CHAPTER 8 USE OF INSTITUTIONAL CONTROLS IN MINE CLOSURE

• Jurisdiction: United States

Mine Closure, Financial Assurance, and Final Reclamation
(Nov 2009)
CHAPTER 8
USE OF INSTITUTIONAL CONTROLS IN MINE CLOSURE
Hal J. Pos
Patricia J. Winmill
Elizabeth Schulte
Parsons, Behle & Latimer
Salt Lake City, Utah

Hal J. Pos is a shareholder in the Environmental, Energy and Natural Resources department where he concentrates on environmental and mining matters with particular emphasis on CERCLA liability and property acquisition transactions. His practice experience includes conducting environmental due diligence in connection with mineral and real estate acquisitions and financings and environmental liability reviews and audits for mining facilities, including gold and coal mines; development of mine and land closure programs with a particular view toward minimizing potential CERCLA liability; negotiating and drafting environmental indemnity agreements; representing potentially responsible parties under CERCLA in negotiations and litigation with other potentially responsible parties, state and federal agencies and insurance companies concerning site cleanups; advising clients on climate change and greenhouse gas emission issues; and representing parties in environmental civil and criminal enforcement matters. Hal has published and presented numerous papers before state bars and professional organizations on CERCLA topics. He currently serves as Vice President and is on the Board of Directors of Parsons Behle & Latimer. Hal formerly chaired the firm's hiring committee. He also is a former chairman of the Board of Litigation of Mountain States Legal Foundation and of the Environmental Committee of the Salt Lake Chamber of Commerce. He maintains Martindale- Hubble's highest rating, an A V, and is recognized in the environmental law section of Best Lawyers in America.

Patricia J. Winmill is a shareholder in the Environmental, Energy & Natural Resources Department of Parsons Behle & Latimer, a Salt Lake City based law firm, with offices in Reno and Las Vegas, Nevada. Pat's practice focuses on public land, mining, title and access issues. Pat has represented clients in the hardrock mining, coal, and oil and gas industries for over 25 years. Pat is a graduate of Idaho State University (B.A., with highest honors, 1976) and the University of Utah (J.D. 1980), where she was a member of the Utah Law Review and Order of the Coif. Before joining Parsons Behle & Latimer in 1981, Pat clerked for the Temporary Emergency Court of Appeals. She was the Mining Chair of the 53rd Annual Rocky Mountain Mineral Law Institute, and is a past chairman of the Mining Committee of the Energy and Natural Resources Section of the Utah State Bar. Pat is a past president and currently an emeritus member of the Alumni Board of Trustees of the S. J. Quinney University of Utah College of Law. In 2006, she was named the Alumna of the Year by her law school alma mater. Pat is a trustee at large of the Rocky Mountain Mineral Law Foundation, a past Contributing and Updating Author for the American Law of Mining II and the Federal Mining Reporter for Rocky Mountain's Mineral Law Newsletter. She has presented a number of papers at past Rocky Mountain annual and special institutes and MALRI seminars on the subjects of the Mining Law, mining claim regulations, environmental institutional controls, access issues, public lands, natural resource condemnation issues, title examination and title curative issues.

Elizabeth A. Schulte is a member of Parsons Behle & Latimer's Environmental, Energy and Natural Resources department and concentrates her practice on water law and environmental and natural resources litigation. She is currently serving as the chair for the Environmental Committee of the Utah State Bar's Energy, Natural Resources and Environmental Law Section. She graduated with a J.D. degree from the University of Utah, where she was a Dewsnup Fellow, received the Stegner Certificate in Environmental Law and was editor-in-chief of the Journal of Land Resources and Environmental Law. In 1997, she graduated with a master's degree in natural resources sociology from Utah State University and received an Environmental and Natural Resources Policy Certificate. She graduated from Hobart & William Smith Colleges with a bachelor's degree in sociology in 1990. Ms. Schulte's professional experience includes four years of management/director work at The Nature Conservancy of Utah. She also worked as an environmental consultant at BIO/WEST, Inc.

