[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1848 Introduced in Senate (IS)]








109th CONGRESS
  1st Session
                                S. 1848

 To promote remediation of inactive and abandoned mines, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 6, 2005

Mr. Salazar (for himself and Mr. Allard) introduced the following bill; 
 which was read twice and referred to the Committee on Environment and 
                              Public Works

_______________________________________________________________________

                                 A BILL


 
 To promote remediation of inactive and abandoned mines, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Cleanup of Inactive and Abandoned 
Mines Act''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds that--
            (1) the Federal Government and State governments encouraged 
        hard rock mining in the United States through a wide variety of 
        laws, policies, and actions;
            (2) the mining activities that took place disturbed public 
        and private land, and those disturbances led to considerable 
        environmental pollution;
            (3) many areas in which hard rock mining took place in the 
        United States are now inactive and abandoned mine sites;
            (4) many inactive and abandoned mine sites pollute the 
        environment today and will continue to do so indefinitely 
        unless remediated;
            (5) adits and other tunnels will continue to drain 
        pollutants to surface and ground water through gravity flow;
            (6) surface runoff will continue to pick up pollutants as 
        the runoff moves over disturbed ground and transports 
        pollutants to surface waters;
            (7) tailings and other materials left exposed to the 
        elements will continue to blow in the wind and pollute the 
        atmosphere and soils;
            (8) many of the individuals and corporate owners and 
        operators of those mines, who caused this pollution, are no 
        longer alive or in existence;
            (9) some of the remaining owners and operators who remain 
        do not have resources that are adequate to conduct remediation 
        properly under applicable environmental laws, for all practical 
        purposes leaving no one responsible for the cleanup of 
        pollution from those sites;
            (10) inactive and abandoned mine sites are located in areas 
        of known economic mineralization;
            (11) modern mining activities often take place on or in the 
        vicinity of the area in which historic hard rock mining 
        activities took place;
            (12) from time to time, individuals and companies are 
        willing to remediate historic mine sites for the public good as 
        Good Samaritans, despite the fact that these individuals and 
        companies are not legally required to remediate the mine sites;
            (13) Good Samaritan remediation activities may--
                    (A) vary in size and complexity;
                    (B) reflect the myriad ways that mine residue may 
                be cleaned up; and
                    (C) include, among other activities--
                            (i) the relocation or management of 
                        tailings or other waste piles;
                            (ii) passive or active water treatment;
                            (iii) runoff or run-on controls; and
                            (iv) the use or reprocessing of, or removal 
                        of materials from, mine residue;
            (14) the potential environmental liabilities that may 
        attach to those Good Samaritans as a result of the remediation 
        can dissuade those Good Samaritans from acting for the public 
        good;
            (15) it is in the interest of the United States, the 
        States, and local communities to remediate historic mine sites, 
        in appropriate circumstances and to the maximum extent 
        practicable, so that the environmental impacts of the sites are 
        lessened into the future; and
            (16) if appropriate protections are provided for Good 
        Samaritans, Good Samaritans will have a greater incentive to 
        remediate those sites for the public good.
    (b) Purposes.--The purposes of this Act are--
            (1) to encourage partial or complete remediation of 
        inactive and abandoned mining sites for the public good by 
        persons who are not otherwise legally responsible for the 
        remediation;
            (2) to provide appropriate protections for Good Samaritans 
        under applicable environmental laws;
            (3) to ensure that remediation performed by Good Samaritans 
        creates actual and significant environmental benefits;
            (4) to ensure that remediation by Good Samaritans is 
        carried out--
                    (A) with the approval and agreement, and in the 
                discretion, of affected Federal, State, and local 
                authorities and with review by the public; and
                    (B) in a manner that is beneficial to the 
                environment and all affected communities;
            (5) to create an efficient permit process under which the 
        cost and complexity of obtaining a permit are commensurate with 
        the scope of remediation work to be completed and the 
        environmental benefits from the work;
            (6) to avoid permitting for ongoing, for-profit businesses 
        that specialize in multiple Good Samaritan projects that are 
        designed to be permitted outside otherwise applicable Federal, 
        State, and local environmental laws; and
            (7) to ensure that the protections for Good Samaritans 
        provided in this Act are interpreted in accordance with the 
        purposes of this Act and to enhance the public good.

