Abandoned or inactive mined land remediation permits

Section 402 of the Federal Water Pollution Control Act (33 U.S.C. 1342) is amended by adding at the end the following:

(r)

Abandoned or inactive mined land remediation permits

(1)

Definitions

In this subsection, the following definitions apply: (A)

Abandoned or inactive mined land

The term abandoned or inactive mined land means land located in the Animas River watershed above Elk Creek in San Juan County, Colorado, formerly hardrock mined for noncoal resources— (i)that is no longer actively mined (and not in temporary shutdown) as of January 1, 1992; (ii)that is not included on the National Priorities List under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.); and (iii)for which there is no known responsible owner or operator. (B)

Responsible owner or operator

The term responsible owner or operator means a person, including a governmental entity— (i)that is responsible for activities conducted at abandoned or inactive mined land that created conditions that cause or contribute to the discharge of pollutants from the abandoned or inactive mined land; and (ii)that is financially capable of compliance with the requirements of sections 301 and 302 and this section. (C)

Remediating party

The term remediating party means— (i)the United States, except with respect to abandoned or inactive mined land located on Federal land; (ii)the State of Colorado or political subdivision thereof; or (iii)a person that is not— (I)responsible for activities conducted at the site to be remediated that caused or contributed to the discharge of pollutants from the site; or (II)the owner of the site. (D)

Cooperating party

The term cooperating party means any person, including a governmental entity, that is not the owner of the site to be remediated or responsible for activities conducted at the site to be remediated that caused or contributed to the discharge of pollutants from the site— (i)participates in the design or implementation of the practices described in paragraph (3)(B)(viii) with respect to such site; (ii)participates in the design or implementation of monitoring or other forms of assessment described in paragraph (3)(B)(x) with respect to such site; or (iii)raises, contributes, or administers funding or in-kind services for the purposes described in paragraph (3)(B)(viii) or (3)(B)(x) with respect to such site. (2)

Permits

(A)

In general

The Administrator shall conduct beginning on the 90th day following the date of enactment of this subsection a 10-year pilot project under which the Administrator, with the concurrence of the State of Colorado, may issue, modify, enforce, or terminate a permit issued under this section to a remediating party for discharges associated with remediation activity at abandoned or inactive mined land and that modifies the otherwise applicable requirements of any other subsection of this section or section 301, 302, or 401. (B)

Delegation

The Administrator may delegate all or part of the authority under subparagraph (A) to the State of Colorado. (3)

Permit process

(A)

Scope

A remediating party may apply for a permit under this section for remediation activities at abandoned or inactive mined land from which there is or may be a discharge of pollutants to waters of the United States. (B)

Remediation plan

A remediating party that seeks a permit under subparagraph (A) shall submit an application for the permit that includes a remediation plan that— (i)identifies the remediating party and any cooperating parties with respect to the plan; (ii)identifies the geographic boundaries of the abandoned or inactive mined land addressed by the plan, including a verification that the land is abandoned or inactive mined land; (iii)identifies the waters of the United States affected by past mining activities at the abandoned or inactive mined land; (iv)describes the baseline conditions of the waters at the time of the permit application (including the nature and extent of any pollutant causing an adverse water quality impact); (v)describes the physical and chemical conditions at, and pollutants from, the abandoned or inactive mined land that are causing adverse water quality impacts; (vi)describes the applicant’s reasonable efforts to identify— (I)current owners and lessees of the abandoned or inactive mined land; and (II)any persons, including mine operators, whose activities at or on such land after October 18, 1972, created conditions that cause or contribute to the discharge of pollutants from such land; (vii)describes the remediation goals and objectives of the plan, including the pollutant or pollutants to be addressed by the plan; (viii)describes the practices, including a schedule and estimated completion date for implementing the practices, that are proposed to reduce, control, mitigate, or eliminate the adverse water quality impacts described in clause (v), including— (I)in the case of a new remediation project, the preliminary system design and construction, operation, and maintenance plans; and (II)in the case of an existing remediation project, available system design and construction, operation, and maintenance plans and any planned improvements to the project; (ix)explains how the practices described in clause (viii) are expected to result in furthering the objectives of existing total maximum daily load allocations under section 303(d) for the identified waters; (x)describes the monitoring or other forms of assessment that will be undertaken to evaluate the success of the practices described in clause (viii) during and after implementation of such practices, relative to baseline conditions; (xi)describes a mechanism or method that will ensure the full net environmental benefits of the project are realized in the future even if ownership of the land changes; (xii)describes contingency plans for responding to foreseeable, unplanned, adverse events; (xiii)provides a schedule for periodic reporting on progress in implementing the plan; (xiv)provides a budget for the plan and identifies the funding sources that will support the implementation of the plan; (xv)describes the applicant’s legal authority to enter and conduct activities at or on the abandoned or inactive mined land to be addressed by the plan; (xvi)contains any additional information requested by the Administrator to clarify the plan and activities covered by the plan; and (xvii)is signed by the applicant. (C)

