26 ELR 10159 | Environmental Law Reporter | copyright © 1996 | All rights reserved

Tools for Regulating the Environmental Impact of Mining in the United States

Editors' Summary: Mining law in the United States is a complex patchwork of federal and state statutes and regulations. This Article provides a basic summary of that law. It begins with an overview of the mining industry. It examines the types of minerals mined, relevant forms of land and mineral ownership, and potential environmental impacts. It then discusses legal tools for restricting the use of land for mining and limiting mining's adverse environmental effects. Finally, it proposes ways to strengthen regulation of ongoing monitoring at mining sites and reclamation as part of ongoing operations, and suggests improvements to mechanisms for funding regulatory programs and assuring that finances will be available for reclamation.

Ms. Bass is a Senior Attorney at the Environmental Law Institute (ELI) in Washington, D.C., and Director of ELI's Inter-American Program. This Article is based on a report that ELI prepared for a series of comparative mining law seminars in Argentina in the fall of 1995. Support for this project was provided by the John D. and Catherine T. MacArthur Foundation, the Tinker Foundation, and Mrs. Agnese Nelms Haury. ELI staff members, in addition to the author, who contributed to the report include Adam Babich, Nancy Golubiewski, Elizabeth Sheldon, Rose Edmonds, James McElfish, Elissa Parker, John Pendergrass, and Lawrence Pratt. ELI consultant Carolina Mauri assisted with translation of the report into Spanish.

[26 ELR 10159]

Mining has been a major industry in the United States since the country's founding. A variety of U.S. laws addresses the environmental effects of mining, and various mining activities fall under the jurisdiction of state and federal regulators. Because mining regulation is often poorly understood by policymakers and practitioners of other areas of environmental law, a primer on this subject is long overdue. Understanding mining regulation is important not only because of its relevance to shaping a substainable environmental policy in this country, but also because other nations in the process of developing environmental regulations—including mining regulation—often look to the United States for leadership.

This Article examines how the United States has tried to balance the need for developing and maintaining a healthy mining industry with the goal of protecting the environment. The Article first provides an overview of the mining industry in the United States, focusing on types of minerals mined, ownership patterns, and potential environmental impacts. It then discusses the general framework for regulation of the environmental impacts of mining in the United States. It surveys the legal tools that have been used in the United States for restricting access to public and private lands for mining; for addressing specific environmental impacts such as water and air pollution, soil erosion subsidence, and habitat loss; and for promoting governmental and private enforcement. The Article concludes with a discussion of options for strengthening certain legal tools.

Overview of the U.S. Mining Industry

Types of Minerals

Minerals are typically divided into categories defined by their roles in an industrial society. Metals—such as aluminum, gold, silver, copper, and iron—contribute to a variety of manufacturing industries and end products. Industrial minerals—such as lime and soda ash—supply the necessary components for particular industrial and chemical processes. Materials—such as sand and gravel—provide the ingredients for concrete and cement and serve as construction components. Energy minerals—such as uranium, coal, oil, and natural gas—furnish the raw materials for production of energy.¹ This Article concentrates on regulation of the U.S. coal and metals mining industries.

Coal. Dubbed the "Saudi Arabia of coal," the United States possesses 35 percent of the world's recoverable coal. In raw numbers, this translates into an "estimated 472 billion tons of coal classified as demonstrated reserves."² Although these [26 ELR 10160] reserves are found in 35 states, coal is currently mined in only 26 states.³ The most common coal is bituminous coal. Mined primarily in the East and the Midwest, it is used primarily for generating electricity and making coke (for steel production).⁴ At one time, bituminous coal was commonly used for heating. The Powder River Basin in Wyoming and southeastern Montana yields the dull, black subbituminous coal now heavily used for electric power generation. Anthracite, or hard coal, is mined in eastern Pennsylvania. Lignite, or brown coal, is found primarily in Texas and North Dakota. U.S. coal production was 944 million short tons (856 million metric tons) in 1993.⁵ While mine production rose in western states—especially Wyoming—production fell in every eastern state except Maryland.⁶ At current production rates, U.S. reserves will remain viable for the next few centuries.

In 1993, U.S. coal consumption rose to a record level.⁷ Electric utilities accounted for the majority of U.S. coal consumption. Coke production (used, in turn, to fuel the steel industry) constitutes the second greatest use of coal in the United States. Other industrial, commercial, and residential uses continue to fall as public attention focuses on the harmful health and environmental effects of fossil fuel use. Coal exports in 1993 were at their lowest level since 1979.⁸

Metals. The mining industry extracts metals in various parts of the United States. For example, iron deposits are mined in Michigan and Minnesota, while gold, copper, and silver production occurs in Arizona, California, Colorado, Idaho, Nevada, South Dakota, and Utah, among other states. Molybdenum is mined throughout the American West. Lead and zinc mining occurs in Missouri and other states.

The metals industry contributes millions of dollars to the U.S. economy.⁹ The steel industry, for example, is the largest metals manufacturing industry in the United States in terms of production and consumption. The industry produced about 99 million tons of raw steel in 1990.¹⁰ Steel constitutes 90 percent (by weight) of all metals consumed in the United States.¹¹

Ownership Patterns

In the United States, mining occurs on both private and public lands. Many landowners exercise control over the surface and all that extends below the surface, including the minerals. Owners, however, may divide the property rights in a particular piece of land into surface and mining rights, which may be sold separately.¹² Thus, a surface owner may not always own the mineral rights. Complex questions of legal responsibilities and access (for such things as water, pollutants, and unknown minerals) can arise from such fragmented ownership.

In most eastern states, mineral rights in coal and metals are owned privately rather than by the state or federal government. In the West, as federal territories became states, the federal government retained both surface and mineral rights in certain lands, and just the mineral rights for still other lands.¹³ Today, the federal government owns the majority of the land in the West on which mining occurs. In 1991, the federal government's Bureau of Land Management (BLM) had jurisdiction over 750 active metal mines in 11 western states.¹⁴ Federal government ownership also accounts for 30 to 40 percent of the nation's coal reserves, mostly in the western United States. Coal on federal lands is developed under mineral leases;¹⁵ hard-rock mines on federal lands are developed under a system of mineral claims and patents.¹⁶

Environmental Impacts

Mining merits the law's attention because it significantly changes the environment. Mining operations can alter the landscape, change the underground structure of the land and release pollutants—including toxic substances—into the air, water, and soil.¹⁷

Whenever a mineral is extracted from the surface or subsurface, a structural element of the topography is removed. Unless carefully controlled, surface mining techniques can cause slope instability and soil erosion.¹⁸ In the case of underground mining, the strata overlying the mine may shift and/or sink in a movement known as subsidence. This may result in sinkholes or troughs appearing on the surface. Due to collapse of rock strata and the creation of fractures, groundwater may filter through to the mine cavity. Groundwater levels may be lowered and aquifers may be disrupted. Pumping required to keep the extraction area clear during mining operations may also lower water tables.

Pollution from mining operations may also be a problem. Water that comes into contact with overburden or other material removed to access ore can become contaminated by picking up sediment, metals, and sulfur. Of particular concern to the environment is the problem of acid drainage. Acid drainage is water polluted with high acidity, sulfates, and metals. It occurs when certain minerals are exposed to [26 ELR 10161] atmospheric oxygen and water. Acid drainage, in turn, can leach heavy metals from surrounding rock. Acid drainage or metal contamination can occur at the time of extraction and continue to leak from mines, tunnels, and tailings for many years after mining has been completed.¹⁹

The processes used to produce mineral concentrates from metallic ores can also create or contribute to water pollution. Chemical substances such as sodium cyanide, acids, and other solutions may be used to separate metallic mineral concentrates from ores. Tailings, the waste generated as a result of ore concentration, may contain these chemicals and can contribute to the pollution of nearby aquifers and surface waters if not carefully managed. Sulfur compounds and metals in waste piles also may generate water contamination. In addition, tailings piles can be a source of windblown dust.

Smelting, a heating process that separates desired metal from other materials and converts it into usable forms, can produce air pollution through the release of emissions including sulfur dioxide, arsenic, lead, cadmium, and other toxics.²⁰ Around uncontrolled smelter operations, "dead zones" exist where the land remains barren. In addition, the waste generated from smelting, slag, is rich in calcium silicate.

Other environmental concerns connected with mining include noise pollution from blasting and other mining operations, habitat destruction, loss of productivity of the land, and scenic impacts to the landscape.

Overview of the Regulatory Framework

U.S. law does not provide for one comprehensive program to address the environmental impacts of mining. Separate regulatory schemes apply to coal and hard-rock mining.²¹ Coal mining is comprehensively regulated bya federal statute, the Surface Mining Control and Reclamation Act (SMCRA),²² enacted in 1977, which is primarily administered by the states, subject to federal oversight. Despite its name, SMCRA also regulates the environmental impacts of underground coal mining. Hard-rock mining, in contrast, is regulated by a patchwork of federal and state laws.²³

Congress enacted the primary federal law that governs hard-rock mining on public lands in 1872.²⁴ At that time, the federal government had "launched a program of rapid settlement and development without regard to secondary consequences."²⁵ Thus, Congress intended the 1872 General Mining Law to encourage mining and transfer land from government to private ownership rather than to regulate the environmental impacts of mining.²⁶

In contrast, Congress enacted SMCRA in 1977, after years of experience with federal mineral leasing laws and state environmental regulation and at a time when environmental protection was widely considered to be an important goal. SMCRA uses a system known as "cooperative federalism." Under that system, federal law creates minimum environmental standards. States that wish to administer their own regulatory programs may elect to do so. The U.S. Department of the Interior's Office of Surface Mining Reclamation and Enforcement will authorize a state to act as the primary regulatory authority within that state's geographic jurisdiction, provided that the state's regulatory program is consistent with federal law and is at least as stringent as the federal program. The federal agency maintains an oversight role, but the state assumes responsibility for rulemaking, enforcement, and day-to-day administration.²⁷ A program of cooperative federalism decentralizes decisionmaking and allows states to be responsive to the needs and concerns of affected citizens. Additionally, the program's minimum federal standards "ensure that environmental concerns are not forgotten as local communities compete for economic benefits" and help "provide a predictable, stable environment in which industry can function."²⁸ Thus, coal mining requirements under SMCRA for operations on federally owned, state-owned, or privately owned lands are basically similar whether administered by state or federal regulators.

