Amicus Curiae Brief — ASARCO Inc. v. Louisiana-Pacific Corp.

MINERS

ASSOC., CALIFORNIA

MINING ASSOC., THE COLORADO MININ

EASTERN OREGON

“ILED (6)

pec 8 1994 No. 94-833

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1994

ASARCO INCORPORATED,

Petitioner,

Vv

LOUISIANA-PACIFIC CORPORATION, et al.,

Respondents.

MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF

AND AMICI CURIAE BRIEF OF ALASKA

ASSOC., ARIZONA MINING

ASSOC

O MINING ASSOC., IDAHO MINING

ASSOC., MONTANA MINING ASSOC., NEW MEXICO

MININ MININ

., NORTHWEST G ASSOC.

OREGON INDEPENDENT MINERS, SOUTH DAKOTA

MINING ASSOC., UTAH MINING ASSOC., AND

WYOMING MINING ASSOC. IN SUPPORT OF

ASARCO INCORPORATED’S PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIR

AMICI CURIAE BRIEF

GREGORY W. DUNCAN

Counsel of Record

HARRISON, LOENDORF & POSTON

2225 Eleventh Avenue, Suite 21

Helena, Mortana 59601

(406) 442-6350

Attorneys for Amici

Ab

No. 94-833

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1994

ASARCO INCORPORATED,

Petitioner,

v. ;

LOUISIANA-PACIFIC CORPORATION, et al.,

Respondents.

MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF

OF ALASKA MINERS ASSOC., ARIZONA MINING

ASSOC., UTAH MINING ASSOC., AND WYOMING

MINING ASSOC. IN SUPPORT OF ASARCO

INCORPORATED’S PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

MOTION FOK LEAVE TO FILE AMICI CURIAE BRIEF

GREGORY W. DUNCAN

Counsel of Record

HARRISON, LOENDORF & POSTON

2225 Eleventh Avenue, Suite 21

Helena, Montana 59601

(406) 442-6350

Attorneys for Amici

1

A. Consent To File Brief Of Amici Curiae Has Been

Denied.

Alaska Miners Associations, Arizona Mining Association,

California Mining Association, The Colorado Mining Associa-

tion, Eastern Oregon Mining Association, Idaho Mining

Association, Montana Mining Association, New Mexico Mining

Association, Northwest Mining Association, Oregon Independent

Miners, South Dakota Mining Association, and the Utah Mining

Association by and through their attorney and counsel of record,

Gregory W. Duncan, move this Court for leave to file an amici

curiae brief.

This motion is necessary because Amici have attempted to

gain the consent of the parties and have been denied the consent

of all parties except ASARCO INCORPORATED, Petitioner,

who has given consent.

Consent was denied by Louisiana-Pacific Corporation, Port

of Tacoma, Murray Pacific Corp., Cascade Timber Co.,

William B. Fjetland, B & L Trucking, Eagle Trucking,

Executive Bark, Wasser & Winters Co., Portac, Inc., Industrial

Mineral Products, Inc., and the Environmental and Natural

Resources Division of the Department of Justice.

Denial of consent was received in the form of a facsimile

letter from Jeffrey W. Leppo, Bogle and Gates, Counsel for the

Port of Tacoma, which states:

We are writing as counsel for the Port of Tacoma in

response to your letter of November 26, 1994. Your letter

requests consent to the filing of an amici curiae brief on

behalf of the various mining associations. We have

consulted with counsel for all the respondents in this

matter, each of whom received a similar letter requesting

consent.

The Port and other respondents appreciate the courtesy

of your request, but do not consent to the filing of an amici

curiae brief in support of Asarco’s writ of certiorari.

2

B. The Brief Of Amici Raises Important Issues Not

Addressed In The Petition.

Amici are a diverse group of state and regional mining

associations, representing mining and mineral processing

interests predominately located in the western United States.

With thousands of members, Amici represent all aspects of the

mining industry -- from entrepreneurial exploration ventures to

large-scale mines and the numerous and various processors of

mineral products. Amici bring a broad, industry-wide perspec-

tive to the issues presented in this case, which is unavailable to

the parties.

Amici submit this brief because the resolution of the issues

presented by this case -- whether CERCLA’s liability provisions

extend to so-called “Bevill Waste” and whether good faith

recycling of mining and mineral processing wastes will give rise

to CERCLA liability - will have profound and long-lasting

effects on the mining industry and on the environment. Amici’s

members thus have a vital interest in the outcome of this case.

