CHAPTER 15 GROUNDWATER ISSUES AFFECTING THE MINING AND MILLING INDUSTRIES
| Jurisdiction | United States |
(May 1991)
GROUNDWATER ISSUES AFFECTING THE MINING AND MILLING INDUSTRIES
Holme Roberts & Owen
Denver, Colorado
I. INTRODUCTION
This paper focuses on the mining and milling industries. For this particular Institute, the author has purposefully avoided a comprehensive treatment of every facet of the various regulatory schemes. That type of overview is provided by other authors at this Special Institute and has been dealt with in numerous other portions of the literature. The author has tried to provide a roadmap focusing primarily on the groundwater and mining/milling aspects of each of the regulatory schemes. The paper is designed to help the reader gain access to information. In that sense, the paper is not designed to be a one-stop shopping service which raises and answers all questions concerning groundwater and mining/milling issues.
The maturation of the environmental regulatory schemes which we have witnessed in the last twenty years has substantially blurred, and in some cases eliminated, the regulatory, jurisdictional lines among activities affecting private lands, federal lands, or state, county and municipal lands. Thus, one witnesses very little variation among the states concerning the regulation of, for example, air resources, hazardous wastes and surface water resources.
Groundwater, on the other hand, is another story. Because there is no comprehensive groundwater regulatory program emanating from Washington, D.C.,2 the variations among
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the states concerning groundwater programs are dramatic. As interesting and informative as it would have been, the author has not undertaken the daunting task of comparing all of the groundwater regulatory programs in each of the fifty states or, for that matter, each of the Rocky Mountain states. The General Accounting office did that as recently as 1988.3 Rather, the primary focus of this paper is on federal law encompassing the Comprehensive Environmental Response, Compensation and Liability Act; the Resource Conservation and Recovery Act; the Clean Water Act; the Safe Drinking Water Act; the Surface Mining Control and Reclamation Act; the Uranium Mill Tailings Radiation Control Act; and certain provisions of the Forest Service and Bureau of Land Management surface use regulations. The paper then reviews legislation currently in the United States Congress which would significantly and dramatically amend the 1872 General Mining Laws. Because some reference to state groundwater regulatory programs is necessary to present a complete picture, the author has also prepared a brief summary of the groundwater
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regulatory programs in New Mexico, Arizona, Wyoming and Colorado.
II. THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980
The Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA")4 does not set specific compliance standards for or directly regulate ongoing mining activities that could affect groundwater, except to the extent those activities may be part of a remedy for the release or threatened release of hazardous substances, pollutants or contaminants. In a cleanup context, CERCLA adds dramatically to EPA's regulatory arsenal concerning groundwater contamination.
The release (or substantial threat of a release) of a hazardous substance, pollutant or contaminant is the trigger for CERCLA jurisdiction. Depending on the substance involved, it is theoretically possible for the release of one molecule of a hazardous substance to start the CERCLA remedial engines. The term "hazardous substance" is defined in § 101(14) of CERCLA and incorporates a lengthy list of constituents referenced in other federal statutes.5 The definition of hazardous substance includes a specific reference to listed and characteristic hazardous wastes as defined by the Resource Conservation and Recovery Act (RCRA); but the definition also specifically excludes any RCRA waste the regulation of which "has been suspended by Act of Congress."6 The mining industry
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had long hoped that the so-called Bevill Amendment7 contained in RCRA would provide a substantial exclusion from the definition of hazardous substances under CERCLA. Those hopes have consistently been thwarted by the case law. The courts have held that mining wastes are hazardous substances pursuant to CERCLA if the constituent comes within the purview of any of the other subsections of the hazardous substance definition.8
Not all materials will be deemed hazardous substances under the law, however. The Federal District Court for the District of Utah, for example, held in United States v. Sharon Steele Corp., 681 F. Supp. 1492 (D. Utah 1989), that the sale of raw ore did not subject the seller of the material to CERCLA liability. The court stated that the raw ore was a primary product and not a waste or hazardous substance under CERCLA.
