\       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
8 ^f^7  I                      WASHINGTON, D.C,
                                     APR 26  2005
                                                                              OFFICE OF
                                                                            SOLID WASTE AND
                                                                          EMERGENCY RESPONSE
                                                       OSWER Directive 9200.4-38

  MEMORANDUM

  SUBJECT:   Policy on Joint Repositories at Mixed-Ownership Hardrock Mine Sites

  FROM:      Thomas P. Dunne
               Acting Assistant Administrator

  TO:         Regional Administrators I-X

  PURPOSE

         This memorandum presents the Office of Solid Waste and Emergency Response's
  (OSWER) policy on placement of hardrock mine waste in joint repositories at mixed-ownership,
  abandoned hardrock mine sites and mining-impacted watersheds. Regions' are encouraged to
  work with Federal Land Managers (FLMs) in accordance with this policy to maximize the
  appropriate use of joint repositories located on public lands under the jurisdiction of FLMs
  (e.g.. Department of the Interior - Bureau of Land Management,  and Department of
  Agriculture - Forest Service), on private property, or both.2  This policy has been developed as
  part of the One Cleanup Program Federal Environmental Workgroup initiative.

         Based on the criteria described in this memorandum.. OSWER encourages Regions to
  consider the benefits of using joint repositories as a potential cleanup option to address human
  health and environmental risks at abandoned mixed-ownership, hardrock mine sites, and/or
  mining-impacted watersheds. In appropriate circumstances, the use of a common mine waste
  repository allows one agency to be designated as the lead agency for the repository and allows
  the use of inter-agency agreements (e.g., pursuant to the Economy Act)  to share costs, with
  potentially significant cost savings related to full-time equivalents (FTEs), response, and
  contracting.
         'Unless otherwise indicated, the term "Region" in this guidance means an EPA Region.

         2  It is anticipated that there may be sites where the most appropriate location of the joint
   mine waste repository includes both private and Federal land.
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BACKGROUND

      For purposes of this guidance, mixed ownership mine sites generally are those located
partially on private land and partially on public land.3  There are numerous mixed-ownership,
abandoned hardrock mine sites/mining-impacted watersheds. The Forest Service estimates, for
example, that there are over 200 such sites in its Region 1 (Montana, North Dakota, Northern
Idaho, and Northwestern South Dakota) that could require a repository for their wastes,

      Where appropriate, Regions and FLMs should work together to conduct response actions
that reduce risks to human health and the environment.4 Based on past experience where EPA
and FLMs have coordinated response actions at joint repositories, it may be appropriate to
consolidate and place waste in a common mine waste repository located on private land, federal
land, or both,5 In such cases, the Region should enter into a memorandum  of understanding
       3 The United States has taken the position and courts have held that the General Mining
Law (GML or the 1872 Mining Law) allows a person to establish private rights to mine minerals
on federally-owned land by staking a claim to the land. The claimant gains the rights to
beneficial use of the property incident to mining, but the fee simple title remains with the federal
government.  The claim is considered private property, is taxable, and can be sold, leased,
bequeathed, etc. If the claim is abandoned or otherwise becomes invalid, all of the property
rights revert to the federal government under the control of the FLM. Furthermore, a claimant
may, through a process called "patenting," buy the fee simple interest from the federal
government and own the property in its entirety. If the owner of this patented property abandons
it, the property does not revert to the United States, but remains private land. The effect of the
GML is that thousands of former mine sites are now private properties ("inholdings") within the
external boundaries of federal lands managed by FLMs.

       4Where appropriate, Regions also should coordinate with relevant state agencies as
provided in Comprehensive Environmental Response Compensation and Liability Act
(CERCLA) and the National Oil and Hazardous Substances Pollution Contingency Plan (NCP)
(for example, 40 CFR 300.435 and Subpart F).


       5 In some instances, EPA has placed mining wastes from CERCLA clean-ups in
repositories located on private lands. These repositories may co-mingle wastes, and in some
circumstances may also involve the co-disposal of mine waste from federal lands.  For example,
at the Luttrell Pit in Montana (EPA Region 8, Forest Service Region 1 and BLM - Montana) and
the Stibnite Mine in Idaho (EPA Region 10 and Forest Service Region 4) mine wastes from both
private and federal lands will be deposited into a joint repository located on private lands. For
each of these Sites, EPA and the FLMs entered into a repository agreement under which the
FLM agreed  to seek funding for its apportioned share of future response costs in the event of a
repository failure based on the volume of mine waste contributed to the repository from federal
lands.

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(MOU) with the relevant FLM to coordinate the agencies' respective exercise of their authorities
under the Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) and Executive Order 12580.

      Historically, public lands have often been used to dispose of various wastes, including
mining wastes. In some instances, the legal status of mine waste abandoned on federal lands
may be complicated,6 The Forest Service and the Bureau of Land Management (BLM) have
developed general policies that restrict waste disposal, including mining wastes, on their lands,
and both the Forest Service and BLM have issued policies allowing their participation in joint
repositories,7  Consistent with these policies, the FLMs are willing to place waste repositories on
federal lands and accept private waste being handled under EPA authorities in appropriate
circumstances.8

DEFINITIONS

      For the purposes of this policy, Regions should use the following definitions.