In contrast, in the absence of a comprehensive federal framework for hard-rock mining, individual states have initiated many of the permitting and other environmental requirements governing hard-rock mining operations. State environmental requirements apply on federally owned, state-owned, and privately owned lands. These requirements vary from state to state.²⁹ Additionally, the two main federal agencies regulating hard-rock mining on federal lands—the U.S. Forest Service and the BLM—have developed distinct [26 ELR 10162] regulatory regimes for the mining operations on federal lands under their respective jurisdictions.

Under SMCRA, the primary tool for regulating coal mining's environmental impacts is the permit. Through the permitting requirement, the regulatory agency may determine whether mining may occur at all and on what terms mining shall be conducted. It also provides the regulatory authority with significant enforcement powers over the mining operation. For hard-rock mining, there is no federal permitting requirement; federal agencies primarily rely on the miner's plan of operations to protect environmental resources. A plan of operations must be approved by the federal government for significant hard-rock mining operations on federal lands.³⁰ The approval process for a plan of operations allows for the regulatory agency to condition, but not deny, access to federal lands for mining. A number of states have adopted environmental permitting requirements for hard-rock mining operations and these vary state to state.

Two objectives underlie all U.S. state and federal environmental regulations for mining operations. The first objective is to minimize the environmental impact of current mining practices. The second goal is to return mined land to a condition that will allow for productive uses of the land. The current regulatory regime has been more successful at meeting these objectives for coal than it has for metallic minerals, although there are successes in both areas. The following discussion identifies and analyzes the various tools that have been developed to achieve these objectives.

Legal Tools for Restricting Access to Land for Mining

Certain ecosystems—because of climate, geological conditions, types of flora and fauna, altitude, or other factors—may be more sensitive than others to the environmental impacts of mining. Moreover, mining may be inconsistent with other desired uses of a particular parcel of land. In these places, rather than relying on regulatory tools to control the environmental impact of mining operations, the laws have chosen to restrict access. The mechanisms for restricting access include bans on mining or buffer zones for certain categories of land, as well as procedures for examining the suitability of the land for mining on a case-by-case basis.

To understand how these mechanisms function, it is necessary to review the general framework governing access to minerals. The basic legal framework governing access of the public to federal lands is different for coal and hard-rock mining operations. The federal government leases coal located on federal lands by competitive bid and collects a gross royalty on the coal mined. In contrast, the 1872 General Mining Law provides two ways by which the public may secure rights to hard-rock minerals on federal lands: marking and working the claim³¹ or purchasing the land (the latter method is sometimes referred to as "patenting" a claim).³² Mining may occur with or without patenting of the land. The federal government does not impose a royalty in connection with hard-rock mining on federal lands. Access to private lands for hard-rock or coal mining is generally granted under private arrangements regulated by applicable state or federal laws.

Mining Bans and Buffer Zones

Congress has prohibited mining on a variety of federal lands. For example, the laws that established most national parks banned mining within the parks' borders. The 1976 Mining in National Parks Act³³ prohibited all types of mining within the entire national park system (except pursuant to prior valid existing rights). As of January 1, 1984, Congress blocked access to unclaimed minerals in all wilderness areas and prohibited their disposition under mineral leases.³⁴ Similarly, Congress prohibited mining in national wildlife refuges on federally owned lands.³⁵ Additionally, under the Federal Coal Leasing Amendments Act³⁶ and SMCRA,³⁷ Congress banned coal mining in the national park system, national wildlife refuges, national wilderness areas, the national wild and scenic rivers system, and national recreation areas.

In some cases, the desired level of environmental protection may require the creation of buffer zones to distance mining operations from sensitive resources or special land uses. For example, Congress prohibited mining operations within one-quarter mile of federally designated wild rivers.³⁸ Congress further prohibited surface coal mining operations within 100 feet of any public road or cemetery and within 300 feet of any occupied dwelling, public building, school, church, community, institutional building, or public park.³⁹

For hard-rock mining, federal land is generally open to exploration and mineral development unless specifically closed to those uses by an act of Congress or the executive branch, as in the examples above. Under its authority for managing federal lands for hard-rock mining, however, the BLM can "take any action necessary to prevent unnecessary or undue degradation of the lands."⁴⁰ But, this authority has not been used to develop categories of land off limits to hard-rock mining or procedures for examining suitability on a case-by-case basis. Rather, the focus has been on regulating operations to minimize environmental impacts. Similarly, regulations governing hard-rock mining on federal [26 ELR 10163] lands managed by the Forest Service focus on minimizing the adverse environmental impacts on national forest surface resources rather than proscribing mining on certain environmentally sensitive lands.

In addition to federal controls, local zoning ordinances and land use plans may regulate the location and permissibility of both coal and hard-rock mining operations.

Procedures for Determining Suitability of Land for Mining

U.S. law sets up processes for determining whether other federal and private lands are unsuitable for surface coal mining. The Secretary of the Interior must determine whether there are areas on federal lands that are unsuitable for surface coal mining operations.⁴¹ Pursuant to this authority, the Secretary has established a land use planning process for federal land managers that includes criteria for designating lands for environmental purposes that would be inconsistent with such mining. Once land receives such a designation, coal leasing is precluded because any leasing must be compatible with the land use plan.⁴²

For coal mining on private lands, SMCRA requires each state administering its own regulatory program to establish a planning process for designating lands that are unsuitable for surface mining. The federal Office of Surface Mining Reclamation and Enforcement has responsibility for this designation process in those states that lack their own regulatory programs. The criteria for making this determination include environmental factors such as whether operations could result in significant damage to important resources, aesthetic values, and natural systems. States must also have a process to review petitions from any person seeking to have any public or private area designated as unsuitable for surface coal mining. State and federal regulators have made several dozen designations under this petition process.⁴³

The permitting process for surface coal mining operations also implicitly involves a review of the suitability of land for the proposed mining operation. The burden is on the operator to show that mining and subsequent reclamation of the land will be successful. If the land subject to coal mining cannot be reclaimed, the permit must be denied.⁴⁴

In contrast to the permitting process for surface coal mining operations, the federal government does not use the environmental suitability of the land as grounds for disapproving the plan of operation required for certain hard-rock mining operations. Neither Forest Service nor BLM regulations provide government officials with the option of denying a plan of operations.

Third-Party Consents

Third parties may be in a position to restrict access to certain lands for environmental or other purposes. When the surface property rights are in private ownership and the federal government owns the interest to the coal under such land, the consent of the surface owner is required before the land can be leased.⁴⁵ On tribal lands, the consent of the tribe is required for any mineral development; any leases of those lands for mineral development are subject to the approval of the Secretary of the Interior.⁴⁶ Where both surface and coal rights are in private ownership, consent of the surface owner to extraction by surface mining methods—or a deed reflecting such consent in the chain of title—must be obtained.⁴⁷

Legal Tools for Controlling Environmental Impacts

Productivity of the Land

Land that is subject to mining may have other actual or potential productive uses, including farming, forestry, recreation, and tourism. Many of the processes involved in mining operations can interfere with the long-term productivity of the land. For example, improper soil removal and replacement may damage the long-term productivity of farmland. Assuring the continued productivity of the land requires an understanding of the characteristics of the land that contribute to its productivity as well as an understanding of how the mining process should be managed to maintain those characteristics.

One of the main objectives of the permitting process for surface coal mining operations is to assure the continuing productivity of the land.⁴⁸ As part of the reclamation plan,⁴⁹ the operator is required to include in the reclamation plan a description of the land before mining, including any uses at the time of the application or—if there is a previous history of mining—the uses that preceded mining. The statement must characterize (i) the capability of the land before mining to support a variety of uses and (ii) the productivity of the land. This means that the statement must identify prime farmlands, as well as describe the average yield of food, fiber, forage, or wood products from the lands obtained under high levels of management.⁵⁰

The plan must also describe the post-mining use to which the land will be returned and the steps and timetable for achieving that use. The permit will only be granted if the applicant affirmatively demonstrates, and the regulatory authority finds, that the proposed reclamation plan will successfully restore the land so that it is as least as useful as it was before.⁵¹

If the area to be mined is prime farmland, the regulatory authority must find that the operator has the technological capability to restore the mined area within a reasonable time to a level of yield at least as high as that of nonmined prime farmland in the surrounding area under equivalent [26 ELR 10164] levels of management.⁵² The regulatory authority must also find that the operator can meet applicable soil reconstruction standards.⁵³

The permit for surface coal mining operations requires the operator to conduct operations in compliance with certain environmental standards.⁵⁴ Topsoil must be removed in a separate layer and replaced on the backfill area. If not immediately used, it must be segregated and protective measures to avoid deterioration, such as planting vegetation, must be taken. For prime farmlands, the operator must comply with specific regulations concerning the removal, storage, replacement, and reconstruction of the soil.⁵⁵

Federal regulations concerning hard-rock mining only indirectly conserve the productivity of the land. Operations on lands managed by the Forest Service must be conducted "so as, where feasible, to minimize adverse environmental impacts on National Forest surface resources."⁵⁶ Operations are also subject to additional standards concerning road construction, control of erosion and landslides, water runoff, toxic materials, and reshaping and revegetation. Operations on lands managed by the BLM are to be conducted "to prevent unnecessary or undue degradation of the Federal lands."⁵⁷ Neither set of regulations requires the land to be returned to the same or a higher use as before mining nor establishes any performance standards for post-mining yield.

In some cases, however, state regulations may fill these regulatory gaps. State laws are entirely responsible for such requirements where hard-rock mining is conducted on private lands.⁵⁸

Surface and Groundwater Contamination and Depletion

Surface and groundwater contamination and depletion problems can be caused by mining operations. Disposal of mining wastes in or near surface or groundwater may contribute to water pollution. Contamination can result from water coming into contact with naturally existing chemicals in the waste or with chemicals added to separate out the ore. Water depletion problems may occur as a result of mine dewatering or the use of water in the production process.

