[Senate Hearing 106-955]
[From the U.S. Government Publishing Office]



.                                                       S. Hrg. 106-955
    GOOD SAMARITAN ABANDONED OR INACTIVE MINE WASTE REMEDIATION ACT
=======================================================================

                                HEARING

                               BEFORE THE

                 SUBCOMMITTEE ON FISHERIES, WILDLIFE, 
                               AND WATER

                                 OF THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 21, 2000

                               __________

                                   ON

                                S. 1787

  A BILL TO AMEND THE FEDERAL WATER POLLUTION CONTROL ACT TO IMPROVE 
           WATER QUALITY ON ABANDONED OR INACTIVE MINED LAND

  Printed for the use of the Committee on Environment and Public Works


 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 senate


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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED SIXTH CONGRESS
                             second session

                 ROBERT SMITH, New Hampshire, Chairman
JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
JAMES M. INHOFE, Oklahoma            DANIEL PATRICK MOYNIHAN, New York
CRAIG THOMAS, Wyoming                FRANK R. LAUTENBERG, New Jersey
CHRISTOPHER S. BOND, Missouri        HARRY REID, Nevada
GEORGE V. VOINOVICH, Ohio            BOB GRAHAM, Florida
MICHAEL D. CRAPO, Idaho              JOSEPH I. LIEBERMAN, Connecticut
ROBERT F. BENNETT, Utah              BARBARA BOXER, California
KAY BAILEY HUTCHISON, Texas          RON WYDEN, Oregon
LINCOLN CHAFEE, Rhode Island
                      Dave Conover, Staff Director
                  Tom Sliter, Minority Staff Director
                                 ------                                

             Subcommittee on Fisheries, Wildlife, and Water

                   MICHAEL D. CRAPO, Idaho, Chairman
CRAIG THOMAS, Wyoming                HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri        FRANK R. LAUTENBERG, New Jersey
JOHN W. WARNER, Virginia             RON WYDEN, Oregon
ROBERT F. BENNETT, Utah              BOB GRAHAM, Florida
KAY BAILEY HUTCHISON, Texas          BARBARA BOXER, California

                                  (ii)











                            C O N T E N T S

                              ----------                              
                                                                   Page

                             JUNE 21, 2000

                           OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana.........     3
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....     1

                               WITNESSES

Fox, J. Charles, Assistant Administrator of Water, Environmental 
  Protection Agency; accompanied by Mike Cook, Director, Office 
  of Wastewater Management.......................................    12
    Prepared statement...........................................    62
Gerard, David, research associate, Political Economy Research 
  Center, Bozeman, MT............................................    36
    Prepared statement...........................................   109
    Responses to additional questions from Senator Crapo.........   114
Goodhard, William, Director of Reclamation and Environmental 
  Affairs, Echo Bay Mines, Englewood, CO, on behalf of the 
  National Mining Association....................................    30
    Executive summary, Reclaiming Inactive and Abandoned Mine 
      Lands--What Really is Happening, National Mining 
      Association................................................    78
    Prepared statement...........................................    68
    Responses to additional questions from Senators Crapo and 
      Boxer......................................................    81
Janklow, Hon. William J., Governor, Pierre, SD, on behalf of the 
  Western Governors' Association.................................     6
    List, Examples of Abandoned Mines in Western States..........    52
    Letter, Western Governors' Association.......................    56
    Prepared statement...........................................    49
    Resolution, Abandoned Mines, Western Governors' Association..    56
    Responses to additional questions from Senators Crapo and 
      Boxer......................................................    58
Kelly, Katherine, administrator, Waste Management and Remediation 
  Program, Idaho Division of Environmental Quality, Boise, ID....    26
    Prepared statement...........................................    65
    Responses to additional questions from Senator Crapo.........    67
Kendall, Sara, Western Organization of Resource Councils, 
  Washington, DC.................................................    34
    Prepared statement...........................................   108
Lyman, Jack, executive director, Idaho Mining Association, Boise, 
  ID.............................................................    32
    Prepared statement...........................................   106

                          ADDITIONAL MATERIAL

Letters:
    Association of Metropolitan Sewerage Agencies................   117
    Association of State and Water Pollution Control 
      Administrators (ASIWPCA)...................................   117
    Colorado Mining Association..................................   119
    Montana Governor Marc Racicot................................   118
    Western States Water Council.................................   118
Report, Abandoned Mine Land Initiative, Debra Struhsacker........    83











    GOOD SAMARITAN ABANDONED OR INACTIVE MINE WASTE REMEDIATION ACT

                              ----------                              

                                       U.S. Senate,
               Committee on Environment and Public Works,  
            Subcommittee on Fisheries, Wildlife, and Water,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:05 a.m., in 
room 406, Dirksen Senate Office Building, Hon. Mike Crapo, 
(chairman of the subcommittee) presiding.
    Present: Senators Crapo, Reid, and Baucus [ex officio].

          OPENING STATEMENT OF HON. MICHAEL D. CRAPO, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Crapo. The subcommittee will come to order.
    This is the Subcommittee on Fisheries, Wildlife, and 
Water's hearing on S. 1787, the Good Samaritan Abandoned or 
Inactive Mine Waste Remediation Act. I appreciate our witnesses 
joining us here today to explore the issue of remediating and 
reclaiming abandoned and inactive mine sites and to reflect on 
S. 1787, introduced by Senator Baucus.
    Throughout the United States, we have several hundred 
thousand mine sites that lie undisturbed as a legacy of another 
time when mining practices were less sophisticated than our 
current industry standards and when today's rigorous 
environmental stewardship laws were not yet a glimmer on the 
horizon. In other areas, the Federal Government directed mining 
companies to extract resources quickly and without regard for 
ecological consequences to support war efforts and economic 
growth. Although operated in full compliance with governing 
laws at the time, many abandoned and inactive mines pose 
environmental threats to surrounding watersheds and downstream 
interests.
    However, because of the economic uncertainties of the 
mining industry, the vast majority of these abandoned mine 
lands lack a viable owner with the resources to remediate them. 
Others lie on public lands where State and Federal agencies 
lack the incentives and funds to adopt and remediate them. And 
still others are truly abandoned with no identifiable owner in 
sight.
    As such, Federal policy should encourage Federal agencies, 
States, and private parties to volunteer themselves to clean up 
the abandoned mine lands that would otherwise remain 
unremediated. In other words, we should help them to become 
good Samaritan and promote voluntary stewards of the 
environment. If uncon-
nected parties step forward to address these sites, everyone 
wins.
    I believe there is little disagreement that this is a 
policy to which we should all aspire. But how do we achieve 
this policy?
    Clearly, a combination of two factors must be addressed. 
First, the current legal and economic disincentives for 
identifying good Samaritans need to be eliminated. Today's 
witnesses are expected to highlight the multitude of legal 
barriers, including the Clean Water Act and Superfund 
liability, that discourage parties from taking actions. The 
existence of unnecessary regulatory burdens may also dissuade 
potential good Samaritans because of the time, cost, and hassle 
of the bureaucratic process.
    Second, it should be the Federal policy to invite as many 
good Samaritans as financially viable to contribute to the 
repair of our environment. Neither a needy charity nor a 
worthwhile environmental cause would reject the contribution or 
assistance from a willing donor. Is our environment any less 
worthy a cause?
    To do so, we should err on the side of establishing as many 
incentives as possible to identify good Samaritans. Federal, 
State, and local agencies could be parties, as well as private 
companies and not just mining sources. Any combination of the 
following would be created for this purpose: Federal or State 
funding, tax incentives, permission to offset costs for 
undertaking voluntary remediation, a trust fund, just to name a 
few.
    For so many years now, we have heard that we can spare 
little expense when it comes to healing Mother Nature. Is it 
fair to shortchange her now when many are willing to 
voluntarily help?
    It is also appropriate to spend a few moments addressing 
matters that would play an important part in whatever policy is 
created. First, creating limitations on States' rights and 
prerogatives in the managing of the environment, in my opinion, 
is counterproductive. In other words, States should retain full 
authority to set water quality guidelines, issue permits, and 
act as cleanup agents to ensure the environment is served. 
Moreover, the current record of the EPA in reviewing and 
issuing NPDES permits seems to be lacking.
    Second, the overly complicated rules proposed under the 
bill seem to preclude certain actors from cleaning up sites on 
particular stretches of the property. This may, in fact, scare 
potential good Samaritans away from volunteering themselves for 
cleanups on properties of mixed ownership involving Federal, 
State, and private parties.
    Third, if certain sites are a particular threat to the 
environment, even to the level of warranting Superfund Program 
attention, those areas should not be excluded from cleanup by 
volunteers. If by nature these sites represent the highest 
caliber of threat to human health and the environment, 
shouldn't these sites be the ones that are open to cleanup by 
willing parties? Especially if the State or the Federal 
Government identifies them as priority sites. Unless the search 
for liable parties finds in the preponderance of cases 
identifiable parties who will actually clean up the site, 
shouldn't a volunteer source be welcomed instead of 
discouraged?
    Fourth, with what external activities should a potential 
volunteer be saddled? In other words, Is it good policy to 
expect a good Samaritan to expend their limited resources to 
undertake ownership searches rather than cleanups? Is that the 
responsibility of the good Samaritan?
    Fifth, is it appropriate to treat good Samaritans as 
untrust- worthy in their willingness to remediate discharges 
not of their fault by insisting on a lengthy and potentially 
expensive permit application process? Given that the good 
Samaritan is volunteering itself where others will not step 
forward, what should the Federal policy be with regard to 
reviewing permits?
    Sixth, what is the appropriate level of cleanup to hold the 
good Samaritans to? If a party lacks the resources to restore a 
site to pristine conditions, should it be precluded from 
contributing to a lesser cleanup that will benefit the 
environment but is as much as it can afford?
    Finally, if we establish a policy that calls for only 
rigorous cleanups to be pursued and excludes marginal 
improvement, should we allow good Samaritans to offset their 
costs in the process of remediation activities?
    These are a number of the issues I would like to explore 
today and I am sure the witnesses will bring up others. I look 
forward to an educational and enlightening hearing and one that 
will explore the multitude of issues that involve the 
remediation of abandoned mine land.
    I welcome our witnesses here today. We will discuss with 
you the procedure of the hearing after the opening statements 
have all been given.
    Senator Crapo. Senator Baucus.

             OPENING STATEMENT OF HON. MAX BAUCUS, 
             U.S. SENATOR FROM THE STATE OF MONTANA

    Senator Baucus. Thank you very much, Mr. Chairman.
    First of all, I thank you very much for holding this 
hearing. This is a much needed bill. I also very much 
appreciate the list of questions that you just mentioned 
because I think they are good ones. They are questions that we 
obviously have to consider.
    At the outset, I want to say that this bill is a good bill, 
but it is, by definition, not perfect. No bill is perfect. 
Certainly this bill can be improved. By saying that I don't 
mean to be defensive. I think it is a very good way to 
encourage cleanups of abandoned mine sites. I very much welcome 
new ideas and any other ideas people have to improve upon it.
    I think it will only happen, too, Mr. Chairman, if we have 
a bipartisan consensus. And I do think that that is entirely 
achievable.
    Let me back up for a minute and just try to fit a couple of 
things in context, particularly with an example. An example I 
will use is the Alta Mine in Corbin, MT. It is about 15 miles 
south of our capital city of Helena.
    The Alta Mine was mined heavily from 1883 to 1886 and 
intermittently until the late 1950's when it was abandoned. I 
might say, as a little bit of Montana history, it is the reason 
for our railroad. It was such a big mine and the mine had such 
prospects that the Great Northern was going to build a line 
from Great Falls, MT all the way down to Helena. The primary 
reason for the line was this mine. As I said, in the 1950's, it 
was abandoned.
    So there it sits, an open shaft collecting ground water, 
which then discharges heavy metals into the ground water and 
also into the surface water.
    I might say that there are elevated levels of arsenic, 
cadmium, lead, mercury, and other heavy metals. The pollution 
runs down Corbin Creek into another creek called Spring Creek 
and then into Prickly Pear Creek, which runs into East Helena, 
MT. It is downhill into the valley and then eventually into the 
Missouri River.
    For at least 7 miles downstream, there is very serious 
environmental harm. I visited the mine just last year with a 
fellow named Vic Anderson, who runs the Abandoned Mine Cleanup 
Program in the State of Montana. The waters are very colored.
    This stuff is nasty stuff. It is full of all the metals I 
mentioned. It also stinks and it has contaminated the drinking 
water system in Corbin, MT. Corbin is not a big metropolis. 
There are about 11 homes in Corbin. But our State had to spend 
about $300,000 to replace the drinking water supply simply 
because this stuff is coming down the creek.
    Why isn't somebody doing something about this? In fact, 
Montana is doing a lot. Vic Anderson and his crew are removing 
structures. They are closing adits, capping contaminated soil. 
But it would also like to do something about the water. For 
example, they could construct wetlands for filtration, or they 
could use limestone to neutralize acid wastes. They have a lot 
of ideas. But the trouble is that there are some problems.
    Here are all the ideas Montana has. The engineers say that 
it will work. But the lawyers say that it won't. The lawyers 
say that by diverting the water the State will become liable 
under the Clean Water Act. We will have to get a full NPDES 
permit, and the permit would require permanent treatment. As we 
all know, under the Clean Water Act, it is prohibitively 
expensive. So as we speak at this very moment, acid mine 
drainage continues to flow directly into the Prickly Pear.
    This is not an isolated example. This is just an example of 
the Alta Mine. You can see the adit there and the water is 
coming out. It is a huge operation there to reclaim the area 
around the mine, but the State can't touch the water because to 
do so they would have to clean it up to Clean Water Act 
standards and they can't do it, so the water just continues to 
come out of the mine site.
    As I said, this is not an isolated example. There are more 
than 400,000 abandoned mines across our country--400,000 
abandoned mines across the United States of America. In 
Montana, there are 6,000. By the map up there, the red dots 
indicate where the abandoned mines are. There are at least 245 
in our State that are within 100 feet of a stream.
    Now, according to the Western Governors' Association and 
many other people, that same problem that is occurring at the 
Alta Mine is occurring at other abandoned mines all across the 
West. States and other good Samaritans are prevented from 
cleaning sites up to reduce water pollution.
    This is a map of the country where a lot of these sites 
occur, and you can tell they are all over. The more dense the 
red, the greater the concentration of mines.
    The bipartisan that I and Senator Campbell have introduced 
is designed to address this problem. The title of the bill is 
the Good Samaritan Abandoned or Inactive Mine Waste Remediation 
Act, which tells a lot about the bill's objectives. In a 
nutshell, the bill will allow States and some others, who did 
nothing to cause the water pollution problem, to clean up an 
abandoned mine under a special permit tailored to the 
conditions of the site.
    Under the bill, a State can apply for a permit from EPA by 
submitting a plan describing how the State would improve water 
quality. EPA reviews the plan to determine whether the plan 
will improve water quality to the maximum extent practical, 
given the resources and cleanup technologies available to the 
good Samaritan, a standard that is much lower than under the 
Clean Water Act, but not too low to be sure that there is some 
significant improvement in the water quality.
    The goal here is to improve the water quality. That is the 
goal here. And to significantly improve the water quality and 
draw the line so that there the water quality can be improved 
to a good high standard, but not so high--as is today in the 
case--so that no States, municipalities, counties, nobody does 
anything about it.
    That is the basic framework. Obviously we will get the 
details later, Mr. Chairman, but one final point--I think this 
is a good bill. It is not perfect and can be improved. I think 
our witnesses will have good suggestions. But let us not allow 
the perfect to be the enemy of the good. Let us not insist that 
the bill address every single issue on our wish list because 
that would be a recipe for a stale mate. I think we can do a 
lot better in working together with the States, industry, and 
environmentalists to solve the narrow, but important problem.
    Senator Crapo. Thank you very much, Senator. All of us do 
share that common goal. Hopefully, we can work forward to 
achieve that objective. I think you have stated the objective 
very well.
    We will now begin with the witness panel, so let me 
indicate to those here that the hearing will consist of four 
panels. The first three panels will be one witness per panel, 
and our first panel will be Hon. William J. Janklow, the 
Governor of the State of South Dakota.
    We welcome you here with us, Governor.
    He will be testifying on behalf of the Western Governors' 
Association.
    The second panel will be Mr. Chuck Fox, the Assistant 
Administrator of Water for the Environmental Protection Agency.
    Welcome, Mr. Fox.
    Our third panel will be Ms. Katherine Kelly, the 
administrator of the Waste Management and Remediation Program 
of the Idaho Division of Environmental Quality.
    Then our fourth panel will have four witnesses: Mr. William 
Goodhard, the director of Reclamation and Environmental Affairs 
of Echo Bay Mines, from Englewood, CO, testifying on behalf of 
the National Mining Association; Mr. Jack Lyman, the executive 
director of the Idaho Mining Association; Ms. Sara Kendall, of 
the Western Organization of Resource Councils; and Mr. David 
Gerard, a research associate with the Political Economy 
Research Center from Bozeman, MT.
    I would like to remind all the witnesses that we want to 
have as much opportunity to have a give-and-take discussion 
with you and questions, so we encourage you to remember the 
rule of trying to keep your oral presentation to 5 minutes. To 
assist you in that regard, we have a system of lights here. The 
green light will be on for 4 minutes, the yellow light will 
come on when there is 1 minute remaining, and when the red 
light comes on, we ask you to try to summarize what you have to 
say.
    If your experience is like that of most of the witnesses we 
have, the yellow and the red light will come on long before you 
are finished with what you have to say. I just assure you that 
you will have an opportunity to elaborate with us as we ask 
questions and so forth. So we ask you to wrap up so that we can 
have the time for the give-and-take with the panel.
    With that, we will begin with Governor Janklow.
    Senator Baucus. Mr. Chairman, if I might just also welcome 
the Governor----
    Senator Crapo. Sure. Go ahead.
    Senator Baucus. First of all, we claim him as a westerner. 
Second, I know from Senator Daschle what a good job you have 
done, Governor, and know that the two of you have a good, solid 
relationship. He wanted me to make sure that you are welcomed.
    Senator Crapo. We do very much welcome you here, Governor. 
We know of your busy schedule.

