Rachel JacobsonDeputy Solicitor

Department of the InteriorWashington, D.C.

Uranium Mining:Department of the Interior

DOI Regulatory Agency:Bureau of Land Management

BLM regulates mining on the public lands.

Authorities:Statutes

Mining Law of 1872 (30 U.S.C. §§ 21-42)

Uranium development on public lands (including federal minerals in split estate lands) occurs mostly on mining claims under the Mining Law of 1872.

Hardrock Mineral Leasing • On acquired lands, uranium is leased under

section 402 of Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1099, 5 U.S.C. Appendix.

Authorities:Regulations

Mining Claims: 43 CFR Part 3800

Mining claimants submit a plan of operations under 43 CFR § 3809.11 or a notice of exploration activities that would cause surface disturbance of five acres or less under 43 CFR § 3809.21.

Hardrock Leases: 43 CFR Part 3500

Lease applicants submit lease applications under 43 CFR subpart 3507 (preference right leases) or 43 CFR subpart 3508 (competitive leases). Lessees are also governed by BLM’s operations regulations at 43 CFR subpart 3590.

National Environmental Policy

How is uranium mined?Underground miningOpen pit miningIn-situ leaching (ISL)

Also known as in-situ recovery, or ISRISL involves injecting chemical solutions (often bicarbonate of soda) into underground deposits to dissolve (leach) uranium from the ore

What does NRC regulate?The Nuclear Regulatory Commission regulates commercial nuclear energy, on both public and private lands, to protect the public from radiological hazards.

NRC regulations are located at 10 CFR Part 1 et seq.

NRC issues licenses for uranium “milling.”NRC defines “milling” as any operation in which the ore is “processed and chemically altered”

NRC regulates ISL uranium extraction, which it classifies as a milling operation.

NRC does not regulate underground or open pit mining of uranium ore because those conventional mining methods do not process or chemically alter the ore.

Where BLM and NRC Authorities Intersect

An operator wishing to conduct ISL operations on public lands must obtain BOTH:

BLM authorization An approved mining plan of operations OR a lease.

NRC licenseA milling facility license to use or possess the processed or chemically-altered ore.

How can BLM and NRC work together?

BLM and NRC are drafting a Memorandum of Understanding to:

Improve inter-agency communication Provide a framework for the exchange of dataProvide advance notice of expected actionsShare early drafts of NEPA documentsPrepare only one NEPA document , when possible

Challenges For BLM and NRCDifferent timelines

Submission of a plan of operations or lease application to BLM may not occur in the same timeframe as the proponent’s submission to NRC of a license application.

Different purpose and need statements and alternativesAgency resourcesResource areas reviewedDifferent agency rolesDifferent procedures for completing documents

Expected OutcomeBLM and NRC expect to sign an MOU in the near futureGreater agency cooperation is expected to improve efficiencies in the NEPA process, saving time and money for both the government and the operators

Controversy and Litigation ---Uranium Mining Near Grand Canyon

National Park

BackgroundUranium is a locatable hardrock mineral under the Mining Law of 1872 (30 U.S.C. §§ 21-42).If federal lands (usually BLM public lands or National Forest System Lands) are open to the Mining Law, claimants can locate claims without authorization or permission from BLM or the Forest Service.BLM regulates exploration and mining on such claims through its surface management regulations (43 C.F.R. Part 3809). Forest Service has similar regulatory authority.

New Claims in 5 Western StatesIncrease In New Claims

FY 04-07

Total New Claims

FY 04-07Arizona 161% 33,190

Colorado

1173% 11,766

New Mexico

785% 9,883

Utah 592% 29,572Wyomin 762% 35,254

Closing Federal Lands to the Mining Law

The Secretary of the Interior has the authority to close federal lands to the Mining Law by “withdrawing” the lands under section 204 of the Federal Land Policy and Management Act (FLPMA). 43 U.S.C. § 1714.Withdrawals by the Secretary are subject to valid existing rights.Congress can also withdraw lands

Mining Claims near the Grand Canyon

There was a significant increase in the number of mining claims staked on BLM and FS lands surrounding the Grand Canyon, believed due to an increase in uranium prices beginning in 2004.Because of a past history of environmental issues associated with uranium mining in the area, in early 2008 this increase got the attention of the state of Arizona and, ultimately, members of Congress. At this time, there are believed to be approximately 10,000 mining claims located on approximately one million acres of lands surrounding the Grand Canyon.

Map of Grand Canyon and Surrounding Lands

Reaction in CongressOn March 11, 2008, Rep. Grijalva introduced legislation to permanently withdraw approximately 1 million acres of federal lands from the Mining Law. This legislation did not pass and is now pending in the current Congress.On June 26, 2008, the Department received a June 25, 2008 communication from the House Natural Resources Committee Chairman, which enclosed a resolution of that Committee directing the Secretary to make an emergency withdrawal of the area.

The Committee-directed Emergency Withdrawal

The communication from the Committee Chairman sought to invoke a provision in FLPMA § 204(e) and BLM’s implementing regulation (former 43 C.F.R. § 2310.5), which both provided that if the appropriate committee notifies the Secretary of an emergency, he “shall” make an emergency withdrawal.

The Department’s ReactionPrior administration did not make the withdrawal. Principal reason: the resolution did not constitute proper “notification” because it was passed without a majority quorum present.

Leads to:Lawsuit filed in September 2008 by Center for Biological Diversity, Grand Canyon Trust, and Sierra Club seeking to force the Secretary to make the withdrawal and also challenging BLM’s alleged authorization of certain exploration activities in the area (CBD v. Salazar, No. 08-8117, D. Ariz.).On December 5, 2008, BLM amended its regulation at 43 C.F.R. § 2310.5 to remove the language in the regulation that provided that the Secretary “shall” make an emergency withdrawal upon notification by a Committee. FLPMA §204(e) itself remains unchanged.

A New LookSecretary Salazar decided to take a new look at the issue.On July 21, 2009, the Department published the Secretary’s proposal to conventionally withdraw the area at issue from location and entry under the Mining Law (74 Fed. Reg. 35887 (July 21, 2009)). The proposal resulted in a segregation of the lands from the Mining Law for up to two years while a long-term withdrawal is considered and studied. 43 U.S.C. §1714(b)(1); 43 C.F.R. § 2310.2(a).

Conventional Versus Emergency Withdrawal Processes

Unlike the emergency withdrawal process, the conventional withdrawal process chosen by the Secretary includes public input, meetings, and extensive studies and analyses.The conventional withdrawal process immediately segregates the lands while still allowing time for considered deliberation on what action to take. In contrast, emergency withdrawal is effective immediately.

So, What About the Lawsuit?At plaintiffs’ request, the Court has dismissed the legal claims directly related to the Department’s failure to perform the committee-directed emergency withdrawal.Additional legal claims related to specific exploratory operations in the area remain.

Next StepsThe Department will use the two-year segregation period to evaluate and study the proposed withdrawal. The Secretary will then decide whether and to what extent to withdraw the area.Any withdrawal (as is the segregation) will be subject to valid existing rights.Various studies and analyses generally include:

National Environmental Policy Act (NEPA) analysisCultural Resources ReportMineral Resource AnalysisEconomic Impact Analysis

(43 C.F.R. § 2310.3-2)

The End

Special thanks to DOI lawyers Karen Hawbecker, Barbara Fugate, and Aaron Moody who assisted with this presentation