There are several tools available under U.S. law for controlling surface and groundwater contamination and depletion from mining operations. The approval process for a plan of operations for hard-rock mining operations on federal lands includes an environmental assessment of the project. For operations that will significantly affect environmental resources, an environmental impact statement must be prepared. This process may result in the incorporation of mitigation measures to protect water resources. In addition, federal regulatory authorities may require operators to take steps to prevent surface and groundwater contamination as conditions to the approval of a plan of operations.⁵⁹

In the permitting process for surface coal operations on both federal and private lands, the permit applicant is required to submit an analysis of the overburden, coal seam, and underlying stratum to identify potential acid- or toxic-forming substances.⁶⁰ The permit application must include a reclamation plan that describes the measures to be taken during mining and the reclamation process to protect the quality of surface and groundwater.⁶¹ The mining permit must contain performance standards to minimize disturbances to the prevailing hydrologic balance at the mine site and in associated off-site areas and to the quality and quantity of water in surface and groundwater systems.⁶² Coal mines must take measures to avoid acid or other toxic mine drainage. This performance standard can be interpreted to require that permits for operations that cannot permanently avoid acid mine drainage, i.e., operations that can only address acid mine drainage by permanent treatment, must be denied.⁶³

The SMCRA permit approval process also requires consideration of the impacts of surface coal mining operations on water quantity,⁶⁴ and the reclamation plan must address how the quantity of groundwater and surface water operations will be protected during mining and reclamation.⁶⁵ If such measures are not possible, alternative sources of water must be provided.⁶⁶

Under the Federal Water Pollution Control Act (FWPCA),⁶⁷ discharges from any "point source"—including sources associated with hard-rock or coal mines—into the waters of the United States without a permit are prohibited.⁶⁸ A point source is a discrete conveyance, such as a pipe, ditch, or gully. The permit sets the limits of the level of contaminants that are permissible to be discharged in mine wastewater. For metals, there is usually both a daily and monthly average limit that cannot be exceeded. FWPCA permits may also set pH limits to control acid mine drainage and alkaline mine drainage associated with coal mining operations.⁶⁹

In 1990, the United States launched a limited program to address contamination caused by stormwater runoff from mining operations. Inactive and active mining operations, including abandoned mines, that discharge stormwater contaminated by contact with any manufacturing, processing, or waste material on-site must obtain a stormwater permit.⁷⁰ Only point source discharges (defined as contained flows through ditches, culverts, pipes, etc.) are covered; nonpoint source discharges are not subject to this program. Coal and hard-rock mines that have been reclaimed in accordance with applicable federal or state standards may be exempt from this requirement.⁷¹

[26 ELR 10165]

To obtain a stormwater permit, the applicant must submit information about the site, prior stormwater drainage, and facility operations, as well as a plan for monitoring and reporting on stormwater drainage conditions. On permit approval, the operator is required to develop a plan that uses best management practices to control stormwater pollution; these plans are not required to be approved as a condition of permit approval. The plans must be available for inspection and the permittee must implement the plan. The stormwater regulations do not establish specific effluent limitations for stormwater runoff. Monitoring of stormwater discharges is required. Violations of the permit conditions may result in fines, shut down of operations, or permit revocation.⁷²

Mining activity in wetlands and coastal zone areas may be subject to special regulation. A permit may be required for certain mining operations that involve dredging or filling in wetlands.⁷³ Similarly, special environmental restrictions may be imposed on mining activities in coastal zone areas. For example, under the California Coastal Act, any person undertaking mining activities in the state's coastal zone must secure a permit from the state Coastal Commission.⁷⁴ Through the permitting requirement, the state may impose environmental regulations concerning water quality, erosion, air pollution, and environmentally sensitive habitat.⁷⁵

In addition, contamination of surface and groundwater from mining operations may be addressed through portions of the Superfund program.⁷⁶ Under Superfund, mine operators are required to notify the National Response Center of the release of a hazardous substance into the environment.⁷⁷ This could include, for example, cyanide spills. If the release results in "imminent and substantial danger" to the public health or welfare, the mining operator may be required to undertake remedial action.⁷⁸

State authorities have developed a variety of additional programs and specific tools for protecting water resources from mining pollution. In Arizona, for example, discharging facilities are required to obtain an aquifer protection permit.⁷⁹ In the permit application, the applicant must describe the "best available demonstrated control technology" to be used to achieve the greatest degree of discharge reduction and demonstrate that the facility will not cause or contribute to a violation of aquifer water quality standards at the applicable point of compliance.⁸⁰ The applicant must also provide evidence of technical capability to carry out the permit conditions and may be required to provide a hydrogeological study that defines the discharge impact area, demonstrates that aquifer water quality standards will not be violated at the applicable point of compliance, and documents existing water quality in the aquifers. To assist mining operations in achieving the applicable aquifer standards, the state has developed design recommendations for general mining activity components, such as tailings and leachate operations, as well as recommendations for specific mining segments and systems.⁸¹

Finally, there are several state law tools that may be available for property owners to address privately environmental problems created by mining operations. For example, state nuisance laws may allow private-property owners to address diminished water supply or acid-contaminated water.⁸² In cases where the private-property owner is leasing mineral rights, contract law may allow the owner to impose environmental restrictions on mining operations.

Air Pollution

There are a variety of forms of air pollution resulting from mining operations. Fugitive dust—that is dust not coming from a centralized emission point—is produced by rock crushing operations, truck and other machinery operation on dry roads, earth removal, and other activities. Ore smelters also add pollutants to the air.

The federal national ambient air quality standards (NAAQS) set limits on the amount of particulate matter in the air. Individual states are responsible for developing plans (referred to as "state implementation plans" or "SIPs") to meet these standards.⁸³ States implement these plans through state laws and regulations that may regulate fugitive dust emissions from mining operations. Nevada, for example, requires fugitive dust to be controlled and particulates from numerous named mineral processing facilities are specifically regulated in the Nevada air regulations.⁸⁴ The states may also regulate the emission of pollutants in connection with the smelting process through their SIPs, because several of the pollutants either used in or produced as a result of the smelting process are subject to NAAQS.

The federal air pollution program also limits emissions through the prevention of significant deterioration (PSD) program. This program creates a three-tiered classification of lands, designed to protect the high air quality in special areas such as national parks and wilderness areas. For each category the program sets specific limits on air quality levels and allowable increases of certain pollutants. New major emitting facilities in these areas must follow certain procedures before construction.⁸⁵ Again, the implementation of this program may vary by state. For example, Wyoming requires surface coal mines to obtain state PSD permits before operating and counts proposed fugitive emissions [26 ELR 10166] by these operations in determining whether the limit for the allowable increase under the PSD program has been met.⁸⁶

Pollutants produced by mining-related activities—particularly smelting—may also be subject to national emission standards for hazardous air pollutants.⁸⁷ Among the substances now identified as hazardous air pollutants are cobalt compounds, lead compounds, nickel compounds, and fine mineral fibers. Most major sources of these pollutants will be required to install the maximum achievable control technology. States may develop their own procedures for implementing these standards.⁸⁸

Air pollutants from the smelting process may also be regulated by the new source performance standards. Again, the states may develop their own procedure for implementing new source performance standards. In Arizona, for example, copper smelters are subject to a set of general performance standards applicable to all smelters as well as standards applicable to the specific facility.⁸⁹

Health-based standards also play a role in regulating air pollution in the mining environment. The Federal Mine and Safety Health Act (FMSHA)⁹⁰ establishes safe levels of methane for coal mines.⁹¹ Through the permitting process and follow-up monitoring requirements, FMSHA assures the proper implementation and operation of ventilation structures to maintain these established levels. Standards and monitoring procedures are also established for respirable dust in coal mines.⁹²

Soil Erosion and Subsidence

Soil erosion and ground subsidence may be two of the most devastating effects of mining on the landscape if unregulated. Mining-induced changes in the land's contour and removal of vegetation can contribute to soil erosion. Underground mining techniques may lead to ground subsidence.

The major tool for addressing these impacts in the context of coal mining is the SMCRA permit. The permit requires the submission of a reclamation plan. The performance standards for coal mine reclamation require the operator to return the land to its approximate original contour, eliminating all highwalls, spoil piles, and depressions.⁹³ In addition, all surface areas, including spoil piles, must be stabilized and protected to control erosion. Topsoil must be restored and the area must be revegetated. For the most part, reclamation must be conducted simultaneously with mining.⁹⁴ The operator remains liable for maintaining the vegetation for a period of five years (10 years in more arid parts of the country).⁹⁵

SMCRA contains specific provisions for dealing with subsidence.⁹⁶ The permit requires each operator to adopt measures consistent with known technology to prevent subsidence causing material damage (to the extent technologically and economically feasible). In addition, mine stability is to be maximized. This does not prohibit the use of planned subsidence in a predictable and controlled manner or the standard mining method of room and pillar mining. State regulatory officials are directed not to permit underground mining that would cause imminent danger from subsidence to overlying towns.⁹⁷

Federal law governing coal operations now requires repair of and compensation for damage caused by subsidence.⁹⁸ Operators in some states are also required to obtain the consent of the surface owner for underground mining that would cause subsidence.⁹⁹

There is no general federal law setting out specific erosion or subsidence standards for hard-rock mining operations. Operations on Forest Service lands must be conducted so as to "minimize adverse environmental impacts on National Forest Resources."¹⁰⁰ More specifically, roads must be constructed so as to minimize erosion and watershed impacts.¹⁰¹ During or after operations, operators must, where practicable, take reclamation measures to prevent or control on-site or off-site damage to the environment and forest surface resources, including measures to control erosion and landslides.¹⁰² Operations on BLM lands are generally required to avoid "unnecessary and undue degradation" of public lands.¹⁰³ As for operations on over five acres of federal land managed by the BLM, reclamation requirements require land to be returned to an appropriate contour and revegetated where necessary to provide a diverse vegetative cover.¹⁰⁴ Neither Forest Service nor BLM regulations address prevention or control of subsidence.