SEC. 3. REMEDIATION OF INACTIVE OR ABANDONED MINES BY GOOD SAMARITANS.

    (a) Definitions.--In this section:
            (1) Administrator.--The term ``Administrator'' means the 
        Administrator of the Environmental Protection Agency.
            (2) Cooperating agency.--The term ``cooperating agency'' 
        means any Federal, State, or local agency or other person 
        (other than the Administrator) that--
                    (A) is authorized under Federal or State law, or 
                local ordinance, to participate in issuing a permit 
                under this section; and
                    (B) elects to participate in the process of issuing 
                the permit.
            (3) Environmental law.--The term ``environmental law'' 
        includes--
                    (A) the Toxic Substances Control Act (15 U.S.C. 
                2601 et seq.);
                    (B) the Federal Water Pollution Control Act (33 
                U.S.C. 1251 et seq.);
                    (C) the Safe Drinking Water Act (42 U.S.C. 300f et 
                seq.);
                    (D) the National Environmental Policy Act of 1969 
                (42 U.S.C. 4321 et seq.);
                    (E) the Solid Waste Disposal Act (42 U.S.C. 6901 et 
                seq.);
                    (F) the Clean Air Act (42 U.S.C. 7401 et seq.);
                    (G) the Uranium Mill Tailings Radiation Control Act 
                of 1978 (42 U.S.C. 7901 et seq.);
                    (H) the Comprehensive Environmental Response, 
                Compensation, and Liability Act of 1980 (42 U.S.C. 9601 
                et seq.);
                    (I) applicable environmental laws of a State; and
                    (J) applicable environmental ordinances of a 
                political subdivision of a State.
            (4) Good samaritan.--The term ``Good Samaritan'' means a 
        person that--
                    (A) is unrelated, by operation or ownership (except 
                solely through succession to title), to the historic 
                mine residue to be remediated under this section;
                    (B) had no role in the creation of the historic 
                mine residue;
                    (C) had no significant role in the environmental 
                pollution caused by the historic mine residue; and
                    (D) is not liable under any Federal, State, or 
                local law for the remediation of the historic mine 
                residue.
            (5) Historic mine residue.--
                    (A) In general.--The term ``historic mine residue'' 
                means mine residue or conditions at an inactive or 
                abandoned mine site that pollute the environment.
                    (B) Inclusions.--The term ``historic mine residue'' 
                may include, among other materials--
                            (i) ores;
                            (ii) minerals;
                            (iii) equipment (or materials in 
                        equipment);
                            (iv) wastes from extractions, 
                        beneficiation, or other processing; and
                            (v) acidic or otherwise polluted flows in 
                        surface or ground water.
            (6) Inactive or abandoned mine site; mine site.--The terms 
        ``inactive or abandoned mine site'' and ``mine site'' mean the 
        site of a mine and associated facilities that--
                    (A) were used for the production of a mineral other 
                than coal;
                    (B) have historic mine residue; and
                    (C) are abandoned or inactive as of the date on 
                which an application is submitted for a permit under 
                this section.
            (7) Indian tribe.--The term ``Indian tribe'' has the 
        meaning given the term in section 4 of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 450b).
            (8) Person.--The term ``person'' includes--
                    (A) an individual;
                    (B) a firm;
                    (C) a corporation;
                    (D) an association;
                    (E) a partnership;
                    (F) a consortium;
                    (G) a joint venture;
                    (H) a commercial entity;
                    (I) a nonprofit organization;
                    (J) the Federal Government;
                    (K) a State;
                    (L) a political subdivision of a State;
                    (M) an interstate entity; and
                    (N) a commission.