Specifically, Amici address the following issues:

1. The importance of the mining industry: Amici explain

why this industry is both a unique and essential industry and

provide background on its size relative to the economy as a

whole.

2. Waste generation issues in the mining industry: Amici

explain waste generation in the mining industry and, in particu-

lar, the high volume/low hazard characteristics of mining and

mineral processing waste.

3. The industry-wide effects of the Ninth Circuit’s

decision: With the broad perspective provided by the diverse

membership of Amici, representing all aspects of the mining

industry, Amici explain the adverse consequences the industry

will suffer if the Ninth Circuit’s decision is allowed to stand.

Specifically, Amici describe how the Ninth Circuit’s decision

undermines the environmental policies reflected in state and

federal environmental laws. Amici also explain how the

decision undermines incentives to undertake remining and

3

reprocessing efforts - efforts that are both environmentally and

economically beneficial.

4. State-regulation: Amici also describe the state regulato-

ry programs already governing the mining industry.

Amici believe that it is important for the Court to consider

all these issues in resolving the petition for a writ of certiorari

and thus ask this Court for leave to file the attached brief of

Amici Curiae.

Respectfully submitted this day of December, 1994.

By:

Gregory W. Duncan

Counsel of Record

Harrison, Loendorf & Poston

Attorneys for Amici

No. 94-833

In the Supreme Court

OF THE

United States

OcTOBER TERM, 1994

ASARCO INCORPORATED,

Petitioner,

Vv.

LOUISIANA-PACIFIC CORPORATION, et al.,

Respondents.

AMICI CURIAE BRIEF OF ALASKA MINERS ASSOC.,

ARIZONA MINING ASSOC., CALIFORNIA MINING

ASSOC., THE COLORADO MINING ASSOC.

AMICI CURIAE BRIEF

GREGORY W. DUNCAN —

Counsel of Record

HARRISON, LOENDORF & POSTON

2225 Eleventh Avenue, Suite 21

Helena, Montana 59601

(406) 442-6350

Attorneys for Amici

i

TABLE OF CONTENTS

Page

TAR Oe GUN Ve wiehiced Suk aceleieel i

er ii

STATEMENT OPINTEREST................. 1

SUMMARY OF ARGUMENT ................ 3

pe i es a 5

A. The Mining Industry And Mine

Wee Ge i See ee. 5

1. Mining Is An Essential

Me Pe Oe se 5

2. The Nature Of Mining And

Mineral Processing Makes The

Production Of Large Waste

Volumes Inevitable ............... 6

3. Mining And Mineral Processing

Waste Is Very Low Hazard

MM es re ee kkk 9

B. Remining And Reprocessing Of

tte lilt 11

1. Remining And Reprocessing \

Of Mining And Mineral

Processing Wastes Is

Economically And

Environmentally Sound ............ 11

2. The Ninth Circuit’s Decision

Undermines Incentives To

Undertake Remining And

I ee fei. kk Ae. 12

C. The Ninth Circuit’s Ruling

Introduces Economic Uncertainty

TO The MMIBE WORN ok nd cae e.. 14

D. States Already Regulate Mining

And Mineral Processing Waste ........... 15

OR i oa oe as ae cs kk cee cn 17

ii

TABLE OF AUTHORITIES

Legislative and Regulatory Material

Water Pollution Prevention & Control Act of

1994, S. Rep. 103-257, 103rd Cong., 2d Sess.

Ol Fe Se. 8a nha bse eo lai

Final Regulatory Determination for Special

Wastes from Mineral Processing,

31] Fed. ROS. Zraeeeeeek Fh CL aA...

Regulatory Determination for Wastes from the

Extraction and Beneficiation of Ores and

Minerals, 51 Fed. Reg. 24496

Oaly 3, tree sees OFRAVA Gans...

126 Cong. Rec. 3361

(daily ed. Feb. 20, 1980)

(statement of Rep. Bevill) ...........

Other Authorities

Bureau of Mines, Mineral Commodity

gammmnarets (1999) tei. GA gait...

Bureau of Mines, / Minerals Yearbook

Page

ISS (IPRS) sie ne DD Ee. 6, 8, 13, 15

Colorado’s Policy Regarding Mining &

Environmental Cleanup (1987) ........

