development of an ED&C plan may not be necessary for small operations,
such as notice-level exploration. With small, uncomplicated reclamation efforts contracting may be able to
proceed without developing an ED&C plan.
7. A contingency cost is included in the reclamation cost estimation to cover unforeseen cost elements. Calculate
the contingency cost as a percentage of the O&M cost as follows: up to and including $500,000, use 10 percent;
over $500,000 to $5 million, use 8 percent; over $5 million to $50 million, use 6 percent; and greater than $50
million, use 4 percent. Inclusion of a contingency cost may not be necessary for small, uncomplicated
reclamation.
8. For construction contracts, use 10 percent of estimated O&M cost for the contractor’s profit; exclude those
O&M costs from the calculation where contractor profit is already covered in the itemized unit costs.
9. Insurance premiums are calculated at 1.5 percent of the total labor costs. Enter the premium amount if liability
insurance is not included in the itemized unit costs.
10. Federal construction contracts exceeding $100,000 require both a performance and a payment bond (Miller
Act, 40 USC 270 et seq.). Each bond premium is figured at 1.5 percent of the estimated contract cost.
11. To estimate the contract administration cost, use 6 to 10 percent of the O&M cost. Calculate the contract
administration cost as a percentage of the O&M cost as follows: up to and including $1 million, use 10 percent;
over $1 million to $25 million, use 8 percent; and greater than $25 million use 6 percent.
12. The BLM’s indirect cost rate is a fixed 21 percent of the BLM’s contract administration costs (this calculates out
be 1.26 to 2.1 of the O&M cost).
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Figure 6.2-2 - Operator Reclamation Cost Estimate Checklist
(1 of 2)
The categories included in this checklist should be used to aid the operator in developing the Reclamation Cost
Estimate (RCE) and the BLM’s review of the RCE. Documentation supporting the calculations should be included.
Resources that may be helpful for calculating the reclamation liability include contractors estimates, quotes from
equipment rental agencies, rental rate bluebooks for heavy equipment, heavy equipment cost data manuals, and
heavy equipment performance handbooks.
1
Access roads and drill pads
a. Mobilization and demobilization.
b. Recontouring or regrading to approximate the original topography as closely as possible.
c. Removing culverts.
d. Ripping or scarifying the surface.
e. Water diversion construction.
f. Restoring or stabilizing drainage areas or streambeds.
g. Revegetation.
2
Drill hole and well abandonment
a. Mobilization and demobilization.
b. The cost of plugging, capping, and segregation of the hole from the ground water system is to be
considered. Specifically, care needs to be taken in determining plugging costs based upon whether the
hole encounters water, water under artesian pressure, or is dry.
c. The plugging cost for all holes that will be drilled before an inspection can verify proper plugging, in
addition to any drill holes that are to be left open, must be covered.
d. Plugging costs must be based on the cost as if the site were abandoned.
e. Drill holes that will be “mined through” within 6 months of drilling completion by the proposed
operation do not have to be covered by a financial guarantee, if the location is already covered by a
financial assurance for reclamation of the mining activity.
f. Water wells, monitoring wells, and piezometers are abandoned in accordance with state regulations
and are part of the RCE and financial guarantee process
3
Trenches, pits, and adits
a. Mobilization and demobilization.
b. Recontouring or regrading to approximate the original topography as closely as possible.
c. Revegetation.
d. Securing portals from public entry.
4
Waste rock dumps, overburden, and interburden storage areas
a. Encapsulating, mixing, or other engineered placement method in controlling acid rock drainage
migration.
b. Recontouring and regrading to approximate the surrounding topography as closely as possible to
enhance stability, reduce susceptibility to erosion, and facilitate efforts to establish vegetation.
c. Diverting run-on.
d. Covering with rock, clay, topsoil, other growth medium or other cover material.
e. Revegetation.
5
Dams for tailings ponds
a. Covering with rock, clay, topsoil, other growth medium or other cover material.
b. Revegetation.
c. Rendering the dam incapable of storing any mobile fluid in a quantity that could pose a threat to the
stability of the dam, or to the public safety.
d. Containment basins and water treatment facilities for leakage or outflow of effluent.
6
Impoundment for tailings
a. Regrading to promote run-off and reduce infiltration.
b. Covering with waste rock, clay, topsoil, other growth medium or other cover material.
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Figure 6.2-2 - Operator Reclamation Cost Estimate Checklist
(2 of 2)
c.
d.
e.
Revegetation.
Diverting run-off.
Containment basins and water treatment facilities for leakage or outflow of effluent.
7
Heaps from leaching
a. Cost of maintaining proper fluid management to prevent overflow of solution ponds through premature
cessation or abandonment of the operation, including the cost of a Process Fluid Inventory.
b. Rinsing, detoxification, and neutralization procedures as approved in the plan of operations.
c. Containment and treatment of outflows of residual chemicals or fluids from the heaps, including any
disposal of surplus or drain down water. Include all engineering, development, and reclamation costs.
d. Diverting run-off.
e. Regrading to enhance structural stability, promote run-off, reduce infiltration, and control erosion.
f. Covering with waste rock, clay, topsoil, other growth medium or other cover material.
g. Stabilization and revegetation.
8
Solution ponds, settling ponds, and other non-tailings impoundments
a. Backfilling and grading as approved in the plan of operations.
b. Restoring the pre-disturbance surface water regime, if appropriate.
c. Properly dispose of process pond sludge.
9
Building foundations, facilities, structures and other equipment
a. Demolishing costs to the level of the foundation and burying costs of the demolished items on site, in
conformance with applicable solid waste and HazMat disposal requirements. Concrete foundations for
most structures will need to be broken up before on site burial.
b. Salvaging and sale costs. No provision for salvage value or credit is permitted.
c. Offsite disposal costs of No. 1 above, in conformance with applicable solid waste disposal and HazMat
requirements.
d. Costs of continued use in a manner that is consistent with the proposed post mining land use.
10 Open pit mines
a. Providing for the public safety.
b. Stabilizing pit walls or rock faces where required for public safety.
c. Constructing and maintaining berms, fences, or other means of restricting public access.
d. Backfilling, if required or being considered as a requirement.
e. Costs of creating and maintaining a lake for recreational, wildlife enhancement, or other beneficial use.
f. Revegetation.
g. Treatment or mitigation of discharge waters.
11 Underground mines
a. Sealing shafts, adits, portals, and tunnels to prevent access.
b. Constructing and maintaining berms, fences, or other means of restricting access.
c. Treatment or mitigation of discharge waters.
12 Revegetation
a. Application of topsoil or other growth medium.
b. Seed bed preparation.
c. Selection of appropriate species of seeds or plants (consult BLM staff specialist).
d. Soil amendments such as fertilizers, mulches, or other compounds to assist in plant growth.
e. Planting or seeding (equipment, personnel, and cost of seeds/plants).
f. Watering as necessary to establish seedling and planting growth.
13 Site Maintenance and Site Monitoring
a. Any site monitoring costs as required by the BLM.
b. Monitoring well costs for acid rock drainage, heaps, leach fields, bioreactors, and tailings pond.
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Figure 6.2-3 - Reclamation Cost Model for Notice-Level Exploration
-Example(1 of 2)
Linear Feet of Road
at a Side Slope of:
<30%
>30%
Cost/Linear Foot
10000 Recontouring Cost <30%
$1.50
5000 Recontouring Cost >30%
$2.40
Revegetation Cost
$0.20
Acres of Non-Road
Acres
Disturbance including,
Pads, Sumps & Trenches
1.1 Recontouring Cost
Revegetation Cost
Drill Holes Open:
#/Feet
Feet of Open Holes - Wet
1400 Plugging Cost - Wet
Feet of Open Holes - Dry
600 Plugging Cost - Dry
Mobilization Cost - Wet
Mobilization Cost - Dry
$2,600.00
$600.00
Pad, Sump & Trench
Reclamation
$2,860
$660
$750.00
$750
$12.00
$4.70
Drill Hole Plugging
$16,800
$2,820
$1,350.00
$600.00
$1,350
$0
Cost/Acre
Mobilization Cost
Road Reclamation
$15,000
$12,000
$2,930
Cost/Foot
Total Reclamation Cost
$55,170
Total Labor
$16,787
Insurance
Bond
Contractor Profit
Contract Admin.
Indirect Cost Rate
1.5% of Labor Cost
3% of Contract Cost
10% of Rec. Cost
10% of Rec. Cost
21% of Contract
Admin.
$252
$0
$5,517
$5,517
$1,159
Total Administration Cost
$12,444
Financial Guarantee
Amount
$67,615
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Figure 6.2-3 - Reclamation Cost Model for Notice-Level Exploration
-Example(2 of 2)
Operation Inputs - Where applicable to the proposed operation, linear feet of road (with side slope greater than 30
percent and less than 30 percent) and acres of non-road disturbance that will need to be reclaimed, and number of
feet of open drill hole to be plugged (anticipated to intercept groundwater and not expected to intercept
groundwater) need to be entered into the spreadsheet. In this sample spreadsheet, these five data fields concerning
the Notice-level operation are shaded dark gray.
Cost Inputs and Assumptions - The cost inputs include mobilization and demobilization costs, labor, equipment, and
material costs for earthwork, revegetation, and hole plugging, and administrative costs. This spreadsheet (Excel)
was developed in 2001 and the cost inputs were last updated to reflect 2002 costs. The operating and maintenance
costs are shaded light gray in the spreadsheet.
For road reclamation with a side slope greater than 30 percent, the cost figures used in the model are based on the
use of an excavator as the primary equipment involved in recontouring. Where the side slope is less than 30 percent,
it is assumed a dozer will be the primary equipment used to recontour. The cost information for road reclamation
assumes an average road running width of 14 feet. Pad, sump, trench, and other non-road disturbances assume the
use of a dozer as the primary heavy equipment for recontouring those features.
The revegetation cost for disturbed areas assumes use of a seed mix that will result in a diverse plant community that
includes grasses, forbs, shrubs and/or trees. Such a seed mix may exceed state or local revegetation standards,
and/or may not be appropriate for all sites. The application of the seed mix assumes two passes over the disturbed
area. The first pass is to rip the surface and spread the seed, and a second pass is to drag the area.
Since drill holes are often plugged immediately after testing, the model is set up to cover the maximum number of
feet of drill hole that will be open between inspections. For drill hole plugging, a critical variable is whether the drill
hole intercepts groundwater. Plugging a wet drill hole, one that intercepts groundwater, it is assumed drilling
equipment will be required to properly plug the hole. The cost estimates for plugging wet holes assumes filling the
wet horizon with concrete grout, filling the dry horizon with bentonite, and capping the hole with a 10-foot concrete
plug. For plugging dry holes, those that do not intercept groundwater, it is assumed no specialized equipment will
be necessary. The assumption used in estimating the cost for plugging dry holes is each hole will be filled with
bentonite. The user should verify that these plugging parameters are consistent with the state requirements.
All mobilization/demobilization costs are based on the site being 150 miles from the equipment vendor. The user of
the model should be aware that these mobilization costs might vary significantly depending on the actual distance
from the site to the source of the required equipment. The model uses an average mobilization/demobilization cost
of $750 for reclaiming surface disturbances, including roads, pads, sumps and trenches. It should be noted that the
model provides for the mobilization of one piece of earthmoving equipment. If the reclamation effort will
necessitate multiple pieces of earthmoving equipment, e.g., backhoe and bulldozer, the user of the model should
include the average mobilization/demobilization cost for each additional piece of equipment. Keep in mind this type
of model is set up for fairly simple, straightforward operations. The need for multiple pieces of equipment may
indicate a more complex operation, and the user may want to consider using an alternative calculation method.
The model calculates the mobilization/demobilization cost for plugging separately. Mobilization cost for plugging
open drill holes, that are anticipated to intercept groundwater, is estimated to be $1,350. Average mobilization cost
for plugging open dry drill holes, those that are not expected to intercept groundwater, is $600. The model is set to
only use the wet hole mobilization cost should the user add values to both wet and dry drill holes entries.
Note the Total Administrative Cost is calculated using percentages of various costs. See Section 6.2.1.9 for a
discussion on how these administrative costs are determined. For this example the administrative costs represents
22.6 percent of the Total Reclamation Cost.
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A standardized reclamation cost estimating process should only be used where the operation is
similar to the types of activity and terrain profile used in establishing the standard cost inputs.
The BLM may not require the operator to use standardized inputs, schedules, spreadsheets, and
models in developing the reclamation cost estimates. A detailed engineering cost analysis is an
acceptable alternative.
Where a BLM State or District/Field Office develops a standardized reclamation cost process for
estimating the amount of the required financial guarantee for Notices or Plans, the standardized
inputs, schedules, spreadsheets, and models must be reviewed annually to ensure the cost inputs
remain current.
6.2.2 Review of Reclamation Cost Estimates
The BLM District/Field Office must review the operator’s estimate of the cost to reclaim the
operations to determine whether the estimate meets the requirements of 43 CFR 3809.552(a),
3809.552(c), and 3809.554(a).
The RCE for all Notices and Plans of Operations will be reviewed and evaluated based on the
reclamation plan prepared in accordance with the reclamation standards according to 43 CFR
3809.420. The amount of the financial guarantee must be adequate to cover the cost of all
reclamation performance standards and all reclamation and closure requirements identified in the
filed Notice or approved Plan of Operations. See Section 5.4 Performance Standards for Notices
and Plans of Operations for guidance on performance standards.
For Notice or Plan modifications, the District/Field Office’s review of the RCE should focus on
how the modification affects the existing cost estimate on file for the entire operation.
It is not BLM’s responsibility to calculate the reclamation cost for the operator. The BLM, at the
District/Field Manager’s discretion, may assist the operator in identifying costs to be included in
the estimate, and in developing the cost estimate. At the District/Field Manager’s discretion, the
BLM may independently estimate the reclamation costs for an operation. Should the operator
fail to include all costs to administer a reclamation contract, the BLM will provide this
administrative cost information.
If the BLM determines the operation, as proposed, will cause UUD, the District/Field Manager
will not make a determination as to the amount of the required financial guarantee because the
operation, as proposed, may not be authorized.
It is the BLM’s responsibility to conduct a periodic review of the RCE for ongoing operations.
As required by 43 CFR 3809.552(b) and 3809.553(b), the BLM must ensure the amount of the
required financial guarantee, including trust funds required under 43 CFR 3809.552(c), for
ongoing operations continues to meet the requirements of the regulations and all reclamation
requirements in the accepted Notice or approved Plan of Operations. Unless the operator is
proposing a modification to the Notice or Plan, the existing RCE does not reflect authorized
operations, or additional information is needed, the BLM’s review will consist of an evaluation
and update of the operator’s RCE on file. Where additional information is necessary to complete
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the review or a revised RCE is required, the District/Field Manager will direct the operator to
provide that information. BLM may find it helpful to request an updated RCE from the operator
to facilitate its review if the RCE on file is not in a readily update-able format such as an
electronic, standardized spreadsheet to which current unit costs may be readily applied. The
BLM periodic review does not necessarily require new data from the operator. Using the latest
RCE on file, the BLM is to determine if it is adequate given current labor rates, uncontrollable
costs such as fuel, etc.
If the BLM determines that the financial guarantee should be increased, the District/Field Office
must issue a decision requiring the operator to submit the required adjustment amount. If the
RCE does not require an adjustment and a decision is not issued, the authorized officer will add a
statement to the case file certifying that the review has been completed and the cost estimate(s)
and financial guarantee(s) are adequate to meet the requirements of the regulations. The decision
or certification to the case file is the supporting documentation that is required in order to enter
AC 022 - Recl Cost Det in the Legacy Rehost 2000 (LR2000) System (see Chapter 13 Records
Management).
6.2.3 Acceptance of Reclamation Cost Estimates
The District/Field Manager must notify the operator as to the acceptability of the operator’s
RCE.186
6.2.3.1 Unacceptable Review Results
If the District/Field Manager finds that the operator has incorrectly calculated reclamation
operating and maintenance costs, did not include the required administrative costs, or that the
estimate is based on out-of-date cost data that does not reflect the actual cost of reclamation, the
District/Field Office will request, in writing, the additional cost information needed from the
operator.
Where the responsible BLM District/Field Office has not been successful in having the operator
correct deficiencies in the cost estimate, the District/Field Manager will issue a written decision
to the operator as described below.
Where the RCE for a new Notice is not acceptable to the Field Office, the Notice will not be
considered complete as required under 43 CFR 3809.301.
6.2.3.1.1 Proposed Notice or Plan
When an estimate for a proposed Notice or Plan of Operations is not acceptable, the
District/Field Manager must notify the operator that the operator’s RCE is not acceptable,
identify the deficiencies or errors that led to that conclusion, and request that an acceptable RCE
be prepared. Appendix A, Template 6.2-1 Unacceptable Reclamation Cost Estimate, presents an
example of such a notification.
186
43 CFR 3809.554(b).
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6.2.3.1.2 Existing Notice or Plan
For ongoing operations, where the District/Field Office lacks the information necessary to
determine the adequacy of the existing cost estimate, the District/Field Manager must notify the
operator of the deficiencies or errors and include a due date when the information or revised
RCE must be submitted. The notification is similar to the example template for proposed
operations, (Appendix A, Template 6.2-1 Unacceptable Reclamation Cost Estimate) except there
must be a due date. Failure to provide the required information within the specified timeframe
will result in an enforcement action against the operator for failure to maintain an acceptable
financial guarantee (see Appendix A, Template 9.2-1 Noncompliance Order).
For Notices to be extended under 43 CFR 3809.333, where the District/Field Office lacks the
information necessary to determine the adequacy of the existing RCE, the District/Field Manager
must notify the operator that within 30 days from receipt of the notification all requested
information must be provided to the BLM office. The Notice will be conditionally extended
pending District/Field Office receipt of the required information. Failure to provide the required
information within the 30-day period will result in the Notice expiring.
6.2.3.2 Acceptable Review Results
When the District/Field Office receives an acceptable RCE or the District/Field Office
independently estimates the amount of the reclamation costs, the District/Field Manager must
provide the operator with a written decision (see Appendix A, Template 3.2-3 Determination of
Required Financial Guarantee Amount), as to the amount of the required financial guarantee.
The decision must state the amount of the financial guarantee to be provided ($0.50 or more
rounded up to the nearest whole dollar and less than $0.50 rounded down to the nearest whole
dollar), the types of financial instruments that are acceptable to the BLM, and that any adversely
affected party may appeal the decision on the amount of the required financial guarantee under
43 CFR 3809.800 through 3809.809. A copy of this decision must be provided to the BLM
office responsible for adjudication of the financial guarantee.
6.2.3.2.1 Existing Notice or Plan
Following the periodic review for an ongoing operation, the District/Field Manager will make a
determination as to the amount of the required financial guarantee. If there is a change in the
required amount of the financial guarantee or the review was conducted at the request of the
operator, the District/Field Manager must issue a decision as to the amount of the required
financial guarantee. For ongoing operations under an existing Notice and Plan, the decision must
state (1) the amount of the required financial guarantee, (2) any change (increase or decrease) in
the amount of the required financial guarantee, (3) that the operator has 60 days from receipt of
the decision to submit an acceptable financial guarantee if the amount has increased, and (4) that
failure to provide an acceptable financial guarantee within the specified timeframe will result in
an enforcement action against the operator for failure to maintain an acceptable financial
guarantee (see Appendix A, Template 6.2-2 Financial Guarantee Increase – Ongoing
Operations). The requirement to ensure the financial guarantee is adequate to cover all operator
obligations applies to financial guarantees under 43 CFR 3809552(a), 43 CFR 3809.552(c), and
43 CFR 3809.553.
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6.2.3.2.2 Extended Notice
For a Notice extension under 43 CFR 3809.333, where the amount of the required financial
guarantee has increased, the decision must also state that (1) the Notice is conditionally extended
subject to meeting the financial guarantee requirements, (2) failure to provide an acceptable
financial guarantee within 60 days will result in the Notice expiring immediately upon
conclusion of the timeframe, and (3) upon expiration of the Notice, all activities, other than
reclamation, are unauthorized and must cease. The Notice will expire should the operator fail to
provide the required financial guarantee within the timeframe (see Section 3.5 Expired Notice).
6.2.3.2.3 New or Modified Notice or Plan
For a new or modified Notice or Plan, the District/Field Manager’s decision must also state that
an operator may not begin operations in any areas not covered by the existing financial guarantee
without first providing the BLM with an acceptable financial guarantee that meets the
requirements of 43 CFR 3809.551 thru 3809.572. No activity greater than casual use on lands
not covered by the existing financial guarantee is authorized until the BLM has accepted and
obligated the operator’s financial guarantee. Appendix A, Template 3.2-3, Determination of
Required Financial Guarantee Amount, presents an example of such a decision.
6.2.3.2.4 Expenditure Limits
Specific line items contained in an approved RCE are not to be considered as limits of
expenditures in that respective category or task should financial guarantee forfeiture be
necessary. The line items listed are solely for the purpose of arriving at a total financial
guarantee amount. The total amount of the financial guarantee may be used if the BLM deems it
necessary to implement the approved reclamation plan, and does not represent a reclamation cost
constraint. Care should be taken to ensure that the decision on the amount of the required
financial guarantee and the financial guarantee instrument correctly reflects this policy.
6.2.3.3 Decrease in Required Financial Guarantee Amount
Where the existing amount of the financial guarantee exceeds the District/Field Manager’s
determination as to the amount of the required financial guarantee, the operator may request the
BLM to decrease the amount required to cover all reclamation costs. Any request by the
operator for a reduction in the amount of the financial guarantee must be made in writing to the
BLM office responsible for adjudicating the financial guarantee.
6.2.4 Periodic Reviews
The BLM must provide a periodic review of reclamation cost estimates for all ongoing
operations.187 The periodic review by the District/Field Office ensures that the current RCE and
the amount of the required financial guarantee continue to meet the requirements of 43 CFR
187
43 CFR 3809.552(b).
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3809.552(a), 3809.552(c), and 3809.554(a). The periodic review is subject to the same
requirements as the original review of the RCE. See Section 6.2.2 Review of Reclamation Cost
Estimates for the District/Field Office’s review requirements. Where a financial guarantee is
deemed to be inadequate, the authorized officer must take action to rectify the situation.
6.2.4.1 Review Periods
Inflation can, over time, become a significant factor in the amount of the required financial
guarantee. To minimize the potential impact inflation can have on the amount of the financial
guarantee needed to cover the current reclamation cost, the District/Field Office must review, on
a periodic basis, the cost estimates for all ongoing operations. The maximum time period the
BLM may allow to elapse between reviews is specified below.
6.2.4.1.1 Notices
Reclamation cost estimates for Notice operations must be reviewed at time of extension under 43
CFR 3809.333, i.e. every 2 years.
6.2.4.1.2 Plans of Operations
Reclamation cost estimates for Plans of Operations, including any funding mechanism
established under 43 CFR 3809.552(c), must be reviewed at least every 3 years.
6.2.4.1.3 State Requirements
Where the BLM has an agreement under 43 CFR 3809.200 with the state that requires a review
more frequently than every 2 years for Notices and/or every 3 years for Plans of Operations,
reviews must be conducted in conformance with that agreement.
6.2.4.1.4 Modifications
Where the Notice or Plan of Operations is modified, a review must be conducted at the time of
modification. The RCE review will focus on how the modification affects the existing cost
estimate on file. The review need not be for all aspects of the operation. However, unless the
cost estimate for the entire operation is reviewed, the review for the Notice or Plan modification
does not substitute for the required 2-year review for a Notice or 3-year review for a Plan of
Operations.
6.2.4.1.5 Phased, Partial or Incremental Coverage
Where the financial guarantee is for a part of the operations, as provided under 43 CFR
3809.553, the BLM must review the RCE at least annually. The District/Field Office review
must cover the RCE for each increment of the operations.
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6.2.4.1.6 Trust Funds
At least every 3 years, or according to the schedule set forth in the documents establishing the
trust fund if more frequent, the District/Field Office must conduct a thorough review of the cost
estimates and other assumptions used in determining the amount of funds needed in the longterm funding mechanism. As part of the review, the District/Field Office must adjust, as
necessary, the cost estimates and other assumptions used in determining the amount of funds
needed in the long-term funding mechanism (see Section 6.3.4.3 Cost Estimate and Section
6.3.4.7 Monitoring the Fund).
The District/Field Office must also monitor the growth of all trust funds. At least once a year,
the responsible District/Field Office must review the financial statements to ensure growth of the
fund is keeping pace with the assumptions used to determine the amount needed in the fund.
Based on this annual review, the funding level in the trust fund must be increased when the
growth of the available funds is not keeping pace with the amount needed to address all
anticipated post-reclamation obligations.
6.2.4.2 Monitoring
The BLM has the authority under 43 CFR 3809.552(b) and 3809.553(b) to review the RCE more
frequently than the above schedule at the discretion of the District/Field Manager. The manager
should perform these reviews whenever becoming aware of significant changes to the site
conditions and should monitor the adequacy of the RCE through the inspection program.
6.2.4.3 Review Results
If there is a change in the required amount of the financial guarantee or the review was
conducted at the request of the operator, the District/Field Manager must issue a decision as to
the amount of the required financial guarantee, with a copy to the BLM office responsible for
adjudicating financial guarantees, as to the amount of the change in the required financial
guarantee. A written decision (see Appendix A, Template 3.2-3 Determination of Required
Financial Guarantee Amount) will be issued any time there is a change in the amount of the
required financial guarantee as a result of the review or the review was conducted at the request
of the operator. This requirement applies to financial guarantees under 43 CFR 3809.552(a),
3809.552(c), and 3809.554(a).
6.2.4.3.1 Increasing the Financial Guarantee
Where necessary, the amount of the required financial guarantee, including any long-term
funding mechanism that may have been established, must be adjusted to cover all estimated
reclamation costs, including adjustments necessary to account for the effect of inflation on the
operation, maintenance, and administration costs. The District/Field Manager must provide the
operator with a written decision as to the amount that the required financial guarantee will be
increased (see Appendix A, Template 6.2-2 Financial Guarantee Increase – Ongoing
Operations). The decision must state that the operator has 60 days from receipt of the decision to
increase the financial guarantee amount and that failure to provide an acceptable financial
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guarantee in the new amount within the specified timeframe will result in enforcement action(s)
under 43 CFR 3809.601. See Section 6.2.3.2 Acceptable Review Results for specific guidance
on what must be included in that decision. A copy of the decision must be transmitted to the
BLM office responsible for adjudicating financial guarantees.188
6.2.4.3.2 Decreasing the Financial Guarantee
Where it is determined the amount of the existing financial guarantee exceeds the amount
required to cover all reclamation costs, the operator may request the BLM reduce the amount of
the required financial guarantee. Any request by the operator for a reduction in the amount of
the existing financial guarantee must be made to the BLM office responsible for adjudicating the
financial guarantee. See BLM Handbook H-3809-2, Surface Management Bond Processing, for
further guidance pertaining to the reduction and release of financial guarantees.
6.2.4.3.3 No Change in the Financial Guarantee
If the RCE does not require an adjustment in the required financial guarantee amount, i.e., a
decision is not issued, the authorized officer will add a statement to the case file certifying that
the cost estimate(s) and financial guarantee(s) have been reviewed in conformance with review
periods described below, and the estimate(s) and guarantee(s) continue to meet the requirements
of the regulations.
6.3 Types of Financial Guarantees
The regulations allow for individual, blanket, and state-approved financial guarantees.189
6.3.1 Individual Financial Guarantees
The operator may provide an individual financial guarantee that covers the reclamation costs for
a single Notice or Plan of Operations. The specific requirements of an individual financial
guarantee are provided under 43 CFR 3809.552 through 3809.556.
6.3.1.1 Single Notice or Plan of Operations
An operator must post a financial guarantee in the amount sufficient to allow the BLM to
contract with a third party to reclaim the operations, including all BLM costs to administer the
reclamation contract, according to the reclamation plan for that operation.190 In addition, the
amount of the financial guarantee must cover any interim stabilization and infrastructure
maintenance costs needed to maintain the area of operations in compliance with applicable
environmental requirements while contracts are developed and executed. The individual
financial guarantee must be obligated by the BLM before operations may commence (see BLM
Handbook H-3809-2, Surface Management Bond Processing).
188
Note: The adjudication office will automatically obligate bond monies for a required increase, if an uncommitted
balance exists under the bond(s) already providing for reclamation coverage of the operation(s).
189
43 CFR 3809.551.
190
43 CFR 3809.552(a).
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6.3.1.2 Phased Partial or Incremental Financial Guarantees
Under the provisions at 43 CFR 3809.553, the District/Field Manager may allow an operator to
provide a financial guarantee that covers a part of the operations if the operations do not go
beyond what is specifically covered by the phased financial guarantee and the phased financial
guarantee covers all reclamation and operational costs for the proposed operations within the
incremental area of operations as required by 43 CFR 3809.552(a) and 3809.554(a). However,
in addition to the RCE for a particular phase of an operation, the RCE for the entire proposed
operations must still be established by the District/Field Office.
6.3.1.3 Acceptable Financial Instruments
The operator may use any of the instruments listed under 43 CFR 3809.555 for an individual
financial guarantee, provided that the BLM determines that the instrument is acceptable and
meets the laws and regulations within the state where the operations are proposed. Financial
instruments that an operator may submit for adjudication include:
Surety bonds that meet the requirements of Treasury Department Circular 570.191
Cash, or other guaranteed remittance, in an amount equal to the required dollar amount of
the financial guarantee, to be deposited and maintained in a Federal depository account of
the United States Treasury by the BLM.
Irrevocable letters of credit from a bank or financial institution organized or authorized to
transact business in the United States.
Certificates of deposit or savings accounts (fixed accounts only) not in excess of the
maximum insurable amount as set by the Federal Deposit Insurance Corporation.
Any of the following securities having a market value of not less than the required dollar
amount of the financial guarantee and maintained in a Securities Investors Protection
Corporation insured trust account by a licensed securities brokerage firm for the benefit
of the Secretary of the Interior, acting by and through the BLM:
• Negotiable United States Government securities or bonds.
• State and Municipal securities or bonds having a Standard and Poor’s rating of
AAA or AA or an equivalent rating from a nationally recognized securities rating
service.
• Investment-grade rated debt securities having a Standard and Poor’s rating of
AAA or AA or an equivalent rating from a nationally recognized securities rating
service.
191
http://www.fms.treas.gov/c570/c570.html.
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Insurance, if its form and function is such that the funding or enforceable pledges of
funding are used to guarantee performance of regulatory obligations in the event of
default on such obligations by the operator. Insurance must have an A.M. Best rating of
“superior” or an equivalent rating from a nationally recognized insurance rating service.
Before accepting any insurance policy as a financial guarantee for a mining operation
under 43 CFR 3809, you must consult with the Solicitor's Office.
6.3.1.3.1 Securities
If the operator chooses to use debt securities listed above in satisfaction of financial guarantee
requirements, the operator must provide the BLM office responsible for adjudicating financial
guarantees, before beginning operations and by the end of each calendar year thereafter, a
certified statement describing the nature and market value of the instruments maintained in that
account including any current statements or reports furnished by the brokerage firm to the
operator or mining claimant concerning the asset value of the account. Specific requirements
concerning the use of securities are found at 43 CFR 3809.556, also see BLM Handbook H3809-2, Surface Management Bond Processing.
6.3.1.4 Acceptance of Individual Financial Guarantees
The BLM office responsible for adjudicating financial guarantees must provide the
operator/bond principal with a written decision as to the acceptance and obligation of the
financial guarantee. See BLM Handbook H-3809-2, Surface Management Bond Processing, for
further guidance pertaining to the acceptance and obligation of financial guarantees.
6.3.2 Blanket Financial Guarantees
The operator may provide a blanket financial guarantee to cover the reclamation costs for more
than one Notice and/or Plan of Operations. A blanket financial guarantee must cover the total
cost of reclamation for all operations covered by the blanket financial guarantee. Coverage from
a blanket financial guarantee may be statewide or nationwide.
6.3.2.1 Reclamation Costs for Multiple Operations
The operator must prepare separate reclamation cost estimates for each of the Notices and Plans
of Operations to be covered by the blanket financial guarantee. The reclamation cost estimates
must cover all reclamation and operational costs as required by 43 CFR 3809.552(a) and
3809.554(a) for each operation, and, as required by 43 CFR 3809.554(b), the reclamation cost
estimates must be acceptable to the District/Field Manager.
6.3.2.2 Acceptance of Blanket Financial Guarantees
When Notices and/or Plans of Operations are to be covered by a statewide or nationwide
financial guarantee, an operator must submit the financial guarantee to the BLM office
responsible for adjudicating statewide or nationwide financial guarantees. The amount of the
blanket financial guarantee submitted by the operator may be in excess of the total reclamation
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cost for all Notices and/or Plans of Operations to be covered by the blanket financial guarantee to
allow for future operations or increased reclamation cost estimates on existing operations. The
BLM office responsible for adjudicating financial guarantees will, however, only obligate an
amount from the bond equal to the required financial guarantee amount for a particular
operation. The amount of financial guarantee must cover, at a minimum, the total reclamation
cost for all Notices and/or Plans of Operations to be covered by the blanket financial guarantee.
The BLM will accept a blanket financial guarantee, if it is determined that its terms and
conditions satisfy the regulations using the same analysis described above. Any decision by the
BLM concerning the acceptability of a blanket financial guarantee must be provided to the
operator in writing. See BLM Handbook H-3809-2, Surface Management Bond Processing, for
further guidance pertaining to the acceptance and obligation of blanket financial guarantees.
6.3.3 State Approved Financial Guarantees
The operator may provide evidence of an existing state-approved financial guarantee that meets
the requirements of the regulations and covers the reclamation costs for the Notice or Plan of
Operations. The specific regulatory requirements for using a state-approved financial guarantee
are provided under 43 CFR 3809.570 through 3809.573.
6.3.3.1 Acceptable State Approved Financial Guarantees
To be acceptable to the BLM, the state-approved financial guarantee must be redeemable by the
Secretary, acting by and through the BLM. The financial guarantee must be held or approved by
a state agency for the same operations covered by the Notice(s) and/or Plan(s) of Operations, and
the amount of the state-approved financial guarantee must be sufficient to meet the requirements
of 43 CFR 3809.552(a) and 3809.554(a).
Subject to certain requirements,192 to be acceptable to the BLM, the state-approved financial
guarantee may only include the following forms:
The financial instruments listed under 43 CFR 3809.555.
Participation in a state bond pool.
Existing corporate guarantees applied by the BLM to an approved Plan of Operations on
public lands as of January 20, 2001, and under certain restrictions.
6.3.3.1.1 State Bond Pool
Participation in a state bond pool is acceptable if the state agrees that, upon the BLM’s request,
the state will use part of the pool to meet reclamation obligations on public lands, and the BLM
State Director determines that the state bond pool provides the equivalent level of protection as
192
43 CFR 3809.570 and 3809.574.
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that required by the regulations.193 In determining if a state bond pool provides the equivalent
level of protection required by regulation, the State Director must consider available financial
assets in the pool, in addition to any financial obligation the state has should the bond pool
become insolvent. A determination by the State Director that the bond pool provides the
equivalent level of protection does not necessarily require the pool have sufficient funds
available to cover all operations participating in the state bond pool.
The State Director’s determination that the state bond pool will provide sufficient financial
assurance should be coordinated with the appropriate Federal and state agencies, and any
decision must be documented and made available to the public. The form of public disclosure
will be at the discretion of the State Director and suitable to the situation considering the public
interest.
6.3.3.1.2 Corporate Guarantee
Only a corporate guarantee that was accepted by the BLM and applied to an approved Plan of
Operations on public lands under an approved BLM and state agreement on
January 20, 2001, subject to the restrictions on corporate guarantees in 43 CFR 3809.574, may
continue in effect. The financial guarantee coverage provided by the corporate guarantee:
Only continues for that portion of the operation that it applied to as of January 20, 2001.
May not be applied to new operations, or modified or expanded portions of existing
operations after January 20, 2001.
May not be transferred to another portion of the same operation, another operation within
the corporate organization, or another operator.
May not increase existing corporate guarantees after January 20, 2001, or apply any new
corporate guarantees after January 20, 2001.
The State Director has a responsibility to ensure the viability of financial guarantee coverage
provided by the corporate guarantee and to reduce the risk associated with corporate guarantees.
If the state revises existing corporate guarantee criteria or requirements that apply to a corporate
guarantee existing on January 20, 2001, the BLM State Director will review the revisions to
ensure that adequate financial coverage continues.
The State Director is also directed to conduct periodic reviews of financial guarantees, including
any corporate guarantees, under 43 CFR 3809.552(b) to ensure adequate financial coverage.
This review is to include the adequacy of the guarantee. If the BLM State Director determines it
is in the public interest to do so, the State Director may terminate a corporate guarantee and
require an acceptable replacement financial guarantee after due notice and a reasonable time to
obtain a replacement is given the operator. A State Director decision to terminate the use of
corporate guarantees is subject to appeal under the provisions of 43 CFR 3809.800 through
3809.809.
193
43 CFR 3809.571(b).
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6.3.3.2 Unacceptable State Approved Financial Guarantees
If the BLM determines that the existing state-approved financial guarantee does not meet the
requirements of the regulations, the BLM will issue a decision notifying the operator to provide
the BLM with an acceptable financial instrument.194
The State Director will issue the decision to the operator and the state within 30 calendar days of
the BLM’s receipt of the evidence of state-approved financial guarantee. The decision will
contain a complete explanation of the reasons for the rejection and require an acceptable
financial guarantee at least equal to the amount of the rejected financial instrument before
commencing or continuing operations. The BLM office responsible for adjudicating financial
guarantees will send the decision by certified mail, return receipt requested, or delivery process,
including registered mail or courier service. Decisions as to the unacceptability of a stateapproved financial guarantee are subject to appeal under the provisions of 43 CFR 3809.800
through 3809.809.
6.3.3.3 State Demand against the Financial Guarantee
When the state makes a demand against an operator’s state-approved financial guarantee, thereby
reducing the available balance, the operator must notify the BLM office responsible for
adjudicating financial guarantees, and replace or augment the financial guarantee if the available
balance is insufficient to cover the remaining reclamation and operational costs required by 43
CFR 3809.552(a) and 3809.554(a).195 Where the BLM has an agreement under 43 CFR
3809.200 with the state that addresses state-approved financial guarantees, the BLM should also
receive notice from the state when the state makes a demand against a state-approved financial
guarantee that applies to public lands.
As required by regulation, the operator notification must be in writing to the BLM office
responsible for adjudicating financial guarantees within 15 calendar days of the state’s action.
The notification must provide the BLM with information concerning the demand, the resulting
reclamation, and a revised RCE. Within 30 calendar days, the operator must provide the BLM
office responsible for adjudicating financial guarantees with an acceptable financial guarantee to
ensure all reclamation and operational liabilities are covered.
See BLM Handbook H-3809-2, Surface Management Bond Processing, for further guidance
pertaining to the BLM’s responsibilities when state-approved financial guarantees are accepted.
6.3.4 Trust Funds or Other Funding Mechanisms
The regulations at 43 CFR 3809.552(c) allow the BLM to require an operator to establish a trust
fund or other funding mechanism available to the BLM to ensure the continuation of any longterm, post-mining treatment or maintenance requirements. The BLM District/Field Manager
responsibilities include determining the need for a long-term funding mechanism, identifying the
specific long-term corrective actions, verifying the operator’s cost estimate to carry out those
corrective actions, establishing the amount of funds needed in the long-term funding mechanism,
194
195
43 CFR 3809.572.
43 CFR 3809.573.
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and, once established, monitoring the terms, conditions, and performance of the long-term
funding mechanism. The District/Field Manager is the BLM official who establishes the
agreement with the operator covering the funding mechanism.
When the District/Field Manager identifies a need through the process outlined below, the
operator must establish an acceptable trust fund or other funding mechanism that meets the
requirements of the regulations.196 The fund must be adequate to provide for construction, longterm operation, maintenance, or replacement of any treatment facilities and infrastructure, for as
long as the treatment and facilities are needed after mine closure.
6.3.4.1 Requiring a Trust Fund
The purpose of a trust fund or other long-term funding mechanism is to guarantee the
continuation of post-mining treatment to achieve water quality objectives and for other longterm, post-mining maintenance requirements. The District/Field Manager decides whether a
trust fund is needed on a case-by-case basis. In determining whether a trust fund or other
funding mechanism will be required, the manager should consider the following factors:
The anticipated post-reclamation obligations as identified in an environmental document
and/or plan approval for the operation.
The reasonable degree of certainty that the obligations will occur based on accepted
scientific evidence and/or models.
The operator’s financial responsibility for those obligations.
The feasibility, practicality, and/or desirability of requiring a financial guarantee for those
anticipated long-term post-reclamation obligations using an individual financial
guarantee,197 blanket financial guarantee198 or state-approved financial guarantee.199
The determination that a trust fund is needed and/or the amount needed in the fund may occur
during review of the proposed operation or later. Identification of the need for such a fund after
the operation has been approved does not necessarily require the District/Field Manager to revisit
the original decision authorizing the operation. As part of ongoing monitoring and inspection
activities, the manager may identify the need for such a funding mechanism after the operation
has been reviewed and approved. For example, as part of a requested release of a financial
guarantee under 43 CFR 3809.590, the District/Field Manager may condition final release of the
individual, blanket or state-approved financial guarantee for a portion of the project area on the
operator establishing a trust fund to pay for ongoing treatment of effluent discharged from that
area.200
196
43 CFR 3809.552(c).
43 CFR 3809.552(a).
198
43 CFR 3809.560(a).
199
43 CFR 3809.570.
200
43 CFR 3809.591(c)(2).
197
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Any decision concerning the need, amount, acceptability, and/or forfeiture of a financial
guarantee, including a trust fund or other funding mechanism, is part of the BLM’s compliance
and enforcement program, and not an authorization to conduct operations. All decisions
concerning the need, amount, acceptability, and forfeiture of a trust fund are subject to appeal
under the provisions of 43 CFR 3809.800 through 3809.809.
6.3.4.1.1 Water Quality Issues
If the environmental document and/or plan approval for an operation identifies potential
discharge of acid rock drainage, a pit lake that may not meet water quality standards or similar
issues that would require long-term water treatment, the District/Field Manager must require a
financial guarantee to address those obligations. The establishment of a trust fund or other
funding mechanism may be the most practical means to guarantee the future long-term costs of
those obligations.
6.3.4.1.2 Other Post-Reclamation Obligations
The BLM’s use of the provisions at 43 CFR 3809.552(c) is not limited to long-term water
treatment. If BLM has identified other post-reclamation obligations and the District/Field
Manager determines that the financial responsibility for those obligations rests with the operator,
the use of a trust fund or other funding mechanism may also be appropriate. For example, if the
Plan approval requires the construction and maintenance of a permanent safety fence to limit
public access to a highwall after mine closure, the most practical way to guarantee the funding of
the maintenance and replacement costs for that fence may be through a trust fund or similar
funding mechanism.
6.3.4.1.3 Unanticipated Events
District/Field Managers should not use 43 CFR 3809.552(c) to require an operator to establish a
fund to address unanticipated events before or after reclamation, such as accidents, failures, or
spills, or for worst-case scenarios. If an event occurs that creates a new reclamation obligation,
the BLM will require the operator to adjust the financial guarantee upward accordingly to cover
the new obligation. Moreover, these events have a low probability of occurrence and are best
addressed by a thorough review of the Plan of Operations, the development of mitigation
measures, and an active inspection program.
6.3.4.2 Reclamation Plan
Any post-reclamation obligations covered by the long-term funding mechanism must be
described in the approved Plan of Operations. If the District/Field Manager determines the
operator is responsible for post-reclamation obligations not described in the original reclamation
plan, the manager will direct the operator to submit a modification to the Plan of Operations
covering those obligations. The manager must review and approve the Plan of Operations to
ensure all reclamation and closure obligations and corrective actions are adequately addressed.
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6.3.4.3 Cost Estimate
When a trust fund or other funding mechanism is required to guarantee post-reclamation
obligations, the operator must provide the District/Field Office with a cost estimate for the
monitoring, construction, operation, maintenance, replacement, or other activities for those
required facilities, treatment, or other post-reclamation needs documented in the Plan of
Operations. The operator’s estimate must also project when the cost obligations will occur and
for reoccurring costs, such as maintenance of a water treatment facility, the frequency, timing,
and duration of the obligation must be estimated for each cost component.
6.3.4.3.1 Coverage
The operator’s cost estimate must cover all anticipated costs, including the BLM’s
administration costs, as if the BLM were hiring a contractor to perform the work if the operator
has vacated the project area and fails to comply with these obligations (see Section 6.2
Reclamation Cost Estimates). In addition to the operational, maintenance, and administrative
costs, the operator must estimate any other costs associated with maintaining the long-term
funding mechanism, including trust management or administration fees and any taxes that may
come due. The amount of the estimated trust management fees must reflect the BLM’s cost to
obtain those services. The long-term funding mechanism must be sufficiently funded to cover all
trust management fees, any applicable taxes, and any other costs that may be identified or
become applicable should the operator not be available to pay these costs.
6.3.4.3.2 Review
The BLM will review cost estimates for the post-reclamation obligations in the same manner and
detail that is used in estimating financial guarantees for reclamation obligations. The cost
estimates for the post-reclamation obligations must be acceptable to the District/Field Manager.
6.3.4.3.3 Present Value Determination
To establish the amount of funds that need to be invested, the future operational, maintenance,
and administrative costs need to be stated as a present value for the year the account will be
established and start growing in value. A standard present value analysis needs to be performed.
Appendix B - Present Value Determination provides guidance to aid in estimating the amount of
funds that need to be deposited to meet the estimated future costs.
6.3.4.4 Trust Fund Agreement
Once the District/Field Manager determines that a trust fund is necessary and has reviewed the
cost estimate, the District/Field Manager directs the operator to prepare the documents needed to
establish the trust fund or other funding mechanism to ensure the funds are available to the BLM
to meet all identified post-reclamation obligations should the operator fail to perform the
required monitoring, construction, operation, maintenance, replacement, or other activities. The
agreement establishing the fund must provide that its purpose is to assure that post-reclamation
obligations identified in the Plan of Operations are satisfied; that the funding mechanism is under
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BLM’s control, including approval of any disbursement of funds from the trust fund, approval of
the types of investments used, and the fund management entity; and that the fund is isolated from
the effects of any potential operator bankruptcy. Any such agreement must be enforceable by the
BLM as a regulatory obligation under 43 CFR 3809.
Within the limits of the allowable financial instruments established by the BLM for the trust
fund, the agreement will specify that the operator/grantor is responsible for advising the trustee
on any required investment decisions. As it is the operator’s responsibility to ensure the trust
fund is performing as established, the operator has a vested interest in identifying the appropriate
financial instruments.
6.3.4.4.1 Release of Funds
In setting up the funding mechanism, the agreement must address the BLM’s authority to release
funds to reduce the operator’s bond liability when the operator performs the post-reclamation
obligations identified in the reclamation plan. Where the operator performs the construction,
long-term operation, maintenance, or replacement of any treatment facilities and infrastructure
required in the reclamation plan for the approved Plan of Operations, funds held in the funding
mechanism for those specific tasks may be released to the operator. Any release of funds to the
operator based on work performed must be supported by written documentation of costs being
presented to the BLM, and the District/Field Manager’s approval of such costs as reasonable.
However, no such release will be allowed if the remaining funds would be insufficient to fully
cover unsatisfied post-reclamation obligations.
The agreement must also define how the District/Field Manager would decide when the fund is
no longer needed or that the amount in the fund may be reduced, and include provisions allowing
for the return of funds to the operator.
6.3.4.4.2 Release of Liability
Creation of a trust fund or other funding mechanism to guarantee certain long-term post-mining
responsibilities are performed does not relieve or release the operator from his or her
responsibilities to perform those treatment or maintenance obligations identified in the BLM
decision document approving the operation. As required by 43 CFR 3809.424(b), the operator’s
reclamation and closure obligations continue until satisfied.
In addition, any release or termination of the trust fund does not release or waive any claim the
BLM, or other persons, may have against any person under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (CERCLA), as amended,201 or under any
other applicable statutes or regulations.202
201
202
42 U.S.C. 9601 et seq.
43 CFR 3809.592(b).
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6.3.4.4.3 Solicitor Review
The responsible District/Field Manager or State Director should submit the draft trust fund
agreement to the Field or Regional Solicitor’s office for a legal review to ensure the
government’s and public’s interests are protected before any decision accepting the agreement is
made.
6.3.4.4.4 Establish the Agreement
The District/Field Manager must be the official signing the trust fund agreement for the BLM.
6.3.4.5 Acceptable Financial Instruments for Trust Funds
The regulations at 43 CFR 3809.555 define what are acceptable financial instruments for
individual financial guarantees under 43 CFR 3809.552(a), but does not govern funding
mechanisms under 43 CFR 3809.552(c). The State Director may limit the allowable financial
instrument for a trust fund or other financial mechanism established under 43 CFR 3809.552(c)
to those listed under 43 CFR 3809.555, or may choose to allow other financial instruments to be
used.
If the State Director allows the use of other financial instruments not listed under 43 CFR
3809.555, he or she must document and make available to the public the decision and criteria
used for accepting financial instruments not listed under 43 CFR 3809.555. Examples of
financial instruments that may be deemed appropriate by the State Director for a long-term
funding mechanism are stocks (equities) and fix income instruments (debt securities or bonds).
Allowable equity market instruments might include stock funds or stock index funds, but not
individual stocks. Individual corporate and government bonds are provided for under 43 CFR
38009.555(e); however, a bond fund or bond index funds may also be an appropriate instrument
for a trust fund. Under no circumstance may the long-term funding mechanism include direct
investment in the operator’s or the parent company’s stocks or bonds, or assets of the operator,
parent company, or affiliates. In addition, the asset mix of the funding mechanism may not
include real property, equipment, or other assets not easily convertible into cash.
In establishing the agreement, the District/Field Manager must determine the extent, if any, the
financial instruments not listed under 43 CFR 3809.555 will be allowed for each trust fund being
established. However, the use of stock market instruments may not exceed 70 percent of the
trust fund’s asset mix.