State laws specify the regulatory requirements, if any, for erosion and subsidence control measures for hard-rock mining. In Colorado, for example, as in many other states, an operator proposing to engage in a new mining operation is required to obtain a reclamation permit.¹⁰⁵ Reclamation standards require all surface areas of the affected land, including spoil piles to be stabilized andprotected so as to control erosion and attendant air and water pollution.¹⁰⁶ Revegetation efforts are to create a diverse, effective, and long-lasting vegetative cover capable of self-regeneration and at least equal in extent of cover to the natural vegetation of the surrounding area. The reclamation standards also specify topsoil handling practices.

[26 ELR 10167]

Protection of Flora, Fauna, and Endangered Species

Mining operations may present a number of threats to local wildlife and vegetation, including destruction of habitat, contamination and depletion of the water supply, and soil erosion. To address some of these concerns, Congress prohibited leasing for coal mining on certain federal lands that contain important habitat, including national parks and monuments, national wildlife refuges, recreation areas, and wilderness areas.¹⁰⁷ In addition, surface mining is prohibited in the eastern national forests.¹⁰⁸ The land use planning process used by federal managers may also preclude leasing of certain land for coal mining purposes. Among the designations that federal land managers may specify is priority habitat for migratory and game wildlife species.¹⁰⁹ Such a designation would then prohibit leasing because the leasing would not be compatible with the federal land use plan.

Protective measures for vegetation are required as part of the reclamation measures required under SMCRA. Operators are required to use the same native seasonal variety, but introduced species may be used to achieve the approved post-mining land use.¹¹⁰ Operators are also required to ensure that the construction maintenance and post-mining conditions of access roads into and across the site of operations will control or prevent damage to fish or wildlife or their habitat.¹¹¹

Certain federal lands with critical habitat are also off limits to hard-rock mining, including most national parks, wilderness areas, and national wildlife refuges. Operators on national forest system lands are required to take all practicable measures to protect fish and wildlife during operations.¹¹² As part of their reclamation efforts, these operators are to take measures to rehabilitate fisheries and wildlife habitat.¹¹³ Similarly, operators on BLM lands are required to take actions necessary to prevent adverse impacts to threatened or endangered species and their habitat.¹¹⁴

State laws may proscribe protective measures for flora and fauna on private lands. In Colorado, for example, mining and reclamation plans must "take into account the safety and protection ofwildlife … with special attention given to critical periods in the life cycle of those species which require special consideration."¹¹⁵ Prospecting operations must be conducted in a manner that will "minimize adverse effects upon wildlife."¹¹⁶ Arizona's Game and Fish Department recommends the use of BLM guidelines for designing cyanide operations to protect wildlife. The methods of protection that are considered effective include (i) total enclosure of solutions containing lethal levels of cyanide, (ii) treatment of process solutions to sublethal levels, and (iii) netting of solution impoundments.¹¹⁷ The BLM draft plan¹¹⁸ specifically advises that "harassment techniques such as flagging, propane cannons, rock music, etc. have not been shown to be effective." The plan also notes that treatment of cyanide solution has not always been effective in eliminating mortality.¹¹⁹

Certain federal laws explicitly directed at the protection of wildlife may indirectly regulate mining practices. For example, the Endangered Species Act (ESA)¹²⁰ prohibits the taking of any listed endangered species, which may include harassing, harming, hunting, killing, capturing, or collecting such species, and also includes significant habitat modifications that actually kill or injure wildlife.¹²¹ Thus, wastewater ponds, leach piles, and other mining practices may need to be managed to avoid a "taking." Similarly, the Migratory Bird Treaty Act¹²² subjects anyone who takes, kills, or possesses a migratory bird to a fine of not more than $ 500 or imprisonment for not more than six months, or both.¹²³ Section 7 of the ESA¹²⁴ prohibits federal agency action that would jeopardize a designated species. This may require the federal government to deny a lease or permit for coal mining.

Enforcement Mechanisms

U.S. policymakers have developed a number of enforcement mechanisms to ensure the regulated community's compliance with federal and state programs regulating coal and hard-rock mining in the United States.

Permit Bar and Revocation

A "permit bar" refers to the regulatory practice of denying a permit because of uncorrected violations or a history of noncompliance. Permit revocation refers to the withdrawal of the permit for noncompliance with the terms and conditions of the permit.

A permit bar promotes compliance in two ways. First, the permit bar process screens "bad actors" from engaging in the activity allowed by the permit. Second, the possibility of permit denial at the time of renewal or modification of an existing permit or on application for an additional permit encourages ongoing compliance and rapid correction of violations by current permit holders.

Under SMCRA, a permit applicant is required to file a schedule listing all notices of violations of SMCRA or any air or water protection provision by the applicant or any of its affiliates, officers, or directors in connection with any surface coal mining operation during the three-year period before the date of the application, as well as a description of the resolution of such notices of violations.¹²⁵ The permit [26 ELR 10168] may not be issued if this or any other information available to the government indicates that any surface coal mining operation owned or controlled by the applicant or affiliated with the applicant is currently in violation of SMCRA or the other specified laws, until the applicant submits proof that the violation has been corrected or is in the process of being corrected. In addition, no permit may be issued if there is a finding that the applicant, or the operator specified in the application, controls or has in the past controlled mining operations with a demonstrated pattern of willful violations of SMCRA of such nature and duration with such resulting irreparable damage to the environment as to indicate an intent not to comply with SMCRA. When permits are renewed every five years or modified, or new permits sought, the applicant is subject to the same scrutiny.¹²⁶

Federal regulatory programs governing hard-rock mining on federal lands do not incorporate permit bar provisions. Although operators must receive approval of a plan of operations for significant projects on both Forest Service and BLM lands, the regulations only authorize government officials to condition, but not deny approval of, a plan.¹²⁷

A variety of state permitting processes applicable to hard-rock mining facilities contain permit bar provisions. Arizona's aquifer protection permit program requires applicants to describe in the application any enforcement action relating to protection of the environment instituted during the five preceding years, and provide evidence of compliance with applicable zoning laws.¹²⁸ In addition, Arizona's general environmental statute provides that all companies engaged in activities subject to Arizona's environmental laws and regulations must submit a certificate of disclosure of felony convictions and court judgments for environmental law violations nationwide.¹²⁹ The permit may be denied if the applicant has provided false or misleading information or has failed to demonstrate that the operation of the facility will satisfy applicable statutory and regulatory requirements.¹³⁰ In addition, the permit may be withheld if the applicant is incapable of complying with the permit terms and conditions based on the applicant's past performance of technical and financial competence.¹³¹

Under SMCRA, a permit may be revoked if there is a "pattern of violations" of the terms of SMCRA or the permit.¹³² The permittee has an opportunity for a public hearing to show cause why the permit should not be suspended or revoked. If the permittee fails to show cause why the permit should not be suspended or revoked, the permit must be suspended or revoked.¹³³

Again, federal regulations governing hard-rock mining operations on federal lands do not provide for revocation of the approval of a plan of operations as an enforcement tool in cases of noncompliance. Certain states, however, allow for permit revocation in cases of noncompliance by hard-rock mining operations. Montana, for example provides that if after notice of compliance a mine operator fails to comply with the requirements of the Metal Mine Reclamation Act, the operating permit may be revoked.¹³⁴

Monitoring, Reporting, and Inspection Requirements

Monitoring, reporting, and inspection requirements can contribute to the enforcement process in a number of ways. Information regarding compliance can be used by the regulated entity to take precautionary measures or correct violations. Depending on the nature of a violation, regulatory authorities and private citizens may use information reports as the basis of an enforcement action against the violator.

Permittees under SMCRA must establish and maintain appropriate records; make monthly reports to the regulatory authority;¹³⁵ install, use, and maintain necessary monitoring equipment; evaluate results in accordance with such methods, at such locations, intervals and in such manner as a regulatory authority shall provide; and provide other information deemed reasonable and necessary.¹³⁶ Government inspectors must conduct at least one partial inspection per month and one complete inspection per calendar quarter for the surface coal mining and reclamation operation covered by each permit.¹³⁷ Inspections must occur without prior notice to the permittee or permittee's representatives except for necessary on-site meetings with the permittee. Inspection reports adequate to allow for enforcement of the law are to be filed. Violations must be reported to the operator in writing and reported in writing to the regulatory authority.¹³⁸ Any records, reports, and information obtained by the regulatory authority must be made available immediately to the public at central and sufficient locations in the county, multicounty, and state area so that they are conveniently available to residents in the areas of mining.¹³⁹

In certain instances the federal government may undertake inspection of surface coal mining operations regulated by state authorities.¹⁴⁰ On receipt of information concerning a violation of SMCRA or a permit condition, the federal government must notify the appropriate state authority. If within 10 days the state authority fails to take appropriate action to correct the violation or to show good cause for such failure, the federal government must inspect the surface mining operation at which such alleged violation is occurring. The 10-day notice period may be waived on adequate proof that an imminent danger of significant environmental harm exists and that the state has failed to take appropriate action. When the inspection results from information provided by a person, that person is to be notified by the federal government as to when the federal inspection is proposed [26 ELR 10169] to be carried out and allowed to accompany the inspector during the inspection.¹⁴¹

Both hard-rock and coal mining operations are subject to standard monitoring, inspection, and recordkeeping requirements under the federal Clean Air Act;¹⁴² the FWPCA; the Resource Conservation and Recovery Act (RCRA);¹⁴³ and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).¹⁴⁴ For example, mining operators must prepare and make available discharge monitoring reports for effluents regulated under the FWPCA.¹⁴⁵

Forest Service and BLM regulations for hard-rock mining operations on federal lands do not impose specific monitoring, inspection, or recordkeeping requirements on operators. In the case of BLM lands, authorized officers may periodically inspect operations to determine compliance.¹⁴⁶ Forest Service officers are required to inspect periodically operations for compliance.¹⁴⁷

Administrative and Civil Actions

Administrative and civil actions allow regulatory authorities to bring violators into compliance as well as to deter and punish noncompliance. Most administrative options allow the regulatory authority to act quickly and directly. The authority to bring civil actions provides the regulatory authority with a backup enforcement mechanism when administrative actions fail to work.

