Reclamation of Abandoned Mine Lands:

EPA Perspective

Talking Points

• American Fork – EPA’s perspective.• Abandoned Mine Lands in General.• New Guidance.

American Fork

• EPA was approached in late 2004.

• Request was for a nonliable party, Trout Unlimited, to do a cleanup at several mine and mill sites on the American Fork River.

• We thought, how do you have an agreement with a nonliable party?

• We wanted to work with TU. – TU was well regarded.– Ted had prepared a study of lands adjacent to

the Site while with the Forest Service.• Using the old study, Ted was able to prepare

another study for the portion of the Site owned by Snowbird.

Issues.

• Approval of an agreement with a nonliable party.

• Funding.

• Providing for financial responsibility.

Abandoned mine lands

• There are many thousands, especially in the west.

• They may impact water quality, affecting fishing, recreation, and drinking water.

• Most of them will probably not be addressed by state or federal government.

• It’s good for private groups to try to address these.

Liability Problems

• Under CERCLA anyone who is a “generator” is liable.

• Under the Clean Water Act, anyone who discharges pollutants from a “point source” without a permit is potentially liable.

• Possible third party lawsuits.

New Guidance• Issued June 6, 2007.

• http://www.epa.gov/compliance/resources/policies/cleanup/superfund/cercla-goodsam-principles-mem.pdf

• Principal purpose is to use the federal government’s authority to provide greater legal certainty to Good Samaritans and resolve to the extent possible the threat of potential federal liabilities so that voluntary cleanups at these sites can proceed.

Good Samaritan• a Person (as defined in CERCLA § 101(21)) who is

rendering care, assistance, or advice in accordance with the NCP or at the direction of an OSC by voluntarily agreeing to clean up contamination at an Orphan Mine Site, and who:

– is not a past owner or current owner of the Property and has no intention of purchasing the Property in the future;

– is not potentially liable for the remediation of the Existing Contamination under to Sections 106 or 107 of CERCLA; and

– is not potentially liable under any other law for the remediation of the Existing Contamination.

Orphan Mine Site

• an abandoned, inactive hard rock mine or mill site for which no financially viable party (except, for purposes of this guidance, “innocent” owners) is potentially liable to perform or pay for, or has been required to perform or pay for, environmental cleanup actions under applicable law.

Existing Contamination

• Good Samaritan will get a covenant for:

• any hazardous substances, pollutants or contaminants present or existing on or under the Property as of the effective date of the applicable settlement agreement; or that migrated from the Property prior to the specified date; or presently at the site that migrate onto or under or from the Property after the effective date of the applicable settlement agreement.

• essentially, anything that’s already there.

Tools

• State Voluntary Cleanup Programs

• Comfort Letters

• Good Samaritan Settlement Agreement

Comfort Letters

• Have been effective.• Save effort of negotiating an agreement.• Work Done Should Comply With NCP.• Do not Provide for Oversight Costs.• Consultation must occur.• ARARs Problem.• Contribution Protection?

ARARs• Letter may provide that meeting water quality standards

is not practicable considering the exigencies of the situation. 40 C.F.R. § 300.415(j).

– Regions will consider urgency of the situation and the scope of the removal action to be conducted.

– OK where justified by site-specific factors and documented in an Action Memorandum kept in the Administrative Record for the site.

– Regions will follow standard procedures for coordinating with appropriate program offices (e.g., the Regional water office) and states in making these determinations.

Contribution Protection

• Letters will state that EPA will consider a formal agreement with contribution protection if third parties bring or threaten to bring contribution lawsuits.

Formal Agreements

• Where work is complicated and there’s a pretty good threat of third party litigation.

• Must comply with NCP.• Financial responsibility. • May provide for payment of oversight

costs.• DOJ must sign.• Regions must consult with HQ offices.

Closing Thoughts

• Impetus to do these cleanups has to come from outside.

• Liability is the issue.

• EPA will expedite cleanups and make them as easy as possible, given our statutory responsibilities.