A critical consideration in how much stock market exposure is acceptable is the anticipated or
projected time period before funds will be needed to address post-closure obligations. For
example, with a relatively short time horizon before the funds are expected to be needed, the
market fluctuations associated with the stock market may be a concern and the District/Field
Manager may choose to limit the use of stock market instruments to less than that 70 percent
threshold.203
203
The logic is similar to the advice given for retirement planning. Generally financial advisors suggest a high
percentage of fix income instruments in a retirement fund the closer an individual gets to retirement.
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6.3.4.6 Funding the Trust
The District/Field Manager may require the trust fund or other funding mechanism be fully
funded to meet all future obligations when the operation is authorized. If so required, the amount
needed in the fund must equal the present value of all future costs to be covered by the fund.
The manager may also allow the fund to be established with the operator depositing, over a
period of time, the funds needed to address the post-reclamation obligations. Where the activity
that creates the long-term liability is allowed to proceed before the long-term funding mechanism
is fully funded, the agreement must specify the funds or securities that must be deposited on an
annual basis to ensure the fund will be fully funded within the timeframe established in the
agreement. In addition, the operator will be required to guarantee the funding of these phased
payments through establishment of a surety bond or other financial instrument. The long-term
funding mechanism must, however, be fully funded by the time the post-mining effects of the
mining activity are expected to occur.
6.3.4.7 Monitoring the Fund
Although the establishment of a trust fund or other funding mechanism under 43 CFR 3809 may
only be required to ensure the continuation of post-mining treatment, maintenance, and other
requirements that are anticipated, those obligations are in the future and may change significantly
over the course of developing and reclaiming the operation. Any decision concerning the need
for the fund and/or the amount of money in the fund must reflect the best available information
and management practices at that time. When conditions change, the District/Field Manager has
a responsibility to promptly take corrective actions, including reviewing the decision to establish
the fund, adjusting the amount of money required in the fund, and revising the assumptions
concerning growth of the fund.
6.3.4.7.1 Periodic Reviews
As part of the periodic review of the RCE required by 43 CFR 3809.552(b) (see Section 6.2.4
Periodic Reviews), the District/Field Manager must ensure the adequacy of any funding
mechanism established under 43 CFR 3809.552(c). Monitoring the operation, specifically the
extent, nature, and cost to address anticipated post-reclamation obligations, is a critical aspect of
any long-term funding mechanism. The District/Field Office must conduct, at least every 3
years, a thorough review of the cost estimates and other assumptions used in determining the
amount of funds needed in the long-term funding mechanism.
Mine inspections, performed by the District/Field Office, should identify any deviations from the
mine plan, which formed the basis of the trust amount. When identified, the trust fund cost
estimate must be updated.
The District/Field Office must also monitor the growth of the fund. At least once a year the
responsible District/Field Office must review the financial statements to ensure growth of the
fund is keeping pace with the assumptions used to determine the amount needed in the fund.
Based on this annual review, the funding level in the trust fund must be increased when the
growth of the available funds is not keeping pace with the amount needed to address all
anticipated post-reclamation obligations.
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6.3.4.7.2 Insufficient Funds
Where a deficiency is identified in the adequacy of the fund to meet future obligations, the
District/Field Manager must take the necessary actions, including issuing a decision revising the
amount required in the fund (see Appendix A, Template 6.2-2 Financial Guarantee Increase –
Ongoing Operations). Should the operator fail or refuse to make additional payments to cover
the deficiency, the District/Field Manager will take enforcement actions under 43 CFR 3809.601
and 3809.602 to ensure adequate funds are available to guarantee those future obligations will be
performed.
6.3.4.7.3 Unneeded Funds
If the review of the cost estimate and fund performance demonstrates that all or a part of the fund
may be released and the operator requests such a release, the District/Field Manager, following
the procedures set forth in the trust fund agreement, must take the necessary steps to have all
funds in excess of those needed to address all post-reclamation obligations released to the
operator.
6.3.4.8 Non-Public Lands
Where the trust fund is to cover post-reclamation obligations on non-public lands, the state
agency with jurisdiction over mine reclamation and monitoring may be a party to the Trust Fund
Agreement.
6.4 Financial Guarantee Replacement or Reduction
6.4.1 Duration of Coverage
The operator must maintain an acceptable financial guarantee until the operator, or a new
operator, replaces it with another financial guarantee that the BLM has determined to be
acceptable, or until District/Field Manager releases the requirement to maintain the financial
guarantee after the operator has completed reclamation of the operation, according to the
requirements of the reclamation plan and the requirements of 43 CFR 3809.320 for a Notice or
43 CFR 3809.420 for a Plan of Operations.204
6.4.2 Replacement Financial Guarantee
The operator or a new operator may request the BLM to accept a replacement financial
instrument at any time after the approval of an initial instrument. The BLM office responsible
for adjudicating financial guarantees has 30 calendar days to review the offered replacement
instrument for adequacy. The criteria and requirements for determining the adequacy of the
replacement financial guarantee are the same as for a new financial guarantee (see BLM
Handbook H-3809-2, Surface Management Bond Processing).
204
43 CFR 3809.582.
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Within 30 calendar days, the BLM must notify the operator of its decision regarding the
replacement financial instrument by certified mail, return receipt requested, registered mail, or
courier. Any decision to reject a request for a replacement financial guarantee must contain a
complete explanation of the reasons for the rejection as well as language regarding appeals.205
If for some reason a surety bond is no longer in effect, the surety or other responsible third party,
such as a state bond pool, is not released from an obligation that accrued while the surety bond or
other coverage was in effect unless the operator submits, and the BLM accepts, an adequate
replacement guarantee that covers the obligations under the previous surety bond.206 A surety
cannot unilaterally terminate liability for obligations that accrued while the bond was in effect.
See BLM Handbook H-3809-2, Surface Management Bond Processing, for further guidance
pertaining to coverage of financial guarantees.
6.4.3 Reduction of Financial Guarantee
When the operator has completed all or any portion of the reclamation of the operations in
accordance with the Notice or approved Plan of Operations, the operator may notify the
District/Field Office that the reclamation has occurred and request a reduction in the amount of
the required financial guarantee and/or BLM approval of the adequacy of the reclamation.207
Based on the operator request, the BLM District/Field Office will promptly inspect the reclaimed
portion of the operation.208 The District/Field Manager will notify the operator, in writing, as to
the date and time of the inspection and encourage the operator to accompany the BLM inspector.
Based on the inspector’s findings and the provisions of 43 CFR 3809.591, the District/Field
Manager will provide the operator with a written determination as to the adequacy of the
reclamation, and a restatement of the RCE and amount of the required financial guarantee (see
Appendix A, Template 6.4-1 Required Financial Guarantee Amount - Reduction).
Where the amount of the existing financial guarantee exceeds the amount of the cost estimate to
reclaim the operation, the operator may request the BLM release or reduce the amount of the
obligated financial guarantee. Any request by the operator for a reduction in the amount of the
existing financial guarantee must be made in writing to the BLM office responsible for
adjudicating the financial guarantee. See BLM Handbook H-3809-2, Surface Management Bond
Processing, for guidance pertaining to the reduction/release of financial guarantees. The
District/Field Manager will not authorize a reduction in the RCE in situations where the BLM
has not conducted a periodic review as required under 43 CFR 3809.552(b) or 3809.553(b). See
review requirements in Section 6.2.4 Periodic Reviews. Any request by the operator for a
reduction in the amount of the financial guarantee must be made to the BLM office responsible
for adjudicating the financial guarantee.
205
43 CFR 3809.581(a).
43 CFR 3809.581(b).
207
43 CFR 3809.590(a).
208
43 CFR 3809.590(b).
206
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6.4.3.1 Reduction Limits
The regulations at 43 CFR 3809.591 prescribe specific limits to the amount of the financial
guarantee that may be reduced when an operator has completed a portion of its reclamation
obligations and requests a release or reduction in the required financial guarantee. The release
process is illustrated in Figure 4.2-6 Plan of Operations—Closure and Required Financial
Guarantee Release Process.
The BLM may release up to 60 percent of the required financial guarantee for a portion of the
project area when the District/Field Manager determines that the operator has successfully
completed backfilling, regrading, establishment of drainage control, and stabilization and
detoxification of leaching solutions, heaps, tailings, and similar facilities on that portion of the
project area.209 However, in no case may the amount of the required financial guarantee that is
retained be less than 100 percent of the remaining reclamation costs required by 43 CFR
3809.552(a) and 3809.554(a).
The BLM may release the remainder of the required financial guarantee amount for the same
portion of the project area when:210
The District/Field Manager determines that the operator has successfully completed
reclamation, including revegetating the area disturbed by operations, and
Any effluent discharged from the area has met applicable Federal and state effluent and
water quality standards for 1 year without needing additional treatment, or the operator
has established a funding mechanism under 43 CFR 3809.552(c) to pay for long-term
treatment, and any effluent discharged from the area has met applicable effluent
limitations and water quality standards for 1 year with or without treatment. See Section
6.3.4 Trust Funds or Other Funding Mechanisms for discussion of funding mechanisms
under 43 CFR 3809.552(c).
Final release of the requirement for a financial guarantee for a portion of the operation does not
need to comply with the public notification requirements of 43 CFR 3809.590(c), as long as a
financial guarantee exists for a portion of the operation. The BLM inspection of the reclamation
and subsequent District/Field Manager’s decision concerning reclamation adequacy and
reduction of the required financial guarantee amount will follow the procedures specified under
43 CFR 3809.590(b). The operator will be notified, in writing, of any decision concerning
reclamation adequacy and reduction of the amount of the required financial guarantee.
6.4.3.2 Corporate Guarantees
When an operator requests a reduction in his or her financial guarantee according to 43 CFR
3809.590(a) and the financial guarantee includes the use of a corporate guarantee, the reduction
in the financial guarantee will be made proportionally from the accepted financial guarantee
instrument(s) and the proportion of the financial guarantee that was covered by a corporate
209
210
43 CFR 3809.591(b).
43 CFR 3809.951(c).
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guarantee on January 20, 2001. For example, if the financial guarantee coverage is to be reduced
by $100,000 and the financial guarantee coverage, on January 20, 2001, was 65 percent
corporate guarantee and 35 percent acceptable financial instrument(s), then the corporate
guarantee would be reduced by $65,000 and the financial instrument(s) would be reduced by
$35,000.
To ensure corporate guarantee coverage is not being transferred to a modified or expanded
portion of an existing operation, any District/Field Manager decision, (see Determination of
Required Financial Guarantee Amount, Appendix A, Template 3.2-3), that revises the amount of
the required financial guarantee, whether it is a net increase or net reduction, must document the
gross reduction, if any, due to completion of reclamation obligations. Where practical, the
District/Field Manager should issue separate decisions for operations covered by corporate
guarantees when both a reduction and an increase is occurring in the reclamation obligations.
6.4.3.3 Final Reduction
The final reduction or release of the requirement to maintain a financial guarantee for a Plan of
Operations requires public notification and comment period.211 For Plans of Operations, the
BLM will post in the local BLM office and/or publish notice of final financial guarantee release
in a local newspaper of general circulation, and accept comments for 30 calendar days. The
notification will identify the operation, describe the requested action, and indicate where
comments may be submitted.
The District/Field Manager may not make a decision that would result in the final release of the
financial guarantee for 30 calendar days following notification of the public of the proposed final
release. Following the 30-day period, the District/Field Manager must issue a written decision
concerning the adequacy of the reclamation and reduction or final release of the financial
guarantee requirement. The District/Field Manager is not required to respond to public
comments on the reclamation or reduction of the financial guarantee requirement; however,
substantive concerns should be addressed in the decision. This decision must be provided, in
writing, to the operator and to any commenting parties, with a copy to the BLM office
responsible for adjudicating financial guarantees.
This public notification provision does not apply to an interim financial guarantee reduction or
final financial guarantee requirement release on a portion of the Plan of Operations, unless that
financial guarantee requirement is for the last portion of an operation to be released. Also this
notification provision does not apply to reduction of financial guarantee requirements for Noticelevel operations.
6.4.3.4 Enforcement Actions
Any existing enforcement actions, including noncompliance orders, for an operation must be
resolved before any release or reduction of the financial guarantee requirements may be
authorized for that operation.
211
43 CFR 3809.590(c).
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6.4.3.5 Trust Funds
This section, Section 6.4.3 Reduction of Financial Guarantee, applies to the operator’s
individual, blanket, and/or state-approved reclamation financial guarantee, but not to any funding
mechanism established under 43 CFR 3809.552(c) to pay for long-term treatment of effluent or
site maintenance. Calculation of the reclamation financial guarantee percentages discussed does
not include any funds held in a trust fund or other post-mining funding mechanism.
6.4.4 Release of Responsibility
6.4.4.1 Claimant and Operator Responsibility
Termination of the period of liability under the financial guarantee does not release the mining
claimant or operator from responsibility for reclamation of the operations should reclamation fail
to meet the standards of the regulations or the reclamation responsibilities as specified in the
filed Notice or approved Plan of Operations.212
6.4.4.2 Financial Guarantee Period of Liability
The time between the BLM’s acceptance of a satisfactory financial guarantee for a specified
obligation until the BLM’s release of the bond is called the financial guarantee’s period of
liability. Only the period of liability or obligation under the financial guarantee is terminated or
released; the bond itself is not terminated or canceled. Additionally, under 43 CFR 3809.116(a),
the operator and claimant retain reclamation responsibility for any obligations that accrue while
they hold their interests. The United States, acting through the BLM, cannot terminate the period
of liability of a bond until all obligations of the terms of a Plan of Operations or a Notice-level
disturbance have been fulfilled, payment of the bond proceeds (penal sum) is received by the
BLM, or until a satisfactory replacement bond has been accepted by the BLM.
When the BLM Surface Management Specialists determine to the extent they are able, that all
obligations under the bond (the terms and conditions of all operations) have been met, the period
of liability may be terminated by adjudication. That means an exact date is set after which no
new liability may accrue under the bond. This does not mean that the bond principal may deny
liability for a cause of action accruing before the termination of the period of liability.
Before January 20, 2001, the BLM did not unconditionally release a surety from past liability.
However, under 43 CFR 3809.581(b), the BLM will release a surety from an obligation that
accrued while the surety bond was in effect when the BLM has accepted a replacement bond that
covers all obligations under the previous surety bond.
6.4.4.3 Third Party Responsibility
Unless otherwise legally obligated, once all reclamation responsibilities, as specified in the filed
Notice or approved Plan of Operations, and required by regulation, have been completed to the
212
43 CFR 3809.592(a).
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District/Field Manager’s satisfaction, third party institutions, such as banks, sureties, insurance
companies, or state bond pools, are released from any future financial obligation. However, if
the bank, surety, insurance company, or other entity assumes or directs operational control of the
reclamation, or any other aspect of the operation, release of the financial guarantee requirement
does not release the third party institution from responsibility for reclamation of the operations
should reclamation fail to meet the standards of the 43 CFR 3809 regulations or the reclamation
responsibilities as specified in the filed Notice or approved Plan.
6.4.4.4 CERCLA Liability
Any release of the financial guarantee does not release or waive any claim the BLM, or other
persons, may have against any person under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (CERCLA), as amended,213 or under any other
applicable statutes or regulations.214
6.4.5 Change of Operator
The operator remains responsible for obligations or conditions created while the operator
conducted operations unless a transferee accepts responsibility under 43 CFR 3809.116 and the
BLM accepts an adequate replacement financial guarantee.215 The original operator’s financial
guarantee must remain in effect until the District/Field Manager determines that the operator is
no longer responsible for all or part of the operation.
In the event the original operator wants to have his or her financial guarantee released, the new
operator must provide documentation216 to the District/Field Office that he or she accepts
responsibility for all obligations and conditions created by the original operator. In addition, the
new operator must provide the BLM office responsible for adjudicating financial guarantees with
an acceptable replacement financial guarantee for all obligations and conditions created by the
original operator. The BLM may release the original financial guarantee on an incremental
basis. Any change of operator must be reported to the appropriate BLM District/Field Office
within 30 days as required by 43 CFR 3809.301(d) and 3809.401(b)(1).
If the new operator intends to conduct operations under the existing Notice or Plan of
Operations, the new operator must provide the BLM District/Field Office with a written
statement to this effect, including an acceptable RCE. If the new operator intends to modify the
existing Notice or Plan of Operations, he or she must process the request under the requirements
of 43 CFR 3809.330 or 3809.430. A new operator must provide the BLM with an acceptable
financial guarantee covering proposed operations before the District/Field Manager may allow
the new operator to conduct operations.
213
42 U.S.C. 9601 et seq.
43 CFR 3809.592(b).
215
43 CFR 3809.593.
216
BLM Form 3809-5, Notification of Change of Operator and Assumption of Past Liability.
214
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6.4.6 Change in Land Ownership
When there is a change in the land status out of public ownership, the District/Field Manager
must determine if retention of all or part of the financial guarantee is still warranted.
6.4.6.1 Patented Lands
Unless the BLM has an agreement with the state to hold the financial guarantee for both public
and private lands, when a mining claim or mill site is patented under the Mining Law, or the
entire property is transferred out of public ownership, the BLM will release the portion of the
financial guarantee that applies to operations within the boundaries of the patented land.217
When a patent is issued that covers a portion of an operation, the BLM District/Field Office
should request the operator submit a revised RCE for the operation that remains on public lands.
The District/Field Manager must issue a written decision concerning the new amount of the
required financial guarantee. The BLM office responsible for adjudicating financial guarantees
will release a portion of the required financial guarantee based on the District/Field Manager’s
decision.218 The remainder of the required financial guarantee will be released based on
successful reclamation of the unpatented lands as required by 43 CFR 3809.590 and 3809.591.
6.4.6.2 California Desert Conservation Area (CDCA)
When the BLM patents mining claims within the boundaries of the CDCA that contain the
patenting restriction in 43 U.S.C. 1781(f), the California State Office must not release the
financial guarantee as a result of the patenting of the mining claim.219 Under that patent
restriction, mining operations on CDCA lands remain subject to financial guarantee
requirements.
6.4.6.3 Joint Financial Guarantee
Where the BLM and state have an agreement under 43 CFR 3809.201 that provides for financial
guarantees to be held jointly by either the BLM or state, the financial guarantee release provision
for lands that have been transferred out of public ownership does not apply.
6.4.6.4 Split Estate
Where the transfer of ownership of the surface estate creates a split estate, the District/Field
Manager must determine if the surface management regulations still apply as provided for under
43 CFR 3809.31(e). If the regulations do not apply, the BLM office responsible for adjudicating
financial guarantees will release the portion of the financial guarantee that applies to operations
within the boundaries of the patented land.
217
43 CFR 3809.594(a).
43 CFR 3809.594(b).
219
43 CFR 3809.594(a).
218
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6.5 Forfeiture of Financial Guarantee
6.5.1 Initiating Forfeiture
The District/Field Manager may initiate forfeiture of all or part of an operator’s financial
guarantee for any project area or portion of a project area if any of the following applies:220
The operator or mining claimant is unable or unwilling to conduct reclamation as
provided for and as scheduled in the reclamation plan included in the Notice or approved
Plan of Operations; or in accordance with the 3809 regulations.
The operator fails to meet the terms of the Notice or approved Plan of Operations.
The operator defaults on any of the conditions under which the operator obtained the
financial guarantee.
If necessary, the BLM will initiate forfeiture procedures of the financial guarantee according to
43 CFR 3809.595 through 3809.599. When the District/Field Manager decides to require the
forfeiture of all or part of the financial guarantee,221 the District/Field Office notify the Regional
Solicitors and will serve the notice of default and forfeiture upon the operator or mining claimant
by certified mail-return receipt requested, and the surety on the financial guarantee, if any. The
state agency holding the financial guarantee, if any, will inform all parties including the operator
of the following (see Appendix A, Template 6.5-1, Forfeiture of Financial Guarantee):
The District/Field Manager’s decision to require the forfeiture of all or part of the
financial guarantee.
The reasons for the forfeiture.
The amount that the operator will forfeit based on the estimated total cost of
implementing the reclamation plan requirements for the project area or portion of the
project area affected, including BLM’s administrative costs.
How the operator may avoid forfeiture222 including:
• Providing a written agreement under which the operator or another person will
perform reclamation operations in accordance with a compliance schedule which
meets the conditions of the Notice or approved Plan of Operations and the
reclamation plan, and a demonstration that such other person has the ability to
satisfy the conditions, and
• Obtaining written permission from the District/Field Manager for a surety to
complete the reclamation, or the portion of the reclamation applicable to the bonded
220
43 CFR 3809.595.
43 CFR 3809.596.
222
43 CFR 3809.596(d).
221
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phase or increment, if the surety can demonstrate an ability to complete the
reclamation in accordance with the reclamation measures incorporated in the Notice
or approved Plan of Operations.
That the District/Field Manager’s decision to initiate forfeiture of financial guarantee is
subject to appeal under 43 CFR 3809.800 but remains in full force and effect pending the
outcome of the appeal unless the State Director or Interior Board of Land Appeals
(IBLA) grants a stay.
6.5.2 Collecting the Forfeited Guarantee
If the operator fails to meet the requirements of the District/Field Manager’s forfeiture decision
provided under 43 CFR 3809.596, or the IBLA does not grant a stay under 43 CFR 4.21, the
BLM will take the following actions.223
The BLM office responsible for adjudicating financial guarantees will immediately collect the
forfeited amount as provided by applicable laws for the collection of defaulted financial
guarantees, other debts, or state bond pools. The BLM office responsible for adjudicating
financial guarantees will expeditiously secure all funds intended as financial guarantees to ensure
proper reclamation. The BLM office responsible for adjudicating financial guarantees should
consult the appropriate Solicitor’s Office who will work with the Department of Justice to ensure
the Government’s interests are protected.
Financial guarantees that are forfeited will be deposited into a 5320 account “Repair of Damaged
Lands - Public Lands” by the BLM office responsible for adjudicating financial guarantees.
Before using funds from this account, the District/Field Manager must contact the State Budget
Lead to obtain an individual project code for tracking purposes.
The District/Field Office will use funds collected from financial guarantee forfeiture to
implement the reclamation plan, or portion thereof. All costs, including contracting costs and
BLM employee salaries, associated with the reclamation of the operation will be covered by the
deposited funds. Where the BLM has obtained funds to meet certain reclamation obligations, the
District/Field Office must promptly complete reclamation as required by the filed Notice or
approved Plan and 3809 regulations. The District/Field Office’s ability to promptly complete all
required reclamation may be affected by factors outside the BLM’s control, such as weather,
road and ground conditions, or litigation. The BLM will return any unused funds as required by
43 CFR 3809.599.
Through purchase, bankruptcy sale, relocating of mining claims, or paying the maintenance fee
on existing mining claims, new parties may enter into the process. Their activities on the site
may complicate the orderly progression of acquiring the financial guarantee and implementing
reclamation measures. The District/Field Manager should consider temporarily segregating the
site from activities under the mining laws to allow for unencumbered site reclamation. See BLM
Handbook 1601-1, Land Use Planning Handbook, for the procedures and requirements in
segregating lands from mineral entry.
223
43 CFR 3809.597.
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6.5.3 Insufficient Forfeited Funds
If the amount forfeited is insufficient to pay for the full cost of reclamation, the operator(s) and
mining claimant(s) are liable for the remaining costs as set forth in 43 CFR 3715 and 43 CFR
3809.116.224 In such situations, the BLM may complete or authorize completion of reclamation
of the area covered by the financial guarantee. If agency funds are used to reclaim the
disturbance, the BLM must promptly initiate legal procedures to recover from all responsible
parties all costs of reclamation in excess of the amount forfeited.
Recovery should be sought through legal action for any reclamation costs not covered by the
financial guarantee (see BLM Manual 1370, Receipts and Disbursements, BLM Manual 1371,
Billings, and BLM Manual 1372, Collections). In addition to conferring with the State or
District/Field Office Collections Specialist, the BLM should consult with the appropriate
Solicitor’s Office who can work with Department of Justice (DOJ) to recover BLM funds used to
complete reclamation. See Section 13.6.2 Debt Collection on proper documentation of any
collection effort. Before the case file may be closed, the site must be successfully reclaimed and
funds recovered from the responsible party or the collection action terminated (see BLM Manual
1375, Delinquent Accounts).
Reclamation actions taken by the BLM, for operations authorized under the surface management
regulations, requiring the expenditure of funds over the financial guarantee amount should use
Mining Law Administration funds (1990). If no 1990 funds are available, and the unreclaimed
disturbance is a threat to public health, safety, or the environment, then it may be appropriate for
the BLM to invoke its CERCLA authority and use abandoned mine land or hazardous materials
program funding to complete the work (see BLM Handbook H-1703-1, BLM CERCLA Response
Handbook).
6.5.4 Excess Forfeited Funds
If the amount of financial guarantee forfeited is more than the amount necessary to complete
reclamation, the BLM must return the unused funds within a reasonable amount of time to the
party from whom the funds were collected.225
6.5.5 Bankruptcy
Bankruptcies create unique issues when dealing with financial guarantee forfeitures. Bankruptcy
proceedings are bound by strict filing time limits. If the BLM misses the deadline for filing a
claim, the BLM is left without further legal recourse. The BLM must advise the Solicitor’s
Office immediately of any bankruptcy filing so that the Solicitor and the U. S. Attorney’s Office
may file the necessary documents to establish the BLM’s claim in the Bankruptcy Court.
When faced with a bankruptcy, the BLM office responsible for adjudicating financial guarantees
should refer to BLM Handbook H-3809-2, Surface Management Bond Processing, Chapter XIV,
224
225
43 CFR 3809.598.
43 CFR 3809.599.
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Bankruptcy, for further guidance on steps necessary to protect the public’s interest. See also,
Section 7.3 Forfeiture of Financial Guarantee upon Abandonment.
6.6 Joint Federal-State Financial Guarantees
6.6.1 Joint Program and Deferral Agreements
States may enter into agreements with the BLM under 43 CFR 3809.200(a) to allow for joint
Federal and state administration and enforcement of mining operations, including financial
guarantees. Alternatively, the Federal-State Agreement may provide for deferral of the BLM’s
surface management responsibilities to the state, rather than administering the operation jointly.
See Section 12.2 New Agreements, for the requirements of a Federal-State Agreement.
If the Federal-State Agreement covers financial guarantees, an operator may use a single
financial instrument to meet both Federal and state financial guarantee requirements. Either the
BLM or the state may hold the financial guarantee under such an agreement; however, if the
Federal-State Agreement specifically provides that the BLM will defer to state regulation as to
financial guarantees, the instrument must specify both that the Secretary has the authority to
redeem the bond, and that the state is required to obtain BLM concurrence before approving,
releasing, or initiating forfeiture of a financial guarantee.226
Where there is to be a single financial guarantee and the operation involves both public and nonpublic lands, the financial guarantee must cover all operations whether they are on public or nonpublic lands. Where the financial guarantee covers both public and non-public lands, the BLM
and state should concur on the approved amount, release, and forfeiture of the financial
guarantee. This concurrence may be addressed programmatically through the Federal-State
Agreement or on a case-by-case basis.
The BLM and state must concur on the amount of the financial guarantee that must be calculated
based on completion of all applicable Federal and state reclamation requirements for the entire
operation. To be held as a single financial guarantee, any financial instrument(s) used for the
financial guarantee must be acceptable to the BLM under 43 CFR 3809.555 or 3809.571.
Under either a joint or deferral agreement, where the state holds a financial guarantee, the
amount of the financial guarantee may reflect the state’s administrative costs instead of the
BLM’s for contracting the required reclamation. In such cases, the state must also agree to
administer all reclamation contracts under the state cost structure should financial guarantee
forfeiture be necessary.
6.6.2 Long-Term Funding Mechanisms
The BLM may enter into a Federal-State Agreement under 43 CFR 3809.200(b) that provides for
post-reclamation obligations under 43 CFR 3809.552(c). See Section 6.3.4 Trust Funds or Other
Funding Mechanisms for guidance on establishing a long-term funding mechanism.
226
43 CFR 3809.203(d).
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Where the post-mining treatment or maintenance requirements involve both public and nonpublic lands, the trust fund must be for all required long-term, post-mining construction,
operation, maintenance, or replacement of any treatment facilities and infrastructure for the
entire operation. In addition, the state may be a party to the Trust Fund Agreement where the
post-mining treatment or maintenance requirements involve both public and non-public lands.
Where the agreement provides that administration of a trust fund is to be handled by the state, the
amount in the fund may reflect the state’s administrative costs for contracting the required postmining construction, operation, maintenance, or replacement of any treatment facilities and
infrastructure if the operator defaults. In such cases, the state must also agree to administer all
contracts under the state cost structure should the operator fail to perform the post-mining tasks
as required in the approved Plan of Operations.
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Chapter 7 Cessations and Abandonment
This chapter describes operator and BLM responsibilities when an operator suspends activities
under a Notice or Plan, and the criteria the BLM uses to determine when the operation is
abandoned. This chapter also discusses special considerations for dealing with operators who
have declared bankruptcy.
7.1 Cessation and Abandonment of Activity Conducted under a Notice
Notices expire after 2 years unless extended under 43 CFR 3809.333 or nullified due to
noncompliance. Once a Notice expires, the only surface-disturbing activity that the operator
may engage in is reclamation.227 Unlike Plans of Operations, operators are not required to
submit an interim management plan with their Notices.
7.1.1 Requirements for Periods of Non-Operation
If the operator stops conducting operations under a Notice for any period of time, the operator
must:228
Maintain the public lands within the project area, including structures, in a safe and clean
condition. If the cessation of operations is not addressed in the Notice, then the operator
must promptly notify the BLM about the stoppage of operations or the BLM may
determine the operations to be abandoned under 43 CFR 3809.336 (see Section 7.1.2).
Prevent UUD during the period of non-operation. Under 43 CFR 3809.334(b), the BLM
will notify the operator, in writing, if it determines the period of non-operation is likely to
cause UUD and will tell the operator what steps must be taken to prevent UUD. If the
BLM determines that the period of non-operation is likely to cause UUD and there has
been an extended period of non-operation, the written notice from the BLM may require
the operator to remove structures, equipment, and other facilities and reclaim the site.
Maintain an adequate financial guarantee for surface disturbance under the Notice until
the required reclamation is complete. If surface disturbance under the Notice has not
begun, or only partially occurred and then stopped, the BLM will not release any portion
of the financial guarantee until the operator modifies the Notice, including a revised
RCE, to reflect the lower level of surface disturbance.
While the regulations do not define an “extended period of non-operation,” the BLM may make
such a determination after considering the sensitivity of the resource values in the project area
and any other relevant factors. As general guidance, if there is no or minimal activity on-theground during the 2-year Notice lifespan, it would then be reasonable for the BLM to issue an
order under 43 CFR 3809.334(b)(2) requiring the operator to remove all structures and
227
228
43 CFR 3809.332.
43 CFR 3809.334.
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equipment and to reclaim the area. It may also be appropriate to take action under 43 CFR
3715.5-1 and 3715.5-2.
7.1.2 Determination of Abandonment
At any time the BLM may inspect the operation and determine that it has been abandoned.229 In
reaching such a determination, the BLM will apply the criteria listed under 43 CFR 3809.336(a).
The BLM may determine the operation has been abandoned where any of the following
conditions apply:
Inoperable or non-mining related equipment is left in the project area.
The operator has removed mining equipment from the area.
The project area has not been maintained.
Workers have been discharged.
The financial guarantee has not been maintained.
There is no sign of activity in the project area over time (e.g., 1 year).
Liquidation or removal of project assets during the bankruptcy process would also constitute
evidence of abandonment. In order to support a determination that an operation has been
abandoned, the applicable conditions must be documented in inspection reports.
7.1.2.1 Issuing an Abandoned Decision
Once the BLM determines the operation are abandoned, the authorized officer will issue a
decision stating that the operation has been determined to be abandoned, nullifying the Notice,
identifying any remaining reclamation obligations, and advising the operator that the BLM will
initiate forfeiture of the financial guarantee as provided for under 43 CFR 3809.595 through
3809.597 unless reclamation is completed by a set date. See Appendix A, Template 3.5-1,
Reclamation Required for an example of what should be covered in the decision to the operator.
Such a decision may be appealed as specified under 43 CFR 3809.800 through 3809.809.
When preparing to take action under this provision,230 the BLM office should consult with the
Solicitor’s Office to determine whether to also, or in lieu of, take action under 43 CFR 3715.5-1
and 3715.5-2. Action under the 3715 regulations is particularly appropriate where there is only
occupancy and no ongoing surface disturbance.
229
230
43 CFR 3809.336.
43 CFR 3809.336(b).
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7.2 Activity Conducted under a Plan of Operations
The Plan of Operations must contain an interim management plan to manage the project area
when the operator stops conducting operations (i.e., activities associated with exploration and
development of a locatable mineral deposit) for a period of temporary and/or seasonal closure.
Plans of Operations do not automatically expire when an operator is not engaged in active
exploration, development, or reclamation. Unless the BLM initiates an enforcement action and
suspends or revokes a Plan of Operations, the Plan remains in effect until the operator has
completed mining operations and final reclamation.231
However, the Plan operator is expected to follow the schedule of operations contained in the
approved Plan, or request a modification if the schedule needs to be adjusted (a change in the
schedule of operations would likely be a minor modification under 43 CFR 3809.432(b)).
7.2.1 Requirements if Activity Stops
Section 3809.424 describes what the operator must do during planned periods of temporary
closure as described in the approved Plan of Operations.
Follow the approved interim management plan submitted under 43 CFR 3809.401(b)(5).
If the operator needs or wants to do something different than provided by the approved
interim management plan, the interim management plan must be modified.
Modify the Plan, if necessary. If the interim management plan does not cover the
circumstances or procedures that the operator will follow during the period temporary
closure, under 43 CFR 3809.431(a) the operator must submit a Plan modification
specifically detailing the changes in the interim management plan to the BLM within 30
calendar days of the non-conforming closure date. The BLM will process the Plan
modification in either the same manner as the initial Plan approval, or as a minor
modification, whichever is appropriate under 43 CFR 3809.432. Examples where an
interim management plan may need to be modified could include:
231
The period of non-operation is longer than anticipated or seasonally different than
anticipated.
Equipment to be stored onsite is not listed in initial interim management plan.
There is a change in monitoring frequency.
There are adverse effects to the environment or public safety under the existing
interim management plan that requires it be modified to correct the situation.
Take all necessary actions to prevent UUD during the period of non-operations. The
operator is responsible for preventing UUD during the period of non-operation.
See 43 CFR 3809.423.
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Maintain an adequate financial guarantee for the Plan of Operations during the period of
non-operation. The financial guarantee must be adequate to complete any remaining
reclamation work.
If the period of non-operation is likely to cause UUD, then the BLM must require the operator to
take corrective actions to prevent UUD, including requiring the operator to remove all structures,
equipment, and other facilities and reclaim the project area.232
7.2.2 Determination of Abandonment
At any time the BLM may inspect the operation and determine whether it has been abandoned by
applying the criteria listed under 43 CFR 3809.336(a).233 See Section 7.1.2 above.
The BLM may determine that the operation has been abandoned where any of the following
conditions apply:
Inoperable or non-mining related equipment is left in the project area.
The operator has removed mining equipment from the area.
The project area has not been maintained.
Workers have been discharged.
The financial guarantee has not been maintained.
There is no sign of activity over an extended timeframe (e.g., 5 years).
Disposal of project assets through bankruptcy proceedings would also indicate that the operation
has been abandoned. In order to support a determination that an operation has been abandoned,
the BLM must document the applicable conditions in inspection reports before issuing the
decision of abandonment (see Section 9.1.5 Documentation of Inspections).
If an operator has been operating under the interim management plan in its approved Plan of
Operations for 5 consecutive years, then the BLM will review the operation and document in the
case file whether or not to initiate enforcement actions under 43 CFR 3809.600 to declare the
Plan of Operations abandoned, terminate the Plan of Operations, and direct final reclamation and
closure.
7.2.2.1 Issuing an Abandoned Decision
Once the BLM finds that the operation meets the criteria for abandonment, the authorized officer
will issue a decision to the operator stating that the operation has been determined to be
232
233
43 CFR 3809.424(a)(2).
43 CFR 3809.424(a)(4).
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abandoned, that the Plan of Operations is terminated, and that the operator must complete
reclamation according to the approved reclamation plan. The decision must also advise the
operator that the BLM will initiate forfeiture of the financial guarantee as provided for under 43
CFR 3809.595 through 3809.597 unless reclamation is completed by a set date. See Appendix
A, Template 3.5-1 Reclamation Required for an example of what should be covered in the
decision to the operator. Such a decision may be appealed as specified under 43 CFR 3809.800
through 3809.809.
When preparing to take action under this provision, the BLM office should consult with the
Solicitor’s Office to determine whether to also take action under 43 CFR 3715.5-1 and 3715.5-2.
7.3 Forfeiture of Financial Guarantee upon Abandonment
If the BLM determines that the operator has abandoned the operation and the operator fails to
complete reclamation by the date specified in the abandoned operations decision, the
District/Field Manager will initiate forfeiture of the financial guarantee as provided under 43
CFR 3809.595. Under 43 CFR 3809.596, the BLM will notify the operator and/or mining
claimant that the BLM intends to collect and use a specified amount of the forfeited financial
guarantee unless the operator or mining claimant provides the written agreements specified in 43
CFR 3809.596(d). (See Section 6.5 Forfeiture of Financial Guarantee and also BLM Handbook
H-3809-2, Surface Management Bond Processing).
7.4 Operator Responsibilities
Abandonment of an operation does not relieve the operator of its reclamation and closure
responsibilities.234 Nor is the amount of the financial assurance the limit of the operator’s
reclamation liability.235
The operator’s reclamation obligations are satisfied when (1) reclamation has been completed in
accordance with the filed Notice or approved Plan of Operations and the performance standards
or (2) the BLM receives documentation that a transferee accepts responsibility for previously
accrued reclamation obligations and BLM accepts a replacement financial guarantee adequate to
cover those obligations. Under CERCLA or any other applicable statutes or regulations, the
responsibilities and liabilities of the responsible party may continue even after reclamation is
complete.236
7.5 Bankrupt Operations
Bankruptcy is the legal process where individuals or corporations seek protection from creditors
for debts owed. Under Federal bankruptcy procedures, an operator may restructure its debt and
continue to do business (“Chapter 11”), or be required to liquidate assets (“Chapter 7”).
234
43 CFR 3809.116.
43 CFR 3809.598.
236
43 CFR 3809.592.(b).
235
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If the BLM District/Field Office suspects an operator may have filed for bankruptcy, it should
check with the BLM Bankruptcy Coordinator in the State Office to determine if the operator has
filed for bankruptcy protection. The bankruptcy coordinator will then notify other states and
work with the Office of the Solicitor.
Once the BLM becomes aware that an operator has filed for bankruptcy protection, the BLM
District/Field Office will immediately review the financial guarantee amount to determine if the
on-the-ground reclamation liability will be covered by the financial guarantees in place. If a
shortfall in the financial guarantee is identified, the BLM must request assistance from the Office
of the Solicitor and the DOJ to submit claims to the bankruptcy court to protect any financial
guarantees held by the BLM and for any unfunded or underfunded reclamation liability.
During the bankruptcy proceedings, the BLM must be involved in discussions with the operator
and the surety company, if applicable, to determine how the reclamation obligations will be
satisfied if the operations become abandoned or are forced to dissolve. In these situations, the
surety company, if applicable, would have the option of performing the required work in lieu of
the operator, or the BLM may oversee performance of the reclamation using the forfeited
financial guarantee.
Therefore, operations in bankruptcy need to be closely monitored. See BLM Handbook 3809-2,
Surface Management Bond Processing, Chapter XIV.
7.5.1 Maintaining Compliance during Bankruptcy
An operator does not violate any provision of the 43 CFR 3809 regulations and is not in
noncompliance simply by filing for bankruptcy protection. However, an operator in bankruptcy
may be forced to cut back expenditures which may make it difficult to meet the operating and
reclamation commitments in their Notice or Plan. Therefore, the BLM can and will exercise its
authority to inspect the operations and take enforcement actions to ensure compliance with
environmental regulations as appropriate, including issuing a noncompliance order for failure to
reclaim. If the BLM determines that operations are in noncompliance and the operator is
unwilling or unable to perform the reclamation specified in the Notice or Plan, the BLM should
work with the Solicitor’s Office to initiate forfeiture of the financial assurance or seek payment
from the surety company.
In addition, if the operator files for bankruptcy under Chapter 7 or is otherwise forced to dissolve
as part of the bankruptcy proceeding, the BLM should immediately initiate procedures for
determining whether the project is abandoned and issue a decision so that reclamation may begin
as soon as possible.
The BLM guidance requires financial assurances to be isolated from liquidation of the
bankruptcy estate so that the financial assurance amount should be available in full to fund the
reclamation plan.
7.5.2 Use of Onsite Equipment to Reclaim Bankrupt Operations
If the operator files for bankruptcy under Chapter 7 or the Court otherwise orders liquidation of
the operator’s assets, the Court may appoint a trustee to sell the operator’s assets. Often this may
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involve selling equipment or structures that are needed to perform reclamation, in particular
disposal of equipment or structures that were previously presumed available when the RCE was
calculated. Examples of equipment disposed of during bankruptcy that may impede reclamation
work include pumps for circulating leach pad solutions, liners, fences around process ponds,
culverts in roads, water treatment plants, powerlines, generators, and pumps or casing from
monitoring wells.
The BLM will work with the Solicitor’s Office and the DOJ to attempt to work with the Trustee
or the Court to delay disposal of items required for reclamation until after the reclamation work
is completed. In general, this will require filing a petition with the Bankruptcy Court in order to
retain equipment onsite that is required for environmental compliance until reclamation is
complete.
Prior to bankruptcy, several approaches may be taken to prevent such a situation from occurring.
The RCE may be increased to cover the replacement cost of equipment required for reclamation,
the personal property could be titled to the BLM or the state so that it is available, or the real
property could be transferred with use and access rights reserved to the BLM or state.
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Chapter 8 Special Situations and Land Use Planning
This chapter provides guidance on authorizing surface-disturbing activities under certain special
situations, including lands that have been withdrawn or segregated from mineral entry, minerals
that may be common variety minerals, split estate lands, cumulative effects of casual use
activities, and suction dredging. This chapter also provides guidance on land use planning
decisions and how those decisions may affect proposed operations and post-mining land uses.
8.1 Withdrawn and Segregated Lands
8.1.1 Validity Determination
The regulations at 43 CFR 3809.100 have special provisions that apply to proposed operations
on segregated or withdrawn lands.
8.1.1.1 Withdrawn Lands
For mining claims located on lands that are withdrawn from appropriation under the mining laws
subject to valid existing rights, the BLM must conduct a validity examination and determine the
mining claim(s) subject to the Notice or Plan were valid as of the date of the withdrawal, and as
of the date of the exam, before approving a Plan or determining a Notice to be complete.237 A
Notice or Plan submitted before the withdrawal is not exempt from the validity determination
requirement if the BLM has not accepted or approved it at the time of the withdrawal.
The BLM will issue its findings with regard to valid existing rights in a mineral report (see BLM
Handbook H-3890-3, Validity Mineral Report). The BLM may recover costs from the operator
associated with the validity examination and mineral report.238
8.1.1.2 Segregated Lands
BLM managers have discretion to determine the validity of mining claims within a segregated
area before approving a Plan of Operations or acknowledging an exploration Notice. This also
means that BLM managers have discretion to approve a proposed Plan of Operations or
acknowledge an exploration Notice on segregated lands without first determining the validity of
the underlying mining claims.
8.1.1.2.1 New Plans and Notices
Before making a decision to require a validity determination under 43 CFR 3809.100(a), the
BLM manager may consider certain factors including but are not limited to the purpose of the
segregation. When considering new or pending exploration Notices or proposed Plans of
Operations on segregated lands, BLM managers should ask the operator who is proposing the
exploration or mining activities for data or other evidence showing that a physical exposure of a
237
238
43 CFR 3809.100(a).
43 CFR 3800.5(b).
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locatable mineral deposit existed as of the segregation date. For purposes of deciding whether to
conduct a validity determination on segregated lands, BLM managers need not determine
whether the exposure evidences a valuable mineral deposit. That is a question left for a mineral
examination.
In assessing whether the operator has exposed a locatable mineral deposit, BLM managers will
accept the use of a variety of industry standard methods, including, but not limited to, assays,
physical tests, chemical analysis, on-site concentration and processing, x-ray fluorescence,
neutron activation, or gamma ray logging methods. BLM managers should consult with a
Certified Mineral Examiner or a Certified Review Mineral Examiner who is experienced with
the type of deposit at issue and applicable analysis methods.
If the operator cannot show an exposure of a locatable mineral deposit that was disclosed before
the segregation date, the BLM manager should not accept the Notice or approve the Plan without
conducting a discretionary validity determination under 43 CFR 3809.100(a) regardless of the
purpose of the segregation. If the operator can show an exposure of a locatable mineral deposit
that was disclosed before the segregation date, the BLM manager may exercise discretion under
43 CFR 3809.100(a) on a case-by-case basis before deciding whether to acknowledge a Notice
for exploration activities or approve a Plan of Operations without first conducting a mineral
examination if the purpose of the segregation supports such a decision.
8.1.1.2.2 Notice or Plan Modifications
BLM processes modifications to a Notice or Plan in the same manner as a new Notice or Plan.
Consequently, BLM may apply the same considerations discussed above before acknowledging
the modified Notice or approving a Plan modification on segregated lands. If, at the time of the
modification, the lands on which the proposed operations or exploration have been withdrawn
from the operation of the 1872 Mining Law, BLM is required to conduct a validity examination
before accepting the Notice or approving the Plan of Operations.
8.1.1.3 Determination of Invalidity
If the validity determination and mineral report conclude that the mining claim was invalid at the
time of the withdrawal or at the time of the validity examination, the District/Field Manager may
not approve the Plan of Operations or accept the Notice, or allow any other activities on the
mining claim, except as necessary for reclamation and for the operator to defend any pending
contest proceeding (see Section 8.1.2 Allowable Operations). The State Office will also
promptly initiate contest proceedings (see BLM Handbook H-3870-1, Adverse Claims, Protest,
Contest, and Appeals).
8.1.2 Allowable Operations
If the BLM has not completed the validity report, if the BLM has determined that the claim is not
valid, or if there is a pending contest proceeding for the mining claim, certain activities may still
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be allowable.239 The District/Field Manager may approve a Plan of Operations or allow noticelevel operations for the disputed mining claim if the operations are limited to taking samples to
confirm or corroborate mineral exposures that were physically accessible on the mining claim
before the segregation or withdrawal date, whichever is earlier.240 The District/Field Manager
may also approve a Plan of Operations or allow notice-level operations for the operator to
perform the minimum necessary annual assessment work if required by 43 CFR 3836.
8.1.3 Time Limits Suspended
While the BLM conducts the mineral examination and prepares the validity report, the BLM may
suspend the time limits, specified under 43 CFR 3809.111 and 3809.411, for responding to a
Notice or acting on a Plan of Operations.241
8.1.4 Cease Operations
If a final Departmental decision declares a mining claim on withdrawn lands to be null and void,
the operator must cease all operations, except required reclamation.242
8.1.5 Prior Authorizations
Accepted Notices or approved Plans of Operations that were in place prior to the withdrawal or
segregation date are not subject to the mandatory valid existing rights determination procedures
at 43 CFR 3809.100(a). These operations may continue as accepted or approved and do not
require a validity examination unless or until there is a material change in the activity. A Notice
may be extended under 3809.333 without a material change, and thereby not trigger the validity
examination procedures that a Notice modification filed under 3809.330 would require.
The BLM still retains the discretion to assess the validity of any mining claim on any lands that
the BLM administers when it would be in the public interest and may choose to do so when there
are ongoing operations in withdrawn or segregated lands.243 In that case, the BLM would be
responsible for the cost of the validity examination and report.
8.2 Common Variety Minerals
8.2.1 Proposed Operations
The Common Varieties Act of 1955, 30 U.S.C. 611, removed “common varieties of sand, stone,
gravel, pumice, pumicite, or cinders” from location under the Mining Law, and made these
materials subject to sale under the Materials Act of 1947.244 Consequently, when a Plan of
Operations or Notice is submitted to the BLM to remove suspected common variety minerals, as
239
43 CFR 3809.100(b).
43 CFR. 3809.100(b)(1)(i), (2).
241
43 CFR 3809.100(c).
242
43 CFR 3809.100(d).
243
43 CFR 4.451-1.
244
30 U.S.C. 601.
240
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defined in 43 CFR 3830.12, from a mining claim located on or after July 23, 1955, the BLM
must prepare a mineral examination report to verify that the minerals are not common variety
before authorizing the proposed operations or accepting the Notice. 245 The common variety
determination process is described in BLM Manual 3891, Validity Examinations. The operator
is responsible for the costs associated with the validity examination and report.246
First, after receiving the Notice or proposed Plan, the District/Field Manager will send a written
notification to the mining claimant or operator stating that the BLM will conduct a common
variety determination on the claims. The notification advises the operator that the BLM may
authorize operations to remove suspected common variety minerals under the 3809 regulations
as provided for under 43 CFR 3809.101(b) until the common variety report has been prepared
(see Section 8.3.2 Interim Authorization below). The notification must also explain the
procedures for establishing an escrow account and purchasing the material from the BLM under
the Materials Act of 1947 and 43 CFR 3600 regulations if the operator wishes to mine while the
mineral examination is being prepared. The District/Field Manager may authorize operations
under the Mineral Materials Disposal Regulations (see BLM Handbook H-3600-1, Mineral
Material Disposal).
The District/Field Office must promptly initiate the examination of the subject mineral deposit to
determine if the mineral is locatable or salable. The examination and report for the common
variety determination is to follow the guidance provided under Manual 3891, Validity
Examinations, Handbook 3890-1, Validity Mineral Reports, and must be prepared by a certified
mineral examiner.