When a federal or state inspection reveals conditions, practices, or violations creating or reasonably expected to create an imminent danger to the health or safety of the public or significant, imminent environmental harm to land, air, or water resources, the government inspector must immediately order cessation of surface coal mining and reclamation operations or the portion of operations relevant to the condition, practice, or violation. If this action does not completely abate the imminent danger to health or safety of the public or the significant imminent environmental harm to land, air, or water resources, the government must require the operator to take whatever steps are necessary to abate the imminent danger or the significant environmental harm.¹⁴⁸

In the case of SMCRA violations that do not create an imminent danger to the health or safety of the public or cannot reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources, the government inspector must issue a notice to the permittee fixing a reasonable time (but not more than 90 days) for the abatement of the violation.¹⁴⁹ The permittee must be provided an opportunity for a public hearing. If on expiration of the 90-day period, the violation has not been abated, the government inspector must immediately order the operator to cease surface coal mining and reclamation operations or that portion of operations relevant to the violation. The order must specify the necessary measures to abate the violation in the most expeditious manner possible. The federal or state government may also institute a civil action for relief, including a permanent or temporary injunction, restraining order, or other appropriate order when the SMCRA permittee fails to comply with an order or decision, interferes or delays the carrying out of the program, refuses to allow inspection of the mine, or refuses to provide information or allow access or copies to be made.¹⁵⁰

If a hard-rock mine operator on Forest Service lands fails to comply with the applicable regulations or approved plan of operations and the noncompliance is "unnecessarily or unreasonably causing injury, loss or damage to surface resources," then the operator is to receive a notice of noncompliance.¹⁵¹ The notice is to describe the violation, the actions necessary to remedy the violation, and the time period for compliance (which is generally not to exceed 30 days).¹⁵²

Operators on BLM lands who fail to follow their approved plan of operations may be subject to a notice of noncompliance.¹⁵³ The notice must specify the violation; the actions necessary to correct the violation; and the time period, not to exceed 30 days, within which corrective action shall be started (as opposed to completed, as Forest Service regulations provide). Operators who fail to undertake the compliance actions specified within the time specified in the notice may be enjoined by appropriate court order from continuing such operations and may be liable for damages for such unlawful acts.¹⁵⁴

CERCLA authorizes federal cleanup of abandoned hazardous substance sites and allows the government to seek reimbursement of its costs and recovery of natural resource damages from the site's owners, operators, and others who were responsible for the presence of the hazardous waste at the site.¹⁵⁵ CERCLA § 106¹⁵⁶ and RCRA § 7003¹⁵⁷ allow the U.S. Environmental Protection Agency to issue orders for abatement of almost any waste-related situation that "may present an imminent and substantial endangerment to health or the environment," whether or not the risks at issue stem from violation of government regulations. The courts have interpreted the "imminent and substantial endangerment" language to refer to any significant, potential risk of eventual environmental harm.¹⁵⁸ In addition, RCRA [26 ELR 10170] § 7002(a)(1)(B) allows citizens to sue for abatement of such potential endangerments.¹⁵⁹

On the state level, the use of administrative and civil actions to achieve compliance by hard-rock mining operations varies widely. In Arizona, for example, a compliance order may be issued for violation of any water quality standard or aquifer protection permit.¹⁶⁰ In addition, a compliance order may be issued if a person is creating "an imminent and substantial endangerment to the public health, or environment."¹⁶¹ Authorized officials may also seek injunctive or other relief if a person is creating "an actual or potential endangerment to the public health or environment" because of water quality control violations.¹⁶² Other states, such as South Carolina, first require written notice to the operator of the violations.¹⁶³ The operator then has a period of 30 days to commence "diligently" to correct the violations. If these violations remain uncorrected, then thestate can issue notice of uncorrected deficiencies, subject to an administrative hearing.¹⁶⁴

The abatement provisions of CERCLA and RCRA discussed above are consistent with the common law of most states. In general, the common law makes every person responsible, not only for complying with statutes, but also for avoiding injury to their neighbors' health and welfare.¹⁶⁵

Civil and Criminal Penalties

Civil and criminal penalties serve as additional mechanisms for deterring and punishing violators. These mechanisms rely on economic and social incentives to promote compliance.

The government may assess a civil penalty for a violation of any permit condition or requirement of SMCRA.¹⁶⁶ If such violation is unabated and leads to a cessation order, a civil penalty of not less than $ 750 per day must be assessed.¹⁶⁷ SMCRA penalties may not exceed $ 5,000 per violation; each day of a violation may be deemed a separate violation for purposes of calculating the amount of the penalty. Factors that may be considered in determining the penalty amount are the permittee's history of previous violations at the particular operation; the seriousness of the violation, including any irreparable harm to the environment; and whether the permittee was negligent and demonstrated good faith in achieving compliance after notification of the violation. The government notifies the operator of the proposed amount of the penalty; in order to obtain a hearing, the violator must prepay the proposed amount to the government for placement in an escrow account, pending the outcome of the hearing.¹⁶⁸

Willful and knowing violations of a SMCRA permit condition or cessation order are punishable by a criminal fine of not more than $ 10,000, imprisonment for not more than one year, or both.¹⁶⁹ For corporate permittees, any director, officer, or agency that willfully and knowingly carried out a permit violation or failed or refused to comply with a cessation order is subject to the same civil penalties, fines, and imprisonment as an individual who conducted such activity.¹⁷⁰

Forest Service and BLM regulations governing hard-rock mining operations on federal lands do not provide for the use of civil or criminal penalties for noncompliance. The Federal Land Policy and Management Act¹⁷¹ does provide for limited criminal penalties of no more than $ 1,000, imprisonment of no more than 12 months, or both for "knowing and willful" violations of regulations issued pursuant to the Act.¹⁷² The major federal environmental laws governing air pollution, water pollution, and hazardous waste all provide for the use of civil and criminal penalties.¹⁷³

State hard-rock mining regulatory programs authorize a range of civil and criminal penalties. Penalty amounts under state water pollution control programs tend to be higher than those under general reclamation programs. As an example, for pollution of surface waters California provides for administrative and civil penalties of up to $ 5,000 per day and judicial civil penalties of up to $ 15,000 per day, with provisions for additional per gallon penalty charges.¹⁷⁴ Montana's Metal Mine Reclamation Act provides for penalties of not less than $ 100 nor more than $ 1,000, with an additional penalty in the same amount for each day of violation.¹⁷⁵

In addition, many state regulatory programs authorize the use of criminal penalties. For example, in Arizona, criminal liability may be imposed for discharging without a permit; failing to monitor, sample, or report discharges as required by a permit; violating a discharge limitation in a permit; or violating a water quality standard.¹⁷⁶

Financial Assurance Mechanisms

Financial assurance mechanisms work by requiring the operator to provide a financial guarantee of performance [26 ELR 10171] before undertaking a certain regulated activity. If the level of performance does not meet required standards, then the regulatory authority is entitled to collect the amount of the guarantee.

SMCRA requires all permit applicants to furnish a performance bond before approval of the permit.¹⁷⁷ The bond must cover the area of operations subject to the permit and must be increased to cover additional increments. The amount depends on the reclamation requirements and must reflect the probable difficulty of reclamation taking into consideration such factors as topography, geology, hydrology, and revegetation potential. The amount must be sufficient to assure that the regulatory authority may complete reclamation if necessary and in no event may the amount for one permit be less than $ 10,000. The operator may deposit cash, negotiable government bonds, or negotiable certificates of deposits in lieu of a surety bond in an amount equal to or greater than the amount of the bond required.¹⁷⁸

SMCRA permittees may file a request with the regulatory authority for release of a performance bond. The operator must place an advertisement in a local newspaper at least once a week for four successive weeks describing reclamation work performed and results achieved. The permittee also has to notify adjoining property owners, local government bodies, planning agencies, and sewage and water treatment authorities of his or her intention. The regulatory authority must conduct an inspection and evaluation of the reclamation work. The regulatory authority may release the bond or deposit in whole or in part if it is satisfied that the appropriate effort of reclamation has been accomplished. Any person with a valid legal interest that might be adversely affected by the release of the bond or any government official who has jurisdiction regarding any environmental impact has the right to file written objections. If written objections are filed and a hearing requested, interested parties must be informed and the hearing held within 30 days of the request.¹⁷⁹

Operators on Forest Service lands may be required to furnish a bond to assure compliance with reclamation requirements before approval of a plan of operations.¹⁸⁰ Alternatively, the operator can supply cash or negotiable U.S. securities with a market value in the amount of the bond, or a blanket bond covering nationwide or statewide operations. The amount of the bond will be determined taking into consideration the "estimated cost of stabilizing, rehabilitating, and reclaiming the area of operations."¹⁸¹ If the plan of operations is modified, the amount of the bond must be adjusted accordingly, if necessary. When reclamation has been completed, the authorized officer will notify the operator that performance under the bond is complete. The amount of the bond may be reduced proportionately in the event a portion of reclamation has been completed.¹⁸²

Operators on BLM lands who conduct operations under an approved plan of operations may also be required, in the discretion of the authorized officer, to furnish a performance bond.¹⁸³ The BLM regulations state that the authorized officer may determine not to require a bond "in circumstances where operations would cause only minimal disturbance to the land."¹⁸⁴ The amount of the bond will be determined taking into consideration "the estimated cost of reasonable stabilization and reclamation of areas disturbed."¹⁸⁵ BLM policy requires all operators with a record of noncompliance to submit a reclamation bond for 100 percent of the cost of reclamation for all activities in excess of casual use that are conducted on public lands the BLM manages.¹⁸⁶ In lieu of the bond, the operator can provide evidence of an existing bond under state law with similar coverage, cash, negotiable U.S. securities with a market value of not less than the amount of the bond, or a blanket bond covering statewide or nationwide operations. If the plan of operations is modified, the amount of the bond must be adjusted accordingly. When all or a portion of the reclamation is completed, the operator may notify the government officer. The government officer will then promptly inspect the reclaimed area with the operator. The officer will give written notice to the operator whether the reclamation is acceptable. If any portion of the reclamation is acceptable, the officer will authorize the bond to be reduced proportionately to cover the remaining reclamation to be accomplished.¹⁸⁷

Performance bonds and other financial assurance mechanisms for hard-rock mining operations vary from state to state. States require financial assurance for the cost of reclamation, contingencies, and/or closure. In calculating the amount of financial assurance, some states take into consideration actual reclamation costs, while others set maximum per acre limits. Montana's Metal Mine Reclamation Act, for example, requires a bond in an amount of not less than $ 200 per disturbed acre nor more than $ 2,500 per disturbed acre or fraction thereof. In any event the bond may not be less than "the estimated cost to the state to complete reclamation of the disturbed land."¹⁸⁸ States allow a variety of forms of financial assurance to be used.