Stephen E. Kesler, Mineral Resources,

Economics & the Environment

fo ere rr eet are

John E. Tilton, Mining Waste & the

Polluter-Pays Principle in the United States,

in Mining and the Environment 57

(Roderick G. Eggert ed., 1994) ........

iii

TABLE OF AUTHORITIES

(cont’d)

Roderick G. Eggert, National Security & Recent

Trends in U.S. Mining & Mineral Processing,

10 Materials & Society 113

COUN, fateh Mbt Miadles Gib Ge ida 64 6 eib save 6

Steven G. Barringer & Kelly A. Johnson,

Survey of State Mining Regulatory Programs in

the Western United States

Ts Gr hs Bathe tend & o.oo occ coves 16

Dan Gallagher, Town Fights Proposal for

Superfund Site, L.A. Times,

FOGP Oe RPMs SE. ea ee ok 15

EPA: A Study of Waste Generation, Treatment &

Disposal in the Metals Mining Industry

(EPA Midwest Research Unit 1976) ........ 8

EPA: Mining Waste Management 3

pS 2 LISTEN Sat 7, 12

EPA: Superfund Program Proposed Plan: Sharon

Steel/Midvale Tailings Site

ee soe 5 cc os .0 cc 13

EPA: Report to Congress on Special Wastes from

po Be | Et er aa 10

EPA: Wastes from the Extraction and Beneficiation

of Metallic Ores, Phosphate Rock, Asbestos,

Overburden from Uranium Mining, and Oil

Shale (December 1985) ............ passim

1

STATEMENT OF INTEREST

Amici submit this brief in support of the petition for a writ

of certiorari. Amici are a diverse group of state and regional

mining associations, representing mining and mineral processing

interests predominately located in the West. With thousands of .

members, Amici represent all aspects of the mining industry -

from entrepreneurial exploration ventures to large-scale mines

and the numerous and various processors of mineral products.

Amici submit this brief because the resolution of the issues

presented by this case -- whether CERCLA’s liability provisions

extend to so-called "Bevill Waste" and whether good faith

recycling of mining and mineral processing wastes will give rise

to CERCLA liability - will have profound and long-lasting

effects on the mining industry and on the environment.

Amici include the following organizations:

Alaska Miners Association: Founded in 1939, the Alaska

Miners Association has approximately 1,000 members. Its

members include individual prospectors, family-run mining

operations, geologists and other professionals, and large,

international mining organizations.

Arizona Mining Association: The Arizona Mining Associa-

tion represents Arizona’s mining and metallurgical industries.

California Mining Association: The California Mining

Association represents California’s leading mineral products

producers. The 1993 value of nonfuel mineral production in

California was estimated to be $2.28 billion.

The Colorado Mining Association: Established in 1876,

The Colorado Mining Association represents 113 companies and

approximately 1,000 individuals. The Association is composed

of both small and large enterprises engaged in all aspects of the

Eastern Oregon Mining Association: With a membership

numbering approximately 500, the Eastern Oregon Mining

2

Association represents small, independent miners in Oregon,

Washington, Nevada and Idaho.

Idaho Mining Association: The Idaho Mining Association

represents 14 mining companies in Idaho. Mineral production

and processing in Idaho in 1992 was valued at $778 million.

The Association also represents nine mineral exploration

companies and 54 companies that provide supplies and services

to Idaho’s mining industry.

Montana Mining Association: With approximately 600 —

members, the Montana Mining Association represents every

major producer of hardrock minerals in Montana. Members

include exploration and mining firms, individual prospectors,

and others.

New Mexico Mining Association: The New Mexico Mining

Association has approximately 300 members, representing all

aspects of the New Mexico mining industry.

Northwest Mining Association: The Northwest Mining

Association was formed in 1895 in Spokane, Washington. Its

membership numbers more than 2,800. The Association is

international in scope, with most of its members residing in the

Western United States.

Oregon Independent Miners: This mining association

represents 14 mining organizations in Oregon and Washington,

with a total membership of approximately 2,500. Members

range from small, independent miners to large mining compa-

nies.

