110 HR 4011 IH: Good Samaritan Cleanup of Abandoned Hardrock Mines Act of U.S. House of Representatives 2007-10-30 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

I 110th CONGRESS 1st Session H. R. 4011 IN THE HOUSE OF REPRESENTATIVES October 30, 2007 Mr. Udall of Colorado (for himself and Mr. Pearce) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure A BILL To facilitate the reclamation of abandoned hardrock mines, and for other purposes.

1.

Short title, findings, and purpose

(a)

Short title

This Act may be cited as the Good Samaritan Cleanup of Abandoned Hardrock Mines Act of 2007. (b)

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)mining operations produce metals and minerals with important social benefits and values; (3)many areas in which historic mining took place in the United States are now inactive and abandoned mine sites; (4)the mining activities that took place prior to the enactment of modern environmental laws often disturbed public and private land, and those disturbances lead to environmental pollution, including the discharge of pollutants to surface water and groundwater; (5)many of the individual and corporate owners and operators of the mines, whose actions caused that pollution, are no longer alive or in existence; (6)many of the mine sites have polluted the environment for more than a century and will continue to do so indefinitely unless remediated; (7)unabated discharges from inactive and abandoned mines will continue to pollute surface water, groundwater, and soils; (8)many of the streams and water bodies impacted by acid mine drainage are important resources for fish and wildlife, recreation, drinking water, agriculture, and other public purposes; (9)some of the remaining owners and operators of mine sites do not have resources that are adequate to conduct remediation properly under applicable environmental laws; (10)from time to time, States, individuals, and companies are willing to remediate historic mine sites for the public good as Good Samaritans, despite the fact that the States, individuals, and companies are not legally required to remediate the mine sites; (11)Good Samaritan remediation activities may— (A)vary in size and complexity; (B)reflect the myriad methods in which mine residue may be cleaned up; and (C)include, among other activities— (i)the removal, relocation, or management of tailings or other waste piles; (ii)passive or active water treatment; and (iii)runoff or run-on controls; (12)the potential liabilities under the Federal Water Pollution Control Act that may attach to a Good Samaritan as a result of the remediation can dissuade potential Good Samaritans from acting for the public good; (13)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 detrimental environmental impacts of the sites are lessened in the future; and (14)if appropriate protections are provided for Good Samaritans, Good Samaritans will have a greater incentive to remediate those sites for the public good. (c)

Purposes

The purposes of this Act are— (1)to encourage partial or complete remediation of inactive and abandoned mine sites for the public good by persons that are not legally responsible for the remediation; (2)to allow a person not legally responsible for environmental conditions relating to inactive or abandoned mine sites to improve water quality affected by past mining activities at the site without incurring liability under the Federal Water Pollution Control Act in order to make further progress toward the goal of meeting water quality standards in all waters of the United States; (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 tribal authorities and with review and comment by the public; and (B)in a manner that is beneficial to the environment and all affected communities; (5)to further innovation and cooperation among the Federal Government, State governments, private individuals, and corporations to accelerate conservation and environmental restoration. (d)

Scope

Nothing in this Act is intended to— (1)reduce any existing liability; or (2)facilitate any mining or processing other than that required for the remediation of historic mine residue for the public good.

2.

Good Samaritan discharge 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)

Good Samaritan Discharge Permits

(1)

Definitions

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

Cooperating person

The term cooperating person means any person including the Federal Government that— (i)meets the definition of Good Samaritan; (ii)assists a Good Samaritan in the remediation of an inactive or abandoned mine site; and (iii)is identified in a Good Samaritan discharge permit issued pursuant to this Act. (B)

Good Samaritan

The term Good Samaritan means a person that, with respect to historic mine residue at an inactive or abandoned mine site— (i)had no role in the creation of the historic mine residue; (ii)had no role and is not related to a person who had a role in creating the environmental pollution caused by the historic mine residue; and (iii)is not liable under any Federal, State, tribal, or local law for the remediation of the historic mine residue. (C)

Good Samaritan discharge permit

The term Good Samaritan discharge permit means a permit described under paragraph (2). (D)

Historic mine residue

(i)

