Streamlining Mine Permitting Under Secretarial Order 3355
A Summary of Implementing the S.O. 3355 Process for Permitting A New Mine in Nevada
By Ron Espell, Nevada Vanadium Vice President Environment and Sustainability
July 2020
Introduction
The National Environmental Policy Act (NEPA) was signed into law on January 1st, 1970. The expressed intent of the statute was to “encourage productive and enjoyable harmony between man and his environment” and to provide a framework to inform federal officials and the public of the environmental impacts of federal actions. Since 1970, the procedural requirements of NEPA have grown exponentially to the point where even “expeditious” environmental reviews can take more than five years to complete and contain more than 2,000 pages of encyclopedic documentation rather than focused environmental analysis, which was never the intent of the statute. This distortion of the NEPA process has also led to long and expensive delays for projects across all industrial sectors, including mining project proponents seeking federal authorizations.
To return to the intent of NEPA, and to provide a fair and predictable framework for applicants seeking federal permits, the Department of the Interior (DOI) issued Secretarial Order (S.O.) 3355 in August of 2017. S.O. 3355 directed DOI bureaus and agencies to streamline federal permitting on public lands by reforming the NEPA process. Among other directives such as reporting progress towards implementation, the S.O. established timeframes and page limits for environmental impact statements (EIS). Subsequently, the Deputy Secretary memoranda dated April 27, 2018 provided step down guidance for EIS processing and completion that required DOI agencies to publish a Record of Decision within 1 year of the project’s NOI and for the Final EIS to be completed in 150 pages or less.
Implementation
Prior to the S.O., the Nevada Bureau of Land Management (BLM) had identified many of the consistent causes of delayed NEPA timelines on mining projects. One prominent reason for delays in completing the NEPA analysis was BLM’s tendency to formally begin the NEPA process upon receiving the Plan of Operations (PoO) absent the required baselines studies, surveys, and clearances needed for the environmental analysis. This lack of pre-planning prior to the start of NEPA almost always led to issues being identified during the environmental analysis that required significant changes to the project to avoid impacts that could potentially violate BLMs statutory mandate to prevent impacts to federal lands that would cause “unnecessary or undue degradation”. If baseline studies did not cover new areas affected by changes to the PoO, additional baseline work would be required to conduct additional impact analyses that would effectively restart the environmental review process. This would lead to a cycle of restarts each time a needed project change was identified. In 2011, an Instructional Memorandum was issued by the Nevada State Office of the BLM, IM No. 2011-004, Guidance for Permitting 3809 Plans of Operation, that emphasized the need for preplanning and instructed district offices to refrain from beginning the NEPA process or publishing a Notice of Intent (NOI) in the federal register for EISs until the BLM has received and accepted all required baseline information from the proponent. The BLM Washington Office has adopted this policy through the issuance of Washington Office IM 2017-103.
S.O. 3355 builds on this foundation of effective pre-planning to achieve the timelines required the S.O. Pre-planning starts with coordination between the project proponent, the BLM, and other cooperating or participating state and federal agencies to present the conceptual project description with all existing and available project information (location maps and aerial photography, regional geology, hydrology, surface water features, etc.) to determine baseline data collection needs. Any existing or collected baseline data will then be used to identify potential conflicts with the environmental resources studied and will help focus the conceptual project description into the development of a full PoO that is integrated with the baseline data. It is therefore essential that baseline data collection be completed prior to developing the PoO so potential environmental impacts can be avoided in the project design or minimized by engineering controls being designed into the facility.
Further, the development of other state and federal permit applications and associated engineering design reports should be conducted concurrent with the development of the PoO. Effective coordination and review of the project with the other agencies will allow all aspects of the project to be thoroughly reviewed during the pre-planning period so potential changes to the project can be identified and made prior to starting the NEPA review, thus avoiding the cycle of changes that delay the NEPA process.
Following acceptance of the PoO and the baseline studies by the BLM, the collected information is compiled into a series of pre-planning reports that will present a detailed description of the Proposed Action and preliminary alternatives including any maps, diagrams or supporting information, and a detailed description of the affected environment, and the range of potential impacts to each resource present and affected. These reports will also include any applicant committed measures intended to avoid or minimize adverse environmental impacts.
This package of information then serves as the foundation for the independent third party NEPA analysis that starts with the publication of the BLM Notice of Intent to conduct an EIS for the project. The public scoping process is then initiated by the BLM following the publication of the NOI. Pre-planning documents are made available, upon request, as a part of the public EIS process through which the BLM seeks input from other agencies, organizations, and the public on potentially affected resources, environmental issues to be considered, and the agency’s planned approach to analysis. Between the high level of pre-planning with other agencies and key stakeholders and the public scoping process, the potential for unanticipated environmental impacts identified during the NEPA analysis should be significantly reduced and delays in the permitting timelines avoided.
Gibellini Project Under S.O. 3355
The Gibellini Vanadium Project (Project) is one of the first mining projects to be fully developed under S.O. 3355. Nevada Vanadium (NVV) has worked closely with the Battle Mountain District office of the BLM to use the Project to develop a model for implementation of the S.O. NVV developed Enhanced Baseline Reports that identified potential environmental impacts to each environmental resource in the initial stages of project planning. NVV and the BLM reviewed every aspect of the conceptual project plan to identify options that could be implemented to avoid or minimize those impacts. The lowest impact options were then built into the PoO and a series of Applicant Committed Environmental Protection Measures were presented as operational controls that will serve as enforcement mechanisms by the BLM to ensure NVV’s commitments are implemented during project construction and operations. The EIS contractor was selected early in the pre-planning process and all the pre-planning reports were prepared by the contractor before the NOI was published in the Federal Register to ensure the documents are available during the EIS Public Scoping period. Project stakeholders were identified early and coordination with key stakeholders was conducted as part of the project planning process from early in the baseline data collection phase.
The Project’s NEPA process formally began on July 14, 2020 as the NOI was published in the Federal Register. A project schedule has been developed by the BLM that completes the NEPA review within 12 months of the NOI publication date. NVV looks forward to continuing to use the Project as a model for implementing the S.O. 3355 process and the proposed Council on Environmental Quality (CEQ) updates to several key provisions in its NEPA implementation regulations once they go into effect.
Ron Espell
respell@nevadavanadium.com
www.nevadavanadium.com
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