8.2.2 Interim Authorization
If, after receiving the written notice from the BLM, the operator wishes to remove suspected
common variety minerals while the examination is being conducted, the BLM may provide
interim authorization under 43 CFR 3809.101(b) in three circumstances.
First, the District/Field Manager may approve a Plan of Operations or allow Notice-level
operations that are limited to taking samples necessary to confirm or corroborate mineral
exposures that are physically disclosed and existing on the mining claim.247 The manager may
also approve a Plan of Operations or allow Notice operations for the operator to perform the
minimum necessary annual assessment work if required under 43 CFR 3836. Third, the
District/Field Manager may authorize the operator to remove the possible common variety
minerals if the operator establishes an escrow account in a form acceptable to the BLM (see
Section 8.2.3 for the requirements for operating with an escrow account). The District/Field
Manager has the discretion as to which of these options to afford the operator. The BLM is not
obligated to provide the operator with the option of producing possible common variety minerals
with an escrow account established.
245
43 CFR 3809.101(a).
43 CFR 3800.5.
247
43 CFR 3809.100(b)(1)(i), (b)(2).
246
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8.2.3 Operating with an Escrow Account
Where the BLM and the operator agree that operations to remove potential common variety
minerals will occur and that the operator will establish an escrow account, the BLM must still
approve the Plan of Operations, and the operator must provide the State Office with an
acceptable financial guarantee that covers all required reclamation. The BLM District/Field
Office should work with the Solicitor’s Office to establish an acceptable escrow account before
operations begin.248 The escrow account may be set up as a suspense account with the BLM (see
BLM Manual 1370, Receipts and Disbursements) or the operator may establish an escrow
account though a financial institution with the BLM as the beneficiary (see BLM Handbook
9235-1, Mineral Material Trespass Prevention and Abatement, Chapter V, Section Mineral
Material Trespass Categories and Illustration 1, Illustration of an Escrow Agreement). Any
escrow account must be accompanied by an escrow agreement. This agreement must be
reviewed by the Regional Solicitor’s Office.
8.2.3.1 Appraised Value
Under 43 CFR 3809.101(b)(3), the operator must make regular payments to the escrow account
for the appraised value of possible common variety minerals removed under a payment schedule
approved by District/Field Manager (see BLM Handbook H-3630-1, Mineral Material Appraisal
Handbook).
8.2.3.2 Disbursement
The funds in the escrow account must not be disbursed to the operator or to the U.S. Treasury
until a final determination of whether the mineral is a common variety and therefore salable
under 43 CFR 3600.
8.2.4 Determination of Uncommon Variety
If the mineral report concludes that the material is an uncommon variety and thus locatable under
the Mining Law, 249 the report must include the analysis under McClarty v. Secretary of
Interior250 (see BLM Manual 3891, Validity Examinations). There must be a comparison of the
mineral deposit in question with other deposits of such minerals generally, including:
The mineral deposit in question must have a unique property.
The unique property must give the deposit a distinct and special value.
If the special value is for uses to which ordinary varieties of the mineral are used, the
deposit must have some distinct and special value for such use.
248
43 CFR 3809.101(b)(3).
43 CFR 3809.101(c).
250
408 F. 2d. 907, 908 (9th Cir. 1969).
249
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The distinct and special value must be reflected by the higher price which the material
commands in the marketplace or by reduced cost or overhead so that the profit to the
claimant would be substantially more.
8.2.5 Determination of Common Variety
If the material is determined to be a common variety mineral not subject to the Mining Law or
the 43 CFR 3809 regulations, the operator may either relinquish the mining claims or the BLM
will initiate contest proceedings. Upon relinquishment or final Departmental determination that
the mining claim(s) is null and void, the BLM will terminate the Plan of Operations or Notice,
and the operator will be required to promptly close and reclaim the operations unless the
District/Field Office offers the material for sale under 43 CFR 3600 and 3610.
If the BLM determines that the materials are common variety minerals, the BLM may sell them
under 43 CFR 3601.14.251 Prior to initiating such an action, the BLM must independently
evaluate whether the mineral materials operation would endanger or materially interfere with the
right of the claimant to develop valuable mineral on the claim(s) and attempt to obtain a written
waiver from the mining claimant. Offices should consult with the Solicitor’s Office where such
a waiver is not obtained. See BLM Handbook 3600-1, Mineral Materials Disposal Handbook,
Chapter X - Special Situations, for guidance on the disposal of mineral materials from lands
encumbered with unpatented mining claims.
8.3 Split Estate Lands
In certain cases, the BLM’s surface management regulations at 43 CFR 3809 apply to operations
authorized under the Mining Law on split estate lands, i.e., public lands where the surface estate
has transferred out of Federal ownership with the mineral interest reserved to the United
States.252 This section addresses under what situations the surface management regulations
apply to these split estate lands.
8.3.1 Stock Raising Homestead Act (SRHA) Lands
If the proposed operation is to be located on lands patented under the Stock Raising Homestead
Act (SRHA) and the operator has surface-owner consent, the operator does not need to obtain
BLM authorization under the surface management regulations, but must still provide the BLM
with a copy of the agreement. 253
Where the operator does not have the written consent of the surface owner, or if the surface
owner initially consents and later terminates or nullifies the consent, the operator must submit a
Plan of Operations to the BLM (see Section 4.3 Plan of Operations - Filing and Content).
Consistent with statute, the regulations at 43 CFR 3809.31(d) do not authorize any activity on
SRHA lands without surface owner consent or an approved Plan of Operation.254 Any activity
251
43 CFR 3809.101(d).
43 CFR 3809.2 and 3809.31.
253
43 CFR 3809.31(d).
254
43 U.S.C. 299(f).
252
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conducted on SRHA lands prior to a discovery must be in conformance with the regulations at 43
CFR 3814.
If the surface-owner consent is nullified in Federal or state court or the consent is terminated or
revoked as provided for in the agreement the operator has with the surface owner, the BLM will
require the operator to submit a Plan of Operations. Whether ongoing operation will be allowed
to continue while the Plan is being processed will depend on the conditions of the surface-owner
consent being nullified or terminated.
If a Plan is submitted during the 90-day period that begins once a Notice of Intent to Locate
(NOITL) is filed,255 the effects of that period extends automatically until the Plan is approved or
denied. Plans not diligently prosecuted by the operator may lead to unnecessary extended
periods of segregation. To avoid this occurrence, the BLM may disapprove a Plan if the operator
refuses to provide the required information within the specified timeframe or when there is no
expectation of a meaningful response from the operator to the BLM’s information requests (see
Section 4.4.3.3 Plan of Operations Disapproved or Approval Withheld).
8.3.2 Other Split Estate Lands
For split estate lands other than SRHA lands, if the proposed operations are located on lands
conveyed by the United States that contain minerals reserved to the United States and those
minerals are locatable under the Mining Law, then the operator must file a Plan of Operations or
Notice for all proposed operations.256 The 3809 regulations257 apply to those activities within
lands being explored, mined, or used for placement of facilities that are reasonably incident to
exploration, development, or mining. The regulations also apply to the access roads and
facilities across split estate lands to and from the project area.
8.3.3 Non-Federal Minerals
Where the mineral estate is private and the surface is managed by the BLM, the 3809 regulations
do not apply because the non-Federal minerals are not subject to the Mining Law.258 Because
the BLM still has an obligation under 43 U.S.C. 1732(b) to prevent UUD, the owner or operator
must obtain a special use lease, permit, or easement under 43 CFR 2920 before using the public
lands to develop the private mineral estate, and may be required to provide a financial guarantee
before commencing surface-disturbing activities. As with the 3809 authorization, the BLM will
review each proposed authorization under the 2920 regulations to ensure compliance with the
UUD requirement as required by Section 302 of FLPMA.259 The proponent is required to submit
certain information concerning the proposed action.260 This information requirement is similar
to those required under 43 CFR 3809.301 and 3809.401. Appropriate NEPA analysis must be
conducted on any special use lease, permit, or easement before it is granted. Consultation with
the Solicitor’s Office is recommended.
255
43 CFR 3838.14(c).
43 CFR 3809.31(e).
257
43 CFR 3809.31(c) does not apply, per scope 43 CFR 3715.0-1(b).
258
43 CFR 3809.2-Scope of the regulations.
259
43 U.S.C. 1701.
260
43 CFR 2920.2-4.
256
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8.3.4 Mining Claims under a Notice or Plan of Operations
The BLM will exercise its regulatory jurisdiction on split estate lands for the area of operations
within the boundaries of the mining claim(s) directly involved in exploration and mining
activities and for the necessary access, including roads, pipelines, and power and phone lines, to
those mining claim(s) and exploration activities outside claim boundaries and associated access.
The operator filing and District/Field Office review and approval requirements must conform to
the requirements found under 43 CFR 3809.401 through 3809.412 for proposed Plans of
Operations and 43 CFR 3809.301 through 3809.313 for Notices.
On split estate lands, any NEPA analysis must cover the entire mining operation and associated
facilities regardless of land ownership. The BLM remains responsible for compliance with
NEPA. However, mitigation may only be required to prevent UUD of public lands (not private
surface estate).
The BLM must comply with ESA requirements when reviewing a Notice or a Plan of Operations
for mining claims on split estate lands. Approval of a Plan of Operations is a Federal action;
therefore, it is subject to the applicable consultation requirements of Section 7 of the ESA and
Section 106 NHPA, and any other consultation requirements.
The required reclamation financial guarantee must meet the requirements of 43 CFR 3809.551
and, where appropriate, must cover any special reclamation requirements found in the agreement
between the operator and the surface owner. The required financial guarantee must cover the
approved area of operations and all access roads and facilities across split estate and public lands
that are necessary for the operation. In addition, for SRHA lands the financial guarantee must
also cover the loss of tangible surface owner improvements.
For operations on split estate lands authorized under the surface management regulations, the
BLM District/Field Office will carry out its inspection and enforcement responsibilities as
required by 43 CFR 3809.600 through 3809.605
8.3.5 Surface Owner Agreement
In reviewing the proposed Plan of Operations for operations proposed on SRHA and non-SRHA
lands, the District/Field Office should attempt to accommodate the provisions of any agreement
that may exist between the operator and the surface owner, as long as the agreement does not
cause UUD of public lands resources and is not likely to jeopardize proposed or listed threatened
or endangered species or their designated critical habitat.
8.4 Suction Dredging
The use of a suction dredge may be allowed or authorized under the surface management
regulations or may be authorized under state regulation if the BLM and the state enter into an
agreement under 43 CFR 3809.200.261 See Figure 8.4-1 Suction Dredging for a visual
description of the various ways suction dredging activity on public land may be regulated.
261
43 CFR 3809.31(b), 3809.200 and 3809.201.
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Figure 8.4-1 - Suction Dredging
Does BLM have an agreement under 3809.200 with the
state that meets these requirements of 43 CFR 3809.201(b)
and 3809.31(b)(1)?
▫ State required to notify the BLM within 15 days receipt each request
for suction dredging
▫ BLM has an agreement with a state agency covering the
management of suction dredging
▫ BLM informs state of T&E species present
▫ Operation do not start until consultation is complete
Yes
No
Operator files for
authorization to conduct
suction dredging
operations with the state
- 3809.31(b)(1)
State must notify BLM of
application within 15
calendar days 3809.201(b)
Area designated by BLM where
suction dredging meeting specific
criteria is considered casual use?
No
BLM review to verify if
T&E species or critical
habitat are potentially
impacted, either on an areawide basis or case-by-case
basis - 3809.31(b)(2) and
.201(b)
Consultation under ESA
required?
No
Yes
BLM completes ESA consultation,
either on an area-wide or case-bycase basis - 3809.31(b)(2) and .201(b)
State permits operation
Operation commences
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Yes
Operator contacts BLM
before beginning
operations - 3809.31(b)(2)
Consultation under ESA
required?
Yes
No
BLM completes ESA consultation,
either on an area-wide or case-bycase basis - 3809.31(b)(2) and .201(b)
BLM determines whether operation is
casual use, Notice or Plan - 3809.31(b)(2)
Provides authorization as required
Operation commences
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8.4.1 State Authorization
The BLM will not require a Notice or Plan of Operations if the following two criteria are met:
The state requires a permit for suction dredging activities, and
The BLM State Office has a Memorandum of Understanding (MOU) with the appropriate
state agency under 43 CFR 3809.200 addressing the permitting of suction dredging
mining activity.262
If these two criteria are met, the operator does not need to contact the BLM District/Field Office
to undertake suction dredging activities unless otherwise provided in the MOU between BLM
and the state.
Rather, the MOU between BLM and the state will require the state to notify the BLM of each
application to conduct suction dredging activities within 15 calendar days of receipt of the
application. How the state will inform the District/Field Office of these pending applications
varies depending on the specific MOU with the state.
Under the MOU, the state must withhold authorization until ESA consultation is completed. If
the BLM identifies a conflict with threatened or endangered species or proposed or critical
habitat then the District/Field Office must notify the state in writing of the conflict. See Section
12.2.4 Suction Dredging for an explanation of how equipment and location limitations may be
addressed in an agreement with the state.
Even if the operator does not need approval under the BLM’s surface management regulations
because there is an MOU with the state, if the operator proposes to occupy or use a site for
activities “reasonably incident” to mining, as defined in 43 CFR 3715.0-5, the operator must
seek separate authorization from the BLM for its occupancy.263
8.4.2 BLM Authorization
For all uses of a suction dredge not covered by authorization under state regulations, the operator
must contact the BLM before beginning such use to determine whether the operator must submit
a Notice or a Plan of Operations to the BLM, or whether the activities constitute casual use.264
8.4.2.1 Casual Use
The determination of whether the proposed suction dredging activity is casual use is dependent
upon the environmental impact of the proposed activity and not the mechanized equipment being
used. If the impact of the proposed suction dredging activity is greater than negligible
disturbance then a Notice or Plan of Operations is required.
262
43 CFR 3809.31(b)(1).
43 CFR 3809.31(c).
264
43 CFR 3809.31(b)(2).
263
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8.4.2.1.1 Designated Areas
The BLM may establish, through the land use planning process, that certain types of suction
dredging activity in designated areas constitute casual use. Where the BLM has made such a
designation and the proposed activity meets the established criteria, the operator does not need to
contact the District/Field Office before commencing activities. For example, where the BLM
determines that the use of suction dredges with an intake up to a certain diameter (e.g., up to 4
inches) in a designated section of a river is considered casual use; the operator does not need to
notify the District/Field Office prior to beginning his or her activity. The BLM will notify the
public via publication in the Federal Register of the boundaries of such specific areas and any
operating limitations, as well as through posting in each local BLM office having jurisdiction
over those lands.
8.4.2.2 Notice or Plan of Operations
Where the District/Field Manager determines that the operator must file a Notice or Plan of
Operations, the filing and review procedures must comply with 43 CFR 3809.301 through
3809.313 for a Notice or 43 CFR 3809.401 through 3809.412 for a Plan of Operations.
8.4.3 Threatened or Endangered Species
If the proposed suction dredging is located within any lands or waters known to contain federally
proposed or listed threatened or endangered species or their proposed or designated critical
habitat, regardless of the level of disturbance, the operator must not begin operations until the
BLM meets the requirements of the ESA consultation. These requirements apply whether the
operations are conducted under the BLM’s surface management regulations or under state
authority pursuant to an MOU. The BLM may meet these consultation requirements on a caseby-case basis for each proposed operation or may complete a programmatic consultation to meet
ESA requirements for specific types of activities within a designated area. If proposed activities
are not consistent with type of activity or location covered in the programmatic, then additional
consultation will be required.
8.5 Powersite Withdrawals
This section describes how the 3809 regulations apply to mining operations within powersite
withdrawals.265
The Mining Claims Rights Restoration Act of 1955266 (MCRRA), reopened all public lands
belonging to the United States that had previously been withdrawn or reserved under the Federal
Power Act for power development or powersites to mineral entry.
265
266
P. L. 84-359, 30 USC 621-625, 43 CFR part 3730.
Act of August 11, 1955, P. L. 84-359; 30 U.S.C. 621 et seq.
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However, the MCRRA did not reopen lands that were:
Included in any project operating or being constructed under a license or permit issued
under the Federal Power Act or other Act of Congress.
Under examination and survey by a prospective licensee of the Federal Energy and
Regulatory Commission provided the prospective licensee holds preliminary permit that
has not been cancelled or renewed more than once.267
Under Section 2(b) of the Mining Claims Rights Restoration Act, the locator of a placer mining
claim on reopened powersite lands must not conduct mining operations for a period of 60 days
after filing a notice of location with the proper BLM State Office. Note that there are no
restrictions on operators of lode claims.
During that time, the State Office will request a report regarding the need for a hearing from the
appropriate land management agency (i.e., Forest Service Regional Office or proper BLM
District/Field Office). This analysis and report must be submitted to the State Office within 50
days of the date of recording with the BLM so that the BLM may take the appropriate course of
action under the statute.
If the former powersite lands are managed by the BLM, the District/Field Office will examine
the proposed operations, using the surface management regulations as a guideline and applying
reasonable mitigation measures to the claim(s) or mill site(s) and prepare a report documenting
whether there are conflicts. If the application of the surface management regulations will not
resolve all apparent conflicts, the District/Field Office may request a public hearing under the
provisions of the Act. No referral for a hearing will be permitted until the above surface
management analysis has been completed and written up as a supporting report to the BLM
Deputy State Director in charge of mining claim or mining law adjudication. Based upon the
recommendations of the District/Field Office report, the BLM State Office will either:
Notify the mining claimant that no public hearing is required, or
Notify the mining claimant that the surface management agency has requested the
Secretary to hold a public hearing and that no activities greater than casual use is
permitted until after the public hearing is held by an Administrative Law Judge (ALJ) and
a final decision is issued by the Office of Hearings and Appeals.
The decision issued by the Administrative Law Judge is restricted to an order that provides for
one of the three options below:
267
An Order prohibiting placer operations is recorded by the Government in the County or
Borough’s Recording Office. This recording is not mandatory to make the Order valid,
but is done to protect the Government’s interest in the lands adjudicated and ruled upon.
43 CFR 3730.0-1.
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Permission to engage in placer mining on the condition that the mining claimant must
follow an approved Plan of Operations and restore the surface to the condition it was in
immediately prior to placer operations.
Non-conditional permission generally allowing the operator to engage in placer mining,
subject to all applicable laws and regulations.
When placer mining is permitted, the Administrative Law Judge will furnish the mining claimant
a certified copy of the Order for recording in the proper BLM State Office and the County or
Borough’s Recording Office. The Order is not valid until a certified copy is recorded. The
recording is at the expense of the mining claimant. The BLM applies its surface management
regulations to activities on the placer claim(s).
Each decision by an Administrative Law Judge is subject to the right of appeal to the Interior
IBLA under 43 CFR part 4, and no Order may issue until the Administrative Law Judge’s
decision, or a decision from IBLA upon appeal, is final.
Mining operations conducted on placer mining claims in violation of the requirements of the
Mining Claims Rights Restoration Act are in noncompliance and may be cited under 43 CFR
3809. The District/Field Manager must take appropriate actions to suspend the operation until
the procedures concerning the use and occupation of placer mining claims are in compliance.
8.6 Timber Resources
Mining claimants have limited rights to cut and use the timber on their mining claims. The
Surface Resources Act of 1955, 30 U.S.C. 612(c), permits mining claimants to clear the land in
the ordinary working of a mining claim and use the timber on a mining claim or site for
construction and improvements. Other than these limited, authorized uses, the timber on public
lands is the property of the United States and must be protected from unauthorized cutting or
damage.
The BLM may manage any timber not used for mining purposes and may direct the stockpiling
of timber for sale. No cutting of merchantable timber is permitted by the mining claimant or
operator without the written permission of the District/Field Manager. The term “timber” is
defined as standing trees, downed trees, or logs which are capable of being measured in board
feet (43 CFR 5400.0-5). This permission, or refusal to permit cutting, is to be addressed in the
BLM’s response to the Notice or Plan of Operations.
The cutting of timber is not a causal use activity. Timber resources cut, damaged, or destroyed
in violation of an accepted notice or an approved Plan of Operations or without proper
authorization is by definition UUD under 43 CFR 3809.605 and subject to the penalties
described in 43 CFR 3809.700.
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8.7 Land Use Plans
8.7.1 Performance Standard
Consistent with the Mining Laws, operations and post-mining land use must comply with the
applicable BLM land use, activity, and coastal zone management plans, as appropriate.268 See
Section 5.2.3 Complying with Land Use Plans.
The land use plan can be used to establish the objectives for post-mining land uses. The future
land uses will help define performance standards, including reclamation and mitigation
requirements for a particular operation (see BLM Handbook H-1601-1, Land Use Planning
Handbook). Preparation of a land use plan is not a prerequisite to processing a Notice or
approving a Plan of Operations. Notices and Plans are to be processed according to the
timeframes in the regulations, and are not to be delayed pending completion of a land use plan.
The Plan of Operations or Notice must comply with the land use plan in effect when the DR or
ROD is signed or the Notice is accepted.
In addition, land use plans must recognize the rights granted by the Mining Law to enter,
explore, and develop mineral resources on the public lands. A land use plan cannot change the
law’s authorization to use public lands that are open to location under the Mining Law. Areas
may only be removed from operation of the Mining Law by congressional withdrawal or in
accordance with the withdrawal provisions of Section 204 of FLPMA. Restrictions in a
particular land use plan have no force and effect on the right of entry until one of the two
procedures stated above has occurred. Further, in areas open to mineral entry, or closed subject
to valid existing rights, the land use plan cannot be used to preclude mining or restrict certain
types of mining activities. For example, land use plans cannot be used to “zone” areas where
open pit mining is not allowed, ban cyanide use, prohibit placer mining, or generally place limits
on the type or size of an operation.
8.7.2 Opening Lands to Mineral Entry
For public lands that are sold or exchanged under 43 U.S.C. 682(b) (Small Tracts Act), 43
U.S.C. 869 (Recreation and Public Purpose Act), or 43 U.S.C. 1713 (FLPMA sales), the minerals
reserved to the United States are segregated from operation of the mining laws unless a land use
planning decision explicitly restores the lands to mineral entry.269 The provisions of the surface
management regulations, including 43 CFR 3809.31, do not automatically make these lands open
to mineral entry under the mining laws. Thus, as land use plans are updated, the District/Field
Manager should review the occurrence of such lands in the planning area and consider whether
or not to open the lands to mineral entry. In addition, the BLM must use the land use planning
process to consider opening any split estate lands in the planning area that were closed as the
result of a sale.270 Therefore, the opening of these lands to mineral entry is part of the planning
process.
268
43 CFR 3809.420(a)(3).
43 CFR 3809.2.
270
As of January 20, 2001, the regulatory barrier keeping the minerals beneath lands conveyed in exchange for sale
closed to mineral entry until the Secretary promulgates regulations, has been removed. This did not automatically
269
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8.7.3 Post-Mining Uses
In developing or amending a land use plan, the BLM should consider alternative uses of public
lands after mining has ceased (see BLM Handbook H-1601-1, Land Use Planning Handbook).
In the past, the assumption has been that disturbed lands will be returned to pre-mining uses after
mine closure. Reclamation requirements found in filed Notices and approved Plans generally
reflect this assumption. Reclamation plans generally require regrading and reshaping to conform
to adjacent landforms, and removing buildings, structures, facilities, and other infrastructures,
such as roads and power lines.
Pre-mining uses, however, may not always be the most beneficial uses of the public lands after
mining has ceased. The BLM land use decisions should consider post-mining uses of the public
lands that help sustain the economic and social wellbeing of the communities directly impacted
by mineral development. The BLM decisions concerning reclamation, post-mining uses, and
even land disposal should also consider sustainable development of the communities after mine
closure.
For example, community economic growth may be sustained after mine closure by using the
existing infrastructure (roads, power lines, water supply, etc.) to bring in a new industrial use to
replace the mining activity. However, such opportunities can only occur where the land use plan
has considered and allowed for such alternative post-mining uses. Post-mining land uses must
avoid disturbing engineered containment cells where subsequent infiltration of groundwater,
surface water, or effluent leakage can contaminate the environment. Such areas must be properly
located on BLM maps and geodatabases and marked for protection. In particular excavation or
even erosion must be avoided.
8.7.4 Casual Use Areas of Concern
Where the cumulative effects of activities that ordinarily would be considered casual use have
resulted in, or are reasonably expected to result in, more than negligible disturbance, the activity
is not considered casual use. The State Director may designate specific areas, through the land
use planning process, where the individual or group must contact the BLM District/Field Office
before beginning such activities. See Section 2.2 Cumulative Effects for a discussion on making
such a designation.
8.7.5 Suction Dredging Use Areas
The BLM may establish, through the land use planning process, that certain types of suction
dredging activity in designated areas constitute casual use. Where the BLM has made such a
restore such lands to mineral entry--but created the ability to open them after addressing the issue in the respective
land use plan. The intent of 43 CFR 3809.2(a) is further explained in the preamble at Federal Register page 70006
(11/21/2000); and states: “...although these rules remove the regulatory bars in the former land resource
management rules which prevented public lands with reserved minerals from being restored to mineral entry under
the mining laws, they allow such restoration to occur on an area-specific basis only after subsequent land-use
planning decisions occur, and BLM notifies the public.”
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designation and the proposed activity meets the established criteria, then the operator does not
need to contact the BLM District/Field Office before commencing activities. See Section 8.4.2.1
Casual Use for a discussion on making such a designation.
8.8 Pre-Existing Disturbances and Facilities
Pre-existing disturbance includes any surface disturbance resulting from mining-related activities
that has been abandoned and left unreclaimed by the operator who caused the surface
disturbance. Pre-existing facilities includes any structure or material that qualifies as an
“occupancy” as defined in 43 CFR 3715 that has been abandoned and left unreclaimed by the
operator who placed the structure or materials on public lands.
Operators wishing to conduct mining operations under the Mining Law are not authorized to use
or occupy pre-existing facilities or to affect pre-existing disturbances without BLM
authorization. The BLM is not obligated to and will not authorize an operator to use or occupy
pre-existing facilities or to affect pre-existing disturbances unless the operator agrees to comply
with reclamation requirements of both 43 CFR 3715 and 43 CFR 3809 with regard to those
facilities and disturbances as follows:
Pre-existing disturbances - Under 43 CFR 3809, an operator is responsible for reclaiming
all portions of pre-existing disturbances that his or her operation will affect.
Pre-existing facilities - The decision on which reclamation provisions apply to preexisting facilities that will be used or occupied will be made on a case-by-case basis by
the District/Field Office.
The authorization (Notice or Plan of Operations) must clearly describe the operator’s obligations
for pre-existing disturbances and pre-existing facilities.271
8.8.1 Proposed Operations
As part of the BLM’s review and acceptance of a complete Notice or approval of a Plan of
Operations, the BLM must ensure the Notice or Plan of Operations identifies the operator’s
reclamation obligations for any pre-existing disturbances that will be affected and pre-existing
facilities that will be used or occupied. Notices or Plans of Operations that do not adequately
address, to the BLM’s satisfaction, the operator’s reclamation obligations for pre-existing
disturbances and pre-existing facilities will not be considered complete under 43 CFR 3809.301
and 3809.401, respectively. The required financial guarantee must reflect all operator
obligations as called for in the accepted Notice or approved Plan of Operations, including the
cost of completing reclamation obligations associated with the use or occupation of pre-existing
facilities and affecting pre-existing disturbances.
8.8.2 Existing Operations
If the mining claimant or operator has an existing Notice or Plan of Operations that does not
expressly address the operator’s reclamation obligations for pre-existing disturbances that the
271
James R. McColl Decision, 159 IBLA 167 (May 29, 2003).
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current operator has affected or will affect or for pre-existing facilities that are or will be used or
occupied, then the BLM must clarify such obligations as it becomes aware of the operator’s
violation of these regulations. For Notices, this clarification is included as a modification of the
Notice under 43 CFR 3809.331 or Notice extension under 43 CFR 3809.333, whichever occurs
first. For Plans of Operations, this clarification is added as a modification of the Plan of
Operations under 43 CFR 3809.431 or included as part of the review of the reclamation cost
estimate and financial guarantee as required under 43 CFR 3809.552(b), whichever occurs first.
Regardless of the BLM’s actions to require modifications of the Notice or Plan, the operator and
the claimant remain liable.
8.8.3 Operator Liability
The extent of reclamation required under 43 CFR 3715 and/or 43 CFR 3809 does not in any way
limit liabilities under any other environmental laws. For example, an operator who conducts
operations involving pre-existing disturbances and pre-existing facilities may be liable for
remedial action or other response under the CERCLA in the event of a release of a hazardous
substance (as defined by CERCLA) into the environment, and may also be subject to the
requirements of other environmental laws.
8.8.4 Previous Operator
In situations where the BLM has located the previous operator and that operator has agreed to
complete the reclamation of pre-existing disturbances and pre-existing facilities for which he or
she is responsible, including any response and remedial action necessary to address the release of
hazardous substances, the current operator has no right to deny access to a previous operator who
wishes to complete his or her reclamation obligations. Should the current operator’s operations
interfere with activities necessary to fulfill the previous operator’s reclamation obligations, the
current operator must either (1) allow the previous operator to complete his or her obligations or
(2) modify his or her Notice, Plan, or occupancy concurrence to assume full responsibility for the
reclamation of those portions of the pre-existing disturbances and pre-existing facilities.
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Chapter 9 Inspection and Enforcement
This chapter covers inspection requirements under 43 CFR 3809.600, enforcement requirements
under 43 CFR 3809.601 through 3809.604, prohibited acts under 43 CFR 3809.605, and
penalties under 43 CFR 3809.700 through 3809.701.
9.1 Conducting Inspections
9.1.1 Authority
The responsibilities for the inspection of operations are specifically addressed at 43 CFR
3809.600. However, BLM inspections are not necessarily limited to the specific requirements of
the surface management regulations, but are conducted relative to all applicable regulations and
laws governing mineral operations conducted under the authority of the Mining Law.
Inspections should address both 43 CFR 3715 and 43 CFR 3809 requirements, when applicable.
9.1.1.1 Facilities and Permits
An inspection may include any physical aspects of the operation, including all structures,
equipment, and workings located on the public lands. An inspection may also include an
examination of any pertinent files the operator may have pertaining to the permitting of the
operation and the storage of chemicals and supplies. Permits, approvals, and authorizations
subject to verification include any such documents issued or required by local, state, or Federal
authorities that are, or may be, required for lawful operation.
9.1.1.2 Access
The operator must allow the BLM to inspect all aspects of operations on public lands and, as a
condition of operating on public lands, must allow the BLM inspector reasonable access through
their private lands in the project area in order to inspect public lands. Any attempt by an
operator to restrict or impede an inspection is prohibited and subject to enforcement actions by
the BLM under 43 CFR 3715 and/or 43 CFR 3809.
As noted in 43 CFR 3809.600(a), the regulations at 43 CFR 3715.7 contain a special provision
governing the inspection of the inside of structures used solely for residential purposes. The
provision272 states:
272
The BLM will not inspect the inside of structures used solely for residential purposes,
unless an occupant or a court of competent jurisdiction gives permission.
This limitation applies only to structures used solely as a residence. If a structure is used
also as an assay lab or other such component of an operation, that area may be inspected
by the BLM. However, if an operator or claimant objects to an inspection of his/her
private residence, consult BLM Law Enforcement before continuing.
43 CFR 3715.5-7 (b).
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The BLM has the right and responsibility to inspect all mining operations on public lands;
however, an inspector should not insist on obtaining entry to a site or structure when the claimant
or operator objects to the inspections. In these cases, the inspector must contact his/her
supervisor. The supervisor will work with BLM Law Enforcement and, if necessary, the
Solicitor’s Office to gain entry to those sites or facilities.
9.1.2 Frequency and Timing
At least four times each year, the responsible District/Field Office will inspect an operation if the
operator uses cyanide or other leachates or where there is significant potential for acidic or
deleterious drainage.273 Active Plans that do not involve leachates will be inspected at least two
times per year. Active Notices will be inspected at least once a year. These inspection
frequencies are minimums; District/Field Offices may and will conduct inspections on a more
frequent basis where it is deemed necessary. An active inspection program by BLM
District/Field Offices is critical for ensuring compliance with the surface management
regulations.
9.1.2.1 Acid Drainage and Chemicals
For operations where there is a significant potential for acidic or deleterious drainage, the
regulations require an inspection at least four times a year. Special care should be taken to
ensure that operations that pose a potential to generate acid drainage are adequately inspected.
In addition, special attention must be given to operations that use large amounts of chemicals,
fuels, and explosives. Failure to follow the approved Plan and maintain compliance with
performance standards at these operations has a potential to result in UUD. The inspector may
spend extra time on the ground and review the approved Plan on file in addition to monitoring
data in advance of the inspection.
9.1.2.2 Irregular Schedule
The BLM has the authority to inspect operations at any time. District/Field Offices are
encouraged to maintain a frequent, recurring, but irregular schedule of inspections for all active
Plans and Notices. Areas known to host large concentrations of casual use activity should be
inspected as if they were an active operation under a Plan or Notice.
9.1.2.3 Operator Notification
The District/Field Office is not required to notify the operator of the inspection or have the
operator present during an inspection. When criminal activity is suspected, Law Enforcement
personnel may require that the operator not be present or be informed of the inspection.
273
43 CFR 3809.600(b).
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9.1.2.4 Frequency of Occupancy Related Inspections
Occupancies will be inspected on a regular basis to ensure they meet the requirements of 43 CFR
3715. Failure to comply with 43 CFR 3715 constitutes UUD which is a prohibited act under 43
CFR 3809.605(a) and (f).
9.1.3 Inspection Activities
The BLM may inspect any physical aspects of the operation, including all structures, equipment,
and workings located on the public lands. As part of the inspection, the BLM may also examine
any pertinent files the operator may have pertaining to the permitting of the operation and the
storage of chemicals and supplies. Permits, approvals, and authorizations subject to verification
include any such documents issued or required by local, state, or Federal authorities that are, or
may be, required for lawful operation.
Before the inspection:
Review the last inspection report for the operation. Note any items identified for followup during the last inspection. Check the case file for ongoing or unresolved compliance
problems.
Review monitoring reports, if any, provided by the operator since the last inspection.
Determine additional resource specialists whose expertise may be needed during the
inspection and solicit their participation.
Review the Plan or Notice on file and identify areas or aspects of the operation where you
want to focus the inspection to determine compliance. Pay particular attention to any
conditions of approval placed upon the operation.
Schedule the inspection with the operator if you need the operator’s assistance or
participation during the inspection. Consider scheduling the inspection when the operator
or other agencies’ personnel, such as the state regulators, can be present.
Ensure that all field and safety equipment is available and in working order. This
includes hard hat, steel-toed boots, camera, sample bottles or bags, global positioning
system (GPS) unit, field test instruments, inspection forms, etc.
During the inspection:
Compare the on-the-ground operation with the Notice or Plan on file and note any
discrepancies.
Discuss with the operator or the operator’s designated representative the status of the
operation and any difficulties they may be experiencing in implementing the Plan or
Notice.
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Use photos to document site conditions, especially where there are compliance issues.
Where appropriate and feasible, take field measurements and/or lab samples of water,
soil, waste rock, etc., as needed to verify the operator’s monitoring plan or to make
compliance determinations. Carefully mark and maintain the chain of custody for any
sample that will be used in compliance determinations. Locate the samples or
measurements with GPS. Typical modern non-survey GPS accuracies are within 3
meters if the receiver has Wide Area Augmentation System (WAAS) or within 15 meters
if it does not.
Take detailed notes during the inspection in order to support preparation of the inspection
report. For Notices or some Plans, it may be possible to directly document inspection
results on a pre-printed inspection form while onsite.
Prior to leaving the site, hold a close-out discussion with the operator, or their designated
representative, on the results of the inspection. If using a pre-printed inspection form,
leave a copy with the operator. Be sure to document any field resolution of compliance
issues or other agreements made with the operator in the inspection report.
If at any time during the inspection you encounter suspected criminal activity or other
dangerous conditions, such as the release of hazardous materials, leave the site
immediately and report the situation to your supervisor and BLM Law Enforcement
and/or hazardous materials staff.
After the inspection:
Deliver any samples collected during the inspection to the appropriate analytical lab.
If not prepared while onsite based on the field notes, prepare a written inspection report
that documents site conditions. Attach any photos and test results to the inspection
report.
Brief management on any compliance problems noted during the inspection. Prepare any
follow-up enforcement orders that may be warranted based on the results of the
inspection.
Place a copy of the inspection report in the case file and send a copy to the operator and
appropriate state agency.
Enter the inspection into the LR2000 system within 5 working days.
9.1.4 Safety
Safety must be foremost in the mind of the inspector and his/her supervisor. When conducting
an inspection, the inspector is ultimately responsible for making safe choices. If there is a doubt
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in the inspector’s mind about the safety of structure, excavation, or storage facility, the inspector
must not enter. In these situations supervisors will not take any action to force or compel the
employee to conduct an inspection until adequate steps have been taken to mitigate the hazard to
a degree that an inspection can be performed. If such a situation exists, there may be a violation
of either 43 CFR 3715 or 43 CFR 3809 or both, and further inspection may not be necessary for
the enforcement process to proceed. In short, the regulations governing use and occupancy and
surface management of mining claims are in place to protect BLM personnel as well as the
general population from immediate threats to health and safety.
9.1.4.1 Safety Equipment
Proper field gear must be provided each inspector. At a minimum, this equipment must include a
hard hat, safety glasses with appropriate UV/glare protection, steel-toed shoes, adequate supplies
of water, and a first aid kit. When conducting inspections, the BLM employee must wear the
safety equipment applicable to the type of operation and stage of activity.
9.1.4.2 Inspector Safety Training
Any BLM employee engaged in inspecting active mining operations must be given any safety
training routinely provided other field personnel. We recommend for surface operations, BLM
employees performing inspections receive training equivalent to that required by the MSHA
regulations found at 30 CFR part 48B.
9.1.4.3 Underground Operations
Inspections of underground operations for surface compliance issues are not routine. When it is
necessary to inspect underground operations, the BLM employee must comply with the
procedures and guidance, including training requirements, found in the BLM’s underground
entry policy.
It is the responsibility of the operator to make sure that underground portions of its operations
can safely be inspected, consistent with the MSHA regulations. At a minimum, the operation
should be registered with the MSHA, and be subject to routine inspections by that agency. All
mine operations, regardless of size, are required to notify MSHA of their existence. MSHA
inspection frequency may vary from district to district, so anyone entering an underground
mining operation should inquire as to when the last MSHA inspection was conducted.
Nevertheless, appropriate caution should be exercised when entering any underground mine,
regardless of MSHA inspection frequency. Do not enter any portion of an underground mine
that has been closed by the operator.
9.1.4.4 Safety Procedures around Suspected Criminal Activities
During the inspection of a mining operation, BLM inspectors may find evidence of criminal
activities such as illegal drugs, illegal drug labs, illegal weapons, explosive caches, and
fraudulent activities. In such cases, the inspector must terminate the inspection immediately and
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notify, through his/her supervisor, BLM Law Enforcement. The inspector should not attempt to
collect evidence or in any way disturb a possible crime scene.
9.1.4.5 Safety Procedures around Hazardous Materials
A BLM inspector may discover an unauthorized waste dump or spill that indicates the presence
of potential hazardous substances (e.g., containers of unknown substances, pools of
unidentifiable liquids, piles of unknown solid materials, unusual odors, or any materials out of
place or not associated with an authorized activity), any type of Hazardous Materials release, or
suspected violations of either the RCRA or the CERCLA. In such cases, the BLM inspector
must take the following precautions:
Treat each site as if it contains hazardous materials.
Do not handle, move, or open any containers, breathe vapors, or make contact with any
materials.
Move a safe distance upwind from the site.
Contact the appropriate site personnel for the operator (Hazardous Materials or
Environmental Coordinator). In addition, notify the appropriate BLM and state officials.
The Occupational Safety and Health Act (OSHA) hazardous waste operations and emergency
response regulations are contained in 29 CFR 1910.120, and are referred to as the HAZWOPER
regulations. The HAZWOPER regulations identify requirements for first responders, who are
described as “...individuals who are likely to witness or discover a hazardous substance release,
and who have been trained to initiate an emergency response sequence by notifying the proper
authorities of the release.”
Any BLM employee working in the field may witness or discover a hazardous substance release
while conducting his/her job responsibilities. In order to ensure that field personnel are familiar
with the potential hazards associated with such a release:
A minimum of 2 hours of First Responder Training must be completed by all new field
personnel; this training should be provided by a Hazardous Materials Coordinator in the
State or District/Field Office who has completed the necessary hazardous materials
awareness training offered by the National Training Center (NTC).
Additional training materials such as films and presentations are available through the
NTC and should be reviewed on a periodic basis.
District/Field Managers are responsible to ensure that field personnel meet this health and
safety requirement.
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9.1.5 Documentation of Inspections
The findings and results of each inspection must be documented. At the end of each inspection,
and before the inspection can be entered in LR2000, an inspector must complete an inspection
report. Checklists and inspection report forms can be used but they must always be accompanied
by sufficient narrative to completely describe the situation found during the inspection. The
report must be prepared using sufficient narrative and photographs to completely document the
nature of any violations found during the inspection. See Chapter 13 Records Management of
this handbook for further guidance concerning documenting requirements.
Since the state and Federal regulatory requirements vary by state, the individual BLM State
Offices may develop a standard inspection report format to be used in their state as statewide
program guidance. Each State Office’s report format must contain the following:
The date the report was written.
The date of the inspection.
The name(s) of anyone present during the inspection and affiliation (BLM employees,
state or Federal regulators, operator’s employees, law enforcement).
Geographic coordinates (UTM – NAD83) for a location, or township, range, and section
descriptions sufficient to locate the operation on the ground.
A discussion of the site including any and all elements of occupancy, descriptions of
chemical, explosive, and fuel storage, and the extent of all surface disturbances.
A description of any suspected compliance violations, including site conditions, citation
of regulatory provision violated, and any follow-up action to be taken.
Portable GPS units should be used for mapping whenever possible. Photos to document site
conditions are especially valuable and must be appropriately labeled with a suitable caption, the
date, and the name of the photographer.
Proper documentation is not limited to an inspection report. It is critical that any identified
noncompliance be documented in a noncompliance order (see Section 9.2.3.1 Noncompliance
Order). A noncompliance order is the BLM’s primary means of documenting noncompliance
and directing the operator as to the steps needed to remedy the situation.
9.2 Enforcement Actions
9.2.1 Prohibited Acts
The regulations at 43 CFR 3809.601 through 3809.604 address the BLM’s authority to take
enforcement actions when operators engage in one of the prohibited acts under 43 CFR
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3809.605, or otherwise do not meet the requirements of these regulations. Prohibited acts
include, but are not limited to, the following:
Causing any UUD.
Conducting operations, other than casual use, without an accepted Notice or approved
Plan.
Conducting operations outside the scope of the accepted Notice or approved Plan.
Conducting operations without an acceptable financial guarantee.
Failing to meet all regulatory requirements when not conducting operations.
Failing to comply with all applicable performance standards.
Failing to comply with any enforcement action.
Abandoning any operation prior to complying with all reclamation and closure
requirements.
9.2.2 Regulatory Overlap of Enforcement Actions
Paragraph 43 CFR 3809.601 specifies what types of enforcement action the BLM may take for
operations that do not meet the requirements of these regulations. However, where there is a
violation under 43 CFR 3809, there may also be a violation under 43 CFR 3715.
In general, the 43 CFR 3809 regulations should be used in instances dealing with “Unnecessary
or Undue Degradation” under FLPMA Section 302(b), 43 U.S.C. 1732(b), specifically violations
of Notices, Plans, and the provisions governing financial guarantees. The Use and Occupancy
Regulations at 43 CFR 3715 also incorporate the UUD standard, but should be used to deal with
occupancies or activities that are not “Reasonably Incident to Mining” under the Surface
Resources Act, 30 U.S.C. 612. There is, however, considerable overlap between the two sets of
regulations. For example, violations involving the lack of permits and/or violations that is or
could cause environmental damage can be enforced with either set of regulations. That is
because failure to comply with applicable permits and regulations is by definition “unnecessary
or undue degradation” under the 43 CFR 3809 regulations, as well as being a prohibited act
under 43 CFR 3715.6. In addition, an operator is by definition causing UUD if use and
occupancy is not “reasonably incident” under 43 CFR 3715 (see 43 CFR 3809.5). Despite the
overlap, when issuing an enforcement order, the BLM will issue the order under either 43 CFR
3809 or 43 CFR 3715. If enforcement under both regulations is appropriate, the BLM must issue
two separate enforcement orders because the appeal requirements under the two regulations
differ.
Enforcement actions issued by the BLM against operators for failure to obtain local, state, or
other Federal permits, or for violating those permit conditions, must be based on a finding from
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the applicable permitting authority that the operator is either operating without a required permit
or is in violation of its permit conditions. The BLM does not independently determine if a
permit from another agency is required for the operation or that a local, state, or other Federal
agency’s permit conditions have been violated. Rather, the BLM relies on those agencies to first
determine whether their own laws or regulations have been violated. If another agency notifies
the BLM that they have determined an operation on public lands is in violation of their local,
state, or Federal requirements related to environmental protection or protection of cultural
resources, then it may be appropriate for the BLM to issue an enforcement order against the
operator citing noncompliance with 43 CFR 3809.420 or, if occupancy is involved, 43 CFR
3715.6.
9.2.3 Types of Enforcement Orders
Enforcement actions under 43 CFR 3809.601 are taken when there is a clear violation of one or
more of the prohibited acts listed under 43 CFR 3809.605. The BLM may issue three types of
enforcement orders: - noncompliance orders, suspension orders, and immediate temporary
suspension orders. To assist with the proper implementation of enforcement orders,
Figure 9.2-1, Inspection and Enforcement Order Procedures, shows when enforcement actions
are to be taken.
9.2.3.1 Noncompliance Order
A noncompliance order274 will be issued for failing to comply with the provisions of a Notice or
Plan, or any violation of 43 CFR 3809.275 Appendix A, Template 9.2-1, Noncompliance Order,
presents a template for a noncompliance order. A noncompliance order must include all of the
following:
Describe the violation.
Identify the corrective action.
Provide the timeframe in which the corrective action must occur.
A noncompliance order must be issued by itself and not in conjunction with a suspension order
or an immediate temporary suspension order. Generally a noncompliance order is issued for
infractions of the regulations that do not involve immediate danger or harm to health, safety, or
the environment. A noncompliance order should never be issued for violations that are
significant to a degree that health, safety, or the environment are at immediate risk. In these
instances, an enforcement action under 43 CFR 3715 or 43 CFR 3809.601(b)(2) must be taken.
274
Note that the term “notice of noncompliance” (NON) is not used in 43 CFR 3809.601. The correct title of this
enforcement action is a “noncompliance order.” A NON is a term used in 43 CFR 3715 and carries differing
penalties and appeals authorities. The two terms are not interchangeable.
275
43 CFR 3809.601.
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Figure 9.2-1 - Inspection and Enforcement Order
Require operator to modify Notice
or Plan if needed to prevent UUD
(3809.331 & 3809.431)
Also use enforcement procedures
under 43 CFR 3715 for occupancyrelated compliance problems
Refer suspected criminal activity to
BLM law enforcement
Inspect the area of operation and evaluate for:
Operator following the Notice or approved Plan
Any unanticipated impacts or conditions
Occurrence of prohibited acts (3809.605)
Identify compliance problems or violations
Attempt field resolution for minor violations
Document in the inspection report
Evaluate Compliance Violation(s)
No
Will the violation(s) result in imminent
danger or harm to health, safety, or the
environment?
Issue Noncompliance Order
Identify violations
Specify corrective actions
Establish timeframe
Monitor corrective action
Issue Immediate Temporary
Suspension Order (3809.601(b)(2))
Yes
Monitor corrective action
Establish a case file if none exists
Continue monitoring
the violation for effects
Has the violation been corrected in
accordance with the immediate
temporary suspension order?
May order a Plan for
current or future noticelevel activity
Yes
Has the violation been
corrected in accordance with
the noncompliance order?
Yes
No
Issue decision lifting
the suspension order
Note any special
operating conditions
No
Notify operator of
intent to revoke Plan or
Nullify Notice
Provide for hearing
with State Director
earing.
Is the violation
significant? (3809.601(b))
May result in harm
Substantial deviation
Yes
No
Proceed according to
findings of SD hearing
Yes
Issue decision lifting the
noncompliance order
Note any special
operating conditions
Notify operator of intent
to issue suspension order
Provide for hearing with
State Director
Proceed according to
findings of SD hearing
Has the operator
complied with the
corrective actions in the
suspension order?
Issue Suspension Order
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No
List operator actions
required to comply
Monitor
Issue Notice or Plan
Revocation
Order reclamation and
corrective measures
Enforce corrective measures using
civil or criminal procedures
Forfeit financial guarantee
Assess penalties
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9.2.3.2 Suspension Order
Suspension of all or part of an operation may be ordered for failure to comply with a
noncompliance order276 for a significant violation. Before issuing the suspension order, the
District/Field Manager must:
Determine that the operator has failed to timely comply with a noncompliance order for a
significant violation.
Notify the operator of the BLM’s intention to issue a suspension order.
Provide the operator an opportunity for an informal hearing before the State Director to
object to the suspension.
9.2.3.2.1 Determination of Significant Violation
A “significant” violation under 43 CFR 3809.601(b) is one that causes or may result in
environmental or other harm or danger, or that substantially deviates from the complete
Notice or approved Plan of Operations. Examples of significant violations include, but
are not limited to:
The disturbance of surface areas not covered in an accepted Notice or approved Plan of
Operations.
The unauthorized storage or use of chemicals or fuels.
Operating without an acceptable financial guarantee.
If you are unsure whether a violation can be considered “significant,” contact the Solicitor's
Office for further guidance.
9.2.3.2.2 Operator Notification to Issue Suspension Order
Before issuing a suspension order, the District/Field Manager must notify the operator of the
Bureau’s intent to issue a suspension order (See Appendix A, Template 9.2-2 Notification of
Intent to Issue a Suspension Order). This notification must be in writing and take the form of a
letter, rather than a formal decision. The notification will not contain any appeals language as it
merely informs the operator of an impending action and the availability of an informal hearing at
the operator’s request. The notification must reference the original noncompliance order and
must remind the operator of its responsibilities under the original order.