Citizen Suits

Citizen suits function by allowing individuals to institute legal action against violators directly or against the government for failure to take action. Under SMCRA, persons having an interest that is or may be adversely affected may commence a civil action on their own behalf against the United States or another government agency or person when such entity is in violation of any rule, regulation, order, or permit under SMCRA, or against the federal or state regulatory authority where there is a failure to perform any nondiscretionary act or duty.¹⁸⁹ In the case of actions for violations, written notice must be given to the federal government, the state in which the violation occurs, and to any alleged violator at least 60 days before the filing of suit. In [26 ELR 10172] addition, no such action may be filed if the federal government or state has commenced and is diligently prosecuting a civil action to require compliance; however, any person may intervene as a matter of right in any such action. No action may be brought against the Secretary of the Interior or a state agency for failure to perform a nondiscretionary duty until 60 days after notice, except where the violation or order complained of constitutes an imminent threat to the plaintiff's health or safety or would immediately affect a legal interest of the plaintiff.¹⁹⁰

For hard-rock mining operations, citizens are limited to seeking review of Forest Service and BLM actions under the procedures of the Administrative Procedure Act.¹⁹¹ Generally, any person suffering a legal wrong or adversely affected or aggrieved by an agency action may seek judicial review of that action.¹⁹² The major federal environmental statutes governing air pollution and water pollution allow for citizen enforcement of their provisions on terms similar to those available under SMCRA.¹⁹³

State laws provide a variety of citizen suit mechanisms. Montana's Metal Mine Reclamation Act authorizes "any person having an interest that is or may be adversely affected" to initiate a citizen suit against the state for failure to enforce the Act.¹⁹⁴ Before the initiation of the suit, the citizen must bring such failure to the attention of the responsible official by affidavit.¹⁹⁵ If officials fail to take the enforcement action sought for an "unreasonable" time after the affidavit, the citizen may seek an injunction mandating enforcement. Any person whose interests may be adversely affected may also commence a civil action directly against a violator. The government must be given 60 days' prior notice; if the government acts and diligently prosecutes a civil action for compliance, the suit is barred, although the interested party may intervene as a matter of right in the government suit.¹⁹⁶

Observations

Through SMCRA, the law has dramatically reduced the environmental impacts of coal mining and substantially advanced the art of reclamation. In the area of hard-rock mining, however, the record is more mixed, reflecting a less coherent regulatory structure.

A limited number of current hard-rock and coal mining operations continue to be a source of significant pollution of the environment. In recent years, the Summitville mine—a high altitude cyanide heap leach operation in Colorado—progressed in less than a decade from the initial permitting stage to an emergency response site.¹⁹⁷ The cost of cleanup of contaminated groundwater and surface water could reach $ 120 million dollars.

Acid mine drainage in particular continues to be a major source of pollution from some existing coal and hard-rock operations. In 1980, one of the largest coal mines in the United States launched operations under a series of permits calling for sophisticated "state-of-the-art" technology for controlling acid mine drainage, including materials-handling plans, overburden mixing, use of phosphate precipitants, and water exclusion barriers. Despite the use of this technology, substantial acid mine drainage resulted. The annual cost of what appears to be a need for permanent treatment is estimated at over $ 500,000.¹⁹⁸ Some other "reclaimed" coal mines continue to produce acid even though they appear visually acceptable.

Abandoned hard-rock and coal mines have left a legacy of environmental and safety hazards spread well across the landscape of the country. Thousands of these abandoned mines present serious acid mine drainage, toxic spoil, and revegetation problems. The number of abandoned hard-rock mining sites is estimated at 557,650 and no comprehensive federal program to address these sites exists.¹⁹⁹ And although SMCRA created the Abandoned Mine Lands Program to reclaim lands that were coal mined before the Act's passage in August 3, 1977, even at the outset the responsible regulatory agency estimated that only 10 percent of the nation's pre-1977 abandoned-mine land problems would be corrected over the program's life.²⁰⁰ The United States has come a long way in the regulatory effort to turn mining into a sustainable industry, but additional reform remains to be undertaken before the United States can claim to have achieved this goal.

Regulatory Reform Options

Policymakers in the United States and in other countries who are considering enacting or reforming regulatory schemes for mining should consider the following options for addressing environmental problems that continue to be associated with mining operations: requiring contemporaneous reclamation activities as part of ongoing operations and not deferring them until extractive operations cease; requiring key stakeholders to perform ongoing operations monitoring; adopting financing mechanisms that adequately provide for programmatic obligations; and requiring more accurate estimates of reclamation costs and requiring that such costs be adequately covered by financial assurance mechanisms.

Requiring Reclamation as Part of Ongoing Operations

For reclamation of mined lands to be successful, planning for reclamation and post-mining land use needs to start well in advance of operations. Legal regimes could require detailed baseline studies of geological and ecological conditions to determine if, and how, reclamation can be accomplished. If existing technology cannot achieve the desired level of reclamation, legal regimes could bar operations until the existence of such technology can be satisfactorily demonstrated.

The applicable permit or plan of operations could specify, [26 ELR 10173] step-by-step, the actions and stages for reclamation. Operators could be required to report any variation in existing conditions or to seek approval of any modification of the permit or plan of operations. The request for modification of the permit or plan of operations could be made subject to the same degree of scrutiny as the initial application.

Ongoing Monitoring of Operations by Key Stakeholders

Because of the large scale and highly toxic character of many mining operations, serious environmental problems requiring expensive cleanups can develop quickly. The possibility of human error, technology failure, or an "act of God" is always present. Legal regimes could require mining operations to put in place comprehensive monitoring and reporting systems. Government inspectors could periodically verify that a company is complying with its monitoring and reporting obligations and could conduct independent monitoring where necessary.²⁰¹ The public could be provided with access to these records (with adequate mechanisms to protect trade secrets) to assure that both the government and the regulated industry are complying with their obligations.²⁰²

Financing Mechanisms Could Adequately Provide for Programmatic Obligations

Federal and state regulatory programs need substantial funding to develop and maintain the staff and technical resources necessary to run their programs. A number of mechanisms (including permit fees, royalties, and administrative and civil penalties) could be used to secure these funds. Directed funds, rather than funds from the general treasury, will be less subject to discretionary budget cuts. Funding mechanisms need to take into account that some of the pollution problems created by mining operations may require perpetual treatment.

Reclamation Costs Could Be Correctly Estimated and Adequately Covered by Financial Assurance Mechanisms

Any number of unforeseen causes can lead to a mining company defaulting on its reclamation obligations and, to avoid environmental disasters, the government needs to have sufficient financing to quickly pick up where the operator left off. In calculating the amount of financial assurance mechanisms for reclamation, realistic estimates of reclamation costs (including costs of treating long-term pollution problems) could be required and the financial assurance could be for the full amount of such estimate. In addition, the security underlying the financial assurance could be readily collectible and cover the full amount of the obligation.

Conclusion

SMCRA's coal mining regime and several state hard-rock mining programs have sought to incorporate many of these principles. The federal regulatory program for hard-rock mining remains weak in most of these areas. Efforts to reform the 1872 General Mining Law to incorporate strong environmental safeguards have met with little success in the past and future reform looks equally unlikely at this point. State laws, however, provide opportunities to experiment with successful approaches and to draw on the lessons learned from nearly two decades of SMCRA experience.

1. JOHN E. YOUNG, WORLD WATCH INST., MINING THE EARTH: WORLD WATCH PAPER 109, at 8 (1992).

2. Larry McBride & John Pendergrass, Coal, in SUSTAINABLE ENVIRONMENTAL LAW 993, 996 (Celia Campbell-Mohn et al. eds., 1993).

3. JAMES M. MCELFISH JR. & ANN E. BEIER, ENVIRONMENTAL REGULATION OF COAL MINING: SMCRA's SECOND DECADE 9 (1990).

4. ENERGY INFO. ADMIN., U.S. DEP'T OF ENERGY, QUARTERLY COAL REPORT: JULY-SEPTEMBER 1994, at 144 (Feb. 1994).

5. ENERGY INFO. ADMIN., U.S. DEP'T OF ENERGY, QUARTERLY COAL REPORT: OCTOBER-DECEMBER 1993, at 1 (May 1994) [hereinafter OCTOBER-DECEMBER 1993 QUARTERLY COAL REPORT].

6. Id.

7. Coal consumption in 1993 was 926 million short tons (840 million metric tons), which constitutes a 4 percent increase over consumption in 1992. OCTOBER-DECEMBER 1993 QUARTERLY COAL REPORT, supra note 5, at 2.

8. Id. at 1.

9. The dollar value of metals consumption rose from $ 38.6 million in 1986 to $ 48.5 million in 1990. Barry Breen & Celia Campbell-Mohn, Metals, in SUSTAINABLE ENVIRONMENTAL LAW 1197, 1200 (Celia Campbell-Mohn et al. eds., 1993).