            (9) State.--The term ``State'' means--
                    (A) a State; and
                    (B) an Indian tribe.
    (b) Permits.--The Administrator may issue a permit to a Good 
Samaritan to carry out a project to remediate all or part of an 
inactive or abandoned mine site in accordance with this section.
    (c) Eligibility for Permits.--
            (1) In general.--To be eligible for a permit to carry out a 
        project to remediate an inactive or abandoned mine site in a 
        State under this section--
                    (A) the mine site shall be located in the United 
                States;
                    (B) the principal purpose of the project shall be 
                the reduction of pollution caused by historic mine 
                residue;
                    (C) the mine site may not be a mine site included 
                on the national priorities list under section 
                105(a)(8)(B) of the Comprehensive Environmental 
                Response, Compensation, and Liability Act of 1980 (42 
                U.S.C. 9605(a)(8)(B)) except in a case in which the 
                Administrator determines, on a case-by-case basis, 
                that--
                            (i) the remediation project proposed to be 
                        carried out at the mine site is minor as 
                        compared to all remediation activity needed at 
                        the listed mine site;
                            (ii) the conduct of the proposed 
                        remediation project at the listed mine site 
                        will not interfere with any other remediation 
                        at the mine site that is reasonably likely to 
                        occur; and
                            (iii) except for the remediation project 
                        proposed by the Good Samaritan at the mine site 
                        under this Act, there is not likely to be 
                        remediation of the historic mine residue that 
                        is the subject of the project at the listed 
                        mine site in the reasonably foreseeable future;
                    (D) the permit shall authorize only those 
                activities that are directly required for the 
                remediation of historic mine residue at the mine site;
                    (E) the person obtaining the permit shall be a Good 
                Samaritan; and
                    (F) a State remediation program described in 
                subsection (d) shall be in effect for remediation of 
                the mine site.
            (2) Other activities.--Any activity other than the 
        activities described in paragraph (1)(D) conducted by the 
        permittee or any other person at the mine site (including, 
        without limitation, any mining or processing in addition to 
        that required for the remediation of historic mine residue for 
        the public good)--
                    (A) shall not be authorized under a permit issued 
                under this section; and
                    (B) may be authorized under other applicable laws, 
                including environmental laws.
    (d) State Remediation Program.--
            (1) In general.--Before a permit may be issued to carry out 
        a project in a State under this section, the State shall have 
        in effect a State remediation program that meets the 
        requirements of this subsection.
            (2)  Requirements.--To meet the requirements of this 
        subsection, under the State remediation program, the State 
        shall--
                    (A) agree to participate, as a signatory, in each 
                project for a which a permit for remediation in the 
                State is issued under this section;
                    (B) agree that a permittee shall comply with the 
                terms and conditions of the permit in lieu of 
                compliance with applicable environmental laws 
                specifically described in the permit in accordance with 
                subsection (h)(1)(B);
                    (C) authorize State agencies and political 
                subdivisions of the State to participate in the permit 
                process under this section, as appropriate, and assist 
                in providing the resources to enable that 
                participation; and
                    (D) designate a lead State agency that is 
                responsible to carry out permitting responsibilities of 
                the State under this section.
