Regulation of Wastes From the Metals Mining Industry: The Shape of Things to Come

REFERENCES

• The findings from studies of these sites arc presented in “remedial investigation” reports prepared by the CERCLA Litigation Section of the Colorado Office of the Attorney General .
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• U.S. Environmental Protection Agency , Report to Congress Wastes from the Extraction and Beneficiation of Metallic Ores, Phosphate Rock, Asbestos, Overburden from Uranium Mining, and Oil Shale ( December 1985 ), p. 2 – 19 , Table 2-8 (hereinafter EPA Mine Waste Report) .
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• Id. at 2-3, Table 2-1 and 2-20, Table 2-9. Because of the severe slump in the mining industry, this figure is down considerably from the 1.5 billion metric tons of waste generated in 1980 .
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• Id. at 2-22, Table 2-11. The report also notes that mine water may be another waste product .
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• Id., p. 4 – 2 .
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• Id. , p. 4 – 49 .
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• Id. , p, 4 – 71 .
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• Id. , p. 4 – 69 .
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• Id. , pp. 4 – 50 to 4 – 68 ,
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• To analyze compliance costs EPA established two different waste groups for control and four different levels of regulatory controls-thus a total of eight possible regulatory scenarios. The more narrow waste group included wastes meeting the EPA tests for EP toxicity and corrosivity, as well as gold mine tailing wastes from cyanide-process metal recovery operations. The larger waste group also includes waste from gold and silver heap leach operations, waste with high acid formulas potential, and copper dump leach liquids . EPA Mine Waste Report , p. 5 – 3 . The regulatory standards included a minimum set of controls involving permitting, surface water run-on and run-off diversion/collection ditches, ground water monitoring wells and testing, leachatc collection ditches, and post-closure inspection, drainage maintenance, and ground water monitoring. The maximum-control scenario (scenario 1) also requires a security fence, capping of both existing and new waste sites at closure, corrective action via interceptor wells for existing waste amounts (assuming 10 percent require this), and liners for all new waste piles, leaching areas, and tailing ponds. In addition to the common minimum requirements, scenario 2 added the substitution of waste treatment processes where feasible. It also assumes that all sites would need interceptor wells (rather than the initial assumption that only 10 percent would need them.) Scenario 3 is similar to 2 except that cyanide is not removed from gold and silver tailings and sulfides are not removed from copper mill tailings. Scenario 4 is the least-cost approach involving only those requirements listed originally. EPA Waste Report, pp. 5-4 and 5-5 .
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• Id. , p. 5 – 15 , Table 5-4. The high cost assumptions place about 80 percent of the industry under regulation involving about 40 percent of all the wastes generated. Maximum regulatory control would include a security fence, capping of all waste sites at closure, action to clean up contaminated ground water, and liners for all new waste piles. Id.. p. 5-4 .
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• Id. , pp. 5 – 18 to 5 – 19 .
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• Id. , p. 5 – 21 , Table 5-7. The operating costs do not include facility-level capital investment, depreciation, interest expense, or corporate overhead .
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• Id. , p. 5 – 19 , Table 5-6 .
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• Id. , p. 5 – 15 , Table 5-4 .
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• For example, the Clean Water Act regulates point source discharges of water. The Surface Mining ControlReclamation Act directly controls the disposal of solid wastes resulting from surface coal mines. Mining activities on public lands are subject to regulation by the Forest Servicethe Bureau of Land Management. A survey of such programs is provided in E. McGrath and K. Kulasza , Solid and Hazardous Waste Disposal in the Minerals Industries , Rocky Mt. Min. Law Inst. Annual Proceedings , Vol. 27 , pp. 65 – 126 ( Matthew Bender , 1982 ). See also Charles River Associates, Federal Non-EPA Regulations Addressing Mining Waste Practices (1986 Report to EPA) and State Regulation of the U.S. Mining Industry (1986 Report to EPA) .
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• Pub. L. No. 94-580, 90 Stat. 2795 and Pub. L. No. 98-616, 98 Stat., 3224, codified at 42 U.S.C. S 6901 (1982 & Supp II 1984) .
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• Pub. L. No. 96-510, 94 Stat. 2767. codified at 42 U.S.C. §§ 9601-9657 ( 1982 ).
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• 673 F.2d 507 (D.C. Cir. 1982) .
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• Id. at 511. citing 42 U.S.C. § 6903 ( 27 ).
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• 40 C.F.R. § 257.1(c)(2) ( 1985 ).
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• 40 C.F.R. §§ 257.1(c)(6) and (9) ( 1985 ).
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• 42 U.S.C. § 6903(5) ( 1982 ).
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• The exclusion included in the Solid Waste Disposal Act Amendments of 1980 often is referred to as the Bevill Amendment. Pub. L. No. 96-482. 94 Stat. 2334 (1981)), codified at 42 U.S.C. § 692l(b)(3)(A)(ii) ( 1982 ).
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• 45 Fed. Reg. 76619. Nov. 19 , 1980 .
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• Puh. L. 98-616, 98 Slat. 3224, codified at 42 U.S.C. 8 6901 (Supp. II 1984 ).