South Dakota Mining Association: Formerly the Black Hills

Mining Association, the South Dakota Mining Association

i or nae It has almost 200

Fed i aaitilde: The Utah Mining Association has

129 members, representing a broad cross-section of the mining

industry. The value of mineral production in Utah in 1993 was

approximately $1.86 billion.

a a ee ee in

3

Wyoming Mining Association: Founded in 1955, the

Wyoming Mining Association represents Wyoming’s mining

industry, which employs thousands of people in the mining and

processing of bentonite, coal, gold, trona and uranium.

SUMMARY OF ARGUMENT

As Congress recognized when it enacted the Bevill Amend-

ment, from an environmental perspective the mining and mineral

processing industry is unlike other industry because it produces

high volumes of low hazard waste. For example, the produc-

tion of one ton of copper ore can generate as much as 500 tons

of waste; for gold, the ratio of waste to ore is 350,000:1.

Mining wastes, unlike many production-related wastes, are

almost entirely nonhazardous. This conclusion is not merely the

mining industry’s assertion; it is based on EPA’s Report to

Congress on mining wastes, which was mandated by the Bevill

Amendment. The study found that less than five percent of

mining waste could be classified as hazardous under EPA

standards. EPA, Wastes from the Extraction and Beneficiation

of Metallic Ores, Phosphate Rock, Asbestos, Overburden from

Uranium Mining, and Oil Shale ES-12 (December 1985)

(hereinafter "1985 EPA Report to Congress"). In a later

determination, EPA found that less than one percent of these

wastes would fail EPA’s toxicity test. See Regulatory Determi-

nation for Wastes from the Extraction and Beneficiation of Ores

and Minerals, 51 Fed. Reg. 24496, 24498 (July 3, 1986). This

result should come as no surprise: much of the “waste”

produced by mining is simply excavated rock, clay and dirt.

The Ninth Circuit’s decision in this case fails not only to

comport with Congressional intent but also fails to recognize

these unique “high volume, low hazard" characteristics -- the

characteristics that underlaid Congress’ decision to exempt these

materials from regulation as RCRA hazardous wastes and from

CERCLA. The court ignored the careful balance struck by

Congress when it passed the Bevill Amendment. The Ninth

Circuit’s willingness to ignore Congressional intent -- indeed its

4

willingness to nullify the Bevill Amendment as applied to

CERCLA! -- will have far-reaching adverse consequences in the

mining industry. Moreover, the Ninth Circuit’s decision ignores

the fact that states already have in place comprehensive mine

waste regulatory programs. These programs are tailored to the

unique environmental considerations present in each affected

state; federalizing this law by imposing CERCLA liability will

undermine states’ efforts in this area.

The court’s ruling, if allowed to stand, will also undermine

the policies reflected in the federal environmental statutes. This

point is best illustrated by the effect the court’s decision will

have on industry incentives to engage in remining of existing

sites and reprocessing of existing mine waste. As explained

below, remining and reprocessing wastes at existing sites not

only reduces those risks that are posed by mining waste but also

diminishes the need to open new mines in otherwise unspoiled

territory. Yet, under the Ninth Circuit’s ruling, mining

companies now face grave and often unquantifiable risks if they

undertake remining or reprocessing efforts -- risks that make it

highly unlikely that they will engage in these environmentally

beneficial activities. The court’s ruling not only conflicts with

the meaning and purpose of the Bevill Amendment as applied to

CERCLA, but also undermines a central purpose of the federal

environmental regulatory structure, i.e., to encourage environ-

mentally sound business practices.

The Ninth Circuit’s ruling does not just create perverse

incentives with respect to remining; it also introduces substantial

economic uncertainty in the mining industry. Unlike many

business risks, the risks associated with CERCLA liability are

unusually difficult to quantify. That problem is especially acute

where, as here, the industry inevitably produces enormous

1 The Petition for a Writ of Certiorari explains in detail

why the Ninth Circuit’s ruling nullifies the Bevill Amendment

as it is incorporated in CERCLA. Amici agree with Petitioner’s

analysis of the issue and will not repeat it here.

5

volumes of waste. A misstep or miscalculation regarding

liability for mine waste could be extremely costly. Faced with

the difficult task of quantifying these risks and the potentially

catastrophic effects of a misjudgment, mining enterprises will err

on the side of caution, thus foregoing otherwise economically

and environmentally sound activities. In other words, in the

face of diminishing ore qualities and uncertain yet potentially

enormous liability, the domestic mining industry will often

choose not to mine a new site rather than risk CERCLA

liability.

