Chapter 6 "DREAMING ABOUT THE DAY WHEN YOU WAKE UP AND FIND THAT WHAT YOU'RE LOOKING FOR HAS BEEN HERE THE WHOLE TIME"

JurisdictionUnited States
Mining Law

Chapter 6

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"DREAMING ABOUT THE DAY WHEN YOU WAKE UP AND FIND THAT WHAT YOU'RE LOOKING FOR HAS BEEN HERE THE WHOLE TIME"*

L. Michael Bogert
General Counsel, Perpetua Resources Idaho, Inc.
Boise, ID

L. MICHAEL BOGERT is the General Counsel of Perpetua Resources Idaho, Inc. Previously, he was a managing shareholder of Parsons Behle & Latimer in its Boise and Washington, D.C. offices. He is former Counselor to Interior Secretary Dirk Kempthorne, a position he held for two and a half years following appointment by President George W. Bush in 2006. He is former Regional Administrator of the U.S. Environmental Protection Agency's Region 10 office in Seattle, having been appointed by President Bush in 2005. As Counselor to the Secretary, he advised on policy issues in the area of endangered species and served as lead policy negotiator on Tribal water rights settlements, including the landmark Klamath Basin Restoration Agreement. As Regional Administrator for EPA Region 10, he was responsible for leading EPA's partnerships with Washington, Oregon, Idaho, and Alaska, as well as the 271 federally recognized Tribes in the Region. Mr. Bogert served as principal legal advisor to Idaho Governor Dirk Kempthorne for five years (1999-2004) advising on the legal implications of state policy and legislation, with an emphasis on environmental issues and matters within the jurisdiction of the Idaho Department of Environmental Quality and Idaho Department of Water Resources. He worked as Counsel to the Office of Governor-Elect Arnold Schwarzenegger of California (2003) and as Chief Deputy Legal Affairs Secretary to Governor Pete Wilson of California (1995-1998).

I. Introduction

The Government Accountability Office ("GAO") recently estimated that there are at least 140,000 abandoned hardrock mine "features" (such as a tunnel) on lands under management of or control by the United States Department of Agriculture Forest Service ("USFS") and the Department of the Interior's Bureau of Land Management (BLM) and Park Service.1 The GAO

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also found that of this initial universe of "features," about 67,000, pose or may pose physical safety hazards such as danger of injury or death. About 22,500 of said "features" pose or may pose environmental hazards such as risks to human health or wildlife from long-term exposure to harmful substances. The USFS estimated in 2014 that for their lands alone, it could cost approximately $6 billion to address environmental hazards at 6,600 abandoned hardrock mine sites on Forest Service-managed land.2

The United States Environmental Protection Agency ("EPA") has recognized that attracting private capital to reuse and redevelop National Priority List ("NPL") facilities is worthy public policy, particularly as applied to formally designated Superfund sites.3 It is clear that attracting private investment to abandoned, contaminated sites can ease the burden on the public fisc. So, how can it be done, particularly for non-NPL sites where there are no responsible parties on the horizon and cleanup still needs to be done? Are there existing regulatory tools that have been underutilized to advance these legal and policy goals?

One potential template is a voluntary Administrative Settlement Agreement and Order on Consent ("ASAOC") executed on January 15, 2021 between the EPA, the U.S. Forest Service Region 4 ("USFS") (with concurrence by the U.S. Department of Justice) and Perpetua Resources4 under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.5 This Agreement ("Stibnite ASAOC") (attached, including Exhibit A, the Statement of Work for Time Critical Removal and Time Critical Removal Actions, "SOW") is a potential framework to attract private capital to address cleanup of abandoned mine sites, particularly when the site is truly orphaned, meaning when no parties (including, as here, the Federal Government) are left to assume responsibility for cleanup.

After a brief overview of CERCLA's essential functionality to address contaminated sites, this paper provides some background on the Stibnite Mining District, the Stibnite Gold Project, and the vision of the Stibnite ASAOC. It concludes with some observations on addressing abandoned yet still-minable sites through such a vehicle.