Review of application

(i)

In general

The Administrator shall review each permit application submitted under subparagraph (B), and determine whether the application meets the requirements of subparagraph (B) and contains all the information required by the Administrator, within 90 days of the date of such submittal. (ii)

Disapproval

If the Administrator determines that an application submitted under subparagraph (B) does not meet the requirements of subparagraph (B), the Administrator, shall notify the applicant that the application is disapproved, explain the reasons for the disapproval, and allow the applicant to submit a revised application. (iii)

Approval

If the Administrator determines that a permit application submitted under subparagraph (B) meets the requirements of subparagraph (B) and contains all the information required by the Administrator, the Administrator shall notify the applicant of the proposed issuance of the permit being applied for, provide to the public notice in the San Juan County, Colorado, and La Plata County, Colorado, newspapers of, and an opportunity to comment on, such proposed issuance and hold a public hearing on such proposed issuance in the Animas River watershed, Colorado. (D)

Issuance

(i)

Decision to issue

After notice and opportunity for public comment on a permit proposed to be issued for mined land under subparagraph (C)(iii), the Administrator may issue the permit to the applicant remediation party if the Administrator, with the concurrence of the State of Colorado, determines that— (I)relative to the resources available to the remediating party for the proposed remediation activity, the remediating party has made a reasonable effort to identify persons under subparagraph (B)(vi); (II)no responsible owner or operator exists for the mined land; and (III)the remediation party has demonstrated with reasonable certainty that the implementation of the remediation plan will result in an improvement in water quality and will further the goal of meeting existing total maximum daily load allocations applicable under section 303(d) taking into consideration the resources available to the remediating party for the proposed remediation activity. (ii)

Decision not to issue

If the Administrator decides not to issue the permit to the applicant, the Administrator shall notify the applicant of the reasons for not issuing the permit not later than 30 days after the date of the decision. (E)

Modification

(i)

In general

Not later than 15 days after the date of receipt of a written request for modification of a permit issued under subparagraph (D), the Administrator shall provide to the public notice of such request. Not later than 30 days after the last date on which such notice is provided, the Administrator shall approve or disapprove the modification, unless a public hearing is requested by a person, Indian tribe, State agency, or local governmental agency during such 30-day period. (ii)

Public hearing

If a public hearing is requested under clause (i), the Administrator shall have 90 days beginning on the date of such request to hold in the Animas River watershed a public hearing on the modification and approve or disapprove the modification. (iii)

Approval

The Administrator may only approve a permit modification under this subparagraph if— (I)the State of Colorado concurs in such approval; and (II)the Administrator determines that the modified remediation plan will comply with subparagraph (D)(i)(III). (iv)

Administrative provision

The Administrator shall ensure that a permit modification approved under this subparagraph is immediately reflected in, and applicable to, the permit. (4)

Contents of permit

(A)

In general

A permit issued or modified, or both, under this subsection shall— (i)include a remediation plan approved by the Administrator and any additional requirements that the Administrator establishes under paragraph (10); (ii)provide for compliance with and implementation of the remediation plan and the additional requirements; (iii)establish a schedule for review by the Administrator of compliance with the conditions and limitations of the permit; and (iv)exempt the remediating party or any cooperating parties with respect to the remediation plan from complying with any other subsection of this section or with section 301 or 302. (B)

Recoverable value

A remediation party for a permit issued or modified, or both, under this subsection is not prohibited from selling or using materials recovered during the implementation of the remediation plan under the permit, but the proceeds of any such sale must be used to defray the costs of remediation of the mined land addressed in the permit or the costs of remediation of other abandoned or inactive mined lands. (5)

Failure to comply

If, during a review conducted under paragraph (4)(A)(iii), on the receipt of a petition from any person, or for any other appropriate reason, the Administrator determines that the remediating party for a permit issued or modified, or both, under this subsection has failed to comply with the provisions of the permit, the Administrator may bring an enforcement action under section 309. (6)