10. Id. at 1199.

11. Id. at 1200.

12. STEPHEN E. KESSLER, ECONOMICS AND THE ENVIRONMENT 82 (1994).

13. Id. at 83.

14. Breen & Campbell-Mohn, supra note 9, at 120. This figure does not include mining claims and exploration projects.

15. Federal Coal Leasing Amendments Act of 1976 (FCLAA), 30 U.S.C. §§ 201-209. The FCLAA amended the Mineral Lands Leasing Act of 1920, ch. 85, 41 Stat. 437 (current version at 30 U.S.C. §§ 181-287).

16. See infra notes 31-32 and accompanying text.

17. At least 48 Superfund sites are former mineral operations. YOUNG, supra note 1, at 8.

18. MCELFISH & BEIER, supra note 3, at 15.

19. Id. at 131.

20. YOUNG, supra note 1, at 19.

21. The general definition of "hard-rock mining" is "the extraction of metals (e.g., copper, gold, iron, lead, magnesium, silver, uranium, zinc) and nonfuel minerals (e.g., asbestos, gypsum, phosphate rock, sulfur) by surface or underground mining methods." JAMES S. LYON ET AL., MINERAL POLICY CTR., BURDEN OF GILT, 62 n.1 (1993).

22. 30 U.S.C. §§ 1201-1328, ELR STAT. SMCRA §§ 101-908.

23. The U.S. Environmental Protection Agency (EPA) is in the process of trying to develop a comprehensive strategy, building on existing Federal Water Pollution Control Act and Clean Air Act regulations and Resource Conservation and Recovery Act (RCRA) authority, to address the environmental problems related to hard-rock mining. See INSIDE EPA WKLY. REP., Nov. 10, 1995, at 1-2. In 1980, RCRA was amended to exempt temporarily solid waste from the extraction, beneficiation, and processing of ores and minerals from regulation under Subtitle C. 42 U.S.C. § 6921(b)(3)(A)(ii), ELR STAT. RCRA § 3001(b)(3)(A)(ii). Pursuant to this amendment, EPA is directed either to promulgate Subtitle C regulations for such waste or to determine that such regulations are unnecessary and that the exclusion should continue. Id. §§ 6921(b)(3)(C), 6982(p), ELR STAT. RCRA §§ 3001(b)(3)(C), 8002(p). For a discussion of EPA's actions in response to this question and major court cases on the issue, see Van E. Housman, The Scope of the Bevill Exclusion for Mining Wastes, 24 ELR 10657 (Nov. 1994). EPA has also initiated efforts to regulate mining waste under Subtitle D of RCRA. OFFICE OF SOLID WASTE, U.S. EPA, STRAWMAN II, RECOMMENDATIONS FOR A REGULATORY PROGRAM FOR MINING WASTE AND MATERIALS UNDER SUBTITLE D OF THE RESOURCE CONSERVATION AND RECOVERY ACT (May 21, 1990).

24. 30 U.S.C. §§ 21-54.

25. J. William Futrell, The History of Environmental Law, in SUSTAINABLE ENVIRONMENTAL LAW 3, 16 (Celia Campbell-Mohn et al. eds., 1993).

26. Breen & Campbell-Mohn, supra note 9, at 1206; for a more complete description of how the 1872 General Mining Law works, see Mark Squillace, The Enduring Vitality of the General Mining Law of 1872, 18 ELR 10261 (July 1988).

27. 30 U.S.C. §§ 1251-1279, ELR STAT. SMCRA §§ 501-529; Hodel v. Virginia Mining & Reclamation Ass'n, 452 U.S. 264, 11 ELR 20569 (1981).

28. J. William Futrell, The Administration of Environmental Law, in SUSTAINABLE ENVIRONMENTAL LAW 93, 118 (Celia Campbell-Mohn et al. eds., 1993).

29. JAMES M. MCELFISH JR. ET AL., HARD ROCK MINING: STATE APPROACHES TO ENVIRONMENTAL PROTECTION (1996).

30. On lands managed by the BLM, a plan of operations is required for activities that would cause a disturbance on more than five acres of land per year. 43 C.F.R. § 3809.1-4 (1994). On lands managed by the Forest Service, a plan of operations is required for operations that would disturb the ground. 36 C.F.R. § 228.4(a)(2) (1994).

31. Under this method, a prospector establishes his or her right to newly discovered minerals by marking the boundaries of the claim, filing with the BLM office, and continuing to work the claim diligently. In the 1990s, a $ 100 per year fee was substituted for the work requirement. 30 U.S.C. §§ 28, 28f.

32. Under this method, a prospector can purchase the land provided that the prospector can show discovery of a valuable mineral in commercial quantities. The current rate is $ 2.50 per acre for placer claims and $ 5.00 per acre for lode claims. 43 C.F.R. §§ 3862.4-6, 3863.1 (1994).

33. 16 U.S.C. §§ 1901-1912.

34. Wilderness Act § 4, 16 U.S.C. § 1133(d)(3).

35. If the refuge was acquired by purchase—rather than designated out of previously owned federal lands—mining may be permitted in the refuge if it is compatible with the major purposes of the refuge. National Wildlife Refuge System Administration Act of 1966 § 4, 16 U.S.C. § 668dd(d)(1)(A).

36. 90 Stat. 1092 (not codified).

37. 30 U.S.C. § 1272(e), ELR STAT. SMCRA § 552(e).

38. Wild and Scenic Rivers Act § 9(b), 16 U.S.C. § 1280(a)(iii).

39. 30 U.S.C. § 1272(e)(4)-(5), ELR STAT. SMCRA § 522(e)(4)-(5).

40. 43 U.S.C. § 1732(b), ELR STAT. FLPMA § 302(b).

41. 30 U.S.C. § 1272, ELR STAT. SMCRA § 522.

42. Id. § 201(a)(3)(A)(i); 43 C.F.R. § 3420.1-4 (1994).

43. 30 U.S.C. § 1272(a), ELR STAT. SMCRA § 522(a); see MCELFISH & BEIER, supra note 3, ch. 10.

44. 30 U.S.C. § 1260(b)(2), ELR STAT. SMCRA § 510(b)(2).

45. Id. § 1304, ELR STAT. SMCRA § 714.

46. 25 U.S.C. § 2102.

47. 30 U.S.C. § 1260(b)(6), ELR STAT. SMCRA § 510(b)(6).

48. Id. § 1258(a), ELR STAT. SMCRA § 508(a).

49. To ensure that miners return land to productive uses, SMCRA requires operators of coal mines to submit a "reclamation plan" as part of the permitting process. Id. § 1257(d), ELR STAT. SMCRA § 507(d). That plan sets forth the information and activities required to "reclaim"—i.e., return to productive use—the specific land that the coal mining permit will cover. Id. § 1258(a), ELR STAT. SMCRA § 508(a).

50. Id. § 1258(a)(2)(C), ELR STAT. SMCRA § 508(a)(2)(C).

51. Id. § 1260(b)(2), ELR STAT. SMCRA § 510(b)(2); id. § 1265(b)(2), ELR STAT. SMCRA § 515(b)(2).

52. Id. § 1260(d), ELR STAT. SMCRA § 510(d).

53. Id.

54. Id. § 1265, ELR STAT. SMCRA § 515.

55. Id. § 1245, ELR STAT. SMCRA § 515.

56. 36 C.F.R. § 228.8 (1994).

57. 43 C.F.R. § 3809.2-2 (1994).

58. See McELFISH ET AL., supra note 29.

59. See supra note 30.

60. 30 U.S.C. § 1257(b)(15), ELR STAT. SMCRA § 507(b)(15).

61. Id. § 1258(a)(13)(A), ELR STAT. SMCRA § 508(a)(13)(A).

62. Id. § 1265(b)(11), ELR STAT. SMCRA § 515(b)(11).

63. McELFISH & BEIER, supra note 3, ch. 6.

64. 30 U.S.C. § 1257(b)(11), ELR STAT. SMCRA § 507(b)(11).

65. Id. § 1258(a)(13)(C), ELR STAT. SMCRA § 508(a)(13)(C).

66. Id. § 1307(b), ELR STAT. SMCRA § 717(b).

67. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

68. Id. §§ 1311, 1342, ELR STAT. FWPCA §§ 301, 402.

69. 40 C.F.R. §§ 434.30-.35, 434.40-.45 (1994).

70. Id. § 122.26 (1994); see generally CHRISTOPHER M. WEST ET AL., MINERAL POLICY CTR., MINES, STORMWATER POLLUTION, AND YOU: A CITIZEN'S HANDBOOK TO STOPPING WATER POLLUTION FROM MINES (1995).

71. WEST ET AL., supra note 70, at 28-30.

72. Id. at 41.

73. 42 U.S.C. § 1344, ELR STAT. FWPCA § 404.

74. CAL. PUB. RES. CODE §§ 30106, 30400 (West 1986).

75. California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 17 ELR 20563 (1987).

76. "Superfund" is the common name for the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

77. Id. § 9603(a), ELR STAT. CERCLA § 103(a).

78. Id. § 9604, ELR STAT. CERCLA § 104.

79. ARIZ. REV. STAT. ANN. § 49-241 (Supp. 1994-1995). Features or activities that qualify a facility as a discharger include surface impoundments, solid waste disposal, injection wells, tailing piles and ponds, leaching operations, wastewater treatment facilities, addition of pollutants to underground caves or mines, and point source discharges to navigable waters.

80. ARIZ. COMP. ADMIN. R. & REGS. R18-9-108 (1994).

81. ARIZONA DEP'T OF ENVTL. QUALITY, ARIZONA MINING BADCT GUIDANCE MANUAL (Draft Aug. 14, 1995).

82. Nuisance laws may also allow property owners to address air pollution or other environmental problems created by mining operations.

83. 42 U.S.C. § 7410, ELR STAT. CAA § 110.

84. NEV. ADMIN. CODE §§ 445.734, .736 (1993).

85. 42 U.S.C. § 7475(a), ELR STAT. CAA § 165(a).

86. Breen & Campbell-Mohn, supra note 9, at 1032.

87. 42 U.S.C. § 7412, ELR STAT. CAA § 112.

