By: Rachel Pressdee, Feature Editor
There are thousands of abandoned mines in the United States alone.[1] Abandoned mines can pollute adjacent streams, lakes, and groundwater by contaminating the water “with high volumes of toxic waste.”[2] This pollution damages marine ecosystems, poisons drinking water, and poses serious health risks to local populations.[3] According to the Government Accountability Office, at least 33,000 abandoned mine sites in the United States have degraded the environment, and thousands of additional sites are discovered annually.[4]
Until the 1970s, the United States federal government did not engage in much oversight in the area of mining.[5] “The land was often left exposed, with waste materials in piles or dumped into mine cavities and pits. At the time, mining companies had no requirement to restore mine lands to their original condition.”[6]
In the United States, there are three key laws that govern mining activities. These laws are the Mining Law of 1872 (the “Mining Law”), the Clean Water Act, and the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).[7] The Mining Law is mostly concerned with the initiation of mining activity and largely ignores the environmental consequences that follow these activities.[8] The focus of the law is to encourage the exploration of federal lands for minerals and to facilitate the extraction of such minerals.[9] The law fails to include any provisions related to the cleanup, environmental remediation, or reclamation of the site once mining activities cease, and it has “remain[ed] largely unchanged” since its enactment.[10]
The Clean Water Act, established in 1972, created a “structure for regulating discharges of pollutants” and “quality standards for surface waters” in the United States.[11] “The majority of actions taken to enforce the [Clean Water Act] are undertaken by the states,” however, the EPA retains the right to bring an action if it believes the state has failed to timely act or where a state or local agency has requested assistance.[12] Additionally, individuals can bring a civil suit against a person or entity who violates the law or against the EPA for failure to carry out its duty under the Clean Water Act.[13]
As a response to the increased public interest in hazardous waste sites, Congress established CERCLA in 1980.[14] CERCLA mitigates the harmful effects of industrial pollution by “‘encouraging the timely cleanup of hazardous waste sites,’ and ‘placing the cost of that [cleanup] on those responsible for creating or maintaining the hazardous condition.’”[15] Under CERCLA, the EPA can take certain actions “to address past or impending releases of hazardous substances,” which are initially financed with CERCLA’s Hazardous Substance Superfund.[16] Afterward, the EPA can use administrative or court orders to compel the responsible parties to pay for responsive actions directly.[17] If the responsible party cannot be found or fails to act, the EPA will ensure the cleanup of the site and then attempt to recover costs from the responsible individuals or companies through administrative and judicial enforcement actions.[18]
These laws seem to provide some protection for the environment.[19] However, sometimes laws that are designed to protect end up having a discouraging effect instead.[20] CERCLA authorizes the EPA to find and assure the cooperation of any party responsible for the release of hazardous materials into the environment.[21] CERCLA “imposes liability on any ‘owner’ or ‘operator’ of a hazardous waste site.”[22] Any individual or organization that may attempt to clean up a waste site is considered an “operator” under CERCLA and would be subject to liability for the entire cleanup.[23] Therefore, even though the language of CERCLA seems to be protective, it is actually discouraging when it comes to cleaning up sites that may be abandoned or sites where the actual owner cannot be found.[24]
The Clean Water Act requires a permit to discharge wastewater from a mine, including discharge created by the initiation of a mine cleanup.[25] Sections 1319(c)(1) and 1319(c)(2) provide that “any person who negligently (or knowingly) introduces into a sewer system or a publicly owned treatment works any pollutant or hazardous substance which such person knew or reasonably should have know[n] could cause personal injury or property damage . . .” shall be subject to a fine or imprisonment.[26] Therefore, not only would an individual or organization attempting to clean up a mine site have to obtain a permit, they would also have to ensure the water discharge met quality standards. Further, that individual or organization would be held liable for any accidents that caused unplanned discharges.[27] Both the Clean Water Act and CERCLA have the effect of discouraging attempted cleanups due to potential liability exposure.[28]
To instead encourage cleanup efforts, Pennsylvania has enacted the Environmental Good Samaritan Act.[29] This protects parties who may be interested in reclaiming abandoned lands and addressing water pollution issues but are reluctant to do so because of potential liability. According to the Department of Environmental Protection,
The Commonwealth does not possess sufficient resources to reclaim all abandoned mining and oil and gas lands and to abate all water pollution, therefore, the Commonwealth encourages reclamation by others. Landowners, citizens, watershed associations, environmental organizations and, governmental entities who do not have a legal responsibility to reclaim abandoned lands or abate water pollution are interested in addressing these problems. Potential liabilities for personal injury, property damage, water pollution, and the continued operation, maintenance or repair of water pollution abatement facilities can hamper these efforts. The Environmental Good Samaritan Act (EGSA) provides certain protections and immunities to landowners who propose reclamation projects.[30]
Accordingly, any person or organization who tries to reclaim abandoned land or abate water pollution will not be liable for any injury or pollution caused by their efforts.[31] Not all states have passed legislation similar to the Good Samaritan Act. [32] Additionally, leaving cleanups to Good Samaritans alone can be unrealistic.[33] These laws may encourage altruistic citizens to clean up messes, but parties such as nonprofit organizations, local governments, and ordinary citizens may not have the money to fund such cleanup efforts without federal assistance.[34]
Good Samaritan laws address some of the discouraging aspects of the Clean Water Act and CERCLA, and when these laws are implemented together, there is a higher chance that citizens and companies will be encouraged to not only clean up abandoned mining site, but also prevent future pollution and harm to the environment.[35] One can be hopeful that the federal government will enact nationwide Good Samaritan legislation so cleanup efforts can be encouraged in states that currently lack such laws.
