Abandoned Mine Land and Federal Facilities

Summary

Pollution from inactive and abandoned mine lands (AMLs) located on federal land under the jurisdiction, custody or control of a federal land management agency (FLMA) pose threats to human health and the environment. As reported in a 2004 EPA report, Cleaning Up the Nation’s Waste Sites: Markets and Technology Trends it is believed that thousands of miles of surface water streams, tens of thousands of acres of public and private lands, and groundwater used for drinking are either contaminated or at risk of being contaminated by such former mining activities on AMLs. Past response-actions and cleanup activities have involved FLMAs, EPA, and private companies.

AMLs often have overlapping jurisdictional and funding concerns between EPA and the FLMA. For example, CERCLA-related issues include who:

Performs or oversees the removal
Performs the Remedial Investigation/Feasibility Study (RI/FS)
Selects the remedy
Performs or funds the cleanup

The SDWA, CERCLA, RCRA, and Executive Order 12580 are but a few of the applicable authorities used to require federal entities to clean up abandoned mines. Whether a mining site is subject to the General Mining Law (GML) of 1872 may also govern an agency’s liabilities. The decision to use these authorities, in combination, or individually, depends on:

Whether the site is a mixed ownership site
Whether there are viable private parties
The location of the contamination
The nature and extent of the contamination

Enforcement Authorities

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

EPA reviews CERCLA 106 and CERCLA 120 to determine if either statute or both could compel an FLMA to act. EPA also examines E.O. 12580 to determine whether federal agencies have been delegated the response authorities to act. (See Guidance on CERCLA 106 and Guidance on CERCLA 120)

One of the most critical elements for EPA's enforcement capabilities at mining sites is whether the AML is a National Priorities List (NPL) site.

If the AML is an NPL site, then CERCLA § 120 compels FLMAs to enter into enforceable federal facilities agreements (FFAs) with EPA to conduct remedial actions for NPL sites owned or operated by a federal agency, or otherwise under the jurisdiction, custody or control of an FLMA.
If the AML is NOT an NPL site, EPA still has various enforcement options for addressing the contamination:
- Issue a CERCLA § 106 unilateral administrative order (UAOs) to FLMAs to accomplish the following:
  - Conduct response actions for mining sites that pose an imminent and substantial endangerment to human health and the environment (under E.O. 12580, EPA must secure approval from Department of Justice prior to issuing an order).
- Negotiate a CERCLA § 106 order on consent with FLMAs for sites that pose an imminent and substantial endangerment to human health and the environment.

EPA may use a CERCLA § 106 order on consent, for example to compel FLMAs to reimburse EPA for response costs incurred while performing a removal action on land owned by the FLMAs. EPA may also use the consent order to govern future worked performed by FLMAs.

Safe Drinking Water Act (SDWA)

Section 1431 of the SDWA authorizes EPA to compel federal facilities to protect the health of persons when the possibility of the presence of a contaminant in drinking water supplies exists. To issue a Section 1431 order, EPA need show:

A pollutant or contaminant is “present or likely to enter a public water system or underground source of drinking water”;
The contamination “may present an imminent and substantial endangerment to health of persons”; and
The appropriate State and local authorities have not acted to protect the health of such persons.

SDWA’s definition of “contaminant” at §1401(6), is very broad – including “any physical, chemical, biological, or radiological substance in water.”

Under a SDWA order the FLMA is required to comply with the order, or face unilateral, administrative penalties assessed by EPA for noncompliance. Furthermore, EPA has sole administrative discretion over the appropriate response actions.

Executive Order 12580 (January 23, 1987)

Executive Order 12580 addresses the implementation of Superfund authorities and responsibilities among federal agencies and departments, consistent with CERCLA requirements. Section 2(e)(1) delegates various response authorities for remedial actions at sites not listed on the National Priorities List (NPL) to executive departments and agencies (Department of Defense (DOD) and Department of Energy (DOE) are delegated authorities under another section). Section 2(e)(1) also delegates to these same executive departments and agencies authority to perform removal actions, other than emergencies. In both instances, the response actions are to address releases, or threats of releases on or from facilities “under the jurisdiction, custody or control” of the FLMA.

Resource Conservation and Recovery Act (RCRA)

RCRA Section 3013 Order: If statutory prerequisites are satisfied, RCRA Section 3013 authorizes EPA to order owners and operators of facilities to investigate areas where hazardous wastes are present or the possibility of their release into the environment exists.

RCRA Section 7003 Order: RCRA Section 7003 gives EPA authority to order site-wide investigation and cleanup where the Agency has evidence that the past or present handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment. Section 7003 covers "solid wastes" which include hazardous wastes perhaps otherwise exempted by RCRA. Federal agencies are required to comply with such Orders under Section 1-103 of Executive Order 12088.

General Mining Law of 1872 (GML)

The General Mining Law (GML) as amended, (30 USC 29), is relevant for determining whether a federal agency may be CERCLA owners and/or operators for purposes of Section 107 liability at mixed ownership sites. However, at sites involving abandoned mines on federal lands where no viable private party exists, the FLMA is the current owner or operator of the land, even if it did not engage in mining activities. The FLMA may be responsible for performing response actions at NPL sites under CERCLA sections 106 or 120.

GML allows any person to stake a claim on federal lands in the western United States to obtain the exclusive right to extract minerals thereon, without needing to acquire title to the land itself. The claimant has a range of property rights related to leasing and operating on the land. The fee simple or actual ownership of the land resides with the federal government. If the claim is abandoned, then all of the property rights revert to the federal government.

However, a patented claim exists when the claimant buys the fee simple interest from the federal government. A patented claim provides full ownership of the property and the property treated as private property. In the event that a patented claim is abandoned, the property is still treated as private property.