STATEMENT OF HON. WILLIAM J. JANKLOW, GOVERNOR, PIERRE, SD, ON 
          BEHALF OF THE WESTERN GOVERNORS' ASSOCIATION

    Governor Janklow. Thank you very much, Senator Crapo and 
Senator Baucus.
    If you look at Senator Baucus' map up there, Idaho, 
Montana, and South Dakota--there is a lot of red in those maps 
and there is a lot of very dark, dark red in those maps--three 
States that are vitally affected by the mining issue question.
    My State, frankly, is not unlike your two States. South 
Dakota, combined as a State, has less people than Greater 
Kansas City, MO. We have 88,000 square miles or 88-million 
square acres in our State. We are a State that really doesn't 
have a great deal of wealth.
    Like a lot of Western States, we were developed as a 
resource State, and as those things have changed dramatically, 
it has had a huge impact on the economics in our State.
    I am here today for two purposes. One is to submit the 
testimony on behalf of the Western Governors' Association--
which I do at this point in time, Senators--and I would like to 
make just a couple of brief comments with respect to South 
Dakota and this bill.
    We found ourselves in the position the last couple of years 
dealing with a mine called the Brohm Mining Company, a mining 
company that when the price of gold got to a couple of dollars 
an ounce went bankrupt. It left a huge open pit mine when they 
went bankrupt. The State was able to get a cash bond for 
several years. When I came back into office and became aware 
that there could be a problem, we put them on a cash bond. But 
unfortunately, they went bankrupt before we got enough cash in 
the bond fund.
    The point is that we now have 130 million gallons of acidic 
water in the pits out there that we are treating at a cost of 
about--they were paying $200,000 a month and it is costing us 
about $100,000 a month. When I went to Home State Gold Mine, 
which is a neighbor less than a mile away, when I went to Wharf 
Resources, a neighboring mining company within 2 miles of this 
mine, both of them refused to help me because of CERCLA and 
other Federal laws because of the perpetual liability.
    I invoked powers that we have in our State that a Governor 
has to deal with an emergency situation. They got to the point 
where they would have conversations with me and they actually 
made cash donations to the State where they gave us cash 
donations and suggested how we ought to spend it to start some 
of the remediation process. But they refused to become 
intricately involved, even though they are absolute experts at 
how to deal with this particular rock and geology of this 
particular location, because of the perpetual liability that 
currently exists under existing Federal laws.
    This bill, S. 1787, is really a very good start in its 
attempt to try to deal with the questions of liability. Some 
people have suggested to me that they want definitive standards 
written and they don't want any flexibility in terms of issuing 
permits. That to me is like saying that unless a cancer 
treatment is guaranteed to reach a certain level, people won't 
take it. The reality is that people will take cancer treatment 
at any level to try to remediate the situation they have.
    So the point I am trying to make is that we need the help 
of industry. We need the resources that could be made available 
to clean up our water. Frankly, I would just as soon clean it 
up 25 percent rather than 0 percent if that is all I can get 
done under current economics and current resources. But it is 
stupid to suggest that we ought to leave it 100 percent bad 
because no one wants to get involved with having liability 
forever with respect to these situations.
    That is where we are with respect to these bills. We were 
unable to get industry to help us. EPA Region 8 has been very 
good in providing assistance to us, but it is nonsense that all 
those resources sitting right there within 4 square miles of 
the location have been unable to really step forward and help 
us because of the liability issues.
    The State of South Dakota doesn't have the resources to do 
this. We frankly don't have the expertise to do it. We don't 
have the economics to do it.
    As briefly as I can, that is the situation in which we find 
ourselves. Senators, I will be glad to answer questions.
    Senator Crapo. Thank you very much, Governor.
    I just have a couple of questions with regard to your 
testimony.
    What was the name of the mine again?
    Governor Janklow. Brohm Mining Company.
    Senator Crapo. As I understood your testimony, you actually 
highlighted a couple of concerns that I have and I just want to 
pursue that with you.
    You indicated that one of your difficulties--in fact, as I 
understood you, the main difficulty you had in getting the 
industry experts involved--was their fear of CERCLA liability.
    Governor Janklow. That is correct, sir. They would not get 
involved for that reason, other than as giving us cash 
donations and then suggesting how we do it. They even cut that 
off because they didn't want to leave their fingerprints on it.
    Senator Crapo. I assume from that, then, that you would 
agree that the legislation should provide exemption from CERCLA 
liability for a volunteer.
    Governor Janklow. I would suggest that it be done if it is 
mandated by governmental action, which could be State action 
pursuant to the bill. As long as government steps forward and 
authorizes it or demands it--they wouldn't even do it if we 
demanded it under our laws, sir. So I think there ought to be 
something to protect them.
    Senator Crapo. My reading of the bill is that it does not 
at this time--unless we amend it--provide any protection from 
CERCLA liability for volunteers.
    Governor Janklow. That is correct, sir. I like this bill, 
but I think it ought to go farther. But recognizing what 
democracy is and compromise, the first step is a terribly 
important step.
    Senator Crapo. But that is a pretty big issue. If I 
understand it correctly, if we pass the bill as is, it wouldn't 
solve your problem with the Brohm Mine. You still would not be 
able to get industry----
    Governor Janklow. Some would argue that if a contractor is 
operating under State action, there would be protections. I 
don't personally think it is all that clear. I would like to 
see it made clear because I just want to--and I don't want to 
sound editorial. I am getting to be an old man and I have 
grandchildren who drink this water, bathe in it, and their mom 
cooks in it. I want it to be better than it is. Montana puts 
that water he is talking about from that mine into the Missouri 
River, which goes right through the middle of my State. I would 
just as soon they cleaned it up and made it a little better in 
Montana before they send it down.
    Senator Crapo. Can you see any reason not to have an 
exemption from CERCLA liability?
    Governor Janklow. I do not, sir. I am not practical by 
Washington standards, but I do not see any down side to it at 
all. The alternative is that it is going to continue to be a 
100 percent problem. I would just as soon make it a 70 percent 
problem and then we can deal with it from there.
    Senator Crapo. Well, that gets me to the next issue that I 
wanted to visit with you.
    You used the example of a person seeking a cancer treatment 
and if they couldn't get a 100 percent solution, they would 
still want to have whatever help they could get.
    Governor Janklow. Yes, sir.
    Senator Crapo. The standard in the bill--and I don't have 
the exact language in front of me, but I believe it is that the 
permit applicant seeking to be a good Samaritan must clean up 
the site to the maximum extent practicable. If a volunteer came 
forward and said that they didn't have the resources to do 
that, but they have the resources to give 10 or 20 percent 
improvement and they are willing to do it, shouldn't we 
encourage that?
    Governor Janklow. Yes, sir. I would support that.
    I support anything that makes water quality better. I was 
an absolutist when I was younger. The older I get the less 
absolute I become. Now I just want to start to fix problems 
instead of fix the whole world. I just want to fix a little 
drinking water and half dirty water is better than 100 percent 
dirty water.
    Senator Crapo. I appreciate your approach. I think it 
represents some of the common sense we find out among our 
constituencies and I think that is a good, healthy approach.
    You may not know the answer to this, but----
    Governor Janklow. That never prevented me from being an 
expert on it.
    [Laughter.]
    Senator Crapo. The Western Governors' Association prepared 
a discussion draft for this type of legislation when it was 
looking at the issue. I don't know how involved you were with 
that, but in that process, the discussion draft did not include 
a Federal enforcement mechanism. The bill before us today does 
have a Federal enforcement mechanism. I was just curious if you 
knew why the Western Governors did not believe that mechanism 
should be in the bill.
    Governor Janklow. Sir, I have been told that as a result of 
concern on whether or not a bill would have a chance of being 
passed, it was compromised and changed over time. That is the 
reason that something like that is not in there. It really was 
as a result of compromise and trying to find a consensus to 
move forward.
    Senator Crapo. And then just one other question.
    In this whole process, should it be the responsibility of 
the potential good Samaritan, or should it be the 
responsibility of the regulatory agency, to evaluate the chain 
of ownership to make a search for possible responsible parties?
    Governor Janklow. Sir, I don't mind the governmental entity 
making a search for owners and liable parties. I don't honestly 
think that is an onerous burden. It is not difficult to look 
back and find out who messed with the place, who owned it, or 
who had a deed, and things of that nature. So that is not a 
provision, sir, that really bothers me because we have done 
that with respect to the Brohm Mine. We have gone back and to 
the extent we can, we are going after people. But no one ever 
has the pockets that are deep enough to deal with it unless 
they have major corporate wealth.
    Senator Crapo. So if I understand correctly, you are saying 
that you don't think that is a burden we should put on the good 
Samaritan. That is something the government can handle?
    Governor Janklow. I think the government should handle it. 
If the government is demanding the action, so the government 
ought to do those types of things. We should only use the good 
Samaritan to the extent they have the resources and the 
expertise. I don't want these companies to go in and figure out 
who the former owners were and start suing them. I want them to 
give us the expertise to clean up the water. That is what I am 
looking to them for. I will go to someone else for the chain of 
title problem.
    Senator Crapo. Thank you very much.
    Governor Janklow. Thank you, sir.
    Senator Crapo. Senator.
    Senator Baucus. Thank you, Mr. Chairman.
    The question just now raised about whether there is 
continued Federal liability or not--the chairman was asking you 
several questions, Governor, about whether the bill should make 
more clear that that is not the case, that is, that there is no 
Federal liability for South Dakota or for a city in South 
Dakota to pursue a cleanup under this bill.
    Frankly, this issue is a little murky because under current 
law, basically, I believe that Superfund liability does not 
apply, and let me say why. Under current law, under section 
107(j), Superfund liability does not apply to someone whose 
only activity at the site is part of a federally permitted 
lease. A federally permitted lease is defined in another part 
of the Act as including permits issued under section 402. The 
good Samaritan bill we are talking about here would issue 
permits under section 402.
    So a reading of the statute would indicate that this is a 
federally permitted lease. Under another section of CERCLA, 
when one's only activity is part of a federally permitted 
lease, Superfund does not apply. It requires going to a couple 
sections in the law. I am not going to sit here and say that it 
is iron-clad clear, but it is pretty clear that under the 
current law, a permittee under this good Samaritan bill would 
not have Superfund liability. But that is something we could 
clear up a little bit later.
    There are going to be some witnesses later, Governor, who 
are going to say that this bill doesn't make any difference and 
won't help at all. It won't help your problem in South Dakota 
and it won't help my problem in Montana. I don't agree with 
them, but that is what they are going to say. I am just curious 
what you would say to them.
    Governor Janklow. Sir, there were people that told Columbus 
not to head West on the water because the earth was flat. There 
are people who also tell you that you can't try certain things 
because they will never work without having tried them.
    Let me make a suggestion. Let's pass a bill like this and 
then if it doesn't work we don't have to worry about it because 
it will just join the reams of other laws that have been passed 
in America that nobody listens to.
    On the other hand, this may be a law that works. It may be 
a law that brings about some remedy and makes things a little 
bit better. We don't know until we try it.
    One of the great things about a democracy is that you can 
try something and if it doesn't work you can go back to where 
you were at. We all know where we are. It is where we are going 
that is always the debate and the argument. But we have to take 
the trip. We have to get the bus moving. If we take a wrong 
turn, we can always turn around and go back. Or we can sit and 
debate all year long where we are going to take our trip and 
then never take it.
    Senator Baucus. I totally agree with you. It reminds me of 
a book I read, a biography of President Truman, and that became 
very clear in that biography. Let's try something. If it 
doesn't work, try something else.
    Governor Janklow. Senator Daschle always quotes Harry 
Truman and he says that Harry Truman said one time ``My mom 
told me a jackass can kick a barn down, but it takes a 
carpenter to build one. We just have a lot of jackasses in our 
world today.''
    [Laughter.]
    Senator Baucus. Well, I can tell you are a good carpenter, 
Governor.
    Governor Janklow. Well, I don't know that, but I want to 
try. I may not make a good building, but I want to try.
    Senator Baucus. A third point is that some suggest that--
and this gets pretty much to the basic question here--that 
maybe mining companies ought to be able to mine these sites 
while they are cleaning up. This is something that a lot of 
people considered quite thoroughly, as I know the Western 
Governors did. It is my personal view, as much as I would like 
to be able to help mining companies continue to mine, it is 
going to get awfully complicated in trying to separate the two. 
I would like your reactions to that.
    Governor Janklow. Senator, I am not personally opposed to 
that. However, that is a good issue. It is not this issue. This 
issue is a cleaner water issue and what we ought to do is 
confine ourselves to making it a cleaner water issue. I 
personally would be in favor of confining the discussion here 
to what we can do with respect to good Samaritans to help make 
water quality better and leave for another day or another forum 
the question of remining.
    I don't mind the remining issue, but it doesn't belong in 
here and I think it needlessly complicates the issue.
    Senator Baucus. You just want to get on with it?
    Governor Janklow. I just want to get on with it because as 
a practical matter I have run into this problem. I have 130 
million gallons of acidic water that we are spending a lot of 
money just to neutralize every month. I am not getting rid of 
the problem and South Dakota doesn't have the wealth to get rid 
of it. The people I can call on that do have the expertise 
cannot be good Samaritans even under an emergency declaration 
in our State because they said that they don't want to clean up 
the whole problem. They would help us if they could, but they 
can't without becoming a miner of the property. They would get 
to clean up the mine, but not the benefit of the mining. They 
are not interested in that.
    Senator Baucus. Thank you very much. I appreciate it.
    Thank you, Chairman.
    Senator Crapo. Thank you very much.
    Governor, we appreciate your attendance here.
    Governor Janklow. You have been very courteous. Thank you.
    Senator Crapo. I do have to say that we appreciate your 
kind comments. I think also Senator Baucus would agree with me 
that your good, down-home common sense is very refreshing. I 
can see why your constituents elected you.
    Governor Janklow. You are very nice. Thank you.
    Let me just say this as I close. This is not a Republican 
or Democrat issue, and you all know that. This is a real issue 
for real people. We get criticized in the States all the time 
about these water policies. We are the ones that are drinking 
the water in our States every day. We are the ones that bathe 
in it. We are the ones that cook in it. We are the ones that 
have to live in it. We have a real interest in making sure that 
it doesn't get degraded. We have a real interest in cleaning it 
up and making it better.
    We need to start the process. That is all I ask you. We 
don't have the tools now. Federal law prohibits us from being 
able to clean up some of the water. That is wrong.
    The last thing I will say--a guy told me the day I took 
office years ago, ``Janklow, every day you will deal with what 
is urgent and what is important. Don't waste all your time on 
what is urgent. You will never get to what is important. What 
you do that is important is what will make a difference in 
people's lives in the future.''
    Gentlemen, this is important. Thank you.
    Senator Baucus. Thank you very much.
    Senator Crapo. Thank you, Governor.
    We would now like to call our second panel, Mr. Chuck Fox, 
Assistant Administrator of Water for the Environmental 
Protection Agency. I understand Mr. Mike Cook is going to sit 
with you, the Director of the Office of Wastewater Management.
    Mr. Fox, welcome. It has been a couple of weeks since we 
have had you up here.
    Mr. Fox. And as you can imagine, I have been busy before 
other committees on our favorite subject.
    [Laughter.]
    Senator Crapo. We welcome you here, please proceed.

STATEMENT OF J. CHARLES FOX, ASSISTANT ADMINISTRATOR OF WATER, 
  ENVIRONMENTAL PROTECTION AGENCY; ACCOMPANIED BY MIKE COOK, 
           DIRECTOR, OFFICE OF WASTEWATER MANAGEMENT