ARGUMENT

A. The Mining Industry And Mine Waste Generation.

1. Mining Is An Essential Industry.

There is little dispute about the importance of the mining

industry. As one scholar recently explained, “[mJining is

essential for modern civilization. Without it, there would be no

automobiles or televisions, no telephones or x-ray machines, no

skyscrapers or computers.” John E. Tilton, Mining Waste and

the Polluter-Pays Principle in the United States, in Mining and

the Environment 57, 57 (Roderick G. Eggert ed., 1994).

Professor Kesler of the University of Michigan notes:

Our civilization is based on mineral resources. .. .

Large-scale production of food for urban populations

depends on mineral fertilizers. The buildings in which

we live and work are made almost entirely of mineral

material that was extracted from Earth. Although a

return to Walden Pond might free some of us from

mineral dependency, most of Earth’s 5.3 billion

inhabitants are actively seeking the comforts that

mineral consumption can provide.

Stephen E. Kesler, Mineral Resources, Economics & the

Environment 1 (1994).

The domestic mining industry has long played an important

role in the national and international affairs of this country. A

6

healthy domestic mining industry, for example, is essential to

national security. See Roderick G. Eggert, National Security &

Recent Trends in U.S. Mining & Mineral Processing, 10

Materials & Society 113 (1986). It also plays an important role

in the U.S. economy. In 1992, the estimated value of domestic

mineral raw materials produced by the mining industry was $32

billion. Bureau of Mines, Mineral Commodity Swnmaries 2

(1993); see also Bureau of Mines, ] Minerals Yearbook 1992 6

(1993). When processed, these minerals and metals had an

estimated value of $310 billion - which accounted for more

than five percent of the U.S. Gross Domestic Product. Bureau

of Mines, Mineral Commodity Summaries 2 (1993).? The

mining industry employed more than 1.9 million people in

1992, operating at 79 percent of capacity. Id. at 5, 7.

Mining also plays a significant roie in maintaining the trade

balance. In 1992, the estimated value of U.S. exports of

mineral raw and processed materials was $37 billion. Bureau

of Mines, Mineral Commodity Summaries 2 (1993).

2. The Nature Of Mining And Mineral Processing

Makes The Production Of Large Waste Vol-

umes Inevitable.

The domestic mining industry now faces substantial

challenges. New reserves are becoming more difficult to locate

and, once located, more difficult to mine. At the same time,

overall ore qualities have declined, increasing costs while

reducing productivity. One persistent challenge, though, has

been the handling and processing of mining and mineral

processing wastes.

? When measured against Gross National Product (as

opposed to Gross Domestic Product), the percentage increases.

According to EPA, the mining industry accounted for more than

nine percent of GNP in 1983. 1985 EPA Report to Congress

2-1.

7

As EPA itself has recognized, the mining industry’s

generation of large waste volumes is both unique and inevitable:

The fact that most of the material handled in mining is

waste and not marketable product distinguishes mining

from many other process industries where waste

materials make up a relatively small portion of the

materials used to produce a final product. Consequent-

ly, some of the larger mining operations handle more

material and generate more waste than many entire

industries.

51 Fed. Reg. 24496, 24497-98 (statement by EPA); see also

1985 EPA Report to Congress 2-10 (“The fact that the materials

handled consist largely of waste or unusable materials distin-

guishes these mining industry segments from many other process

industries . . . ."). :

EPA has also recognized that the nature o. the mining

process -- as opposed to any specific practices of the industry -

- makes large-scale waste generation inevitable. See, e.g.,

EPA, Mining Waste Management 3 (September 1991) (acknowl-

edging that there is little that can be done to reduce the quantity

of mine waste generated). In general, mineral deposits within

100 meters of the surface are extracted from open pit mines and

deeper deposits are extracted from underground mines. Open

pit mines account for approximately 90 percent of the ore mined

in the United States. Stephen E. Kesler, Mineral Resources,

Economics & the Environment 68 (1994). The development of

an open pit mine requires removal of overburden, the worthless

rock that both overlies and is mixed with the ore. A large

copper facility, for example, may handle more than 10 million

tons of material per year, only 30 percent of which is market-

able ore. 1985 EPA Report to Congress 6-3, 64. Even

mining for iron, the most common metal, produces six times

more waste than ore. At the extreme, the ratio of waste to

marketable ore in gold mining is, as shown in the following

table, extraordinarily high.

