START-UP OF MINING OPERATIONS AS A VEHICLE FOR CLEANUP

• Jurisdiction: United States

Cleaning up the Public Domain: The Next Frontier
(Mar 1996)
CHAPTER 4A
START-UP OF MINING OPERATIONS AS A VEHICLE FOR CLEANUP
Dale R. Cockrell
Murphy, Robinson, Heckathorn & Phillips, P.C.
Kalispell, Montana

CREATIVE AVENUES AND OPPORTUNITIES TO EFFECTUATE CLEANUP OF PUBLIC LANDS

I. Introduction/Framework

A. Federal environmental laws have become extremely onerous — and often harsh — creatures as a result of the developing concern for the environment. A number of those laws have particular applications to mining sites.

B. One of the primary purposes of this panel presentation is to explore avenues in which mining operations can be used as a vehicle for clean-up. Most often, the clean-up relates to historic or inactive mining site disturbances. However, present operations can also require cleanup activities.

C. The act most commonly used to cleanup mining site disturbances is the Comprehensive Environmental Compensation, Response and Liability Act, 42 U.S.C. § 9601 et seq ("CERCLA"). However, the opportunity exists to cleanup or at least conduct many of the related activities under other environmental laws, e.g., the federal Clean Water Act, 33 U.S.C. § 1251 et seq., the federal Clean Air Act, 42 U.S.C. § 7401, et seq., or various state laws.

D. The goal of environmental statutes is the protection of human health and the environment. Most often, at least at historic mining disturbances, potential risks to human health or the environment are greatest from exposures or uses of water. That is not to say, however, that risks do not arise because of exposures of mining materials on the surface and wind blown particles from those products.

E. Over the past few years, the United States Environmental Protection Agency (EPA) has come under increasing pressure from Congress to more quickly effectuate clean-ups of sites posing potential risks to human health and the environment. This includes mining disturbances. As a result of that pressure, EPA has been focusing considerable effort into developing innovative methods, e.g., the Superfund Accelerated Clean-Up Model, to cleaning up these sites. Additionally, EPA is developing policy and guidance in which it allows states to oversee clean-up of the sites.

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II. Goals

A. The primary goal is to achieve several objectives in the quickest possible time at the least cost and still fulfill statutory and regulatory requirements. There are at least three objectives to be fulfilled: (1) the clean-up of the site; (2) the ability to use an active mining operation to effectuate the clean-up; and (3) to resolve liabilities which may have attached because of the mining site disturbance.

B. For private parties, liabilities attach based upon activities undertaken, or to be undertaken on unpatented mining claims, or owned, leased or controlled property. For governmental entities, e.g., the United States Forest Service, liabilities attach simply through ownership of the property containing historic mining disturbances.

C. A secondary goal is to obtain the requisite permits to conduct future mining operations or to expand existing mining operations.

D. Procedural Steps:

1. Determine existing or potential...