    Mr. Fox. Thank you. And thank you for this opportunity to 
present our testimony today.
    I would like to start with a special thanks to Senator 
Baucus and to the Western Governors' Association for their 
leadership on this issue. As we heard from the previous witness 
and in your opening statement, this is a very significant 
challenge confronting water quality in this country. The 
Administration is supportive of this legislation. I will talk 
in some detail about that, respecting your 5-minute rule.
    We have made, as you know, great progress in improving 
water quality in this country, but serious water quality 
problems remain. The States indicate that over 20,000 water 
bodies are polluted and need focused attention to clean up. In 
fact, 180 million Americans live within 10 miles of a polluted 
water body.
    In the Western States, one of the most serious threats to 
water quality is the pollution contributed by thousands of 
abandoned or inactive mines. Mining has a significant economic 
benefit to the West, but many of these former mine sites have 
left an unfortunate legacy of water pollution or threat of 
water pollution.
    Exact figures are not available due to the magnitude of 
historical small-scale mining activities and the age of many of 
these abandoned mines, but estimates place the total number of 
abandoned mines at 200,000 to 500,000 for the entire country. 
An independent assessment by the Western Governors' Association 
places the total at more than 400,000 in the West alone. Most 
of these sites are classified as hard-rock mines that were 
developed to extract a wide variety of metal-bearing ores.
    Estimates of the magnitude of the environmental impacts 
occurring as a result of hard-rock mining also varies 
significantly. Not all of these mine sites pose serious threats 
to human health and the environment. The Western Governors' 
Association estimates that as many as 80 percent of the sites 
may not pose environmental or immediate public health safety 
concerns. However, many mine sites do create significant 
environmental and public health hazards, anywhere from 40,000 
to 100,000 sites based on previous figures cited.
    While my testimony today in this hearing focuses on 
inactive and abandoned mines, it is at least worth noting that 
active mines also pose significant threats to the environment 
and water quality. In fact, more than half of all mine and 
processing ore sites on the National Priority List under the 
Superfund in fact were active at some point since 1985. It 
gives you a flavor that this is in fact an ongoing and current 
problem as well.
    As was previously mentioned, EPA uses a number of statutory 
authorities, which I won't get into, to help protect the public 
and the environment from these activities. But I do want to 
quickly turn to the Clean Water Act. There are a number of 
sections in the Clean Water Act that have direct bearing on 
regulating both active and inactive mines. Unfortunately, as we 
have heard, there are limitations under the Clean Water Act 
that often hamper remediation and restoration activities at 
abandoned mine sites.
    In particular, the permitting requirements under section 
402 of the Clean Water Act require that the permittee meet all 
the requirements in effluent discharge limits set out in the 
discharge permit. These discharge limits include water quality 
standards that have been established for the body of water into 
which the effluent is discharged. In addition, these 
requirements mean anyone conducting reclamation or remediation 
at an abandoned mine site may become liable for continuing 
discharges from that site.
    The legislation being considered today directly addresses 
these problems. As I said, the Administration is happy to 
support this legislation. My written testimony includes a 
number of specific comments that we would offer to the sponsors 
and to the committee. I would simply like to mention a couple 
of points that we think are particularly important.
    No. 1, the good Samaritan, acting as the remediating party, 
cannot have a historical or existing responsibility for the 
mine site. No. 2, sites are only subject to the bill's coverage 
if there is not an identifiable owner or operator of the mine 
that can clean up the site. Third, the permitting authority 
rests exclusively with EPA, ensuring consistency in application 
of this innovative approach to the environment under the Act. I 
suspect we might talk more about that.
    Fourth, a permit may only be issued when it is demonstrated 
with reasonable certainty that improvement in water quality 
will take place to the maximum extent practicable, taking into 
consideration the resources available to the remediating party. 
And finally, we think it is very important that public 
participation in permit issuance and modification is included 
in the bill.
    In closing, Mr. Chairman, as we have heard, this 
legislation raises many very important policy questions in how 
it interfaces with other Federal laws. We stand 100 percent 
behind the goals of this legislation and stand ready to work 
with the committee to come to a quick solution on these.
    Thank you very much.
    Senator Crapo. Thank you very much, Mr. Fox.
    Let me start out with regard to the issue of CERCLA 
liability.
    As you saw from the previous panel, there is a question as 
to whether a good Samaritan acting under the statute as 
proposed would fall subject to CERCLA liability. Do you agree 
with the analysis Senator Baucus gave of the law? Do you agree 
that CERCLA liability would not be imposed on a good Samaritan 
under this bill?
    Mr. Fox. We do agree with the analysis of Senator Baucus. I 
think the point that might have been lost in the last 
discussion was that currently that liability is there. But if 
you pass this bill and it becomes law, you now have created a 
permitting structure under section 402, which would in fact 
give the protection that Senator Baucus identified in the 
existing CERCLA law.
    Senator Crapo. I appreciate the fact that you said that and 
that you said it on the record because if this bill does become 
law that may become evidence in a court case some day. But 
wouldn't it be better for us--I have talked to lawyers who 
don't agree with that analysis--wouldn't it be better for us 
just to make it crystal clear in the law that there is no 
CERCLA liability? Would you object to that?
    Mr. Fox. I would be happy to spend some time working with 
the committee on this very question. The only issue that has 
been raised to me that has some validity is what happens when 
the permit expires. Do the protections from liability still go 
to the remediating party after the permit has in fact expired. 
That is the kind of thing I think we could certainly work with 
the committee in trying to address.
    Senator Crapo. I am not sure I understood your answer.
    Are you saying that they would have immunity from CERCLA 
liability as long as the permit existed?
    Mr. Fox. I think that is a very clear and 100 percent 
agreeable interpretation. I would be surprised to find a lawyer 
who didn't agree with that. To me the only question comes as to 
what happens when the permit in fact expires. Are they still 
shielded from liability? That is something----
    Senator Crapo. It seems to me that is a pretty big 
question.
    Mr. Fox. Indeed. That would be something we would be 
willing to sit down and discuss.
    Senator Baucus. We can solve that one pretty easily.
    Senator Crapo. Would you object to solving that and making 
it crystal clear that there would be no CERCLA liability after 
the permit expired or during the permit's existence?
    Mr. Fox. I don't think that would be a significant issue. 
But again, I am not the Assistant Administrator confirmed by 
you all to manage the CERCLA law and I would like to at least 
check with him on that.
    Senator Crapo. Let me go over a couple of points that you 
identified as critical pieces of the legislation.
    Your second point was that the sites should only be subject 
to the bill's coverage if there is not an identifiable owner or 
operator of the mine that can clean up the site. Obviously, if 
there is an identifiable owner or operator who has the 
resources to clean up the site, then under current law we have 
the ability to achieve a cleanup. It is not really an abandoned 
site. But if there is an identifiable owner that doesn't have 
the resources to clean up the site--say, a bankrupt owner 
exists--should a volunteer or good Samaritan be allowed to step 
in and clean up the site?
    Mr. Fox. The short answer is that the intent of this bill 
is to focus on the true good Samaritans and what I consider the 
true orphan sites, places where all of us can come to common 
agreement that some action is better than no action, just as 
the Governor said. This is one area where the slope starts to 
get slippery and things start to get complicated. Frankly, in 
the spirit of trying to really get some action going on out 
there, my recommendation would be to focus this on good 
Samaritan actions for truly orphan sites so that we can in fact 
get some action going.
    I think the Governor's comments about having a different 
forum and different opportunities to talk about some of these 
related problems--we would be happy to do that. But at this 
point, my recommendation would be to focus just on these 
narrower questions.
    Senator Crapo. I don't think the Governor meant to say--of 
course, he is not here to clarify himself--but I don't think he 
meant to say that just basic common sense problems that we 
identify shouldn't be solved as we move forward with the 
legislation.
    My question is, Why is it a slippery slope? What becomes 
slippery about this issue? If we have a site where there is an 
existing owner who is incapable of cleaning it up, why is that 
a problem just to let a volunteer to step in and help clean it 
up?
    Mr. Fox. I think in the case you described it is probably 
not as slippery simply because you have made a determination 
that this owner or previous owner is incapable of providing the 
financial support necessary to do it. We have a longstanding 
principle, as you know, in our environmental laws, 
fundamentally called the 
polluter-pays principle, that parties that in fact create some 
of these problems should in fact be responsible for cleaning 
them up. It is that principle that I think we need to be 
careful and respect.
    Senator Crapo. But in our efforts to pursue this polluter, 
do we want to let the water stay dirty?
    Mr. Fox. Absolutely not. That is obviously the overall goal 
of this legislation, which is why we support it.
    Senator Crapo. Let me go to your third point. I skipped 
your first point, which I also have a problem with, but I am 
going to let that one go for now.
    The third point is that the permitting authority must rest 
exclusively with the EPA. I assume that is because you want to 
ensure consistency.
    Mr. Fox. The legislation, as laid out, includes a report to 
Congress and an assessment--I don't remember the exact time 
period--in a few years as to how the program is operating and 
at that point, frankly, the next Administration might have a 
different view on this. But what I can tell you right now is 
our experience with similar variances suggests that having a 
national consistency is very important.
    The model that immediately comes to mind is the variance 
procedure under the Clean Water Act for sewage treatment 
requirements, what is called a 301(h) waiver. It is a process 
whereby 
certain communities can bypass the basic secondary treatment 
requirements of the Clean Water Act. This is a national 
determination, if you will, made by the EPA. It is not made by 
the States. It helps level the playing field around the 
country.
    States--I have all the confidence in the world that they 
can ultimately implement this program, but I think for the 
beginning of this program, so that we can get some 
understanding of how this is ultimately going to roll out--What 
are some of the key questions in our regulations? What are the 
key decisions we are going to have to make? It is probably 
appropriate to start out having it be an EPA decisionmaking 
role.
    Senator Crapo. I have some more questions on this and some 
other questions, but my time is up, so I will wait for another 
round and we will have a round of questions for Senator Baucus.
    Senator Baucus. Thank you very much, Mr. Chairman.
    First, I want to tell the Administration I appreciate your 
support.
    This isn't business as usual. We are kind of plowing new 
ground here. This is innovative. We are taking some risks here 
and doing something a little different. I appreciate the 
Administration for bending a little bit and trying to do 
something a little different. This is creative, new, and 
something we have to do generally and specifically. This is 
quite helpful.
    Second, on the discussion with respect to whether there is 
continued liability, you gave your interpretation of law. I 
think that is very helpful. Regardless, I think that is 
something we can work out quite easily, Mr. Chairman, to nail 
down that a good Samaritan is not liable if he or she gets a 
permit under the structure. That should no longer be an issue.
    With respect to your good question, Mr. Chairman, about 
somebody who can't clean up--we know who it is and they can't 
clean it up--maybe we are going a little far here, but the bill 
actually takes care of that problem. Under the bill that is 
introduced, on page 4, essentially it says under subparagraph 
two that a person that is financially capable of compliance 
with the requirements of the Act is one----
    Mr. Fox. I think you have hit it exactly right, Senator.
    Senator Baucus. If they are not financially capable, then 
they qualify. If they are financially capable, they don't 
qualify.
    Senator Crapo. I thought you had to not have an 
identifiable owner or operator.
    Senator Baucus. I am addressing the question of whether the 
responsible person is financially capable or not. Under our 
writing of the bill, if the person is financially capable, then 
they do not qualify as a volunteer.
    The State delegation question I think is a very good one to 
discuss. I would like to see as a general principle States have 
more environmental authority. They are doing a very good job. I 
mentioned Vic Anderson earlier and I am very impressed with him 
and his operation with respect to the Alta Mine and the cleanup 
they are conducting out there. They are good.
    But there are concerns here. One is substantive, as you 
addressed, Mr. Fox. We are starting something new here, and we 
do have a standard, which is a new standard environmental law, 
to the maximum extent practicable, considering the available 
resources. It is a little unclear exactly what that means. One 
could make the argument that it might make sense for the sake 
of consistency to let the EPA determine what that means. We 
have EPA's backing of this approach in the first place, so 
clearly they will try to make this work.
    Politically, I don't know if there were State delegation if 
this legislation would fly. I think a lot of environmental 
groups would be very upset with pure State delegation. I might 
add, too, that the Governors themselves did not include a 
delegation in their proposal. My guess is that it is probably 
for the same reason.
    It is a good thought and a good question. But we have to 
exercise a little bit of discretion here. As Governor Janklow 
says, we need to use a little common sense and do what works as 
opposed to what doesn't work. My view is that since we are 
starting something new, let's take the first step. If we need 
to improve upon it in 2 or 3 years, then we will, whether it is 
State delegation or allowing mining companies to further mine 
in conjunction with the good Samaritan, or whatever it might 
be.
    The main point is that there is such a need. There are 
400,000 abandoned mines in this country. It is incredible. I 
mentioned that there are 6,000 in my State and they are all 
over the West. All over the country, according to the map 
there. And nothing is being done about it.
    I think this bill is a good start to make some progress. It 
is clear from the testimony we received that this bill would do 
that.
    I thank you again.
    Thank you, Mr. Chairman.
    Senator Crapo. Senator Reid, I know you just barely got 
here. Did you want to ask some questions?
    Senator Reid. I have been here the whole time.
    Senator Crapo. I appreciate that, and we do appreciate it.
    Senator Reid. I have no questions.
    Senator Crapo. I am going to continue with my line of 
questioning, Mr. Fox.
    Back to the question of State delegation, if we didn't 
authorize State delegation, wouldn't this be the first time 
under the NPDES system--and basically a precedent-setting step 
under the Clean Water Act--to not allow State delegation?
    Mr. Fox. As I mentioned previously, there are other 
examples I am aware of under the NPDES permitting program where 
when you are talking about a waiver from Federal standards 
where the EPA has to make that determination. The example I 
gave of 301(h) was precisely one of those. I am not sure about 
others, but that is certainly one.
    Senator Crapo. What is the big fear about States having 
authority?
    Mr. Fox. I think there is no fear of the States having 
authority. As a former State official, I couldn't agree more 
with Senator Baucus' characterization about their capacities 
and their ability to solve problems. It really gets to a new 
program that is going to raise a lot of questions. The set of 
criteria by which we will be making these determinations, as 
the Senator said, is a new one. Some will argue that it will be 
open to a lot of different interpretations. We have never 
before, to my knowledge, set a standard that said to the 
maximum extent practicable, to the extent resources allow.
    The 301(h) standard I mentioned before--just to give you a 
flavor--the standard in the statute says that we need to issue 
a permit that will ``maintain a balanced, indigenous, 
population at the end of the zone of initial dilution''. This 
was a criteria that is, frankly, a little more precise than 
this one, but also raised a lot of questions about how this 
would be interpreted in California versus Puerto Rico and the 
like.
    My recommendation is that this is something innovative. It 
is something that is generally going in the right direction. 
The current reporting requirements here are 9 years after the 
enactment of the bill, I think, as I read this. If you wanted 
to add language that would have us reporting back to you in a 
shorter period of time on this very point, that might be 
appropriate. It is really uncertainty that is driving me to my 
position.
    Senator Crapo. I sense in your answer a lack of trust of 
the States.
    Mr. Fox. I don't mean to imply that. What I am trying to 
suggest is that the criteria is going to be open to a lot of 
different interpretations and that some national guidance for 
an emerging program--for example, somebody argued that they 
only had $5 in their bank account, so they are only going to do 
$5 work of cleanup. They think it will be $5 better than zero 
dollars. Does this warrant a permit that will protect from 
liability?
    That is the kind of question we are going to be facing.
    Senator Crapo. I recognize that. In fact, let's get to the 
standard because maybe our differences of opinion on the 
standard are reflecting our differences of opinion on who 
should administer the standard.
    The standard would be the maximum extent practicable. Why? 
Let me give you a clarification of my question.
    Let's say that a good Samaritan with substantial resources 
comes forward--a multi-billion dollar good Samaritan--but this 
good Samaritan says that they are not willing to use their 
entire assets to clean up this mine. They are willing to put 
$100,000 into it, or maybe $500,000 into it. Why in the world 
would we want to say that since they are not willing to do the 
maximum extent that you can with your resources, we don't want 
you to help us at all? Why would we have such a standard?
    Mr. Fox. I think you raise precisely the kinds of questions 
we are going to have to deal with in the development of 
regulations on this. I am not going to say it is going to be 
easy to define this. But to me, the practical, common sense 
answer to the question you pose is that of course we don't want 
to break the bank and have all the resources go to this. Our 
goal here is to get some level of cleanup going on and 
ultimately the judgment is going to be what is practicable and 
it wouldn't be practicable to have a $1-billion asset 
corporation spend all its money on mine reclamation. It might 
be practicable that they spend $100,000 or $200,000 on it.
    Senator Crapo. What if the EPA decided that it was 
practicable for this entity to spend $1 million of their $2 
billion, and the entity said, ``We don't care what you think is 
practicable. We have had a meeting and we are willing to 
contribute $500,000 to this''? Why should we even get ourselves 
into this discussion of whether we have squeezed the last 
possible ounce out of a good Samaritan who is willing to come 
forward and contribute some resources?
    Mr. Fox. First, just a point of clarification. The way the 
bill is structured, the good Samaritan basically must be a 
governmental entity. So we are talking----
    Senator Crapo. That is another issue I have, but go ahead.
    Mr. Fox. So the resource determination is a little bit 
different than the example we have been talking back and forth 
of ABC Corporation.
    Senator Crapo. Let me change it to that example. What if 
the State Legislature of Idaho--which has budget problems like 
every other State--their Appropriations Committee says that 
they are willing to take $500,000 out of their budget this year 
and put it toward this issue. The EPA looks at their budget and 
thinks that they could probably squeeze a little more out of 
it.
    Why do we get into this discussion? Why don't we let the 
States Legislature--if it is going to be a State, or whoever it 
is that is appropriating the dollars or has the dollars in 
their fund to do it--why don't we let them decide what they 
believe is the right step they will take? If we don't, we don't 
have the ability to force them to do this, so the question is 
zero or what they are willing to do.
    Mr. Fox. I think that is precisely the intent of the 
legislation. I have to believe that my successor is going to 
interpret that as the intent and is going to take that $500,000 
from the Iowa State Legislature and say let's apply this to 
that problem, that is practicable, let's get on with the next 
one.
    Senator Crapo. Why not make it so that your successor 
doesn't have any discretion not to accept the $500,000? Why 
should a bureaucrat--whether it is a State or Federal 
bureaucrat deciding the issue--even get into that issue? Why is 
it a relevant issue?
    Mr. Fox. I think it is a relevant issue because, as Senator 
Baucus said in describing this legislation, we are trying to 
craft some environmental outcome that is somewhere between the 
pristine, the perfect, the existing water quality standard and 
do nothing. The reality is that we are trying to do what we can 
to improve water quality and get it as close to the national 
environmental standards that we have established. We want this 
to have a good environmental outcome.
    This is the challenge: defining this place somewhere above 
the standards and at the same time saying that we are going to 
do something. If we simply said that all you have to do is move 
the bar a little bit, I am not sure that is solving many 
problems throughout the country.
    Senator Crapo. It does move the bar a little bit, though.
    Mr. Fox. Again, I would respectfully suggest that we have 
built a pretty solid and successful foundation of environmental 
laws in this country. We need to be mindful that when we are 
making significant changes like this and allowing fairly 
significant waivers from the program, we need to do that with 
the respect of a pretty strong environmental outcome.
    Senator Crapo. I understand what you are saying, but there 
is a very big difference I don't think you are focusing on, and 
that is that the environmental laws we have that you have just 
described are virtually--if I recall correctly--all focused on 
an enforcement mechanism where the Government is stepping in 
and requiring a standard to be met, requiring conduct on behalf 
of the person subject to the statute.
    We are now talking about a creative approach to trying to 
encourage people to volunteer. If you try to impose the 
mandatory aspects of current environmental law on a volunteer, 
I think you have missed the point of what we are trying to do. 
We are trying to encourage volunteerism, not bring volunteers 
into a system and then mandate that they use their resources in 
ways that they never had an obligation to do to start with.
    Mr. Fox. As you know, and in the course of defining the 
rules under which the volunteer will volunteer, we are now in 
effect exempting future action consistent with other Federal 
standards. I am simply suggesting that we need to do so 
prudently and carefully.
    Senator Crapo. I still have more questions, but I will go 
to another round for Senator Baucus.
    Senator Baucus. Thank you, Mr. Chairman.
    I think we should focus here on what is really going on. 
What is really going on is we are trying to make it possible 
for people who want to clean up to do so. That is what we are 
really trying to do here. I think most people want to clean up 
to a pretty good standard. They don't want to do it just one 
milligram. They want to do what they can to the maximum extent 
practicable, given the resources. I think that is where most 
people are when they are trying to clean up. But they can't 
clean up now because of the provisions of the Clean Water Act. 
It is just too high a standard. The fishable, swimmable 
standards of the Clean Water Act result in standards that are 
much, much higher than the standard contained in this bill.
    I think it is important to focus on that we are trying to 
help States and municipalities do what they want to do. They 
have the resources and they are going to do it. They want to do 
it, as Governor Janklow said, very strongly. He just wants to 
get on with it. He just wants to be able to clean up.
    I think, Mr. Chairman, it is important to ask in what 
detail will the EPA be looking. But I think the central 
question is, Is the standard in the ballpark and is it about 
right--again, not letting perfection be the enemy of the good--
and recognizing that there is a middle ground between zero and 
the standards of the Clean Water Act?
    The environmental community would like a much higher 
standard than is contained in this bill. In fact, they want 
purity. We would like to have purity, but we can't have it. It 
doesn't exist. So we are trying to be practical and exercise a 
little common sense here.
    In addition, there was some question about whether States 
would be working in conjunction with the EPA. I might just 
refer to section 4 of the bill, ``The Administrator, with the 
concurrence of the applicable State or Indian tribe''--et 
cetera--``may issue''. So obviously the EPA is working in 
concurrence. If the State doesn't want to do it, there is no 
permit. It is just not going to happen. It is contrary to the 
way the law is written right now.
    The State delegation questions are good questions. But this 
is not the Clean Water Act here. This is something entirely 
different. I think it is good to take it a step at a time. I 
might say, too, that there is a little bit of a difference 
between State delegation here and State delegation of the Clean 
Water Act. State delegation here is delegation to the entity 
that would be applying for the permit. It is a little different 
in the Clean Water Act where it is generally a company that is 
applying for a permit because EPA has delegated to the States 
and the State sets up its own program. Obviously there are 
still ties with the EPA.
    So in the Clean Water Act, generally a company would be 
applying for a permit. In the good Samaritan legislation, it 
would be a State applying for a permit under a program that is 
delegated to it.
    I think off the top of a quilt work, a patchwork of 
different States doing lots of different things. Mr. Chairman, 
many, many times companies come to us and say that they need 
uniformity. State X is requiring this and State Y is requiring 
that. That is so expensive and there is so much red tape. On 
the other hand, we have a Federal system and we are very 
interested in State primacy. There is no bright line test here, 
just common sense. Sometimes it is one side of the line and 
sometimes it is the other side. Sometimes it is federally 
centralized and sometimes it is delegated. You just have to 
call them as you see them.
    One program doesn't necessarily dictate the result in the 
other because they are different. Sometimes significantly 
different to require different results.
    I think that discretion is the better part of valor here 
and at this point, in order to get a bill passed that does 
allow States to take the first steps, this is in the ballpark.
    Mr. Fox, I would like to ask you the same question I asked 
Governor Janklow. There are going to be other witnesses coming 
up saying that this thing doesn't work, won't help at all, and 
will not do anything. It is a waste of time, a ``losery''. I 
think that is one of the words that is in the testimony of one 
of the next witnesses.
    Do you think this is a ``losery''? What do you think?
    Mr. Fox. I do not. I think this is a very meaningful, solid 
step forward that will likely have very positive impacts. The 
example that you gave from Montana and the example that the 
Governor gave from South Dakota in my mind are both precise 
kinds of examples that would benefit from this legislation 
where under your bill there would be protections for good 
Samaritan actions by State governments. I think those are 
precisely the kinds of problems this bill will solve.
    I think it is uncertain as to how much will happen. My 
instincts tell me that there will probably be dozens and 
dozens, if not hundreds, of permits that we are going to be 
issuing under this, just knowing what I know about the program. 
But that is the kind of more detailed information we might want 
to look at in a report a couple years from now and get back to 
Congress to see how we are doing.
    Senator Baucus. Thank you.
    Senator Crapo. I will go back to some of the questions I 
was pursuing, but before I do so, let me ask a question along 
the same line you were just discussing, the question of a 
``losery''.
    Governor Janklow's testimony was that he couldn't get the 
private sector involved in this cleanup. Can the private sector 
get involved in cleanup under this bill?
    Mr. Fox. My understanding of the bill is that the lead 
sponsor has to be a government entity, but the government 
entity is allowed to have cooperating parties. There is an 
allowance in the bill for cooperating parties.
    Senator Crapo. And you don't have any objection to those 
cooperating parties being private contractors or the private 
sector?
    Mr. Fox. No.
    Senator Crapo. Do you have any objection to the good 
Samaritan itself being a private sector entity?
    Why can it only be a government?
    Mr. Fox. Again, I think this is something that I would be 
happy to look at, to review more data and perhaps get back to 
you with a more informed answer. To me, the focus of this bill 
was trying to solve a problem for governmental interests that 
want to solve these problems. Where it gets really complicated 
sometimes is on the remining issue that you raised in the 
question to the Governor.
    The way this bill is written right now, it basically 
suggests that the good Samaritan--there could be some mining 
activities that happen on the site, but the revenues generated 
from them really have to be directed toward remediation. It was 
a real attempt to create a fire wall in this bill from the 
remining issue that creates a lot of complications on the 
overall environmental standards question.
    My fear is that if we start dealing with private entities 
that we start going down this path. Again, I am happy to go 
down this path and I am happy to continue to have these 
discussions with you, but the intent of the sponsor seemed to 
be to really focus this on government entities desiring to do 
this kind of cleanup, and that seemed appropriate.
    Senator Crapo. I understand you to be saying, then, that 
you don't have any objection to private parties being included, 
it is just that you think that should be a later step?
    Senator Baucus. Maybe I can clarify, Mr. Chairman. I don't 
mean to speak out of turn here, but the point here is that the 
governmental entity can contract with a mining company to clean 
it up.
    Senator Crapo. What I am referring to, though, is if we 
don't have a situation where it is a government entity starting 
it. What is wrong with letting a private sector entity be the 
volunteer itself?
    Senator Baucus. Right now, under current law, they don't 
want to because of the liability.
    Senator Crapo. That is the point I want to get at. Why 
can't we simply eliminate the liability and allow an incentive 
to be created?
    Senator Baucus. Well, it raises lots of questions and I 
don't think we have time to go into it in this hearing. It is 
very complicated. When is a company cleaning up and when is it 
remining? The point of this bill is cleanup.
    This is a question we asked Governor Janklow and he said 
that is a separate issue that should be dealt with later. Right 
now, let's just clean up. If you want to have mining or 
remining in conjunction with the cleanup, then maybe in a year 
or two. But he just wants to get on with the cleanup and I 
think that is very reasonable.
    Senator Crapo. The Governor also indicated he was having a 
whale of a time getting the private sector interested in 
getting involved. That is the question I raised.
    Senator Baucus. That is because of the current law, which 
creates liability.
    Mr. Fox. I think most of the States I am familiar with, 
particularly in the West, have very active programs. You will 
hear from some of them today. I fully expect that they will be 
able to build some partnerships and cooperative agreements with 
the private sector and we will be able to make progress.
    Senator Crapo. Mr. Fox, I have a lot more questions, but I 
am not going to ask them all of you.
    I do have one for you, and I bet you know what it is on.
    Mr. Fox. I am happy to spend as much time as you like on 
this one, Mr. Chairman.
    Senator Crapo. I am not going to make this a hearing on 
TMDLs, but I can't resist this question.
    I note in your testimony that you state that if the good 
Samaritan legislation were passed, the EPA would need not less 
than 3 years to finalize appropriate regulations after the bill 
becomes law. Yet on TMDLs, you proposed the rules last August 
and you are going to finish them, if you stay on the course you 
have described, in about a week or two. How is it that on TMDLs 
you can do it in 9 months or so and on this bill it is going to 
take you 3 years?
    Mr. Fox. In fact, on TMDLs, we spent more than 4 years on 
it. That is the short answer. There was an enormous amount of 
work that went into the proposal beforehand. We had a Federal 
advisory committee for the better part of 2 years. We had a lot 
of dialog with the States beforehand. So we really did use more 
than the time allotted in this bill for TMDLs.
    Senator Crapo. Let's get back to the 3-year timeframe. Why 
does it take 3 years? To most people across the country, that 
is mind-boggling, why it takes an agency 3 years to promulgate 
rules and regulations on an issue that is of such importance as 
this.
    Mr. Fox. I would be happy to work with the committee on 
trying to shorten that timeframe and I can spend more time with 
my staff and then see what we can come up with here. It really 
fundamentally comes down to budget issues. I can tell you 
personally I have felt that this issue of mining has been 
unaddressed by EPA for some time. I have had one heck of a time 
trying to find the resources in a declining budget to try and 
invest in these kinds of problem.
    Again, I am happy to have that discussion. I think at a 
minimum we are probably looking--between notice and comment and 
the way we want to do these things--at closer to 2 years. If we 
can bring that down simply because we would want to spend some 
time figuring out what the regulations should be, put them out 
in draft form, take public comment on that, and then ultimately 
finalize them. It could be done in maybe a little under 2 
years, but that is pretty standard for the regulatory process.
    Senator Crapo. I may submit the other questions I have in 
writing and would ask you to respond to those in writing.
    Mr. Fox. Certainly.
    Senator Crapo. I have no further questions.
    Senator Baucus.
    Senator Baucus. Just to clarify an earlier issue.
    The original Western Governors' Association draft, and the 
early draft of my bill, along with Senator Campbell, did 
include mining companies as qualifying private parties. It was 
in the bill. It was in my bill and it was in the Governor's 
bill. But as the Western Governors and I and others began to 
discuss this issue with the mining industry and others, it 
became very murky and very unclear. In fact, it would require 
safeguards to assure that a company that is already responsible 
for a site and should clean up the site under current law 
doesn't establish an affiliated company in order to use this 
bill as a loophole. Everyone agrees that is a concern.
    So we built safeguards, fire walls, into our bill and the 
Western Governors' draft also built safeguards and fire walls 
into their bill. Essentially, the language was taken from the 
Surface Mine Reclamation Act, which it turns out has been quite 
controversial. It got to the point where the mining industry 
itself suggested to us that it might be simpler to drop the 
provision in the bill and limit the bill to States, tribes, and 
local governments.
    So we took it out at the request of the mining industry 
because it got awfully complicated. Now it appears that the 
industry has changed its mind. The simple question is, Can one 
establish safeguards and fire walls in a way that is not 
unnecessarily complicated but doesn't prevent the goals that we 
are trying to pursue here while at the same time allow a 
private company to proceed to mine?
    It is very difficult. I am going to just mention an example 
of an earlier draft of the Western Governors' bill. There is a 
clause that indicates whether or not a person is a remediating 
party. Anybody who met that definition would not be a 
remediating party.
    It just gets awfully complicated to build that fire wall, a 
fire wall everybody agrees should be there. As I said, that was 
in an earlier draft of my bill and an earlier draft of the 
Western Governors' bill. But both of us decided that it just 
isn't worth it. It is too complicated. We need to just get on 
with the cleanup with the good Samaritan.
    As Governor Janklow said, maybe at a later time someone 
might think of a good way to deal with this issue. But so far, 
the majority have not found a clean enough way to deal with 
this issue that would allow both objectives.
    Senator Reid. Mr. Chairman.
    Senator Crapo. Yes, Senator.
    Senator Reid. I think that this is a perfect example of not 
letting the perfect stand in the way of the good. I think this 
is good legislation. It is imperfect, but it is good 
legislation and it is badly needed. We need to be able to have 
entities--there are court cases on bad things that have 
happened when people have tried to step forward and do the 
right thing. This legislation would correct that and I think 
that we can in the future look to bringing in mining companies 
and others. I think presently we need to move forward as 
quickly as we can.
    I would hope that we could have this subcommittee move on 
this, the full committee, and really try to do something. The 
only way we can do with legislation like this is to do it 
unanimously. Send something to the House right away.
    We talk about drawing regulations. We know it will take a 
long time, and each month that goes by is more degradation of 
our environment. While this legislation is not going to correct 
all of it, it will lead to a lot of corrections, even in the 
State of Nevada. In the State of Nevada, we don't have a lot of 
water. So even though we have thousands and thousands of 
abandoned mines, we are not troubled like you in Idaho and you 
in Montana because you have a lot more water than we have. With 
the growth taking place in Reno and Las Vegas, we are now 
coming into contact with these abandoned mines. We need to be 
able to have government do something about it.
    I would hope that we would follow the leadership of our 
ranking member. I have joined with him in sponsoring this 
legislation. We should move this as quickly and as 
expeditiously as we can.
    Senator Crapo. Senator Reid and Senator Baucus, I 
appreciate your comments. I don't disagree that we should not 
let the perfect get in the way of the good.
    In that context, though, it seems to me that--going back to 
Governor Janklow's testimony--we should not let the argument 
that we shouldn't let the perfect get in the way of the good 
stop us from making good fixes to a bill as we move the process 
forward. To simply use that argument to say that there is no 
room for improvement of the legislation--and I know that is not 
what you are saying because Senator Baucus has already said 
that he is willing to work on making improvements to the bill.
    I am suggesting that we identify areas where there is no 
reason that we can't make improvements right now as we move 
something good better. There is no reason not to make something 
good much better if we can identify those ways and pass 
forward.
    The example that Governor Janklow gave was being a builder 
or a carpenter. If someone were constructing a home and a very 
good idea was brought forward to improve the structure of the 
home, it would seem to me that they would incorporate that into 
their plans. That is all that I am asking that we consider 
here.
    Any other questions for Mr. Fox?
    [No response.]
    Senator Crapo. Thank you very much, Mr. Fox.
    Mr. Fox. I would like to offer one apology on the TMDL 
front. I made a decision on Monday to publish the TMDL rule in 
our docket so that it was available for public comment. It is 
my understanding that the appropriate notifications to your 
committee and staff did not take place. I apologize for that.
    Senator Crapo. I hadn't even been made aware of that, but 
we accept that apology. I am sure it was just an oversight.
    Thank you.
    Senator Crapo. Our third panel will be Ms. Katherine Kelly, 
the administrator of Waste Management and Remediation Program 
of the Idaho Division of Environmental Quality.
    Ms. Kelly, we appreciate you being with us today. You have 
heard already the instructions with regard to watching the 
lights, but again, we have your written testimony and have 
reviewed it and appreciate your being here with us. You may 
proceed.

