The mining industry has successfully lobbied to keep most mine wastes from being regulated as hazardous under the tough "cradle to grave" rules of RCRA, the Resource Conservation and Recovery Act, passed in 1976.
Environmental Protection Agency mine waste experts say the threat of hazardous contamination from mines is real. But its efforts to write regulations for mine wastes have been stonewalled.
So the agency is moving to put hazardous mining sites under the intense regulatory "hammer" of Superfund. EPA experts say that many mines operating today - particularly copper and gold mines in the West - are destined for Superfund.
The Superfund law - also known by its acronym CERCLA for the Comprehensive Environmental Response, Compensation and Liability Act - was passed in 1980 in the aftermath of the disaster at Love Canal. The Niagara Falls, N.Y., suburb was built on top of a former toxic dump that leaked into homes. Superfund's principal purpose is to force the clean-up of abandoned dumps.
At mines the source of trouble is not leaking drums of chemicals but piles of waste rock, tailings and slag created in the normal course of mining, milling and refining metals. The danger comes when metals, acids and other hazardous byproducts from these wastes find their way into the soil, air and water.
The problems at Bingham Canyon are "typical" of open-pit mines of the West, says Mike Holmes, an EPA community relations coordinator in the Denver Region 8 office. Of the approximately 50 mining sites on the Superfund list, a majority are in the West. Mining continues at a dozen of the Superfund sites. In addition, the practices that created the hazards are still used at many mines.
CERCLA directs the EPA to find the companies responsible for hazardous materials that threaten people and force them to pay for cleanups directed by the agency.
Superfund money, which comes from a tax on businesses that earn more than $1 million a year, can be used for emergency removals and to restore the site if the responsible parties cannot be found.
This only sounds straightforward. The Superfund program itself is a shambles, according to industry, environmental groups, community activists, Congress and the Clinton administration. Even the EPA agrees. Too much money has been spent on lawsuits - up to one-third of the $13 billion spent on Superfund since 1980. There are 1,275 sites on the national priorities list and the list is growing by about 100 each year. But only 217 cleanup jobs have been completed.
CERCLA is up for congressional reauthorization this year with uncertain prospects for passage. Reforms proposed by EPA administrator Carol Browner include increased community involvement in Superfund planning, more voluntary cleanups, flexible standards for how clean a site must be depending on how the property will be used in the future, and arbitration instead of lawsuits to settle disputes.
Preston Chiaro, Kennecott's environmental vice president, says the EPA's "words are right" when it comes to reforming Superfund. But the EPA is missing a perfect opportunity to change the way CERCLA works if it puts Kennecott on the Superfund list, he says. Chiaro also predicts that if Kennecott is listed, everyone will have to cope with a much bigger mess.
* Jon Christensen