      Joint Mine Waste Repository - A joint mine waste repository is defined as an engineered
on-site disposal unit, located on  either federal or private lands, or both, where wastes from both
private lands and federal lands, generated from extraction, beneficiation and mineral processing
(as defined by 40 CFR 261.4(b)(7)), are disposed or placed.
       6Because of the unique nature of the ownership rights granted mining claimants under the
1872 Mining Law, the United States has taken the position and courts have held that the United
States is not liable under CERCLA section 107 as an owner for mine contamination left behind
on public lands by miners operating under the 1872 Mining Law. See United States v.
Friedland. 152 F. Supp. 2d 1234 (D. Colo. 2001); United States v. ASARCO. Inc.. et al.. 280
F.Supp. 2d 1094 (D. Idaho 2003). These courts have also held that the United States is not liable
under CERCLA section 107 as an "operator" as a result of the encouragement of mining by the
Government during World War II. Furthermore,  on June 24,2003, the Director of the EPA's
Federal Facilities Enforcement Office (FFEO) issued a policy memorandum entitled "Policy on
Listing Mixed Ownership Mine or Mill Sites Created as a Result of the General Mining Law of
1872," providing guidance to Regional Docket Coordinators on how to treat "mixed ownership"
mine or mill sites (created as a result of the 1872  Mining Law) for purposes of the CERCLA
Section 120(c) Federal Agency Hazardous Waste Compliance Docket.

       7According to  the Forest Service and BLM, these policies include a requirement that the
FLM enter into written repository agreements with their respective partner agencies that include
a commitment to apportion future response costs  based on the volume of mine waste contributed
to the repository from federal  lands compared to the volume contributed from private lands.

       ? According to  the Forest Service and BLM, for joint repositories located on private lands
under EPA authorities, the FLM will agree in writing to seek funding  for its apportioned share  of
future response costs.

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       Abandoned/Inactive Mine Sites - Abandoned mines are sites where there is no longer an
unpatented mining claim located under the GML, as amended (30 USC 22-54, 161,162,661-
615). Inactive mines are sites where extraction, beneficiation or processing activity have been
determined to be inactive or permanently stopped.

       Mine/Mining Waste - Mine wastes include all wastes from extraction, beneficiation and
mineral processing as defined by 40 CFR 261.4(b)(7). Mining wastes that may be placed  in a
joint mine waste repository include ore, waste rock, overburden, or mill tailings from hardrock
mining sites.

       Hardrock Mining Sites - Hardrock mining sites are defined as mines, mills, or
watersheds where mining operations have been located and conducted under the GML.  Also
known as "beatable" minerals, hardrock minerals refer to minerals, that, for federal lands with
public domain status in the United States, are acquired under the authority of the GML. These
are typically the base and precious metal ores, ferrous metal ores, certain classes of industrial
minerals, and uncommon varieties of sand, gravel and dimension stone.9

CRITERIA

       By placing mine waste in a joint mine waste repository, the Region should recognize that
it is entering into a potentially long-term relationship and that the joint repository may require
operation and maintenance, post-removal site control, periodic inspections, and potential future
response actions for many  years to come, hi considering whether to use a joint mining waste
repository, Regions should consider a number of environmental, engineering and economic
factors, including, but not limited to:

       1. The topography, hydrology, and geomorphology of a proposed joint repository.

       2. Potential increased risks to human health and the environment that could result if a
       joint repository is not utilized, such as a possible increased risk due to transport
       associated with off-site disposal of waste.

       3. Whether the FLM has agreed to take adequate steps to ensure that a federal joint
       repository site will  not be disturbed in a manner that could jeopardize its integrity.I0
       'This policy is not intended to apply to leaseable minerals (e.g., oil, gas, coal, oil shale,
phosphate, sodium, potassium, sulfur, asphalt or gilsonite) or saleable mineral materials (e.g.,
common varieties of sand and gravel).

       1 "Mining wastes from historic mines may contain gold or other valuable minerals in
amounts recoverable with modem technologies.  Under the GML, unless the land is "withdrawn
from mineral entry," a miner can claim the joint repository site and, potentially, mine it. Both
the Forest Service and BLM have authority to take appropriate action to ensure that re-mining or
other activities do not jeopardize the integrity of the joint mine waste repository.  The Forest

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      4. If the repository is to be constructed by the FLM, the Region should review and
      determine that all design and construction specifications of the joint repository meet
      EPA's view of what constitutes best engineering practices established for such waste
      containment units. Similarly, for sites on private land, the Region should provide the
      FLM an opportunity to review and determine that all design and construction
      specifications of the joint repository meet the FLM's view of what constitutes best
      engineering practices established for such waste containment units.

      5. If the joint repository is to be undertaken as a removal action, the Region should
      prioritize the funding needs for other     in the Region versus funding the particular
      joint repository under consideration."

      6. The Region should consider whether cost savings associated with a joint repository
      could allow additional cleanup work to be achieved in the Region at other sites.

