Chapter 12 Good Samaritan Laws and Public Land Cleanups

• Jurisdiction: United States

Chapter 12 Good Samaritan Laws and Public Land Cleanups
Tawny Bridgeford National Mining Association Washington, D.C.
Benjamin Machlis Kayla Weiser-Burton Dorsey & Whitney LLP Salt Lake City, UT

TAWNY BRIDGEFORD is Deputy General Counsel & Vice President, Regulatory Affairs for the National Mining Association in Washington DC.

BENJAMIN MACHLIS is a Partner with Dorsey & Whitney LLP in Salt Lake City, UT. Ben has extensive experience in matters involving state and federal regulations regarding solid and hazardous waste (RCRA), hazardous materials transportation (HMR), toxic chemicals (TSCA), water quality (CWA), community right-to-know laws (EPCRA) and remediation of contaminated property (CERCLA). Ben has been recognized by Mountain States Super Lawyers® as a "Rising Star" in Environmental practice in 2014 through 2019. He has served as Young Professionals Committee Chairman (2016-2017) of the Rocky Mountain Mineral Law Foundation, as a member of the Board of Directors of Utah Open Lands and as an adjunct faculty member at the S.J. Quinney College of Law.

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I. Introduction

The General Mining Law of 1872 permits individuals to stake claims and obtain exclusive rights to the minerals underlying lands belonging to the United States. Until reclamation requirements were imposed in the 1970s, an operator could extract the mineral resources from their claim and abandon the mine without first performing any reclamation work. Many of those operators are now deceased or the operating company dissolved, leaving no private entity responsible for cleanup. There is no comprehensive catalog that identifies all abandoned mine sites.¹

Some abandoned mines may present risks to human health and the environment from soil, ground water, or surface water contamination. Independent third parties who have no association with the original contamination and risks, referred to herein as Good Samaritans, have expressed interest in conducting cleanup activities at these sites. However, certain environmental statutes such as the Clean Water Act and the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") contain strict liability provisions that are a deterrent for these Good Samaritans. After a brief discussion of the concerns associated with abandoned mine sites and the statutory liability provisions impeding actions by third parties, this paper will examine prior administrative and legislative attempts at solving these liability concerns, and then will discuss more recent legislative action, specifically highlighting the bipartisan Good Samaritan Remediation of Abandoned Hardrock Mines Act of 2022.

II. Background

A. Scope of the Problem

Since the mid-1800s, mining has been an integral part of the national economy. In 1872, Congress enacted the General Mining Law, authorizing and governing the prospecting and mining of hardrock minerals such as gold, silver, and copper on federal lands.² The Mining Law opened up over 240 million acres of public land to potential mining claims, facilitating the westward expansion and development of the United States.³ The Mining Law is predicated on self-initiation, providing that if a site contains a deposit that can be profitably marketed, the claimant has the right to mine it, regardless of any alternative use or non-use value of that land.⁴

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For more than 100 years, mining activities were conducted under the Mining Law without the benefit of modern environmental laws or requirements to properly operate and close mines. Today, mining operations are subject to exhaustive federal and state environmental, ecological, and reclamation laws and regulations to ensure that operations minimize impacts to and protect public health and safety, the environment, and wildlife.⁵ However, older abandoned mines that predate these requirements still present an ongoing environmental concern. Given the long history of mining in the United States, the exact number of such abandoned hardrock mines is unknown.⁶

Abandoned mines pose a number of physical hazards, including threats from unmarked mine shafts, unstable tunnels, and concealing deadly concentrations of gases.⁷ Abandoned mines also pose environmental threats, most commonly acid mine drainage. Acid mine drainage forms when sulfide minerals, oxygen, and water combine, producing a mixture of acid and dissolved minerals.⁸ While acid mine drainage occurs naturally when water comes into contact with mineral-heavy areas, mining can increase the acidity by increasing the surface area of sulfide minerals exposed to water.⁹ Hardrock mines are especially susceptible to acid mine drainage because pyrite is an iron sulfide present in most waste rock.¹⁰ An Economic Report of the President from 1997 stated that historic hardrock mining had polluted nearly 3,350 miles of rivers and streams in the western states with toxins such as mercury, asbestos, and cyanide.¹¹ The elevated metal concentrations and low pH of the drainage is harmful to fish and other aquatic life and can adversely affect human populations by contaminating drinking water sources and corroding infrastructure.¹²