I. Introduction

Faced with increasing pressure to expedite the cleanup of contaminated sites and to return them to productive use, beginning in the mid-1990s, federal and state environmental agencies fundamentally changed their approach to cleanup of contaminated sites. Under the more traditional cleanup approach, environmental agencies required remedial actions that permanently treated or significantly reduced the presence of contaminants to allow unrestricted land use of the previously contaminated site.¹ This approach proved lengthy, costly and difficult to achieve. As an alternative to complete treatment or removal of contaminants, environmental agencies began to accept less stringent cleanups of contaminated properties, based on site-specific risk assessments, which took into account the probable future use of the site and measures that could be implemented to limit public exposure to the residual contamination.² Those measures include "engineered controls" and "institutional controls." Engineered controls are physical barriers, such as impermeable caps on mine waste rock disposal areas, that physically separate the public and environmental receptors from contact with contaminants. "Institutional controls" are legal or administrative controls that prevent public exposure to contaminants through limits on the public's use of a contaminated site. Incorporating engineered controls and institutional controls into a cleanup decision can significantly expedite cleanup times and reduce cleanup costs, yet serve to protect both the public health and the environment.

This paper initially examines the use and success of institutional controls in conducting these so-called "risk-based" cleanups. The paper then examines the different types of institutional controls, the concerns regarding the enforceability of negative easements and covenants that typically have been used as institutional controls and the legislative measures that have been implemented to address those enforceability issues. The paper next examines whether institutional controls should be used and, if so, how they can be used in mine closures and then considers drafting techniques to help avoid the risk of an institutional control failing. The paper

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finally examines how institutional controls have been used and how they have fared in mine closures.

II. What Are Institutional Controls and Are They Useful in Environmental Cleanups?

The United States Environmental Protection Agency (the "EPA") defines institutional controls as non-engineered measures such as legal or administrative controls that help to minimize the potential for public exposure to contamination or to enhance or protect the integrity of a remedy.³ Institutional controls work by limiting land use or by providing information that helps modify or guide human behavior at a site.⁴ Institutional controls can range from easements and covenants running with the land to zoning and groundwater restrictions.

Environmental cleanups conducted under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"),⁵ the Resource Conservation and Recovery Act ("RCRA"),⁶ and state Superfund statutes traditionally were conducted with treatment technologies that significantly reduced the volume, toxicity and mobility of hazardous substances in the soil and groundwater at a site.⁷ A site was considered "clean" when hazardous substances were removed to a level that posed no known risk to human health or the environment.⁸ Such a cleanup satisfied the expectation that once cleaned a site could be made available for unrestricted future land use whether it be residential, industrial, or recreational.⁹ This cleanup approach engendered much criticism as cleanups became protracted and expensive. Critics argued that this approach was wasteful and a misallocation of economic resources that resulted in significant expenditures of resources without much added protection of human health and the environment.¹⁰

Under the threat of decreasing federal funding and limited private resources for cleanups, a new paradigm of environmental cleanups emerged in the mid-1990s.¹¹ Under this new

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approach, cleanup objectives are achieved by a more practical approach that combines permanent remedies with mechanisms that limit exposure to the hazardous substances that remain at a site. This new risk-based approach is premised on the notion that by limiting exposure to hazardous substances through land use restrictions, the same amount of protection of human health and the environment can be achieved without undertaking the kind of costly and time consuming cleanups relied upon in the past.¹² Cleanups that rely, partially or wholly, on institutional controls by allowing, for example, contaminants to remain in deeper soils on the property or not requiring groundwater treatment, are often more cost effective and are completed much faster than the more comprehensive remedial actions under CERCLA. In other words, by tailoring cleanups to anticipated future land uses, the same protections can be achieved cheaper and faster. Under this new cleanup paradigm, institutional controls are the mechanisms used to ensure that, in future land uses, human exposure to hazardous substances left at a site is limited.¹³

Concurrent with the arrival of institutional controls and the desire to streamline the cleanup process, state voluntary cleanup programs began to emerge across the...