The notification must not in any way alter the terms of the noncompliance order. In those
instances where the conditions of the noncompliance order must be amended, an amendment to
the noncompliance order must be written before the notification may be sent.
276
43 CFR 3809.601(a).
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The notification must also inform the operator that it has an opportunity for an informal hearing
before the BLM State Director to object to the suspension.
Following issuance of the Notification of Intent to Issue a Suspension Order (Appendix A,
Template 9.2-2), if the operator still fails to comply with the noncompliance order, the
authorized officer may issue a suspension order (See Appendix A, Template 9.2-3 Suspension
Order).
When writing a suspension order, remember that the objective is to stop the action or activities
that are in violation of the regulations and not necessarily the entire operation. In addition,
suspension orders must not be issued for violations that are minor in nature and probably will not
rise to a level that is significant.
9.2.3.2.3 Informal Hearing
An informal hearing with the State Director must be offered to an operator before a suspension
order is issued unless an immediate temporary suspension order is issued. A request for an
informal hearing with the State Director must be made with the office of the State Director
within 15 days of the District/Field Manager’s decision.
The informal hearing should be arranged as soon as possible but no later than 10 working days
after the operator requests an informal hearing. The informal hearing may be conducted via
teleconference if agreed upon by all parties.
The informal hearing as well as all conversations held with the District/Field Office or the
affected party must be documented in the case file. No court reporter is used or other transcript
of the informal hearing is made.
9.2.3.3 Immediate Temporary Suspension
The District/Field Manager may order an immediate, temporary suspension of all or any part of
an operation without issuing a noncompliance order, notifying the operator in advance, or
providing the operator an opportunity for an informal hearing if:
The operator does not comply with any provision of their Notice, Plan of Operations, or
the surface management regulations; and
An immediate, temporary suspension is necessary to protect health, safety, or the
environment from imminent danger or harm.
Note that 43 CFR 3809.601(b)(2) requires both conditions to be met before issuing an
immediate, temporary suspension (Appendix A, Template 9.2-4, Immediate Temporary
Suspension Order).
The exception to meeting both conditions occurs where operations are being conducted without
proper authorization. Where an operator is conducting plan-level operations without an
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approved Plan of Operations or Notice-level operations without submitting a complete Notice,
the BLM may presume that an immediate suspension is necessary.
9.2.3.3.1 Use and Occupancy
The language used in 43 CFR 3809.601(2) is similar to the language found in 43 CFR 3715.71(a)(ii) for issuing an immediate, temporary suspension. However, because an Immediate
Temporary Suspension under 43 CFR 3715 cannot be stayed by appeal, it is the most powerful
order available to the BLM and should be used in all instances involving chemical releases or
ongoing activities that are causing environmental damage at a mine site. In instances where a
direct threat to health, safety, or the environment results from actions taken by an operator, an
immediate temporary suspension order under 43 CFR 3715.7-1 must be considered. An
immediate temporary suspension order under 43 CFR 3715 cannot be stayed by an appeal to
IBLA and does not require State Director review. An order under 43 CFR 3715 also provides for
civil as well as criminal penalties for those who do not comply and offers the most direct,
positive means for dealing with a serious threat. In instances where violations of the Clean
Water Act, Safe Drinking Water Act, RCRA, or CERCLA are involved, an order issued under 43
CFR 3715 should be written.
9.2.4 Preparation of Enforcement Orders
All enforcement orders must be in writing, issued as formal decisions, and include the pertinent
appeals language. In addition, any enforcement order must clearly require abatement of the
violation under the appropriate subpart.277 This is necessary to ensure that, should subsequent
criminal violations ensue, the administrative record will not be vague and that knowing and
willful misconduct is established and documented. Documenting the BLM’s notice of the
violation is extremely important. If subsequent criminal violations ensue, such documentation in
the administrative record will support a charge of knowing and willful misconduct, which will
generally cause the amount of damages to be increased. In addition, such documentation in the
case file is important to defend against any administrative appeal of the enforcement order.
Any enforcement order under 43 CFR 3809.601(a) or (b) must specify:278
277
278
How the operator is failing or has failed to comply with the regulatory requirements of 43
CFR 3809. This must be a detailed list of the regulations that the operator is violating,
including the subsection if applicable.
The portion of the operation, if any, that the operator must cease or suspend. Note that a
noncompliance order does not require an operator to cease any particular action but
provides a list of actions that the operator must take to avoid further actions that would or
could involve the suspension of all or part of their operations.
The actions the operator must take to correct the noncompliance and the time, not to
exceed 30 calendar days, within which the operator must start corrective action.
43 CFR 3715 or 43 CFR 3809.
43 CFR 3809.601(c).
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The time within which the operator must complete corrective action. Note that the
timeframe for actions to take place begins with the “effective date” of the order. The
effective date is specified as the date of receipt of the order (date received for certified
mail - return receipt requested) or the date of personal service for orders delivered by
hand.
A reference to specific and pertinent details from the case file that establish the facts on
which the action is predicated. These facts should lead concisely and logically to the
conclusions drawn concerning the violations.
A reference to 43 CFR 3809.604 that specifies the civil actions that the BLM may request
for violations of the order, that the BLM may revoke an approved Plan of Operations or
nullify a Notice as allowed by 43 CFR 3809.602, and the criminal penalties at 43 CFR
3809.700.
9.2.5 Serving an Enforcement Order
Under 43 CFR 3809.603(a), the BLM will serve a noncompliance order, a notification of intent
to issue a suspension order, a suspension order, or another enforcement order on the person to
whom it is directed or his or her designated agent.
The BLM will send the notification or order by certified mail - return receipt requested, by hand
to the operator or his or her designated agent, or consistent with the rules governing service of a
summons and complaint under Rule 4 of the Federal Rules of Criminal Procedure (see Appendix
F – Arrest Warrant or Summons upon Complaint).279 The BLM may also serve the notification
or order by leaving a copy at the operator’s residence or usual place of abode with another adult
residing at that location and by mailing a copy to the operator’s last known address. If the
operator is an organization or corporation, the BLM will deliver a copy of the notification or
order to an officer, a managing or general agent, or another agent appointed or legally authorized
to receive service of process. A copy of the notification or order must also be mailed to the
organization’s last known address within the district or to its principal place of business
elsewhere in the United States. Service is complete when the written notification or order is
offered or certified mail is received, and is not incomplete because of refusal to accept.
The BLM may also deliver a copy of the written notification or order at the operator’s project
area to the designated agent or to the individual who, based upon reasonable inquiry, appears to
be in charge. If no such individual can be located at the project area, the BLM may offer a copy
of the written notification to any individual at the project area who appears to be an employee or
agent of the person to whom the notification or order is issued. Service is complete when the
notice or order is offered, and is not incomplete because of refusal to accept. Following service
at the project area, the BLM will send an information copy by certified mail - return receipt
requested to the operator or the operator’s designated agent.
279
Federal Criminal Code and Rules, Rules of Criminal Procedure, Preliminary Proceedings, Rule 4 – Arrest
Warrant or Summons on a Complaint.
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When delivery is made by hand, the serving official must place a declaration in the case filing
stating that hand-delivery was made, giving the date and time of the delivery, the name of the
person who received service, and the name of the serving official. Note that the regulations
specify that when serving a notification or order by personal service, an information copy will
also be sent by certified mail - return receipt requested.
The mining claimant or operator may designate an agent for service of notifications and orders.
The mining claimant or operator must provide the designation in writing to the local BLM
District/Field Office having jurisdiction over the lands involved.
The BLM authorized officer’s personal dealings with operators and claimants must be courteous
and professional, as with any member of the public. Professional detachment must be exercised
in all matters involving the enforcement process. While the BLM agent must strive for cordial
relations, the BLM’s ultimate responsibility is to regulate the activities of those wishing to
engage in mineral exploration and mining on the public lands.
Safety of all BLM employees is paramount. When dealing with potentially dangerous situations,
where law enforcement assistance may be warranted, arrangements should be made in advance.
9.2.6 Duration of Order
All enforcement orders remain in effect until the BLM determines that the violation is abated or,
if the violation is not abated, the enforcement order is terminated by IBLA or the court. Under
43 CFR 3809.601(b)(3), the BLM will issue a decision terminating a suspension order when it is
determined that the operator has corrected the violation (Appendix A, Template 9.2-5
Suspension Order Terminated).
9.2.7 Failure to Comply
The BLM may take a variety of actions where an operator fails or refuses to comply with an
enforcement order. Actions may include one or more of the following: initiating a civil action
against the operator or claimant in Federal District Court, requiring the operator to submit a Plan
of Operations for existing and future operations that would otherwise only require a Notice, or
revoking the operator’s Plan or Operations or nullifying the operator’s Notice.
9.2.7.1 Initiating a Civil Action
Under 43 CFR 3809.604, if an operator does not comply with a BLM order issued under 43 CFR
3809.601 or 3809.602, DOI may request the US Attorney’s Office to institute a civil action in
Federal District Court for an injunction or order to enforce its order, prevent the operator from
conducting operations on the public lands in violation of this subpart, and collect damages
resulting from unlawful acts. This relief may be in addition to the enforcement actions described
in 43 CFR 3809.601 and 3809.602, and the penalties described in 43 CFR 3809.700.
If the BLM has determined that the operator has not complied or the BLM has reason to believe
that the operator will not comply with an enforcement order even before the time period for
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complying has expired, the BLM will contact the Solicitor’s Office to discuss whether to request
assistance from the US Attorney’s Office, and supporting documents will be placed in the case
file.
9.2.7.2 Loss of Operator Notice Eligibility
In addition to the other remedies available if the operator fails to timely comply with a
noncompliance order issued under 43 CFR 3809.601(a), or has a history of noncompliance, the
BLM may order the operator to submit a Plan of Operations under 43 CFR 3809.401 for all
current and future notice-level operations280 (see Appendix A, Template 9.2-6 Order Requiring
Plans). If, for example, an operator or claimant fails to comply with an order and remains in
noncompliance for a period longer than 6 months, a decision requiring the submission of a Plan
of Operations (see Appendix A, Template 9.2-3 Suspension Order) and/or a decision to revoke or
nullify the authorization (see Appendix A, Template 9.2-8 Nullification of Notice/Revocation of
Plan) may be issued.
9.2.7.3 Revoke the Plan or Nullify the Notice
In addition to the other remedies available, as provided for under 43 CFR 3809.602(a), the BLM
may revoke a Plan of Operations or nullify a Notice upon finding that:
A violation exists of any provision of the Notice, Plan of Operations, or the 43 CFR 3809
regulations, and the operator has failed to correct the violation within the time specified
in the enforcement order issued under 43 CFR 3809.601, or
A pattern of violations exists at the operations.
A decision to revoke or nullify the authorization to operate is at the District/Field Manager’s
discretion. Whether the manager’s decision is the result of an operator’s failure to correct a
significant violation or a pattern of violations, the need to take such action must be clearly
documented in the case file. When looking at a pattern of violations, violations from other
concurrent or previous operations conducted by the operator may be considered. Before
revoking a Plan or nullifying a Notice, the District/Field Manager must notify the operator of its
intention to take the action (see Appendix A, Template 9.2-7 Notification of Intent to Nullify
Notice/Revoke Plan); and provide the operator an opportunity for an informal hearing before the
State Director.281
The informal hearing before the State Director follows the same procedures as the informal
hearing for a notice to issue a suspension order under 43 CFR 3809.601(b), see Section 9.2.3.2.3
Informal Hearing.
If, after the informal hearing, the Field Manager believes that it is still necessary to revoke the
plan or nullify the notice, the Field Manager will issue a formal written decision to the operator
(see Appendix A, Template 9.2-8 Nullification of Notice/Revocation of Plan of Operations). A
280
281
43 CFR 3809.604(b).
43 CFR 3809.602(b).
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decision to revoke a Plan or nullify a Notice constitutes an appealable decision and must include
standard appeals language.
If the BLM revokes a Plan of Operations or nullifies a Notice, the operator must not conduct
operations on the public lands in the project area, except for reclamation or other measures
specified by BLM.282 If the operator continues to conduct operations after receiving the
decision, and the decision is not stayed by the IBLA, the BLM must contact the Solicitor’s
Office to determine whether to request assistance from the US Attorney’s Office to enforce the
order.
9.3 Criminal Penalties
In certain circumstances, the BLM may seek criminal penalties in addition to the other
enforcement remedies in section 9.2. The criminal penalties established by statute for
individuals and organizations who knowingly and willfully violate 43 CFR 3809 are found at 43
CFR 3809.700.
9.3.1 Individuals
If an operator or claimant knowingly and willfully violates the regulatory requirements, he/she
may be subject to arrest and trial under Section 303(a) of FLPMA.283 If the operator or claimant
is convicted, he/she will be subject to a fine of not more than $100,000 or the alternative fine
provided for in the applicable provisions of 18 U.S.C. 3571, or imprisonment not to exceed 12
months, or both, for each offense.
9.3.2 Organizations
If an organization or corporation knowingly and willfully violates the regulatory requirements, it
is subject to trial and, if convicted, will be subject to a fine of not more than $200,000 or the
alternative fine provided for in the applicable provisions of 18 U.S.C. 3571.
282
283
43 CFR 3809.602(c).
43 U.S.C. 1733(a).
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Chapter 10 Decisions and Appeals
This chapter provides guidance on what must be included in a surface management decision and
how to process appeals of those decisions. It discusses the roles and responsibilities of the
District/Field Office, State Office, Solicitor’s Office, and the IBLA in the appeals process.
10.1 Decisions
10.1.1 Decision Content
A well-drafted decision will contain the following:
A complete statement of the material facts, i.e., those facts necessary to decide the issues.
Reference to relevant documents in the case file used in deciding the case, (e.g.,
inspections, records of telephone conversations, environmental analysis, consultation
results, etc.).
The issue(s) on which the decision hinges.
Statement of relevant law (statutes, regulations) to the facts to resolve the issues.
Appeals provisions.
10.1.2 Appeals Language
All formal decisions must contain the appropriate appeals language. The appeals language for
District/Field Manager decisions is different from that needed to describe the process to appeal
the results of a State Director Review (SDR). The following two sections contain the appropriate
appeal language for each of these decisions. BLM Form 1842-1, Information on Taking Appeals
to the Interior Board of Land Appeals, may be included with the decision, but the decision will
still contain the relevant appeals language.
10.1.2.1 District/Field Office Decisions - Appeals Language
All decisions issued by the District/Field Office in administering the surface management
program under 43 CFR 3809 must, at a minimum, contain the following appeals information (see
Appendix A, Template 10.1-1, Field Office Decision – Appeal Language):
If you are adversely affected by this decision, you may request that the (enter appropriate State)
BLM State Director review this decision. If you request State Director Review, the request must
be received in the (enter appropriate state) BLM State Office at (insert State Office mailing
address), no later than 30 calendar days after you receive or have been notified of this decision.
The request for State Director Review must be filed in accordance with the provisions in 43 CFR
3809.805. This decision will remain in effect while the State Director Review is pending, unless
you request and obtain a stay from the State Director. If you request a stay, you have the burden
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of proof to demonstrate that a stay should be granted using the standards and procedures for
obtaining a stay from the Interior Board of Land Appeals (IBLA). 284
If the State Director does not make a decision on your request for review of this decision within 21
days of receipt of the request, you should consider the request declined and you may appeal this
decision to the IBLA. You may contact the (enter appropriate state) BLM State Office to
determine when the BLM received the request for State Director Review. You have 30 days from
the end of the 21-day period in which to file your Notice of Appeal with this office at (insert
address of Field Office issuing the decision) which we will forward to IBLA.
Under 43 CFR 3809.801(a)(1), if you wish to bypass a State Director Review, this decision may
be appealed directly to the IBLA in accordance with the regulations at 43 CFR part 4. Your
Notice of Appeal must be filed in this office at (insert address of Field Office issuing the decision)
within 30 days from receipt of this decision. As the appellant you have the burden of showing that
the decision appealed from is in error. Enclosed is BLM Form 1842-1 which contains information
on taking appeals to the IBLA. This decision will remain in effect while the IBLA’s decision is
pending, unless you request and obtain a stay under 43 CFR 4.21. If you request a stay, you have
the burden of proof to demonstrate that a stay should be granted under the criteria in 43 CFR 4.21.
Failure to include the proper appeals language in a District/Field Office decision does not limit
the appeal rights of the recipient.285 However, not including the language may result in
extending the period during which an adversely affected party may request SDR or file an appeal
with IBLA.
10.1.2.2 State Director Decisions - Appeals Language
All decisions issued by the State Director in administering the surface management program
must, at a minimum, include the following appeals information in the decision (see Appendix A,
Template 10.1-2, State Director Decision – Appeal Language):
This decision may be appealed to the Interior Board of Land Appeals (IBLA) in accordance with
the regulations contained in 43 CFR part 4 and the enclosed Form 1842-1. If an appeal is taken,
your Notice of Appeal must be filed in this office (insert State Office address) within 30 days from
receipt of this decision. The appellant has the burden of showing that the decision appealed from
is in error. This decision will remain in effect while the IBLA’s decision is pending, unless you
request and obtain a stay under 43 CFR 4.21. If you request a stay, you have the burden of proof
to demonstrate that a stay should be granted under the criteria in 43 CFR 4.21.
Failure to include the appeals provisions in the State Director decision does not limit the appeal
rights of the recipient but may result in extending the timeframe in which an appeal can be filed
with IBLA.
10.1.2.3 Request for Stay
All decisions under 43 CFR 3809 are effective immediately unless the operator or other
adversely affected party requests and is granted a stay of the decision.286 The office issuing the
decision must include language in the decision on how to request a stay, including the standards
284
43 CFR 4.21(b).
43 CFR 4.410.
286
43 CFR 3809.803.
285
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for obtaining a stay. The provided language must include the following information (see
Appendix A, Template 10.1-3, Request for a Stay):
If you wish to file a petition pursuant to regulations 43 CFR 4.21 for a stay of the effectiveness of
this decision during the time that your appeal is being reviewed by IBLA, the petition for a stay
must accompany your notice of appeal. A petition for a stay is required to show sufficient
justification based on the standards listed below. Copies of this notice of appeal and petition for a
stay must also be submitted to each party named in the decision, to the IBLA, and to the
appropriate Office of the Solicitor (see 43 CFR 4.413) at the same time the original documents are
filed with this office. If you request a stay, you have the burden of proof to demonstrate that a stay
should be granted.
Standards for Obtaining a Stay
Except as otherwise provided by law or other pertinent regulation, a petition for a stay of a
decision pending appeal shall show sufficient justification based on the following standards:
1. The relative harm to parties if the stay is granted or denied.
2. The likelihood of the appellant’s success on the merits.
3. The likelihood of immediate and irreparable harm if the stay is not granted.
4. Whether the public interest favors granting the stay.
10.1.3 Issuing the Decision
Decisions must be sent via certified mail - return receipt requested, in order to ensure receipt by
the intended party and to establish a timeframe for the filing of appeals. Where there is a high
level of public interest or the BLM is aware of parties other than the operator who may claim to
be “adversely affected” by the decision, it may be appropriate to announce the decision through
the media and via public mailings of applicable decision documents. In some cases, it is
advisable to deliver copies via certified mail of the decision to those individuals or groups, other
than the operator, who have been active in the review and analysis process for a particular
decision and who are potential appellants. This ensures these parties are aware of the final
decision and establishes a timeline for the filing of appeals.
10.2 Administrative Review Process
An operator or other adversely affected party may request administrative review of a BLM
decision. The party adversely affected by a decision under Part 3809 may either request a
SDR287 or appeal directly to the IBLA288 (see Figure 10.2-1, Administrative Review Process).
10.2.1 Decisions Subject to Administrative Review
There are a variety of decisions issued in connection with the surface management program by
either the District/Field Office or the State Office that are subject to administrative review by
adversely affected parties.
287
288
43 CFR 3809.800(a).
43 CFR 3809.800(b) and 43 CFR 4.410.
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Examples of decisions subject to the administrative review procedures in 43 CFR 3809.800
include:
Establishment of the financial guarantee amount that must be posted for a Notice
operation.
Establishment of the financial guarantee amount that must be posted for a Plan of
Operations.
Acceptance, rejection, or forfeiture of a financial guarantee instrument.
Approval of a Plan of Operations.
Denial or withholding approval of a Plan of Operations.
Rejection of a Notice or Plan of Operations.
A decision that a Notice has expired.
A decision requiring submission of a modification to a Notice or Plan.
Issuance of an enforcement order.
A decision determining that a Notice or Plan has been abandoned.
A decision revoking a Plan or nullifying a Notice.
Concurrence on use and occupancy associated with a Notice or Plan (must appeal direct
to IBLA, no SDR process available289).
The State Director’s decision on a SDR request.
10.2.2 Decisions Not Subject to Administrative Review
Not all actions taken by the BLM in administering the surface management program are subject
to administrative review because the actions do not involve a decision by the BLM. Certain
actions are considered intermediate steps in a larger process which itself is subject to review.
For example, communications with the operator about the proposed actions are not final
decisions, and hence should not to be issued in the form of a decision nor should the
communication include the standard appeals provision.
289
Note that there is no SDR because this is a 3715 decision and 43 CFR 3715 does not provide for SDRs.
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Figure 10.2-1 – Administrative Review Process
Decision Issued
Only adversely affected parties with standing may appeal
to IBLA or request State Director Review (3809.800)
IBLA appeal or request for SDR must be filed within 30
days receipt of the decision (3809.801, 3809.804)
Decisions remain in effect unless a stay is granted by
IBLA (3809.803) or the State Director (3809.805)
Appeal to IBLA
State Director Review Request
Filed with the State Director
Must include statement explaining
why decision should be changed
(3809.805(a))
May request a Stay of the decision
during the SDR (3809.808(a))
State Director has 21 days to accept
or deny review request
Notice of Appeal is to be filed in the BLM
office that issued the decision
Acknowledge appeal within 5 days
Original case file and appeal is sent to
IBLA by BLM within 10 days
Statement of Reasons must be filed with
IBLA by appellant within 30 days of the
Notice of Appeal
IBLA Review
SDR Request Accepted
Party may also request a
meeting with the State
Director (3809.805(b))
SDR Request Denied
Party may appeal
original decision to
IBLA within 30 days
SDR Process
Based on the record to determine
whether BLM's actions were in violation
of law, policy, or regulation
May consider material submitted by
appellant
Result of the State Director meeting
SDR halted if case appealed to IBLA by
any party
SDR Completed
Issue written decision
Generally within 90 days
Affirm, remand, or modify
parts or all of the original
decision
May be appealed to IBLA
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Appellant may request stay
BLM can respond to stay requests within
10 days of receipt
BLM can file response to Statement of
Reasons within 30 days
Operator or other adversely affected party
may ask to intervene in third party appeals
Any party can request expedited
consideration
Action under appeal is removed from
BLM jurisdiction
IBLA Decision
May take years on normal docket schedule
unless expedited or suitable for dismissal
or summary adjudication
Written decision issued that could affirm,
vacate, remand or modify the original
BLM decision
Final for the Department, but
reconsideration may be requested
Federal Complaint
Next level of appeal after IBLA
Federal complaint may be filed after or
instead of IBLA appeal
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Examples of non-reviewable actions:
Notification that a Notice is complete or incomplete and/or requests for additional
information.
Notification of additional review time for a Notice.
Notification that a Plan of Operations is complete or incomplete and/or requests for
additional information.
Advice to the operator of consultation or coordination requirements.
Advice to the operator of environmental information needs or deficiencies.
Notification of Intent to issue a suspension order, or to nullify a Notice or to revoke a
Plan of Operations.
10.2.3 Standing to Seek Administrative Review
IBLA appeals or SDR requests may be filed by any individuals or entities that are adversely
affected by the decision. Individual or entities may be “adversely affected” if they are the named
recipient(s) of the BLM decision, or if they participated in the decision-making process. For
decisions involving NEPA documentation, this can occur by providing comments or input to the
BLM prior to the action, such as commenting on a draft EIS.
If you believe the party appealing to the IBLA or requesting SDR is not “adversely affected”
within the meaning of the regulations, and the BLM should argue for dismissal based on lack of
standing, you should raise the issue with the Solicitor’s Office during preparation of the case file
and answer.
10.2.4 Where and When to File a Request for Administrative Review
A request for a SDR must be filed with the office of the State Director within 30 days of receipt
of the District/Field Manager’s decision. Appeals to IBLA of the District/Field Manager’s
decisions must be filed with the Field Office that issued the decision within 30 days of receipt of
the decision. An appeal to IBLA of a State Director decision, including a decision as the result
of a SDR, must be filed with the State Office within 30 days of receipt of the decision.
Because decisions issued to operators are served by certified mail - return receipt requested,
determining whether an appeal or SDR request was filed within the 30-day period is relatively
straight forward. For parties other than the operator, the appeal period begins from the date the
party might reasonably be expected to be aware of the decision. Unless the decision is sent to
the party via certified mail, the appeal period is determined based on the timing of public notice
mechanisms such as a press release, mass mailing, Federal Register notice, etc. For deliberation
concerning the timeliness of an administrative review filing use the procedures defined at 43
CFR 4.401(a).
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10.2.5 Full Force and Effect
Under 43 CFR 3809.803, the BLM’s decisions under the surface management regulations are in
full force and effect upon issuance unless a request for a stay is filed and granted by the
reviewing entity. Requests for a stay must be filed directly with IBLA and accompany the initial
Notice of Appeal or with State Director and accompany a SDR request and address the four
criteria in Section 10.1.2 Appeals Language.290
10.3 State Director Review Procedures
10.3.1 SDR Request
A request for SDR must be made in writing and include the serial number of the Notice or Plan
of Operations, a written statement explaining why the BLM should change its original decision,
and any documents that support the written statement. The request must also contain contact
information for the requester, including a telephone or fax number. The requester may also
request a meeting with the State Director.
If a timely filed SDR request is missing some of the information required by the regulations, the
BLM will contact the affected party to obtain the missing information. If the missing
information is not received in a reasonable amount of time (not to exceed 60 days), the State
Director will proceed with the SDR process based on the information submitted and the case file.
10.3.2 Decision to Review
Within 21 days of receipt of the request, the State Director will notify the party seeking the SDR
whether he/she will review the original BLM decision.291 This notification is sent by certified
mail - return receipt requested. If the State Director declines to review the original BLM
decision, the adversely affected party has 30 days from receipt of the State Director’s notification
to file an appeal of the District/Field Office’s decision with the IBLA. The State Director’s
decision whether to review the District/Field Office decision is not subject to administrative
review.
If the adversely affected party files an appeal to IBLA while the State Director is reviewing the
District/Field Manager’s decision, then the State Director must stop his/her review and forward
the original decision and case file to IBLA. If the State Director is not aware that the affected
party filed an appeal with IBLA, then the State Director decision will be voided by a subsequent
IBLA action. The adversely affected party may choose to file with IBLA at any time while the
original decision is being reviewed by the State Director.
10.3.3 Purpose of SDR
The primary purpose of the review by the State Director is to ensure the original decision is not
flawed or in error by violating any applicable law, regulation, or policy. Based on this review,
290
43 CFR 4.21.
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the State Director may affirm the original decision or remand the original decision back to the
office that issued the decision.
To facilitate the review, the State Director may request the case file from the appropriate office
that issued the challenged decision. If requested, the District/Field Office will provide the
original case file to the State Office within 10 business days after receiving the request for the
case file. A copy of the case file will be retained in the District/Field Office.
A determination by the State Director to affirm the original decision will be issued as a new
decision by the State Director. Once the State Director issues a decision to affirm the
District/Field Office’s decision, the State Director’s decision replaces the original BLM decision
which is no longer in effect. The only decision that can then be appealed to IBLA is the State
Director’s decision. The adversely affected party must file their Notice of Appeal with the State
Director within 30 calendar days of the appellant’s receipt of this decision. Because the SDR
decision that affirms the original decision will be the basis of any subsequent IBLA or judicial
appeal, the State Director must consult with the Solicitor’s Office before issuing the SDR
decision.
A decision to reject the original decision and remand the case back to the District/Field Office
may be made when the case file does not support the decision of the District/Field Manager. The
State Director’s decision will provide clear guidance to the District/Field Office on how to
address remanded items. A determination by the State Director to remand the original decision
back to the issuing office must be issued by the State Director; however, the State Director’s
decision is not subject to administrative review as it does not represent the agency’s final
decision. As such, the State Director’s decision to remand the original decision should not
include appeal language.
The State Director must complete the review and issue a decision within 90 days or sooner, if
possible, from the date of the original decision. The SDR decision will be sent certified mail receipt requested.
10.3.4 State Director Meeting
The party requesting SDR may request a meeting with the State Director as part of the review
process. The State Director must determine whether or not he/she can accommodate the meeting
request. In general, BLM policy is for the State Director to accommodate meeting requests as
part of the SDR process. However, if the request involves an issue that is not under the State
Director’s jurisdiction, then the meeting could be denied.
If the meeting is determined appropriate, then it should be held as early in the process as
possible. The meeting is an opportunity for the party requesting the SDR to discuss the problems
in a non-adversarial setting. The State Director will determine who should be present during the
meeting. This meeting and all conversations held with the District/Field Office or the affected
party must be documented in the case file. The results of the meeting are to be documented and
used in conjunction with the case file review to formulate the State Director’s decision.
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10.4 IBLA Appeals
10.4.1 IBLA Background
10.4.1.1 Summary Disposition Cases
All incoming IBLA appeals are screened by a Docket Attorney to determine whether or not they
are suitable for summary disposition. Cases suitable for summary disposition are those subject
to dismissal for lack of jurisdiction (e.g., untimely appeal) or where the facts preclude any
chance of affording appellant any relief on the appeal. These cases are generally decided by
orders that are not published in the volumes of IBLA decisions and therefore cannot be cited.
The summary disposition process expedites the resolution of appeals where no genuine issue
requires legal research, opinion drafting, or deliberation.
10.4.1.2 Types of filings before the IBLA
Although the most common filings before the IBLA are the Notice of Appeal, Statement of
Reasons, and Answer, there are many other types of filings. Either the BLM or the appellant
may file requests for extensions of time, expedited consideration, consolidation, or hearing. In
addition to these filings, the appellant may also file a request to stay the BLM’s decision, and
other parties may file requests for intervention.
The time for filing any document other than the Notice of Appeal itself may be extended by the
IBLA.292
The BLM’s decision is not effective if the IBLA grants a stay. The decision is pending until the
appeal is decided.
If the item(s) under appeal is (are) a pressing matter, the BLM may request an expedited review.
This is considered an extraordinary procedure and should only be requested when absolute
necessary (e.g., immediate action is necessary to protect health, safety, or the environment from
imminent danger or harm).
The IBLA may consolidate separate pending appeals if the appeals involve identical or closely
factual context and legal issues. Intervention is the recognition that a party with an interest
adverse to the appellant may potentially be adversely affected by the decision on appeal.
Generally, IBLA appeals are decided on the briefs alone, without oral argument or a hearing.
However, at the request of one of the parties or on its own motion, the IBLA can refer the matter
to an administrative law judge for a hearing if there are significant factual or legal issues
remaining to be decided and the record without a hearing would be insufficient for resolving
them.293
292
293
43 CFR 4.401(a) and 4.422(d).
43 CFR 4.415.
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10.4.2 IBLA Appeals
10.4.2.1 Filings by the Appellant
10.4.2.1.2 Notice of Appeal and Statement of Reasons
A decision of the District/Field Manager may be appealed directly to IBLA or after the SDR
decision is issued. In either case, the appeal must be filed in the office where the decision under
appeal was issued within 30 calendar days of receipt of the decision.
No extension of time to file a Notice of Appeal can be granted.294 Under 43 CFR 4.401(a), any
delay in filing a Notice of Appeal will be waived if it is filed within 10 days after the due date,
and it is determined that the appeal document was transmitted or probably transmitted before the
due date. If the BLM receives the Notice of Appeal within the 10-day period, but determines
that it was not transmitted before the due date, the Field or State Office will forward the Notice
of Appeal along with any supporting documentation to the IBLA for dismissal.
If the BLM receives the Notice of Appeal after the 10-day period, District/Field Office Surface
Management Specialist or the State Office Program Lead will return it to the appellant with a
cover letter explaining that the case was closed because no timely appeal was filed. The letter
should have photocopies of documents in the case file that show the appeal was received after
the grace period, including the return receipt card showing the date that the appellant received
the decision, the envelope showing the postmark of when the appeal was mailed, and the date
stamp showing when the appeal was received by the BLM. The letter is not a formal decision
and should not include appeals language. If the appellant objects to the closing of the case and
rejecting the appeal as untimely, then the case file will be forwarded to the IBLA which will
determine whether a timely appeal was in fact filed.
The Notice of Appeal should contain the following information: the name of the affected party
and address and the BLM serial number of the Notice or Plan of Operations that is the subject of
the appeal. An appeal not containing all the information required by 43 CFR 3809.802 is still
forwarded to IBLA within 10 business days.
The Notice of Appeal may contain the Statement of Reasons for filing the appeal or the
Statement of Reasons may be filed separately. If the appellant does not file a Statement of
Reasons with its Notice of Appeal, then the appellant must file the Statement of Reasons with the
IBLA within 30 days after the Notice of Appeal was filed. See 43 CFR 4.412 and 4.413 for
further guidance on the appeals requirements.
10.4.2.1.2 Requests for Stay
The appellant may also file a request for a stay under 43 CFR 4.21. The request for stay must be
filed with the IBLA along with a copy of the Notice of Appeal, and with the BLM office that
issued the decision. The appellant has the burden to demonstrate that the four factors listed in 43
CFR 4.21 justify the issuance of a stay.
294
43 CFR 4.411(c).
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10.4.2.2 BLM’s initial review of the appeal
When a new appeal is filed with the BLM, the District/Field or State Office must review the
documents filed to ascertain what will be filed in response and the due dates. It is sometimes
difficult to tell whether the document filed by the appellant is a Notice of Appeal and/or a
Statement of Reasons and/or a Request for a Stay. If you have any doubt, contact the Solicitor's
Office to review the appellant’s filing.
If the appellant only files a Notice of Appeal, then the BLM’s only responsibility is to prepare
the case file and transmit it along with the Notice of Appeal to IBLA within 10 working days.
The BLM then waits for the appellant to file its Statement of Reasons or the time for filing a
Statement of Reasons expires. The BLM has 30 days from receipt of the Statement of Reasons,
or the date when the Statement of Reasons was due (if no Statement of Reasons is filed), to file
its answer.
If the appellant files a Notice of Appeal and a Statement of Reasons together, the BLM must
transmit the case file to IBLA within 10 days as well as file its answer with IBLA within 30 days
of receipt. The answer must be served on all parties within 15 days of serving the IBLA, and is
usually served at the same time.
If the appellant files both a Notice of Appeal and request for stay, the BLM must transmit the
case file to IBLA as well as any response to the stay request within 10 working days. Because of
this short timeframe for responding, it is very important that you contact the Solicitor's Office
immediately when you receive any appeal that contains a request for a stay so that you can
determine whether a response is required. The BLM’s response to the stay request (if any, see
below for further discussion) may also include a request to extend the time for filing the BLM’s
answer until 30 days after the IBLA makes a decision on the stay request or 30 days after the
appellant files its Statement of Reasons, if not included with the Notice of Appeal and request for
stay.
10.4.2.3 Preparing and transmitting the case file to IBLA
The Notice of Appeal is placed in the original case file. The original case file and index, but not
any confidential, privileged, or protected information (see Section 13.3.2 Confidential or
Proprietary Information) is forwarded to IBLA within 10 business days of receipt of the appeal
and is sent by certified mail - return receipt requested. A copy of the case file must be
maintained in the District/Field Office. In order to transmit the case file to IBLA, Standard Form
1842-2 is completed by the forwarding office.
The contents of the case file for IBLA cases must conform to the attached guidance from the
Solicitor’s Office on preparing administrative records for judicial litigation. If the appeal is
related to a decision on a Plan of Operations or plan modification, an electronic copy of the
relevant NEPA document(s) must be included in the case file submitted to IBLA.
Confidential information, including Privacy Act information, proprietary information, and
attorney-client privileged communications, must be handled in accordance with the special
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procedures found at 43 CFR 4.31 and discussed in further detail in Section 13.3.2 Confidential or
Proprietary Information.
If the case file is very large and/or would take significant resources to copy before sending to the
IBLA, contact the Solicitor's Office immediately before undertaking any copying or scanning.
The Solicitor's Office can contact the IBLA Docket Attorney to determine whether the entire
case file must be sent, and/or whether parts of the case file may be provided in electronic format.
As of the date of this handbook, the IBLA is not accepting the case file in electronic format, but
this may change in the future.
The BLM may contact the IBLA Docket Attorney to discuss procedural matters only (such as
questions about the format of the administrative record); however, no communication regarding
the merits of the appeal can be made directly to anyone at the IBLA who has jurisdiction over the
merits of the case by the BLM unless all parties to the case are present. This is the rule of
fundamental fairness. Violation of the rule constitutes ex parte communication. If the
communication regarding the merits of the case is made in writing then a copy is served on all
the parties to the case to ensure the BLM is not engaging in ex parte communication. If the
BLM orally communicates with someone at the IBLA who has jurisdiction to decide the merits
of the case, then all parties to the appeal must be present. See Section 13.7.3 Avoiding Ex parte
Contact with IBLA for discussion of ex parte contact in relationship the administrative record.
10.4.2.4 BLM’s Answer
The BLM’s answer is due 30 days after the BLM receives the Statement of Reasons. The Field
Office Surface Management Specialist and State Program Lead are to work closely with the
Solicitor’s Office to prepare the BLM’s the case file and the BLM’s answer as documented by
the case file. In some cases, the BLM and the Solicitor’s Office may also determine that the
appeal has identified a legitimate error in the BLM’s decision, and the BLM may ask the
Solicitor’s Office to request the IBLA to remand the decision back to the BLM rather than file an
answer.
10.4.2.5 BLM’s Response to a Request for Stay
The decision under appeal is in full force and effect unless the adversely affected party seeks a
stay from the IBLA and the IBLA grants the stay. If the appeal consists of both a Notice of
Appeal and Request for Stay, the BLM must transmit both the case file along with any response
to the stay request to the IBLA within 10 working days. Depending on the circumstances, the
BLM’s response to the stay request may also include a request to extend the time for filing the
BLM’s answer until 30 days after the IBLA makes a decision on the stay request or 30 days after
the appellant files its statement of reasons, whichever is later.
If the appellant files a request for a stay under 43 CFR 4.21, the BLM should contact the
Solicitor's Office immediately to determine how to respond. In some cases, the BLM may
determine that it is not necessary to oppose the stay request, in which case the Solicitor’s Office
will file a short brief with the IBLA stating that it takes no position on the stay request. If the
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BLM and the Solicitor’s Office determine that a response is required, the response will address
why the appeal does not warrant a stay under the four criteria listed in 43 CFR 4.21.
If the IBLA grants a stay, the IBLA’s order will specify what portion of the BLM decision under
appeal is stayed. Any portions of the BLM decision not appealed remains in full force and
effect. The Field Office must continue regular inspections of the project while the decision is
under appeal.
10.4.3 Intervenors
In some cases, a party other than the appellant will file a request to intervene in the appeal. For
example, if the appeal was brought by an environmental group, the operator may seek to
intervene or vice versa. The IBLA will look at whether the party seeking to intervene could have
independently brought the appeal it seeks to participate in, and whether the interests of the party
seeking to intervene could be adversely affected by the outcome of the appeal.
Although the intervenors may provide the BLM with advance or draft copies of the filings they
intend to file with the IBLA, the BLM must not share drafts or other information not available in
the case file with intervenors, even if the intervenors have become a party to the case on the
same side as BLM.
10.5 Litigation in Federal Court
10.5.1 Judicial Challenges
A BLM decision under 43 CFR 3809 may be challenged in Federal court in two ways. First, a
party may seek judicial review of a decision made by the IBLA or during SDR.
Second, a party may challenge a BLM decision in Federal court without going to IBLA or
seeking SDR first. Under 43 CFR 3809.803, all decisions made under the surface management
regulations are effective immediately. Consequently, decisions made under the surface
management regulations are exempt from the requirement to exhaust administrative remedies in
43 CFR 4.21(c), and anyone with standing may immediately challenge a BLM decision in
Federal court.
Judicial challenges of BLM decisions under 43 CFR 3809 are “record review” cases under the
Administrative Procedures Act. This means that the court may look only to the administrative
record to determine whether the BLM’s actions were arbitrary, capricious, or in violation of law.
10.5.2 Legal Representation
The Department of Justice (DOJ) or the local United States Attorney’s Office represents the
BLM in Federal court. The Solicitor’s Office will assist the DOJ attorney or Assistant United
States Attorney (AUSA) in case preparation and will act as the liaison with the BLM.
The BLM District/Field and State Offices will provide background information, case file history,
chronology of events leading to the court case, etc., as requested by the Solicitor’s Office to help
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prepare litigation reports and briefs. In general, the BLM will work through the Solicitor’s
Office rather than contacting or being contacted by the AUSA/DOJ attorney directly.
10.5.3 Judicial Enforcement
In accordance with 43 CFR 3809.604, DOI may request the United States Attorney to initiate a
civil action when the operator fails to comply with an order. This process is initiated by the State
Director writing a memorandum to the Solicitor’s Office. The memorandum must contain the
case file number, background information about the case, and the reason affirmative litigation is
requested. A copy of the case file will be included with this memorandum. The Solicitor’s
Office will review the case file and identify the legal authority(ies) for taking affirmative
litigation.
The United States Attorney’s Office makes the final decision regarding whether or not it will
pursue the case. If the case is pursued by the United States Attorney, then the Office Surface
Management State Lead and all appropriate District/Field Office personnel must be available to
work with the Solicitor’s Office to support this litigation effort. If the case is not pursued by the
United States Attorney, then the BLM must consult with the Solicitor’s Office to determine what
if any additional action is necessary to administratively close the case file.
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Chapter 11 Public Visits
The surface management regulations295 provide the public with a process to visit mine sites and
associated facilities on public lands. The purpose of the visit is to give the public an opportunity
to view the mine site and associated facilities. The operator must, however, provide reasonable
access to public lands.
Nothing in the regulations allows nor authorizes the BLM to sponsor public mine visits to nonpublic lands, including operations on private and state lands. In addition, nothing in the
regulations allows nor authorizes the BLM to sponsor public visits to underground operations.
11.1 Public Requests
Members of the public may request BLM sponsor an annual visit to any mine on public lands.
Under 43 CFR 3809.900(c), members of the public must provide their own transportation to the
mine site, except in rare instances when transportation is provided by the BLM.
The requester must include names and contact information (telephone number and address) of all
parties to participate in the visit with the request. In addition, a request must be made a
minimum of 30 days before the proposed date for the visit to ensure the BLM District/Field
Office will be able to properly coordinate with the operator.
11.2 Processing a Request for Public Visit
When the BLM receives a request from the public to visit an operation located on public lands,
the District/Field Office will work with the operator to address the logistics and timing for the
visit. The District/Field Office will coordinate mine visits with the operator to avoid disruption
of operations and will schedule visits during normal BLM business hours. After consulting with
the operator, the BLM District/Field Office may limit the size of the public group for safety
reasons. The BLM will also provide the operator with a list of all participants.
The BLM will discuss with the operator whether the operator is able to provide necessary safety
equipment and transportation within the project area. If the operator is unable to provide safety
equipment or transportation within the project area, the BLM will do so. However, operators
must make available any safety equipment they normally provide to other visitors. Under no
circumstance will a member of the public be allowed to operate his/her own vehicle within the
project area.
Once the operator and BLM District/Field Office have agreed on the logistics and timing for the
public visit, the District/Field Manager will communicate, in writing, to the requester this
information and any safety limitations, such as clothing and equipment requirements. The
visitors to the mine site must wear a BLM visitor pass (see Appendix G – Visitor Pass) at all
times while on the visit. The conditions and statement must be agreed upon and signed by the
visitor or the individual prior to being allowed to go on the trip.
295
43 CFR 3809.900.
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11.3 Operator Responsibilities
The operator must allow the public to visit operations on public lands and must provide access to
all surface areas and surface facilities on public lands that are ordinarily made available to
visitors on operator sponsored public tours. For example, if the operator normally allows the
public to view a refinery facility, that facility would be available for the BLM-sponsored public
visit. Where the operator does not normally sponsor any public tours, the District/Field
Manager, in consultation with the operator, will determine what surface areas and surface
facilities on public lands may be made available for the visit.
Operators must not exclude persons whose participation the BLM authorizes. An operator’s
representative must accompany the group on the visit. Operators must make available any
necessary safety training that they provide to other visitors. Operators are not required to
provide transportation within the project area, but if they do not, the operator must provide
access for BLM-sponsored transportation.
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Chapter 12 Federal-State Agreements
This chapter covers the requirements for establishing an agreement with the state under 43 CFR
3809.200 through 3809.204. The procedures and timeframes for reviewing and revising
agreements the BLM had with the state on January 20, 2001, are also discussed in this chapter.
12.1 Existing Agreements
Federal-State Agreements that were in place on January 20, 2001, were not cancelled by the
revised regulations. The regulations do, however, require a review of all existing agreements. 296
The BLM was directed to review existing agreements by January 20, 2002, to determine if
revisions were needed to meet the requirements of the regulations. The governor of the state or
the delegated representative of the governor could request an extension in writing. The State
Director could grant an additional year or two to review an existing agreement. If an extension
was not requested and revisions were needed to meet requirements of the regulations, the
existing agreement terminated on January 20, 2002. If an extension was granted but the review
determined revisions were necessary and these revisions were not completed by January 20,
2004, the existing agreement terminated.
12.2 New Agreements
To prevent administrative delays and avoid duplication of effort, the BLM may enter into
agreements with a state agency or agencies. Such an agreement may provide for joint
management or defer to the state administration of certain surface management responsibilities.
12.2.1 Memorandum of Understanding (MOU)
An MOU is an agreement that outlines the roles, responsibilities, and commitment of each party
to the agreement. Such agreements may be between two parties, e.g., the BLM and the state, or
may involve multiple parties, such as an agreement between the BLM, state, and U.S. Forest
Service. It needs to be noted, no funds may be transferred under an MOU.
The BLM and the state may agree to jointly regulate operations or the state may request that
BLM defer to the state regulation of some or all of the aspects of the surface management
program subject to the limitations specified in 43 CFR 3809.201 through 3809.203. The type of
MOU being written (joint management agreement or deferral to state administration) should be
determined early in the process so an appropriate schedule can be developed for the effort.
An MOU with the state should be developed at the State Office-level and signed by the State
Director and the appropriate state agency administrator(s). More than one agreement may be
developed between the BLM and different state agencies, or more than one agreement with a
single state agency may be used to address different aspects of the surface management program.
296
43 CFR 3809.204.
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The agreement must conform to the BLM’s content and format requirements for MOUs, see
BLM Manual 1786, Memorandums of Understanding, Illustration 2, for an example of the
correct format. BLM Manual 1786 also provides guidance on development, implementation,
review and recordkeeping for MOUs.
12.2.2 Joint Management Agreement
A joint management agreement297 between the BLM and one or more state agencies, and
possibly one or more Federal agencies, is intended to facilitate the management of certain
surface management responsibilities. Where joint administration of the surface management
program by BLM and a state is contemplated, the agencies should document this relationship in
an MOU. This type of an agreement may identify a lead agency for certain actions and
responsibilities, but does not let the BLM defer program administration to the state.
The BLM should consider all areas of overlapping Federal-State program responsibility when
developing a joint management agreement with the state. At a minimum, BLM must consider:
Common approaches to review Plans of Operations, including effective cooperation
regarding NEPA.
Performance standards.
Interim management of temporary closure.
Financial guarantees.
Inspections.
Enforcement actions, including referrals of violations to state enforcement agencies.
It is possible for a joint management MOU to address only a single aspect of the regulation of
mining operations; however, it is the intent of the regulations to minimize delays and avoid
duplication of administration and enforcement actions by working cooperatively with the
responsible state agencies. Therefore, the entire program should be reviewed when developing a
joint management MOU with the respective state agency or agencies.
An MOU for joint management does not require public notification or an evaluation of the state’s
surface management program.
12.2.3 Defer to State Administration
A deferral MOU is a commitment by the state to administer some or all aspects of the BLM’s
surface management responsibilities.298 To avoid confusing a deferral agreement with a joint
297
298
43 CFR 3809.200(a).
43 CFR 3809.200(b).
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management agreement, the MOU must clearly state that the purpose of the agreement is to defer
the administration of some or all of the surface management program to the state. The format for
this type of agreement is the same as an MOU for joint management of the program with one
modification. The deferral MOU must provide for, and thoroughly describe, the auditing system
that will be used to verify compliance with for those elements of the program deferred to state
administration.
12.2.3.1 State’s Request
A deferral must be requested in writing by the state299 requesting to regulate operations on public
lands in place of BLM administration for some or all of the requirements under 43 CFR 3809.
The state must send the request to the State Director that has jurisdiction over the public lands
for the state. Figure 12.2-1, Deferral Agreement Development is a flow chart of how such a
request is processed.
The state request must contain the following items:
An analysis of the state’s legal authorities as compared to the BLM’s authority to regulate
mining activity on public land.
Identification of the resources to be committed, i.e., position titles, position qualification
requirements, computers, equipment, training, etc., needed to conduct the task(s)
requested to be deferred in the agreement.
Documentation that sufficient funding is available to administer the program.
12.2.3.2 Deferral Limitations
An agreement to defer to state administration of the surface management program is limited by
the provisions listed in 43 CFR 3809.203(a) through (d). These limitations are:
The BLM must still concur with each state decision to approve a Plan of Operations.
The BLM retains the responsibility for compliance with NEPA.
The BLM remains responsible for land use planning on its public lands and for
implementing other Federal laws300 relating to the public lands.
