CHAPTER 9 TRASH OR TREASURE? THE INTERSECTION OF THE NATIONAL HISTORIC PRESERVATION ACT AND MINE CLOSURE AND RECLAMATION ACTIVITIES

• Jurisdiction: United States

Mine Closure, Financial Assurance, and Final Reclamation
(Nov 2009)
CHAPTER 9
TRASH OR TREASURE? THE INTERSECTION OF THE NATIONAL HISTORIC PRESERVATION ACT AND MINE CLOSURE AND RECLAMATION ACTIVITIES
Rebecca L. Almon
Ireland Stapleton Pryor & Pascoe, PC
Denver, Colorado

Rebecca L. Almon is head of Ireland Stapleton's Environmental, Energy & Natural Resources Group. Ms. Almon represents clients in all aspects of environmental compliance; federal, state and local permitting; water quality protection and regulation; groundwater quality protection; wetlands and riparian protection and permitting; and stormwater and drainage issues. She has extensive experience representing clients with remediation and mitigation pursuant to CERCLA and state voluntary clean-up programs, as well as transportation, storage, and disposal issues relating to RCRA. Ms. Almon has negotiated application and implementation of the Endangered Species Act and the National Historic Preservation Act, and has negotiated clients' obligations pursuant to NEPA and the Clean Water Act, including EIS preparation, development of Section 404 permits, and water storage alternatives analyses. As an Assistant Attorney General, Ms. Almon enforced civil environmental laws and prosecuted violators, working closely with the Illinois EPA, Department of Public Health and Department of Natural Resources. Ms. Almon has worked to permit development plans in compliance with numerous federal and state environmental laws, as well as state water law and local land use requirements. She has advised clients regarding land use and annexation issues pursuant to FHWA, NEPA/EIS, and NHPA permit compliance. Ms. Almon has defended and litigated asbestos issues relating to Colorado Air Quality and Hazardous/Solid Waste Division Regulation 8. Ms. Almon represents and advises corporate environmental compliance, due diligence, and sustainability for manufacturing facilities and construction companies, and counsels clients on various matters relating to corporate mergers and acquisitions, real estate transactions, and indemnification agreements.

Trash or Treasure?

The Intersection of the National Historic Preservation Act and Mine Closure and Reclamation Activities

I. Introduction

While a large body of law directly governs the mining industry, ancillary local, state and federal laws and regulations are all of equal importance. One such law is the National Historic Preservation Act of 1966 ("NHPA" or "Act"), which represents an important but often overlooked consideration in mining operations.¹ The NHPA seeks to preserve historic cultural resources, making a wide range of properties, structures, and features inherent at mining sites eligible for federal protection during the mine closure process.

At first glance, a dilapidated headframe or soiled ex-miner quarters are but a minor hurdle in a closure plan. Failure to properly account for preservation of these structures, however, can violate the NHPA and cause significant delay and increased expense in the mine closure process. Consequently, an understanding of the practical application of the NHPA to the various mining components is critical when planning for mine closure to ensure regulatory compliance.

[Page 9-2]

This paper seeks to examine the policy and key regulators under the NHPA, and present the associated regulatory consultation process implemented by the statute. Finally, it will explore the types of mining structures typically eligible for the National Register and offer illustrative examples of the intersection between mine closure and historic preservation law.

II. The Underlying Policy and Regulatory Structure of the National Historic Preservation Act

A. NHPA Policy: Making the Federal Government an "Agent of Thoughtful Change"

Congress enacted the NHPA in 1966. This legislation renders federal agencies an active participant in the cultural resource preservation process and the facilitator of historic preservation discussions.² The Act requires federal agencies to evaluate the impact of federally funded or permitted projects on historic properties through a consultation process known as a "Section 106" review.³ A key goal of the NHPA is transforming the federal government from an "agent of indifference" to "a responsible steward for future generations," forcing consideration of impacts to historic resources.⁴ While the regulations vest significant responsibility in the designated agency official for coordinating and driving the consultation process, the underlying policy is to create a partnership between federal, state, and local government and other interested parties in addressing historic preservation issues.⁵ For example, the NHPA creates the Advisory Council on Historic Preservation ("ACHP") and requires each state to designate a State Historic Preservation Officer ("SHPO").⁶ Similarly, Tribal Historic Preservation Officers ("THPO") represent Native American tribes in the NHPA consultation process.⁷

