Academic journal article Washington and Lee Law Review

This Land Is Your Land, This Land Is Mined Land: Expanding Governmental Ownership Liability under CERCLA

Academic journal article Washington and Lee Law Review

This Land Is Your Land, This Land Is Mined Land: Expanding Governmental Ownership Liability under CERCLA

Article excerpt

Table of Contents

I. Introduction.1014

II. The History and Legal Framework of CERCLA.1019

A. The EPA's Authority Under CERCLA.1020

B. Establishing CERCLA Liability.1023

C. Ownership Liability Under CERCLA.1026

1. Tests Addressing Ownership Liability Under CERCLA.1027

2. Federal Government Liability as the Owner of Public Lands.1029

III. The Rise and Fall of the Bare Legal Title Defense.1033

A. The Federal Government Successfully Evades Liability.1034

B. Two Courts Reject the Bare Legal Title Defense ... 1038

1. Chevron Mining v. United States Rejects the Bare Legal Title Argument.1039

2. El Paso Natural Gas v. United States Applies Chevron Mining's Reasoning.1042

IV. The Bare Legal Title Defense is Inconsistent with CERCLA.1043

A. Bare Legal Title Is an Improper Expansion of the Site Control Test.1044

B. Bare Legal Title is Inconsistent with the Goals of CERCLA.1048

1. Contrary to CERCLA's Goal of Timely Cleanup.1048

2. Contrary to CERCLA's Deterrent Goals.1049

3. Contrary to the Congress' Rejection of a Causation Requirement.1051

4. Congress's Intention to Hold the Federal Government Liable.1052

C. The Government Cannot Argue a Defense Outside of the Statutory Language.1053

D. Bare Legal Title Blurs the Owner-Operator Distinction in CERCLA.1056

E. Bare Legal Title is Inconsistent with Other CERCLA Case Law.1060

F. CERCLA's Apportionment Phase Covers Equitable Concerns.1063

V.The Federal Government Should Be Held Liable as an Owner .1065

A. Policy Implications of Expanding Governmental Liability.1068

VI.Conclusion.1071

I. Introduction

On August 5, 2015, the Gold King Mine spill released millions of gallons of mining waste from an abandoned mine into the surrounding ecosystem.1 This spill occurred during an Environmental Protection Agency (EPA) investigation of the abandoned Gold King Mine.2 Accumulated mine drainage at the entrance of the mine unexpectedly gave way, causing a torrent of water and mining waste to flow into the nearby Cement Creek.3 The waste moved swiftly from Cement Creek into the Animas River north of Silverton, Colorado, turning the water an opaque orange color.4 In total, the accident resulted in the release of an estimated three million gallons of acid drainage, which ultimately flowed into the Colorado River.5 The water released from the mine contained a number of heavy metals, including lead, arsenic, mercury, and cadmium, that severely polluted the nearby ecosystems.6

While the Gold King Mine Spill provides an extreme example of environmental contamination caused by legacy hard rock mining, the environmental impact of mining is an issue that extends far beyond the Animas River.7 Thousands of gallons of pollutants spill into United States waterways from abandoned mines every minute.8 In fact, there are approximately 23,000 abandoned mines in the state of Colorado alone and approximately 500,000 abandoned mines across the United States.9 While hard rock mining produces hundreds of billions of dollars' worth of minerals, the owners of mining sites often abandon the mines once the minerals are not economically retrievable.10 In some cases, such as with the Gold King Mine spill, these abandoned mining sites have caused environmental, health, and safety problems, polluting water supplies and affecting nearby residential areas, fish populations, and wildlife habitations.11 In all, mining waste is responsible for considerable damage to human health and the environment.12

In response to the threats hazardous waste poses to public health and the environment, Congress passed the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).13 CERCLA provides the EPA with an avenue to compel responsible parties to clean up abandoned mining sites.14 However, when looking to remediate sites, the EPA is faced with a number of challenges. …

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