The EPA itself has consistently interpreted CERCLA to encompass mining waste. In the 1983 EPA amendments to the National Oil and Hazardous Substance Contingency Plan, the agency stated that it "believes that mining wastes can be considered hazardous substances under CERCLA if it meets any of the other statutory criteria."9 The preamble to the March 8, 1990 revision to the National Contingency Plan retains this administrative interpretation.10
CERCLA also imposes cleanup liability for damages to natural resources caused by the release of hazardous substances. These natural resources provisions of the law were recently interpreted by the Ninth Circuit Court of Appeals in State of Idaho v. Hanna Min. Co., 882 F.2d 392 (9th Cir. 1989). The State of Idaho brought a CERCLA action against the owners of a copper and cobalt mine for contamination that allegedly was caused by historical mining activities. The State sought recovery for natural resources damages pursuant to CERCLA. One of the central issues in the
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case was whether or not the so-called environmental impact statement defense shielded the mining company from liability. Section 107(f) of CERCLA shields an entity from natural resources damage liability
where the parties sought to be charged have demonstrated that the damages to natural resources complained of were specifically identified as an irreversible and irretrievable commitment of natural resources in an environmental impact statement, or other comparable environmental analysis, and the decision to grant a permanent license authorizes such commitment of natural resources, and the facility or project was otherwise operated within the terms of the permanent license....11
The defendant mining company raised the exclusion provided by Section 107(f), but the court held that liability arising from past mining activities is not automatically extinguished by the authorization in an environmental impact statement for a new project. The court explained that, pursuant to Section 107(f), liability is excused for damages arising from a newly permitted project and not from past activities. The court further opined that the EIS process itself is not a means for absolving an entity from liability and held that the mining company was liable under Section 107 of the law.12
The courts have also answered the question of whether mining wastes come within the CERCLA definition of "pollutants or contaminants." In Eagle-Picher Industries, Inc. v. EPA, 759 F.2d 905 (D.C. Cir. 1985), 759 F.2d 922 (D.C. Cir. 1985), the court was presented with the question of whether EPA could properly classify Eagle-Picher's mining waste and fly ash as pollutants or contaminants. These terms are broadly defined in the law.13 Section 104(a)(1) of CERCLA authorizes the EPA to respond to a release or substantial threat of a release of a pollutant or contaminant that may present "an imminent and substantial danger to the public health or welfare."14
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The court concluded that,
a substance must be explicitly excluded from § 104(a)(2) in order to be exempted from the definition of 'pollutant or contaminant.' Inasmuch as no such exemption for mining waste is set forth, mining waste can, in our view, indeed constitute 'pollutants or contaminants' and thus trigger potential inclusion on the NPL.15
The court also rejected the mining company's argument that the EPA had to first demonstrate that the site could present "an imminent and substantial danger" before placing the facility on the NPL. The court found that, although EPA's authority to respond to releases of pollutants or contaminants includes a requirement that the substance may present an imminent and substantial danger, the element of "imminent and substantial danger" is not requisite to the threshold agency action of including a particular facility on the NPL.16
This particular portion of the paper would be incomplete without a discussion of the Idarado cases. In December 1983 the State of Colorado initiated several lawsuits in federal court asserting claims under CERCLA. Only one of the seven cases initiated in December 1983 went to trial. The trial was held before Judge Jim R. Carrigan who rendered his decision on February 22, 1989 in State of Colorado v. Idarado Mining Company, 707 F. Supp. 1227 (D. Colo. 1989).
Through a series of amended complaints, the State had sued to impose liability against the defendants for the cleanup of hazardous waste, for the recovery of state response costs and for natural resource damages which allegedly occurred at and near mine and mill facilities located between Ouray and Telluride, Colorado. Defendants in the case were Idarado Mining Company, Newmont Mining Corporation and Newmont Services Limited.
Judge Carrigan's opinion addresses a wealth of legal issues under CERCLA;17 but the case is primarily known
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throughout the legal community for the court's extensive analysis of the competing remedial plans and the ultimate...
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