State certification

To the extent that this subsection relates to water quality standards, a certification under section 401 shall not apply to a permit issued or modified, or both, under this subsection. (7)

Termination

(A)

Mandatory

The Administrator, with the concurrence of the State of Colorado, shall terminate a permit issued or modified, or both, under this subsection if— (i)the remediating party completes the implementation of the remediation plan; or (ii)a discharge covered by the permit becomes subject to a permit issued under the other subsections of this section that is not part of the implementation of the remediation plan. (B)

Discretionary

The Administrator, with the concurrence of the State of Colorado, may terminate a permit issued or modified, or both, under this subsection if— (i)an event or condition is encountered that was not contemplated by the remediation plan and is beyond the control of the remediating party; or (ii)the remediating party fails to conduct the remediation according to the approved remediation plan. (C)

No enforcement liability

If a permit is terminated under this paragraph, the remediating party and any cooperating parties with respect to the remediation plan shall not be subject to enforcement under section 309 or 505 for any remaining discharges from the abandoned or inactive mined land described in the permit. (8)

Limitations

(A)

Emergency powers

Nothing in this subsection limits the authority of the Administrator under section 504. (B)

Prior violations

Nothing in this subsection or a permit issued or modified, or both, under this subsection precludes an action under section 309 or 505 or affects the relief available in an action under such section, with respect to a violation of this section or section 301(a) or 302 that occurred prior to the issuance of a permit under this subsection. (C)

Obligation of states and indian tribes

Except as expressly provided, nothing in this subsection limits any obligation of a State or Indian tribe under section 303. (D)

Other development

Nothing in this subsection affects the applicability of this Act (other than this subsection) to any development of abandoned or inactive mined land (including mineral exploration or mining) not described in a permit issued by the Administrator under this subsection. (9)

Liability of other parties

Nothing in this subsection limits the liability under this Act (other than this subsection) or any other law of any person (other than the remediating party and any cooperating parties) with respect to the remediation plan for a permit approved or modified, or both, under this subsection. (10)

Regulations

Not later than 1 year after the date of enactment of this subsection, the Administrator, in consultation with the State of Colorado, tribal, and local officials and after providing notice, an opportunity for comment, and a hearing, shall issue regulations establishing generally applicable requirements for remediation plans described in paragraph (3)(B) and such other regulations as the Administrator considers necessary to carry out this subsection (11)

Funding for implementing remediation plans

(A)

In general

There is authorized to be appropriated to the Administrator $30,000,000 to pay 85 percent of the costs of designing and implementing remediation plans for which permits are issued under this subsection. The remaining share of such costs may be provided with funds or in-kind services by private, local, State, or other Federal sources, including grants under section 319. (B)

Priority

The funds appropriated under this paragraph shall be allocated first to proposed remediation plans that are comparatively more likely than other proposed remediation plans to further the objectives of the existing total maximum daily load allocations under section 303(d) with respect to discharges from abandoned or inactive mined land. (12)

Reports

(A)

In general

Not later than the last day of each of the 2nd, 5th, 7th, and 10th years of the pilot program conducted pursuant to this subsection, the Administrator shall submit to Congress a report on the activities carried out under this subsection. (B)

Contents

The report under subparagraph (A) shall, at a minimum— (i)identify each permit issued under this subsection and associated remediating party; (ii)identify the abandoned or inactive mined land addressed by each permit issued under this subsection (including the water bodies and baseline water quality of the water bodies affected by the land); (iii)summarize the remediation plan associated with each permit issued under this subsection, including the goals and objectives of the plan, the plan budget, and the practices to be employed according to the plan to reduce, control, mitigate, or eliminate adverse water quality impacts on such water bodies; (iv)identify the status of the implementation of each remediation plan associated with each permit issued under this subsection (including specific progress that permitted remediation activities have made toward achieving the goals and objectives of the remediation plan); (v)identify and describe any enforcement action taken by the Administrator or any civil action brought by a citizen concerning a permit issued under this subsection (including the disposition of the legal action); and (vi)include recommendations by the Administrator for any modifications to this subsection, or regulations issued under paragraph (10) to implement this subsection, that would facilitate the improvement of water quality through remediation of abandoned or inactive mined land. (13)

Termination of permitting authority

The authority granted to the Administrator under this subsection to issue an abandoned or inactive mined land remediation permit terminates on the date that is 10 years after the date of enactment of this subsection.