VOLUNTARY CLEANUPS AND RELATED PROGRAMS -- CAN THEY WORK ON PUBLIC LANDS?

• Jurisdiction: United States

Cleaning up the Public Domain: The Next Frontier
(Mar 1996)
CHAPTER 4C
VOLUNTARY CLEANUPS AND RELATED PROGRAMS -- CAN THEY WORK ON PUBLIC LANDS?
Kenneth P. Pitt
Office of General Counsel U.S. Department of Agriculture
Denver, Colorado

CREATIVE AVENUES AND OPPORTUNITIES TO EFFECTUATE CLEANUP OF PUBLIC LAND SITES

March 20, 1996

Kenneth P. Pitt

General Attorney

USDA-Office of General Counsel

Mountain Regional Office

Voluntary Cleanups And Related Programs-Can They Work On Public Lands

Start Up of Mining Operations As A Vehicle For Cleanup

I. Background

A. If a voluntary cleanup is thought of as totally voluntary, the USDA-Forest Service (FS) does not have the authority to allow such unsupervised cleanups to occur.

Why? Public lands held in trust by the United States for the public.

Except for incidental individual use (hunting camping etc), lands under Forest Service jurisdiction (National Forest System or NFS lands) cannot be utilized without appropriate authorization.

B. If voluntary cleanups are thought of as entities willing to clean up NFS lands voluntarily, but under FS oversight, this can be done.

C. Forest Service will exercise its discretionary authority to make the decision as to what vehicle it will use to get lands cleaned up.

D. Forest Service will consult with USDA-Office of General Counsel prior to making decision.

[Page 4C-2]

II. Legal But Not Necessarily Viable, Options)

A. Special Use Permits 36 C.F.R. 251 et seq.

Not recommended but a legal option

Must be in public interest

Application of NEPA (and EPA review under Clean Air Act 309 42 U.S.C. 7609).

Proponent will have to secure Local/State/Permits

Permit issuance appealable through FS regulations

Judicially reviewable through Administrative Procedure Act

No citizen suit protection

From taxpayer point of view no strict, joint and several liability, to recoup taxpayer costs.

No rendering care or advice protection as in CERCLA

EPA/State may attempt to have remedial project redone, or bill proponent for future costs.

B. Plans Of Operation (36 C.F.R. 228 ), 1872 Mining Law

Plans of Operations (POOs) are Forest Service's regulatory authority to regulate the adverse effects of mining on surface resources. The Supreme Court has described this authority as "environmental regulation" as opposed to land management authority (as Special Use Permits), See Granite Rock.

Again not recommended but a legal option, but possibly a step up from Special...