In general

The term historic mine residue means mine residue or conditions resulting from activities at an inactive or abandoned mine site prior to October 18, 1972, that cause or contribute to the discharge of pollutants from the inactive or abandoned mine site or otherwise pollute the environment. (ii)

Inclusions

The term historic mine residue includes, among other materials— (I)previously mined ores and minerals that contribute to acid mine drainage or other pollution; (II)equipment (or materials in equipment); (III)wastes or materials from extractions, beneficiation, or other processing; and (IV)acidic or otherwise polluted flows in surface water or groundwater. (E)

Identifiable owner or operator

The term identifiable owner or operator means a person or entity that is— (i)legally responsible under section 301 for discharges from an inactive or abandoned mine site; and (ii)financially capable of compliance with the requirements of this section and section 301. (F)

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— (i)were used for the production of a mineral other than coal; (ii)have historic mine residue; and (iii)are no longer actively mined (and not in temporary shutdown)—at the times at which the remediation plan is submitted and the Good Samaritan discharge permit is issued. (G)

Permitting authority

The term permitting authority means the Administrator or, in the case of a State or Indian tribe with an approved permitting program under this section, the head of such program. (H)

Indian tribe

The term Indian tribe has the meaning given that term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b). (I)

Person

The term person includes— (i)an individual; (ii)a firm; (iii)a corporation; (iv)an association; (v)a partnership; (vi)a consortium; (vii)a joint venture; (viii)a commercial entity; (ix)a nonprofit organization; (x)the Federal Government; (xi)a State; (xii)a political subdivision of a State; (xiii)an interstate entity; (xiv)a commission; and (xv)an Indian tribe. (2)

Good Samaritan discharge permits

(A)

In general

The permitting authority, with the concurrence of the State in which an inactive or abandoned mine site remediation project is proposed or a Federal agency or Indian tribe which owns or has jurisdiction over the site on which a remediation project is proposed, may issue a Good Samaritan discharge permit to a Good Samaritan. (B)

State or tribal programs

The Administrator shall approve a State or Tribal program for issuance of Good Samaritan discharge permits to any State or Indian tribe, if— (i)the State or Indian Tribe already has authority to issue a permit under this section; and (ii)the State or Indian tribe requests such approval. (3)

Eligibility for Good Samaritan Discharge Permits

To be eligible for a Good Samaritan discharge permit to carry out a project to remediate an inactive or abandoned mine site under this section— (A)the mine site shall be located in the United States; (B)the 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)) or where there is an ongoing or planned removal under such Act; (D)the permit shall authorize only those activities that are required for the remediation of historic mine residue at the mine site; and (E)the person obtaining the permit shall be a Good Samaritan. (4)

Permit process

(A)

Scope

A Good Samaritan may apply for a Good Samaritan discharge permit for remediation activities at inactive or abandoned mine sites from which there is or may be a discharge of pollutants to waters of the United States. (B)

Remediation plan

A Good Samaritan seeking a Good Samaritan discharge permit shall submit an application for the permit that includes a remediation plan that— (i)identifies the Good Samaritan and any cooperating person with respect to the plan; (ii)identifies the inactive or abandoned mine site addressed by the plan, including such documentation as the permitting authority finds sufficient to demonstrate that the site is eligible under this Act; (iii)identifies the waters of the United States affected by past mining activities at or immediately downstream from the inactive or abandoned mine site; (iv)describes the baseline condition of the waters at the time of the permit application (including the nature and extent of any adverse impact on water quality caused by drainage from the abandoned or inactive mine site and, as applicable, the levels of any pollutant causing the impact); (v)describes the conditions at the inactive or abandoned mine site that are causing adverse water quality impacts to the extent such conditions are known to the Good Samaritan at the time of the application; (vi)describes the applicant’s reasonable efforts to identify identifiable owners or operators; (vii)describes the remediation goals and objectives, including the pollutant or pollutants to be addressed by the plan, including actions taken that will result in attainment of the applicable water quality standards to the maximum extent reasonable and practicable under the circumstances; (viii)describes the practices, including a schedule and estimated completion date for implementing the practices, that are proposed to meet the goals and objectives under clause (vii), 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 projects; (ix)describes any proposed recycling or reprocessing of historic mine residue at the site subject to paragraph (8)(E), and how such activities relate to the remediation; (x)explains how the practices described in clause (viii) are expected to achieve goals and objectives under clause (vii); (xi)describes the monitoring or other forms of assessment that will be undertaken to evaluate the success of the practices during and after implementation, relative to baseline conditions; (xii)describes contingency plans, including the practices to be implemented to achieve the remediation goals and objectives described in clause (vii), for responding to 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, including practices described in clauses (viii), (xi), and (xii); (xv)describes the applicant’s legal authority to enter and conduct activities at the inactive or abandoned mine site addressed by the plan; (xvi)describes any public outreach activities and contains any other additional information requested by the Administrator to clarify the plan and the activities covered by the plan; and (xvii)is signed and certified by the applicant (in a manner consistent with regulations in section 122.22 of title 40, Code of Federal Regulations, in effect on October 1, 2007). (C)