B. Liability Concerns

While the hazards of abandoned mines are well documented, parties who wish to initiate cleanup efforts are frustrated by two main obstacles - cost and liability. The exact cost to clean up all abandoned hardrock sites is not known, largely in part due to the undetermined extent of remediation and reclamation required for each site.¹³ However, some estimates put the cost as high as $72 billion.¹⁴ Once initial cleanup efforts are complete, there may also be perpetual operating costs where ongoing treatment and monitoring is required.¹⁵

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Aside from the potential costs associated with cleaning up an abandoned mine sites, both CERCLA and the Clean Water Act contain liability provisions that deter parties from taking action. CERCLA and the Clean Water Act place the burden of cleanup on the owners and operators of the contaminated site. Even where the parties responsible for the onsite risks and contamination are no longer in existence or do not have sufficient resources to address remediation efforts, these liability provisions still apply to any would-be Good Samaritan seeking to clean up the site.

CERCLA is the primary statute governing the cleanup of contaminated sites. Under CERCLA, if there is a release or threatened release of hazardous substances, a party is liable for cleanup costs and natural resources damages if that party qualifies as any one of four categories of potentially responsible parties ("PRPs").¹⁶ A Good Samaritan who attempts to clean up an orphan mine site may qualify under one of two categories of CERCLA PRPs. First, they may be deemed an "operator" of a facility where a release of hazardous material occurs simply by taking any action at the site.¹⁷ Second, a Good Samaritan may be deemed an "arranger" if they arrange for the transport of hazardous materials from the mine site to another location.¹⁸

Liability for PRPs under CERCLA is strict, retroactive, and joint and several, meaning that a Good Samaritan may be responsible for 100 percent of the liability at a site, even if they did not cause or contribute to the underlying release or threat of release.¹⁹ CERCLA also requires cleanups to meet all applicable or "relevant and appropriate" standards under federal and state law, effectively prohibiting partial cleanups.²⁰ Thus, if a Good Samaritan operated or otherwise controlled activities at an abandoned mine site—for example, by removing historic mine tailings or waste rock that is leaching contaminants into the watershed to another location and capping them to prevent further leaching—they could make themselves liable for all cleanup costs to ensure the site meets requisite environmental standards.

In addition to CERCLA, many abandoned mine sites are also subject to the Clean Water Act. The Clean Water Act prohibits the discharge from a point source into waters of the United States without, or in violation of, a National Pollutant Discharge Elimination System ("NPDES") permit.²¹ Courts have held that discharges from abandoned mines are a point source requiring an NPDES permit.²² NPDES permits require the holder to comply with effluent limitations and water quality standards for the waters to which the point source discharges to, many of which already violate those standards.²³ Noncompliance with permit conditions may result in civil or criminal penalties.²⁴ Additionally, the CWA includes a citizen suit provision that allows any private citizen or organization to bring suit to enforce these requirements where they believe the government is not adequately enforcing them.²⁵

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Compliance with the Clean Water Act for Good Samaritans who wish to clean up an abandoned mine site poses two distinct issues. First, because mine discharge will often be an ongoing problem that requires perpetual water treatment, the costs of compliance can be enormous.²⁶ Second, for many projects it would be impossible to obtain a permit, as water treatment systems could not treat mine water to a level that meets the applicable standards of the receiving waters. These concerns pose a major obstacle for Good Samaritans seeking to conduct remedial action at an abandoned mine site with any water discharge.

Indeed, there is a history of Good Samaritans being held liable under the Clean Water Act for activities at abandoned mine sites. In the 1970s, the East Bay Municipal Utility District sought to mitigate pollution leaking from the abandoned Penn Mine by building a series of dams and containment ponds, a cheaper alternative to active water treatment.²⁷ From time to time, the toxic waters passed over the spillway or through the dam's discharge valve into the Mokelumne River and Camanche Reservoir.²⁸ A local environmental group sued the utility, claiming the discharges violated the Clean Water Act.²⁹ The Ninth Circuit ruled against the utility, holding...