The Act governs the scope of sites eligible for historic preservation. The Interior Secretary possesses wide discretion in listing sites or structures on the National Register of Historic Places ("National Register" or "Register"), which serves as a national database of historic sites to ensure appropriate protection of the nation's historic resources.⁸ This list may include "districts, sites, buildings, structures, and objects significant in American history, architecture, archaeology, engineering, and culture."⁹ Thus, the Register includes items such as undeveloped

[Page 9-3]

properties and diminutive artifacts; and ranges from inclusion of entire mining settlements to small headframes.¹⁰

Congress has established a clear commitment to historic preservation, amending the Act in 1976, for instance, to require federal agencies to engage in the Section 106 consultation process if property is simply deemed eligible for the National Register.¹¹ Similarly, in 1992 Congress added Section 110(k) to address "anticipatory demolition."¹² Anticipatory demolition occurs where the applicant for a federal permit, loan, license, or other federal assistance intentionally causes an adverse affect to a historic property or simply allows one to occur.¹³ In these instances, the agency "will not" grant the permit, license, or pertinent assistance unless the agency finds that the circumstances justified the act or neglect.¹⁴ As described further below, this policy toward preseravation is important for mining professionals to consider given the legislation's mandate for government involvement in such issues.

B. Understanding the Discourse: the NHPA Regulatory Players and Process

The Secretary of the Interior possesses the ultimate decision-making power regarding listing on the National Register.¹⁵ The ACHP, however, assists the Secretary with historic preservation matters and also advises federal, state, and local governments on such issues.¹⁶ The ACHP's duties are technically advisory; nevertheless, it wields substantial influence in the regulatory process.¹⁷

Like the National Environmental Policy Act ("NEPA"), the NHPA focuses upon process and meaningful consultation.¹⁸ The federal agency with jurisdiction over the project coordinates the Section 106 consultation process and must provide numerous "consulting

[Page 9-4]

parties" with the opportunity to engage in this process.¹⁹ Prospective consulting parties include the SHPO, the THPO, a Native Hawaiian representative, individuals or organizations with "a demonstrated interest in the undertaking," and the public.²⁰ Most importantly for purposes of mining operations, the regulations also grant consulting party status to applicants for federal permits, licenses, approvals, or other assistance.²¹ This regulation offers private industry participation in the consultation process; however, the process can be expensive.²² In the mine closure context, the mining company or other private interest closing the mine will likely bear the physical and fiscal responsibility of historic preservation.

III. Talking about History: the NHPA Trigger and the Section 106 Consultation Process

A Section 106 consultation addresses four distinct steps in the process: 1) an "undertaking" must be at issue; 2) the agency must identify any historic properties the undertaking may affect; 3) the agency must identify any adverse affects the undertaking may cause to these properties; and 4) if adverse effect, the consultation process ensues and seeks resolution of any identified adverse effects. The following analyzes the regulatory scheme in detail.

A. The Trigger: Federal Undertakings

As mentioned, any federal "undertaking" triggers the Section 106 process. An "undertaking" includes any "project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency ...."²³ Moreover, any project carried out by or for an agency, any project completed with federal financial assistance, or any project requiring a "Federal permit, license, or approval ..." will be considered an undertaking.²⁴ This last definition invokes Section 106 compliance into the planning processes of many private industries, including the mining industry. The mine closure and reclamation processes often require myriad permits from both state and federal agencies, for instance a permit obtained pursuant to the Surface Mining Control and Reclamation Act is considered an undertaking triggering Section 106 compliance.²⁵ Similarly, any remediation of a mining site pursuant to the Comprehensive Environmental Response, Compensation and Liability Act would trigger Section 106 compliance.

B. Is There History There?

[Page 9-5]

Once a federal undertaking is at issue, the agency official must establish the geographical extent of the undertaking and determine what historic properties may lie within. To accomplish this, the agency official must determine the area...