 STATEMENT OF KATHERINE KELLY, ADMINISTRATOR, WASTE MANAGEMENT 
   AND REMEDIATION PROGRAM, IDAHO DIVISION OF ENVIRONMENTAL 
                       QUALITY, BOISE, ID

    Ms. Kelly. Thank you. I appreciate being invited here.
    My name is Kate Kelly. I am the administrator of the Waste 
Management and Remediation Program at the Idaho Division of 
Environmental Quality. Included in the scope of my 
responsibilities is the remediation of contaminated sites in 
Idaho. A big chunk of that includes old mine sites. Those would 
be the ones that were inactive.
    We have worked very well with other State agencies and 
Federal agencies to work toward addressing some of the worst 
inactive mine problems in Idaho. Two examples of that would be 
the Triumph Mine and the Blackbird Mine, which have had 
successful cleanups, if not completed at least good steps made 
toward those cleanups. We are real pleased about that.
    We are also working toward putting in place enough plans 
for several other major mining areas that would include the 
Coeur d'Alene Basin and the phosphate mining district down in 
southeastern Idaho. But the mining issues are very significant 
to DEQ and to the State of Idaho in general. We are encouraged 
by any step that can be taken on the Federal level to 
facilitate these mine cleanups and to attempt to maximize 
incentives and minimize disincentives for these kind of 
cleanups. In that sense, I think that the State of Idaho is 
supportive of the principle behind the good Samaritan 
proposals, and this bill in particular.
    On the other hand, we see some pretty serious flaws in the 
bill, as currently written. Understanding that perfectionism is 
something we are not going to achieve with this legislation or 
with any legislation necessarily, there are perhaps a couple of 
areas that are deserving of attention before this would move 
forward. Certainly from the States' perspective these need to 
be addressed. These have been touched on, but I will just cover 
them very quickly.
    This legislation as written creates a precedent of giving 
EPA the authority to issue these permits. Admittedly, it does 
say in the statute that there will be State concurrence in this 
process, but we have found that this bill fails to acknowledge 
the existing State authorities that are in place in the Clean 
Water Act in terms of setting water quality standards and 
issuing NPDES permits. Somehow this legislation needs to cross-
reference that and acknowledge that the States retain a major 
say in what water quality requirements are going to be put in 
place in any given permit.
    To give EPA the authority to issue these permits in that 
area without qualification just throws a wrench into a system 
that already exists that has the State included in the process, 
if not out in the front of the process. I don't think that that 
is providing an inconsistency that isn't already inherent in 
the system by giving States as much authority as they have 
right now. But that authority needs to be recognized in the 
bill.
    The other major issue, which has also been touched on, is 
the failure to reference CERCLA liabilities and failure to 
coordinate it all with that process that exists there and the 
liabilities that are created under CERCLA. In terms of making a 
useful bill, it really is necessary to directly cross-reference 
those and try to mimic, hopefully, some of the liabilities and 
processes that are already existing in CERCLA.
    As someone who works daily trying to achieve mine cleanups 
and get in place systems that address mining issues, the 
process and procedure that we need to go through in working 
with other agencies and within our own agency to get in place a 
cleanup--not to mention when you throw in responsible parties 
and are negotiating with mining companies and so on--the 
process needs to be streamlined as much as possible. So the 
extent to which we can make sure that we are cross-referencing 
CERCLA and existing authorities and that kind of thing and 
hopefully not creating too many new standards would make this 
bill something useful to us.
    There are other issues with it that may go more toward a 
fine-tuning, such as funding and the fact that it doesn't 
really address the issue of Federal lands, which is a major 
issue in Idaho. But given its narrow scope, it is acknowledged 
that it cannot be all things to all people.
    I would stress that we would hope that some of the major 
flaws could be fixed before it moves forward.
    Senator Crapo. Thank you very much, Ms. Kelly.
    The first question I have is with regard to the question of 
delegation to the States. Right now, under the Clean Water Act, 
isn't the standard that the States have delegation generally in 
that they operate the system?
    Ms. Kelly. Depending on the State, yes. There is definitely 
an ability for the State to have NPDES authorization. The State 
also certifies under section 401 to ensure that State water 
quality standards are met when any permit is issued. The State 
plays a very big part of that process. It is more than just a 
concurrence role. It is important.
    Senator Crapo. Does the State in that process get involved 
in issuing permits to itself or to lands operated by the State 
or clean water permits relating to State operations?
    Ms. Kelly. Yes.
    Senator Crapo. Has anybody at any time ever raised the 
question that that was inappropriate for the State to be 
permitting itself in this situation?
    Ms. Kelly. The State, as does a Federal agency, gets into 
situations where it is both the regulated party and the 
regulator. There are systems in place within the bureaucracy 
that allow for that.
    Senator Crapo. It is commonplace today under the Clean 
Water Act, isn't it?
    Ms. Kelly. Yes.
    Senator Crapo. The reason I ask is that some concern has 
been raised here in the hearing today that it would be 
inappropriate for the States to be allowed to issue permits on 
issues that they were involved in. To me, that seems to be a 
very new direction, contrary to the precedent that we have 
under the Clean Water Act. That is why I raised that issue with 
you.
    You also raised the question of whether the statute applies 
to Federal lands. I know you were running out of time, so you 
didn't get into that very much, but could you elaborate on 
that?
    Ms. Kelly. The statute is directed at governmental entities 
doing cleanups and seems to be particularly focusing on State 
cleanups, which is something we would obviously encourage and 
that we are interested in.
    One of the issues we face in Idaho--and I know other 
Western States face it as well--is that many, many inactive 
mine sites are on Federal land. Ironically, you run into the 
situation where the EPA as the regulator is again regulating a 
sister Federal agency as a Federal land management agency.
    But because a lot of these--either the mine sites or 
releases coming off the mine sites--are on Federal land, it 
becomes a very big complex issue of negotiating with Federal 
agencies in trying to get the Federal agency--both as the 
responsible party and as the regulator in the case of EPA--to 
agree to how to clean up things and what the process is going 
to be and what standards are going to apply.
    The legislation, as we have read it, eliminates the 
possibility of applying this incentive to Federal cleanups on 
Federal lands as well as State cleanups on State lands.
    Senator Crapo. Isn't part of the reason because the Federal 
Government cannot qualify as a good Samaritan on land that it 
owns?
    Ms. Kelly. That is correct because under CERCLA they would 
be a responsible party.
    Senator Crapo. So in Idaho, at least, two-thirds of the 
land would be subject to--this statute would not be a source of 
assistance.
    Ms. Kelly. Yes.
    Senator Crapo. And to follow the line of argument that was 
brought up earlier, if we don't want the same agency issuing 
the permits under this statute as is the agency which is the 
good Samaritan, if somehow a Federal agency managing land in 
Idaho were to be able to qualify somehow as a good Samaritan, 
then the EPA would be the one issuing the permit to it and you 
would have the Federal Government supervising the Federal 
Government. Is that correct?
    Ms. Kelly. That is correct.
    Senator Crapo. I have no further questions.
    Senator Baucus.
    Senator Baucus. Mr. Chairman, I think this line of thought 
is an interesting one. In fact, I think it is something we 
should explore. I think it is a good point. Again, being 
realistic, if we want to get this passed, the farther we go 
down that road the more opposition we are going to have from 
other groups around the country.
    Ms. Kelly, I understand your other points. I think we 
cleared up the liability reference--we will, anyway, when we 
pick up this bill later. Your earlier point is basically one of 
complexity and red tape and all those kinds of things that are 
involved in the Clean Water Act and potentially under this 
statute as well. But as I hear you and listen to the music as 
well as the words, I don't hear a significant problem. Maybe to 
state it differently, if these issues can be dealt with 
reasonably, do you think this could help clean up some 
abandoned mines in Idaho?
    Ms. Kelly. Potentially. If we could get these 
clarifications. But the caution with that response is that if 
some of these clarifications aren't made, the bill and the 
ensuing regulations and the ensuing EPA permits that could 
potentially be issued and have to go into a concurrence process 
could potentially detract a large amount of agency--both 
Federal and State--time on more process rather than cleanup. 
That is a big----
    Senator Baucus. Right. Recognizing this is all voluntary--
that is, you don't have to comply if you don't want to--it is 
up to the State to decide whether or not it wants to 
participate.
    Ms. Kelly. But I am just talking about implementing the 
bill, just putting in place regulations and if someone applies 
for one of these permits and the State needs to get involved 
with EPA in doing that, there is the potential for----
    Senator Baucus. But it is the State that applies for the 
permit under the bill.
    Ms. Kelly. Or a municipality.
    Senator Baucus. Right, but it is their choice if they want 
to get into this or not.
    Ms. Kelly. Right.
    Senator Baucus. You are saying that with some suggestions 
maybe they would more likely get into it?
    Ms. Kelly. Yes.
    Senator Baucus. And that would help in Idaho?
    Ms. Kelly. Potentially.
    Senator Baucus. Well, why wouldn't it?
    Ms. Kelly. Well, whether or not we decide to go down this 
route, I guess.
    Senator Baucus. But if Idaho were to decide to go down this 
route, it would help clean up some abandoned sites?
    Ms. Kelly. It could potentially.
    Senator Baucus. And that would be good for Idaho?
    Ms. Kelly. Absolutely.
    Senator Baucus. Thank you.
    Senator Crapo. We thank you very much for your 
participation. Please relay my personal thanks, as the Senator 
from Idaho, to the Idaho Division of Environmental Quality for 
their concern on this bill and the issues they have raised. I 
think they are very helpful. Thank you.
    Ms. Kelly. Thank you.
    Senator Crapo. We will now move to our fourth panel. And we 
do have the name tags up there. First will be Mr. William 
Goodhard, the Director of Reclamation and Environmental Affairs 
of Echo Bay Mines. We welcome you here.
    Second is Mr. Jack Lyman, executive director of the Idaho 
Mining Association; Ms. Sara Kendall, from the Western 
Organization of Resources Councils; and Mr. David Gerard of the 
Political Economy Research Center.
    To each of the witnesses, we will go in the order I have 
just identified and will also remind you of the instructions. 
Try to keep your eye on the lights up here.
    Thank you very much.

  STATEMENT OF WILLIAM GOODHARD, DIRECTOR OF RECLAMATION AND 
ENVIRONMENTAL AFFAIRS, ECHO BAY MINES, ENGLEWOOD, CO, ON BEHALF 
               OF THE NATIONAL MINING ASSOCIATION

    Mr. Goodhard. Chairman Crapo, Senator Baucus, my name is 
Bill Goodhard and I appear here today on behalf of Echo Bay 
Mines and the National Mining Association. My comments are 
based on my 24 years of experience in the minerals industry. 
For the last 12 years my responsibilities have included mine 
reclamation and mine closure. The work has included negotiating 
and working with local, State, and Federal agencies as well as 
with watershed and stakeholder groups.
    I have been personally involved in discussions along with 
the Western Governors Association, which led to the 
introduction of this bill. I appreciate the opportunity to 
share my thoughts on the Abandoned and Inactive Mine Waste 
Remediation Act, S. 1787.
    First, I want to thank Senator Crapo for today's hearing 
and providing an opportunity to hear from the mining industry 
on an issue that the industry considers very important. I want 
to thank Senator Baucus and his colleagues and cosponsors--
Senators Daschle, Campbell, and Reid--for advancing the debate 
on good Samaritan issues with the introduction of the bill.
    Although the introduction of the bill presents an 
opportunity to open dialog, I must emphasize that the bill is a 
good starting point and with a few key changes you can 
accomplish the goal of facilitating AML cleanup and improving 
water quality at more sites. It is my belief that the bill will 
need to provide more meaningful liability relief to both 
private and public sectors who might otherwise be in a position 
to improve the environment in an inactive or abandoned mine to 
accomplish the cleanups. Therefore, I do not believe the bill 
in its current form will do much, if anything, to encourage 
cleanup.
    I say this from the ground level working up, not the policy 
level working down.
    My written comments provide a comprehensive list of areas I 
believe need to be addressed in order to provide a more 
meaningful piece of legislation. In the remainder of my time 
today I will focus on the following areas: provide protection 
to contractors and agents of remediating parties so that they 
will be able to do the work on the sites without incurring 
liability; allow the Federal, State, Indian tribes, and 
municipalities protection for cleanup at the sites for which 
they are not responsible; accept the concept of net 
environmental gain in lieu of maximum extent practicable and 
use existing site conditions to define baseline against which 
net environmental gain will be measure; and provide liability 
protection from Clean Water Act citizen lawsuits at sites where 
cleanup activities resulted in incremental water quality 
improvement where the activities may not meet the water quality 
standards.
    I believe these simple but critical changes can be made 
while preserving the intent of the Clean Water Act. The good 
Samaritan approach is a good tool that fosters voluntary 
cleanups of abandoned and inactive mines resulting in positive 
environmental gains and improved water quality. But the overall 
goal of any good Samaritan legislation should be to address as 
many of the sites as possible and provide equal opportunity for 
all parties who wish to participate.
    The assertion that significant progress can be made toward 
solving the AML problem if the private sector were granted good 
Samaritan liability relief is not conjectural. The private 
sector has already helped to clean up numerous abandoned and 
inactive mines throughout the West. Some of these private 
sector efforts are documented in a study published in 1998 by 
the National Mining Association entitled ``Reclaiming Inactive 
and Abandoned Mine Lands: What Really is Happening?''
    I would like to request that this study be placed in the 
hearing record.
    Senator Crapo. Without objection, that study will appear in 
the record.
    Mr. Goodhard. The NMA study presents compelling evidence 
that given the right opportunity the private sector can play a 
significant role in improving the environment at abandoned and 
inactive mines. The NMA also documents that the State and 
Federal agencies have claimed AML cleanups.
    The definition of remediating parties must be expanded. The 
first step in developing a good Samaritan liability relief 
proposal must be founded on the clear understanding of the 
universe of parties who may potentially undertake an AML 
cleanup effort. The private sector, State regulatory agencies, 
and Federal land management agencies have all performed AML 
cleanup projects in the past.
    It seems logical that under the proper circumstances, these 
three stakeholder groups are likely to be the remediating 
parties of the future. For example, State and Federal 
Governments will contract with third parties to perform the 
actual engineering and site construction work. Therefore, it is 
important that liability relief extend to these entities in 
addition to those already included in the bill, if we are 
actually to achieve cleanup of sites.
    The bill can be expanded to clarify that liability 
protections that apply either to the State or Federal agency 
also extend to the private sector contractors charged with 
executing the on-the-ground work. These State and Federal 
agencies will be able to keep cleanup costs down and cleanup 
results optimized.
    The focus to identify PRPs is inconsistent with the good 
Samaritan concept. Most historic mining districts are comprised 
of a complex mixture of private and public land.
    I appreciate the opportunity to present to this committee 
my views and the views of the National Mining Association. I 
believe the bill serves to further the discussion regarding the 
good Samaritan concept. However, as currently written, I 
believe the bill will fall short of achieving its intended 
goal: that of increasing voluntary cooperative efforts toward 
cleaning up AMLs.
    I wish to encourage this committee to work together to 
revise the bill accordingly to provide a workable and 
meaningful bill. It is my personal opinion that with a few 
significant changes this could be a good bill for Federal and 
State governments, Indian tribes, and municipalities. And with 
more changes--such as less limitations on liability 
protections--the class of remediating parties could be 
broadened, which would allow for a much greater number of 
voluntary water quality improvement projects.
    Senator Crapo. Thank you very much, Mr. Goodhard. This 
clock seems to work faster than in regular life.
    Mr. Lyman, we appreciate you being here. Since you are from 
Idaho, I will give you a special welcome. I appreciate you 
coming.

