Federal Cercla Liability for Abandoned Mines

Publication year1994
23 Colo.Law. 371
Colorado Lawyer

1994, February, Pg. 371. Federal CERCLA Liability For Abandoned Mines


Vol. 23, No. 2, Pg. 371

Federal CERCLA Liability For Abandoned Mines

Colorado is the home of thousands of abandoned mines on federal lands. This article considers whether (1) the federal government may be liable under the Comprehensive Environmental Response, Compenstation, and Liability Act ("CERCLA") for abandoned mine sites on public lands, and (2) the defenses that might be raised by the United States when confronting either a CERCLA enforcement action brought against it by a state agency or a counterclaim or cost recovery action brought by a private operator. The article shows that the imposition of CERCLA liability on federal agencies for the remediation of wastes from abandoned mines will depend on the legal nature of the federal government's involvement with mining sites, both during the initial waste disposal activity and after private owner or operator abandonment of the site.

Background: Past and Present Federal Nexus

When mines were abandoned, most were left surrounded by tons of pulverized rock tailings laced with toxic materials. The water from natural precipitation mixes with those materials, forming acidic solutions that pollute watercourses downstream of the mine. The unsealed mine mouths also often discharge water contaminated with toxic heavy metals. The result is that abandoned mines are by far the single greatest source of toxic pollutants in Colorado's waters.

The problem of abandoned mines is not unique to Colorado. There are estimated to be at least 500,000 abandoned mines in the West, polluting some 10,000 miles of streams. The cost for stabilizing the toxic wastes from mining and ore processing across the West ranges from $20 billion to more than $70 billion.(fn1)

Mining wastes are considered "hazardous substances" under CERCLA, the powerful federal cleanup statute that has been interpreted to impose strict, joint and several liability on parties responsible for hazardous substances from waste sites.(fn2) If the private owner or operator of the abandoned mine on federal lands can be found, and if it is neither insolvent nor bankrupt, CERCLA response costs can be imposed directly on that private party. In the absence of such an owner or operator (a common occurrence), there may be only one remaining party who arguably has sufficient complicity to trigger CERCLA liability for the mine wastes---the federal government.

Most abandoned mines are on public lands.(fn3) A majority of these are unpatented claims, which means that during their operation by private parties, the federal government owned the lands on which the mines were developed and waste disposal activity occurred. Despite federal ownership of the land, an entity holding an unpatented mining claim has a sufficient legal interest or involvement to make it an owner and an operator.(fn4) On abandonment by the private owner/operator, federal mining law provides that the United States continues its ownership of the land and becomes owner of the mine site.(fn5) In addition, the United States may have regulated environmental and land use aspects of unpatented mines while they were active.

This past and present federal nexus to abandoned mines in the West suggests that if private operators are unavailable, the federal government may be subject to CERCLA strict liability for the cleanup of mine sites. Even if a former private operator of the abandoned mine can be located (and is solvent), the otherwise liable operator might be able to insist that the federal government share the CERCLA burden under a scheme of joint and several liability.(fn6)

If the federal government is indeed liable under CERCLA for abandoned mine sites on public lands in Colorado and in the West, the legal and financial implications will be staggering.

Liability Under CERCLA

The primary purpose of CERCLA is to remedy the problem of hazardous substances


which have been disposed at abandoned sites. To accomplish this goal, CERCLA seeks to identify those who somehow caused the release of the hazardous substance and to require them to pay the cleanup costs.(fn7) Such "potentially responsible parties" ("PRPs") may become jointly and severally liable for the cost of eliminating the hazardous condition.

If the federal government is a PRP for purposes of CERCLA liability for abandoned mines on public lands, two consequences follow. First, in the absence of any locatable private PRPs (former mining operators), some relevant state agency may proceed directly against the federal government to require remediations (if there is a state statute permitting injunctive relief against...

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