      7. Whether there are viable private potentially responsible parties (PRPs) that will pay
      for the costs associated with their portion of the waste being disposed of in a joint
      repository, including post-removal site control and possible failure of the joint repository
      in the future.

      8. The cost-effectiveness  for the federal government as a whole if a joint repository is
      not used by EPA and the FLM (so that both agencies end up paying for the construction
      of separate repositories or off-site disposal).

      9. The state's position on payment of costs associated with operation and maintenance,
      post-removal site control,  and other expenses.
Service and BLM are currently developing internal guidance on this issue. If the joint repository
is re-mined, EPA generally should terminate the joint repository agreement and will not seek
funding for a response action at a joint mine waste repository in the event of a failure. For sites
on private land, EPA should ensure that re-mining or other activities do not jeopardize the
integrity of the joint mine waste repository. It should be noted that if a joint mine waste
repository on private land is re-mined, the FLM also has the option to terminate the joint
repository agreement and not seek funding for a response action at the repository in the event of
a failure,

       11  If the Region undertakes a joint repository pursuant to CERCLA authority to conduct
removal actions, it should consider the relevant statutory criteria (such as CERCLA section
104(c)(I)), the National Contingency Plan (NCP), and appropriate Agency guidance. For
example, the NCP states that  "... provision for post-removal site control following a Fund-
financed removal action ..[should] be  made prior to initiation of the removal aciion." 40 C.F.R.
300.415(k).  The Region should use all relevant existing criteria and determine if it will use its
removal advice of allowance  to fund such an action.

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SAMPLE MOU

       Where the Region believes, based on the criteria described above, it is appropriate to
enter into an MOU with an FLM to use a joint repository, it should consider the sample MOU
attached to this guidance, which among other things, addresses:

       1.  An appropriate financial arrangement to allocate responsibility for response costs
associated with construction, post-removal site control, and potential repository failure. For
example, the share of such costs could be allocated on the basis of the volume of mine waste
contributed, either from a private site land into a joint repository located on federal land or from
federal land into a joint repository located on private land.12 For a joint repository located on
federal land, the Region should provide adequate assurance in the repository MOU, to the extent
allowed by applicable legal provisions such as the Anti-Deficiency Act, 31 U.S.C.  1341, that
EPA will seek funding based on the apportioned share of mine waste from private lands to
provide an appropriate response action in the event of future failure of the joint repository. In
determining whether it is appropriate to seek such funding, the Region should consider if the
FLM has taken all necessary steps to prevent activities that disturb the integrity of the joint
repository.13

       2,  Appropriate assurances that EPA or the FLMs will take all necessary steps to: a)
maintain the integrity and protectiveness of the joint repository with regard to all wastes placed
in that repository; and, b) ensure that the repository will not be disturbed.

       3.  An appropriate termination provision that recognizes either party's right to withdraw
from the MOU for good  cause. What constitutes "good cause" depends on site-specific
circumstances and should be determined on a case-by-case basis; however, re-mining of the
repository, whether located on private or federal land, generally would constitute good cause to
terminate the MOU.
       12 The apportionment of future costs between EPA and the FLM may be based on the
waste placed in the repository from private land, which is the responsibility of EPA, and the
waste placed in the repository from federal land, which is the responsibility of the FLM. While
the volume of mine waste from private land versus the volume of waste from federal land could
be the basis of the apportionment, other factors (e.g, density, contaminant concentration, etc.)
may be appropriate and the actual cost allocation formula for the site should be determined on a
case-by-case basis.

       13 For example, it would not be appropriate for EPA to seek funding for a response
action at a joint mine waste repository in the event of a failure resulting from re-mining of the
repository.  In such a case, the mine operator may be pursued under CERCLA to pay for or
conduct the response action.

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IMPLEMENTATION:

      OSWER encourages the Regions to use the attached sample MOU to enter into site-
specific joint repository agreements at mixed-ownership mine sites with FLMs in appropriate
circumstances.  This policy memorandum gives guidance on key issues that Regions should
consider prior to entering any such agreements involving the use of a joint repository at such
sites.

Attachment

cc:    Superfund National Policy Managers (Regions I-X)
      Jim Woolford, FFRRO
      Mike Cook, OSRTI
      Matt Hale, OSW
      Debbie Dietrich, OEM
      Linda Garczynski, OBCR
      Ed Chu, OSWER
      Susan Bromm, OSRE
      Dave Kling, FFEO
      Scott Sherman, OGC
      OSRTI Division Directors and Branch Chiefs
      Federal Facilities Leadership Council
      Federal Environmental Work Group
      Shahid Mahmud, OSRTI
      Joanna Gibson, OSRTI
      Charles Openchowski, OGC
      Dianna Young, FFRRO

NOTICE:   This document provides guidance to EPA staff. It does not, however, substitute
for EPA's statutes or regulations, nor is it a regulation itself. Thus it cannot impose legally-
binding requirements on EPA, states, or the regulated community,  and may not apply to a
particular situation based upon the circumstances. EPA may change this guidance in the future,
as appropriate.

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