   STATEMENT OF JACK LYMAN, EXECUTIVE DIRECTOR, IDAHO MINING 
                     ASSOCIATION, BOISE, ID

    Mr. Lyman. Thank you, Mr. Chairman.
    As a point of personal privilege, I would appreciate it if 
the record would reflect that I appear here today on the eve of 
my upcoming wedding.
    [Laughter.]
    Mr. Lyman. When I am done with this committee, I will be 
returning to Idaho and traveling to Sun Valley, with the woman 
I love, to be married on Saturday.
    Senator Crapo. Congratulations.
    Mr. Lyman. While this is a very important event in my life 
today----
    [Laughter.]
    Mr. Lyman [continuing]. It isn't the most important in my 
life this week.
    Senator Crapo. And you would rather that we keep the 
questions brief so you can catch a plane, right?
    Mr. Lyman. Well, I am going to spend the afternoon here.
    The Idaho Mining Association supports the remediation of 
abandoned mines through a good Samaritan program. S. 1787, 
however, is seriously flawed and will not achieve the desired 
objective of remediating such areas. Idaho has a long history 
of mining, and as a result the State has a large number of 
abandoned mines. Our industry is aware of the challenges 
presented by these abandoned mines and has worked closely with 
the State of Idaho to address these challenges.
    Good Samaritan legislation at the Federal level could be a 
powerful and effective tool for addressing abandoned mines. 
Legislation should be crafted that provides significant 
incentives for parties to be engaged in remediation and that 
removes existing obstacles. Unfortunately, S. 1787 doesn't 
either.
    We have numerous concerns with this bill. Today I will only 
be able to highlight three.
    First, the program is far too limited with respect to the 
areas that qualify and the entities that may engage in 
remediation. Second, the bill establishes a standard for water 
quality that is so stringent as to be in and of itself a 
disincentive to cleanup. Third, the bill contains other 
disincentives, particularly the potential exposure to liability 
under CERCLA.
    The bill has an overly restrictive definition of abandoned 
or inactive mine land. It excludes areas that are on CERCLA's 
national priority list, areas that are proposed for the NPL, 
and areas that are the subject of planned or ongoing response 
or natural resource damage action. For example, the Coeur 
d'Alene Basin in Idaho, where there is a heavy concentration of 
abandoned mines, would be excluded from eligibility. This is an 
area that would benefit from a good Good Samaritan program.
    The bill also unduly restricts the parties that are 
eligible to participate. In addition, the bill provides that a 
remediating party cannot apply for a permit if the abandoned 
mine is owned by that party. The legislation needs to be less 
restrictive and the definition of remediating parties should 
include private entities as well as governments, governmental 
agents, and contractors.
    Second, a remediation plan must demonstrate under the 
proposed bill with reasonable certainty that it will result in 
an improvement in water quality to the maximum extent 
practicable, taking into consideration the resources available. 
This is an overly stringent standard. We believe the standard 
should instead be an improvement in net surface water quality.
    Third, the bill contains other disincentives to 
participation. It allows the party to remediate abandoned mines 
without incurring liability under the Clean Water Act; the bill 
fails to provide similar protection under CERCLA. I know there 
was a discussion earlier today. We believe that a more explicit 
release from liability under CERCLA would clarify that problem 
instead of having everybody lawyer-up as they try to figure out 
whether a section 402 permit provides that release from 
liability. But as currently written, we are afraid that a 
number of remediating parties will be fearful of the draconian 
liability system and the fact that liability could attach to 
any person who owned, operated, or otherwise controlled 
activities at the sites.
    Also, while CERCLA sites are not eligible for remediation, 
there is no guarantee that today's non-CERCLA site won't be a 
CERCLA site tomorrow. We see examples of that all the time in 
Idaho. The ultimate disincentive to remediation under the bill 
is that every remediating party could face the prospect of 
being subject to CERCLA.
    In closing, let me reiterate that we support the 
remediation of abandoned mines through a good Samaritan 
program. We believe that such legislation should apply to a 
maximum number of areas, should have a broad definition of 
remediating parties. It should provide clear and reasonable 
remediation standards and it should provide incentives to 
participation. S. 1787 fails on all three of these counts.
    Thank you for the opportunity to testify today, Mr. 
Chairman. We look forward to working with you and Senator 
Baucus to craft legislation that will create meaningful and 
effective good Samaritan programs.
    Senator Crapo. Thank you very much, Mr. Lyman.
    Ms. Kendall.
    Senator Baucus. Mr. Chairman, I apologize to you and to the 
witnesses, I have to leave.
    Senator Crapo. I will ask your questions for you.
    [Laughter.]
    Senator Baucus. Here are the questions I want you to ask. I 
want you to place in the record a letter from the Colorado 
Mining Association in favor of the bill, a letter from the 
Governor of Montana--a good man--in favor of the bill, a letter 
from the Western States Water Council in favor of the bill, the 
Association of Water Administrators in favor of the bill, the 
Association of Metropolitan Sewage Agencies in favor, and the 
Western Regional Council in favor of the bill. If you could put 
those in the record, I would sure appreciate it.
    Senator Crapo. Without objection, the referenced letters 
will appear in the record.
    Senator Baucus. I might also say, Mr. Chairman, that the 
whole goal here is to reach consensus. I appreciate, Mr. Lyman, 
some of the concerns you have, as well as the concerns of 
others. I believe we have already addressed the Federal 
liability issue. The chairman and I both said we can write an 
amendment to deal with that one.
    The other points you made, again, get down to the basic 
question that Senator Reid said, ``Either we are going to reach 
consensus on this or we are not.'' There are a lot of abandoned 
mines out there waiting to be cleaned up. This water is still 
flowing at this moment. I don't know at how many hundred 
thousand sites in this country this is happening.
    I just urge us to find that consensus, to work together. 
Just the tone of witnesses in this hearing is that people want 
to find a solution to this thing and want us to begin to 
cleanup. I very much hope that we achieve that consensus so we 
can get a bill passed. If there is no consensus, it is a 
gridlock. It isn't going to happen.
    Mr. Lyman. Senator Baucus, I hope you will include the 
Idaho Mining Association among those witnesses who are looking 
to reach consensus so that we can effectively get a program.
    Senator Baucus. I do. That is why I was looking at you. I 
urge you to be a part of that and I know you will.
    Thank you again, Mr. Chairman. I deeply regret I have to 
leave.
    I want to also apologize for Mr. Gerard, who will be 
speaking later, that I will not be able to hear his testimony. 
But thanks, David, for coming.
    Senator Crapo. I have read it and it is very good. You will 
have that opportunity with the written testimony.
    Senator Baucus. Thank you.
    Senator Crapo. We are sorry that you are not able to be 
here for the remainder of the hearing, but we will leave the 
record open so you will be able to submit written questions as 
well.
    Ms. Kendall.

  STATEMENT OF SARA KENDALL, WESTERN ORGANIZATION OF RESOURCE 
                    COUNCILS, WASHINGTON, DC

    Ms. Kendall. Thank you.
    Good morning. My name is Sara Kendall and I am the 
Washington, DC representative for the Western Organization of 
Resource Councils, WORC.
    WORC is an association of grassroots, community-based 
organizations in six Western States, including Idaho and 
Montana. We work primarily on environmental and family farm 
agriculture issues and many of our members live and work in 
communities impacted by mining and abandoned mine lands. We 
would have preferred to have one of them here today, except for 
the short notice of the hearing, because they probably know 
more about these issues than I do.
    Senator Crapo. I am sure you will represent them very well.
    Ms. Kendall. Thank you.
    I would like to start by commending Senator Baucus, Senator 
Crapo, and the subcommittee for your interest in addressing the 
persistent problem of pollution from abandoned mines, which are 
one of the major sources of water pollution in Western States. 
WORC believes that the primary obstacles that must be addressed 
if abandoned mine sites are to be cleaned up are the lack of 
sufficient funds for remediation and the minimal efforts 
currently being made to track down responsible parties.
    But that said, we also acknowledge that it is important for 
States to have the authority to stretch the limited cleanup 
funds they do have as far as possible. In addition, we 
recognize that at some abandoned mine sites it would be 
difficult to restore streams to the applicable water quality 
standards due to technology constraints and other constraints.
    For these reasons, we support the concept at the core of 
Senator Baucus' legislation, which is reducing water quality 
standards and liability for third parties who want to clean up 
abandoned sites.
    I would like to express WORC's appreciation for the changes 
that Senator Baucus and the Western Governors' Association made 
from earlier drafts of the legislation to address concerns 
raised by our organization and others. Let me just list a few 
of them: eliminating loopholes that would have potentially 
allowed a responsible party to qualify as a good Samaritan, 
requiring that revenue generated through the sale of minerals 
be used for additional remediation, the 10-year sunset 
provision, the more detailed requirements for an analysis of 
baseline conditions, and limiting the bill to non-coal sites.
    We view all these changes as positive developments that 
will enhance abandoned mine remediation while protecting the 
interests of communities and taxpayers. We continue to have 
concerns, however, with a couple of the provisions in S. 1787. 
First of all and primarily, we remain concerned that the best 
efforts of good Samaritans will not always succeed in improving 
water quality and in some cases may actually result in 
increased pollution.
    S. 1787 would not hold good Samaritans responsible for 
leaving sites no worse off than they found them as long as they 
stick to their remediation plan. We believe that if a good 
Samaritan increases the pollution from a mine site they should 
be held liable for returning the site to the condition in which 
they found it.
    Second, while we recognize that it would be difficult to 
restore streams at some abandoned sites to applicable water 
quality standards, and even though we support the good 
Samaritan approach because it does allow States to maximize 
their limited resources, there is a lot of concern among our 
members that reducing water quality standards means that we are 
writing these standards off with no realistic hope that they 
will ever actually be met at these sites, particularly, I might 
add, when proposals that would generate significant funding to 
cleanup up abandoned hard rock sites are not going anywhere in 
the Congress right now.
    This concern is addressed to some extent by S. 1787's 
requirement that EPA determine that the remediation plan will 
result in improvement to water quality standards to the maximum 
extent practicable.
    I would like to read the rest of this section from the 
bill. It does say that this must take into consideration the 
resources available to the remediating party, but the end of 
the sentence, which no one has stated this morning, is that it 
says the resources available to the remediating party for the 
proposed remediation activity. We don't see this as an 
opportunity for the permitting agency to insist that more funds 
be spent on the cleanup. But we do see it as an opportunity 
with existing funds to look for ways to achieve a higher water 
quality standard.
    But we do think this concern could be better addressed 
through the creation of an interactive process that involves 
input from people in the impacted communities in order to 
establish a cleanup goal. There are some mechanisms in place 
under the Clean Water Act. We think perhaps a modified version 
of the use attainability assessment might be one way to address 
this concern.
    In closing, we ask that you consider in addition to this 
good Samaritan legislation a more comprehensive approach to the 
problems associated with abandoned hard rock mines in the West. 
Many States still need to inventory their abandoned mine sites 
and set priorities for cleanup. Strategies need to be developed 
to remediate the high priority sites. Funds are needed to 
pursue responsible parties and, when necessary, to remediate 
pollution problems.
    As you and Senator Baucus said earlier, there are hundreds 
of thousands of abandoned mine sites in the United States that 
will cost billions of dollars to clean up. Without an adequate 
funding source, no waiver of liability will even begin to 
address this problem. Although S. 1787 has the potential to 
facilitate the cleanup of a number of these sites, this 
potential is very limited because the good Samaritan approach 
is really just a stop gap measure.
    We hope that the subcommittee will address the concerns we 
have raised and move forward with S. 1787, but we urge you to 
make it part of a more comprehensive approach to the abandoned 
mine problem.
    Thank you for the opportunity to testify.
    Senator Crapo. Thank you very much.
    Mr. Gerard.