The financial guarantee must still be redeemable by the BLM, and the BLM must concur
in the approval, release, or forfeiture of a financial guarantee for public lands.
299
43 CFR 3809.202(a).
For example, the BLM is still responsible for ensuring compliance with use and occupancy regulations under 43
CFR 3715, conducting validity exams if required under 43 CFR 3809.100, making determinations of common
versus uncommon variety, and protecting cultural resources (historic as well as prehistoric) and threatened and
endangered plant and animal habitat.
300
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12.2.3.3 BLM’s Review
The BLM State Director will review the request to ensure all required information301 is present.
The State Director will notify the state that the BLM has received the request and whether the
request is complete. If additional information is required, the letter will identify the information
needed in order for the BLM to conduct its evaluation of the state program.
Unlike a joint management MOU, an MOU for deferral of the regulation of mining operations to
the state requires public notification and comment. Once a complete request has been presented,
the State Director will notify the public and provide an opportunity for comment on the proposed
deferral. The notification must clearly define what BLM responsibilities are proposed for
deferral and what responsibilities will be retained, including those responsibilities that may not
be deferred which are identified in 43 CFR 3809.203. Public notification will, at a minimum,
include publication in a daily newspaper with statewide circulation. Other outreach methods,
such as mailings to interest groups, may be used to ensure interested parties are aware of the
deferral request. The public will be given a minimum of 30 days to comment on the request.
The State Director must determine whether the state has the legal authorities, resources, and
funding to do the work that would be deferred to them. The BLM will determine consistency
with the 3809 regulations by comparing the state standards on a provision-by-provision basis to
determine whether the non-numerical and numerical state standards are “functionally equivalent”
to BLM counterparts.302 When comparing state and Federal regulations, the state timeframes do
not have to be the same as corresponding Federal timeframes to be functionally equivalent. In
addition to laws and regulations, the state may use guidelines, policy manuals, and permitting
practices to demonstrate that the state standard is functionally equivalent to the BLM standard.
A state regulatory standard that is more stringent than the Federal standard meets the functionally
equivalent requirement provided it does not preempt Federal intent to allow occurrence of the
activity. In reviewing the state standard to determine whether it is functionally equivalent, the
BLM will request assistance from the Regional Solicitor’s Office.
Once the public notification period has ended, the BLM will prepare a determination to
document the State Director’s evaluation of the state’s request. This report must contain the
following elements:
301
302
Summary of the request, i.e., what portions of the surface management program
administration were requested deferred to the state.
Evaluation/Analysis of the Request, i.e., based on the criteria at 43 CFR 3809.202(b)(2).
Summary of salient public comments and the BLM’s responses.
Determination Findings.
43 CFR 3809.202(b) (1).
43 CFR 3809.202(b)(2)(i).
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Figure 12.2-1 – Deferral Agreement Development
State requests BLM enter into an agreement
for state regulation of operations on public
lands in place of BLM administration 3809.202(a)
BLM notifies the state of the
missing information
No
BLM reviews the request to ensure all
required information necessary to conduct
the review under has been provided 3809.202(b)(2)
Is the request complete?
BLM notifies the public of the state’s request
and provides an opportunity to comment on
the request - 3809.202(b)(1)
Yes
BLM conducts a deferral determination on
the state’s request and environmental review
State Director issues a written decision
whether:
The state requirements are
consistent with the Surface
Management regulations, and
The state has the necessary legal
authorities, resources and funding to
implement the agreement 3809.202(c)
Does the state meet the
consistence requirements, and
have the necessary legal
authority, resources, and
funding?
Yes
The State Director’s decision
may be appealed to the
Assistant Secretary for Land
and Minerals Management, but
not to IBLA - 3809.202(d)
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No
BLM must enter into an agreement with the
state so that the state will regulate all or part
of operations on public lands – 3809.202(c)
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The State Director will make a decision on the state’s deferral request based on whether the state
has the necessary legal authorities, resources, and funding to implement an agreement.303 It is
important to note that the decision to defer administration of some of or the entire program to the
state is not implemented until a deferral MOU has been developed and signed. It is the deferral
MOU stating how and what is deferred that allows the state to administer all or portions of the
BLM’s surface management program. If the state’s requirements are consistent with the
requirements of the surface management regulations and the state has the resources and funding,
then the BLM must enter into an agreement that defers to state regulation some or all operations
on public lands.
A deferral decision by the State Director is categorically excluded from NEPA review in
accordance with 43 CFR 46.210(h).
12.2.3.4 Appeal of State Director’s Decision
The State Director’s decision concerning a state’s request to defer administration of the surface
management program will be the final decision of the BLM.304 If the state or any other adversely
affected party does not agree with the State Director’s determination that the state has or does not
have the legal authorities, resources, and/or funding to do the work, then the state or other
adversely affected party may appeal to the Assistant Secretary for Lands and Minerals
Management within 30 days of the decision. An appeal of the State Director’s decision to defer
or not to defer administration to the state is not made to Interior’s Office of Hearing and Appeals
(OHA).
Even though the appeal is not to OHA/IBLA, it must include all of information required in 43
CFR 3809.802. The Notice of Appeal must be made in writing and filed with the BLM State
Office that made the decision. The Notice of Appeal must contain the appellant’s name and
address (state agency or other adversely affected party appealing the State Director’s decision),
case file management number (if one was assigned) or reference to state’s request to defer, and a
statement of reasons for the appeal. If the statement of reasons does not accompany the Notice
of Appeal, the appellant must file the statement of reasons with Assistant Secretary for Land and
Minerals Management within 30 days after the Notice of Appeal was filed. The decision of the
Assistant Secretary will be the final decision of the Department.
12.2.3.5 State Performance
A deferral MOU requires the BLM to monitor the state’s administration and enforcement of the
surface management requirements to ensure all tasks deferred to the state are in compliance with
the MOU. In the deferral MOU, a procedure to conduct periodic program reviews must be
established. The program will be reviewed annually, at a minimum, or more often if deemed
appropriate by the BLM. The program review will include procedures for notifying the state
when the state is not in compliance with all or part of the MOU. The procedures must also
include reasonable timeframes for the state to correct items identified as not being in compliance
with the MOU.
303
304
43 CFR 3809.202(b)(2).
43 CFR 3809.202(d).
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12.2.3.6 Termination
The agreement must provide procedures for either the BLM or the state to terminate the MOU.
The termination of a joint management agreement may be done by either party with a 60calendar-day notification. The BLM may terminate the deferral MOU if the state does not timely
correct items identified as not in compliance with the MOU.305 The state may terminate the
deferral MOU by notifying the BLM 60 calendar days in advance.306 The agreement must
provide that each agency agrees to maintain the existing financial guarantees until such time as
an agreement can be reached between the operator, BLM, and state agency to replace or release
the financial guarantee.
12.2.4 Suction Dredging Agreement
An agreement may address suction dredging if the state permits this type of activity (see Section
8.4 Suction Dredging). In cases where the Federal-State Agreement addresses suction dredging,
the BLM can defer administration of the activity to the state if the agreement addresses the
following:307
The MOU describes the type and level of activity covered by the agreement. For
example, limits on the size of the intake diameter of the suction dredge or vacuum, limits
on the horsepower rating of the equipment, limits on the activity beneath the existing
water surface of an active stream channel or non-vegetated sand and gravel bar exposed
within the active stream channel, limits on the number of days the permit may be used in
a year, and the number of people that can use a permit.
The MOU contains a list of standard operating procedures that the operator must follow
and the state will enforce on suction dredging activities.
The MOU provides that the state will notify the BLM within 15 days of receipt of a
suction dredging application. The purpose of the notification is so that the BLM can
review the location of the proposed activity and inform the state of any federally
proposed or listed threatened or endangered species or their proposed or designated
critical habitat that may be affected by the proposed activity.
The MOU must provide that if the BLM requests it, the suction dredging application will
not be approved by the state until the BLM completes consultation with the FWS under
the ESA.
305
43 CFR 3809.203(f)(1).
43 CFR 3809.203(f)(2).
307
43 CFR 3809.31(b) and 3809.201(b).
306
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Chapter 13 Records Management
The primary objective of this chapter is to ensure the creation of a complete administrative
record that documents the BLM’s actions to prevent unnecessary or undue degradation of the
lands in accordance with the mandate of Section 302(b) of FLPMA, 43 U.S.C. 1732(b).
Specifically, the administrative record documents operator and agency actions associated with
surface disturbance conducted under the surface management regulations at 43 CFR 3809 and
use and occupancy conducted under the regulations at 43 CFR 3715.
In addition, the BLM maintains records about its surface management activities to facilitate
budget planning, assess units of accomplishment, respond to information requests from the
Washington Office, identify unnecessary or undue degradation, ensure that the approved Plan of
Operations or accepted Notice is followed, support enforcement actions, and document the BLM
decision-making process in the event of administrative or judicial review. The BLM uses both
manual and automated record systems to maintain records.
See Office of the Solicitor’s June 2006 Standardized Guidance on Compiling a Decision File and
Administrative Record; BLM Manual 1220, Records and Information Management; and DOI
Manual 380, Records Management, for information on what constitutes an official record and
how it is to be managed.308 Questions concerning records and records management should be
directed to your State Records Administrator.
Proper documentation of a case file and subsequent records maintenance are vital to the way the
BLM performs its minerals functions. Increasing demands by the public to be included in our
decision-making processes have resulted in more and more requests to inspect and review our
records, and more questioning of our actions to authorize the use of public lands. We need,
therefore, to take our records and our recordkeeping practices very seriously. Too often, by the
time the record of a BLM decision reaches a point where an appeal and/or lawsuit is filed, the
case file contains extraneous material, such as handwritten notes, that were never intended to be
part of the permanent record. Any unnecessary materials inadvertently or carelessly left in the
file become part of the official record and may reflect poorly on an otherwise proper decision.
Generally, when an appeal of a BLM decision goes to the IBLA for review, the Board has only
the case record to examine in support of the decision being appealed. The need to defend an
action may also arise after the principal processors have forgotten the specifics, or been replaced
by new employees unfamiliar with the specifics. Proper documentation of the official case file
then becomes the only basis from which to defend the BLM’s action.
13.1 Records
Records, as defined by 44 U.S.C. 3301, “…includes all books, papers, maps, photographs,
machine-readable materials, or other documentary materials, regardless of physical form or
characteristics, made or received by an agency of the United States Government under the
Federal law or in connection with the transaction of public business and preserved or appropriate
308
Federal Records Act, 44 U.S.C. 3301
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for preservation by the agency or its legitimate successor as evidence of the organization,
functions, policies, decisions, procedures, operations, or other activities of the Government or
because of the information value of data in them.” This includes electronically stored data and
software created or enhanced by the BLM.
13.2 Records Management Responsibilities
The District/Field Manager will ensure preparation and maintenance of a complete written
record, known as the administrative record, that covers the BLM’s management of all mineral
activities authorized by the 3809 and 3715 regulations, other than casual use, on BLMadministered public lands.
All BLM employees, including program specialists at all levels of the organization, are
responsible for collecting, creating, using, maintaining, disseminating, and disposing of BLM
information in accordance with established policies and procedures. The BLM will also protect
all information from degradation and will safeguard Privacy Act, proprietary/confidential, and
attorney-client privilege information, or other sensitive information as required to protect the
BLM’s and the public’s interest (see BLM Manual 1270, Records Administration).309
Case file maintenance is every user’s responsibility. This responsibility starts with properly
establishing the case file to proper closure. If there are inappropriate personal notes, duplicate
copies of documents, torn case jackets, case jackets with missing bar codes, etc., the person
discovering the situation should either take the necessary corrective action or bring it to the
attention of someone to have the problem remedied. All Privacy Act, proprietary/confidential,
and attorney-client privilege information should be maintained as required by 42 CFR part 2 (see
Section 13.3.2 Privacy Act, Confidential and Proprietary Information).
In addition to the physical case file, the district/field office staff is responsible for establishing
and maintaining surface management records in the LR2000 database system and the Alaska
Land Information System (ALIS). The surface management case data entered in LR2000/ALIS
is used by the BLM at district/field, state, and Washington office levels, and is also available to
the public via a BLM web page. The system is used for case management and tracking units of
accomplishment. This includes tracking of numbers of Notices and Plans of Operations,
compliance inspections, enforcement actions, and trespasses resolved. Standard data entry
procedures must be used to enter the required information into the LR2000/ALIS systems.
13.3 Case Files
The surface management case file is the BLM’s official record of exploration and mining
operations conducted on public land. This record is available for public viewing (except for
proprietary data, attorney-client privileged information, or Privacy Act information310). The case
file documents the basis for any BLM decision regarding the use of the public lands under the
surface management regulations. Because a BLM decision may be appealed to IBLA, or be
309
310
43 CFR 2.51 and 2.52
These files are subject to the Privacy Act and must be maintained in accordance with 43 CFR 2.48.
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litigated in the Federal judicial system, an accurate and complete record is vital in documenting
the BLM’s decision-making process. The surface management case file should be organized as a
single entity, not a collection of documents scattered over several locations within an office.
Once the operation has been accepted or approved and an acceptable financial guarantee
submitted and obligated, the surface management case file serves to provide a record of
inspections, amendments/modifications, noncompliance, and enforcement actions taken. Proper
documentation is crucial during all phases of the operation. The case file provides a record of
conditions on the site at closure of an operation following final approval of reclamation by the
District/Field Manager. Such a record may be useful to future land use management actions or if
a subsequent operator proposes activity in or near the project area.
13.3.1 Case File Procedures
Upon receipt of a Notice or Plan of Operations, the district/field office staff must immediately
establish/serialize the case in LR2000/ALIS and place the documents into a case jacket. The
Notice or Plan, and any extensions, amendments or modifications to it, will be date stamped
upon receipt and recorded in the LR2000/ALIS case recordation system within 5 days. The
surface management case types used in establishing/serializing a case file in the LR2000 Case
Recordation System (CRS) are 380210, 380910, and 381402 for Plans of Operations and 380913
for exploration Notices. Alaska’s ALIS case types differ from LR2000. Properly entering data
into LR2000/ALIS as actions occur will generate a serial register page that is useful to the BLM
and to its customers.
When initially received, all submitted information will be considered confidential until the case
file has been established and the taxpayer identification number redacted. Any information
identified in the proposal as confidential will be removed until the BLM determines whether it is
truly confidential or proprietary, and then handled accordingly. See Section 13.4, Confidential
or Proprietary Information, for guidance on the handling of such information.
Stamp all incoming correspondence with the date it was received by the BLM. The date of
receipt by the BLM may be crucial in the event of a duplicate filing, an appeal, or a lawsuit. It
is recommended that the date of receipt be stamped on the front of correspondence, if possible,
as it simplifies copying the file. Make sure that dates are legible and dark enough to read when
documents are copied.
13.3.2 Case File Content
13.3.2.1 Pre-Acceptance or Approval
The case file should include all of the following, if applicable:
The original proposed Notice or Plan of Operations as received by the appropriate BLM
office.
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A Master Title Plat - land status check. At certain strategic points, master title plats,
survey plats, and/or historical indices must be inserted into the file; when the case file is
established, master title plats are required as evidence of the land status at the time the
application/proposal was received.
An LR2000 “Geo Report” might be included to indicate other actions or encumbrances
that might affect the proposed operations.
Requests for resource clearances and the actual resource clearances (Botanical, T&E,
Cultural, Wilderness, Wildlife, Range, etc.) with original signature and date of the
respective specialist. Cultural resource reports and archaeological site forms and maps,
which would identify the nature and location of sites, should not be included in official
case files. However, memoranda based upon those documents that summarize the
cultural findings and make recommendations concerning final disposition of the
application should be placed in the official case file.
If Section 7 of the ESA consultation is required, Section 106 of the NHPA compliance
processes, and/or Native American consultation is required for an operation, all relevant
original documents are to be contained in the case file.
Copies of any maps, pre-operation archival photographs, and aerial photos, if available.
Reference(s) to closed 3809 exploration/mining cases and/or copies of previous
operations conducted in the same location or occupancies under subpart 3715.
The operator’s proposed reclamation cost estimate and the BLM’s analysis of the
operator’s reclamation cost estimate.
For Plans of Operations requiring an EIS, the case-by-case fee estimate(s) for cost
recovery.
All letters requiring the operator to provide additional information and the operator’s
response to those letters.
Printouts of any emailed correspondence (including attachments) between the BLM, the
operator, the Solicitor's Office, other agencies, or the public, regarding the Notice or Plan
that constitutes a record. Emails between the BLM and the Solicitor’s should be placed
in the holding file rather than in the main portion of the case file.
A phone conversation record or a memo to the file documenting phone conversations
related to proposed operations. Remember, document the file so that someone else can
pick up the case and know what you said and did, and why.
Copies of notes or preferable a memo to the file documenting any meetings held with
companies, individuals, or agencies that are associated with the proposed operations.
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For Plans of Operations, the original NEPA document with signature and date of the
approving official, along with all related documents and correspondence. If the size of
the NEPA document and related information justifies establishing a separate case file
(using same LR2000/ALIS serial number).
For Plans of Operations, finding of No Significant Impact (FONSI) decision if an EA was
prepared, with original signature and date of the approving official.
Where appropriate, reports for the following: groundwater and surface water hydrology,
pit-water chemistry, biological assessments and opinion, baseline studies, etc.
Where appropriate, spill prevention plans, storm-water runoff control plans, monitoring
plans, etc. Also, any reports submitted as part of the monitoring plans.
Pre-operation reports, including all photos, field notes, sampling results, etc., associated
with the inspection.
An updated LR2000/ALIS Serial Register Page with appropriate action codes and
comments attached on the front left inside cover of the case file.
All case files at the conclusion of the review/approval process should contain a statement
as to how the District/Field Manager concluded the operation would not result in
unnecessary or undue degradation. The statement should be included in the Decision
Record for EA level reviews, the Record of Decision for EIS level review, or made part
of the acceptance letter in the case of a Notice. Conversely, a decision to not approve (or
to impose conditions) on a Plan, or to not accept a Notice, must be documented in the
case file with specifics on how the proposed Plan or Notice would result in unnecessary
or undue degradation.
13.3.2.2 Post Acceptance or Approval
Post review files must contain all inspection reports. Additional items will be filed as they are
developed, including the following:
All follow-up documentation related to the operation, once operations have commenced.
All inspection reports, photographs, supporting documentation such as field notes and
follow-up correspondence. Inspection reports and field notes must be signed and dated
by the specialist.
Non-digital photos should be affixed or taped to the appropriate paper size and labeled
with the LR2000/ALIS case number. If digital photos are taken, their reproduction must
not alter the image other than its size. Non-digital photos are preferred if it is anticipated
that a case action may be appealed.
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All decisions and letters requiring the claimant/operator to complete a task. Green returnreceipt cards should be kept in the case file with the applicable decision.
All office meetings and telephone conversation confirmation forms or memoranda
pertaining to the operation. Document conversations and meetings about important
aspects of case processing with a memorandum in the case file. To be of future value,
such documentation should include the names and telephones numbers of all parties
involved, the role of each party, the date, meeting location, and a clear and concise
accounting of what was discussed, including any agreements reached. Further, the
documentation must legibly identify the preparer and be authenticated with a full
signature. With few exceptions, case files are open to public review. A professional tone
should be maintained at all times in documentation of telephone calls and conversations,
notes to the case file, and informal transmittal memoranda.
Appeals filed by the claimant/operator or other adversely affected parties to
noncompliance/enforcement, orders, or other decisions by the BLM concerning the
operations and the BLM or IBLA decision.
A listing of MOUs or letters of agreement with other state and Federal agencies that
concern the coordination of Inspection and Enforcement (I&E) activities between the
BLM and these agencies.
Reclamation cost estimate review documents and calculations.
Reclamation cost estimate and financial guarantee acceptance/obligation decisions. The
office adjudicating the financial guarantee will issue the decision concerning acceptance
and obligation of the financial guarantee; however, the district/field office must place
copies of those decisions in the case file. Financial guarantee documents may contain
confidential or proprietary information (such as tax payer identification numbers) and
must be kept in a holding file that is stored in a locked metal file cabinet or a locked room
(see Section 13.3.2.1 Holding File).
For periodic review of the reclamation cost estimate for ongoing operations where the
review does not result in an adjustment, i.e., a decision is not issued, the authorized
officer will add a statement to the case file certifying that the cost estimate(s) and
financial guarantee(s) have been reviewed in conformance with the established review
periods, and the estimate(s) and guarantee(s) continue to meet the requirements of the
regulations.
All District/Field Manager’s concurrences under 43 CFR 3715 or approvals.
Current LR2000/ALIS Serial Register Page.
Where an action requires public notification, insert into the case file copies of proof of
publication of notices in the Federal Register or a newspaper, as appropriate, which
pertain to the proposal being processed.
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13.3.3 Case File Organization
All documents contained in the surface management case file should be filed in reverse
chronological order (most recent on top) as specified by BLM Manual Section 1274.53B1 and
stored in one central location in the office with other case files of the same case type. For
voluminous case files, additional volumes should be added, labeled accordingly (e.g., volume 2,
etc.) and filed in with the most recent document on top. Add as many volumes as necessary to
hold the records created over the life of the project. Large, oversize documents, such as, baseline
reports, EISs and EAs, etc., must be referenced (in reverse chronological order as received or
completed) in the case file and may be stored separately but in close proximity to the case file.
At a minimum, the case file must include the documents listed above (Section 13.3.2) when
applicable.
Secure accounting data and current serial register pages on the left bottom of the case jacket. For
multi-part case files, keep all accounting data and serial pages in Part 1. Place file serial pages
on top of the accounting documents, with each document type (e.g., serial pages) being grouped
together in reverse chronological order. In the event that confidential information has been
stored separately, reference to that location should be placed on top of the serial register page(s).
It may also be appropriate to file serial register pages on the right top of the case file as long they
are kept on top of the other documents for ready reference.
As necessary, secure copies of checklists, instruction memoranda, manuals, handbooks or other
guidance, and draft documents used during the processing of the application on the top left of the
case jacket. Checklists are to be filed on top of the other documents for ready reference. As
most of these documents are not usually stored permanently in the case file, remove them when
the need for them no longer exists. If a case is appealed, IBLA may need to have access to these
documents, especially if germane to the decision appealed. The documents may need to be
included in the file when it is sent to IBLA for consideration. If the documents (especially
voluminous documents) are in electronic format, they can be integrated into the case file, in that
format, when sent to IBLA.
Secure all other documents in the case file on the right top of the case jacket in reverse
chronological order by date of receipt for incoming documents and by date of creation for BLMgenerated documents. Any attachments should be kept with the parent documents.
Securely fasten all documents in the case file. If a document is too thick, a photocopy of the
document’s cover page should be filed in its place. On the copy of the cover page, note that the
original document is filed loosely in the case jacket. Establish multi-part case files when an
individual file becomes too thick for one folder. If a bar-code system is available to track case
files, each new case jacket should also be coded to reflect the new part. For multi-part files, the
specific part should be noted, e.g., “Complete document filed in Part 4 of 7.”
Do not store duplicate copies of reports, correspondence, and other documents in the official case
file unless multiple copies were required by regulation, etc., to be submitted. If there is an
essential reason to retain more than one copy of certain documents, they may be stored
separately from the official case file or in a separate folder of a multi-part file. The case file
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should not contain any drafts/pre-decisional documents that have been superseded (see Appendix
D - Compiling an Administrative Record for additional guidance).
Fasten master title plats, survey plats, historical indices, and maps in the file, folded so they can
be opened without having to remove documents filed on top. If the application is accompanied
by many pages of maps or drawings, or the proposal necessitates inclusion of numerous master
title plats and historical indices, all the maps, drawings, plats, indices, etc., should be filed in a
separate case jacket to facilitate review of the file. Mark the outside of each folded master title
plat or historical index with the township, range, and the date it was last updated in the bottom,
right-hand corner. As a normal part of the adjudication process, include an individual
Meridian/Township/Range Information Report in the file to identify any third-party rights that
may be affected by the proposal.
Where photographs are included in the case file, certain procedures must be followed. Each
affixed photo must be identified by number, direction of view indicated, date the photo was
taken and by whom, and a description of what was photographed. The LR2000/ALIS case
number must also be noted on each photograph/label. Labels with the required information may
be affixed to the back of each photograph. Remember that upon appeal or litigation, the photos
need to be self-explanatory to the reviewing officials. The photographs can then be placed in the
official photograph storage envelope (Form 1277-3) or placed in clear photo holders.
Envelopes and photo holders that might allow photos to spill from the case file while being
moved are not to be used.
13.4 Privacy Act, Confidential, and Proprietary Information
13.4.1 Holding File
All Privacy Act, proprietary/confidential, and attorney-client privilege information should be
kept separate from the rest of the case file. The preferred method is to establish a “holding file”
for each case that is kept in a separate locked cabinet or locked room. The information should be
in a file folder labeled with the serial number and Form 1273-2, Proprietary/Confidential
Information, to clearly identify the confidential nature of the contents. The official case file
should be noted to show where such Privacy Act, proprietary/confidential, and attorney-client
privilege information is stored and who is responsible for its safekeeping.
The holding file should contain all Privacy Act, proprietary/confidential, and attorney-client
privilege information associated with the case and should not contain any documents that do not
need to be held secure.
13.4.2 Taxpayer Identification Numbers
As of January 20, 2001, according to 43 CFR 3809.301(b)(1) and 3809.401(b)(1), in order for a
Notice or Plan of Operations to be complete, the operator(s) must provide a Taxpayer
Identification Number (TIN). A TIN is a nine-digit Employer Identification Number (EIN) or
Social Security Number (SSN) as defined in Section 6109 of the Internal Revenue Code of 1986
(26 U.S.C. 6109).
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Taxpayer identification numbers are subject to the Privacy Act311 and therefore must be
maintained with appropriate administrative, technical, and physical safeguards to ensure the
security and confidentiality of records (see 43 CFR 2.45-2.79 and DOI Manual 383 Privacy Act).
In addition, these records must be protected against any anticipated threats or hazards to their
security or integrity that could result in substantial harm, embarrassment, inconvenience, or
unfairness to any individual on whom the information is maintained (5 U.S.C. 552a(e)(10)).
Individuals handling taxpayer identification numbers must take care to protect the integrity,
security, and confidentiality of this information at all times.
The document/page of the Notice or Plan of Operations containing a taxpayer identification
number is to be copied and the taxpayer identification number on the copy redacted by blacking
it out with a marker. A copy of the redacted page (the copy) is to be placed in the surface
management case file and the initial copy, where the redaction was made, must be shredded. In
other words, do not just make a copy, black out the part with a marker, and put that copy in the
case file; two different copies are made – one with marker and one a copy of the marker one –
the former shredded and the latter filed.
The operator’s original taxpayer identification document submission is to be placed in a holding
file that is separate from the case file. The corresponding LR2000/ALIS serial number will be
prominently written on the tab of the holding file. Form 1273-2, Proprietary/Confidential
Information, will be placed on the front of this holding file to clearly indicate the information in
the file is confidential and not available to the public. Access to the holding file containing the
taxpayer identification number must be restricted by storage in a locked metal file cabinet or a
locked room.
If the operator submits the taxpayer identification number on Internal Revenue Service Form
W-9, Request for Taxpayer Identification Number and Certification, instead of in the proposed
operations submission, the W-9 form will be placed in the holding file.
Taxpayer identification numbers and proprietary/confidential information may only be used by
or disclosed to individuals with a need-to-know in the performance of their duties. “Need-toknow” is defined as a need by the District/Field Manager or agency employee for access to
proprietary, confidential, or otherwise sensitive information or material sought in connection
with the performance of official duties or contractual obligations. The determination of that need
will be made by officials having responsibility for proprietary/confidential or other sensitive
information or material.
If a debt collection process is initiated, the taxpayer identification number must be entered into
the CBS. In these circumstances, the original non-form document may be returned to the case
file, along with a note to the file as to the date when it was entered into CBS. The original nonform document with the taxpayer identification number must be returned timely to the holding
file.
311
Privacy Act of 1974 (5 U.S.C. 552a).
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13.4.3 Confidential or Proprietary Information
Information marked by the operator as “confidential” or “proprietary” will initially be treated as
such pursuant to 43 CFR 2.13(c)(4). This information will not be made available to the public
until the BLM determines whether the information warrants special procedures.
Upon receipt, any information marked “confidential” or “proprietary” should be processed in
accordance with BLM Manual 1278.32-D. Prior to its status being determined, the information
will be placed in the holding file containing the taxpayer identification information created
above. The results of the status determination will resolve where the identified material is stored
and who can access the information.
If the BLM determines that the material is confidential, it is to be kept in the holding file.
Access to the holding file with confidential or proprietary information must be restricted by
storage in a locked metal file cabinet or a locked room.
Note: Financial guarantees instruments (bond) documents may be considered confidential and/or
proprietary information. However, the detailed reclamation cost estimates, upon which the
financial guarantee amount is calculated, are not confidential and do not need to be held
separately from the case file.
If the BLM determines the material marked by the operator as “confidential” does not satisfy the
definition of “confidential” or “proprietary,” the material should be transferred to the surface
management case file that is available to the public. The BLM will notify the operator in writing
of their determination that the information is not “confidential” or “proprietary” and the reasons
for the determination (BLM Manual 1278.32 D.5). This notification will also inform the
operator that the material will be maintained in the operator’s case file which is available to the
public.
The BLM does not usually require proprietary or confidential operator information to process
most Notices or Plans of Operations. Generally, information regarding the location, anticipated
depth, orientation, or inclination of features such as roads, trenches, drill holes, pits, adits, shafts,
or declines, etc., is not considered as confidential or proprietary. Nor is information considered
as confidential or proprietary that (1) describes chemicals used, stored, or generated during
mining or mineral processing, (2) characterizes the waste to be created by the operation, (3) is a
general description of the mining and processing operations at the level of detail needed to
prepare a NEPA document, or (4) information already provided to the public or shareholders in
press releases or Securities and Exchange Commission (SEC) filings, or information provided to
another Federal or state agency that is considered public under their rules.
The types of information that might qualify as confidential or proprietary includes (1) assay
results and intercepts showing grade or reserves which might be of value to competitors,
(2) proprietary physical or chemical processing methods (although information on the anticipated
waste streams and affects from such activity could not be withheld from public disclosure), and
(3) inventory data protected from disclosure under other authorities, such as the location of
historic properties under NHPA regulations at 36 CFR 800.11.
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13.4.4 Attorney-Client Communications
Some communications between the BLM and the Solicitor’s Office, the Department of Justice,
and the United States Attorney’s Office are considered confidential attorney-client
communications. These memoranda, emails, and other communications are still part of the
administrative record or case file, but they may be withheld from disclosure to the IBLA or the
courts under the under the attorney-client privilege. These communications may also be
withheld under the Freedom of Information Act (FOIA).
Any documents that may be considered attorney-client communications, such as memos, records
of conversations with the Solicitor’s Office, or emails with the Regional Solicitor, should be
placed in the holding file. In the event that an appeal or a judicial action is filed, the Solicitor’s
Office can review the documents in this portion of the holding file to determine if a privilege
applies.
13.5 Use and Occupancy Cases
Proposed occupancies under the 43 CFR 3715 regulations associated with a Notice or Plan of
Operations will be entered in LR2000 with the appropriate 3809 case type and action codes
identified in the CRS Data Element Dictionary 2910. The case file should include all
occupancy-related documents necessary to determine the concurrence of the proposed
occupancy. These documents must be placed in the 3809 surface management case file as
described above in Section 13.3 Case File. For proposed and existing occupancies that comply
with the regulations, a separate 3715 case file will not be opened or maintained.
When an occupancy (mining-related) or exploration/mining operation of a locatable mineral is
discovered on public land that has not been authorized under the 3809 or 3715 regulations, a
3715 case file (371511 LR2000 case type code) will be established in LR2000/ALIS. The case
file will be established using the appropriate case type and action code for tracking the
appropriate enforcement order issued under 43 CFR 3715.7-1, Use and Occupancy Regulations
(see CRS Data Element Dictionary 2910). The initial inspection report and any subsequent
correspondence will be placed in the case file in reverse chronological order. An associated
3809 case file will not be established until a Plan of Operations or Notice has been submitted by
the operator. Once the Plan of Operations or Notice has been authorized or the occupancy has
been resolved, the 3715 case file will be closed.
This section applies to the discovery of activities on the public lands conducted under the Mining
Law. It does not apply to activities such as removal of mineral materials or timber without
authorization. Before establishing a new 3715 case file, due care should be given to determining
the type of unauthorized activity that is occurring. If it is not immediately known what type of
unauthorized activity is occurring, a trespass case file (923000 LR2000 case type code) may be
used. Once the suspected trespass is determined to be an unauthorized occupancy under the
Mining Laws, a 3715 case file will be established.
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13.6 Case File Closure
A case file should not be closed until the BLM has determined that reclamation has been
completed according to the reclamation plan, including revegetation, and the financial guarantee
(bond) period of liability is terminated. In situations where the operator fails to reclaim the
operation and reclamation is completed by the BLM, the case file may need to remain open until
the debt is collected or written off. All cases will include a memorandum stating the
District/Field Manager’s concurrence in closing the case file.
13.6.1 Retention of Records
Once a document is received by the BLM, it becomes a public record and, as such, cannot be
returned, destroyed, or permanently removed from the public record. The surface management
case file should be disposed of in accordance with the guidance provided in BLM Manual 1220,
Records and Information Management, and the approved General Records Schedule (Schedule
04/22/c).
When it has been determined the case file may be closed, the district/field office staff should
conduct a final review to ensure the case file is complete and to remove any extraneous files.
Use of a checklist will assist in this review. Transfer of the case file to the National Archives
and Records Administrations’ Federal Records Center should follow the guidance provided in 36
CFR 1228.150 and in Departmental Manual 384 DM 4.5. In addition, detailed procedures are
provided in the National Archives and Records Administration handbook. The district/field
office staff should contact the state’s Records Administrator if there are any questions
concerning records retention and disposal.
13.6.2 Debt Collection
If enforcement actions or debt collection actions have been initiated, the case file should not be
closed until those actions have been resolved and reclamation completed.
Where the BLM has determined that the operator has abandoned the operation (See Chapter 7 Cessations and Abandonment) because the operator is unable or unwilling to complete the
reclamation or the operator cannot be found, the BLM will take action to collect the operator’s
financial guarantee (See Section 6.6 Forfeiture of Financial Guarantee) and use the forfeited
funds to reclaim the operation. If the financial guarantee does not cover the costs for complete
reclamation or a financial guarantee was never provided for an outstanding reclamation
obligation, upon reclamation of the site, the BLM should initiate a debt collection action to
recoup the costs in excess of the financial guarantee that the BLM incurred in order to close the
case.
At a minimum, the BLM must issue a Demand Letter for Payment and enter the debt into CBS.
The letters must be mailed by certified return-receipt requested to the current address on file. If
the letter is returned as undeliverable, then it may be necessary for BLM Law Enforcement to
attempt personal service of the demand letter to the address of record or obtain a forwarding
address from the United States Postal Service. If the district/field office is unable to obtain a
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response (documented in the case file), then a memorandum to the case file must be prepared
detailing the events in chronological order with recommendations to the District/Field Manager
to pursue debt collection through the state office or to close the case. Once entered into CBS, the
system will generate additional debt collection demand letters should the operator fail to meet
reclamation obligations.
In order to close a case where the operator has filed bankruptcy, the site must be reclaimed and
the case file must contain a copy of the Bankruptcy Court’s order closing the bankruptcy.
13.7 Administrative Review
When a Notice of Appeal or request for SDR has been filed, it must be date stamped by the BLM
and filed in the case file. The relevant potions of the case file must be transmitted to the
reviewing office.
13.7.1 Transmitting the Case File
Before transmitting the case file, the BLM should review it carefully to verify that it contains
only records pertaining to the decision appealed. See Appendix D - Compiling an
Administrative Record for guidance on what constitutes part of the record and how to prepare an
index.
Within 10 working days of receiving the appeal or SDR request, the District/Field Manager
should transmit the relevant potions of the original case file to the State Director or the IBLA. A
photocopy of the case file must be kept in the district/field office.
13.7.2 Transmitting Privacy Act, Proprietary/Confidential and AttorneyClient Privilege Information
Unless relevant to the appeal, all Privacy Act and proprietary/confidential information in the
holding file should not be included in the files to be transferred to IBLA or the State Director.
The BLM must, however, identify the documents withheld in the case file index. Should the
information be pertinent to the case and/or IBLA or State Director requests the information, the
BLM should place the Privacy Act and proprietary/confidential information in an envelope and
clearly mark on the envelope that it is material that should not be provided to the public.
Records of communication between the BLM and the Solicitor’s Office in the holding file are
part of the case file, but these records may be eligible to be withheld from disclosure under the
attorney-client privilege. Before transmitting the case file to IBLA, the BLM should review the
holding file and identify any potentially privileged documents for review by the Solicitor’s
Office. In some cases, the BLM and the Solicitor’s Office may decide that even though a record
is covered by the attorney-client privilege, it can be disclosed and included in the case file.
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If the BLM decides to withhold documents under the attorney-client privilege, the BLM must
identify the documents withheld in the case file index. Any records the BLM withholds should
not be sent with the case file to IBLA or the State Director, but should be returned to the holding
file. The BLM should clearly mark on the envelope that it contains material that should not be
provided to the public, and may attach a copy of the index to the outside of the envelope.
13.7.3 Avoiding Ex parte Contacts with IBLA
When an appeal has been filed with the IBLA, the district/field office loses jurisdiction over the
case and BLM personnel must be careful not to engage in ex parte communication with the
Board in violation of 43 CFR 4.27(b). Ex parte communication is any communication (oral or
written, including email) regarding the merits of the appeal with the person hearing the case,
without providing the opposing party with the same information.
For example, adding more information to the case file after an appeal is filed without
transmitting the information to the other parties to the appeal is ex parte communication. It is
also considered ex parte communication to send the IBLA any documents regarding the decision
that post-dates the BLM's decision.
If the BLM finds records that were missing from the case file, the BLM should contact the
Solicitor’s Office before forwarding them on to the IBLA. If the Solicitor’s Office determines
that the records should have been part of the original case file, the records should be served to all
parties concerned by certified return-receipt mail. Field personnel must be careful, also, in
discussing the appeal and case file with the appellant. Once an appeal is filed, only a general
discussion, such as matters concerning the actual process, should take place and the BLM should
forward any correspondence directly related to the case to the Solicitor’s Office.
13.8 Electronic Records Management
Electronically stored data and software created or enhanced by the BLM are considered
“records.” By this definition, records and data are considered synonymous, and all outputs
produced from electronic systems are records regardless of the media. When manipulation
occurs to a data element, layer, or theme, the resultant data also becomes a record. Collection,
maintenance and disposal of all electronic records must be in conformance with the guidance
found in BLM Manual 1220, Records and Information Management, and BLM Manual 1270,
Records Administration, including BLM Handbook H-1270-1, Electric Records Administration.
13.8.1 Data Standards
The data standards necessary for establishment and serialization (case types/action codes, etc.) of
case files in LR2000 can be found at www.blm.gov/lr2000 and/or obtained through Washington
Office Instruction Memoranda and/or State or Washington Office LR2000 Data Stewards.
To keep the LR2000 record current, all data must be routinely entered within 5 business days of
each action having taken place.
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Data standards for Plan of Operations case types 380210, 380910, and 381402 are used to create
a BLM-wide tracking system in LR2000 that computes timelines for specific actions related to
processing Plans of Operations. It is mandatory that the action codes identified in the data
standards be entered on all pending and authorized Plan of Operations cases.
In addition, data standards for Notice case type 380913 and Plan of Operations case types
380210, 380910, and 3814023 are used to generate a Bond Review Report in LR2000. The
BLM State Directors are to use the Bond Review Report every fiscal year to certify to the BLM
Director that RCEs have been reviewed within policy timeframes and are adequate to cover the
cost of reclamation and closure requirements identified in the accepted Notice or approved Plan
of Operations (see Section 13.5.3).
Surface management file types 380210, 380910, and 380913 must document any occupancyrelated actions in LR2000 with the appropriate action code. The following actions codes are to
be used to document a proposed or existing occupancy: AC 440 - Occupancy Proposed, AC 438
- Occupancy Concurrence, and AC 439 - Occupancy Non-Concurrence. Note 43 CFR 3715
regulations do not apply to 381402 case types (split estate lands); therefore, the aforementioned
action codes should not be used.
13.8.2 Bond Review Report
The Bond Review Report generated by LR2000 documents the status of all financial guarantees
recorded in LR2000, except for fund mechanisms required pursuant to 43 CFR 3809.552(c)
relating to trust funds or other long term funding. Annually, the State Director must review the
Bond Review Report to determine if all RCEs were reviewed within the required timeframes and
all obligated financial guarantees are adequate to meet the requirements of the regulations.
Within 60 days of generating the Bond Review Report, a corrective action plan will be prepared
addressing any deficiencies identified in the Bond Review Report. By December 1, the State
Director must certify to the BLM Director that the RCEs and financial guarantees have been
reviewed and are adequate. When necessary, the State Director must also submit the corrective
action plan to the BLM Director.
The State Directors must sign and date the Certifications. The Bond Review Reports,
Certifications, and corrective action plan(s) must be forwarded from the State Directors to the
BLM Director through the Assistant Director for Minerals and Realty Management (WO-300).
The documents may be transmitted electronically or sent to the Washington Office by FedEx or
UPS.
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Glossary
ACID ROCK DRAINAGE (ARD) (ACID MINE DRAINAGE): The exposure, usually as a result of mining, of
sulfide-bearing minerals to air and water, forming sulfuric acid. This acid dissolves metals such as lead, zinc,
copper, mercury, and cadmium, into ground and surface water. Acid rock/mine drainage can impact water quality,
aquatic life and habitat. Commonly mined ore bodies that pose the risk of acid rock drainage include gold, silver,
copper, iron, zinc, and lead.
ADIT: A nearly horizontal passage in an underground mine, driven from the surface, by which a mine may be
entered, ventilated, or dewatered.
AQUIFER: A water-bearing bed or layer of permeable rock, sand, or gravel capable of yielding large amounts of
water.
BACKFILLING: The replacement of soil and earth removed during mining.
BASELINE STUDIES: The establishment and operation of a designed surveillance system for continuous or
periodic measurements and recording of existing and changing conditions that will be compared with future
observations.
BENEFICIATION: The dressing or processing of ores to 1) regulate the size of a desired product, 2) remove
unwanted constituents, and 3) improve the quality, purity, or assay grade of a desired product. Beneficiation
includes concentration or other preparation of ore for smelting by drying, flotation, or magnetic separation.
BEST AVAILABLE TECHNOLOGY AND PRACTICES: The applying of the most advanced systems,
techniques, procedures, and controls, determined on a case-by-case basis by the regulatory agency.
BIOLOGICAL ASSESSMENT: Information prepared by, or under the direction of, a Federal agency concerning
listed and proposed species and designation and proposed critical habitat that may be present in the action area and
may be affected by the proposed action. A biological assessment presents the BLM’s determination of whether any
such species or habitat is likely to be adversely affected by the action.
BULKHEAD: A partition or wall in mines for protection against gas, fire, and water.
BULK SAMPLING: As part of exploration, the removal of large amounts of mineral substances for testing.
CALIFORNIA DESERT CONSERVATION AREA (CDCA): CDCA is a 25-million acre expanse of land in
southern California designated by the U.S. Congress in 1976 through FLPMA. About 10 million acres are
administered by the BLM. Under 43 USC 1781(f), BLM surface management and other regulations continue to
apply to the surface of patented mining claims within the CDCA that were patented after the enactment of FLPMA.
CASUAL USE: Mining activities that no or negligible disturbance to Federal lands and resources.
CLAIM: See MINING CLAIM.
CRITICAL HABITAT: (1) the specific areas within the geographical area currently occupied by a species, at the
time it is listed in accordance with the ESA, on which are found those physical or biological features (i) essential to
the conservation of the species and (ii) that may require special management considerations or protection, and (2)
specific areas outside the geographical area occupied by a species at the time it is listed upon determination by the
FWS and/or NMFS that such areas are essential for the conservation of the species. Critical habitats are designated
in 50 CFR parts 17 and 226. The constituent elements of critical habitat are those physical and biological features of
designated or proposed critical habitat essential to the conservation of the species, including, but not limited to: (1)
space for individual and population growth, and for normal behavior; (2) food, water, air, light, minerals, or other
nutritional or physiological requirements; (3) cover or shelter; (4) sites for breeding, reproduction, rearing of
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offspring, germination, or seed dispersal; and (5) habitats that are protected from disturbance or are representative of
the historical geographic and ecological distributions of a species.
COMMON VARIETY MINERALS: Stone, gravel, pumice, pumicite, and cinders that, though possibly having
value for trade, manufacture, the sciences, or the mechanical or ornamental arts, do not have a distinct, special value
for such use beyond normal uses. On the public lands such minerals are considered saleable (as opposed to
locatable) and are disposed of by sales or by special permits to local governments. Development of these minerals is
not subject to the BLM’s surface management regulations. See SALEABLE MINERALS, MINERAL
MATERIALS, and UNCOMMON VARIETY MINERALS.
CORPORATE GUARANTEES (BONDING): The use of corporate pledge as part or all of the financial assurance
for reclamation. The BLM does not accept any new corporate guarantees for bonding purposes.
CULTURAL RESOURCE: A definite location of human activity, occupation, or use identifiable through field
inventory (survey), historical documentation, or oral evidence. The term includes archaeological, historic, or
architectural sites, structures, or places with important public and scientific uses, and may include definite locations
(sites or places) of traditional cultural or religious importance to specified social and/or cultural groups. (Cf.
“traditional cultural property;” see “definite location.”) Cultural resources are concrete, material places and things
that are located, classified, ranked, and managed through the system of identifying, protecting, and utilizing for
public benefit described in this Manual series. They may be but are not necessarily eligible for the National Register
(See “historic property” or “historic resource.”)
CYANIDE LEACHING: The extraction of metal from an ore by dissolution in a cyanide solution.
DAVIS-BACON WAGES: For reclamation cost estimating purposes Davis-Bacon wage determination is applied to
applicable construction contracts. Wage determinations are issued by the U.S. Department of Labor under the
Davis-Bacon and related Acts. Information on Davis-Bacon wage rates can be found at www.access.gpo.gov\
davisbacon.
DEVELOPMENT (MINERAL): The preparation of a proven deposit for mining.
DISCOVERY: Under the Mining Law, a mining claimant has made a “discovery” on the mining claim “where
minerals have been found and the evidence is of such a character that a person of ordinary prudence would be
justified in the further expenditure of his labor and means, with a reasonable prospect of success in developing a
valuable mine.” Castle v. Womble, 19 Pub. Lands Dec. 455, 457; Chrisman v. Miller, 197 U.S. 313, 322 (1905).
Mining claims are not valid without a discovery.
DRAINAGE: The removal of excess water from land by surface or subsurface flow. See ACID ROCK
DRAINAGE.
DRYWASHER: A mechanical device used to recover gold or other heavy minerals
EFFLUENT: Treated or untreated waste material discharged into the environment.
ENDANGERED SPECIES: Any species in danger of extinction throughout all or a significant portion of its range.
Threatened and endangered species are designated by the U.S. Fish and Wildlife Service or National Marine
Fisheries Service under provisions of the Endangered Species Act.
ENDANGERED SPECIES ACT (ESA): A Federal act passed in 1973 to provide a means whereby the ecosystems
upon which endangered species and threatened species depend may be conserved and to provide a program for the
conservation of such endangered species and threatened species.
ENVIRONMENTAL ASSESSMENT (EA): A concise public document prepared under the National
Environmental Policy Act (NEPA) for any proposed major Federal action. An EA briefly discloses and analyzes the
potential direct, indirect, and cumulative impacts of the BLM’s proposed action to determine whether the impacts
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will be significant. If there will significant impacts, the BLM will prepare an environmental impact statement (EIS);
if the impacts will not be significant, the BLM will issue a finding of no significant impact (FONSI).
ENVIRONMENTAL IMPACT STATEMENT (EIS): A document prepared under the National Environmental
Policy Act (NEPA) that discloses and analyzes potential direct, indirect, and cumulative impacts of a proposed
major Federal action that significantly affects the human environment and its possible alternatives. The BLM
prepares EISs to weigh the environmental consequences of potential decisions.
ESA CONSULTATION and CONFERENCING: The requirement of Section 7 of the Endangered Species Act that
all Federal agencies consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service if a
proposed action may affect a federally listed species or its critical habitat.
EXPLORATION: The work of investigating a mineral deposit to using geological surveys, geophysical surveys,
geochemical surveys, boreholes, pits, and underground workings. Exploration is undertaken to gain knowledge of
the size, shape, position, characteristics, and value of the deposit. For the surface management regulations,
exploration may mean creating surface disturbance that is greater than casual use and that includes sampling,
drilling, or developing surface or underground workings to evaluate the type, extent, quantity, or quality of mineral
values present. Exploration does not include activities where material is extracted for commercial use or sale.
FEDERAL LAND POLICY AND MANAGEMENT ACT (FLPMA): The act that (1) provided standards for the
BLM in managing the public lands, including land use planning, sales, withdrawals, acquisitions, and exchanges; (2)
authorized the setting up of local advisory councils representing major citizens groups interested in land use
planning and management; (3) established criteria for review of proposed wilderness areas; and (4) provided
guidelines for other aspects of public land management such as grazing. Section 302(b) of FLPMA amended the
Mining Law to require the BLM to prevent UUD to the public lands. This provision forms the basis for the surface
management regulations.
FINANCIAL GUARANTEE: The surface management regulations use the term “financial guarantee” in reference
to the contracted document and any financial instrument used to guarantee the operator will perform reclamation
required by the regulations and authorization.
INTERIOR BOARD OF LAND APPEALS (IBLA): The Department of the Interior, Office of Hearings and
Appeals, board that acts for the Secretary of the Interior in responding to appeals of decisions on the use and
disposition of public lands and resources. Because IBLA acts for and on behalf of the Secretary of the Interior, its
decisions usually represent the Department’s final decision and are subject to appeal to the Federal courts.
LEACHATE: The liquid that has percolated through and dissolved minerals out of ore.
