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Digging Up NRD: Issues in the Application of CERCLA's Natural Resource Damages (NRD) Provisions to Historic Mining Sites

Barbara J. Goldsmith, Michael R. Thorp, Proceedings of 50th Annual Rocky Mountain Mineral Law Institute (2004)

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) 1 and other federal and state statutes, 2 owners or operators of historic mines may be held responsible for natural resource damages (NRD) in addition to cleanup, including costs to restore or replace resources, compensation for lost use of resources, and trustee assessment costs--sometimes involving allegations of hundreds of millions of dollars in damages. The authors will examine the interpretations and application of Superfund's NRD provisions to historic mines--particularly those involving moderate contaminant levels that are now spread over a large geographic area--by reviewing pertinent case law, including recent U.S. district court decisions in Idaho and Montana, as well as discussing the current bonding crisis and how it is impacted by these decisions.

§ 15.02 Background--NRD Claims at Mining Sites

Mining in North America is older than the United States, having been documented at least as early as 1565 when Native Americans mined gold and traded it to Spanish Conquistadors in Florida. By 1621, iron was being mined and smelted in Virginia. The 1849 gold rush in California and discovery of the Comstock silver lode in Nevada in 1859 significantly influenced the development of the Western United States. As a result,

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