concurring in part and dissenting in part.
It is recognized that stream pollution problems are potentially involved in this appeal. In consideration of the present partial performance status of the reclamation activities, forcefully discussed in current news reports, the need for urgency in our appellate decision is apparent.
In recognizing that need, I concur with the court’s decision in general direction, but dissent in part with concern that we ask for the impossible which, if true, will not be achieved. I also dissent because no proper basis is presented to require the bond at the amount stated for building removal and structure site renovation or that a bond should presently be required to remove the structures constituting office and processing facilities.
It seems completely clear that a use for the buildings has been considered and may probably be pursued by a reasonably early date. Under that circumstance, a punitive bond in the amount provided is not justified by anything found in the Department of Environmental Quality rules, regulations or executed agreements entered into by the department with either the predecessor, United States Steel Corporation, or the present appellant. There is a punitive, perspective imposition, unexpectedly created, for this major cost responsibility to appellant. Hercules Powder Co. v. State Bd. of Equalization, 66 Wyo. 268, 208 P.2d 1096 (1949). See also People v. Platte Pipe Line Co., 649 P.2d 208 (Wyo.1982).
I generally agree with the direction of the decision that appellant retains a reclamation maintenance responsibility for areas of dams, ponds and other facilities originally involved in mining where stream damage may occur from moisture flow. The $386,000 bond for revegetation and other restorative activities is justified, but I would not go further to require the total bond of $4 million. If we do, it is as likely as not that even a $386,000 bond will be an unrealistic expectation.
I join in affirming the decision of the trial court, except with the administrative agency’s increase of the reclamation bond to a sufficient total covering the cost of building demolition and site renovation. It is concluded that the additional imposition by the agency is unauthorized, Roberts Const. Co. v. Vondriska, 547 P.2d 1171 (Wyo.1976), and this court’s decision in approval cannot be factually and legally supported in this appellate record. Platte Pipe Line Co., 649 P.2d 208; Holding’s Little America v. Board of County Com’rs of Laramie County, 670 P.2d 699 (Wyo.1983), appeal after remand 712 P.2d 331 (Wyo.1985); Rocky Mountain Oil and Gas Ass’n v. State Bd. of Equalization, 749 P.2d 221 (Wyo.1987).
Consequently, I concur in the requirement for the general reclamation bond and dissent to the additional inclusion of the building structure demolition and site renovation costs.