[1] Haley McCullough, The Abandoned Mine Problem: Who Should Bear the Burden?, U. Denv. Water L. Rev. (Oct. 11, 2018), http://duwaterlawreview.com/the-abandoned-mine-problem-who-should-bear-the-burden/.
[2] Id.
[3] Id.
[4] Matthew Brown, 50M gallons of polluted water pours daily from US mine sites, Associated Press (Feb 20, 2019), https://apnews.com/8158167fd9ab4cd8966e47a6dd6cbe96.
[6] Id.
[7] 30 U.S.C. §§ 22-42 (2012); 33 U.S.C. §§ 1251-1388 (2012); 42 U.S.C. §§ 9601-9675 (2012); McCullough, supra note 1.
[8] Jan G. Laitos & Christopher Ainscough, The Paralysis Paradox and the Untapped Role of Science in Solving “Big” Environmental Problems, 30 Geo. Int’l Envtl. L. Rev. 409, 421 (2018).
[9] Id.
[10] Id. at 422.
[11] Summary of the Clean Water Act, U.S. EPA, https://www.epa.gov/laws-regulations/summary-clean-water-act (last visited Jan. 15, 2020).
[12] Claudia Copeland, Clean Water Act: A Summary of the Law, Cong. Research Serv. 7 (2016).
[13] Id.
[14] What is Superfund?, U.S. EPA, https://www.epa.gov/superfund/what-superfund (last visited Jan. 16, 2020).
[15] Consol. Edison Co. of N.Y., Inc. v. UGI Utils., Inc., 423 F.3d 90, 94 (2d Cir. 2005) (quoting Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 935-36 (8th Cir. 1995)).
[16] Idaho Conservation League v. Wheeler, 930 F.3d 494, 500 (D.C. Cir. 2019).
[17] Id.
[18] K. Jason Northcutt, Reviving CERCLA’s Liability: Why Government Agenices Should Recover Their Attorneys’ Fees in Response Cost Recovery Action, 27 B.C. Envtl. Aff. L. Rev. 779, 786 (2000); Summary of the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund), U.S. EPA, https://www.epa.gov/laws-regulations/summary-comprehensive-environmental-response-compensation-and-liability-act (last visited Jan. 15, 2020).
[19] See Summary of the Clean Water Act, supra note 11; Summary of the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund), supra note 18.
[20] Erika Kuhl, The Hard(rock) Truth About Abandoned Mines in the Western United States: Why the Pressure Is on to Enact Good Samaritan Legislation as a Way to Recover, 28 Colo. Nat. Resources Energy & Envtl. L. Rev. 255, 269 (2017).
[21] Id.
[22] Laitos & Ainscough, supra note 8, at 422.
[23] Id.
[24] Id.
[25] Id. at 424.
[26] 33 U.S.C. § 1319 (2012).
[27] Laitos & Ainscough, supra note 8, at 424.
[28] Kuhl, supra note 20, at 269-70.
[29] Id. at 273.
[30] Environmental Good Samaritan Act, Dep’t. of Envtl. Prot., https://www.dep.pa.gov/Business/Land/Mining/BureauofMiningPrograms/Pages/GoodSamaritanAct.aspx (last visited Mar. 28, 2020).
[31] Kuhl, supra note 20, at 273-74.
[32] Id. at 275.
[33] Id. at 277.
[34] Id. at 275.
[35] Id. at 276-77.