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II. A Very Brief Overview of CERCLA

One of the most powerful statutes in the stable of action-forcing environmental laws - CERCLA - has famously been described by one Federal court "as a hastily passed statute that is far from a paragon of legislative clarity."6 The purpose of CERCLA is to "encourage the 'expeditious and efficient cleanup of hazardous waste sites,' and to ensure that those responsible for hazardous waste contamination pay for the clean-up."7

How does CERCLA encourage cleanup of hazardous waste sites? Section 104(a)(1) of CERCLA authorizes the President "to act ... to protect the public health or welfare or the environment" with respect to contaminated conditions.8 The Government is authorized "to remove or arrange for removal of and to provide for remedial action relating to" a "release or substantial threat of release into the environment," of "hazardous substances" or "any pollutant or containment which may present an eminent and substantial endangerment."9

"A release" under CERCLA Section 101(22) includes, among others, "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment."10

What types of actions does CERCLA provide for "expeditious and efficient" cleanup? "Response" actions can take two forms: 1) a removal action; or 2) a remedial action. A "removal" action is generally considered a short-term interim response action taken to prevent eminent harm.11 As contrasted to removal actions, response actions designated "remedial" are generally considered long-term permanent solutions for contaminated sites. However, there is no

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bright-line distinction in terms of timing or even permanence between the definitions of removal and remedial actions.12 "Removal" actions under CERCLA Section 101(23) not only consider nuances of actions to address immediate threats posed by the release of hazardous substances, but also actions that may prove beneficial and have an indicia of a long-term remedy such as the removal and disposal of contaminated material.13

Who is responsible for cleaning up hazardous waste contamination? Under Section 107(a) of CERCLA, potentially responsible parties ("PRPs") may be liable for response costs for cleanup actions to protect the public health, welfare, or the environment. CERCLA targets four broad categories of PRPs which may be held jointly and severally liable for the cost of cleanup. CERCLA Section 107 PRPs are:

1) Current owners and operators of a facility;
2) Former owners or operators of a facility at the time the hazardous substances were released;
3) Arrangers who arranged for the disposal or treatment of the hazardous substances, and
4) Transporters of the hazardous substances.14

CERCLA Section 106(a) provides EPA authority to compel PRPs to respond to hazardous substance releases that may endanger public health and welfare for the environment. Often referred to as "abatement" authority, EPA may institute a civil action in district court or, alternatively, EPA may issue an administrative order requiring the responsible party to perform the response activity. Prior to the institution of a civil action or the issuance of an administrative order, under Section 106(a), EPA may assert its authority once it has been determined that: 1) there has been an actual or threatened "release" into the environment; 2) the release consists of a

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hazardous substance; 3) the release is from a "facility;" that 4) may present an eminent and substantial endangerment to the public health or welfare of the environment.15

How does CERCLA ensure that those responsible for hazardous waste contamination pay for the clean-up? Under CERCLA Section 107(a), PRPs may also be responsible for past and future costs incurred by EPA in cleaning up the Site, unless the PRP can demonstrate divisibility or assert one of the statutory defenses.16 Congress provided a CERCLA nesting place for the Government and affected parties to settle their legal differences over potential liability for cleanup. Under CERCLA Section 122, a number of provisions addressing settlement pathways under Sections 106 and 107 are established.17

In 1986, Congress amended CERCLA with the Superfund Amendment and Reauthorization Act ("SARA"), which, among others, clarified how parties could bring a cause of action against other private parties.18 These changes to the law allowed parties to recover from other PRPs some or all of the costs associated with cleaning-up a contaminated site.19

Finally, and important for present purposes, how does CERCLA encourage cleanup of contaminated sites where, for example, all the PRPs have been pursued and some but less than optimum cleanup has taken place? As CERCLA progressed, it became exceedingly difficult to

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attract investment in abandoned or partially cleaned up contaminated properties ("Brownfields") by interested third parties. In recognition of the legitimate concern by parties interested in acquiring an impacted property for reuse and redevelopment seeking to avoid the potential liabilities due to the presence of contamination to which they have not contributed, Congress amended CERCLA in 2002 in the Small Business Liability Relief and Brownfields Revitalization Act ("Brownfields Amendments")20 to provide important liability limitations for landowners that qualify as: (1) bona fide prospective purchasers, (2) contiguous property owners, or (3) innocent landowners.21

III. The Mining Legacy at the Stibnite Site

A. The War Effort

In the late 1930s, the United States was on the brink of the Second...

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