LOCATABLE MINERALS: Minerals that may be extracted under the Mining Law of 1872, as amended, consistent
with surface management regulations.
LOCATION: The act of claiming a parcel of mineral land as a mining claim (or non-mineral land as a mill site),
including the posting of notices, the recording thereof when required, and marking the boundaries so they can be
readily traced. The word “location” can also be used as a noun to mean the mining claim or mill site acquired by the
act of location itself. See MINING CLAIM.
MAGNUSON-STEVENS ACT: The Magnuson-Stevens Fishery Conservation and Management Act of 1976 is a
Federal statute that is the principal Federal law governing marine fisheries in the United States.
MAXIMUM PROCESS SOLUTION INVENTORY: The maximum volume of solutions projected to be present in
a leaching process circuit at any given time after considering precipitation, evaporation, runon, draindown of
retained solution, addition of make-up water, normal discharge, or loss to ore wetting. Modeling is often done to
assess the water balance and to determine the maximum process solution inventory under average operating
conditions, during a wet year, or during a dry year. The remaining “free board” or available storage capacity is then
compared to the expected solution addition from the design storm event (often the 100-year, 24-hour event) in order
to determine whether the storage capacity is adequate to contain the design storm event.
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METAL DETECTOR: A hand-held device that senses the presence of metal, specifically used in searching an area
for coins or other metal objects. The use of a metal detector is generally considered casual use under the surface
management regulations.
MILL: A processing facility in which ore is treated for the recovery of valuable minerals or valuable minerals are
concentrated into a smaller bulk for shipping to a smelter or other reduction works.
MILL SITE: A parcel of non-mineral land located under the Mining Law and used and occupied in support of a
mine. See LOCATION and MINING CLAIM.
MINE: An opening or excavation in the earth for extracting minerals.
MINERAL: Any solid or fluid inorganic substance that can be extracted from the earth for profit.
MINERAL ACTIVITY: Mining and mineral exploration.
MINERALIZATION: The processes taking place in the earth’s crust resulting in the formation of valuable minerals
or ore bodies.
MINERAL MATERIALS: Materials such as common varieties of sand, stone, gravel, pumice, pumicite, and clay,
that are not obtainable under the mining or leasing laws but that can be acquired under the Mineral Materials Act of
1947, as amended. See COMMON VARIETY MINERALS.
MINING CLAIM: A parcel of land that a miner takes and holds for mining purposes, having acquired the right of
possession by complying with the Mining Law and local laws and rules. There are four categories of mining claims:
lode, placer, mill site, and tunnel site.
MINING CLAIMANT: A person, association, corporation, or government that claims minerals rights or title in the
public lands.
MINING LAW OF 1872 (GENERAL MINING LAW OR MINING LAW): The Federal act that, with its
amendments, authorizes the mining of locatable minerals on the public lands.
MINING LAWS: The Lode Law of July 26, 1866, as amended (14 Stat. 251); the Placer Law of July 9, 1870, as
amended (16 Stat. 217); and the Mining Law of May 10, 1872, as amended (17 Stat. 91); as well as all laws
supplementing and amending those laws, including the Building Stone Act of August 4, 1892, as amended (27 Stat.
348); the Saline Placer Act of January 31, 1901 (31 Stat. 745); the Surface Resources Act of 1955 (30 U.S.C. 611614); and the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.).
MINING LOCATION: A mining claim or mill site on the public lands.
MITIGATION: As defined in 40 CFR 1508.20, one or more of the following: (1) avoiding impacts altogether by
not taking a certain action or parts of an action; (2) minimizing impacts by limiting the degree or magnitude of an
action and its implementation; (3) rectifying impacts by repairing, rehabilitating, or restoring the affected
environment; (4) reducing or eliminating impacts over time by preservation and maintenance operations during the
life of the action; and (5) compensating for impacts by replacing or providing substitute resources or environments.
MODIFICATION: A change in a Notice or Plan of Operations that requires some level of review by the BLM
because it exceeds what was described in the accepted Notice or approved Plan of Operations.
NATIONAL CONSERVATION AREA (NCA): A congressionally designated public land area that contains
important resources and whose management objectives are (1) to conserve and protect these resources, (2) to
maintain environmental quality, and (3) to provide for present and future users within a framework of multiple use
and sustained yield.
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NATIONAL ENVIRONMENTAL POLICY ACT (NEPA): The Federal law, going into effect on January 1, 1970,
that established a national policy for the environment and requires Federal agencies (1) to become aware of the
environmental ramifications of their proposed actions, (2) to fully disclose to the public proposed Federal actions
and provide a mechanism for public input to Federal decision-making, and (3) to prepare environmental impact
statements for every major Federal action that would significantly affect the quality of the human environment.
NATIONAL HISTORIC PRESERVATION ACT (NHPA): A Federal statute that established Federal program to
further the efforts of private agencies and individuals in preserving the Nation’s historic and cultural foundations.
NHPA (1) authorized the National Register of Historic Places, (2) established the Advisory Council on Historic
Preservation and a National Trust Fund to administer grants for historic preservation, and (3) authorized the
development of regulations to require Federal agencies to consider the effects of federally assisted activities on
properties included on or eligible for the National Register of Historic Places.
NATIONAL MONUMENTS: Congress granted the President authority to designate national monuments in the
Antiquities Act of 1906, which specifies that the law’s purpose is to protect “objects of historic or scientific
interest.” In addition to presidentially created national monuments, Congress has established national monuments
by passing a law to create each individual monument with its own purpose (generally to protect natural or historic
features).
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES): A process for controlling the
amount of pollution discharged into waters by requiring polluters to obtain NPDES permits from the states involved
and to comply with discharge standards. The NPDES is mandated by the Federal Water Pollution Control Act
Amendments.
NATIONAL WILD AND SCENIC RIVERS SYSTEM (WSR): A system of nationally designated rivers and their
immediate environments that have outstanding scenic, recreational, geologic, fish and wildlife, historic, cultural, and
other similar values and are preserved in a free-flowing condition established by the National Wild and Scenic
Rivers Act of 1968. The system consists of three types of streams: (1) recreation—rivers or sections of rivers that
are readily accessible by road or railroad and that may have some development along their shorelines and may have
undergone some impoundments or diversion in the past, (2) scenic—rivers or sections of rivers free of
impoundments with shorelines or watersheds still largely undeveloped but accessible in places by roads, and (3)
wild—rivers or sections of rivers free of impoundments and generally inaccessible except by trails, with watersheds
or shorelines essentially primitive and waters unpolluted.
NATIONAL WILDERNESS PRESERVATION SYSTEM (NWPS): Federally owned areas designated by
Congress as “wilderness areas” originally established under the National Wilderness Preservation Act of 1964.
NOTICE: The notification a mining operator must submit to the BLM of the intention to begin an operation that
will disturb 5 acres or less a year within a mining claim or project area.
NOTICE-LEVEL OPERATION: Exploration that causes disturbance greater than casual use but less than 5 acres of
disturbance. The operator is required to submit an acceptable Notice to the BLM.
NONCOMPLIANCE ORDER: An authorized officer’s decision, sent to the mining operator and claimant, that (1)
details provisions of the regulations that a mining operation has violated and (2) states corrective actions that the
operator must take within a specified time.
NOXIOUS WEED: According to the Federal Noxious Weed Act (PL 93-629), a weed that causes disease on has
other adverse effects on humans and their environment and is therefore detrimental to public health and the
agriculture and commerce of the United States.
OFF-ROAD VEHICLE (ORV): Any vehicle capable of or designed for travel on or immediately over land, water,
or other natural terrain, deriving motive power from any source other than muscle. This definition excludes (1) any
nonamphibious registered motorboat; (2) any fire, emergency, or law enforcement vehicle while being used for
official or emergency purposes; and (3) any vehicle whose use is expressly authorized by a permit, lease, license,
agreement, or contract issued by an authorized officer or otherwise approved.
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OPEN PIT MINING: A surface mining method in which overlying rock and soil are removed to expose an ore
body, which is then drilled, blasted, and hauled from the pit.
OPERATIONS: All functions, work, facilities, and activities on public lands in connection with prospecting,
exploration, discovery, and assessment work, development, extraction, and processing of mineral deposits locatable
under the mining laws; reclamation of disturbed areas; and all other reasonably incident uses, whether on a mining
claim or not, including the building of roads, transmission lines, pipelines, and other means of access across public
lands for support facilities.
OPERATOR: Any person who manages, directs, or conducts mining operations at a project area, including a parent
entity or an affiliate who materially participates in such management, direction, or conduct. An operator on a
particular mining claim may also be the mining claimant.
OVERBURDEN: All the earth and other materials that overlie a natural mineral deposit.
PALEONTOLOGICAL RESOURCES (FOSSILS): The physical remains of plants and animals preserved in soils
and sedimentary rock formations. Paleontological resources are important for understanding past environments,
environmental change, and the evolution of life.
PATENT: The instrument by which the Federal Government conveys title to the public lands.
pH: A measure of acidity or hydrogen ion activity. Neutral is pH 7.0. All values below 7.0 are acidic, and all
values above 7.0 are alkaline.
PIT LAKE: Water body that forms at the bottom of an open pit mine when mining extends below the water table.
PLACER: An alluvial deposit of sand and gravel containing valuable minerals such as gold.
PLACER MINING: A method of mining in which the overburden is removed to expose valuable mineral-bearing
gravel deposits beneath. The gravel is then sluiced to separate the valuable minerals, usually the heavier metallic
minerals.
PLAN: See PLAN OF OPERATIONS.
PLAN OF OPERATIONS: A plan for mineral exploration, development, and/or mining that an operator must
submit to the BLM for approval, when more than 5 acres will be disturbed, when activity greater than exploration
will occur on fewer than 5 acres, or when an operator plans to work in an area of critical environmental concern or a
wilderness area. A Plan of Operations must document in detail all activities the operator plans to take, from
exploration through reclamation and post-mine closure (including any post-mine economic uses) and, if necessary,
long-term monitoring. Before commencing operations on an approved Plan of Operations, the operator must also
provide the BLM with an acceptable financial guarantee.
PRESUMED ORE: That portion of the rock material excavated from a shallow open pit or small underground
opening for evaluation and testing purposes, either onsite or off site, to determine whether it contains metals or other
minerals that may be extracted efficiently and profitably. Bulk sampling of less than 1,000 tons of presumed ore
may be conducted under a Notice. Any sampling of 1,000 ton or more of presumed ore requires a Plan of
Operations. Also, onsite field-scale testing using chemicals such as cyanide or sulfuric acid to evaluate leachability
must be done under a Plan of Operations, regardless of test sample size.
PROJECT AREA: The area of land upon which an operator conducts mining operations, including the area needed
for building or maintaining of roads, transmission lines, pipelines, or other means of access.
PUBLIC LANDS: Any land and interest in land owned by the United States and administered by the Secretary of
the Interior through the Bureau of Land Management, without regard to how the United States acquired ownership,
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except for (1) land located on the Outer Continental Shelf and (2) land held for the benefit of Indians, Aleuts, and
Eskimos.
RECLAMATION: Measures stated in the accepted Notice or approved Plan of Operations as a condition of
allowing the disturbance of public lands from mining operations. Reclamation measures must meet performance
standards and achieve conditions required by the BLM at the end of operations. Components of reclamation may
include 1) isolating, controlling, or removing acid-forming, toxic, or deleterious substances; 2) regrading and
reshaping to conform with adjacent landforms, facilitate revegetation, control drainage, and minimize erosion; 3)
rehabilitating fisheries or wildlife habitat; 4) placing growth media and establishing self-sustaining revegetation; 5)
removing or stabilizing buildings, structures, or other support facilities; 6) plugging drill holes and closing
underground workings; and 7) providing for post-mining monitoring, maintenance, or treatment.
RECORD OF DECISION: A document prepared after a final Environmental Impact Statement that states the
decision that resulted from the NEPA process and provides the necessary background information for how the
decision was made. The ROD is signed by the official authorized to make the decision and is an appealable BLM
decision.
RIPARIAN AREA: A form of wetland transition between permanently saturated wetlands and upland areas.
Riparian areas exhibit vegetation or physical characteristics that reflect the influence of permanent surface or
subsurface water. Typical riparian areas include lands along, adjacent to, or contiguous with perennially and
intermittently flowing rivers and streams, glacial potholes, and the shores of lakes and reservoirs with stable water
levels. Excluded are ephemeral streams or washes that lack vegetation and depend on free water in the soil.
ROCK CHARACTERIZATION: A program of testing and evaluating the physical, chemical, and mineralogical
nature of rock to evaluate its potential to produce acid rock drainage or other deleterious leachate.
SCARIFY: To break the surface of the soil with a narrow bladed instrument.
SCOPING: Generally a term associated with NEPA, scoping is an early and open process for determining the scope
of issues to be addressed in an EIS and the significant issues related to a proposed action. Scoping may involve
public meetings; field interviews with representatives of agencies and interest groups; discussions with resource
specialists and managers; and written comments in response to news releases, direct mailings, and articles about the
proposed action and scoping meetings.
SECTION 106 COMPLIANCE: The requirement of Section 106 of the National Historic Preservation Act that any
project funded, licensed, permitted, or assisted by the Federal Government be reviewed for impacts to significant
historic properties and that the State Historic Preservation Officer and the Advisory Council on Historic Preservation
be allowed to comment on a project.
SECTION 7 CONSULTATION: SEE ESA CONSULTATION and CONFERENCING
SEGREGATION: Any act by the Secretary or Congress such as a withdrawal or exchange that suspends the
operation of some or all of the public land laws for a specified time. See WITHDRAWAL.
SERVICE CONTRACT ACT: The McNamara-O’Hara Service Contract Act requires contractors and
subcontractors performing service on prime contracts in excess of $2,500 to pay service employees in various
classes no less than the wage rates and fringe benefits found prevailing in the locality, or the rate contained in a
predecessor contractor’s collective bargaining agreement. (Referred to on Page 110 of the Handbook.)
SIMULATED WEATHERING TEST: This test attempts to mimic natural oxidation reactions of a field setting, and
may include controlling temperature, moisture, wetting and drying cycles, and the influence of bacteria.
SLUICE: A device used to physically or mechanically separate and enrich the valuable mineral content of
aggregate.
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SPECIAL STATUS AREAS: Areas that the BLM has determined to have resources of unique or distinct value.
These lands have a variety of designations, depending on the authority under which they were designated and the
resources present. Such areas include (1) lands in the CDCA designated by the CDCA Plan as “controlled” or
“limited” use areas, (2) areas in or designated for potential addition to the National Wild and Scenic Rivers System
(WSR), (3) areas of critical environmental concern (ACECs), (4) designated wilderness areas administered by the
BLM, and (5) areas closed to off-road vehicle use.
SPLIT ESTATE: Land whose surface rights and mineral rights are owned by different entities. The 43 CFR 3809
regulations apply when surface rights are privately owned and the mineral rights are owned by the Federal
Government and managed by the BLM. The 43 CFR 2920 regulations apply when surface rights are owned by the
Federal government and managed by the BLM and the mineral rights are privately owned.
STOCK RAISING HOMESTEAD ACT LANDS: Split estate lands patented under the SRHA of December 29,
1916. These lands were not considered suitable for cultivation but were considered suitable for stock grazing. All
minerals on these lands were retained by the United States and they remain open to location.
SUCTION DREDGE: A dredge that lifts material and pumps it through a suction pipe.
TAILINGS: The waste matter from ore after the extraction of economically recoverable metals and minerals.
TAILING IMPOUNDMENT: An area closed at its lower end by a constraining wall or dam into which mill
effluents are run and from which, after solids have settled out, clear water may be returned via penstocks and piping.
THREATENED SPECIES: As described in 16 U.S.C. 1532(20), any plant or animals species likely to become
endangered within the foreseeable future throughout all or a part of its range and designated as threatened by the
U.S. Fish and Wildlife Service under the Endangered Species Act. See ENDANGERED SPECIES.
TRIBE (TRIBAL): Terms that refer to federally recognized Indian tribes.
TUNNEL: A nearly horizontal underground passage open to the surface at both ends.
UNCOMMON VARIETY MINERALS: Deposits of stone, gravel, pumice, pumicite, and cinder deposits that were
not withdrawn from location by the Common Varieties Act of 1955 because they have distinct and special properties
making them commercially valuable for use in a manufacturing, industrial, or processing operation. Such minerals
continue to be locatable under the Mining Law of 1872, as amended. In determining a deposit’s commercial value
for making a common variety determination, the following factors may be considered: quality and quantity of the
deposit, geographic location, accessibility to transportation, and proximity to market or point of use. See
COMMON VARIETY MINERALS.
UNNECESSARY OR UNDUE DEGRADATION: As defined in the part 3809 regulations, unnecessary or undue
degradation results from conditions, activities, or practices that (1) fail to comply with one or more of the following:
the performance standards in 43 CFR 3809.420, the conditions of an approved Plan of Operations, operations
described in a complete Notice, and other Federal and state laws for environmental and cultural resource protection;
(2) are not reasonably incident to prospecting, mining, or processing; or (3) fail to attain a stated level of protection
or reclamation required by law in such areas as the CDCA, wild and scenic rivers, BLM-administered portions of
the National Wilderness Preservation System, and BLM-administered national monuments and national
conservation areas.
VALID EXISTING RIGHTS: Locatable mineral development rights that existed when FLPMA was enacted on
October 21, 1976. Some areas are segregated from entry and location under the Mining Law to protect certain
values or allow certain uses. Mining claims that existed as of the effective date of the segregation may still be valid
if they can meet the test of discovery of a valuable mineral required under the Mining Law. Determining the
validity of mining claims located in segregated lands requires the BLM to conduct a validity examination and is
called a “valid existing rights” determination.
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VALIDITY EXAMINATION (VALIDITY DETERMINATION): An examination of a mining claim by a mineral
examiner to determine if the claim has a discovery or otherwise meets the validity requirements of the Mining Law
or if all requirements for a mill site have been met. All claims for which a patent application has been filed must
undergo such an exam. In addition, the BLM must perform validity examinations before approving plans of
operations or accepting notices in areas that are withdrawn.
WASTE ROCK (WASTE): Barren rock at a mine or material that is too low in grade to be of economic value.
WATERSHED: The total area above a given point on a stream that contributes runoff water to the streamflow at
that point.
WHOLE ROCK ANALYSIS (EVALUATION): A test that is designed to provide quantitative determination of
rock forming minerals, major oxides, and trace elements.
WILDERNESS AREA: A congressionally designated area of undeveloped Federal land retaining its primeval
character and influence, without permanent improvements or human habitation, that is protected and managed to
preserve its natural conditions and that (1) generally appears to have been affected mainly by the forces of nature,
with human imprints substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and
unconfined type of recreation; (3) has at least 5,000 acres or is large enough to make practical its preservation and
use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific,
educational, scenic, or historic value. Wilderness study areas (WSA) are not subject to the 3809 surface
management regulations. Management of mineral activity within WSAs is addressed at 43 CFR 3802.
WITHDRAWAL: An action that restricts the use of Federal lands by removing them from the operation of some or
all of the public land or mining laws. See SEGREGATION.
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Abbreviations
2H:1V: slope (horizontal to vertical ratio)
ACEC: area of critical environmental concern
ARD: acid rock drainage
BLM: U.S. Department of the Interior, Bureau of Land Management
CBS: Collection and Billing System
CDCA: California Desert Conservation Area
CEQ: Council on Environmental Quality
CERCLA: Comprehensive Environmental Response, Compensation, and Liability Act
CFR: Code of Federal Regulations
CRS: Case Recordation System
DNA: determination of NEPA adequacy
DOI: U.S. Department of the Interior
DOJ: U.S. Department of Justice
DR: decision record
EA: environmental assessment
ED&C: engineering, design and construction
EIS: environmental impact statement
EPA: U.S. Environmental Protection Agency
ESA: Endangered Species Act
FLPMA: Federal Land Policy and Management Act
FAR: Federal Acquisition Regulations
FONSI: Finding of No Significant Impact
FWS: U.S. Fish and Wildlife Service
GPS: global positioning system
IBLA: Interior Board of Land Appeals
Mg/l: milligrams per liter
MOU: memorandum of understanding
MSHA: Department of Labor, Mine Safety and Health Administration
NEPA: National Environmental Policy Act
NHPA: National Historic Preservation Act
NPDES: National Pollutant Discharge Elimination System
NTC: National Training Center
NV-MWMP: Nevada meteoric water mobility procedure
O&M: operation and maintenance
OHV: off highway vehicle
ORV: off-road vehicle
OSHA: Occupational Safety and Health Act
RCE: reclamation cost estimate
RCRA: Resource Conservation and Recovery Act
ROD: record of decision
SDR: State Director Review
SRHA: Stock Raising Homestead Act
T&E: threatened and endangered
TCLP: toxicity characteristic leaching procedures
UUD: unnecessary or undue degradation
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Appendix A - Templates
This appendix contains templates for the most common correspondence or decisions to be issued
in the surface management program. The templates are labeled according to the handbook
section number where first referenced. The templates are in a consistent format and composed of
example language for that particular type of correspondence or decision. Suggestions to authors
on what to include or modify are written in italics. The letterhead and appeal language have
been omitted from these example correspondences in the interests of space.
It is recognized that not one-size-fits-all when it comes to preparing correspondence. The
templates are intended to provide a consistent starting point with the recognition that the author
will need to modify the language to accommodate the particular circumstances or practices in
his/her State or District/Field Office.
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-2
Template 2.2-1 - Proposed Activity does not qualify as Casual Use
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
Dear Mr. Smith:
The ABC Mining, Inc. (ABC) proposes to conduct exploration activity within the [insert designated area]. On
[insert date filed] ABC contacted this office as required by the resource management plan covering the [insert
designated area] before commencing activities.
The Bureau of Land Management (BLM) has reviewed the notification and determined that the proposed activities
within the [insert designated area] will result in more than negligible disturbance. Such activity would normally be
considered casual use; but due to the cumulative level of activity within the [insert designated area], ABC must
submit a Notice pursuant to 43 CFR 3809.300 through 3809.336 with this office, including the required reclamation
financial guarantee, prior to commencing activities. Conducting the proposed activities before filing an acceptable
Notice as required by 43 CFR 3809.21 is a prohibited act under 43 CFR 3809.605(b). Failure to suspend all
unauthorized activities will result in enforcement action under 43 CFR 3809.601.
If you have any questions, please contact me at [phone number] or contact [program specialist name and contact
information].
Sincerely,
[Signature]
Field Manager
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-3
Template 3.2-1 - Proposed Operation Requires a Plan of Operations
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
DECISION
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
:
:
:
Surface Management
:
PROPOSED OPERATION REQUIRES A PLAN OF OPERATIONS
The ABC Mining, Inc. (ABC) Notice to [proposed activity, e.g., mine] in [insert project area name] was received in
this office on [insert date filed]. The Notice has been assigned Bureau of Land Management (BLM) case file
number [insert #].
The proposed operation does not qualify under 43 CFR 3809.21 as notice-level activity. Specifically, [proposed
activity, e.g., mining] requires the submission of a Plan of Operation to the BLM in accordance with 43 CFR
3809.11. You are required to file a Plan of Operations in this BLM Field Office. A specific form is not required but
the Plan must contain all the information required under 43 CFR 3809.401(b) in order to be considered complete.
Appeal of the Decision
[See Template 10.1-1, Field Office Decision – Appeal Language and Template 10.1-3, Request for a Stay]
If you have any questions, please contact me at [phone number] or contact [program specialist name and contact
information].
Sincerely,
[Signature]
Field Manager
1 Enclosure
1 - Form 1842-1, Information on Taking Appeals to the Interior Board of Land Appeals.
cc:
[State Office]
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-4
Template 3.2-2 - Processing Notice or Plan Suspended
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
Dear Mr. Smith:
The ABC Mining, Inc. (ABC) Notice to conduct exploration trenching and drilling in [insert project area name] was
received in this office on [insert date filed]. The Notice has been assigned Bureau of Land Management (BLM)
case file number [serial number]. Please refer to this number in any future communication concerning this project.
[If there were previous communication with the operator regarding the Notice, e.g., an acknowledgement or
completeness letter, you would have told them the receipt date and case file number then, and do not need to repeat
it.]
The BLM has reviewed the Notice and determined it contains all the information required by the surface
management regulations at 43 CFR 3809.301. However, because the BLM is unable to determine if the proposed
operation is adequate to prevent unnecessary or undue degradation as defined by 43 CFR 3809.5, we will not be able
to continue processing your Notice. When the situation [e.g., mutually exclusive Notices filed for the same parcel of
land] has been resolved and the BLM can make such a determination, we will notify you and begin processing your
Notice again.
If you have any questions, please contact me at [phone number] or contact [program specialist name and contact
information].
Sincerely,
[Signature]
Field Manager
1 Enclosure
1 - Form 1842-1, Information on Taking Appeals to the Interior Board of Land Appeals.
cc: [State Office]
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-5
Template 3.2-3 - Determination of Required Financial Guarantee Amount
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
DECISION
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
:
:
:
:
Surface Management
DETERMINATION OF REQUIRED FINANACIAL GUARANTEE AMOUNT
The ABC Mining, Inc. (ABC) Notice to conduct exploration trenching and drilling in [insert project area name] was
received in this office on [insert date filed]. The Notice has been assigned Bureau of Land Management (BLM)
case file number [insert #]. Please refer to this number in any future communication concerning this project. [If
there were previous communication with the operator regarding the Notice, e.g., an acknowledgement or
completeness letter, you would have told them the receipt date and case file number then, and do not need to repeat
it.]
The BLM has reviewed the Notice and determined it is complete, containing all the information required by the
surface management regulations at 43 CFR 3809.301. The BLM has reviewed the proposed operation and
determined it is adequate to prevent unnecessary or undue degradation as defined by 43 CFR 3809.5.
Amount of Financial Guarantee - This office has reviewed ABC’s reclamation cost estimate for this project and
determined that the amount of [insert dollar amount] is sufficient to meet all anticipated reclamation requirements.
The amount of the reclamation cost estimate is based on the operator complying with all applicable operating and
reclamation requirements as outlined in the Notice and the regulations at 43 CFR 3809.420.
Line items in the approved reclamation cost estimate are not to be considered as the limits of the reclamation
expenditures should forfeiture of the financial guarantee be necessary. The line items listed are solely for the
purpose of arriving at a total amount for the financial guarantee (see enclosure 1). This amount may be spent as the
BLM deems necessary to implement the approved reclamation plan. The financial guarantee amount does not
represent reclamation liability limits or constraints should the actual cost of reclamation exceed this amount.
Required Financial Guarantee -The financial guarantee in the amount of [insert dollar amount] must be submitted to
and accepted by the [insert name and address of the BLM office that will adjudicate and accept the financial
guarantee]. You must receive written notification from that office accepting and obligating your financial guarantee
before you begin any surface-disturbing operations.
The types of instruments that are acceptable to the BLM for financial guarantees are found at 43 CFR 3809.555.
Please contact [insert adjudication office contact and phone number] for forms and further information regarding
acceptable financial guarantees.
The BLM’s review of your proposed operations, determination that your Notice is complete, finding that the activity
will not cause unnecessary or undue degradation, and decision concerning the amount of the required financial
guarantee does not relieve you, the operator, of the responsibility to comply with all applicable Federal, state, and
local laws, regulations, and permit requirements. You are responsible for preventing any unnecessary or undue
degradation and for reclaiming all lands disturbed by your operations.
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-6
Template 3.2-3 - Determination of Required Financial Guarantee Amount
(continued)
This decision does not constitute certification of ownership to any entity named in the Notice, recognition of the
validity of any associated mining claims, or recognition of the economic feasibility of the proposed operations.
Term of Notice - Your Notice will remain in effect for 2 years from the date of this decision, unless you notify this
office beforehand that operations have ceased and reclamation is complete. If you wish to conduct operations for
another 2 years after the expiration date of your Notice, you must notify this office in writing on or before the
expiration date as required by 43 CFR 3809.333. You will also have to submit an updated reclamation cost estimate
at that time.
Appeal of the Decision Determining the Required Financial Guarantee Amount
[See Template 10.1-1, Field Office Decision – Appeal Language and Template 10.1-3, Request for a Stay]
If you have any questions, please contact me at [phone number] or contact [program specialist name and contact
information].
Sincerely,
[Signature]
Field Manager
2 Enclosures
1 - Reclamation cost estimate worksheet
2 - Form 1842-1, Information on Taking Appeals to the Interior Board of Land Appeals
cc:
[State Office]
[Other applicable parties (state, claimant{s},etc.)]
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-7
Template 3.2-4 - Notice Not Complete
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
Dear Mr. Smith:
The ABC Mining, Inc. (ABC) Notice to conduct exploration activity at [project location] was received in this office
on [date]. The Notice has been assigned Bureau of Land Management (BLM) case file number [serial number].
Please refer to this number in future correspondence concerning this operation.
Consistent with the surface management regulations at 43 CFR 3809.311(a), the BLM has reviewed the Notice to
determine if it meets the content requirements at 43 CFR 3809.301(b). Based on our review, the following
information is required from ABC in order for the Notice to be complete:
[List as many completeness requirements as applicable. Consider sending the operator a copy of the regulations to
assist them in understanding the Notice and bonding requirements]
1. There is no map showing the location of the proposed surface-disturbing activity. A map showing the project
location in sufficient detail for the BLM to locate the proposed activity is required.
2. The Notice mentions drill holes but gives no indication as to the number of holes, their locations, or approximate
depths. This information is required.
3. There is no mention how or if the drill holes will be plugged. A description of the drill hole plugging procedures
that will be followed is needed.
4. The schedule of activity is listed as indefinite. A specific project schedule is required in order to determine
reclamation timing, costs, and whether the activity will not cause unnecessary or undue degradation. Please note
that a Notice can only be accepted for work to be done in a 2-year period. Therefore, the proposed activity schedule
should not exceed 2 years. If for some reason the work is not accomplished within 2 years, the Notice may be
extended at its expiration date. If you want to conduct additional exploration based on your initial test results, you
can request the Notice be modified under 43 CFR 3809.330 to account for the additional activity.
5. A reclamation cost estimate is required in order for your Notice to be considered complete (43 CFR
3809.301(b)(4). Please provide this estimate in accordance with the requirements at 43 CFR 3809.552.
Until a complete Notice is filed with this office, the BLM is unable to determine that your proposed operations will
not result in unnecessary or undue degradation as defined under 43 CFR 3809.5. In addition, we are unable to make
a determination as to the amount of the required financial guarantee.
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-8
Template 3.2-4 - Notice Not Complete
(continued)
Please submit the required information at your earliest convenience. Until we receive this information your Notice
cannot be processed and the proposed exploration activity is not to take place. Conducting the proposed activities
before filing an acceptable Notice as required by 43 CFR 3809.21 is a prohibited act under 43 CFR 3809.605(b).
Failure to suspend all unauthorized activities will result in enforcement action under 43 CFR 3809.601.
If you have any questions on these information requests, please contact [program specialist name and contact
information].
Sincerely,
[Signature]
Field Manager
Enclosure
1 - 43 CFR 3809 [optional]
cc:
[Other agencies as applicable]
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-9
Template 3.2-5 - Modification Required (New Notice)
3809 [office code]
[case serial No.]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
Dear Mr. Smith:
The ABC Mining, Inc. (ABC) Notice to [proposed activity, e.g., mine] in [insert project area name] was received in
this office on [insert date filed]. The Notice has been assigned Bureau of Land Management (BLM) case file
number [insert #]. Please refer to this number in any future communication concerning this project.
Consistent with the surface management regulations at 43 CFR 3809.311(c), the BLM has reviewed the Notice to
determine if your operation prevents undue or unnecessary degradation (UUD). Based on our review specifically,
[proposed activity that causes UUD] does not comply with surface management regulations at 43 CFR 3809 [insert
specific citation]. Before beginning operations you must address this issue by submitting a modified notice. The
notice modification must prevent UUD and comply with 43 CFR 3809.300 through 3809.336. The BLM
recommends:
[List measure(s) that the operator may take to prevent UUD.]
Please submit the required information at your earliest convenience. Until we receive this information your Notice
cannot be processed and the proposed exploration activity is not to take place. Conducting the proposed activities
before filing an acceptable Notice as required by 43 CFR 3809.21 is a prohibited act under 43 CFR 3809.605(b).
Failure to suspend all unauthorized activities will result in enforcement action under 43 CFR 3809.601.
If you have any questions, please contact me at [phone number] or contact [program specialist name and contact
information].
Sincerely,
[Signature]
Field Manager
cc:
[State Office]
[Appropriate State Agencies]
[Surety]
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-10
Template 3.4-1 - Notice Expired
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
DECISION
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
:
:
:
:
Surface Management
NOTICE EXPIRED – RECLAMATION REQUIRED
The ABC Mining, Inc. (ABC) Notice [enter case file number] to conduct exploration trenching and drilling in
[insert project area name] expired on [insert date Notice expired]. Due to your failure to [enter reason for Notice
expiring; failure to notify the BLM by the deadline their intent to extend the Notice, failure to provide the BLM with
required information within the specified timeframe, or failure to provide the BLM with the required financial
guarantee within the specified timeframe], the Notice has expired as required by 43 CFR 3809.333.
Notice Expired - All activities after the expiration date, except reclamation, are not authorized and must cease as
required by 43 CFR 3809.335. Any unauthorized activities continuing after the expiration date will be subject to
enforcement actions.
If the operator files a new Notice or Plan of Operations, the requirements of the 43 CFR 3809 regulations, including,
but not limited to, environmental review of Plans of Operations under the National Environmental Policy Act, and
full cost bonding under 43 CFR 3809.500 for both Notice- or Plan-level operations must be met prior to resuming
operations.
Reclamation Required - Unless you file a new Notice or Plan of Operations for that project area, you must
immediately commence reclamation. Within 30 days of receiving this decision, you must commence the
reclamation required by your Notice on file with the Bureau of Land Management (BLM). All reclamation,
including required earthwork and reseeding, [add other elements that are needed] must be completed within 90 days
of this decision. The BLM resource specialists will continue to monitor your progress in meeting your reclamation
obligations, including the success of the revegetation in the disturbed area. The BLM will inform you when all
reclamation standards have been met and whether your financial guarantee amount may be reduced or released.
Should you fail to commence reclamation within 30 days of issuance of this decision or fail to complete necessary
reclamation within 90 days of issuance of this decision, the BLM may initiate forfeiture of all or part of your
financial guarantee as provided for under 43 CFR 3809.336(b) and 43 CFR 3809.595. You may also be subject to
enforcement actions under 43 CFR 3809.601.
Appeal of the Decision
[See Template 10.1-1, Field Office Decision – Appeal Language and Template 10.1-3, Request for a Stay]
If you have any questions, please contact me at [phone number] or contact [program specialist name and contact
information].
Sincerely,
[Signature]
Field Manager
1 Enclosure
1 - Form 1842-1, Information on Taking Appeals to the Interior Board of Land Appeals.
cc:
[State Office]
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-11
Template 3.4-2 - Conditional Extension
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
Dear Mr. Smith:
The ABC Mining, Inc. (ABC) notification to extend your Notice [serial number] for 2 additional years was received
in this office on [date]. The Bureau of Land Management (BLM) has reviewed the Notice to determine if the Notice
qualifies for an extension (i.e., that it has not already expired), that the operation will not cause unnecessary or
undue degradation, and that all information required for a complete Notice has been submitted, including an
acceptable revised reclamation cost estimate. Based on our review, the following information is required from ABC
in order for the Notice to be complete:
[List all information that is required for the Notice to be considered complete under 43 CFR 3809.301(b):]
Your Notice has been conditionally extended subject to ABC providing the BLM with the required information
within 30 days of receiving this notification. Failure to provide the required information will result in the Notice
expiring immediately upon conclusion of this timeframe. Should the Notice expire you must cease all operations,
except reclamation. If you wish to continue operations, you must immediately submit a new Notice or Plan of
Operations, if required by 43 CFR 3809.11. If you do not immediately submit a new Notice or Plan, you must
promptly complete all reclamation according to the Notice.
If you have any questions on these information requests, please contact [program specialist name and contact
information].
Sincerely,
[Signature]
Field Manager
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-12
Template 3.5-1 - Reclamation Required
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
DECISION
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
:
:
:
:
Surface Management
OPERATION DETERMINED ABANDONED - RECLAMATION REQUIRED
Operation Abandoned – On [date], personnel from the [field office name] Field Office inspected your Notice
operation, in [project location, i.e., Meridian, Township, Range, Section, County, State]; Bureau of Land
Management (BLM) case file number [serial number]. This was the second inspection this year, the previous one
occurring on [date]. During both inspections, no personnel or equipment was present, and there was no sign of
recent activity. Nor was the reclamation complete as required by your Notice and the applicable regulations at 43
CFR 3809.420. Based on the above described site conditions, we have determined that the operation has been
abandoned.
Reclamation Required – Abandoning an operation prior to completing the required reclamation is a prohibited act
under 43 CFR 3809.605(h). Within 30 days of receiving this decision, you must commence the reclamation
required by your Notice on file with the BLM. All reclamation, including required earthwork and reseeding, [add
other elements that are needed] must be completed within 90 days of this decision. The BLM resource specialists
will continue to monitor your progress in meeting your reclamation obligations, including the success of the
revegetation in the disturbed area. The BLM will inform you when all reclamation standards have been met and
whether your financial guarantee amount may be reduced.
Should you fail to commence reclamation within 30 days of issuance of this decision or fail to complete necessary
reclamation within 90 days of issuance of this decision, the BLM may initiate forfeiture of all or part of your
financial guarantee as provided for under 43 CFR 3809.336(b) and 43 CFR 3809.595. You may also be subject to
enforcement actions under 43 CFR 3809.601.
Appeal of the Decision
[See Template 10.1-1, Field Office Decision – Appeal Language and Template 10.1-3, Request for a Stay]
Contact – BLM personnel are available to assist you in resolving this matter. If you have any questions, please
contact [program specialist name and contact information].
Sincerely,
[Signature]
Field Manager
1 Enclosure
1 - Form 1842-1, Information on Taking Appeals to the Interior Board of Land Appeals.
cc:
[State Office]
[Appropriate State Agencies]
[Surety]
[Solicitor's Office]
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-13
Template 4.3-1 - Reclamation Cost Estimate for Plan Required
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
Dear Mr. Smith:
Your Plan of Operations to conduct mining activities in [project location, i.e., Meridian, Township, Range, Section,
County, State] was received in this office on [date]. The Plan of Operations has been assigned Bureau of Land
Management (BLM) case file number [serial number]. Please refer to this number in future correspondence
concerning this operation.
Consistent with the surface management regulations at 43 CFR 3809.411(a), the BLM has reviewed the Plan and has
determined that the filed Plan of Operations meets the content requirements at 43 CFR 3809.401(b). As provided
for in 43 CFR 3809.401(d), the BLM is advising you that you must submit a cost estimate covering all anticipated
reclamation obligations as part of the Plan approval process.
The BLM requests that your reclamation cost estimate submission covers the equipment type, time, and rate needed
to perform reclamation tasks such as mobilization, grading, topsoil placement, seeding, and structure removal for
each component of the mining project. The cost estimate must be based on the assumption that the BLM will hire a
third-party contractor and must include contract administration and overhead costs. The cost estimate must also
include appropriate costs for contractor profit and insurance.
Please provide this information to [Field Office name and address] [include due date if appropriate]. If you have
any questions on these information requests, please contact [program specialist name and contact information].
Sincerely,
[Signature]
Field Manager
cc:
[Appropriate State Agencies]
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-14
Template 4.4-1 - Complete Plan Submitted
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
Dear Mr. Smith:
Your Plan of Operations to conduct mining activities [project location, i.e., Meridian, Township, Range, Section,
County, State], was received in this office on [date]. The Plan of Operations has been assigned Bureau of Land
Management (BLM) case file number [serial number]. Please refer to this number in future correspondence
concerning this operation.
Consistent with the surface management regulations at 43 CFR 3809.411(a), the BLM has reviewed the Plan and has
determined that the filed Plan of Operations and reclamation cost estimate meets the content requirements at 43 CFR
3809.401(b) and 43 CFR 3809.401(d). Note this notification does not constitute authorization to commence
operations nor is the submission of a complete Plan necessarily adequate to meet the performance requirements of
the regulations and avoid unnecessary and undue degradation.
Be advised the next step in the review process is for the BLM to solicit public comment on the Plan of Operations
under 43 CFR 3809.411(c), either separate from or as a part of the environmental review process required by the
National Environmental Policy Act. Soliciting public comment must occur before making an approved/not
approved decision on the Plan of Operations according to 43 CFR 3809.411(d). The BLM estimates we will
complete our review and make an approval decision on the Plan by [provide estimated completion date].
If you have any questions, please contact [Name and address and phone number of contact-either program
specialist or manager].
Sincerely,
[Signature]
Field Manager
cc:
[Appropriate State Agencies]
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-15
Template 4.4-2 - Plan Not Complete
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
Dear Mr. Smith:
Your Plan of Operations to conduct mining activities [project location, i.e., Meridian, Township, Range, Section,
County, State], was received in this office on [date]. The Plan of Operations has been assigned Bureau of Land
Management (BLM) case file number [serial number]. Please refer to this number in future correspondence
concerning this operation.
Consistent with the surface management regulations at 43 CFR 3809.411(a), the BLM has reviewed the Plan to
determine if it meets the content requirements at 43 CFR 3809.401(b). Based on our review, the following
information is required in order for the Plan of Operations to be complete:
[List the specific information that the operator for the plan of operations to be considered complete; an example of
sample language follows:]
1.
Page 1, section 1.2. Required operator information includes the taxpayer identification number of the operator.
If the operator is an individual, the taxpayer identification number is the individual’s social security number.
Please provide the appropriate taxpayer identification number. Operator social security numbers are maintained
by the BLM as privacy information and are not available for public disclosure.
2.
Page 9, section 3.2. Please provide a mine site layout diagram that shows the location of the pit boundaries;
soil, overburden, and stockpile locations; access road route; fencing perimeter; and any other facilities proposed
to be located onsite.
3.
Page 9, section 3.2. The Plan references reseeding but fails to state what seed mix or application rate would be
used. Please provide the seeding information.
4.
Page 9, section 3.2. The regulations at 43 CFR 3809.401(b)(5) require operators to provide an interim
management plan that describes how the project area would be managed during periods of temporary closure,
including seasonal closure. Please address this requirement by providing information on site stabilization
measure that will be employed.
5.
Page 10, section 3.5. Your Plan indicated that you were trying to arrange for the transport of water from an
artesian well in Wyoming for use in dust control. Please state whether an agreement has been reached
regarding the use of water from this well, or alternatively what water source would be used for dust suppression
on the haul road. Provide information on the amount of water and number of haul trips anticipated.
6.
Page 11, section 3.9. Information on the size (width) of the haul road disturbance needs to be clarified. The
text refers to a 12-foot running width for the haul road, but then says it is expected to be widened by an average
of 4 feet. The text then discusses additional 1-foot ditches along the roadway with soil distributed beyond the
limits of the ditches, plus mentions the blading of topsoil deposited in these areas during reclamation. Please
provide additional detail on the location of disturbance associated with construction, reconstruction, and
reclamation of the haul road that accounts for all areas of potential disturbance.
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-16
Template 4.4-2 - Plan not Complete (continued)
7.
Page 14, section 4.0. Please provide more information on the proposed configuration of the pit area at
reclamation. Identify any areas where a highwall is planned to be left after reclamation.
8.
Page 14, section 4.3. The Plan states, “runoff would be controlled,” yet there is not discussion as to the type
and location of runoff control measures. The Plan needs to depict on a map the location and type of runoff
control measure that would be used.
9.
Page 15, Fencing. Please address the duration the project area will be fenced. Assuming that the fencing is
intended only to be temporary, the reclamation plan should indicate that it will be removed upon successful
establishment of vegetation.
10. Page 23, Blasting. The Plan states that blasting is not likely to be needed. The Plan needs to definitely state
whether or not blasting would be required as part of mining. If blasting is anticipated, the Plan must specify the
frequency of blasting and prevent public entry into the area in accordance with state and Federal mine safety
regulations.
Please provide a response to the above information requests at your earliest convenience. You may provide
replacement pages or a narrative response. Upon receipt of the required information, the BLM will determine
whether or not the Plan of Operations is complete.
Once the Plan is determined complete, the BLM will solicit public comment on the Plan under 43 CFR 3809.411(c),
either separate from or as a part of the environmental review process required by the National Environmental Policy
Act. Soliciting public comment must occur before making decision on the Plan of Operations according to 43 CFR
3809.411(d).
In order to prepare the environmental review document and process your Plan, the BLM requires that the intended
disturbance area be inventoried for cultural resources. As required by 43 CFR 3809.401(c), the operator is
responsible for providing this survey information. Please provide the required cultural resource inventory as soon it
is finished. If you require further information on inventory methods and qualifications please contact the Field
Office Archaeologist at [phone number].
If you have any questions on these information requests, please contact [program specialist name and contact
information].
Sincerely,
[Signature]
Field Manager
cc:
[Appropriate State Agencies]
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-17
Template 4.4-3 - Additional Actions Required
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
Dear Mr. Smith:
Your Plan of Operations to conduct mining activities in [project location, i.e., Meridian, Township, Range, Section,
County, State], was received in this office on [date]. The Plan of Operations has been assigned the Bureau of Land
Management (BLM) case file number [serial number]. Please refer to this number in future correspondence
concerning this operation.
Consistent with the surface management regulations at 43 CFR 3809.411(a), the BLM has reviewed the Plan to
determine if it meets the content requirements at 43 CFR 3809.401(b). However, the BLM cannot approve the Plan
until certain steps are completed, specifically the BLM must [identify any action included in 43 CFR
3809.411(a)(3)]. [Where feasible, identify timeframes for completion of these actions.]
If you have any questions on these information requests, please contact [program specialist name and contact
information].
Sincerely,
[Signature]
Field Manager
cc:
[Appropriate State Agencies]
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-18
Template 4.4-4 - Decision on Plan
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
DECISION
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
:
:
:
:
Surface Management
PLAN OF OPERATIONS APPROVED – CONDITIONS OF APPROVAL REQUIRED
DETERMINATION OF REQUIRED FINANACIAL GUARANTEE AMOUNT
The Plan of Operations for the XYZ Mine is hereby approved subject to conditions of approval listed below. ABC
Mining, Inc. (ABC) must conduct operations as described in the Plan of Operations and in accordance with the
following Bureau of Land Management (BLM) conditions of approval (COA):
[List Conditions of Approval as needed to prevent undue or unnecessary degradation (UUD). Include a rationale
for the COA to justify the requirement to the operator and provides a basis for accepting a minor modification later
should an alternate approach be found that meets the intent of the COA; an example COA follows:]
Conditions of Approval:
1.
ABC must construct the waste rock repository with an overall 3h:1v slope, with at least 15-foot wide benches
constructed (not pioneered) every 100 vertical feet. Benches must be backsloped and drain toward common
surface water drainage ditches built along the edges of the repository. Reclamation of the repository is to be
conducted concurrent with mining operations. Final engineering-approved designs must be submitted at least
60 days in advance of repository construction to verify conformance with this requirement.
This COA is needed to improve runoff control and minimize the exposure of waste rock to precipitation that
may generate undesirable leachate.
2.
ABC is not to mine limestone needed for runoff controls from the LS-1 limestone quarry. Instead, ABC is to
mine limestone needed for the operation from the LS-2 site. The quarry must be reclaimed using the same
procedures proposed by ABC for the LS-1 quarry.
This COA confines the mine disturbance to a single watershed and reduces the disturbance area by eliminating
the need for some 1,500 feet of haul road.
3.
Underdrains constructed beneath the Goslin Flats leach pad and the waste rock repository, and seepage
collection systems must be built only with coarse and durable unmineralized carbonates.
Unmineralized limestone is required for fill in state waters as an additional precaution to buffer acidic drainage
and to minimize the potential for impacts to water quality.
4.
ABC must use the water balance and water barrier reclamation covers shown on Figure 2.11-4 in the Final
Environmental Impact Statement (EIS). Cover soil must be placed at least 12 inches thick on all other
disturbance areas.
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-19
Template 4.4-4 - Decision on Plan (continued)
These reclamation covers increase revegetation potential, reduce soil loss, and improve long-term surface
stability with low infiltration rates and low maintenance requirements. There is adequate soil available for
salvage to construct these reclamation covers upon mine closure.
5.
ABC must design and construct all permanent drainage and diversion ditches, and water capture and treatment
systems to accommodate runoff from a 6.33-inch, 24-hour storm event with 1 foot of freeboard. This is the
calculated 100-year storm event for the mine site.
The 100-year storm event design criterion is needed to ensure adequate drainage capacity, and to protect
reclaimed areas and adjacent water resources.
Financial Guarantee
Based on your reclamation cost estimate, the BLM review of the cost estimate, and consideration of the above
conditions of approval, the required financial guarantee amount is hereby set at [dollar amount] for reclamation of
the XYZ Mine. You must provide a financial guarantee in this amount using one or more of the acceptable financial
guarantee instruments listed under 43 CFR 3809.555. The financial guarantee must be provided to the BLM [state]
State Office, Solid Minerals Adjudication, [insert State Office mailing address]. That office will issue you a
decision as to the acceptability of your financial guarantee. You must not begin activities under the approved Plan
of Operations until you receive notification from the BLM [state] State Office that the financial guarantee has been
accepted and obligated.
Approval of a Plan of Operations by the BLM does not constitute a determination regarding the validity or
ownership of any unpatented mining claim involved in the mining operation. ABC is responsible for obtaining any
use rights or local, state, or Federal permits, licenses, or reviews that may be required for the operation.
[If the Decision will include a determination of concurrence for a proposed occupancy per 43 CFR 3715.3-4, then
the following paragraph will be included. If no occupancy is proposed then the following paragraph will be
omitted.]