   STATEMENT OF DAVID GERARD, RESEARCH ASSOCIATE, POLITICAL 
              ECONOMY RESEARCH CENTER, BOZEMAN, MT

    Mr. Gerard. Thank you.
    My name is David Gerard and I am a research associate with 
the Political Economy Research Center in Bozeman, MT. I am also 
an adjunct professor in the Department of Agricultural 
Economics and Economics at Montana State University.
    I would like to commend Senator Baucus and his staff for 
introducing the bill. The Clean Water Act liability has been an 
impediment to abandoned mine cleanups for as long as I have 
studied the mining industry.
    With respect to the bill, I have two primary observations. 
First, I am fairly optimistic about the help that this bill 
will give to State abandoned mine lands programs. These 
programs are very active in cleanup. In fact, oftentimes they 
are the principal agents cleaning up abandoned mine sites. The 
bill has the potential to harness tremendous environmental 
gains at a very low cost.
    Just on the types of sites Senator Baucus described, it is 
clear that the State agencies would like more latitude on what 
they can do with respect to the discharge. They don't want to 
touch it now--they can't.
    However, the second point is that this bill is not likely 
to bring on any new non-governmental organizations as good 
Samaritans. When you think of a good Samaritan, you don't think 
of someone whose job it is, you think of someone you would 
bring in to do it as a third party.
    Firms and non-profits are not likely to become sources 
primarily because there is a lot of uncertainty. I think CERCLA 
liability has been plowed over and it is worth saying that 
States simply aren't concerned about CERCLA liability. They are 
immune, so it is not a concern to them and doesn't affect them.
    Second, the owner-operator search I think is a source of 
both cost and uncertainty. For instance, Superfund searches 
have been very problematic. The Forest Service's Abandoned Mine 
Lands Program has seen that the owner-operator search has 
really been a confounding element in cleanup. As a result, it 
is my contention that the search process is counter to the 
spirit of the good Samaritan idea and it is just a pure waste 
of resources to boot.
    The third thing that hasn't been mentioned is the citizen 
suit provision. I think that is a source of uncertainty. I 
doubt I am the expert on the effect of the citizen suit. I am 
not certain that this will affect State abandoned mine lands 
programs, but it is undoubtedly a disincentive for any private 
party to step forward as a good Samaritan.
    And of course the uncertainty about whether Federal lands 
is included is central. Abandoned mines are typically located 
on either Federal or private lands. If Federal lands aren't 
included, and private lands are all subject to owner-operator 
searches and solvency requirements, then just getting the 
program started will be a task in and of itself. In addition, 
the EPA expects a 3-year lead time to develop the regulations.
    So my basic conclusion is that as it stands I think the 
bill is unlikely to substantially increase the number of sites 
addressed. I think the sites that are being addressed will be 
cleaned up to a greater extent. In Montana, we have a priority 
list of about 380 sites and I think those sites are going to 
get addressed right down the line. They have been prioritized, 
they have a number on them, they will be able to clean them up, 
and they will be able to clean them up to a greater extent 
because of this legislation. So those sites are being addressed 
and will be cleaned up, but it is unlikely that we will see new 
parties step forward to do it.
    But if the goal is to provide a fire wall for the State 
abandoned mine land programs--which I think is a goal of the 
bill--then I think this legislation can be simplified greatly 
just by delegating that authority to the States. Then you 
wouldn't have to deal with this permit process.
    The final thing is that if it is the goal to induce new 
participants, the legislation should address the many forms of 
uncertainty I have described before. I think ultimately this 
bill would have some substantial impacts and the water would be 
cleaned up at some sites. If we want to address the problem on 
the map where we have a lot of abandoned mine sites that need 
to be cleaned up, then I think the bill needs to be amended to 
address the forms of uncertainties to bring in new parties, 
bring in new financing, bring in new sources of expertise.
    Senator Crapo. Thank you very much, Mr. Gerard.
    Let me start off first with you, Mr. Goodhard.
    In your testimony, you indicated concern about the citizen 
suits provisions in the legislation. Could you expand on that a 
little bit?
    Mr. Goodhard. The feeling is that if you don't clean up to 
a recognized standard there could be an action brought by a 
third party requiring the remediating party to go back and 
improve that.
    Senator Crapo. Ms. Kendall suggested that if a good 
Samaritan actually caused a reduction in the water quality that 
they should be subject to liability. Do you agree with that? 
And could you address that concern?
    Mr. Goodhard. I think that is addressed by the plan that is 
used for remediation. It needs to be examined. There are 
mechanisms for review and comments. A lot of the Clean Water 
Act type of cleanups that can be done are removal of tailings 
from a stream, rerouting of a stream across the tops of them, 
instillation of a wetlands-type of remediation coming out of a 
portal--all those just based on their merits have to have an 
improvement.
    Senator Crapo. So you can get a reasonable level of 
certainty if you have decent permit requirements or if the 
permit covers----
    Mr. Goodhard. If it is covered in the remediating plan. If 
the plan doesn't have sound science behind it, it needs to be 
examined. By sound science, that includes that new and 
advancing technologies that should be considered. But you have 
to look at what the plan says. You just don't give a 
remediating permit and let them go dig it up and see what they 
have. Someone must investigate what they intend to do.
    Senator Crapo. Ms. Kendall, in the context of your concern 
that you raised, I want to be sure that I understand it 
exactly.
    Were you referring to a situation in which the remediating 
party--in this case, the good Samaritan--followed the permit 
requirements but somehow it didn't work out? Or were you 
referring to a situation where the good Samaritan deviated from 
the permit and did something inappropriate?
    Ms. Kendall. Our understanding is that probably if the good 
Samaritan follows the permit requirements, they are released 
from liability, including citizen suit liabilities. So as long 
as they stick to their plan, they should be released from 
liability.
    Senator Crapo. From all liability?
    Ms. Kendall. Right.
    The concern is that things don't always go according to 
plan. But even if they do go according to plan, the outcomes 
are not necessarily what was planned. Even with the best 
engineering, sometimes that is the case. It would seem logical 
that if you are just taking tailings out of a stream that that 
is going to result in water quality improvements.
    But for example--I am not going to pretend to be an expert 
on the Penn Mine case in California, but that is one of the 
cases where there were governmental agencies involved in the 
cleanup and ended up being hauled into court and required to 
get an NPDES permit.
    What I do know about that case is limited, but what it 
tells me is that these are not always clear-cut cases where you 
can point to the evidence and say that this has definitely made 
a positive improvement in the site. That, incidentally, is one 
of the reasons why we think it is important that there be a 
good baseline analysis done before the permit is granted so 
that if a responsible party ever did come back on the scene and 
someone was attempting to get them to clean up the site that 
they wouldn't be able to say that they didn't cause the 
problem, it was the good Samaritan.
    In that case, who is liable and who is ever going to clean 
that site up? I am no lawyer, but if I were the responsible 
party, I think I could go to court and make a good case, that I 
should not be required to do the cleanup.
    Senator Crapo. You raise a good point.
    Did your statement earlier about the fact that if they 
followed the permit that they would be exempt from citizen 
suits and liability----
    Ms. Kendall. Right.
    Senator Crapo. Is that your understanding of how the 
proposed statute is written today? Or is that how you think it 
should be?
    Ms. Kendall. That is how it is written. We are saying that 
we think that even if they do follow their plan, if the water 
quality conditions at the site are made worse because of the 
cleanup, we think the good Samaritan should be liable for at 
least trying to return them to the original----
    Senator Crapo. So you believe the proposed statute should 
be amended in that context?
    Ms. Kendall. Right.
    Senator Crapo. Don't you think that is going to create a 
significant disincentive for a good Samaritan? If they 
volunteer to try to help, and they follow the permit that the 
Government said was appropriate to the tee, and it didn't work, 
why should they then be liable for trying to help by doing 
something that the Government agreed was a good idea?
    Ms. Kendall. That is definitely a concern, and we want 
these cleanups to happen. I think part of our analysis in this 
is that if you have a governmental entity that is cleaning up 
the site it is because for one reason or another they believe 
there needs to be a water quality improvement on that body of 
water.
    Hopefully they are looking for the maximum extent 
practicable. They want higher standards and there would be a 
commitment to at least leaving it as they found it, or no worse 
off. Even if that does mean added liability.
    Senator Crapo. Back to you Mr. Goodhard, you indicated that 
you believe that the PRP search is problematic. I agree with 
you on that.
    Do you think that--particularly as we try to expand this, 
if we do, to include private parties--that it is the 
responsibility of a good Samaritan to have to do a PRP search?
    Mr. Goodhard. No, I disagree with having to do that. 
Basically there is nothing in the good Samaritan provision that 
precludes any of the agencies from enforcing other elements of 
the Clean Water Act. If there is a potential responsible party 
out there, they are the ones best to identify and go after that 
party.
    Senator Crapo. Thank you.
    Mr. Lyman, I want to talk with you about the standard of 
liability.
    You have indicated that the standard is so high that it 
could be a deterrent to those who want to get involved. We 
discussed this a little earlier. I think in Governor Janklow's 
testimony, he indicated that even if you couldn't get 100 
percent cure, he would like to get some cure. EPA has testified 
that they just want to be sure that that is the maximum extent 
practicable.
    I just want to get your thoughts on what you think the 
impact would be to prospective good Samaritans if the standard 
they have to meet is to the maximum extent practicable.
    Mr. Lyman. I think it acts as a disincentive. I continue to 
go back and think--let's return to the title of this bill, the 
Good Samaritan. What if the traveler from Samaria, when he came 
upon the beaten and robbed man, had worried about whether or 
not a section 402 permit released him from liability, whether 
or not he had to do a search of potentially responsible 
parties, and then had to worry about whether the care he gave 
this poor beaten and robbed man was the maximum extent 
practicable given the resources he had available to him?
    What we are trying to do, it seems to me, is to encourage 
organizations--be they State, municipal, or private--to go in 
and make environmental improvements. Why do we continue to look 
for ways to throw road blocks in their way? Why do we say that 
if there is 100 of something coming out of this and you can 
reduce it to 50, that is not good enough unless you drop it to 
10?
    I will tell you, Senator Crapo--and we have been involved 
in this before--I will go before the Joint Finance and 
Appropriation Committee before the Idaho Legislature and tell 
them to stay away from these kinds of programs when they are 
looking to appropriating $100,000, $200,000, or $300,000 out of 
an abandoned mine land fund that we helped create if, in fact, 
those are the kinds of standards and this CERCLA thing isn't 
resolved. I don't think they have any business putting their 
money into it.
    I think part of that problem is that standard--the maximum 
extent practicable for the resources that have been identified 
for that project.
    Senator Crapo. Let me shift to Ms. Kendall for just a 
minute because she gave a clarification on this I want to 
pursue and then come back and see if there is a solution here.
    If I understood you, Ms. Kendall, you indicated reading the 
entire sentence that your interpretation of this provision was 
that the permitting agency did not get to make the decision 
about what the maximum extent practicable was with regard to 
all the resources of the party, but only with regard to those 
resources the party was willing to commit. Let me give an 
example and see if I am understanding this right.
    If a fund, such as that which Mr. Lyman identified here, 
were created to help remediate mines, and the decision of the 
manager of the fund was that we were going to use $100,000 out 
of this fund to remediate as much as we can at a certain 
abandoned mine site, that the agency supervising this would not 
be able to say that they should have allocated more of that 
fund to this? They would be able only to say that given the 
fact that we have the $100,000 from this source, let's see what 
the best bang for the buck is for that $100,000.
    Is that what you are saying you believe this says?
    Ms. Kendall. I am assuming that they are fully expending 
the resources from the fund on remediation in general, if not 
on one site. Yes, we do see this as an opportunity for the 
permitting agency, with input from the public and others, to 
try to leverage a higher standard with the funds that are 
available and not leverage more funds for the specific cleanup.
    Senator Crapo. I didn't understand Mr. Fox when he 
testified for the EPA to be reading it that way. Would you 
disagree if we clarified this in the statute so that it was 
very clear so that the decision of the amount of funds that 
would be made available for a particular cleanup project is a 
decision left to the good Samaritan that is willing to step 
forward and that the EPA--or the States if we have delegation, 
or whatever--would not be able to go behind that decision and 
say that they made the wrong decision about how many dollars 
provided and not authorize the permit?
    Ms. Kendall. I think the language is very clear, but I 
don't think our organization would have an objection to that.
    Senator Crapo. Mr. Lyman, if that were the way we defined 
it so that this fund that you have helped create in the State 
of Idaho would not be asked whether they could or would submit 
more, but whoever manages that fund gets to decide how much of 
that fund is put forward in a good Samaritan effort in a given 
project, would that then clear up the problem of whether we 
should try to use those dollars to the maximum extent 
practicable in terms of cleanup?
    I guess what I am asking is, Would the standard then be 
problematic, or would we still need to review the standard?
    Mr. Lyman. It certainly helps. As the language reads today, 
it says the resources available to the party for the activity. 
I don't know who is going to define what resources are 
available.
    Senator Crapo. I never read it that way, either. But I can 
see how Ms. Kendall reads it that way. But if we clarify that 
so that----
    Mr. Lyman. If we clarify that, then I get a concern because 
I envision a circumstance--for example under the abandoned mine 
fund that we have in Idaho--it now has about $300,000 in it. 
What possible incentive is there that DEQ isn't going to go out 
on this cleanup and do the best job they can? They are not 
looking for a way to spend $100,000 and get just a marginal 
improvement if they could get more.
    But when we impose this kind of language--maximum extent 
practicable--then all of a sudden we have all kinds of 
problems. You end up with public hearings, you end up with 
citizen suits, you end up with Federal agencies saying that you 
can do better with the money that you have, and nothing 
happens.
    I understand why if you are going to provide this kind of 
opportunity that you want to have some kind of standard to make 
sure it is used appropriately, but that kind of standard raises 
the bar so high that I am not sure that anybody can with 
confidence develop a plan that they feel comfortable they can 
accomplish with the money they have set aside. Once they take a 
step down that road--I now have this group over here which 
wants to make sure I did a really good job because if I don't 
improve the water quality, they are going to come in and create 
more problems.
    What is the reason to take the first step?
    Senator Crapo. I see your point.
    I want to shift to another issue, and in laying the 
groundwork for that, If some of the corrections we have talked 
about today were made--the liability concerns and the issues 
you have raised were resolved--and private parties were 
authorized to come forward as good Samaritans, do you believe 
that in the mining industry there would be good Samaritans who 
would step forward and try to help remediate mines?
    Mr. Lyman. There is no question in my mind. As I mentioned 
in my testimony, we have numerous concerns about the bill and I 
would be glad to provide those in writing back to the committee 
as you go through this process.
    I had an example where a company went bankrupt in the 
Stidnight Region. I ended up with a CEO who called two other 
CEOs who suggested getting some trucks and equipment down there 
to haul some of those barrels out because winter was about 
ready to set and they didn't want that stuff to go in. They all 
three checked with their attorneys and nobody sent a truck in. 
They didn't are.
    I have companies that want to do this. They may want to do 
it for good community relations. They may want to do it to 
assist in meeting a TMDL for a current operation they have. A 
lot of today's mining in Idaho is taking place where mining 
took place 100 years ago.
    There are a lot of opportunities. Yes, I think they would 
step up to the plate.
    Senator Crapo. Mr. Goodhard, do you agree that in the 
mining community good Samaritans would step forward if these 
issues were resolved?
    Mr. Goodhard. I agree with that statement. But I also feel 
that you have all the way from a bill that is somewhat limited 
now--and by limited, it doesn't give liability protection to 
contractors or agents, the people that actually do the work. If 
you take that step, you will broaden the people that will use 
it. If you address the CERCLA issues, you will broaden it more.
    As you broaden the scope of the stakeholders that can 
participate, you have more likelihood that those people are 
going to find sites and react to those sites as good 
Samaritans. I firmly believe that the more you broaden the 
language the more encouragement there is and something can 
happen.
    Senator Crapo. The reason I ask these questions is that--as 
a number of groups have pointed out--part of the problem is 
that we don't have enough resources made available. It seems to 
me that this issue of trying to broaden the availability of 
opportunity for good Samaritans to step forward is a tremendous 
source of resources from the private sector to address this 
issue.
    Ms. Kendall, I would like to indicate to you that your plea 
for more funding is not falling on deaf ears up here. We have 
legislation in another arena on the TMDLs where we have put 
$500 million, I think, into section 319 and $250 million into 
section 106. It is my understanding that those resources could 
be used for abandoned mine cleanup or other cleanup as 
necessary. It wouldn't all be that way.
    That is just one area we are looking, but we do recognize 
that need.
    I don't remember your testimony exactly, but did you 
testify or does your association take a position against 
expansion of opportunity in this legislation for private 
parties to be good Samaritans?
    Ms. Kendall. As Senator Baucus mentioned earlier, it was 
actually the National Mining Association that had advocated 
removing private parties from the scope of the bill. We do have 
three concerns--and we don't have any problem with the idea of 
private parties, industry, or other private companies being a 
good Samaritan--but we think there are three things, and two of 
them have been mentioned.
    One is that responsible parties should not be allowed to be 
good Samaritans. This does get into some very dicey issues of 
ownership and control language and that sort of thing, which 
was one of the things that led Senator Baucus to take it out of 
the bill. So that does have to be addressed. Whether that can 
be addressed in the timeframe that you want to move a bill to 
the satisfaction of both sides here is----
    Senator Crapo. Let me ask you a question in that context, 
the context of whether a responsible party should be allowed to 
be a good Samaritan.
    I can understand the concern that a responsible party 
should not get exemption from liability by qualifying as a good 
Samaritan. No argument there. But if the statute were written 
properly so that a responsible party who is, I assume, 
litigating--which is what happens now under Superfund and other 
statutes--or negotiating or working with the State to try to 
deal with their liabilities--if that responsibility party were 
willing to start putting some money toward improving the water 
quality as a volunteer, why not? Why not, assuming they don't 
get exempted from liability, let them step up and start 
cleaning up the water?
    Ms. Kendall. Couldn't they do that in the context of an 
NPDES permit?
    Senator Crapo. I don't know. I am not enough of an expert 
on this to know.
    Ms. Kendall. I am not sure that I am, either. I am not sure 
that I see the benefit to the responsible party.
    Senator Crapo. In other words, they may already be able to 
do so?
    Ms. Kendall. It seems to me that the reason they would want 
to get a good Samaritan permit is to qualify for a reduced 
standard and waiver of liability. If you are not going to 
reduce the standard or waive the liability----
    Senator Crapo. Right. I see your point.
    So they could get an NPDES permit, but in that process of 
getting one, not every PRP agrees that they are liable for 
everything.
    Ms. Kendall. So maybe they are arguing that they are not 
fully liable?
    Senator Crapo. There may be a PRP who is saying that they 
have a portion of this liability and I am not agreeing with the 
EPA or whoever else it is that I have all of this or that, but 
while we are fighting over that and you are not giving me the 
permit, can I be a volunteer and start helping things out?
    Ms. Kendall. When we actually starting talking about this 
issue, one of the ideas we proposed to the Western Governors' 
Association was to keep the current cleanup standard but allow 
a longer period of time or phase-in or that sort of thing. I 
think we would be willing to talk about these ideas, but I hope 
you appreciate how they get really messy really fast.
    Senator Crapo. Yes, I do.
    Ms. Kendall. Let me mention the two other points we are 
concerned about with allowing private parties.
    The second is this remining issue. We have no problem with 
the idea that minerals or other resources from a good Samaritan 
site would be developed, but we think this is a voluntary 
program for ``good Samaritans'' and they shouldn't profit from 
the development of one of these sites. Therefore, the proceeds 
from those sites should be redirected back into remediation 
either of this site to a higher standard or to another site.
    And the third issue, which actually just jumped out at me 
as I was looking at the bill before this hearing--there is a 
provision in the bill that says that you can qualify for a good 
Samaritan permit for a site that you own if you bought it for 
the purposes of remediating the site. I think when we start to 
get into allowing private parties to be good Samaritans and 
permitees that it raises lots of issues as to whether they 
would be allowed to own the site.
    If you are going to be a good Samaritan on a site you own, 
I think it is very questionable that you are ever really going 
to try to meet Clean Water Act standards. When would that ever 
really happen if you are exempting the owner of the property? 
Senator Crapo. When would somebody buy property in order to be 
a good Samaritan?
    Ms. Kendall. I was looking over the list of examples that 
the Western Governors' Association put together of some 
prospective good Samaritan sites, and I noted that one of them 
in California--I think it was the State--the State was 
proposing to purchase a site from Alta Gold and they would do 
some remediation and turn it into an off-road vehicle park. So 
they wouldn't be reaching Clean Water Act standards, but they 
wanted to purchase the site for that use.
    Senator Crapo. So it seems to me that if the objective is 
to clean the water up--you are saying that you don't want to 
create a system in which we achieve a lower standard and say 
that is good enough?
    Ms. Kendall. Well, I think with this specific case--yes, 
that is definitely true. With the case of the land purchase, we 
would be concerned. Why would a mining company purchase a site 
for cleanup only and not with the intention of mining it 
someday to profit?
    Senator Crapo. If they had good lawyers, I don't think they 
would.
    [Laughter.]
    Ms. Kendall. Not under current law.
    Senator Crapo. You have peaked my interest on remining, so 
I want to ask you another question. I am going to get to you, 
Mr. Gerard, so don't worry.
    You indicated--and I think correctly so--it doesn't really 
sound like a good Samaritan if somebody wants to profit from 
the operation. I understand that and agree with the point you 
are making.
    On the other hand, if our objective is to clean the water, 
and an incentive can be provided to someone--so maybe they are 
not a good Samaritan, they are a businessperson--and we can say 
to this businessperson that they can make some money cleaning 
up the site and they will achieve a higher standard of water 
quality where we have a lower standard and we will let them 
benefit from it.
    What is the harm in allowing that? If our objective is to 
have water cleanup and we are not going to have any otherwise, 
what is the harm in allowing someone to profit from cleaning up 
the site if they are willing to put their resources into it as 
a business enterprise?
    Ms. Kendall. We think they should meet Clean Water Act 
water quality standards and get an NPDES permit. I will also 
add--I am speaking a little beyond the balance of my expertise 
here--there is a provision called the use attainability 
assessment process in the Clean Water Act that allows for 
variances from water quality standards. This process has been 
criticized as expensive and very time-consuming and 
frustrating, so we are not holding it out there as an ideal.
    But perhaps in the case that you are talking about might 
have some merit in our view is that the good Samaritan could 
claim credibly that the site could not be cleaned up for some 
technological reason, that they could not meet Clean Water Act 
standards. If they can not meet the standard, we think there 
shouldn't be a profit. The money should go back into meeting 
that standard. If they can meet the standard, then they can get 
an NPDES permit and they mine at a profit, and that is great.
    Senator Crapo. Mr. Gerard, let me ask you the same 
question.
    I know you may not profess to be an expert on this issue, 
but let's assume a hypothetical. Let's assume an abandoned mine 
site on Federal land--which is a very common thing in Idaho--
and let's assume that there are no other statutory barriers, 
that we fixed the statute so that Federal land qualifies and 
that a private party could remediate, but nobody is stepping up 
to the bar to volunteer.
    But one entity--let's say it is a mining company--comes 
forward and says that they don't have resources just to 
volunteer, but this site could be operated as a mineral-
producing site and that if they are allowed to use the profits 
of that to clean up the mine as well as have a profit margin, 
they would be willing to step in as a business enterprise and 
clean up the water quality.
    Let's assume that they can't clean it up to Clean Water Act 
standards, but they can get a significant improvement. Wouldn't 
that be a proper way to get resources put toward cleaning up 
that water?
    Mr. Gerard. I think that is correct. As an economist, you 
ask what is really happening here. Someone is making a profit. 
Is that bad? Maybe. Is the environmental quality higher? Maybe. 
But there is a whole laundry list of concerns. I think the 
reason this got struck is that it just brought in such a host 
of other issues that remining got dropped. But in principle, if 
you are concerned about environmental quality, then I don't 
understand why you should be concerned that someone is making a 
profit along the way.
    Senator Crapo. If I understand your testimony correctly, 
the thrust of it is that this bill, as written, will provide 
some relief for States. But as to Federal or private entities, 
there really isn't much likely that it will result in any 
activity in terms of volunteerism to improve the water quality. 
Is that a fair statement?
    Mr. Gerard. I think that is precisely correct. The types of 
sites that Senator Baucus identified--Alta Mine--you talk to 
those guys about what they are doing and they are doing 
something, but they can't do everything that they should be 
able to do.
    Senator Crapo. With regard to property they own?
    Mr. Gerard. With regard to the State abandoned mines 
cleanup. They are already working on these sites. Why can't 
they affect a discharge that will result in a higher water 
quality? The answer is that they don't affect it because they 
don't want to be subject to meeting the full standards of the 
Clean Water Act. So just by loosening that liability there, the 
State will make marked improvements in the sites that they are 
addressing.
    But concerns have been brought up today with respect to 
CERCLA liability, with respect to the ownership search, with 
respect to the maximum extent practicable, with respect to 
citizen suits. These things act as a disincentive, whether 
attorneys say that it is clear that CERCLA is--``if you just 
read this line here, it is clear that CERCLA is not applicable 
here.'' If you are a mining company, maybe you don't believe 
that. As long as it is the perception of the people who may 
step up as good Samaritans that there are these disincentives 
built in, there is a possibility of CERCLA liability, there is 
a possibility of citizen suit, you are not going to see these 
people step up.
    If you are a non-profit and you want to apply for a 
$100,000 grant to improve water quality in a municipality, what 
is the likelihood that that grant will be approved if there is 
uncertainty as to whether the permit will be issued in the 
first place? If it is the case that 20 to 30 percent of it will 
go to an ownership search, or you have to budget 10 percent of 
it to determine solvency of the operator--these are the kinds 
of things that will confound true good Samaritan cleanups. 
Again, however, State abandoned mine lands programs will truly 
benefit under this, in my opinion.
    Senator Crapo. You mentioned the owner-operator search 
again. I think I recall that in your written testimony you had 
some statistics about just how that works and what kind of cost 
it imposes. Could you review that?
    Mr. Gerard. I don't have the statistics right in front of 
me, but basically the idea was that the Forest Service, on 
their properties--and this bill doesn't apply to the Forest 
Service as it stands now--but they are looking for properties 
to clean up and they have a budget for that. What happened was 
that they concentrated on properties where there was no owner, 
so they had about 335 sites identified as sites where there 
were water quality problems and basically needed remediation.
    The Inspector General reviewed that in 1996. The Department 
of Agriculture Inspector General basically said that because 
they were concentrating onsites where there is no identifiable 
owner-
operator and the Forest Service is the only responsible party, 
they have only been able to clean up 16 over the course of the 
7 or 8 years. So the Forest Service has this list of 335 
priority sites and they cleaned up 16.
    They also went out and conducted PRP searches to try to 
find people. They did indeed find people and they found people 
and billed them $42 million for cleanup efforts. What in fact 
happened was that no one paid up so they got about $2 million, 
most of it from one party.
    So the question you have to ask with respect to the good 
Samaritan legislation is, Why put barriers in place with this 
owner-
operator search when we can have cleanup today? If I am a 
private organization and I want to clean up today, that does 
not exonerate the owner-operator from liability under the Clean 
Water Act. They are still responsible. But we can clean up the 
Alta Mine today as opposed to getting the owner-operator to pay 
up someday.
    Senator Crapo. There is a principle called ``polluter 
pays'' which we hear a lot about. I don't think there is a lot 
of disagreement in society in the United States with the 
principle that if there is an identifiable polluter that caused 
the pollution that, all other things being equal, they are 
liable under current Federal law for the cleanup.
    Sometimes, it seems to me, though, that we spend so much 
time focusing on making sure we find that polluter that we 
spend undue resources seeking out the polluter when we have 
somebody standing ready to help remediate the problem with the 
environment.
    From an economic perspective, I recognize that we will need 
to have resources put in to identifying responsible parties. 
But is there any reason that you can see--in principle or 
economics--that would justify putting the burden of trying to 
identify the responsible parties on a person or entity that 
would be willing to step up as a good Samaritan?
    Mr. Gerard. As a good Samaritan, no, because the whole 
concept is that they want it cleaned up and they are willing to 
put their finances down to do it. If I am a private party, 
maybe I can put a lien on the property, I am not certain. But 
if I am a State, certainly, and I start doing this--and I think 
there might be a responsible party here--why can't the State 
later sue to recover to those damages? We start down the path 
of cleaning it up now and it gets cleaned up today as opposed 
to maybe getting cleaned up later.
    I think there are concerns that people will try to duck out 
of their responsibility, but the bill as written clearly states 
that nothing absolves responsible parties from their existing 
liability in the Clean Water Act. I don't see why a good 
Samaritan who wants to put their resources toward cleanup 
should have to spend one penny trying to identify an owner-
operator or trying to determine the solvency of that owner-
operator.
    Senator Crapo. My last question I want to ask of both Mr. 
Lyman and Mr. Goodhard. I realize it is possible that neither 
of you will be able to answer this, but it relates to the issue 
raised earlier that it has been stated here that the National 
Mining Association requested that private parties be taken out 
of this legislation.
    You are here representing the National Mining Association, 
Mr. Goodhard, although I realize you may not have been a part 
of whatever took place in previous negotiations on the bill. 
Mr. Lyman, the Idaho Mining Association is at least an 
affiliate of the National Mining Association.
    I am going to ask both of you if have any knowledge of 
whether that is in fact what took place. If so, why?
    Mr. Lyman. Mr. Chairman, I was notified of that yesterday 
at the NMA offices. While we have followed this issue in Idaho 
over the last several years as this effort with the Western 
Governors and the other groups proceeded, it wasn't one of our 
priority issues. So while I followed it, I wasn't deeply 
involved in it.
    As I was told yesterday of the issue Senator Baucus 
mentioned to create all these fire walls and come up with all 
this owner-
operator affiliate language, it got to be quite a morass. I 
believe that our association could support the development of 
that kind of language to allow private parties to be good 
Samaritans under this bill, or would at least be willing to 
participate in another effort to try to come up with that 
language.
    But again, as we have heard from David, at some point we 
become bogged down in process and in an attempt to write page 
after page after page of owner-affiliate and all kinds of other 
language on the off-chance that some potentially responsible 
party might try and find a loophole to skip through, then we 
lose a tremendous opportunity.
    In addition, I don't believe that that effort by the 
Western Governors and other groups ever included a more 
explicit release from CERCLA liability so that there was 
perhaps less incentive from the industry, given the fact that 
even if we could jump through all these hoops on the owner-
operator-affiliate kind of process, if we still don't have 
explicit CERCLA release, then what does it matter? Go ahead and 
pull us out of the bill and go to the States.
    Maybe merging those two together might resolve that in a 
way where you will be able to have the industry come up with 
language on that owner-operator-affiliate kind of thing if we 
had explicit release from CERCLA.
    Senator Crapo. Mr. Goodhard.
    Mr. Goodhard. I was involved in parts of the discussions at 
that time. The concept, as initially proposed by the Western 
Governors' Association is the ownership and control language 
that was so incredibly one-sided that the industry took great 
exception to that. We spent a lot of time and effort to bring 
the bill up to the point that that could be left out. At that 
point, we still wanted to be participating parties, but it was 
still a very contentious issue, very hard to resolve.
    In the interest of trying to move the concept forward, we 
withdrew at that time with the understanding that there would 
be further discussions later on. That has never happened.
    Senator Crapo. Let me ask the two of you--in fact, anyone 
on the panel who would like to pitch in on this is free to do 
so--if we were to expand--I am referring to issue of this 
complication of trying to close every loophole if we allow 
private parties to be good Samaritans.
    Why couldn't we simply have a very straightforward phrase--
maybe even one sentence--that said that if a PRP or responsible 
party is identified that anything they may have done as a good 
Samaritan does not exempt them from a liability for the 
cleanup? In other words----
    Mr. Goodhard. We actually proposed language similar to that 
where it would be a self-certification that the company and its 
subsidiaries that is acting as a private party certifies that 
they have not had an interest in the abandoned or inactive 
property. Recognizing the other provisions of the Clean Water 
Act that if it comes to light not only have you fraudulently 
entered into the good Samaritan program, you also still have 
your preexisting Clean Water Act responsibilities.
    There is nothing in the bill that precludes any of the 
other portions of the Clean Water Act.
    Senator Crapo. And that proposal was rejected?
    Mr. Goodhard. I am not sure how far along that went. But I 
did see language and I know it was submitted. I was not 
involved at that time.
    Senator Crapo. Any other comments from the panel on that?
    [No response.]
    Senator Crapo. I know it has gone way past the time we had 
allocated for the hearing, but I feel that the information 
brought forward has been very helpful. I want to again extend 
my thanks to each of you.
    We are going to leave the record open for 10 days to 
receive written testimony from any groups that are interested 
in submitting testimony on this issue. We will be trying to 
find a way to move forward some good legislation. I didn't say 
perfect legislation, but some good legislation. We may have 
some disagreements on that as we move along, but I think we 
have identified a lot of areas where we will be able to find 
consensus.
    With that, and again with my thanks to all of you for the 
effort you have put into this, this hearing is adjourned.
    [Whereupon, at 12:42 p.m., the subcommittee was adjourned 
to reconvene at the call of the chair.]
    [Additional statements submitted for the record follow:]
    Statement of Governor William J. Janklow, State of South Dakota
    Mr. Chairman, and members of the committee, thank you for the 
opportunity to appear before you today to discuss an issue of great 
importance to Western States--the cleanup of abandoned or inactive 
mines. Abandoned or inactive mines are responsible for many of the 
greatest threats and impairments to water quality throughout the 
Western United States. Thousands of stream miles are severely impacted 
by drainage and runoff from these mines, often for which a responsible 
party is unidentifiable or not economically viable. At least 400,000 
abandoned or inactive mine sites occur in the West.
    Regulatory approaches to address the environmental impacts of 
abandoned or inactive mines are often fraught with difficulties, 
starting with the challenge of identifying legally responsible and 
financially viable parties for particular impacted sites. Mine 
operators responsible for conditions at a site may be long gone. The 
land and mineral ownership patterns in mining districts are extremely 
complex and highly differentiated. The surface and mineral estates at 
mine sites are often severed, and water rights may exist for mine 
drainage. It is not uncommon for there to be dozens of parties with 
partial ownership or operational histories associated with a given 
site.
    In view of the impacts on water quality caused by these abandoned 
mines and the difficulties in identifying responsible parties to 
remediate the sites, states are very interested in undertaking and 
encouraging voluntary ``Good Samaritan'' remediation initiatives, i.e., 
cleanup efforts by states or other third parties who are not legally 
responsible for the existing conditions at a site. However, states 
currently are dissuaded from taking measures to clean up the mines due 
to an overwhelming disincentive in the Clean Water Act. The bill before 
you would amend the Act in effort to reduce those disincentives.
    I would like to offer you an analogy to the situation states are 
experiencing with our attempts to clean up the runoff from these 
abandoned mines. Imagine, if you will, a neighborhood, perhaps your own 
neighborhood, with houses and yards, trees lining the street, kids and 
dogs playing, families barbequing. Now imagine a house, perhaps next 
door to your own house, that has been abandoned. The paint on the 
outside walls has long worn off. The windows are all broken out. The 
front door flops open and shut in the wind. The yard has not been mowed 
or kept, and has years of debris collected in its high weeds. Add an 
old refrigerator to the broken down front porch and a beat up old car 
in the side yard. It is an old house that has been abandoned, and it is 
in your neighborhood.
    Now, let's just say you have had enough of the eyesore. It is 
impacting the value of your home; it is a safety and health hazard for 
the kids in the neighborhood curious to explore it; and it is a 
constant source of debris blowing into your yard. You decide to take 
some actions to clean up the house--to mow the lawn and pick up the 
trash. Move the fridge inside. Nail the door shut and board the 
windows. Actions that do not cost you much, but that result in 
significant improvements.
    Now, imagine that after you have completed these modest 
improvements someone in your community takes you to court claiming that 
the actions you have taken make you liable to bring the house up to 
code and up to the covenants of the neighborhood, and make you 
responsible for maintaining the condition of the property indefinitely 
into the future. And they win! You had nothing to do with the disrepair 
that the abandoned house had fallen into, and yet, because you made an 
effort to clean up some of the mess, you are now legally obligated for 
very costly renovation and maintenance of the house.
    This is the situation states find themselves in with regard to 
their efforts to clean up abandoned or inactive mines. To date, 
Environmental Protection Agency (EPA) policy and some case law have 
viewed abandoned or inactive mined land drainage and runoff as problems 
that must be addressed under the section 402 National Pollutant 
Discharge Elimination System (NPDES) permit program. One such example 
involves the Penn Mine in California, an abandoned copper and zinc 
mine. A portion of the Penn Mine property was acquired by the East Bay 
Municipal Utility District to construct a reservoir. Subsequently, the 
utility and a California Regional Water Quality Control Board 
constructed a facility to contain toxic runoff from the site and 
minimize its impact on downstream waters. Neither the municipal utility 
nor the Regional Board had any previous involvement in the mining 
operation but were at the site for the purpose of cleaning it up. 
Because the new facility did not eliminate all discharge to downstream 
waters, the municipal utility and the regional board were later sued by 
an environmental group alleging that the facility was discharging 
pollutants without an NPDES permit. This position was upheld through 
the 9th Circuit Court of Appeals, with the result that costly further 
cleanup requirements were imposed on the municipal utility and the 
regional board. This particular example has had a severe chilling 
effect on the interest of other ``Good Samaritans'' in pursuing similar 
cleanup efforts in several Western states.
    States have found that there are many instances where a reasonable 
investment in a cleanup project at an abandoned mine site will result 
in substantial improvement in water quality, even though all impacts 
from the site will not be eliminated. However, there is currently no 
provision in the Clean Water Act which protects a remediating agency--
or ``Good Samaritan'' who does not otherwise have liability for 
abandoned or inactive mine sites, and that attempts to improve the 
conditions at these sites, from becoming legally responsible, under 
section 301(a) and section 402 of the Clean Water Act, for any 
continuing discharges from the mined land after completion of a cleanup 
project. This potential liability is an overwhelming disincentive to 
voluntary remedial activities financed or conducted by public entities 
to address the serious problems associated with abandoned or inactive 
mined lands.
    The Western states have found a high degree of interest and 
willingness on the part of Federal, State and local agencies, volunteer 
organizations and private parties to work together toward solutions to 
the multi-faceted problems commonly found on inactive mined lands if an 
effective Good Samaritan provision were adopted. Consequently, since 
1994 Western states have endeavored to develop a proposal for amending 
the Clean Water Act, to eliminate the current disincentives that exist 
in the Act to restore and protect water quality within watersheds 
through Good Samaritan cleanups of abandoned or inactive mines. From 
the outset, this has been a truly bipartisan effort, and an effort in 
which the states have sought to involve the full spectrum of 
stakeholders, including EPA, the environmental community, the mining 
industry, and other interested parties. Each of these groups has 
brought important perspectives and considerations to the discussions. 
Over several years, the proposal evolved substantially as it was 
refined in response to issues and concerns raised. S. 1787 uses the WGA 
proposal as its starting point, while including further refinements 
crafted by the bill's sponsors.
    This bill offers a starting point from which to work to resolve the 
liability disincentive problem that is currently preventing many 
potential Good Samaritan cleanup projects from going forward. The key 
provisions of the bill are consistent with WGA policy resolution 98-
004, ``Cleaning Up Abandoned Mines,'' a copy of which is attached.
     It provides a process to assure that proposed projects 
make sense from an environmental standpoint and that they will not be 
authorized unless there is a sound basis to conclude that they will 
result in water quality improvements at a site.
     It provides assurances that a remediating party will carry 
out a project as approved, in an environmentally sound manner, without 
imposing unnecessary and infeasible standard NPDES permit requirements.
     It provides that after a remediation project is completed 
a remediating party can terminate its permit without open-ended, 
continuing responsibility for remaining discharges at a site.
     At the same time, it assures that the existing legal 
liability of those properly responsible for discharges at an abandoned 
or inactive mine site, prior to a Good Samaritan project, is not 
affected in any way.
    The Western Governors' Association has expressed its support for S. 
1787 in the attached letter dated October 19, 1999, although we believe 
two issues need further consideration: (1) CERCLA liability; and (2) 
contractor liability.
    The current proposal has been criticized both as too narrow and as 
too broad. Some who see the proposal as too narrow would like the 
provisions regarding who can be a remediating party to be expanded, so 
that more entities can pursue Good Samaritan projects. Some who see the 
proposal as too broad believe that all remediation efforts should be 
subject to a specific cleanup standard, or that no exceptions should be 
allowed to the usual Clean Water Act requirements.
    What is important is that some variation on the current proposal be 
adopted soon. Few, if any, other revisions to the Clean Water Act would 
result in such immediate or certain improvements to water quality as 
the prompt adoption of an effective Good Samaritan provision. Projects 
in various stages of planning and design are ready to move forward in 
several Western states if the current disincentives to such remediation 
projects can be eliminated. A list of several examples of such projects 
is attached as an addendum to this testimony. On the other hand, if 
action on this bill is delayed by those that feel it does not give them 
100 percent of what they want, no projects will go forward and our 
Western streams will remain polluted.
    It is important to note that this bill would not be and has not 
been represented as a comprehensive solution to the environmental 
problems created by abandoned or inactive mines. In particular, it does 
not provide any new resources, which is another major constraint to 
further progress in obtaining cleanup. However, there are some 
resources currently available and meaningful cleanup projects will go 
forward if the current liability cloud is removed. For example, section 
319 of the Clean Water Act provides one source of project funding that 
was used by states to help undertake these projects until the liability 
issue was recognized. The provision in S. 1787 that would assure that 
this funding source remains available for these projects in the future 
is a critical element of the proposal. Additional funding sources will 
be needed in the future. However, until the liability issue is 
resolved, there is very little incentive for states or others to 
initiate major efforts to identify potential additional resources for 
abandoned or inactive mine remediation.
    The Western Governors commend the sponsors for introducing the 
``Good Samaritan Abandoned or Inactive Mine Waste Remediation Act'' in 
an effort to eliminate current disincentives to voluntary, cooperative 
efforts aimed at reducing water quality impacts from abandoned or 
inactive mines. WGA remains willing to work with those that seek to 
improve this concept.
    Adoption of a Good Samaritan bill will result in immediate and 
significant improvement in the water quality of some of our country's 
most polluted streams. Inaction will result in continued degradation 
for the foreseeable future of many Western streams impacted by 
historical mining activity. On behalf of the Western Governors' 
Association, I therefore urge passage of Good Samaritan legislation by 
this Congress, so that states may once again get on with the business 
of cleaning up our proverbial neighborhoods.
                                 ______
                                 