Investigative sampling

(i)

In general

A permit may identify a program of investigative sampling to be completed prior to remediation if the permitting authority, upon application, determines the program to be appropriate. Any such program shall use test methods identified in part 136 of title 40, Code of Federal Regulations, in effect on October 1, 2007. All samples collected during any such program shall be representative of the discharge from the abandoned or inactive mine site, and records of all sampling events shall be retained for not less than 3 years. (ii)

Initial plan

If the Good Samaritan proposes to conduct investigative sampling, the initial remediation plan shall provide the information required by subparagraphs (B)(iv), (v), and (vii) through (xiv) to the extent known, to be supplemented by the results of investigative sampling prior to the implementation of remediation. (iii)

Permit modification

Based upon investigative sampling results, a permit may be modified pursuant to the permit procedures in this section. (iv)

Option to decline remediation

In the event that investigative sampling is authorized, the permit may allow the permittee to decline to undertake remediation based on the results of investigative sampling. (D)

Review of application

(i)

Initial review

The permitting authority shall— (I)review each application for a Good Samaritan discharge permit; (II)provide to the public notice of and reasonable opportunity to comment on the application; (III)in cases where the Administrator is the permitting authority, provide a copy of the application to each affected State, tribe, or other Federal agency; (IV)provide an opportunity for a public hearing on the application; and (V)determine whether the application meets the requirements of subparagraph (B). (ii)

Requirements not met

If the permitting authority determines that an application does not meet the requirements of subparagraph (B), the permitting authority shall— (I)notify the applicant that the application is disapproved and explain the reasons for the disapproval; and (II)allow the applicant to submit a revised application. (iii)

Requirements met

If the permitting authority determines that an application meets the requirements of subparagraph (B), the permitting authority shall notify the applicant that the application is accepted. (E)

Permit issuance

(i)

Notice and comment

After notice and opportunity for public comment on a Good Samaritan discharge permit proposed to be issued, including any additional requirements that the permitting authority determines would facilitate implementation of this subsection, the permitting authority may issue such permit to the applicant if— (I)the permitting authority determines that— (aa)relative to the resources available to the Good Samaritan for the proposed remediation activity, the Good Samaritan has made a reasonable effort to identify persons under subparagraph (B)(vi); (bb)no identifiable owner or operator exists, except a permit can be issued for an inactive or abandoned mine site located on Federal land or land owned by a State or political subdivision of the State if the only identifiable owner or operator is the Federal Government (with respect to a site on Federal land) or such State or political subdivision; (cc)the remediation plan demonstrates with reasonable certainty that its implementation will not result in water quality that is worse than the baseline condition of the waters described in subparagraph (B)(iv) and there is a reasonable basis to conclude, taking into consideration the resources identified by the Good Samaritan for the proposed remediation activity pursuant to subparagraph (B)(xiv), that such implementation will improve water quality so as to result as closely as possible in the attainment of applicable water quality standards as is reasonable and practicable under the circumstances; (dd)the permit applicant has provided adequate evidence of financial resources that will allow the applicant to complete the permitted work; and (ee)the project meets the requirements of this section; (II)any Federal, State, and tribal land management agency with jurisdiction over inactive or abandoned mine sites to be subject to the proposed permit or public trustee for natural resources affected by historic mine residue associated with such mine site does not object to the issuance of the permit; and (III)in cases where the Administrator is the permitting authority, the affected State or tribe concurs with the issuance of the permit. (F)

