Mine Site Cleanup Discounts OK Despite Burden to Others

     (CN) – Though they will likely burden another company, deep discounts that the government gave to clean mining operations did not violate federal law, the 9th Circuit ruled Tuesday.
     The Coeur d’Alenes Co. signed an agreement with the U.S. government in 2011 that allowed it to pay $350,000 toward the cost of cleaning up the Conjecture Mine Site in Bonner County, a former silver and lead mine that the Environmental Protection Agency found to be contaminated with arsenic, lead and manganese.
     Against the objections of the Federal Resources Corp., which is also responsible for a portion of the cleanup costs, the government determined that Coeur d’Alenes could not pay more without risking its “ongoing viability.”
     Federal Resources challenged the agreement in Boise, arguing that the government had not properly investigated the ability of Coeur d’Alenes to pay through its insurance polices. The company also argued that the settlement would force it to pay a larger share of the cleanup costs.
     U.S. District Judge Edward Lodge approved the agreement in 2012, finding it legal under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
     Despite finding that Federal Resources would “very likely” have to pay a disproportionate amount to clean up the former mine site, a unanimous three-judge panel of the 9th Circuit affirmed on Tuesday.
     “We understand FRC’s concern that it may be forced to shoulder a greater portion of the cost to clean up the site than it would have had the United States and CDA not entered into a settlement based on CDA’s limited ability to pay,” Judge Mary Murguia wrote for the panel. “Indeed we recognize that FRC being held disproportionately liable is a very likely outcome. However, such an outcome would not be inconsistent with CERCLA, nor would it merely be an unintended consequence of the statute. Rather, the potential for disproportionate liability is an integral and purposeful component of CERCLA.”
     The panel affirmed the agreement based on “evidence the government presented demonstrating that it adequately investigated CDA’s ability to pay – including through insurance coverage.”

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