Mining, EPA, and toxic waste : Will your mining company be liable?

Introduction The impact of the Comprehensive Environmental Response, Compensation, and Liability Act, or Superfund, as well as the Resource Conservation and Recovery Act (RCRA) and their state counterparts underscore the intention of the nation's lawmakers to reduce the risk from hazardous substance to American society. The promises and requirements embodied in these laws, together with their prospects for liability, will continue to have a very substantial impact on decision making in the mining industry. These laws present the prospects for staggering liabilities, often of an unquantifiable nature in terms of time and amount. It is therefore necessary to keep them in clear focus. This is particularly true in light of President Reagan's signing into law the Superfund amendments on Oct. 17, 1986, and in light of the Environmental Protection Agency's (EPA) major policy pronouncement of July 3, 1986, regarding solid wastes from extraction of ores and minerals. This article examines the general trends as well as the specific provisions of these laws in an effort to assess the prospects of liability for the mining industry of releases of hazardous substances into the environment. Hazardous substances vs. hazardous wastes The distinction between the terms "hazardous substances" and "hazardous wastes" is important to appreciate for the purposes of assessing the potential for liability for a mining operation. Hazardous substance is a term that appears in and is defined in the Superfund Act. In Superfund, it is defined by reference to other substances that have been declared to be hazardous under other federal environmental statutes, such as RCRA, the Clean Air Act, and the Clean Water Act. Hazardous waste is a term that is less all-encompassing than hazardous substance, as that term is defined by RCRA. Hazardous substances do not need to be wastes to be considered hazardous for the purpose of Superfund liability. A "release" of a hazardous substance into the environment can bring about potential liability under Superfund. Many mining wastes, even though they are not considered hazardous wastes by EPA under RCRA, have been determined by that agency to be capable of bringing about liability under Superfund if they contain chemical substances, such as the heavy metals copper, lead, mercury, zinc, silver, and others. Therefore, it is not sufficient for the mining industry to be able to answer whether one has hazardous waste at a mining site. That question only goes partway in addressing the potential for liability. The next question is, do one's solid or liquid mining wastes contain hazardous substances that could bring about liability under Superfund? Superfund 1980 law: A review Some provisions of Superfund as it existed before its recent amendments must be considered. The law provides that the owners and operators of mining sites, together with those who transport hazardous substances to such sites, can be held jointly and severally liable for the cost of cleaning up the site. The concept of joint and several liability means that one party, as among many, can be held totally responsible for the costs of cleanup. This is particularly true where the harm done by many parties to the envi-