Timing

The permitting authority shall seek to issue or deny a permit for the remediation of a mine site not later than the date that is 180 days after the date of receipt by the permitting authority of an application for the permit that, as determined by the permitting authority, is complete. (G)

Modification

(i)

Approval and disapproval process

After receipt of a written request by a permittee the permitting authority shall approve or disapprove a modification of a permit. (ii)

Permit modification

A permit modification approved by the permitting authority under this subsection shall be— (I)by agreement of the permittee and the permitting authority, and, in cases where the Administrator is the permitting authority, the affected State or tribe; (II)after providing the public notice of, and opportunity for comment and a hearing on, a proposed modification of a Good Samaritan discharge permit; (III)in accordance with the standards in subparagraph (E)(i)(I)(c); and (IV)immediately reflected in, and applicable to, the Good Samaritan discharge permit. (5)

Contents of permit

(A)

In general

A Good Samaritan discharge permit— (i)shall include a remediation plan approved by the permitting authority and any additional requirements that the permitting authority establishes under paragraph (10); and (ii)shall provide for compliance with and implementation of the remediation plan and any other requirements described under clause (i). (B)

Review

A permit shall establish a schedule for review, by the permitting authority, of compliance with the conditions and limitations of the permit. (C)

Effect of compliance

Compliance with a Good Samaritan discharge permit shall constitute compliance with section 301. Neither the holder of such a permit nor a cooperating person identified in such a permit shall be responsible for implementing any remediation activities other than those specified in the remediation plan included in the permit. This subparagraph shall not be affected by the termination of such a permit. (6)

Failure to comply

Failure of a Good Samaritan, while operating under an approved Good Samaritan discharge permit, to comply with any condition or limit of the permit shall be considered a violation subject to enforcement pursuant to sections 309 and 505. (7)

Termination

(A)

In general

The permitting authority shall terminate a Good Samaritan discharge permit if— (i)the Good Samaritan successfully completes the implementation of the remediation plan; or (ii)the discharges covered by the permit— (I)become subject to a permit issued under the other subsections of this section for development that is not part of the implementation of the remediation plan; and (II)the Good Samaritan seeking termination of coverage, and any person cooperating with the Good Samaritan with respect to the plan, is not a participant in the development. (B)

Unforeseen circumstances

If an event or condition is encountered that reduces the significantly feasibility or significantly increases the cost of completing the remediation project, was not contemplated or designed for by the remediation plan, and is beyond the control of the Good Samaritan— (i)the permitting authority shall seek to modify the permit, with the agreement of the permittee, to reflect the encountered event or condition; except that (ii)if the permittee does not agree to a modification of the permit, and the permitting authority determines that remediation activities under the permit have not resulted in surface water quality conditions, taken as a whole, that are worse than the baseline condition of the waters described in paragraph (4)(B)(iv), the permitting authority shall terminate the permit. (C)

No enforcement liability

(i)

Remaining discharges

Subject to clause (ii), if a permit is terminated under subparagraph (A) or (B), the Good Samaritan to whom the permit was issued, or a cooperating person with respect to the plan, shall not be subject to enforcement under any provision of this Act for any discharges from the inactive or abandoned mine site described in the permit. (ii)

Other parties

This subparagraph does not limit the liability of any person, other than the Good Samaritan to whom the permit was issued or a cooperating person. (8)

Limitations

(A)

Emergency powers

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

Prior violations

(i)

Actions and relief

Issuance of a permit under this subsection does not preclude any action under section 309 or 505, or affect the relief available in such an action, with respect to a violation, by any person, of this section or section 301(a) that occurred prior to issuance of such a permit. (ii)

Exceptions

If a permit covers remediation activities implemented by the permit holder prior to the issuance of the permit, clause (i) shall not apply to an action that is based on conditions resulting from those remediation activities. In addition, the holder of a permit issued under this subsection shall not be subject to an action under section 309 or 505 for any violations by any other party. (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