Table 1.

Ratios of Mining Waste to Marketable Ore

Copper 420:1

Gold 350,000: 1

Iron 6:1

Lead 19:1

Silver 7,500: 1

Uranium 6,900: 1

Zinc 27:1

(1985 EPA Report to Congress, Table 2-5)

The mining and mineral processing industry thus inevitably

generates substantial total waste volumes. Since 1910, the

industry has generated more than 50 billion metric tons of

waste, see 1985 EPA Report to Congress 2-18, and currently

produces approximately 2 billion tons of waste per year.

Bureau of Mines, Mineral Commodity Summaries 6 (1993); see

also EPA, A Study of Waste Generation, Treatment & Disposal

in the Metals Mining Industry 4 (EPA Midwest Research Unit

1976). To put this annual amount in perspective, the total

municipal solid waste generated in the country amounts to only

180 million tons -- less than 10 percent of the mine waste total.

Bureau of Mines, 1 Mineral Yearbook 1992 814 (1993). The

chart below summarizes annual solid waste generation in the

United States:*

* Figures are based on 1985 EPA Report to Congress 6-

3, Stephen E. Kesler, Mineral Resources, Economics & the

Environment 5 (1994), and Bureau of Mines, Mineral Com-

modity Summaries 6 (1993).

3. Mining And Mineral Processing Waste Is Low

Hazard Waste.

Mining waste is unique not only for its high volume; it is

also low hazard waste. Indeed, it was the “high volume, low

hazard” characteristics of mine waste that led Congress to enact

the Bevill Amendment. See, e.g., 126 Cong. Rec. 3361 (daily

ed. Feb. 20, 1980) (statement of Rep. Bevill). Most mining

waste is harmless overburden, consisting of rocks, clay and dirt.

In recognition of this, EPA has permanently exempted mining

extraction and beneficiation waste from regulation under the

strict Subtitle C hazardous waste provisions of the Resource

Conservation and Recovery Act. 51 Fed. Reg. 24496.

EPA’s regulatory determination was based in large part on

its finding in its comprehensive mining waste study that less

than five percent of all extraction and beneficiation wastes could

be classified as hazardous. 1985 EPA Report to Congress ES-

10

12.* Although mining waste contains trace levels of common

heavy metals present in the earth’s crust, EPA later determined

that less than one percent of mining waste fails what is known

as the EP toxicity test, the regulatory test EPA used for

determining whether a waste was hazardous because of hazard-

ous constituents. See 51 Fed. Reg. 24496, 24498. EPA thus

concluded that Subtitle C regulation over mining and mineral

waste processing was, among other things, “environmentally

unnecessary” and “unnecessary to protect human health and the

environment.” 51 Fed. Reg. 24496, 24500.

EPA also completed a comprehensive study of 20 mineral

processing wastes in 1990. See EPA, Report to Congress on

Special Wastes from Mineral Processing (1990) (hereinafter

"1990 EPA Report to Congress"). Based on the results of that

study, EPA issued a final regulatory determination exempting all

20 mineral processing wastes from RCRA Subtitle C regulation.

Final Regulatory Determination for Special Wastes from Mineral

Processing, 51 Fed. Reg. 27300.° The principal reason for this

determination was again the low hazard characteristics of the

wastes:

{I}n the absence of a realistic showing of a potential

risk and/or documented damages from current man-

agement (or in appropriate cases, plausible misman-

agement), EPA believes that Congress would not intend

* Even this figure overstates the actual problem because

of the conservative testing methodology employed by EPA.

* EPA has determined that certain mineral processing

wastes (wastes other than the 20 wastes covered by the study),

fail to meet the Bevill Amendment’s high volume / low hazard

criteria. These other wastes are thus no longer protected by the

Bevill Amendment and are not at issue in this case.

11

to eliminate the special status of these wastes by

imposing hazardous waste regulation under RCRA

Subtitle C. ...

Id. at 27305.

In short, the mining industry is unique in several respects.