                               attachment

 Examples of Abandoned or Inactive Mines Which Have Been Assessed for 
                     Remediation in Western States

    The following cleanups have been postponed due to potential NPDES 
liability.
                               california
Penn Mine Copper Mine, Calaveras County
    Because of a lawsuit in the 1990's, the Central Valley Board was 
compelled to do major remediation because the court found the Board was 
an NPDES discharger based on remedial work it did in the 1970's. 
Remediation is nearly complete, but the Board risks liability for 
residual seeps and other discharges.
Walker Mine Copper Mine, Plumas County
    Regional Board spent over 30 years unsuccessfully suing the mine 
owner to cleanup acid mine drainage discharge that sterilized a creek. 
Finally, the Board plugged mine shaft and accepted settlement from mine 
owner's estate. The Board remains liable for any point source discharge 
that may occur from the plug.
Buena Vista/Klau Mine Mercury Mine, San Luis Obispo County
    Central Coast Board has unsuccessfully tried to secure cleanup from 
mine owner for over 20 years. These mines are the source of 80 percent 
of mercury pollution in Nacimiento Reservoir, which is under a fishing 
advisory. US EPA is willing to do cleanup on condition California takes 
over the long-term operation and maintenance. The State is unwilling to 
accept liability for NPDES discharges at site and so relieve the 
recalcitrant mine owner of responsibility. Cleanup may be delayed until 
potential State liability is resolved.
Mt. Diablo Mine Mercury Mine, Contra Costa County
    Owner discovered mine after spending entire savings to buy land for 
a residence. Mine pollution has sterilized a creek and caused a fishing 
advisory in a nearby reservoir. With liability protection, a government 
agency could do partial remediation to significantly reduce pollutant 
discharges from the site. Without liability protection it is likely no 
remediation will occur.
Stowell Mine, Keystone Mine, and Mammoth Mine, Shasta County
    In 1991, the Board secured $1 million from the State Cleanup 
Account to hire consultants to perform remedial work at those three 
mines. Although a responsible party eventually came forward to take 
remedial action, the Board decided to return the funds rather than 
apply them to mine cleanup because of liability concerns (brought on by 
the Penn Mine case.)
Balaklala and Shasta King Mines, Shasta County
    These mines discharge abandoned mine drainage to West Squaw Creek, 
a tributary to Shasta Lake. Impacts include elimination of aquatic life 
in the stream below the mines, frequent fish kills where the stream 
enters Shasta Lake and degradation of recreational/aesthetic uses in 
this part of the National Recreation Area. The owner, Alta Gold 
Company, has performed some remedial work but final site restoration is 
probably beyond their capability. There is a unique opportunity here 
for Alta Gold to sell the property to the public resource agencies for 
development of an off-road vehicle park with funds from the sale to be 
used for mine drainage control. This arrangement could provide 
substantial funds for problem solution but is presently not being 
actively pursued due to the liability issue.
Mammoth Mine, Shasta County
    This large abandoned copper mine discharges abandoned mine drainage 
to Little Backbone Creek and Shasta Lake. Impacts are similar to those 
previously described for the West Squaw Creek mines. The owner, Mining 
Remedial Recovery Company, has implemented a comprehensive mine sealing 
program but the results to date have been disappointing. Substantial 
modification of the sealing program or a new control strategy, such as 
collection and treatment, will be required to address the problem. The 
issue is further complicated by a lawsuit filed by the California Sport 
Fishing Protection Alliance. We believe that a cooperative effort at 
Mammoth Mine between the owners, resource protection groups, and the 
agencies would be more effective than lawsuits and enforcement orders.
Greenhorn Mine, Shasta County
    This acid mine west of Redding discharges abandoned mine drainage 
to Willow Creek which is a tributary to the Wiskeytown Lake National 
Recreation Area. The discharge impacts aquatic life and recreational 
uses in the area. There is no responsible owner capable of implementing 
a control program. A reclamation feasibility study has been prepared by 
the Department of Water Resources (under contract to Regional Board), 
but no work has been done. Water quality and beneficial use 
improvements could be achieved through a combination of surface 
drainage control and mine sealing.
Corona Mine and Abbott Mine, Lake County
    These two mercury mines would each benefit from actions to contain 
tailings and solid wastes and to divert surface waters. Staff estimates 
a cost of $1-2 million per mine.
Afterthought Mine, Shasta County
    Proposed actions at this mine include sealing the multiple portals, 
removing and covering the tailings pond, and rehabilitating the access 
road.
Bully Hill Mine, Shasta County
    Staff proposes solid waste containment and portal scaling at this 
site.
     S. 1787 would also support watershed cleanups. US EPA is 
working on regulations to permit publicly owned sewage treatment works 
(POTWS) to cleanup pollution within a watershed as an alternative to 
removing pollutants that exist at very low levels in the POTWS' 
discharge. This will provide much greater removal of pollutants from 
watersheds and will help California comply with its mandate to 
implement Total Maximum Daily Load allocations. However, POTWS are not 
likely to cleanup abandoned mines under a watershed program unless they 
get some liability protection.
                                colorado
St. Kevin Gulch, Lake County
    The St. Kevin Gulch project is located northwest of Leadville in 
the small perennial drainage known as St. Kevin Gulch. Mine drainage 
from the lower Griffin Tunnel flows as a series of springs from the 
waste rock pile approximately two miles above the confluence of St. 
Kevin Gulch and Tennessee Creek. The mine drainage has a pH of 2.6 to 
2.9 and has rendered St. Kevin Gulch virtually devoid on any aquatic 
life below the drainage, and has an adverse effect on trout 
reproduction in Tennessee Creek. The mine drainage is to be treated 
using a combination of an anoxic limestone drain and a sulfate reducing 
bioreactor (wetland). An interceptor trench has been completed to help 
site the treatment system. The project is in the final design state. 
Commitments for materials, labor, services, and cash were obtained from 
local individuals, Lake County, and the USGS. These commitments have at 
least partially been withdrawn and the project postponed because of 
concerns about assumption of liability. The estimated construction cost 
is $122,300.
McClelland Tunnel, Clear Creek County
    The McClelland Tunnel project is located along Interstate 70, one-
half mile southeast of the town of Dumont. The McClelland Tunnel drains 
approximately 15 gallons per minute of metal laden water into Clear 
Creek. The site also contains mine and mill waste along Clear Creek, a 
county road, and a State Highway. The Colorado School of Mines, 
Department of Transportation, Department of Public Health and 
Environment, Clear Creek County, and Coors have been collaborating with 
DMG on this project. The DMG's part of the project is to construct a 
small sulfate reducing bioreactor and a small aerobic wetland to treat 
the mine drainage. Final designs for the water treatment aspects of the 
project have been prepared and are ready to be bid. The project portion 
has been halted because of the concern of the State for incurring 
perpetual liability for maintaining the treatment system. The estimated 
cost of this project is $26,800.
Perigo, Gilpin County
    The Perigo project is located approximately 6 miles north of 
Central City in a small perennial steam known as Gamble Gulch. The 
Perigo mine drains a average of 70 gallons per minute of pH2.9-3.9 
metal laden water. Gamble Gulch below the mine drainage is virtually 
devoid of aquatic life for six miles before its confluence with South 
Boulder Creek. In 1989 and 1990, a small project was completed in this 
drainage to remove mine waste rock and mill tailings from the steam bed 
in two locations and construct a test treatment system at the Perigo 
mine. The proposed treatment techniques for this site include an 
aqueous lime injection system, settling pond and sulfate reducing 
bioreactor, which will be capable of treating all the mine drainage. 
The design for the project is completed but will not be bid out for 
construction until additional baseline information of the watershed is 
collected. If liability issues are not resolved at that time, the 
project will not proceed. These estimated cost for this project is 
$114,640.
Pennsylvania Mine, Summit County
    The Pennsylvania Mine project is located just east of Keystone ski 
area on Peru Creek. Acidic metal laden water drains from caved mine 
workings making the creek biologically dead. Though a 319 grant from 
EPA, DMG has installed an innovative hydro-powered water treatment 
mechanism and a settling pond. The drainage water is diverted from the 
mine adit into a hydropower turbine, thus generating the power to drive 
a feeder that doses limestone to buffer the water. Once in the pond, 
metal precipitate can settle out and the effluent progresses through 
three wetland cells. Here, sulfate reducing bacteria and low oxygen 
waters remove much of the remaining acid and metal. The project is 80 
percent complete with only a redesigned feeder mechanism necessary. The 
project is on hold pending resolution of NPDES liability issues.
Animas River Mine Sites, San Juan County
    The Division of Minerals and Geology in conjunction with the Animas 
River Stakeholders Group has investigated hundreds of mine sites in the 
vicinity of Silverton. The resulting feasibility reports for Mineral 
Creek, Cement Creek, and the Animas River have identified at least two 
dozen sites having a significant impact on the Animas River water 
quality. Treatment recommendations have been made but project work can 
not proceed until the NPDES issue is resolved.
                                montana
    The State of Montana has inventoried its abandoned non-coal mine 
sites. Thus far, Montana has found 245 abandoned mines which have the 
potential to impact surface waters because they are within 100 feet of 
a stream. Of these, 71 sites have discharging adits (mine entrances 
emitting acid mine drainage into the environment). 89 of 245 sites are 
already known to be degrading water quality. These 89 sites have caused 
downstream water quality samples to exceed at least one Clean Water Act 
parameter--either the Maximum Contaminant Limits or Aquatic Life 
Standards.
    Given recent developments in Federal case law, Montana officials 
are gravely concerned that cleanup projects addressing abandoned mines 
which are known to be seriously degrading the state's water quality 
will be halted due to Clean Water Act liability concerns.
                                 nevada
Tybo Tailings Site, Nye County, Nevada
    The Tybo Tailings Site is located in the Tybo mining district in 
Nye County, Nevada. It is approximately 58 miles east of Tonopah on 
U.S. Highway 6 and thence 6.5 miles northwest on the Central Nevada 
Test Sites Base Camp access road. The site is located in the Hot Creek 
hydrographic basin. Tybo Creek flows from Tybo Canyon in the Hot Creek 
Range and then easterly into the Hot Creek Valley. The tailings are the 
result of mining activity, which began around 1866. Silver, lead, zinc, 
copper, mercury, and small amounts of gold were recovered. By 1877, 
Tybo was the second largest lead producing area in the United States 
after Eureka, Nevada. Production continued on an intermittent basis 
until around 1940. Some very minor production occurred in the 1950's 
and early 1960's. Total recorded production from the district is valued 
at over $9 million.
    The tailings impoundment is located just downstream from the mouth 
of Tybo Canyon. The actual impoundment is located in an ephemeral wash 
and is about 1,000 feet long and up to 600 feet wide (approximately 12 
acres total). The dam has been breached, allowing tailings to migrate 
down the creek for at least 6 miles. The tailings appear to be about 20 
feet thick at the dam. The tailings are highly acidic (surface water on 
the tailings has a pH of 1-3), have a strong sulfur smell, and are 
stained brown-orange to purple, red and black. Surface water has eroded 
channels into the tailings. All vegetation along the migration path 
from the impoundment is stressed or dead for at least 3 miles 
downstream.
    Preliminary studies have detected arsenic and lead range up to 
10,000 ppm, zinc up to 7,500 ppm, and copper up to 233 ppm. At this 
time, the State of Nevada has recommended evaluating groundwater use 
and the habitat of threatened and endangered species. Additional 
recommendations include measures to prevent wildlife from drinking 
surface water, and restricting site access by fencing and gating. NDOW 
has expressed concern about the effects on plants and wildlife and 
groundwater.
Rip Van Winkle Mine, Elko County, Nevada
    The Rip Van Winkle Mine site is located in the Merrimac mining 
district, Elko County, Nevada. The site is located at approximately 
7,000 feet above mean sea level on Lone Mountain in the Independence 
Mountains, and is situated in the Maggie Creek Area hydrographic basin, 
which flows into the Humboldt River near Elko, Nevada. The Rip Van 
Winkle Mine recorded first production in 1918. It was the only active 
producer in the district after 1949 with limited production of lead, 
zinc and silver through 1966.
    The mine site consists of shafts and underground workings, a mill, 
building foundations and several cabins, waste dumps and tailing 
impoundments. The tailings impoundments cover approximately 3 acres and 
contain acid-generating materials. Vegetation on the site is sparse and 
in the vicinity of the tailings, plants show signs of stress. Impacts 
to Humboldt River flows are unknown at present, but may be impacting 
endangered species.
Norse-Windfall Mill Site, Eureka County, Nevada
    The Norse-Windfall Mill Site is located 5 miles south of Eureka, 
Nevada. It is located in the Diamond Valley hydrographic basin in which 
perennial springs are prolific in the mountainous regions south of 
Eureka, with many flowing springs existing at the mill site. The 
Windfall Mine was discovered in 1908, and was operated intermittently 
for about 30 years as an underground operation with a cyanide vat leach 
facility. Around 1968, Idaho Mining Corp. acquired the property and 
mined the same ore body via open pit methods. Between 1975 and 1978 the 
Windfall Pit, and associated cyanide heap-leach piles, waste dumps, 
mill process building, office and laboratory were constructed. The last 
operator of the site was Norse Windfall Mines, Inc. The site has been 
abandoned since 1989 and little or no reclamation has occurred. In July 
1994, the Nevada Division of Environmental Protection conducted a 
compliance inspection of the site and noted that unmaintained process 
components and materials left scattered about the property may have the 
potential to cause environmental damage by degrading the waters of the 
state.
    Springs located within the site exceed the Nevada Water Quality 
Standards for arsenic, mercury, nickel, and cyanide. Within a 4-mile 
radius of the site, six municipal springs and one domestic well provide 
drinking water for Eureka. Water from the nearby springs are blended 
and pumped into 2 water tanks located just outside of Eureka. This 
water serves as the main water supply for the entire town.
                              south dakota
    South Dakota has been working on reclaiming two small hardrock 
mines that occur in the Black Hills with EPA and the Federal agencies 
that administer the land upon which the mines are located. They are the 
Minnesota Ridge mine (Forest Service and private land) and the Belle 
Eldridge mine (BLM land).
    South Dakota also recently completed an inventory of abandoned 
hardrock mines occurring in the Black Hills of western South Dakota in 
conjunction with the South Dakota School of Mines and Technology. 
Approximately 900 mines were identified in a four-county area (about 
700 on private land and about 200 on Federal land). The inventory 
purpose was primarily to identify abandoned mine locations, so little 
or no assessment work was completed for many of the mines identified. 
Many of these historic mines pose significant safety hazards, and some 
pose environmental problems, including impacts to water quality. The 
Good Samaritan bill would certainly be an incentive for getting some of 
these mines cleaned up.
                                 ______
                                 
                                          October 19, 1999.
Hon. Max Baucus,
U.S. State,
Washington, DC.
    Dear Senator Baucus: The Western Governors commend you for 
introducing the ``Good Samaritan Abandoned or Inactive Mine Waste 
Remediation Act.'' As stated in WGA Resolution 98-004 (attached), the 
Western Governors believe that there is a need to eliminate current 
disincentives in the Clean Water Act for voluntary, cooperative efforts 
aimed at improving and protecting water quality impacted by abandoned 
or inactive mines. We believe your bill would effectively and fairly 
eliminate such disincentives, and we therefore urge its passage this 
Congress.
    Inactive or abandoned mines are responsible for threats and 
impairments to water quality throughout the western United States. Many 
also pose safety hazards from open adits and shafts. These historic 
mines pre-date modern Federal and State environmental regulations which 
were enacted in the 1970's. Often a responsible party for these mines 
is not identifiable or not economically viable enough to be compelled 
to clean up the site. Many stream miles are impacted by drainage and 
runoff from such mines, creating significant adverse water quality 
impacts in several western states.
    Recognizing the potential for economic, environmental and social 
benefits to downstream users of impaired streams, western states, 
municipalities, Federal agencies, volunteer citizen groups and private 
parties have come together across the West to try to clean up some of 
these sites. However, due to questions of liability, many of these Good 
Samaritan efforts have been stymied.
    To date, EPA policy and some case law have viewed inactive or 
abandoned mine drainage and runoff as problems that must be addressed 
under Section 402 of the CWA--the National Pollutant Discharge 
Elimination System (NPDES) permit program. This, however, has become an 
overwhelming disincentive for any voluntary cleanup efforts because of 
the liability that can be inherited for any discharges from an 
abandoned mine site remaining after cleanup, even though the 
volunteering remediating party had no previous responsibility or 
liability for the site, and has reduced the water quality impacts from 
the site by completing a cleanup project.
    The ``Good Samaritan Abandoned or Inactive Mine Waste Remediation 
Act'' would amend the Clean Water Act to protect a remediating agency 
from becoming legally responsible for any continuing discharges from 
the abandoned mine site after completion of a cleanup project, provided 
that the remediating agency--or ``Good Samaritan''--does not otherwise 
have liability for that abandoned or inactive mine site and implements 
a cleanup project approved by EPA. The Western Governors support this 
bill, and urge that it be enacted this Congress.
            Sincerely,
                                      Marc Racicot,
                                       Governor of Montana,
                                                 WGA Lead Governor.

