Due to the complex and environmentally damaging nature of abandoned mines, there are many laws that regulate clean up priorities and methods. Some of these laws also determine who is liable at a particular mine site. In other words, they determine who is financially responsible for the clean up and to what extent. The Clean Water Act and the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), also known as Superfund, are the two most important laws which regulate these liability issues.
Section 402 of the Federal Water Control Pollution Act, better known as the Clean Water Act, created the National Pollutant Discharge Elimination system (NPDES) permit program. This section requires that any party that discharges, or affects the discharge of any pollutant, get a permit for that activity. For example, this means that a mining company or sewage treatment company must get a permit from state authorities to release wastewater at each of their sites. The permit certifies that they are the owner of the property or that they are responsible for the discharge and any resulting water pollution. If the company is polluting the water and not meeting water quality standards, the Clean Water Act allows the EPA, states, or citizens to sue the company for the damages.
The strict nature of the permit program requires than any party that affects the discharge of any pollutant get a permit for that activity. Therefore, even so-called Good Samaritans (watershed groups, non profits, etc) who are interested in cleaning up an abandoned mine site must get a permit for their reclamation project. By law, they then become classified as a past operator or owner of the mine, regardless of whether they were actually responsible for the original source of the pollution or not. It is possible that these groups could face the same responsibility for water quality violations as the mining company or the actual responsible party.
The Superfund program is officially known as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Because the Superfund program was designed to clean up hazardous waste sites that threaten human health and the environment, it includes strict provisions for the EPA to find Potentially Responsible Parties (PRP’s) to pay for the clean up. In legal terms, Superfund liability is joint and several, which means that any party connected to the hazardous site can legally be forced to pay for the entire clean up. This includes past and present owners of the site, regardless of their connection to the hazardous substances. It can also include past operators of the site, or even companies that arranged for the transportation or disposal of the hazardous waste.
Good Samaritans who manage the removal, treatment, or disposal of hazardous wastes at an abandoned mine site could face the same liability for future clean up costs as any other responsible party at the site. Under the strict Superfund law, their good intentions are not necessarily taken into consideration. A Good Samaritan’s voluntary efforts to clean up an abandoned mine could lead to their classification as a past operator or owner of the site and subsequent liability for the site.
Fortunately, there are several ways that a Good Samaritan can work at an abandoned mine site without incurring liability for future damage at the site. It is important that any group interested in abandoned mine reclamation in their community contact the EPA and other authorities at the state and federal level to discuss these options before taking any action. Furthermore, there have been several efforts made by members of Congress to pass legislation exempting remediating parties from being held accountable for someone else’s pollution. Despite the past recommendations of the Western Governors Association, the Environmental Protection Agency, and many environmental groups, these so called “Good Samaritan clauses” have so far failed to garner the support needed. At present, the following bills…
For a more in-depth discussion on liability issues in abandoned mine reclamation, go to: http://www.restorationtrust.org/legalguides.htm