It is an essential industry, both for economic and national

security reasons. Its products are both ubiquitous and indispens-

able. Yet the industry’s very nature makes the production of

large waste volumes inevitable. Unlike many production-related

wastes, however, mining waste poses little threat to human

health or the environment. It was for all these reasons that

Congress chose to accord mine wastes special treatment -- yet

the Ninth Circuit’s decision ignores this and consequently poses

a threat to the industry and to the environmental policies

reflected in the federal environmental statutes. At the same

time, it shifts regulatory power from the states to the federal

government.

B. Remining And Reprocessing Of Mining Wastes.

1. Remining And Reprocessing Of Mining And

Mineral Processing Wastes Is Economically And

Environmentally Sound.

Remining and reprocessing of mine wastes holds the

promise of improving environmental conditions while recovering

valuable ore. Estimates of the number of abandoned mining

sites in the U.S. range from 100,000 to 400,000 sites. John E.

Tilton, Mining Waste & the Polluter-Pays Principle in the

United States, in Mining and the Environment 57, 63 (Roderick

G. Eggert ed., 1994). Old mine waste dumps, tailings ponds

and slag heaps are often located in natural drainage areas.

Reprocessing these wastes not only reduces any environmental

hazards associated with them, but also allows them to be

relocated to more appropriate sites. Improvements in technolo-

gy have made it economically feasible to remine many of these

sites and to reprocess the mine wastes at these sites. Indeed, in

considering recent proposed amendments to the Clean Water

12

Act, Congress recognized the importance of encouraging

development of these inactive sites:

Thousands of inactive and abandoned mine sites exist

within the United States, some of which are now

among the most promising areas for future develop-

ment. Encouraging exploration and remining of these

historical sites would serve two fundamental environ-

mental goals. First, it will significantly improve

environmental conditions at these sites by reducing

tailings piles and waste rock, and by triggering state

reclamation requirements. Second, it may reduce the

development of new mining operations in pristine,

undisturbed areas.

Water Pollution Prevention & Control Act of 1994, S. Rep.

103-257, 103rd Cong., 2d Sess. (May 10, 1994). Similarly,

EPA has suggested reprocessing and reuse of mine waste as a

means of reducing environmental harm. See EPA, Mining

Waste Management 3 (September 1991). In short, remining and

reprocessing existing mine wastes both preserves virgin land and

reduces the hazards associated with abandoned sites — it is

exactly the type of activity the federal environmental statutes

were intended to encourage.

tives To Undertake Remining And Reprocessing.

If, as the Ninth Circuit held in this case, the Bevill

exemption to CERCLA is a nullity (because of the constituent

elements found in mine waste that are ubiquitous in the earth’s

crust) the risks associated with remining and reprocessing of

mine waste are prohibitive. Take, for example, the Midvale

site, located south of Salt Lake City. The site has not been

Operational since 1971 and none of the original mining firms

Owns any interest in it. The considerable volume of onsite mine

waste make the site an attractive site for reprocessing. Yat

under CERCLA’s strict, retroactive liability scheme, which

typically imposes joint and several liability for all response costs

at a site, a mining enterprise undertaking reprocessing efforts at

13

Midvale could face liability for the cost of cleaning up the entire

site -- even though by all accounts the remining activity is

environmentally beneficial and even though the remining

enterprise had no involvement in the original contamination.

The risks associated with such a cleanup effort are difficult

to quantify. EPA is considering alternatives for remediating the

tailings piles at Midvale. One alternative would cost about $31

million; a second alternative would cost more than $400 million.

EPA, Superfund Program Proposed Plan: Sharon Steel/Midvale

Tailings Site 4 (uly 1989). A firm interested in reprocessing

waste at Midvale would face the risk not only of cleaning up

any problem it might be found to have created, but also of

being held liable for the tens or hundreds of millions of dollars

in cleanup costs attributable to the activities of others. Faced

with risks of this size and risks spanning such a broad range of

outcomes, firms understandably will choose to mine new sites

rather than undertake remining and reprocessing of existing

sites.

The Bureau of Mines has recently recognized this problem

and the reasons underlying it:

Potential liability under the Comprehensive Environ-

mental Response, Compensation and Liability Act

(CERCLA) of 1980 (Superfund legislation) makes it

risky to rework domestic mining properties .

Potentially responsible parties (PRP’s) are held jointly

- and severally liable - one PRP could be held totally

responsible for a site, even though several parties were

involved in ownership and operation.