    (e) Application for Permits.--To obtain a permit to carry out a 
project to remediate an inactive or abandoned mine site under this 
section, an applicant shall submit to the Administrator an application, 
signed by the applicant, that provides--
            (1) a description of the mine site (including the 
        boundaries of the mine site);
            (2) an identification of--
                    (A) any current owner or operator of the mine site; 
                and
                    (B) any person with a legal right to exclude other 
                persons from the mine site or affect activities on the 
                mine site, with a description of those legal rights;
            (3) evidence satisfactory to the Administrator that the 
        applicant has or will acquire all legal rights necessary to 
        enter the mine site and to perform the remediation described in 
        the application;
            (4) a description, based on the conduct of an inquiry that 
        is reasonable under the circumstances, of--
                    (A) all persons that may be legally responsible for 
                the remediation of the mine site; and
                    (B) any relationship between those persons and the 
                applicant;
            (5) a certification that the applicant knows of no other 
        person that (as of the date of submission of the application)--
                    (A) is potentially legally responsible for the 
                remediation of the mine site; and
                    (B) has sufficient resources to complete the 
                remediation;
            (6) a detailed description of the historic mine residue to 
        be remediated;
            (7) a description of the baseline conditions (as of the 
        date of submission of the application) of the environment 
        affected by the historic mine residue to be remediated;
            (8) a description of--
                    (A) the nature and scope of the proposed 
                remediation; and
                    (B) detailed engineering plans for the project;
            (9) a description of the manner in which the remediation 
        will assist the mine site in meeting, to the maximum extent 
        reasonable and practicable under the circumstances, water 
        quality standards;
            (10) a schedule for the work to be carried out under the 
        project;
            (11) a budget for the work to be carried out under the 
        project;
            (12) a description of financial assurances, if any, to be 
        provided by the permittee to ensure that the permitted work, 
        including any operation and maintenance, will be completed;
            (13) a description of a monitoring program following 
        remediation (if any) that will be implemented to evaluate the 
        effects of the remediation on the environment;
            (14) a detailed plan for the required operation and 
        maintenance of any remediation; and
            (15) a list of all environmental laws for which the 
        applicant seeks the protection described in paragraphs (1) and 
        (2) of subsection (g).
    (f) Permit Issuance.--
            (1) In general.--The Administrator may issue a permit under 
        this section to carry out a project for the remediation of an 
        inactive or abandoned mine site in a State only if--
                    (A) the Administrator determines that--
                            (i) the project will improve the 
                        environment on or in the area of the mine site 
                        to a significant degree, as determined by the 
                        Administrator;
                            (ii) the project will not degrade any 
                        aspect of the environment in any area to a 
                        significant degree;
                            (iii) the project will meet applicable 
                        water quality standards, to the maximum extent 
                        reasonable and practicable under the 
                        circumstances;
                            (iv) the permittee has the financial and 
                        other resources to complete, and will complete, 
                        the permitted work; and
                            (v) the project meets the requirements of 
                        this section;
                    (B) the State concurs with the issuance of, and 
                signs, the permit;
                    (C) if the permit provides protection for the 
                permittee under an environmental law of a political 
                subdivision of a State in accordance with paragraphs 
                (1) and (2) of subsection (g), the political 
                subdivision concurs with the issuance of, and signs, 
                the permit; and
                    (D) if the proposed project is to be carried out on 
                Federal land, each State (or political subdivision) 
                within which the Federal land is located meets the 
                requirements of subparagraphs (B) and (C).
            (2) Discretionary actions.--The issuance of a permit by the 
        Administrator, and the concurrence of the affected State and 
        political subdivisions of a State to participate in the permit 
        process, shall be discretionary actions and shall be taken in 
        the public interest.
            (3) Functional equivalency.--No action of the Administrator 
        or any other person pursuant to this section shall constitute a 
        major Federal action significantly affecting the quality of the 
        human environment under the National Environmental Policy Act 
        (42 U.S.C. 4321 et seq.).
            (4) Deadline.--
                    (A) In general.--The Administrator shall issue or 
                deny a permit for the remediation of a mine site not 
                later than--
                            (i) the date that is 180 days after the 
                        date of receipt by the Administrator of an 
                        application for the permit that, as determined 
                        by the Administrator, is complete; or
                            (ii) such later date as may be determined 
                        by the Administrator with the agreement of the 
                        applicant.
                    (B) Constructive denial.--If the Administrator 
                fails to issue or deny the permit in accordance with 
                subparagraph (A), the application shall be considered 
                to be denied by the Administrator.
            (5) Review for certain projects.--A project that, as 
        determined by the Administrator, would be less complex, or pose 
        less risk, than other projects under review by the 
        Administrator for a permit under this section, may be reviewed, 
        at the discretion of the Administrator, under a more simple and 
        rapid review process under this subsection.