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• Speeilieally, modilicalions arc permitted in the provisions concerning (1) liquids in landfills; (2) prohibitions on land disposal; (3) solvents and dioxins; (4) disposal into deep injection wells; (5) additional land disposal prohibits determinations; (6) minimum technological requirements; (7) continuing releases ul permitted facilities; and (8) inlcrim status surface impoundments .
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• II.R. Report 98-1133 , pp. 93 – 94 , Oct. 3 . 1984 .
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• 50 Fed. Reg. 40292 , Oct. 2 , 1985 .
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• EPA Mine Waste Report at 1-8 .
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• Environmental Protection Agency, “ Regulatory Determination for Wastes from the Extraction and Bcneliciation of Ores and Minerals ,” Federal Register , Vol. 51 , No. 128 , pp. 24496 – 24502 ( July 3 July 3, 1986 ) ( hereinafter EPA Regulatory Determination ).
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• Pub. L. 96-570. 94 Stat. 2767 ( 1980 ).
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• Section 101(14), 42 U.S.C. § 9601(14) ( 1982 ).
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• Eagle-Picher Industries, Inc. v. United States Environmental Protection Agency , 759 F.2d 922 ( D.C. Dir. 1985 ).
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• Id. at 927 .
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• The full text is as follows (2) For the purposes of this section, "pollutant or contaminant" shall include, but not he limited to, any element, substance, compound, or mixture, including disease-causing agents, which after release into the environment and upon exposure, ingestion, inhalation, or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring. The term docs not include petroleum, including crude oil and any fraction thereof which is not otherwise specifically listed or designated as hazardous substances under section 1()1(4)(A) through (F) of this title, nor docs it include natural gas, liquefied gas, or synthetic gas of pipeline quality {or mixtures of natural gas and such synthetic gas) .
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• The original list included 17 mining or mining-related sites out of a total of 418. Another 5 mining sites have been proposed for addition to the list. ALM 2nd, §l7l.04(2)(c) .
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• Eagle-Picher Industries, Inc. v. United States Environmental Protection Agency , 759 F.2d 905 (D.C. Cir . 1985 ).
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• The HRS "score." calculated by use of this model, results from an analysis three categories of factors "designed to encompass most aspects of the likelihood of exposure to a hazardous substance through release and the magnitude or degree of harm from such exposure." These categories arc (1) the existence or likelihood of a release; (2) the characteristics of the hazardous substances that have been or may be released, and (3) the population or sensitive environment that is threatened. 47 Fed. Reg. at 31,187 ( July 16 , 1982 ).
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• Possible response actions include removal of the released substance and remedial actions such as relocation of people living nearby. In general federal actions are likely to be limited to emergency situations in which no other good options are available and to coordinated cleanup programs involving state and private participation .
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• Section 106(a). 42 U.S.C. § 9606(a) ( 1982 ).
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• See the discussion in Am. Law Mining 2nd, S 171.05(4){c) , p. 171 – 29 .
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• Section 101(16), 42 U.S.C. § 9601(16) ( 1982 ).
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• 50 Fed. Reg. 52126 et seq. (December 20 , 1985 ).
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• These range from assessing the cost of returning the resources to their pre-damage condition, to determining their market value, to imputing value based on other factors .
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• State of Colorado v. Asarco, Inc. , 608 F. Supp. 1484 ( D. Colo . 1985 ). In this case the state sued Asarco which has in turn filed third party complaints seeking contribution from 15 named third-party defendants who are said to own mining claims through which the Yak Tunnel and its laterals traverse. Asarco estimates that there are 200 to 500 potential third-party defendant class members .
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• Colorado Office of the Attorney General, Idarado Mining and Milling Complex Feasibility Study ( June 1986 ).
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• Telephone interview with William Schulze, Department of Economics , University of Colorado , Boulder ( May 23 , 1986 ).
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• A forthcoming article by V. Kerry SmithWilliam H. Desvousages reports finding a consumer surplus value to each household of at least $330 per year for each mile between its residencea landfill containing hazardous wastes . “ The Value of Avoiding a LULU Hazardous Waste Disposal Sites ,” Review of Economics and Statistics ( 1986 forthcoming ).
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• EPA Regulatory Determination, supra note 31, at 24499 .
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• Id. at 24500 .
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• Id. at 24501 .
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• Section 7003 of the Solid Waste Disposal Act was amended by adding subsection (c) "Immediate Notice. Upon receipt of information that there is a hazardous waste at any site which has presented an imminent and substantial endanger-ment to human health, or the environment, the Administration shall provide immediate notice to the appropriate local government agencies. In addition, the administrator shall require notice of such endangerment to be promptly posted at the site where the waste is located." 42 U.S.C. S 6973(c) (Supp II 1984).Section 7002 as amended provides that any person may commence a civil action (A) against any person, including the United States and any other governmental agency who is alleged to be in violation of any standard or regulation which has become effective under the Solid Waste Disposal Act; (B) against any persons, including the United States and any other governmental agency, and including any past or present generator, transporter, owner or operator of a treatment, storage, or disposal facility, who has contributed or is contributing to the handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. 42 U.S.C. § 6972 (Supp. II 1984) .
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