Bureau of Mines, / Mineral Yearbook 1992 50 (1993).

Similarly, Colorado has identified the obstacles to remining

posed by CERCLA:

In acquiring or operating [existing sites] for further

development or mineral recovery, mine owners and

and Liability Act (CERCLA). The present uncertainty

14

and potential magnitude of this liability may prevent

the redevelopment of many mining districts which

contain economically recoverable mineral resources.

Colorado’s Policy Regarding Mining & Environmental Cleanup

(1987) (emphasis added; copy on file with counsel of record).

The State is committed to encouraging mining opera-

tions that will achieve both economic development and

significant environmental improvement. The State

recognizes that in many instances the best opportunity

for cleanup of old sites within a reasonable time-frame

is within the context of their redevelopment.

The Bevill Amendment as applied to CERCLA recognized

and accounted for this problem by exempting mining wastes

from CERCLA’s liability provisions, but the Ninth Circuit’s

ruling has undermined remining incentives by effectively

nullifying the Bevill Amendment. The industry and the

environment will suffer as a result. !

C. The Ninth Circuit’s Ruling Introduces Economic

Uncertainty To The Mining Industry.

already started to inhibit mining activities.

Mining firms now face, under the Ninth Circuit’s ruling,

the impossible task of trying to quantify CERCLA risks. This.

is a problem that

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mine site in Triumph, Idaho, range from $5 million to $600

million, depending on the method used. Dan Gallagher, Town

Fights Proposal for Superfund Site, L.A. Times, May 2, 1993,

at BS. Faced with such large and uncertain risks, the industry

will necessarily forego economically and socially desirable

activities. In other words, marginal ore deposits often will be

left untapped because of potential CERCLA liability.

The industry will suffer not only because of the uncer-

tainties associated with these costs, but also because it must

compete with foreign suppliers -- suppliers that do not face

similar regulation. The United States already imports large

quantities of minerals; in 1992, the total value of these minerals

and mineral products exceeded $34 billion. This country’s

dependence on foreign sources will only increase if domestic

mining firms are saddled with the costs and uncertainties of

CERCLA regulation.®

D. States Already Regulate Mining And Mineral

Processing Waste.

Mining sites are concentrated in a relatively small number

of states. More than 90 percent of the mining sites in the

51 Fed. Reg. 24496, 24498; see also 1985 EPA Report to

Congress 6-10 (site factors “the single most important aspect”).

State governments, the governmental entities closest to and most

familiar with these issues, are well positioned to address mine

waste regulation, and either have enacted comprehensive mine

waste regulatory schemes or have other environmental statutes

that can be applied to mining sites.

A comprehensive 1994 legal survey of state mining

regulatory programs in 13 western states evaluated 22 different

regulatory programs:

Soil Standards Air Quality

Stabilization Fish & Wildlife

Sediments, Erosion & Inspection

Drainage Administrative Orders

Surface Restoration Surety Forfeiture

Vegetation Permit Suspension &

Excess Waste Revocation

Sealing Suit for Damages

Structures Injunctions

Hydrological Balance Civil Penalties

Surface Water Quality Criminal Penalties

Ground Water Quality Citizen Suits

The study found that all but one of the 13 states had

programs covering no less than 19 of the 22 areas studied:

several states had programs in every area; and the one state

with less than 19 programs had legislation pending that would

implement programs which, when combined with existing

programs, would provide for regulation of all but one of the

study areas. Steven G. Barringer & Kelly A. Johnson, Survey

of State Mining Regulatory Programs in the Western United

States (April 1994) (copy on file with counsel of record); see

also 1990 EPA Report to Congress, Appendix D-2. In other

study found comprehensive state-level mining

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Given that states are better positioned to regulate mining

activities and already are doing so, federal intervention is

unnecessary and, in many cases, counterproductive. Thus, not

only did the Ninth Circuit err in misreading the Bevill exemp-

tion in CERCLA, its expansion of federal jurisdiction was

entirely gratuitous given the comprehensive state programs

already in place.

CONCLUSION

Amici urge this Court to grant the petition for a writ of

certiorari. The Ninth Circuit’s decision has put the mining and

mineral processing industry at grave risk.

Respectfully submitted this day of December, 1994.

By:

Gregory W. Duncan

Counsel of Record

Harrison, Loendorf & Poston

Attorneys for Amici

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