    (g) Effect of Permits.--
            (1) In general.--A permit issued under this section to 
        carry out a project for the remediation of an inactive or 
        abandoned mine site--
                    (A) authorizes the permittee to carry out the 
                activities described in the permit;
                    (B) authorizes enforcement under this section; and
                    (C) provides to the permittee, in carrying out the 
                activities authorized under the permit, protection from 
                actions taken, obligations, and liabilities arising 
                under the environmental laws specified in the permit.
            (2) Cross-compliance.--A permittee shall comply with the 
        terms and conditions of a permit issued under this section in 
        lieu of compliance with the environmental laws specified in the 
        permit with respect to the work authorized under the permit.
    (h) Content of Permits.--
            (1) In general.--A permit issued under this section shall 
        contain--
                    (A) a detailed description of the engineering and 
                other work that is authorized under the permit;
                    (B) a specific list of environmental laws, or 
                selected provisions of environmental laws, with respect 
                to which compliance with the permit will operate in 
                lieu of compliance with the laws;
                    (C) a provision that states that the permittee is 
                responsible for securing, for all activities authorized 
                under the permit, all authorizations, licenses, and 
                permits that are required under applicable law, other 
                than the environmental laws described in subsection 
                (g)(2); and
                    (D) any other terms and conditions that are 
                determined to be appropriate by the Administrator.
            (2) Investigative sampling.--
                    (A) In general.--A permit may identify an 
                appropriate program of investigative sampling to be 
                completed prior to remediation, as determined by the 
                Administrator upon application.
                    (B) Option to decline remediation.--In the event 
                that investigative sampling is authorized, the permit 
                may allow the permittee to decline to undertake 
                remediation based upon sampling results.
                    (C) Permit modification.--Based upon sampling 
                results, a permittee may apply for a permit 
                modification using the permit procedures in this Act.
            (3) Timing.--Work authorized under a permit shall--
                    (A) commence not later than the date that is 18 
                months after the date of issuance of the permit; and
                    (B) continue until completed, with temporary 
                suspensions permitted during adverse weather or other 
                conditions specified in the permit.
            (4) Signature by permittee.--The signature of the permittee 
        on the permit shall be considered to be an acknowledgment by 
        the permittee that the permittee accepts the terms and 
        conditions of the permit.
            (5) Transfer of permits.--A permit may be transferred to 
        another person only if--
                    (A) the Administrator determines that the 
                transferee will satisfy all of the requirements of the 
                permit;
                    (B) the transferee signs the permit; and
                    (C) the Administrator includes in the transferred 
                permit any additional conditions necessary to meet the 
                goals of this section.
            (6) Termination of permit.--The authority to carry out work 
        under a permit issued under this section shall terminate if the 
        work does not commence by the date that is 18 months after the 
        date of issuance of the permit.
    (i) Role of Administrator.--In carrying out this section, the 
Administrator shall--
            (1) consult with prospective applicants;
            (2) accept permit applications under this section;
            (3) convene, coordinate, and lead the application review 
        process;
            (4) maintain all records relating to the permit and the 
        permit process;
            (5) provide an opportunity for cooperating agencies and the 
        public to participate in the permit process;
            (6) issue the permit under this section, if appropriate; 
        and
            (7) enforce and otherwise carry out this section.
    (j) Cooperating Agencies.--If the Administrator learns that an 
application for the remediation of a mine site under this section will 
be submitted to the Administrator, the Administrator shall (as soon as 
practicable) provide a notice of the application to--
            (1) the lead State agency designated under subsection 
        (d)(2)(D);
            (2) each local government located within a radius of 20 
        miles of the mine site; and
            (3) each Federal and State agency that may have an interest 
        in the application.
    (k) Public Participation.--
            (1) Potential submission of applications.--If the 
        Administrator learns that an application for the remediation of 
        a mine site under this section will be submitted to the 
        Administrator, the Administrator shall (as soon as practicable) 
        provide to the public a notice that describes--
                    (A) the location of the mine site;
                    (B) the scope and nature of the proposed 
                remediation; and
                    (C) the name of the Good Samaritan that will be 
                carrying out the proposed remediation.