Any development of an inactive or abandoned mine site (including mineral exploration, processing, beneficiation, or mining), including development by a Good Samaritan or any cooperating person with respect to the plan, not specifically described in a permit issued by the permitting authority under this subsection shall be subject to this Act (other than this subsection). The commingling of any other discharges or waters with the discharges or waters subject to the Good Samaritan discharge permit cannot limit or reduce the liability of persons associated with the other waters or discharges. (E)

Recoverable value

A Good Samaritan to whom a permit is issued may sell or use materials recovered during the implementation of the plan, but the proceeds of any such sale must be used to defray the costs of remediation of the site addressed in the permit or the costs of voluntary remediation of any other inactive or abandoned mine site covered by a permit issued under this section. (F)

State certification

In so far as this subsection may relate to water quality standards, section 401 certification shall not apply to permits under this section; except that, in any case in which section 401 certification would otherwise be required, no permit shall be issued under this subsection without the concurrence of the State in which the discharge is located or the Indian tribe which owns or has jurisdiction over the site on which a remediation project is proposed. (G)

State and tribal reclamation programs

No State, Indian tribe, or other person shall be required to obtain a Good Samaritan discharge permit pursuant to this subsection for any discharges, including any discharges associated with the remediation of an inactive or abandoned mine site when conducting reclamation work under a State or tribal abandoned mine reclamation plan approved under title IV of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1231 et seq.) (9)

Liability of other parties

Nothing in this subsection, including any result caused by any action taken by the Good Samaritan to whom a permit is issued or a cooperating person, limits the liability of any person other than the Good Samaritan or a cooperating person, under this Act or any other law. (10)

Regulations

(A)

In general

Except as provided in subparagraph (B), not later than one year after the date of enactment of this subsection, the Administrator, in consultation with Secretary of the Interior and the Secretary of Agriculture and State, tribal, and local officials and after providing the public with notice of, and opportunity for comment and a hearing on, regulations proposed to be promulgated, shall promulgate regulations establishing generally applicable requirements for— (i)remediation plans described in paragraph (4)(B); and (ii)as considered to be necessary by the Administrator, other paragraphs of this subsection. (B)

Specific requirements before promulgation of regulations

Before promulgation of regulations pursuant to subparagraph (A), the permitting authority may establish, on a case-by-case basis, after notice and opportunity for public comment, specific requirements that the permitting authority determines would facilitate implementation of this subsection in an individual permit issued to the Good Samaritan. (11)

Funding

(A)

Eligibility for section 319 grants

Implementation of a remediation plan under a permit issued under this subsection shall be eligible for grants under section 319(h). (B)

Other grant for implementation of remediation plans

Subject to the availability of appropriated funds, the Administrator also may make a grant, without regard to any requirements in section 319(h) concerning the availability of State or other matching funds, to any Good Samaritan for implementation of a remediation plan under a permit issued under this subsection. (12)

Report

(A)

In general

Not later than 1 year before the date of the termination of the permitting authority specified in paragraph (13), the Administrator shall submit a report to Congress on the activities authorized by this subsection. (B)

Contents

The report required under subparagraph (A), at a minimum, shall— (i)identify each permit, and associated Good Samaritan, issued under this subsection; (ii)identify the inactive or abandoned mine site addressed by each permit (including the water bodies and baseline water quality of the water bodies affected by the site); (iii)summarize the remediation plan associated with each permit issued under this subsection, including— (I)the goals and objectives of the plan; (II)the plan budget; and (III)the practices to be employed according to the plan to reduce, control, mitigate, or eliminate adverse water quality impacts; (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 applicable state or Indian tribe or any civil action brought by a citizen concerning a permit issued under this section (including the disposition of the legal action); and (vi)include any recommendations that may be proposed by the Administrator for any modifications to existing law, including this subsection, or the regulations promulgated under paragraph (10) to implement this subsection, that would facilitate the improvement of water quality through the remediation of inactive or abandoned mine sites. (13)

Termination of permitting authority

The authority granted to the permitting authority under this subsection to issue a Good Samaritan discharge permit terminates on the date that is 10 years after the date of enactment of this subsection. (14)

Severability

If any provision of this subsection, or the application of any provision of this subsection to any person or circumstance, is held invalid, the application of such provision to other persons or circumstances, and the remainder of this Act, shall not be affected thereby. .