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Mine-Scarred Lands Initiative Tool Kit: Liability Concerns

Some of the demonstration projects involve liability concerns involved with SMCRA, CERCLA and the Clean Water Act. Each regulation has its own distinctions. The project teams have learned that it is critical to understand associated issues before moving forward because communities or individuals could be held responsible for significant costs, even if the liability is connected to an outside party. MSL communities have gained some insight on how to deal with these sites:

Identify an attorney to explore liability management approaches.
This person can understand and help explain the magnitude of the problem, whether a partial or complete solution is possible, and the expected timeline. Learn more about how to work with attorneys in the Involving Subject Matter Experts section.

Determine if there is any linkage to liability funding from potentially responsible parties (PRPs)
If there is a connection, the PRP may be held responsible for the cleanup costs. Contact EPA Superfund staff to help with this process.

Determine if it is possible to manage liability if land owners enter a state Voluntary Cleanup Program (VCP)
Contact the state VCP representative for more information. Use a neutral third party to coordinate and mediate liability complexities. Learn more about how to work with mediators in the Using Outside Assistance with Project Planning and Coordination section.

Project Examples

Overcoming Liability Concerns:
The Stone Creek Project
The Stone Creek site is an abandoned coal loading facility that is owned by a private property owner. In order for the county to feel comfortable acquiring and revitalizing the site, it needed some liability protections. Subject matter experts met with the key parties and outlined the steps that are necessary for liability protection. These include:
  • The county secures an option to buy the property at a specified price that is contingent on the outcome of an environmental assessment.
  • An environmental assessment of the site is conducted. In this case, an EPA Targeted Brownfields Assessment was completed.
  • The county acquires the site.
  • If cleanup is required, the county enters the site into Virginia’s Voluntary Remediation Program (VRP). This program provides a comfort letter after cleanup is completed that protects the county against liability. Though every state’s voluntary program is different, they have similar liability protection provisions. For more information on each state, go to EPA’s State of the State Report.

Resources

EPA, Office of Enforcement and Compliance Assurance
Provides an overview of laws associated with mine cleanup and reuse and provides a wide-range of guidance documents.

EPA, SMARTe Exit EPA Disclaimer
A Web-based decision support system for developing and evaluating future reuse scenarios for potentially contaminated land. SMARTe contains guidance and analysis tools for all aspects of the revitalization process including planning, environmental, economic and social concerns.

 

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