            (2) Receipt of application.--If the Administrator receives 
        an application for the remediation of a mine site under this 
        section, the Administrator shall (as soon as practicable) 
        provide to the public a notice that provides the information 
        described in paragraph (1).
            (3) Hearing.--
                    (A) In general.--Not later than 45 days after the 
                date of receipt of a complete application for the 
                remediation of a mine site under this section, the 
                Administrator shall hold a hearing in the vicinity of 
                the mine site to be remediated.
                    (B) Comments.--At the hearing, the Administrator 
                shall provide the applicant, the public, and 
                cooperating agencies with the opportunity to comment on 
                the application.
            (4) Notice of pending issuance.--Not less than 14 days 
        before the date of issuance of a permit for the remediation of 
        a mine site under this section, the Administrator shall provide 
        to the public and each cooperating agency notice of the pending 
        issuance of the permit.
            (5) Public records.--All records relating to the permit and 
        the permit process shall be considered to be public records, 
        except to the extent the records are subject to a legal 
        privilege.
    (l) Monitoring.--
            (1) In general.--The permittee shall take such actions as 
        the Administrator determines are necessary to ensure 
        appropriate baseline and post-remediation monitoring of the 
        environment under paragraphs (7) and (13) of subsection (e).
            (2) Administration.--When selecting the type and frequency 
        of the monitoring requirements to be included in a permit, if 
        any, the Administrator shall--
                    (A) balance the need for monitored information 
                against the cost of the monitoring, based on the 
                circumstances relating to the remediation; and
                    (B) take into account the scope of the project.
            (3) Multiparty monitoring.--The Administrator may approve 
        in a permit the conduct of monitoring by multiple parties if, 
        as determined by the Administrator, the multiparty monitoring 
        will effectively accomplish the goals of this section.
    (m) Enforcement.--
            (1) Civil penalty.--Any person who violates a permit issued 
        under this section shall be subject to a civil penalty of up to 
        $10,000 for each day of the violation.
            (2) Injunctions.--
                    (A) In general.--A court may issue an injunction--
                            (i) mandating that a person comply with a 
                        permit or take action to abate a permit 
                        violation; or
                            (ii) prohibiting a person from violating a 
                        permit.
                    (B) Minimum requirement.--In the event of a permit 
                violation, and absent extraordinary circumstances, the 
                court shall, at a minimum, require--
                            (i) the permittee to repair the damage to 
                        any part of the environment that is caused by 
                        an action of the permittee in violation of the 
                        permit; and
                            (ii) the environment to be restored to the 
                        condition of the environment prior to the 
                        action of the permittee in violation of the 
                        permit.
            (3) Agencies.--Any government agency that signs a permit 
        issued under this section may enforce the permit through 
        appropriate administrative or judicial proceedings.
    (n) Judicial Review.--A court may set aside or modify an action of 
the Administrator in issuing a permit under this section, or an action 
of a State or political subdivision of a State in signing a permit, 
only on clear and convincing evidence of an abuse of discretion.
    (o) Savings Provisions.--
            (1) Emergency authority.--Nothing in this section affects 
        the authority of a Federal, State, or local agency to carry out 
        any emergency authority, including an emergency authority 
        provided under any environmental law listed in a permit.
            (2) Liability.--Except to the extent that a permit provides 
        protection under an environmental law specified in a permit in 
        accordance with subsection (g)(1)(C), nothing in this section 
        or a permit issued under this section limits the liability of 
        any person (including a permittee) under any other provision of 
        law.
    (p) Regulations.--
            (1) In general.--The Administrator may promulgate such 
        regulations as are necessary to carry out this section.
            (2) Effectiveness.--This section shall be effective 
        regardless of whether regulations are promulgated by the 
        Administrator under paragraph (1).
                                 <all>