This decision also constitutes concurrence with ABC’s use and occupancy of public lands as described in the
approved Plan of Operation. ABC must maintain compliance with the Use and Occupancy regulations at 43 CFR
3715.2, 3715.2-1, and 3715.5 throughout the duration of the approved Plan of Operations. Concurrence by the BLM
on ABC’s proposed use and occupancy is not subject to State Director Review, but may be appealed by adversely
affected parties directly to the Interior Board of Land Appeals as outlined in enclosed BLM Form 1842-1.
Appeal of the Decision
[See Template 10.1-1, Field Office Decision – Appeal Language and Template 10.1-3, Request for a Stay]
If you have any questions, please contact me at [phone number] or contact [Name and address and phone number of
contact-either program specialist or manager].
Sincerely,
[Signature]
Field Manager
1 Enclosure
1 - Form 1842-1, Information on Taking Appeals to the Interior Board of Land Appeals.
cc:
[State Office]
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-20
Template 6.2-1 - Unacceptable Reclamation Cost Estimate
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
Dear Mr. Smith:
The ABC Mining, Inc. (ABC) Notice to conduct exploration activity at [project location, i.e., Meridian, Township,
Range, Section, County, State] was received in this office on [date]. The Notice has been assigned the Bureau of
Land Management (BLM) case file number [serial number]. Please refer to this number in any future
correspondence concerning this operation.
Consistent with the surface management regulations at 43 CFR 3809.311(a), the BLM has reviewed the Notice to
determine if it meets the content requirements at 43 CFR 3809.301(b). Based on our review, the Notice adequately
describes the proposed exploration and reclamation operations; however, the reclamation cost estimate submitted
with the Notice under 43 CFR 3809.301(b)(4) is missing the following cost information or cost considerations:
[List missing or deficient content; example language follows:]
1. The reclamation cost estimate does not include costs for mobilization and demobilization of either the excavator
for road reclamation or the drill rig used for drill hole plugging. These costs need to be included in the estimate.
2. The reclamation cost estimate only lists the cost of plugging a single drill hole, while ABC’s Notice proposes to
drill 28 holes. ABC must include the costs for plugging all of the drill holes in the exploration project, or modify the
Notice and commit to not having more than a single drill hole open at any one time.
3. Your cost estimate for road reclamation includes 2,000 feet of drill road reclamation at $1.25 per linear foot. The
average side slope where the road cuts are located is on the order of 45 percent. In our experience, reclamation of
roads like this costs between $2.25 and $2.75 per linear foot [insert or attach references]. Please adjust your
estimate accordingly.
4. The reclamation cost estimate does not include any amount for overhead such as contractor insurance, profit, and
contract administrative costs. For a project of this general size, the BLM estimates these costs total approximately
22.6 percent of the direct reclamation costs.
[Continue to list the deficiencies in the reclamation cost estimate]
Please submit a revised reclamation cost estimate to correct the above deficiencies. As a reminder, ABC is not to
conduct surface disturbing activity under this Notice until the revised reclamation cost estimate amount has been
accepted by the BLM, you provide a financial guarantee instrument to BLM for that amount, and the BLM notifies
you that the financial guarantee has been accepted and obligated.
If you have any questions, or would like to discuss the reclamation cost estimate requirements, please contact [insert
program specialist name and contact information].
Sincerely,
[Signature]
Field Manager
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-21
Template 6.2-2 - Financial Guarantee Increase – Ongoing Operations
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
DECISION
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
:
:
:
:
Surface Management
DETERMINATION OF REQUIRED FINANACIAL GUARANTEE AMOUNT
ONGOING OPERATIONS
The Bureau of Land Management (BLM) [state] Field Office has completed a review of the reclamation cost
estimate, as provided for under 43 CFR 3809.552(b), for the Frostbit Plan of Operations [enter case file number].
Based this office’s review of your reclamation cost estimate on file, the required financial guarantee amount is
hereby set at [dollar amount] for reclamation of the Frostbit operation.
The ABC Mining, Inc. has previously provided the BLM an acceptable financial guarantee of [dollar amount] for
this operation. The increase of [dollar amount] to the amount of financial guarantee must be provided to the BLM
[state] State Office, Solid Minerals Adjudication, [address]. You must provide an acceptable increase to the
financial guarantee to this office within 60 days from receipt of this decision. Failure to provide an acceptable
financial guarantee increase within the specified timeframe will result in enforcement action(s) under 43 CFR
3809.601 for failure to maintain an adequate financial guarantee.
Appeal of the Decision
[See Template 10.1-1, Field Office Decision – Appeal Language and Template 10.1-3, Request for a Stay]
If you have any questions, please contact me at [phone number] or contact [program specialist name and contact
information].
Sincerely,
[Signature]
Field Manager
1 Enclosure
1 - Form 1842-1, Information on Taking Appeals to the Interior Board of Land Appeals.
cc:
[State Office]
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-22
Template 6.4-1 - Required Financial Guarantee Amount -Reduction
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
DECISION
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
:
:
:
:
Surface Management
DETERMINATION OF REQUIRED FINANCIAL GUARANTEE AMOUNT
REDUCTION
The Bureau of Land Management (BLM) inspected [insert project name] on [date]. All required reclamation has
been completed according to the reclamation plan and the performance standards at 43 CFR 3809.420. [This
decision can be used with either a Notice or a Plan.]
[For a Plan of Operations insert the following: In accordance with 43 CFR 3809.590, the BLM published a notice of
final financial guarantee release for your project and accepted public comment for 30 days on the final reduction of
your reclamation bond amount. The BLM received [quantity] comments on release of your financial guarantee –
(continue and address any public comments in this decision, explain why the BLM will release the final financial
guarantee, or alternatively, write another decision denying final release). ]
This decision reduces the estimated reclamation cost from [present amount] to $0.00. A copy of this decision has
been provided to the adjudication staff in the BLM [state] State Office. You may file a request with that office at
[insert state office address] for final release of your financial guarantee instrument [or obligation] for this project.
Appeal of the Decision
[See Template 10.1-1, Field Office Decision – Appeal Language and Template 10.1-3, Request for a Stay]
If you have any questions concerning this reduction in the financial guarantee amount, please contact [program
specialist name and contact information].
Sincerely,
[Signature]
Field Manager
1 Enclosure
1 - Form 1842-1, Information on Taking Appeals to the Interior Board of Land Appeals
cc:
[State Office]
[Other agencies or claimant(s)]
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-23
Template 6.5-1 - Forfeiture of Financial Guarantee
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
DECISION
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
:
:
:
:
Surface Management
FORFEITURE OF FINANCIAL GUARANTEE
Pursuant to the provisions at 43 CFR 3809.595 through 3809.599, the Bureau of Land Management (BLM) is
pursuing forfeiture of the financial guarantee for your operation [serial number and legal description]. On [date], a
decision was issued by this office requiring [state required action, e.g., conduct reclamation as provided for and as
scheduled in the reclamation plan; meet the terms of the Notice or approved Plan of Operations; and/or meet the
conditions under which the operator obtained the financial guarantee] by [date]. Forfeiture of your financial
guarantee is being taken because you failed to meet these conditions within the timeframe provided in the
noncompliance order.
Based on the estimated total cost of achieving the reclamation plan requirements, including the BLM’s
administrative costs, the BLM will require the forfeiture of [dollar amount] from your financial guarantee. [If the
financial guarantee is provided through a surety bond include the following sentence, otherwise omit.] Within 30
days the penal sum, [dollar amount], of surety bond number [number] must be surrendered to the BLM [state] State
Office at the following address:
[State Office Address]
Attn: Adjudication [Office Code]
You may avoid this forfeiture action by completing one of the following:
Providing a written agreement under which you or another person will perform reclamation operations in
accordance with a compliance schedule which meets the conditions of your Notice or approved Plan of
Operations and reclamation plan. Where the work will be done by another person, the agreement must
demonstrate they have the ability, both technically and financially, to satisfy the conditions.
Obtaining written permission from the BLM for a surety to complete the reclamation, or portion of the
reclamation, applicable to the bonded phase or increment. The surety must demonstrate an ability to
complete the reclamation in accordance with the reclamation measures incorporated in your Notice or
approved Plan of Operations.
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-24
Template 6.5-1 - Forfeiture of Financial Guarantee (continued)
If you fail to meet the requirements listed above, and you do not appeal the forfeiture decision under 43 CFR
3809.800 to 3809.807, or Interior Board of Land Appeals (IBLA) does not grant a stay under 43 CFR 4.321, or the
BLM’s decision is affirmed, the BLM will:
Immediately collect the forfeited amount as provided by applicable laws for collection of defaulted
financial guarantees, other debts, or State bond pools, and
Use funds collected from financial guarantee forfeiture to implement the reclamation plan, or portion
thereof.
If the amount of forfeited funds is insufficient to pay for the full cost of reclamation, you are liable for the remaining
costs as set forth in 43 CFR 3809.116.
Appeal of the Decision
[See Template 10.1-1, Field Office Decision – Appeal Language and Template 10.1-3, Request for a Stay]
If you have any questions concerning this reduction in the financial guarantee amount, please contact [program
specialist name and contact information].
Sincerely,
[Signature]
Field Manager
1 Enclosure
1 - Form 1842-1, Information on Taking Appeals to the Interior Board of Land Appeals
cc:
[State Office]
[Other applicable parties (state, claimant(s),etc.)]
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-25
Template 6.5-2 - Notice of Liability, Demand for Payment
3809 [office code]
AZB-08309
[Date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
[Effective date is date of receipt]
DECISION
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
:
:
:
:
43 CFR 3809
NOTICE OF LIABILITY
DEMAND FOR PAYMENT AND BILL FOR RECLAMATION OF ABC MINING, INC. OCCUPANCY
SITE
Pursuant to the authorities contained in [cite appropriate authority], and statutes applicable to the management of
lands administered by the Department of the Interior (DOI), Bureau of Land Management (BLM), has completed the
clean-up and reclamation of the ABC Mining, Inc. occupancy site [Notice or Plan of Operations #] located on BLM
managed land described as T.13N., R.7E., Sec.21 SE¼ and 30 NE ¼, Gila and Salt River Base Meridian, Yavapai
County, Arizona.
On October 30, 2009, ABC Mining, Inc. received from the BLM Phoenix Field Office (PFO) a [cite the enforcement
order under 43 CFR 3809.601] to remove all equipment, abandoned vehicles and trash from the occupancy site
(site), and reclaim all disturbed lands. Any property remaining on public lands after 90 calendar days from the
effective date of the order would become property of the United States and subject to removal and disposition by
BLM. ABC Mining, Inc. would be liable for the cost the BLM incurs in removing and disposing of the property and
site reclamation.
ABC Mining, Inc. appealed the order to the Interior Board of Land Appeals (IBLA). On March 10, 2010, the IBLA
issued decision 152 IBLA 57, denying ABC Mining, Inc.’s request for a stay and affirming the order. Based on the
IBLA decision the BLM informed ABC Mining, Inc. by certified return receipt mail on April 4, 2010, that it had
until June 8, 2010, to comply with the October 30, 2009, order.
ABC Mining, Inc. was notified by certified return receipt mail on June 8, 2010, that it had failed to comply with the
order and that the reclamation deadline had passed. Any property remaining on BLM land was property of the
United States and subject to removal and disposition at the BLM’s discretion. ABC Mining, Inc. would be liable for
the costs the BLM incurs in removing and disposing of the property and any costs associated with site reclamation.
A government contractor began restoration of the site on or around November 6, 2011, and completed reclamation
of the [project name] site on December 11, 2011.
NOTICE OF LIABILITY
The BLM has evaluated the mining claim records and field office 3809 case file AZB-08309 in connection with the
site and has determined that ABC Mining, Inc. is the responsible party due to its activities and occupancy of the site
from the early 1990s until abandonment in the year 2011. Accordingly, this letter notifies ABC Mining, Inc. of its
liability under 43 CFR [3809.336(b) or 3809.424(a)(4), and 3809.598 when BLM completes the reclamation of a
Notice or Plan of Operations].
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-26
Template 6.5-2 (continued)
Notice of Liability, Demand for Payment
Through July 10, 2002, the BLM and DOI have incurred costs related to the site of at least $14,413.00. This
statement of expenditures is preliminary and does not limit the BLM and DOI from providing revised figures to the
extent additional past costs are identified.
DEMAND FOR PAYMENT
In accordance with 43 CFR 3809.598 demand is hereby made for payment of $14,413.00. Enclosed is a bill for
collection in the amount of Fourteen Thousand Four Hundred and Thirteen Dollars ($14,413.00) and notice of action
in the event of delinquency. Interest on costs incurred will accrue from the date of this demand for payment. [Use
the CBS system to generate this bill and any follow-up notices of delinquency should they become necessary]
Payment is due within thirty (30) calendar days of your receipt of this demand for payment. Remittance must be
made by certified check payable to the “Department of the Interior - BLM” and must reference the site name and bill
number. Please send your remittance to:
Bureau of Land Management
Phoenix Field Office
12605 N. 8th Avenue
Phoenix, AZ 85027
If you fail to respond to this demand within thirty (30) calendar days, the BLM will, following our regulations and
manual guidelines, continue the debt collection action against you. The debt collection action may include civil
litigation and/or other actions necessary to recover the debt owed.
Appeal of the Decision
[See Template 10.1-1, Field Office Decision – Appeal Language and Template 10.1-3, Request for a Stay]
If you have any questions, or if you wish to schedule a meeting to discuss this matter, please contact [Name and
address and phone number of contact-either program specialist or manager]. We hope that you will take this
opportunity to resolve this matter expeditiously.
[Signature]
Field Manager
Enclosures (2):
1 - Bill for Collection [Attach automated bill generated by CBS]
2 - Form 1371-22, Notice of Action in Event of Delinquency
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-27
Template 9.2-1 - Noncompliance Order
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
DECISION
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
:
:
:
:
Surface Management
NONCOMPLIANCE ORDER
A compliance examination of the ABC Mining, Inc. (ABC) mining operation under Plan of Operations
[serial number] in [project location], was conducted on [date]. [Provide a brief description of all pertinent facts
discovered through the inspection process. The purpose of this section and the following section, which deals with a
review of the records, is to provide sufficient information to anyone who might read the order for them to determine
the nature of the violation(s) that prompt the order.]
A review of the Bureau of Land Management (BLM) records indicates the following facts: [Refer to any filing
made by the operator and correspondence between the operator and BLM that are pertinent to the issuance of the
order.]
Based on our inspections and records, the ABC activity is unauthorized and is in violation of [list the laws that are
being violated such as the Federal Land Policy and Management Act (FLPMA), etc.]. Specifically, ABC is in
violation of the following regulations: [List those regulations under 43 CFR 3809 that the operator/claimant is
violating. A Noncompliance order needs to be tied to a violation of one or more of the prohibited acts listed in 43
CFR 3809.605. As an example:]
ABC has failed to stockpile the necessary soil material as required in its approved Plan of Operations. Failure to
follow the approved Plan of Operations constitutes unnecessary or undue degradation and is a prohibited act under
43 CFR 3809.605 (a).
Under authority of 43 CFR 3809.601(a), ABC is ordered, within [specify the time by which the operator must take
corrective action to resolve the noncompliance, generally not to exceed 30 days] from receipt of this order to: [List
the specific actions that the claimant/operator must take to comply with the order. These actions must be clear and
concise, leaving little room for interpretation. The actions are listed with the understanding that if they are taken by
the claimant/operator, the order will be lifted and the operations will be in compliance with respect to this order. ]
If ABC does not comply with this order, the BLM may take further action against you pursuant to 43 CFR
3809.601(b) and issue a Suspension Order for all or part of the ABC operation. Additionally, action could be taken
under 43 CFR 3809.604 or 3809.700. [Depending on the nature of the noncompliance, you may want to cite the
specific regulations language that mention the BLM may request the United States Attorney to institute a civil action
in United States District Court for an injunction to enforce this order; the collection of damages resulting from
unlawful acts (see 43 CFR 3809.604); arrest and trial under section 303(a) of the FLPMA; fines up to $100,000 or
the imprisonment (see 43 CFR 3809.700)].
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-28
Template 9.2-1 - Noncompliance Order (continued)
Appeal of the Decision
[See Template 10.1-1, Field Office Decision – Appeal Language and Template 10.1-3, Request for a Stay]
If you have any questions concerning this Noncompliance Order, please contact [program specialist name and
contact information].
Sincerely,
[Signature]
Field Manager
2 Enclosures
1 - 43 CFR 3809 [optional]
2 - Form 1842-1, Information on Taking Appeals to the Interior Board of Land Appeals
cc:
[State Office]
[Regional solicitor][Other agencies or claimant(s)]
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-29
Template 9.2-2 - Notification of Intent to Issue a Suspension Order
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
NOTIFICATION
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
:
:
:
:
Surface Management
INTENT TO ISSUE A SUSPENSION ORDER
Due to your failure to comply with the Noncompliance Order issued by the Bureau of Land Management (BLM) on
[date], you are hereby notified that the BLM intends to issue a Suspension Order against your Plan of Operations
[serial number]. Specifically, you have failed to comply with the Noncompliance Order by not: [List specifically
the manner in which the operator/claimant has failed to comply with the order].
Pursuant to 43 CFR 3809.601(b)(iii) you are entitled to an informal hearing before the BLM [state] State Director
before the BLM takes further action against you under 43 CFR 3809.601(b). To request an informal State Director
hearing, you must submit the request in writing to the [State Office address] - Attention SD3809 Hearing, within 30
days of receiving this notification. If you do not make such a request within 30 days, you will have waived your
right to an informal hearing with the State Director, and the BLM will continue enforcement actions against you.
If you choose an informal hearing with the BLM State Director, the BLM will not provide a court reporter, and will
follow certain procedures, including [Identify any procedural requirements that will govern the informal hearing.
For example, the State Director may limit the time that will be allotted for the hearing.].
Be advised that a request for a hearing with the BLM State Director does not relieve ABC from its obligation to
comply with any previously issued enforcement orders including the Noncompliance Order issued to ABC on
[date]. The BLM may pursue or continue to pursue those remedies available under 43 CFR 3809.604 and/or 43
CFR 3809.700 before your hearing with the State Director [include those relevant to the circumstances]. If you
have any questions concerning this notification, please contact [program specialist name and contact information].
Sincerely,
[Signature]
Field Manager
cc:
[State Director]
[Regional Solicitor]
BLM HANDBOOK
Rel. 3-336
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Template 9.2-3 - Suspension Order
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
DECISION
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
:
:
:
:
Surface Management
SUSPENSION ORDER
ABC Mining, Inc. (ABC) is hereby ordered to suspend operations under Plan of Operations [serial number]
immediately. This Suspension Order is issued due to your failure to comply with the Bureau of Land Management
(BLM) Noncompliance Order issued by this office on [date].
[Provide narrative outlining the operator’s failure to resolve items of noncompliance; example language follows:]
Field inspection of the project area on March 3, 2011, shows that ABC is still engaging in mining activity without
stockpiling the soil material required under their Plan of Operations, thereby resulting in unnecessary or undue
degradation. ABC was issued a Noncompliance Order on October 31, 2010, with instruction on how to correct the
noncompliance. ABC failed to follow the Noncompliance Order as evidenced by the inspection on January 3, 2011,
and a notification that the BLM intended to issue a Suspension Order was issued to ABC on January 10, 2011. ABC
was provided an informal hearing with the BLM State Director on February 13, 2011, in an attempt to resolve the
noncompliance. At the State Director hearing, ABC said it would correct immediately the soil salvage problem, but
has failed to comply.
[Provide a brief description of all pertinent facts discovered through the inspection process that show that the
conditions of the Noncompliance Order were not met and that the BLM is justified in issuing the Suspension Order].
Therefore, in accordance with the authority at 43 CFR 3809.601(b), ABC is ordered to immediately cease surface
disturbing activity including all excavation, waste rock placement, and leach pad construction until it complies with
the October 31, 2010, Noncompliance Order and is told by the BLM that operations may proceed.
[List specific actions that the operator must take to comply with both this order and the noncompliance order.
These actions must be clear and concise, leaving little room for interpretation. The actions are listed with the
understanding that if they are taken by the claimant/operator, the order will be lifted and the operations will be in
compliance with respect to this order.]
If you do not comply with this order, the Department of the Interior may request the United States Attorney to
institute a civil action in United States District Court for an injunction or order to enforce this order to prevent you
from conducting operations on the public lands in violation of this subpart, and collect damages resulting from
unlawful acts (see 43 CFR 3809.604). Additionally, if you fail to adhere to the terms of this order, you may face
arrest and trial under Section 303(a) of the Federal Land Policy Management Act (43 U.S.C. 1733(a)). If convicted,
you will be subject to a fine of not more than $100,000 or the alternate fine provided for in the applicable provisions
of 18 U.S.C. 3571, or imprisonment not to exceed 12 months, or both, for each offense (see 43 CFR 3809.700).
BLM HANDBOOK
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Template 9.2-3 - Suspension Order (continued)
Appeal of the Decision
[See Template 10.1-1, Field Office Decision – Appeal Language and Template 10.1-3, Request for a Stay]
If you have questions concerning this order, please contact [program specialist name and contact information].
Sincerely,
[Signature]
Field Manager
2 Enclosures
1 - 43 CFR 3809 [optional]
2 - Form 1842-1, Information on Taking Appeals to the Interior Board of Land Appeals
cc:
[State Director]
[Regional Solicitor]
[Other agencies and claimant(s)]
BLM HANDBOOK
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Template 9.2-4 - Immediate Temporary Suspension Order
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
DECISION
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
:
:
:
:
Surface Management
IMMEDIATE TEMPORARY SUSPENSION ORDER
ABC Mining, Inc. (ABC) is hereby ordered to immediately suspend all operations at the [insert project name and
location]. This suspension order has been issued under 43 CFR 3809.601(b)(2) because ABC is operating without
an approved Plan of Operations. [In other cases, insert other applicable rationale for the immediate suspension
order which is necessary to protect health, safety, or the environment—e.g., significantly outside the scope of the
Notice or Plan.]
Beginning operations prior to the BLM approving a Plan of Operations is a prohibited act under 43 CFR
3809.605(b); and warrants the issuance of this Immediate Suspension Order to protect health, safety, or the
environment from imminent danger or harm that would result from surface disturbance.
In order to resolve this enforcement order and terminate the suspension, ABC must Provide the BLM Field Office a
proposed Plan of Operations as required by 43 CFR 3809.401. The BLM Field Office must issue a decision
approving the Plan of Operations before we will terminate this Suspension Order.
Failure to comply with this enforcement order may result in the BLM requesting the United States Attorney to
institute a civil action in United States District Court for an injunction or order to enforce this order to prevent you
from conducting operations on the public lands in violations of this subpart, and collect damages resulting from
unlawful acts (see 43 CFR 3809.604). Additionally, if you fail to adhere to the terms of this order, you may face
arrest and trial under Section 303(a) of the Federal Land Policy Management Act (43 U.S.C. 1733(a)). If convicted,
you will be subject to a fine of not more than or the alternate fine provided for in the applicable provisions of 18
U.S.C. 3571, or imprisonment not to exceed 12 months, or both, for each offense (see 43 CFR 3809.700).
Appeal of the Decision
[See Template 10.1-1, Field Office Decision – Appeal Language and Template 10.1-3, Request for a Stay]
If you have questions concerning this order, please contact [program specialist name and contact information].
Sincerely,
[Signature]
Field Manager
2 Enclosures
1 - 43 CFR 3809 [optional]
2 - Form 1842-1, Information on Taking Appeals to the Interior Board of Land Appeals
cc:
[State Director]
[Regional Solicitor]
BLM HANDBOOK
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Template 9.2-5 - Suspension Order Terminated
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
DECISION
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
:
:
:
:
Surface Management
TERMINATION OF SUSPENSION ORDER
The Bureau of Land Management (BLM) hereby terminates the Immediate Temporary Suspension Order it issued
on [date], against the ABC Mining, Inc. (ABC) Plan of Operations [serial number] for failure to provide the
required financial guarantee.
The ABC’s financial guarantee instrument in the required amount of [dollar amount] was received by the [state]
State Office and accepted as adequate on [date]. The BLM appreciates ABC resolving this matter in a timely
fashion.
[If the Immediate Temporary Suspension Order was issued for failure to file a Plan or Notice, then the suspension
order would not be terminated until the Notice or Plan had been processed and bonded. If issued for activity
outside the scope of a Notice or Plan, then the suspension order would not be terminated until either the disturbance
was reclaimed or the Notice or Plan modified to account for the new activity.]
Appeal of the Decision
[See Template 10.1-1, Field Office Decision – Appeal Language and Template 10.1-3, Request for a Stay]
If you have questions concerning this order, please contact [program specialist name and contact information].
Sincerely,
[Signature]
Field Manager
1 Enclosure
1 - Form 1842-1, Information on Taking Appeals to the Interior Board of Land Appeals
cc:
[State Director]
[Regional Solicitor]
[Other agencies, claimants]
BLM HANDBOOK
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Template 9.2-6 - Order Requiring Plans
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
DECISION
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
:
:
:
:
Surface Management
ORDER REQUIRING PLANS OF OPERATIONS
Due to ABC Mining Inc.’s (ABC) number of unresolved Noncompliance Orders and repeated compliance problems,
pursuant to 43 CFR 3809.604(b), the Bureau of Land Management (BLM) now requires ABC to submit a Plan of
Operations under 43 CFR 3809.401 for all current and future Notice-level operations on a nationwide basis for
surface disturbing activity on lands administered by the BLM. Following the date of this order, you may not
conduct activities greater than casual use without first filing a Plan of Operations and receiving approval from the
applicable BLM field office.
The BLM is issuing this order for the following reasons: [List those specific instances that clearly demonstrate that
the operator/claimant failed to comply with a noncompliance order and remains in noncompliance. Not that both
conditions must be met. A pattern of repeated noncompliance may be considered in determining when to issue this
order. Likewise a period of compliance may be cause to terminate this order. Be sure to inform other field offices
regarding the operator’s status. An email containing the signed order should be forwarded via email to all state
program leads for their consideration.]
Issuance of this Order does not relieve ABC from complying with any other outstanding enforcement orders issued
by the BLM. This Order will remain in effect until such time as ABC resolves any and all outstanding enforcement
orders issued by the BLM.
Appeal of the Decision
[See Template 10.1-1, Field Office Decision – Appeal Language and Template 10.1-3, Request for a Stay]
If you have questions concerning this order, please contact [program specialist name and contact information].
Sincerely,
[Signature]
Field Manager
2 Enclosures
1 - 43 CFR 3809 [optional]
2 - Form 1842-1, Information on Taking Appeals to the Interior Board of Land Appeals
cc:
[State Office]
[Regional Solicitor]
BLM HANDBOOK
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Template 9.2-7 - Notification of Intent to Nullify Notice/Revoke Plan
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
NOTIFICATION
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
:
:
:
:
Surface Management
INTENT TO NULLIFY NOTICE [or] INTENT TO REVOKE PLAN OF OPERATIONS
The Bureau of Land Management (BLM) is considering [revoking ABC’s Plan of Operations or nullifying ABC’s
Notice] pursuant to 43 CFR 3809.602 due to ABC’s ongoing failure to correct the violations detailed in the
enforcement orders issued on [date], and [date of second order].
This notification provided in accordance with 43 CFR 3809.602(b) and is based upon preliminary findings that:
[Explain under one or more of the following categories: 1) A violation exists of any provision of the Notice or Plan
of Operation). 2) A violation exists of this subpart, and how the operator has failed to correct the violation within
the time specified in an enforcement order issued under 43 CFR 3809.601. 3) Describe if and how a pattern of
violations exists at the operation.]
These findings are based on the following pertinent facts: [List specifically the facts upon which the above findings
were made. Cite specific instances where an enforcement order was violated, etc.]
Pursuant to 43 CFR 3809.602(b) you are entitled to an informal hearing before the BLM [state] State Director
before the BLM takes further action against you under 43 CFR 3809.601(a). To request an informal State Director
hearing you must submit the request in writing to the [State Office address] - Attention SD3809 Hearing, within 30
days of receiving this notification. If you do not make such a request within 30 days, you will have waived your
right to an informal hearing with the State Director and the BLM will proceed to make its determination regarding
whether to revoke your Plan of Operations [or nullify your Notice].
If you choose an informal hearing with the BLM State Director, the BLM will not provide a court reporter, and will
follow certain procedures, including [Identify any procedural requirements that will govern the informal hearing.
For example, the State Director may limit the time that will be allotted for the hearing.].
Within 30 calendar days from the date of your hearing, you will receive written notification from the State Director
of the final determination of your case.
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Template 9.2-7 - Notification of Intent to Nullify Notice/Revoke Plan
(continued)
Be advised that a request for a hearing with the BLM [state] State Director does not relieve ABC from its obligation
to comply with any previously issued enforcement orders including the Noncompliance Order issued to ABC on
[date], and the Suspension Order issued on [date]. The BLM may pursue or continue to pursue those remedies
available under 43 CFR 3809.604 and/or 43 CFR 3809.700 before your hearing with the State Director [include a
description of those remedies relevant to the circumstances].
If you have any questions concerning this notification, please contact [program specialist name and contact
information].
Sincerely,
[Signature]
Field Manager
cc:
[State Director]
[Regional Solicitor]
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Template 9.2-8 - Nullification of Notice/Revocation of Plan
3809 [office code]
[serial number]
[date]
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
DECISION
ABC Mining, Inc.
Attn: Kevin Smith, General Manager
P.O. Box 3013
Frostbit Falls, Montana 59555
:
:
:
:
Surface Management
PLAN OF OPERATIONS REVOKED [or] NULLIFICATION OF NOTICE
As of this date, ABC Mining, Inc. (ABC) Plan of Operations [serial number] [project location] is hereby revoked
due to repeated failure to comply with enforcement orders issued by the Bureau of Land Management (BLM) under
the BLM's regulations at 43 CFR 3809.
The BLM has determined to revoke the ABC Plan of Operations [or nullify a Notice] pursuant to 43 CFR 3809.602.
This determination is based on a finding that: [Choose one or more of the following: 1) violations of the Plan of
Operation (or notice); 2) failure to correct the violation within the time specified in the enforcement orders issued
under 43 CFR 3809.601; 3) pattern of violations].
These finding are based on the following pertinent facts: [List specifically the facts and cite to the record upon
which the findings were made. Cite specific instances where enforcement orders were violated. Include results of
the informal hearings with the State Director, if any.]
Revocation of the ABC Plan of Operations does not relieve ABC from its obligation to comply with any outstanding
enforcement orders or orders to reclaim [list these here]. In addition, the Department of the Interior may request the
United States Attorney to institute a civil action in United States District Court for an injunction or order to enforce
this order to prevent you from conducting operations on the public lands in violations of this subpart, and to collect
damages resulting from unlawful acts (see 43 CFR 3809.604). Additionally, if you fail to adhere to the terms of this
order, you may face arrest and trial under Section 303(a) of the Federal Land Policy Management Act (43 U.S.C.
1733(a)). If convicted, you will be subject to a fine of not more than $100,000 or the alternate fine provided for in
the applicable provisions of 18 U.S.C. 3571, or imprisonment not to exceed 12 months, or both, for each offense
(see 43 CFR 3809.700).
Appeal of the Decision
[See Template 10.1-1, Field Office Decision – Appeal Language and Template 10.1-3, Request for a Stay]
Should you elect to have an informal hearing before the State Director (pursuant to 43 CFR 3809.602(b)), your
period to file an appeal with the Interior Board of Land Appeals would be 30 calendar days following your receipt of
the State Director’s decision.
If you have any questions concerning this notification, please contact [program specialist name and contact
information].
Sincerely,
[Signature]
Field Manager
1 Enclosure
1 - Form 1842-1, Information on Taking Appeals to the Interior Board of Land Appeals
cc:
[State Director]
[Regional Solicitor]
BLM HANDBOOK
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Template 10.1-1 - Field Office Decision – Appeal Language
Appeal of a Decision under 43 CFR 3809
If you are adversely affected by this decision, you may request that the BLM [enter appropriate state] State
Director review this decision. If you request a State Director Review, the request must be received in the
BLM [enter appropriate State] State Office at [insert State Office mailing address], no later than 30
calendar days after you receive or have been notified of this decision. The request for State Director
Review must be filed in accordance with the provisions in 43 CFR 3809.805. This decision will remain in
effect while the State Director Review is pending, unless a stay is granted by the State Director. If you
request a stay, you have the burden of proof to demonstrate that a stay should be granted.
If the State Director does not make a decision on your request for review of this decision within 21 days of
receipt of the request, you should consider the request declined and you may appeal this decision to the
Interior Board of Land Appeals (IBLA). You may contact the BLM [enter appropriate State] State Office
to determine when the BLM received the request for State Director Review. You have 30 days from the
end of the 21-day period in which to file your Notice of Appeal with this office at [insert address of field
office issuing the decision] which we will forward to IBLA.
If you wish to bypass a State Director Review, this decision may be appealed directly to the IBLA in
accordance with the regulations at 43 CFR 3809.801(a)(1). Your Notice of Appeal must be filed in this
office at [insert address of field office issuing the decision] within 30 days from receipt of this decision. As
the appellant you have the burden of showing that the decision appealed from is in error. Enclosed is BLM
Form 1842-1 that contains information on taking appeals to the IBLA.
This decision will remain in effect while the IBLA reviews the case, unless a stay is granted by the IBLA. If you
request a stay, you have the burden of proof to demonstrate that a stay should be granted.
Appeal of a Decision under 43 CFR 3715
If you are adversely affected by this decision, you may appeal to the IBLA under 43 CFR part 4. If you appeal this
decision, you must file a Notice of Appeal to this office at [insert address of field office issuing the decision] within
30 days from receipt of this decision. As the appellant you have the burden of showing that the decision appealed
from is in error. Enclosed is BLM Form 1842-1 that contains information on taking appeals to the IBLA.
This decision will remain in effect while the IBLA reviews the case, unless a stay is granted by the IBLA. If you
request a stay, you have the burden of proof to demonstrate that a stay should be granted.
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Template 10.1-2 - State Director Decision – Appeal Language
Appeal of the Decision
This decision may be appealed to the Interior Board of Land Appeals (IBLA) in accordance with the
regulations contained in 43 CFR, part 4 and the enclosed Form 1842-1. If an appeal is taken, your Notice
of Appeal must be filed in this office [insert state office address] within 30 days from receipt of this
decision. The appellant has the burden of showing that the decision appealed from is in error.
This decision will remain in effect while the IBLA reviews the case, unless a stay is granted by the IBLA. If you
request a stay, you have the burden of proof to demonstrate that a stay should be granted.
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Template 10.1-3 - Request for a Stay
Request for a Stay
If you wish to file a petition pursuant to regulations 43 CFR 4.21 for a stay of the effectiveness of this
decision during the time that your appeal is being reviewed by Interior Board of Land Appeals (IBLA), the
petition for a stay must accompany your notice of appeal. A petition for a stay is required to show
sufficient justification based on the standards listed below. Copies of this notice of appeal and petition for
a stay must also be submitted to each party named in the decision and to the IBLA and to the appropriate
Office of the Solicitor (see 43 CFR 4.413) at the same time the original documents are filed with this office.
If you request a stay, you have the burden of proof to demonstrate that a stay should be granted.
Standards for Obtaining a Stay
Except as otherwise provided by law or other pertinent regulation, a petition for a stay of a decision
pending appeal must show sufficient justification based on the following standards:
1. The relative harm to parties if the stay is granted or denied.
2. The likelihood of the appellant’s success on the merits.
3. The likelihood of immediate and irreparable harm if the stay is not granted.
4. Whether the public interest favors granting the stay.
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Appendix B - Present Value Determination
This appendix contains the steps to follow in calculating the present value of future costs. To
establish the amount of money that needs to be invested in a long-term funding mechanism, the
future costs need to be stated as a present value for the year the account will be established and
start growing in value. To do this calculation, a standard present value analysis needs to be
performed.
The discount rates, interest rates, and other figures used in this document are for example
purposes only. In conducting a present value analysis the user must determine the appropriate
inputs given the specifics of the long-term funding mechanism being established. The inputs and
assumptions applied in a present value calculation will significantly affect the results. It is
imperative that defensible inputs and assumptions are used in generating these calculations.
Unless the individual performing the present value calculations has the knowledge and expertise
in developing and applying these inputs and assumptions, a knowledgeable source should be
called upon.
Discount Rate
A critical component to a present value calculation is determining the appropriate discount rate.
For this type of analysis, the appropriate discount rate should reflect the anticipated net return on
investment. To estimate the anticipated net return on investment, the BLM State Director must
first determine what financial instruments are appropriate and acceptable for such a funding
mechanism.
The choice of the discount rate to use in the analysis is critical and can be confusing; the
responsible BLM office should consult the BLM State Office economist if there are concerns
about the appropriate discount rate to use.
Interest Rates - Of the acceptable financial instruments under 43 CFR 3809.555, U.S. Treasury,
Municipal, and corporate bonds are the most appropriate for this type of investment. The interest
rates U.S. Treasury, Municipal, or corporate bonds carry depends on several factors, including
default risk, tax status, and maturity. Generally, the higher the default risk associated with the
bond, the higher the interest rate; tax exempt instruments generally come with a lower interest
rate; and the longer the term of the bond, the higher the interest rate. Table 1, Reported Bond
Interest Rates, provides examples of the interest rates for U.S. Treasury, Municipal, and
corporate bonds reported for two time periods (May 28, 2002 and May 6, 2002).
The rates in Table 1 are examples of actual market rates that are typically reported in the
financial section of most large newspapers. These rates reflect the anticipated return on
investment associated with each investment. They are reported market rates and, as such, the
interest rates include the anticipated effect of inflation that is expected to occur over the term of
the financial instrument, i.e., they are nominal rates. As with any figures provided in this
document, they are examples of the type of information that is available in print and online.
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A number of sources exist that provide assumptions on discount rates and future inflation rates.
One such source is the U.S. Government’s Office of Management and Budget (OMB). Among
other functions, OMB provides guidance to Federal agencies on what discount rates to use when
conducting benefit-cost and cost-effectiveness analyses. Although the analysis required in
establishing the amount of a trust fund is not identical to a cost-effectiveness analysis, the OMB
guidance is still useful and relevant.
Table 1
Reported Bond Interest Rates
Interest Rate Interest Rate
Debt Securities
May 28, 2002 May 6, 2002
10-Year U.S. Treasury
5.12
5.05
10-Year AAA Municipal Bond
4.03
4.01
10-Year AA Municipal Bond
4.00
3.98
10-Year AAA Corporate Bond
5.62
5.62
10-Year AA Corporate Bond
5.91
5.99
30-Year U.S. Treasury
5.66
5.53
20-Year AAA Municipal Bond
4.88
4.83
20-Year AA Municipal Bond
4.89
4.85
20-Year AAA Corporate Bond
6.28
6.20
20-Year AA Corporate Bond
6.58
6.61
Annually OMB issues its guidance on discount rates in Circular A-94, Appendix C, Discount
Rates for Cost-Effectiveness, Lease Purchase, and Related Analyses
(http://www.whitehouse.gov/omb/circulars/a094/a094.html). Appendix C is updated annually
and presents nominal and real discount rates for both public and private funded projects. For
federally funded projects, the discount rate is based on the Government’s current cost of
borrowing, or current interest rates from U.S. Treasury notes and bonds. For example, Appendix
C, revised January 2006, set the 30-year real interest rate at 3.0 percent and the 30-year nominal
rate at 5.2 percent. The OMB Circular also provides discount rate guidance for privately funded
projects. For these projects the recommended rate is based on an estimate of the marginal pretax
rate of return on an average investment in the private sector in recent years.
Fees and Taxes - Trust account management fees and income taxes potentially reduce the return
on an investment. Any funding mechanism required under 43 CFR 3809.552(c) must be selfsustaining, including an approach to allow for the payment of these costs from the fund. One
way to account for these costs is to adjust the discount rate to reflect these costs.
To account for a trust account management fee that is stated as a percentage of the account
balance, the rate of the applicable annual management fee should be subtracted from the
anticipated return on investment for the account. For example, if the annual return on investment
is projected as 5.2 percent and the management fee is 1 percent of the total annual account
balance, then the discount rate should reflect that reduction in the net return, i.e., 4.2 percent (5.2
- 1.0 = 4.2).
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To the extent taxes reduce the effective return on investment for funds in the trust fund, they
must be accounted for. However, determining the effect of taxes on the return on investment is
not as straightforward as it is for the trust account management fees. The type of financial
instruments that the funds are invested in will effect what taxes are due. For example, Municipal
bonds are generally exempt from Federal, state, and local taxes. U.S. Treasuries are exempt
from state taxes, but not Federal taxes. Corporate bonds are subject to both Federal and state
taxes.
In assessing the effect of taxes, the rate at which the tax will be applied needs to be considered.
One way to address this question is to consider the different market interest rates on tax exempt
and non-exempt investment instruments. At the time this guidance was being prepared the
average annual return on long-term AAA Municipal bonds was about 15 percent lower than
those offered for comparable maturity U.S. Treasuries. Since the security, maturity, and state
and local tax status for these two instruments are relatively similar, that average 15 percent
difference reflects the effect of Federal taxes on the return on investment. For example, using a
5.2 percent nominal rate and an anticipated trust account management fee of 1 percent, the return
on investment in the fund is projected as 4.2 percent. That return is then reduced by 15 percent
to account for Federal taxes. Fifteen percent of 4.2 percent is approximately 0.6 percent,
resulting in a net return on investment for funds in the account of about 3.6 percent. Note, this
calculation is provided only as an example. Consult with the Solicitor’s Office to determine
whether the mechanism may be considered to be a non-profit mechanism which would be
exempt from Federal income tax.
Real Rates - Where the cost inputs used in the analysis are real or constant-dollar inputs, the
discount rate must also be a real rate; the inflation expectation needs to be removed from the
reported market rate. A real discount rate is the difference between the nominal interest rate and
the assumed inflation rate. It is recommended where adjustments are necessary to eliminate the
inflation assumptions from observed market rates, the BLM should consider using an established
source such as OMB’s inflation assumptions found in Circular A-94, Appendix C. For example,
the inflation rate used by OMB in Appendix C (January 2006) was 2.2 percent per year. Using
the example above, where the net return on investment, stated in nominal terms, is 3.6 percent,
the real net return on investment would be 1.4 percent (3.6 - 2.2 = 1.4).
Determining the Present Value
Present Value Calculation - Once an appropriate discount rate that reflects the net return on
investment has been determined, the present value of the future costs can be calculated. Table 2,
Present Value Calculations, provides an example of how future costs can be discounted to
determine their present value. For this example, the anticipated post-reclamation obligations run
from year 30 through year 42, the hypothetical costs are presented as real (constant-dollar) costs
(C), and the discount factor (DF) is based on OMB’s (February 2006) 30-year published real
interest rate (5.2 percent), less a 1 percent annual trust fund management fee, 0.6 percent for
Federal taxes (marginal tax rate of 15 percent) and an inflation assumption of 2.2 percent. DF is
calculated as 1/(1+i)t, where “i” is the discount rate (1.4 percent) and “t” is the year. The present
value (PV) for each year’s costs is the product of those estimated costs and the discount factor.
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The present value of the estimated costs for year 30 is calculated as:
DF=1/(1+i)t
DF=1/(1+0.014)30
DF=0.6590
PV=C(DF)
PV=$10,000(0.6590)
PV=$6,590
Table 2
Present Value Calculations
Estimated
Present Value
Year Constant-Dollar Costs Discount Factor
Of Costs
30
10,000
0.6590
6,590
31
10,000
0.6499
6,499
32
10,000
0.6409
6,409
33
10,000
0.6320
6,320
34
10,000
0.6233
6,233
35
150,000
0.6147
92,207
36
10,000
0.6062
6,062
37
10,000
0.5979
5,979
38
10,000
0.5896
5,896
39
10,000
0.5815
5,815
40
150,000
0.5734
86,015
41
10,000
0.5655
5,655
42
10,000
0.5577
5,577
Total
245,257
In this example, the operator would need to deposit $245,357 into the trust fund at the beginning
of year one, in order to meet those estimated post-reclamation obligations in years 30 through 42.
In conducting a discount analysis it is important to keep in mind the uncertainties of the inputs
and the sensitivity of the analysis to certain inputs. Specifically, a slight change in the discount
rate can significantly change the amount of money the operator will need to commit to the fund.
To demonstrate this sensitivity, by using a higher discount rate (2.5 percent versus 1.4 percent) in
the example shown in Table 2 above, the operator would need to deposit $164,802.
Period of Analysis - For trust funds or other funding mechanisms that cover post-reclamation
obligations over a very long period of time, or may even need to be perpetual, determining the
appropriate period of the analysis becomes problematic. Mathematically the calculations, similar
to that performed in Table 2, can be made for any time period. However, the present value of the
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cost of any post-reclamation obligations becomes smaller and smaller the further in the future
those obligations are expected to occur. For example, the present value of a $10,000 obligation
in year 30, using a 2.5 percent real discount rate, is $4,767. If that same obligation is in year
100, the present value is $846. For year 200, that $10,000 obligation has a present value of $72.
At some point the calculations of the present value of obligations into the distant future are not
very meaningful.
Variability in the inputs, especially in the discount rate, due to uncertainties far outweighs the
added value due to extending the calculations. To demonstrate this point, instead of using a 2.5
percent discount rate, a 3.5 percent discount rate is used. For that calculation, the present value
of $10,000 obligation in year 200 is $10. If the discount rate applied is 1.5 percent, the present
value for that future obligation is $509.
Unfortunately, there are no economic standards or rules defining when the point is exceeded
when additional present value calculations do not contribute in any meaningful way to the
ultimate answer. When defining the parameters for the analysis for a particular project, it is
recommended the responsible BLM office consult the BLM State Office economist concerning
the appropriate time period to be analyzed.
Permanent or Perpetual Fund - Where the cost of meeting the post-reclamation obligations are
projected to be reoccurring costs and those costs are expected to continue indefinitely, it may be
appropriate to calculate the reoccurring costs based on permanent funding needs. In such a
situation, there is an alternative to conduct a discount analysis as described above. A simpler
method to estimating the amount of money that will need to be deposited is to divide the
estimated average annual real cost (C) by the selected real discount rate (i). For example, if the
average cost to cover the operator’s post-reclamation obligations is estimated to be $10,000 per
year, in constant dollars, and a 3.9 percent real discount rate is used, $256,410 (10,000/0.039)
would need to be deposited into the funding mechanism to establish a permanent or perpetual
fund. This amount would cover the cost of those annual obligations into perpetuity without ever
touching the principal.
PV=C/i
PV=$10,000/0.039
PV=$256,410
The example above provides for the annual dispersal of funds to begin at the end of year one.
Instead the annual payments from the fund may not start until sometime in the future, e.g., year
10. In such a case, the fund would not need to be established with the full amount but rather an
amount that would grow to $256,410 by year 10. To determine the amount that would need to be
deposited; the present value will need to be estimated using the discount analysis process. The
present value of $256,410 in year 10 is $174,896 using a 3.9 percent discount rate.
DF=1/(1+i)t
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DF=1/(1+0.039)10
DF=0.6821
PV=C(DF)
PV=$256,410(0.6821)
PV=$174,896
Phased Funding of the Account - Where the District/Field Manager determines the public’s
interests are adequately protected, a trust fund or other funding mechanism may be established as
an escrow account with the operator depositing funds needed to ensure the post-reclamation
obligations over time. If this approach is used, growth of the fund will be from the interest
gained and increase in value of the assets plus the additional funds being deposited. As such, a
simple present value analysis, as discussed above, cannot be used to determine the amount of
money that will need to be deposited when establishing the fund. That analysis needs to be
based on the point in time when all deposits have been made.
In the example provided in Table 2 above, if the District/Field Manager allows the operator to
establish the trust fund by depositing the needed funds over a period of time, then $245,357
would not be the initial deposit as suggested by the above present value analysis. For example,
the operator is allowed to make equal deposits over a 5-year period in establishing the fund. In
effect, year one of the present value analysis would actually be year five of the operation; the
year the trust fund is fully funded. Table 3 – Phased Funding Calculations presents this concept.
Table 3
Phased Funding Calculations
Year Of
Year Since
Estimated
Present Value
Operation Fully Funded Constant-Dollar Costs Discount Factor
Of Costs
30
25
10,000
0.7064
7,064
31
26
10,000
0.6966
6,966
32
27
10,000
0.6870
6,870
33
28
10,000
0.6775
6,775
34
29
10,000
0.6682
6,682
35
30
150,000
0.6590
98,845
36
31
10,000
0.6499
6,499
37
32
10,000
0.6409
6,409
38
33
10,000
0.6320
6,320
39
34
10,000
0.6233
6,233
40
35
150,000
0.6147
92,207
41
36
10,000
0.6062
6,062
42
37
10,000
0.5979
5,979
Total
262,911
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In this example, the operator will need to have $262,911 in the trust fund by year five of the
operation to ensure adequate funds will be available to meet the estimated post-reclamation
obligations.
To determine the required operator deposits for years one though five, a sinking-fund deposit
analysis will need to be conducted. This analysis is used to calculate a uniform series of equal
end-of-period payments to accumulate the required amount of money by a future year. The
sinking-fund deposit factor is calculated as [i/((1+i)n-1)] where “i” is the discount rate and “n”
are the number of years. To solve for the required annual payments (AP), the future value (FV)
at the end of year five is $262,911 as calculated in Table 3, the discount rate is 1.4 percent and
period of analysis is 5 years.
AP=FV[i/((1+i)n-1)]
AP=$262,911[0.014/((1+0.014)5-1)]
AP=$51,130
For this example, the operator will need to deposit $51,130 into the trust fund each year for the
first 5 years of operation. The combination of these deposits and an increase in the value of the
funds in the account will grow to the desired amount by year five. From year five to when the
funds will be needed, the account will continue to grow based on the gain in value of the funds in
the account.
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Appendix C – Example Formats
This appendix contains example formats for Notices and Plans of Operations submitted under the
surface management program. The example formats are labeled according to the handbook
section number where first referenced. It is recognized that not one size fits all when an operator
prepares its Notice and Plan submissions. The example formats are intended to provide a
consistent starting point with the recognition that the operator will need to modify the language
to accommodate the particular circumstances or practices in the State or District/Field Office.