88. Id.

89. McELFISH ET AL., supra note 29, at 27.

90. Federal Coal Mine Health and Safety Act of 1969 §§ 2-318, 30 U.S.C. §§ 801-878.

91. 30 C.F.R. pt. 75 (1994).

92. Id. pt. 70.

93. 30 U.S.C. § 1265(b)(3), ELR STAT. SMCRA § 515(b)(3). A variance to the approximate original contour restoration requirement may be granted in certain limited circumstances when, among other conditions, the potential post-mining use constitutes an equal or better use of the land. Id. § 1265(e), ELR STAT. SMCRA § 515(e).

94. Id. § 1265(b)(16), ELR STAT. SMCRA § 515(b)(16).

95. Id. § 1265(b)(20), ELR STAT. SMCRA § 515(b)(20).

96. 30 U.S.C. § 1266, ELR STAT. SMCRA § 516.

97. 30 C.F.R. § 817.121(f) (1994).

98. 30 U.S.C. § 1309a, ELR STAT. SMCRA § 720.

99. See, e.g., MD. REGS. CODE tit. 08, § 08.20.13.10 (1993).

100. 36 C.F.R. § 228.8 (1994).

101. Id. § 228.8(f).

102. Id. § 228.8(g).

103. 43 C.F.R. § 3809.2.2 (1994).

104. Id. § 3809.0-5(j).

105. COLO. REV. STAT. § 34-32-109(2) (1994).

106. Id. § 34-32-116(7).

107. Mineral Lands Leasing Act of 1920 § 1, 30 U.S.C. § 181; 90 Stat. 1092 (not codified).

108. 30 U.S.C. § 1272(e)(2)(B), ELR STAT. SMCRA § 522(e)(2)(B).

109. 43 C.F.R. subpt. 3461 (1994).

110. 30 U.S.C. § 1265(b)(19), ELR STAT. SMCRA § 515(b)(19).

111. Id. § 1265(b)(17), ELR STAT. SMCRA § 515(b)(17).

112. 36 C.F.R. § 228.8(e) (1994).

113. Id. § 228.8(g)(5).

114. 43 C.F.R. § 3809.2-2(d) (1994).

115. COLO. MINING R. & REGS. R3.1.8(1) (1995); see McELFISH ET AL., supra note 29, at 121.

116. COLO. MINING R. & REGS. R5.3.2 (1995).

117. McELFISH ET AL., supra note 29, at 27.

118. ARIZONA STATE OFFICE, BLM, CYANIDE MANAGEMENT PLAN (Apr. 1992).

119. Id. at 8.

120. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

121. Id. § 1538, ELR STAT. ESA § 9.

122. Act of July 3, 1918, 40 Stat. 755 (codified at 16 U.S.C. §§ 703-711).

123. Migratory Bird Treaty Act § 6, 16 U.S.C. § 707(a).

124. 16 U.S.C. § 1536, ELR STAT. ESA § 7.

125. 30 U.S.C. § 1260(c), ELR STAT. SMCRA § 510(c).

126. See McELFISH & BEIER, supra note 3, at 72.

127. 36 C.F.R. § 228.5; 43 C.F.R. § 3809.1-6.

128. ARIZ. COMP. ADMIN. R. & REGs. R18-9-108 (1991).

129. ARIZ. REV. STAT. ANN. § 49-109 (Supp. 1994-1995).

130. ARIZ. COMP. ADMIN. R. & REGS. R18-9-121 (1991).

131. ARIZONA DEP'T OF ENVTL. QUALITY, AQUIFER PROTECTION PERMITS APPLICATION GUIDANCE MANUAL (Draft Feb. 1, 1990).

132. 30 U.S.C. § 1271(a)(4), ELR STAT. SMCRA § 521(a)(4).

133. Id.

134. MONT. CODE ANN. § 82-4-362(1)-(2) (1994).

135. Notwithstanding the statutory language requiring reporting on a monthly basis, the regulations implementing this section have not required monthly reporting. Monitoring data from groundwater and surface water monitoring for both surface and underground mines is to be submitted every three months or more frequently if required by the regulatory authority. 30 C.F.R. §§ 816.41(c)(2), 816.41(e)(2), 817.41(c)(2), 817.41(e)(2).

136. 30 U.S.C. § 1267(b), ELR STAT. SMCRA § 517(b).

137. Id. § 1267(c), ELR STAT. SMCRA § 517(c).

138. Id. § 1267(e), ELR STAT. SMCRA § 517(e).

139. Id. § 1267(f), ELR STAT. SMCRA § 517(f).

140. Id. § 1271(a)(1), ELR STAT. SMCRA § 521(a)(1).

141. Id.

142. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

143. Id. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.

144. Id. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

145. 33 U.S.C. § 1318, ELR STAT. FWPCA § 308.

146. 43 C.F.R. § 3809.3-6.

147. 36 C.F.R. § 228.7.

148. 30 U.S.C. § 1271(a)(2), ELR STAT. SMCRA § 521(a)(2).

149. Id. § 1271(a)(3), ELR STAT. SMCRA § 521(a)(3).

150. Id. § 1271(c), ELR STAT. SMCRA § 521(c).

151. 36 C.F.R. § 228.7.

152. Id.

153. 43 C.F.R. § 3809.3-2.

154. Id. § 3809.3-2(c).

155. 42 U.S.C. §§ 9605, 9607, ELR STAT. CERCLA §§ 105, 107.

156. Id. § 9606, ELR STAT. CERCLA § 106.

157. Id. § 6973, ELR STAT. RCRA § 7003.

158. The court in Lincoln Properties, Ltd. v. Higgins, 23 ELR 20665 (E.D. Cal. 1993), noted:

First, it is significant that the word "may" precedes the standard of liability: "this is 'expansive language,' which is 'intended to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risk posed by toxic wastes.'" ….

Second, "endangerment" means a threatened or potential harm and does not require proof of actual harm…. "When one is endangered, harm is threatened; no actual injury need ever occur." ….

Third, a finding of "imminence" does not require a showing that actual harm will occur immediately so long as the risk of threatened harm is present … even though the harm may not be realized for years…. Finally, the word "substantial" [does not require quantification of the risk if there is some cause for concern that someone may be exposed to risk] …. However, injunctive relief should not be granted "where the risk of harm is remote in time, completely speculative in nature, or de minimis in degree."

Id. at 20671 (first emphasis added) (citations omitted).

159. 42 U.S.C. § 6972(a)(1)(B), ELR STAT. RCRA § 7002(a)(1)(B).

160. ARIZ. REV. STAT. ANN. § 49-261 (Supp. 1994-1995).

161. Id.

162. Id. § 49-262.

163. S.C. CODE ANN. § 48-20-130 (Law. Co-op. 1993).

164. Id.

165. People who violate this duty are known as "tortfeasors." People who are injured because of a tortfeasor's violation of his or her duty to act reasonably may bring common-law lawsuits. Such lawsuits typically are based on allegations of "negligence," "nuisance," or "trespass." See, e.g., RESTATEMENT (SECOND) OF TORTS §§ 519-20, 839 (1977) (liability for, respectively, "abnormally dangerous" activities and "artificial conditions" on property). In some cases, states have modified their common law by statute.

166. 30 U.S.C. § 1268, ELR STAT. SMCRA § 518.

167. Id. § 1268(h), ELR STAT. SMCRA § 518(h).

168. Id. § 1268(c), ELR STAT. SMCRA § 518(c).

169. Id. § 1268(e), ELR STAT. SMCRA § 518(e).

170. Id. § 1268(f), ELR STAT. SMCRA § 518(f).

171. 43 U.S.C. §§ 1701-1784, ELR STAT. FLPMA §§ 102-603.

172. Id. § 1733, ELR STAT. FLPMA § 303.

173. 42 U.S.C. § 7413, ELR STAT. CAA § 113; 33 U.S.C. § 1319, ELR STAT. FWPCA § 309; 42 U.S.C. §§ 9603, 9609, ELR STAT. CERCLA §§ 103, 109.

174. CAL. WATER CODE § 13350 (West 1992).

175. MONT. CODE ANN. § 82-4-361 (1994).

176. ARIZ. REV. STAT. ANN. § 49-263 (1988 & Supp. 1994-1995).

177. 30 U.S.C. § 1259(a), ELR STAT. SMCRA § 509(a).

178. Many states allow "alternative" bonding systems under which operators contribute to a fund that helps guarantee performance, thereby lowering the per acre bond amount posted by each operator. See McELFISH & BEIER, supra note 3, ch. 5.

179. 30 U.S.C. § 1269(f), ELR STAT. SMCRA § 519(f).

180. 36 C.F.R. § 228.13(a).

181. Id. § 228.13(b).

182. Id. § 228.13(d).

183. 43 C.F.R. § 3809.1-9(b).

184. Id.

185. Id.

186. BLM, INSTRUCTION MEMORANDUM 90-582 (Aug. 14, 1990).

187. 43 C.F.R. § 3809.1-9(f).

188. MONT. CODE ANN. § 82-4-338 (1994).

189. 30 U.S.C. § 1270(a), ELR STAT. SMCRA § 520(a).

190. Id. § 1270, ELR STAT. SMCRA § 520.

191. 5 U.S.C. §§ 551-559, 701-706, available in ELR STAT. ADMIN. PROC.

192. Id. § 702, available in ELR STAT. ADMIN. PROC.

193. See supra note 159 and accompanying text.

194. MONT. CODE ANN. § 82-4-354 (1994).

195. Id.

196. Id.

197. Luke J. Danielson et al., The Summitville Story: A Superfund Site Is Born, 24 ELR 10388 (July 1994).

198. McELFISH& BEIER, supra note 3, at 143.

199. LYON, supra note 21.

200. McELFISH & BEIER, supra note 3, at 253.

201. SMCRA already provides safeguards with respect to coal mining. 30 U.S.C. § 1267, ELR STAT. SMCRA § 517.

202. Id.

26 ELR 10159 | Environmental Law Reporter | copyright © 1996 | All rights reserved