These formats are provided to assist the operator in documenting the information the BLM will
need to review the proposed Notice or Plan. Use of these formats is at the operator’s discretion;
the BLM does not require the operator use these formats.
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Format 3.2-1 - Notice
– Notice –
for
Exploration Activity under the Surface Management Regulations at 43 CFR 3809
You may submit a Notice for surface disturbing activity greater than casual use instead of a Plan of Operations. To
qualify for a Notice the activity must: 1) constitute exploration, 2) not involve bulk sampling of more than 1,000
tons of presumed ore, 3) must not exceed 5 acres of surface disturbance, and 4) must not occur in one of the special
category lands listed in 43 CFR 3809.11(c). The regulations at 43 CFR 3809.301(b) describe the information that
you, the operator, are required to provide in order for the Notice to be complete. The Notice is to be filed in the
BLM field office with jurisdiction over the land involved. The Notice does not need to be on a particular form but
must contain the information required by 43 CFR 3809.301(b), as outlined below. This format has been prepared to
assist small or medium scale operators address the content requirements for a Notice. Use of this worksheet is
voluntary.
Part 1 - Operator Information
You must identify the operator responsible for conducting the proposed activity. If the operator
is a corporation or other business entity, then a corporate business entity point of contact must be
identified. You must notify the BLM in writing within 30 days of any change of operator or
business entity point of contact or in the mailing address of either.
Name(s):
Point of Contact (if operator is a business
entity):
Mailing Address:
Mailing Address:
Phone Number:
Phone Number:
Fax Number:
Fax Number:
Email address (optional):
Email address (optional):
Taxpayer Identification Number (for an individual this is your social security number):
Unpatented Mining Claims (list the name and BLM serial number(s) of any unpatented mining
claim(s) where disturbance would occur):
Other Federal, State, or Local Authorizations (list any other permits or licenses you have either
applied for or been issued for this project):
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Part 2 – Description of Exploration Activity and Reclamation
You must provide a complete description of all equipment, devices, or practices you propose to
use during operations with a level of detail appropriate to the type, size, and location of the
activity. The type of information required is listed below. You only need to address those items
applicable to your operations.
Project Area Maps (Attach map(s) that show
the location of your project in sufficient
detail for BLM to find it and the location of
access routes that will be used or
constructed. Show all relevant project
features on the maps or drawings):
___ Exploration location
___ Access routes, new and existing construction
___ Drill site/drill hole location(s)
___ Trenching location/depth
___ Underground workings
___ Support facilities/buildings/utility service/etc.
___ Other:
Activity Description (Address each
applicable project feature, describe the
equipment you intend to use and measures
you will take to prevent unnecessary or
undue degradation.
___ Access route construction and use
___ Drill site construction
___ Drilling operations/drill fluids & cuttings
handling
___ Trenching or surface sampling
___ Underground sampling or excavation
___ Bulk sample or waste stockpile placement
___ Support facilities construction and operation
___ Other:
Activity Description (Describe your proposed exploration activity. Attach additional
sheets/maps where needed)
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Reclamation Plan (provide a reclamation
plan to meet the standards in 43 CFR
3809.420. Include a description of the
equipment, devices and practices you will
use. Address the applicable components
in the right column)
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___ Drill hole plugging procedures
___ Disposal of drill cuttings or other waste material
___ Drill site/drill road regrading and reshaping
plans
___ Closure of mine openings and test pits
___ Topsoil salvage, handling, and replacement
___ Vegetation reestablishment/weed control
___ Removal/stabilization of buildings & support
facilities
___ Other:
Reclamation Plan (Describe how you will complete reclamation plan of the project area. Attach
additional sheets/maps where needed)
Schedule of Activities (provide a schedule with the date you expect to begin operations and the
date you expect to complete reclamation. Notices expire in 2 years, after which, only
reclamation may be conducted unless the Notice is extended.)
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Part 3 – Reclamation Cost Estimate
A reclamation cost estimate (RCE) is required for your Notice to be complete. The following are
general RCE requirements. The BLM is available to assist you in developing your reclamation
cost estimate.
Reclamation Cost
Estimate Elements
(Account for each of these
cost elements)
___ The RCE must cover the Reclamation Plan at any point in the
project life
___ Calculate the RCE based on the BLM’s cost to contract for the
reclamation
___ Include all equipment use, supplies, labor, and power in direct
costs
___ Allow for a contingency cost (10% of direct costs)
___ Allow for contractor profit (10% of direct costs)
___ Include contractor liability insurance (1.5% of total labor cost)
___ For direct costs over $100,000 add 3% for payment &
performance bonds
___ Add 12% of direct costs for BLM contract administration &
indirect costs
Reclamation Cost Estimate (Attach additional sheets/maps where needed)
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The Notice is submitted this date by:
_______________________________________________________________________
(Signature of operator or agent)
Date
_______________________________________________________________________
(Signature of co-operator or agent)
Date
Additional Processing Information
1)
2)
3)
4)
5)
Within 15 calendar days of receiving your Notice, the BLM will review the Notice material and notify
you of one of the following:
Your Notice is complete and the amount of the financial guarantee that must be provided before
operations may begin.
Your Notice is not complete, specifying what information is missing or incomplete.
Your Notice is complete but that BLM requires additional time for consultation, field visits, or review
before it can evaluate the Notice.
Your Notice must be modified in order to prevent unnecessary or undue degradation.
Your operations do not qualify for a Notice.
Once a complete Notice is received, and the BLM determines that it will not cause unnecessary or undue
degradation, the BLM will notify you that your Notice has been accepted and issue a decision on the
amount of the financial guarantee. However, you must not begin surface disturbing activity until you
have provided a financial guarantee in the approved amount to the BLM State Office, and received a
decision from that office that the financial guarantee instrument has been accepted.
All Notices expire 2 years from the date of the letter establishing the financial guarantee amount. If you
wish to conduct operations for 2 additional years after the expiration date of your Notice, you must notify
the BLM in writing on or before the expiration date and meet the financial guarantee requirements. You
may extend your Notice more than once.
It should be noted that acceptance of a Notice by the BLM does not constitute a determination regarding
the validity or ownership of any unpatented mining claim involved in the operation. In addition, you are
responsible for obtaining any use rights or local, state, or Federal permits, licenses, or reviews that may be
required for your operation.
A Notice proposing use and occupancy of the public lands, such as full- or part-time residence or the
construction, presence, or maintenance of temporary or permanent structures, must also obtain
concurrence under the regulations at 43 CFR 3715 that the use or occupancy is reasonably incident to the
prospecting or exploration activity.
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Format 4.3-1 - Plan of Operations
– Plan of Operations –
for
Activity under the Surface Management Regulations at 43 CFR 3809
The regulations at 43 CFR 3809.401(b) requires you, the operator, to describe the proposed operations at a level of
detail sufficient for the BLM to determine that your operation would prevent unnecessary or undue degradation.
The Plan of Operations is to be filed in the BLM field office with jurisdiction over the land involved. The Plan of
Operations does not need to be on a particular form but must address the information required by 43 CFR
3809.401(b), as outlined below. This format has been prepared to assist small or medium scale operators in
addressing the content requirements for a Plan of Operations. Use of this worksheet is voluntary.
Part 1 - Operator Information
You must identify the operator responsible for conducting the proposed activity. If the operator
is a corporation or other business entity, then a business entity point of contact must be
identified. You must notify the BLM in writing within 30 days of any change of operator or
business entity point of contact or in the mailing address of either.
Name(s):
Point of Contact (if operator is a business
entity):
Mailing Address:
Mailing Address:
Phone Number:
Phone Number:
Fax Number:
Fax Number:
Email address (optional):
Email address (optional):
Taxpayer Identification Number (for an individual this is your social security number):
Unpatented Mining Claims (list the name and BLM serial number(s) of any unpatented mining
claim(s) where disturbance would occur):
Other Federal, State, or Local Authorizations (list any other permits or licenses you have either
applied for or been issued for this project):
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Part 2 – Description of Operations and Reclamation
You must provide a complete description of all equipment, devices, or practices you propose to
use during operations. The type of information required is listed below. You only need to
address those items applicable to your operations. Attach maps and additional sheets as needed.
Project Area Maps (check project feature
and show on attached maps or drawings):
___ Exploration location
___ Drillsite/drill hole location(s)
___ Access routes, new and existing
___ Mineral process facility layout
___ Mining areas/underground workings
___ Waste rock/tailing location
___ Support facilities/building location/utility
service
___ Other:
Operating Plans, including preliminary or
conceptual designs and cross sections
(address applicable project feature, attach
design information, and provide a narrative
explaining how operations are to be
conducted)
___ Mining areas/underground workings
___ Mineral processing facilities
___ Waste rock/tailing disposal
___ Water management plans
___ Rock characterization and handling plans
___ Quality assurance plans
___ Access route construction and use
___ Pipelines, power lines or utility services
___ Other:
Operating Plan (Describe your operating plan. Attach additional sheets/maps where needed.)
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Reclamation Plan (provide a reclamation
plan to meet the standards in 43 CFR
3809.420. Include a description of the
equipment, practices, and devices you
will use. Address the applicable
components in the right column.)
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___ Drill hole plugging procedures
___ Closure of mine openings and reclamation
___ Regrading and reshaping plans
___ Isolation & control of acid-forming/toxic
materials
___ Topsoil salvage, handling and replacement
___ Vegetation reestablishment/weed control
___ Wildlife habitat/riparian area rehabilitation
___ Removal/stabilization of buildings & support
facilities
___ Post-closure management
___ Pit backfilling feasibility where pits are to be
left open
(Address economic, environmental, and safety
factors.)
Reclamation Plan (Describe your reclamation plan. Attach additional sheets/maps where
needed.)
Schedule of Operations (Provide a schedule from project start-up through final closure. Identify
major phases such a development, mining, processing, and reclamation. Operations with openended or undefined schedules cannot be accepted.)
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Part 3 – Monitoring Plan
You must provide a plan to monitor the effects of your operation. The monitoring plan should be
designed to do the following: (1) demonstrate compliance with the Plan of Operations and other
environmental regulations, (2) provide early detection of potential problems, and (3) supply
information that will assist with any needed corrective actions. The scope of monitoring depends
on the location and complexity of the operation. Generally, exploration activity requires little or
no monitoring, while certain mining activity may need comprehensive monitoring plans.
Monitoring plans should avoid duplication by incorporating other state or federal monitoring
requirements.
Resource Conditions to Monitor (Indicate
the conditions you propose to monitor.)
___ Surface or groundwater quality/quantity
___ Air quality
___ Vegetation or reclamation conditions
___ Process facility containment performance
___ Stability conditions
___ Wildlife mortality
___ Noise or light levels
___ Other (include state requirements):
Monitoring Plan Elements (For each
resource or condition monitored address
these elements.)
___ Type and location of monitoring devices
___ Sampling parameters and frequency
___ Analytical methods
___ Reporting procedures
___ Adverse monitoring result thresholds &
procedures
___ Other:
Monitoring Plans (Describe your monitoring plan(s). Attach additional sheets/maps where
needed.)
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Part 4 – Interim Management Plan
All Plans of Operations must include an Interim Management Plan that describes how the project
area will be managed during periods of temporary closure (including periods of seasonal
closure).
Interim Management Plan
Elements (Address each of these
elements.)
___ Schedule of anticipated periods of closure
___ Provisions to notify the BLM of unplanned or extended
closures
___ Measures to stabilize excavations and workings
___ Measures to isolate or control toxic materials
___ Provisions to store or remove equipment, supplies, or
structures
___ Measures to maintain the project area in a safe and clean
condition
___ Plans for monitoring site conditions during non-operation
___ Other:
Interim Management Plan (Describe your Interim Management Plan. Attach additional
sheets/maps where needed.)
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Part 5 – Reclamation Cost Estimate
A reclamation cost estimate (RCE) is required to process your Plan of Operations (43 CFR
3809.401(d)). The RCE may be submitted with the Plan of Operations, or later at a time to be
determined between you and the BLM. The following are general RCE requirements. The BLM
is available to assist you in developing the cost estimate.
Reclamation Cost
Estimate Elements
(Account for each of these
cost elements.)
___ The RCE must cover the Reclamation Plan at any point in the
project life
___ Calculate the RCE based on the BLM’s cost to contract for the
reclamation
___ Include all equipment use, supplies, labor, and power in direct
costs
___ Include fluid management of any mill process solutions in
direct costs
___ Allow for a contingency cost (10% of direct costs)
___ Allow for contractor profit (10% of direct costs)
___ Include contractor liability insurance (1.5% of total labor cost)
___ For direct costs over $100,000 add 3% for payment &
performance bonds
___ Add 12% of direct costs for BLM contract administration &
indirect costs
Reclamation Cost Estimate (Attach additional sheets/maps where needed.)
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The proposed Plan of Operations is submitted this date by:
_______________________________________________________________________
(Signature of operator or agent)
Date
_______________________________________________________________________
(Signature of co-operator or agent)
Date
Additional Processing Information
Within 30 calendar days of receiving your proposed Plan of Operations, the BLM will review the
submitted material and notify you: 1) that your Plan of Operations is complete, that is, it meets the
content requirements under 43 CFR 3809.401(b); or 2) that your Plan does not contain a complete
description of the proposed operations, specifying what information is missing or incomplete; or 3) that
your Plan of Operations is complete, but the BLM cannot process the Plan until certain additional steps
are taken which could include you providing adequate baseline data, the BLM conducting an
environmental review, or the BLM consulting with various entities such as the State or Indian tribes.
Once a Plan of Operations is determined to be complete, an environmental analysis is prepared. The
environmental analysis and/or complete Plan of Operations is available for public comment for not less
than 30 days. The processing of a Plan of Operations that requires preparation of an environmental
impact statement (EIS) is subject to the cost recovery provisions of the regulations. The BLM will notify
you immediately if it is determined your Plan of Operations falls within the cost recovery requirements.
Upon completing review of your Plan of Operations, including environmental analysis, consultation, and
consideration of public comments, the BLM will issue a decision that: 1) approves the Plan of Operations
basically as submitted; or 2) approves the Plan of Operations subject to changes or conditions needed to
prevent unnecessary or undue degradation; or 3) disapproves or withholds approval of the Plan of
Operations, listing the reason for not approving the Plan. The decision to approve or deny a Plan of
Operations can be appealed to the BLM State Director or directly to the Interior Board of Land Appeals
(IBLA).
Even after receiving a decision approving your Plan of Operations, you must not begin surface disturbing
activity until you have provided a financial guarantee in the amount of the approved reclamation cost
estimate to the BLM State Office, and received a decision from that office that the financial guarantee
instrument has been accepted.
It should be noted that approval of a Plan of Operations by the BLM does not constitute a determination
regarding the validity or ownership of any unpatented mining claim involved in the operation. In
addition, you are responsible for obtaining any use rights or local, state, or Federal permits, licenses, or
reviews that may be required for your operation.
A Plan of Operations proposing use and occupancy of the public lands, such as full- or part-time
residence or the construction, presence, or maintenance of temporary or permanent structures, must also
obtain concurrence under the regulations at 43 CFR 3715 that the use or occupancy is reasonably incident
to the prospecting, mining, or processing operations.
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Appendix D - Compiling an Administrative Record
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09/17/2012
A-69
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A-70
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A-71
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A-72
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A-73
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A-74
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A-75
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A-76
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A-77
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A-78
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A-79
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A-80
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A-81
Appendix E – Surface Management Action Codes
MANDATORY AND REQUIRED ACTION CODES
371511, 380210, 380910, 380913, and 381402 Case Types
Mandatory (M) = Action code must always be entered.
Required (R) = Action code must be entered if the situation exists.
Action Code
002
003
006
007
Action Code Date
Enter date
Environmental
Analysis is initiated.
Action Text
EA Initiated (R)
Use with 380913 only
if Occupancy is
involved
Case Type
380210
380910
381402
380913
371511
Enter date
Environmental Impact
Statement (EIS) is
initiated.
EIS Initiated (R)
380210
380910
381402
371511
Enter date categorical
exclusion (CX)
analysis is initiated.
CX Initiated (R)
Use pursuant to 516
DM 11.9.
380210
380910
381402
Enter date Categorical
Exclusion (CX)
Determination is
CX Determined (R)
380210
380910
381402
BLM HANDBOOK
Action Remarks
Other Remarks
Replaces AC 004.
Populate the document number field
with the first available number, for AC
002. When additional AC 002s are
entered, you must populate the
document number field with the next
number. Paired w/AC 008. Pending
entity required.
Replaces AC 004.
Populate the document number field
with the first available number, for AC
003. When additional AC 003s are
entered, you must populate the
document number field with the next
number. Paired w/AC 009. Pending
entity required.
Replaces AC 004.
Enter applicable document number in
action remarks.
Rel. 3-336
09/17/2012
Populate the document number field
with the first available number, for AC
006. When additional AC 006's are
entered, you must populate the
document number field with the next
number. Paired w/AC 007. Pending
entity required.
Replaces AC 005. Populate the
document number field with the
number that corresponds with the
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
Action Code
008
009
018
022
Action Code Date
made.
Action Text
Case Type
Enter date
Environmental
Analysis (EA)/FONSI
Decision Record is
signed.
Enter date
Environmental Impact
Statement (EIS) is
signed.
EA Approved (R)
Use with 380913 only
if Occupancy is
involved
Enter date trespass is
resolved or date it is
determined no trespass
occurred
Enter date reclamation
costs are determined
by BLM.
Trespass Resolved (R)
371511
Recl Cost Det (M)
380210
380910
381402
380913
371511
EIS Approved (R)
380210
380910
381402
380913
371511
380210
380910
381402
371511
Action Remarks
Enter EIS number in action remarks.
Enter total reclamation costs
determined followed by semicolon.
Following the semicolon, enter year
review (YRR) period: 1YRR for
phased bonding regardless of case
type: 2YRR for 380913 notice level
case type; and 3 YRR for 380210,
380910 and 381402 Plan of
Operations case types.
EX: $5000;1YRR
For Reclamation Cost Estimate
Review for Amendments/
Modifications: When AC 022 is
entered, populate the “Action
Remarks” field with the reclamation
cost estimate followed by a semicolon
and “PARTIAL”.. EX:
$5000;PARTIAL
The Action Remarks field should only
contain the bond amount, semicolon,
and 1YRR, 2YRR, 3YRR, or
BLM HANDBOOK
Rel. 3-336
09/17/2012
A-82
Other Remarks
initiating AC 006 (document). Remove
pending entity from AC 006.
Replaces AC 005. Populate the
document number field with number
that corresponds with the initiating AC
002 (EA document). Remove pending
entity from AC 002.
Replaces AC 005. Populate the
document number field with number
that corresponds with the initiating AC
003 (EA document). Remove pending
entity from AC 003.
Use in conjunction with AC 244
Terminated and AC 970 Case Closed.
Replaces AC 477.
Use date of decision requiring
increase/decrease in bond amount or
date of memo to the file verifying cost
estimate is adequate.
Use every time reclamation costs are
reviewed.
Use of the YRR portion of the field sets
or resets the policy time review period.
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
Action Code
Action Code Date
Action Text
Case Type
Action Remarks
A-83
Other Remarks
PARTIAL.
If it is necessary to conduct an entire
(total) review of the reclamation cost
estimate then the appropriate YRR
period should be entered to reset the
policy review time line.
025
Enter date
determination of
NEPA adequacy
(DNA) analysis is
initiated.
Enter date
determination of
NEPA adequacy
(DNA) is made
DNA Initiated (R)
Use with 380913 only
if Occupancy is
involved
040
Enter date compliance
exam/report is
requested/initiated
Compliance
Exam/Rpt Rqt/Init
(R)
041
Enter date compliance
inspection was done
Compl Exam/Rpt
Completed (R)
042
Enter date case is sent
to another office.
Case Sent To (R)
043
Enter date of issuance
of a Suspension order
(3809.601(b) or an
Immediate temporary
suspension order
(3715.7-1(a).
Enter date of issuance
Suspension Order (R)
026
044
BLM HANDBOOK
DNA Concluded (R)
Use with 380913 only
if Occupancy is
involved
Cessation Order (R)
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380210
To be used when tiering from an
existing EX, EIS or CX.
Paired with AC 026.
Enter prior analysis (E.G. EA or EIS)
used in making determination
followed by a semicolon in action
remarks.
Enter where case file has been sent,
e.g., ASO, IBLA, etc.
Enter SO; for Suspension Order and
ITSO; for Immediate Temporary
Suspension Order.
Enter TCO; for temporary cessation
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
Action Code
Action Code Date
of a Cessation order
(3715.1(b)).
Action Text
066
Enter date of petition
of MMS advisory
memo.
Bankruptcy Filed (R)
103
Enter date additional
information is
requested.
Addtl Info Recd (R)
104
Enter date additional
information is
received.
Addtl Info Reqd (R)
114
Enter date amended
Notice is received.
Enter date Notice
amendment is
approved
Enter date monies
requested.
Amend/Corr Apln
Recd (R)
Amendment Appv (R)
116
106
Monies Requested (R)
119
Enter date appeal is
dismissed by
appropriate authority.
Appeal Dismissed (R)
120
Enter date notice of
appeal is filed.
Appeal Filed (R)
BLM HANDBOOK
Case Type
380910
380913
371511
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380913
Action Remarks
order or PCO; for permanent cessation
order.
Enter entity name.
A-84
Other Remarks
This code must be removed when entity
no longer appears on MMS bankruptcy
list.
Enter type of information received and
from whom in action or general
remarks.
Enter type of information requested
and from whom, in action or general
remarks.
Change land description and case acres
as appropriate.
380913
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380210
380910
381402
Enter amount requested. Enter
purpose for which money requested.
For amount entry format: Beginning
in 1st position of action remarks enter
$ (Dollar symbol) 1 to9 positions for
whole figure, decimal to 2 positions
for cents (00 to 99) end with
semicolon, EX; $10000;
Enter decision citation. If in part, note
in action remarks.
Pending action required.
Enter who will review the appeal, e.g.,
SD; or IBLA;
Populate the document number field
with the first available number, for AC
120.
Rel. 3-336
09/17/2012
May include monies for cost recovery,
occupancy clean-ups, reclamation
costs, etc.
Populate the document number field
with the number that corresponds with
the initiating AC 120 (document).
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
Action Code
Action Code Date
Action Text
Case Type
380913
371511
Action Remarks
A-85
Other Remarks
When additional AC 120’s are entered,
you must populate the document
number field with the next number.
Paired w/ AC 119, AC 361, and AC
365.
122
Enter date request is
made for additional
time.
Ext of Time Rqstd (R)
125
Enter date of decision
totally rejecting notice.
Apln Rej/Denied (R)
380210
380910
381402
380913
371511
380913
Enter reason followed by a semicolon
and duration for the extension; EX:
WEATHER; MM/DD/YY.
Enter reason notice was rejected in
action remarks.
Pending entity required.
Pending entity required.
Alters case disposition to REJECTED.
If no appeal filed, enter “970” CASE
CLOSED.
127
Enter date action is
suspended by decision,
notice or other action,
e.g., processing an
application.
Enter date notice is
withdrawn.
Action Suspended (R)
136
Enter date request for
a stay is filed in
conjunction with an
appeal to IBLA.
Stay Requested (R)
137
Enter date of order
issued by IBLA
granting the request
for stay.
Stay Granted (R)
138
Enter date of order
issued by IBLA
Stay Denied (R)
130
BLM HANDBOOK
Apln Withdrawn (R)
380210
380910
381402
380913
371511
380913
If suspended in part, enter “IN PART”
and identify suspended land in land
description.
Enter reason for suspension.
Alters case disposition to
WITHDRAWN. Enter “970” CASE
CLOSED.
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380210
380910
EX: The effect of the decision
appealed from is suspended pending
the outcome of the appeal in IBLA.
EX: The decision on appeal is in effect
during the pendency of the appeal in
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
Action Code
Action Code Date
denying a stay.
Action Text
148
Enter date litigation is
filed in court.
Litigation Filed (R)
188
Enter date decision
vacating a prior
decision in whole or in
part
Dec
Vacated/Rescinded(R)
203
Enter date extension of
time is approved
Ext of Time Granted
(R)
222
Enter date hearing is
held.
Hearing Held (R)
223
Enter date hearing is
ordered by Hearings
Officer or
Administrative Law
Judge.
Enter date Notice
ceased by its own
terms.
Hearing Ordered (R)
234
235
244
Enter effective date
Notice is extended
Enter date
authorization
terminated due to
BLM HANDBOOK
Expired (R)
Case Type
381402
380913
371511
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380913
Extended (R)
380913
Terminated (R)
380210
380910
381402
A-86
Action Remarks
Other Remarks
IBLA.
Enter civil action number.
Pending entity required.
If applicable, enter decision citation
and/or “in part” in action remarks.
Alters case disposition to Recorded.
Enter date by which operator needs to
resolve issue resulting from AC-122.
Enter place of hearing in action
remarks.
Remove pending action from AC-223 –
HEARING ORDERED.
If BLM, note in action remarks.
Optional to enter date and location of
scheduled hearing in action/general
remarks.
Pending entity required.
Use for all expired cases. Alters case
disposition to Expired.
Enter date the Notice has been
extended to.
Enter “970” Case Closed, except for
Notices where reclamation is not
completed.
Use in conjunction with AC 763
EXPIRES.
Alters case disposition to Canceled.
Use in conjunction with AC 970 CASE
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
Action Code
247
260
261
263
295
300
Action Code Date
failure to comply with
terms of authorization.
Enter date on which
the file needs to be
reviewed for further
action.
Enter date
acknowledgement or
identification is made
where case lands have
been identified to be in
whole or in part, in a
BLM Wilderness
Study Area.
Enter date
acknowledgement or
identification is made
where case lands have
been identified to be,
in whole or in part, in
a Designated
Wilderness Area.
Enter date
acknowledgement or
identification is made
where lands have been
identified to be, in
whole or in part, in a
designated Area of
Critical Environmental
Concern (ACEC).
Enter date request for
Notice extension is
received.
Enter date
operator/claimant is
formally requested to
furnish a bond.
BLM HANDBOOK
Action Text
Future Action
Suspense
Lands Located in
WSA (R)
Case Type
380913
371511
380210
380910
381402
380913
371511
380210
371511
A-87
Action Remarks
Other Remarks
CLOSED.
Pending action required.
Enter name of WSA followed by a
semicolon. EX: OYWHEE
CANYON; If in part, use alpha tie /A/
to remarks.
Enter legal description of lands WSA in
remarks.
Lands Located in
DWA (R)
380910
380913
371511
Enter name of DQ followed by a
semicolon. EX: BIG ROCKS; If in
part, use alpha tie /A/.
Enter legal description of lands in
DWA in remarks.
Lands Located in
ACEC (R)
380910
380913
371511
Enter name and/or number of
“ACEC” followed by semicolon.
Enter legal description of lands in
ACEC in remarks.
If in part, use alpha tie/A/.
Extension Filed(R)
380913
380910
Bond Required (M)
380210
380910
381402
380913
Enter bond amount followed by a
semicolon. EX: $100000;
Rel. 3-336
09/17/2012
AC 300 is used to, 1. Establish the
anniversary dates for 380913 case types
and 2. Generate the Bond Review
Report.
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
Action Code
Action Code Date
Action Text
303
Enter date when
noncompliance
situation is resolved
Notice to Proceed
Issued (R)
333
Enter date amended or
corrected plan of
operations is requested
by BLM.
Enter date
modification to mine
plan is received
Amend/Corr
NTC/Plan Rqst (R)
Case Type
Action Remarks
A-88
Other Remarks
Pending entity required.
342
343
361
Enter date
modification to mine
plan is approved
Enter date decision is
affirmed, affirmed in
part or affirmed as
modified.
Mine Plan Mod
Received (R)
Mine Plan Mod
Approved (R)
Decision Affirmed (R)
365
Enter date of decision
remanding the case for
further action.
Dec Remanded (R)
366
Enter date a decision
is reversed or reversed
Dec Revrsd &
Remanded (R)
BLM HANDBOOK
380210
380910
381402
380913
371511
380210
380910
381402
Optional to enter what is to be
amended followed by a semicolon,
i.e., LAND DESCRIPTION;
380210
380910
381402
Enter Number of acres proposed
disturbance, EX: 15; AC PROP
DISTURB.
380210
380910
381402
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380210
380910
Enter number 1 for first modification
in DocID and 2 for the second one,
etc.
For plans with a number of plan
modifications, number them
consecutively. EX: PLAN
MODIFICATION 1, 2, 3…
Enter number 1 for first modification
in DocID and 2 for the second one,
etc.
If applicable, enter decision citation
and/or “IN PART” in action remarks.
Optional to tie to original decision in
action remarks. EX: /A/
If applicable, enter decision citation in
action remarks. Optional to tie to
original decision in action remarks.
EX: /A/
If applicable, enter decision citation
and/or “in part” in action remarks. Tie
Rel. 3-336
09/17/2012
Pairs with AC 343 Mine Plan
Modification Approved.
Pairs Action Code “342” Mine Plan
Modification Received.
Populate the document number field
with the number that corresponds with
the initiating AC 120 (document).
Enter AC 970 Case Closed if
applicable.
Populate the document number field
with the number that corresponds with
the initiating AC 120 (document).
Pending entity required.
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
Action Code
376
377
378
387
388
Action Code Date
in part and remanded
for further actions.
Enter date bond is
filed.
Action Text
Bond Filed (M)
Enter date document
requesting partial or
total bond termination
is received.
Enter date period of
liability on bond is
terminated.
Bond Termination
Rqstd (R)
Enter date
unauthorized
occupancy is
discovered. This code
sets disposition to
Pending.
Enter date closed case
reopened.
Case Established (M)
BLM HANDBOOK
Bond Period
Terminated (R)
Case Reopened (R)
Case Type
381402
380913
371511
380210
380910
381402
380913
380210
380910
381402
380913
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
Action Remarks
to original decision with alpha tie in
actions remarks. EX: /A/
Enter bond amount, semicolon, BLM
bond number operator or claimant in
action remarks. EX:
$10000;AZB0043 Freeport. If
characters exceed 21 spaces, complete
entry in general remarks using an
alpha tie in action remarks. EX: /A/
Enter bond-holder, e.g., BLM or state
in general remarks.
Enter BLM bond number, semicolon
and “partial” or “total”. EX: NV0055;
PARTIAL.
A-89
Other Remarks
Populate the document number field
with the first available alpha code, for
AC 376. When additional AC 376’s
are entered you must populate the
document number field with the next
alpha code. AC 376 is paired with AC
410 or AC 909.
In cases where a Plan is to be bonded
by multiple bonds and those bonds are
filed the same day, or within close
proximity, there will be more than one
AC 376 pending (open time line) at a
time. Each AC 376 must be assigned a
different alpha code which will be
paired with the appropriate AC 410 or
AC 909 decision.
Optional to add “BY PRINCIPLE” OR
“BY SURETY.”
Enter BLM bond number and
semicolon. EX: AZB000679;
Responsible offices code (DE 1428)
required under Pending Action. EX:
AZ-100;
Returns case to pending disposition.
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
Action Code
389
Action Code Date
Enter date hearing is
requested pursuant to
Title 43 CFR 4,
subpart E.
Action Text
Hearing Requested
(R)
392
Enter date monies
received.
Monies Received (R)
399
Enter date bond is no
longer required on
case.
Bond No Longer
Required (R)
405
Enter date Notice is
filed.
Notice of
Intent/Disturb (R)
410
Enter date of decision
declaring bond
unacceptable.
Bond Unacceptable
(R)
421
Enter date plan of
operations filed.
Plan Oper/Expl/Dev
Filed (M)
Case Type
380210
380910
381402
380913
371511
380210
380910
381402
380913
380210
380910
381402
380913
380913
380210
380910
381402
380913
380210
380910
381402
Action Remarks
Enter reason for hearing in
Action/General remarks, if applicable.
A-90
Other Remarks
Enter amount and type of monies
received. For amount entry format:
Beginning in 1st position of action
remarks enter $ (dollar symbol) 1 to 9
positions for whole figure, decimal to
2 positions for cents (00 to 99) end
with semicolon, EX: $100000;
Enter total, cumulative, proposed
acres disturbed (by regulation, 5 acres
or less) followed by a semicolon, EX:
3.5; AC PROP DISTURB.
Enter effective date followed by
semicolon. EX: EFF MM/DD/YY;
Enter total, cumulative, proposed
acres disturbed followed by
semicolon. EX: 17; AC PROP
DISTURBED
For actual acres disturbed, use “528”
Acres Disturbed.
Populate the document number field
with the alpha code that corresponds
with the initiating AC 376 (document).
AC 376 and 410 are paired if
applicable.
Begins Time Line.
Paired w/AC 422.
Only one AC 421 per case.
422
Enter date of decision
approving plan of
operation
Plan Oper/Expl/Dev
Appv (R)
380210
380910
381402
423
Enter date a plan was
rejected
Plan Oper/Expl/Dev
Rej (R)
380210
380910
381402
BLM HANDBOOK
Enter reason plan was rejected in
action/general remarks.
Replaces AC 125 for Plans.
Sets case disposition to REJECTED.
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
Action Code
Action Code Date
Action Text
Case Type
Action Remarks
A-91
Other Remarks
Use in conjunction with AC 970
CASE CLOSED.
424
Enter date plan was
withdrawn.
Plan Oper/Expl/Dev
Wdn (R)
429
Enter date application
acknowledged.
Enter date of
Authorized Officer’s
decision revoking a
plan of operations.
Enter date that the
form notifying the
BLM of an existing
occupancy is received.
Enter date that the
Authorized Officer
issues a decision that
locatable mineral use
and occupancy has
been determined to be
reasonably incident
and meets the
standards of 43 CFR
3715.
Apln Acknowledged
(R)
Plan of Oper Revoked
(R)
Enter date Authorized
Officer issues a
decision that locatable
minerals use and
occupancy has been
determined to not meet
the standards of 43
CFR 3715
Enter date that
information was
received in BLM
office related to use
434
437
438
439
440
BLM HANDBOOK
380210
380910
381402
380913
We have a 15 day window to respond if
information is complete.
380210
380910
381402
Occupancy Form
Filed (R)
380210
380910
380913
Occupancy Concu (R)
380210
380910
380913
Occupancy NonConcu (R)
380210
380910
380913
371511
Occupancy Proposed
(R)
380210
380910
380913
This one time form had to have been
used prior to 10/16/96.
If not included as part of AC 405 or
AC 421 then enter acres followed by a
semicolon. EX: 2 AC PROP
DISTURB;
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
Action Code
441
Action Code Date
and occupancy in
conjunction with filing
of Plan or Notice
Enter date
reconsideration is
requested (by
appellant or BLM).
Action Text
Reconsideration
Rqstd (R)
Case Type
380210
380910
381402
380913
371511
380210
380910
381402
380913
380210
380910
381402
380913
380210
380910
381402
380913
Action Remarks
Enter date default in
performance is
determined.
Default Determined
(R)
452
Enter date
surety/principal
notified to correct
default.
Enter date default in
performance is
corrected.
Default Correction
Reqd (R)
460
Enter date BLM
Office issued decision
obligating funds under
accepted bond(s) to
satisfy estimated
reclamation costs
Bond Amount
Obligated (M)
380210
380910
381402
380913
Enter bond amount followed by a
semicolon. EX $170000; enter bond
amount obligated to this project in
whole dollars
463
Enter date of decision
denying request for
partial or total bond
termination.
Enter date review of
bond amount is
completed.
Bond Termination
Denied (R)
Enter effective date, semicolon and
BLM bond number. EX: EFF
MM/DD/YY;NV0029
Enter date of issuance
Notice of
380210
380910
381402
380913
380210
380910
380913
381402
380210
465
474
BLM HANDBOOK
Default Corrected (R)
Bond Reviewed (R)
Other Remarks
Pending entity required.
451
453
A-92
Enter nature of default, i.e.,
SURFACE DAMAGE; or
PERFORMANCE; etc.
Pending action required.
Pending action required.
Rel. 3-336
09/17/2012
Used when operator or surety/principal
corrects default. If payment made
under bond to resolve default, also
enter “486” Payment by Surety
/Principal.
Used to indicate that a bond was
approved and the amount obligated.
The amount here should be greater or
equal to the amount determined by
BLM to satisfy the estimated
reclamation costs of a notice or plan of
operations (AC/022).
Bond termination can be denied for
various reasons, e.g., well not properly
plugged reclamation not completed,
etc.
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
Action Code
Action Code Date
of Notice of
noncompliance (37151(c)) or
Noncompliance order
(3809.601(a)).
Enter date it is
determined that
operator/claimant
cannot be found.
Action Text
Noncompliance (R)
Case Type
380910
381402
380913
371511
Operations
Abandoned (R)
476
Enter date case
established
Notice/Plan Activity
(R)
477
Enter date BLM
notifies operator that
bond needs to be
increased/decreased or
operator requests
BLM to decrease
bond.
Enter date default
payment made by
surety/principal.
Bond Adjustment
Required (R)
380210
380910
381402
380913
371511
380210
380910
381402
380913
380210
380910
381402
380913
487
Enter date of
Memorandum
requesting remand of
case from IBLA.
Remand Requested
(R)
491
Enter date judicial
action on the case is
completed.
Litigation Completed
(R)
Enter date that plan of
operation was filed or
case established.
Geographic Name (R)
475
486
500
BLM HANDBOOK
Pmt by
Surety/Principal (R)
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380210
380910
381402
Action Remarks
A-93
Other Remarks
Enter type of activity (drilling,
trenching, mining, etc.)
Enter BLM bond number, semicolon
and “increased to” or “decreased to”
total bond amount. EX:
NVWYOOO0; INCREASED TO
$2000.
Enter amount. For amount entry
format: Beginning in 1st position of
action remarks enter # (dollar symbol)
1 to 9 positions for whole figure, end
with semicolon, EX: $10000;
Pending action required.
Enter results.
Remove pending action from AC 148
Litigation Filed.
May need to use General Remarks, if
so tie with alpha character.
Enter name (up to 20 characters)
beginning in 1st position of action
remarks and end with semicolon.
Rel. 3-336
09/17/2012
Use for geographic name of project
and/or to list mining claim name(s).
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
Action Code
501
Action Code Date
Enter date plan of
operation was filed or
case was established.
Action Text
Reference Number
(R)
528
Enter date of
inspection that
determined number
actual acres disturbed.
Acres Disturbed (R)
529
Enter date notification
of reclamation
completed.
Acres Reclaimed (R)
541
Enter date notice of
completion of
reclamation is
received from operator
Reclamation Notice
(R)
Case Type
380913
371511
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
380210
380910
381402
380913
371511
Action Remarks
Enter type of number (DE 2537) and
reference number: beginning in 1st
position the entry format is: 1 to 4
positions for type (DE 2537) hyphen 1
to 14 positions for number; end with
semicolon.
A-94
Other Remarks
EX: Gold Strike;
Use for reference number and/or MC
number(s).
Use as a cross reference to other cases.
EX: DOSN-N16-81-012P;
Enter number of acres disturbed
followed by a semicolon. EX:7;
Enter the total number of acres within
the project area that have been
reclaimed to the satisfaction of the
BLM followed by a semicolon. EX:
150;
Enter INTERIM or FINAL followed
by semicolon.
Use in conjunction with code “528”
Acres Disturbed.
Pending entity required.
Includes on-going reclamation, site
stabilization and final reclamation
efforts.
Requires compliance inspection.
Pending entity required.
669
Enter date status of
land is checked to
verify mineral or
surface ownership, etc.
Land Status Checked
(M)
672
Enter date the
successor operator is
approved or accepted.
Successor Operator
(R)
678
Enter effective date
suspension is
Sus Lifted (R)
BLM HANDBOOK
380210
380910
381402
380913
371511
380210
380910
381402
380913
380210
380910
Enter previous operator followed by a
semicolon, EX: ATLAS GOLD;
May be used in conjunction with “127”
Action Suspended.
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
Action Code
763
817
853
Action Code Date
terminated.
Enter date Notice
expires.
Enter date of decision
recognizing the
merger of two or more
corporations/partnersh
ips.
Enter date compliance
review is due.
Action Text
Expires (R)
Case Type
381402
380913
371511
380913
Action Remarks
A-95
Other Remarks
Delete this code if case is closed before
expiration date.
Merger Recognized
(R)
380210
380910
381402
380913
Enter old name followed by a
semicolon (EX: GOLDSPIKE;), and
new name in the proprietor field.
Compl/Review Due
Date (R)
380210
380910
381402
380913
371511
Note whether inspections are
completed biannually or quarterly
followed by a semicolon. EX:
Biannual;
Pending action required.
Once the inspection has been
completed and recorded with AC 041Compliance Exam/Rpt.
Completed, change the date of this AC
to next required inspection date.
874
Enter date cultural and
T&E clearances are
completed.
Resource Clearances
(R)
380210
380910
381402
380913
371511
Note type of review completed (e.g.,
T&E, CULT) followed by Semicolon.
If T&E plant and animal clearances
are completed separately, note which
one was completed. EX: T&E
PLANT;
875
Enter date completed
plan is filed or date
operation began
utilizing leachate.
Enter date of actual
onset of activities in
association with plan
of operations.
Oper Utilizing
Leachate (R)
380210
380910
381402
Note type of leachate followed by a
semicolon, EX: SODIUM BROMIDE,
CYANIDE HEAP, CYANIDE VAT,
etc.
Beginning Date (R)
380210
380910
381402
Enter actual
completion date in
association with plan
of operations.
Completion Date (R)
380210
380910
381402
891
893
BLM HANDBOOK
For proposed beginning date use cone
“247” Future Action Suspense &
enter “PROPOSED BEGIN DATE” IN
ACTION REMARKS. Use in
conjunction with code “393”
Completion Date.
For proposed completion date use code
“247” Future Action Suspense &
enter “PROP COMPLETION DATE”
in action remarks.
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
Action Code
Action Code Date
Action Text
896
Enter date conflict
identified on same
lands.
Conflict Identified (R)
897
Enter date conflict on
same lands resolved.
Conflict Resolved (R)
909
Enter date bond is
accepted.
Bond Accepted (R)
Case Type
380210
380910
381402
380913
380210
380910
381402
380913
380210
380910
381402
380913
Action Remarks
Cross-reference serial numbers of
cases involved in action or general
remarks.
Enter date BLM
notifies operator bond
is accepted and
operations may
commence.
Operations
Authorized (M)
Other Remarks
Use in conjunction with code “891”
Beginning Date.
Pending entity required.
Use in conjunction with AC 896
Conflict Identified or AC 127 Action
Suspended.
Enter effective date, semicolon, and
BLM bond number. EX: EFF
MM/DD/YY;AZB0043
If characters exceed 21 spaces,
complete entry in general remarks
using an alpha tie in action remarks.
EX: /A/
915
A-96
380210
380910
381402
380913
Recommend entering bond amount in
General Remarks.
Populate the document number field
with the alpha code that corresponds
with the initiating AC 376 (document).
All cases that contain AC 909 must
contain AC 376.
Replaces AC 868 for case type 380913.
For case type 380913 use AC 915 after
AC 909 and AC 460 have been entered.
For 380210, 380910 and 381402 case
types, use AC 915 after AC 422, AC
909 and AC 460 have been entered.
930
Enter date appeal is
withdrawn.
Appeal Withdrawn
(R)
940
Enter date of decision
Name Change
BLM HANDBOOK
380210
380910
381402
380913
371511
380210
If applicable, enter decision citation in
action remarks. Tike to original
decision with alpha tie in action
remarks. EX:/A/
Enter old name followed by a
Rel. 3-336
09/17/2012
AC 915 is entered only once on a case
and sets the disposition to
AUTHORIZED.
Populate the document number field
with the number that corresponds with
the initiating AC 120 (document).
Usually refers to a corporate name
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
Action Code
Action Code Date
recognizing name
change.
Action Text
Recognized (R)
967
Enter date case is
closed.
Closed Without
Action (R)
970
Enter date all case
processing is finished
and case is closed
Case Closed (M)
Case Type
380910
381402
380913
371511
380210
380910
381402
380913
371511
A-97
Action Remarks
semicolon (EX: GOLDSTRIKE;), and
new name in proprietor field.
Other Remarks
change; includes dissolution of
corporation or partnership, marriage or
divorce.
Enter particulars of closure.
Use in instances where no Bureau
action or decision was required.
**Note** do not use this code in place
of “970” when decision has been issued
and the case authorized, etc.
Alters case disposition to Closed.
Requires the entry of a prior status
setting actions code, i.e., AC 125, Apln
Rej/Denied, AC 130 Apln
Withdrawn, AC 234-Expired or AC
244-Terminated.
380210
380910
381402
380913
371511
Sets disposition to CLOSED.
BLM HANDBOOK
Rel. 3-336
09/17/2012
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This Page Left Blank
BLM HANDBOOK
Rel. 3-336
09/17/2012
A-98
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-99
Appendix F – Arrest Warrant or Summons upon Complaint
FEDERAL RULES OF CRIMINAL PROCEDURE
II. PRELIMINARY PROCEEDINGS
Rule 4. Arrest Warrant or Summons Upon Complaint
(a) Issuance. If it appears from the complaint, or from an affidavit or affidavits filed with the
complaint, that there is probable cause to believe that an offense has been committed and that the
defendant has committed it, a warrant for the arrest of the defendant shall issue to any officer
authorized by law to execute it. Upon the request of the attorney for the government a summons
instead of a warrant shall issue. More than one warrant or summons may issue on the same
complaint. If a defendant fails to appear in response to the summons, a warrant shall issue.
(b) Probable cause. The finding of probable cause may be based upon hearsay evidence in whole
or in part.
(c) Form.
(1) Warrant. The warrant shall be signed by the magistrate judge and shall contain the name of
the defendant or, if the defendant's name is unknown, any name or description by which the
defendant can be identified with reasonable certainty. It shall describe the offense charged in the
complaint. It shall command that the defendant be arrested and brought before the nearest
available magistrate judge.
(2) Summons. The summons shall be in the same form as the warrant except that it shall summon
the defendant to appear before a magistrate at a stated time and place.
(d) Execution or service; and return.
(1) By whom. The warrant shall be executed by a marshal or by some other officer authorized by
law. The summons may be served by any person authorized to serve a summons in a civil action.
(2) Territorial limits. The warrant may be executed or the summons may be served at any place
within the jurisdiction of the United States.
(3) Manner. The warrant shall be executed by the arrest of the defendant. The officer need not
have the warrant at the time of the arrest but upon request shall show the warrant to the
defendant as soon as possible. If the officer does not have the warrant at the time of the arrest,
the officer shall then inform the defendant of the offense charged and of the fact that a warrant
has been issued. The summons shall be served upon a defendant by delivering a copy to the
defendant personally, or by leaving it at the defendant's dwelling house or usual place of abode
with some person of suitable age and discretion then residing therein and by mailing a copy of
the summons to the defendant's last known address.
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-100
(4) Return. The officer executing a warrant shall make return thereof to the magistrate judge or
other officer before whom the defendant is brought pursuant to Rule 5. At the request of the
attorney for the government any unexecuted warrant shall be returned to and canceled by the
magistrate judge by whom it was issued. On or before the return day the person to whom a
summons was delivered for service shall make return thereof to the magistrate judge before
whom the summons is returnable. At the request of the attorney for the government made at any
time while the complaint is pending, a warrant returned unexecuted and not canceled or a
summons returned unserved or a duplicate thereof may be delivered by the magistrate judge to
the marshal or other authorized person for execution or service.
[Amended July 1, 1966; Oct. 1, 1972; July 31, 1975, P. L. 94-64, §§ 2, 3(l)-(3), 89 Stat. 370;
Dec. 1, 1975; Aug. 1, 1987; Dec. 1, 1993.]
BLM HANDBOOK
Rel. 3-336
09/17/2012
H-3809-1 – SURFACE MANAGEMENT HANDBOOK – (Public)
A-101
Appendix G – Visitor Pass
To be included on a Visitor Pass to be worn by the member of the public visiting the mining
operation with BLM staff:
VISITOR PASS. This Pass is subject to the conditions on the back. You must sign this Pass for
it to be valid. Your signature on the back of this Pass confirms that you have read and
understood the conditions on this Pass and that you agree to comply with those conditions.
On the reverse side of the Pass:
ACKNOWLEDGMENT OF COMPLIANCE WITH BLM
INSTRUCTIONS AND ASSUMED RISKS
Conditions:
The U.S. Bureau of Land Management (BLM) gave you this Pass upon your request to visit the
mining operations located on public lands. With this Pass, you may accompany employees of
the BLM on a visit to ___________________________________ mine(s). This Pass is valid for
your use only on _________________,20___, and may not be transferred to any other person.
You must promptly comply with all instructions given to you by BLM employees during the
course of your visit to the mining operation. If the BLM provides you with transportation to and
from the mining operation, you must also comply with any instructions given to you during the
course of that transportation. You must attend any safety training offered to you by the mining
operator or by the BLM before you enter the mining operation, and properly use all safety
equipment provided to you by the operator and/or by the BLM during your visit.
You understand and acknowledge that there are risks of physical injury, death, and property
damage inherent in entering any mining operation. Injuries, death, or damage can occur at any
time. ACCORDINGLY, YOU UNDERSTAND AND ACKNOWLEDGE THAT YOUR VISIT
TO THIS MINING OPERATION IS AT YOUR OWN RISK. IF YOU ARE INJURED,
KILLED, OR SUFFER ANY DAMAGE OR LOSS OF ANY KIND TO YOUR PERSON OR
PROPERTY, YOU AGREE THAT THE BLM SHALL NOT BE LIABLE UNDER ANY
CIRCUMSTANCES EVEN IF THE INJURY, DEATH, DAMAGE, OR LOSS ARE CAUSED
BY THE NEGLIGENCE OF THE BLM OR ANY OF ITS EMPLOYEES.
Your signature below means that you accept all of the terms above.
Signed:
Dated:
Print Name:______________________________
BLM HANDBOOK
Rel. 3-336
09/17/2012
| File Type | application/pdf |
| File Title | Surface Management |
| Author | cosborn3 |
| File Modified | 2012-10-05 |
| File Created | 2012-10-05 |