                                        Bill Owens,
                                      Governor of Colorado,
                                                 WGA Lead Governor.

                                        Michael O. Leavitt,
                                                  Governor of Utah.
                                 ______
                                 
         Policy Resolution 98-004--Cleaning Up Abandoned Mines

                     (Sponsor: Governor Roy Romer)

                             a. background
    1. Inactive or abandoned mines are responsible for threats and 
impairments to water quality throughout the western United States. Many 
also pose safety hazards from open adits and shafts. These historic 
mines pre-date modern Federal and State environmental regulations which 
were enacted in the 1970's. Often a responsible party for these mines 
is not identifiable or not economically viable enough to be compelled 
to clean up the site. Thousands of stream miles are impacted by 
drainage and runoff from such mines, one of the largest sources of 
adverse water quality impacts in several western states.
    2. Mine drainage and runoff problems are extremely complex and 
solutions are often highly site-specific. Although cost-effective 
management practices likely to reduce water quality impacts from such 
sites can be formulated, the specific improvement attainable through 
implementation of these practices cannot be predicted in advance. 
Moreover, such practices generally cannot eliminate all impacts and may 
not result in the attainment of water quality standards.
    3. Cleanup of these abandoned mines and securing of open adits and 
shafts has not been a high funding priority for most State and Federal 
agencies. Most of these sites are located in remote and rugged terrain 
and the risks they pose to human health and safety have been relatively 
small. That is changing, however, as the West has gained in population 
and increased tourism. Both of these factors are bringing people into 
closer contact with abandoned mines and their impacts.
    4. Cleanup of abandoned mines is hampered by two issues--lack of 
funding and concerns about liability. Both of these issues are 
compounded by the land and mineral ownership patterns in mining 
districts. It is not uncommon to have private-, Federal-, and State-
owned land side by side or intermingled. Sometimes the minerals under 
the ground are not owned by the same person or agency who owns the 
property. As a result, it is not uncommon for there to be dozens of 
parties with partial ownership or operational histories associated with 
a given site.
    5. Recognizing the potential for economic, environmental and social 
benefits to downstream users of impaired streams, western states, 
municipalities, Federal agencies, volunteer citizen groups and private 
parties have come together across the West to try to clean up some of 
these sites. However, due to questions of liability, many of these Good 
Samaritan efforts have been stymied.
    (a) To date, EPA policy and some case law have viewed inactive or 
abandoned mine drainage and runoff as problems that must be addressed 
under the Clean Water Act's (CWA) Section 402 National Pollutant 
Discharge Elimination System (NPDES) permit program. This, however, has 
become an overwhelming disincentive for any voluntary cleanup efforts 
because of the liability that can be inherited for any discharges from 
an abandoned mine site remaining after cleanup, even though the 
volunteering remediating party had no previous responsibility or 
liability for the site, and has reduced the water quality impacts from 
the site by completing a cleanup project.
    (b) The western states have developed a package of legislative 
language in the form of a proposed amendment to the Clean Water Act. 
The effect of the proposed amendment would be to eliminate the current 
disincentives in the Act for Good Samaritan cleanups of abandoned 
mines. Over the 3 years that the proposal was drafted, the states 
received extensive input from EPA, environmental groups, and the mining 
industry.
    6. Liability concerns also prevent mining companies from going back 
into historic mining districts and remining old abandoned mine sites or 
doing volunteer cleanup work. While this could result in an improved 
environment, companies which are interested are justifiably hesitant to 
incur liability for cleaning up the entire abandoned mine site.
                     b. governors' policy statement
Good Samaritan
    1. The Western Governors believe that there is a need to eliminate 
disincentives to voluntary, cooperative efforts aimed at improving and 
protecting water quality impacted by abandoned or inactive mines.
    2. The Western Governors believe the Clean Water Act should be 
amended to protect a remediating agency from becoming legally 
responsible under section 301(a) and section 402 of the CWA for any 
continuing discharges from the abandoned mine site after completion of 
a cleanup project, provided that there mediating agency--or ``Good 
Samaritan''--does not otherwise have liability for that abandoned or 
inactive mine site and attempts to improve the conditions at the site.
    3. The Western Governors believe that Congress, as a priority, 
should amend the Clean Water Act in a manner that accomplishes the 
goals embodied in the WGA legislative package on Good Samaritan 
cleanups.
Cleanup and Funding
    4. The governors support efforts to accelerate responsible and 
effective abandoned mine waste cleanup including the siting of joint 
waste repositories for cleanup wastes from abandoned mines on private, 
Federal, and State lands. Liability concerns have hampered the siting 
of joint waste repositories leading to the more expensive and less 
environmentally responsible siting of multiple repositories. The 
Governors urge the Bureau of Land Management and the U.S. Forest 
Service to develop policy encouraging the siting of joint waste 
repositories whenever they make economic and environmental sense.
    5. The governors encourage Federal land management agencies such as 
the Bureau of Land Management, Forest Service, and Park Service, as 
well as support agencies like the U.S. Environmental Protection Agency 
and the U.S. Geological Survey to coordinate their abandoned mine 
efforts with State efforts to avoid redundancy and unnecessary 
duplication. Federal and State tax dollars should be focused on working 
cooperatively to secure and clean up abandoned mine sites, not working 
separately to conduct expensive and time consuming inventories, 
research, and mapping efforts.
    6. Other responsible approaches to accelerate abandoned mine 
cleanup should be investigated, including remining.
    7. Reliable sources of funds should be made available for the 
cleanup of abandoned mines in the West.
                    governors' management directive
    1. WGA staff shall transmit a copy of this resolution and the 
proposed WGA legislative package on Good Samaritan cleanups to the 
President, the Secretary of the Interior, Secretary of Agriculture, 
Administrator of the Environmental Protection Agency, and Chairmen of 
the appropriate House and Senate committees.
    2. WGA staff shall work with the mining industry, environmental 
interests, and Federal agency representatives to explore options to 
accelerate abandoned mine cleanup through remining and report back to 
the Governors at the 1999 WGA Annual Meeting.
    3. WGA shall continue to work cooperatively with the National 
Mining Association, Federal agencies, and other interested stakeholders 
to examine other mechanisms to accelerate responsible cleanup and 
securing of abandoned mines.
    The Board of Directors is comprised of the Governors of Alaska, 
American Samoa, Arizona, California, Colorado, Guam, Hawaii, Idaho, 
Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Northern 
Mariana Islands, Oregon, South Dakota, Texas, Utah, Washington and 
Wyoming.
    All policy resolutions are posted on the WGA Web site 
(www.westgov.org) or you may request a copy by writing or calling: 
Western Governors' Association, 600 17th St. Suite 1705 South, Denver, 
CO 80202-5452; Ph: (303) 623-9378; Fax: (303) 534-7309.
                                 ______
                                 
     Responses by William J. Janklow to Additional Questions from 
                        Senators Crapo and Boxer
    Question. Are the regulatory and administrative review processes in 
S. 1787 similar to those of the State of South Dakota under its 
abandoned mine cleanup program?
    Response. The State of South Dakota does not have an abandoned mine 
cleanup program in the formal sense. That is, there are no specific 
regulatory and administrative review processes applicable to abandoned 
mines at the State level that would allow a comparison to be made.
    A number of abandoned mines in the Black Hills have, however, been 
reclaimed. The State has worked with several of our active mine 
operators such as Homestake, Wharf Resources, and others to reclaim 
abandoned mines on lands they control or own. In addition, the state, 
in cooperation with the U.S. Forest Service, the Bureau of Land 
Management, and EPA, are in the process of reclaiming several abandoned 
mine sites on lands managed by the Federal government. Two recent 
examples include the Minnesota Ridge mine near Rochford and the Belle 
Eldridge mine near Deadwood.

    Question 2. The current bill precludes sites from eligibility if 
they would be subject to consideration under the Superfund program. 
Given that many areas are as yet not surveyed, do you believe many 
unsurveyed areas will be viewed as so clearly not a future 
consideration for NPL consideration that the potential Good Samaritan 
will want to step in and take action? Or do you think that the 
considerable uncertainty out there will dissuade potential volunteers 
in all but the least environmentally hazardous sites?
    Response. Under S. 1787 only sites already on or proposed for 
listing on the Superfund National Priorities List (NPL) or sites 
subject to a response under Comprehensive Emergency Response, 
Compensation and Liability Act (CERCLA) are precluded from eligibility 
for cleanup under the bill. Therefore, a Good Samaritan could clean up 
a site under the bill that, at some point in the future, might 
otherwise have been determined to be subject to CERCLA.
    Some Western states concluded that CERCLA was not a barrier to Good 
Samaritan cleanups. Colorado, for example, employed CERCLA's ``on-scene 
coordinator'' provision to get around potential CERCLA liability 
Additionally, the permit authorized by S. 1787 would be considered a 
``federally permitted release'' pursuant to CERCLA's Sec. 107(j), and 
would, therefore, provide liability relief under CERCLA, with one 
potential exception. As pointed out by Chuck Fox of the Environmental 
Protection Agency (EPA) during his testimony, there is a question of 
whether this protection would still exist once the Good Samaritan 
permit is terminated. I support the proposed remedy to this potential 
exception that Senator Crapo and Senator Baucus discussed during the 
interchange with Chuck Fox.
    Additionally, the current language in S. 1787 may be too broad an 
exclusion with regard to CERCLA. The definition of Abandoned or 
Inactive Mined Land, (1)(A)(ii) states ``. . . and that is not the 
subject of a planned or ongoing response or natural resource damages 
action under that Act.'' Thus, ``planned or ongoing'' should be 
deleted.

    Question 3. In establishing a site's eligibility for permits, the 
WGA discussion draft proposal uses the phrase ``having no private owner 
of record at the time the permit plan is submitted and the permit is 
issued,'' whereas S. 1787 makes eligible sites so long as there is no 
identifiable owner or operator. Clearly, this is a different standard. 
How would you interpret this dichotomy?
    Response. The Western Governors' Association's (WGA) proposal did 
not use the phrase ``having no private owner of record . . .''. 
Instead, the WGA proposal included the following relevant definitions:
    (5) Definitions.--In this subsection the following definitions 
apply:
          (A) Remediating party--
                  (i) The term ``remediating party'' means--
                         (I) the United States (on non-Federal lands), 
                        a State or an Indian tribe or officers, 
                        employees, or contractors thereof; and
                         (II) any person acting in cooperation with a 
                        State or Indian tribe. ``Person'' includes a 
                        local government that owns abandoned or 
                        inactive mined lands for the purpose of 
                        conducting remediation of the mined lands or 
                        that is engaging in remediation activities 
                        incidental to the ownership of the lands.
                  (ii) The term ``remediating party'' does not include
                         (I) a Federal agency on Federal lands,
                         (II) any person who prior to issuance of a 
                        permit under this subsection directly benefited 
                        from or directly or indirectly participated in 
                        any mining operation (including exploration) 
                        associated with the abandoned or inactive mined 
                        lands provided that persons shall not be 
                        excluded from participation as a remediating 
                        party if their participation in any mining 
                        operation was solely as (a) a county government 
                        that collected taxes based on the mining 
                        operation, (b) a non-managerial employee of the 
                        mining operation, (c) an independent supplier 
                        who provided goods or services to the mining 
                        operation, or (d) a consultant, such as an 
                        engineering or earthworks firm, whose 
                        participation at a site was limited to 
                        performing professional services for a fee,
                         (III) any person who is, or at any time has 
                        been legally responsible pursuant to Sec. 301 
                        (a) for any discharge of pollutants from the 
                        abandoned or inactive mined lands (except where 
                        any such person's legal responsibility results 
                        solely from conducting remediation activities 
                        that would otherwise qualify for a permit under 
                        this subsection),
                         (IV) any person who owned or controlled a 
                        person identified in clause (II) or (III) 
                        above, is owned or controlled by such person, 
                        or is under common ownership or control with 
                        such person, or,
                         (V) a predecessor or successor in interest to 
                        any person identified in (II), (III), or (IV) 
                        above.

    (B) Abandoned or inactive mined lands.--The term ``abandoned or 
inactive mined lands'' means either lands that were formerly mined for 
non-coal resources and are neither actively mined nor in temporary 
shutdown at the time of submission of the remediation plan and issuance 
of a permit under this subsection, or lands that were formerly mined 
for coal resources and are eligible for reclamation or drainage 
abatement expenditures under Title IV, Section 404, of the Surface 
Mining Control and Reclamation Act, 30 U.S.C. Sec. 1231 et seq.''
    As is apparent from these definitions, the WGA proposal is 
different than S. 1787. The WGA approach to determining eligibility for 
coverage under the Act focuses on whether the prospective remediating 
party has some responsibility for the site. 
S. 1787 addresses eligibility for coverage under the Act based on the 
site itself and whether there is an identifiable operator or owner of 
the site. Both approaches appear to arrive at the same result.

    Question 4. The WGA discussion draft did not include a Federal 
enforcement mechanism. S. 1787 states that issued permits are still 
liable to Section 309 enforcement authority. Why did the governors 
exclude this provision from their proposal?
    Response. The WGA draft amendment did include Sec. 309 enforcement 
under (4)(A) of the proposal:
          ``(iii) require that if, at any time after notice to the 
        remediating party and opportunity for comment by the 
        remediating party, the Administrator determines that the 
        remediating party is not implementing the approved remediation 
        plan in substantial compliance with its terms, the 
        Administrator shall notify the remediating party of the 
        determination together with a list specifying the concerns of 
        the Administrator;
          (iv) provide that, if the identified concerns are not 
        resolved or a compliance plan submitted within 90 days of the 
        date of the notification, the Administrator may take action 
        under section 309 of this Act;
          (v) provide that clauses (iii) and (iv) not apply in the case 
        of any action under section 309 to address violations involving 
        gross negligence (including reckless, willful, or wanton 
        misconduct) or intentional misconduct by the remediating party 
        or any other person;''

    Question 4a. The WGA discussion draft did not include a limitation 
under the permit process that exists in S. 1787. Do you think this will 
reduce the number of abandoned mine sites that will be cleaned up under 
the legislation?
    Response. Assuming the limitation you refer to is that the Act only 
allows ``remediating parties'' to be governmental agencies, the states 
concluded in drafting their proposal that ``remediating parties'' 
should not be limited solely to governmental entities. There are many 
other persons likely willing to contribute to Good Samaritan cleanup 
initiatives. However, the WGA proposed definition was broadly intended 
to exclude both (1) those with prior involvement at the abandoned or 
inactive mine site and (2) those with current or prior legal 
responsibility for discharges at a site. The proposal also assured that 
any non-remediation-related development at a site be subject to the 
normal National Pollutant Discharge Elimination System (NPDES) rules, 
rather than the Good Samaritan provision.
    The National Mining Association opposed the language in the WGA 
proposal based primarily on the use of the concepts of ``ownership and 
control.'' At their request, and with WGA concurrence, Senator Baucus 
limited S. 1787 to governmental entities. At the time, representatives 
of the National Mining Association argued that they would still be able 
to participate under the bill as contractors to the ``remediating 
parties.'' The states believe that it is fundamentally important that 
mining companies be able to act as third party contractors and agree 
that language should be added to S. 1787 to ensure that third party 
contractors are exempt from liability. The following amendment to that 
end is suggested:

          Revise (6)(B) to read: ``If a permit is terminated under 
        subparagraph (A), the remediating party, INCLUDING ITS AGENTS 
        AND CONTRACTORS FOR IMPLEMENTATION OF THE REMEDIATION PLAN, 
        EXCEPT AS PROVIDED IN PARAGRAPH (7), shall not be subject to 
        enforcement . . .''

    Question 4b. Furthermore, the limitation limits remediating 
parties-owners to those who have purchased the land ``for the express 
purpose of remediating pollutant discharges related to past mining 
activities at the land to improve water quality.'' Are there any other 
legitimate reason for a potential Good Samaritan to acquire an 
abandoned mine site on which that party intends to remediate?
    Response. There are cases in California in which the State 
purchased abandoned mines with the express purpose of cleaning up the 
mine. The State had no responsibility in creating the discharges on 
those lands. S. 1787 would allow California to act as a Good Samaritan 
on those lands. There are other reasons why a potential Good Samaritan 
might have acquired an abandoned mine site where it intends to 
remediate but the reasons are too diverse to specify in the bill. An 
example might include land acquired for a purpose that was specific to 
the site but unrelated to the presence or absence of the mine. For 
example, a municipal entity might purchase a site containing an 
abandoned mine for a park due to its unique location.

    Question 5. How many states have completed surveys of abandoned or 
inactive mine sites within their borders? Until such activities are 
completed, how will states be able to determine the water quality 
impacts, ownership, and priority needs of sites?
    Response. All of the states and reservations in which coal is mined 
(and are therefore eligible for Federal funds under Surface Mining 
Control and Reclamation Act (SMCRA) to develop inventories of and clean 
up abandoned coal mines) have completed inventories of all abandoned 
mines (coal and hard-rock). Major hard-rock mining states not eligible 
for SMCRA funds include Arizona, California, Idaho, Nevada, and South 
Dakota. However, all of these non-SMCRA states have, or are currently 
developing, inventories of abandoned mines which are funded by other 
sources.
    For example, South Dakota recently completed an inventory of 
abandoned hard-rock mines in the Black Hills of western South Dakota in 
conjunction with the South Dakota School of Mines and Technology. 
Approximately 900 mines were identified in a four-county area (about 
700 on private land and about 200 on Federal land). The inventory 
purpose was primarily to identify abandoned mine locations, so little 
or no site- specific assessment work was completed for many of the 
mines identified. Many of these historic mines pose significant safety 
hazards, and some pose environmental problems, including impacts to 
water quality.
    However, each State knows where the abandoned mine sites are in its 
State that are causing significant water quality impairment. That is 
because they collect water quality data under the Clean Water Act. It 
is this data, supplemented by site surveys and onsite water quality 
sampling, that would identify the priority sites for cleanup.
    The Bureau of Land Management, U.S. Forest Service, and the Park 
Service maintain separate inventories of abandoned mine sites on lands 
they manage. In 1990, WGA published the first comprehensive nationwide 
assessment of the hard-rock abandoned mine problem in the United States 
The report included Federal, State, and private lands. WGA published a 
follow up to that report in 1998, which documented the number of sites 
reclaimed in each State in addition to updated data from the earlier 
report on the number of sites in each state. Both of those reports 
called for a Good Samaritan exemption to the Clean Water Act to help 
stimulate cleanup.

    Question 6. Should it be the responsibility of the potential Good 
Samaritan or the regulatory agency to undertake extensive chain-of-
ownership searches for particular sites as called for in the bill?
    Response. During development of the WGA proposal, concern was 
raised that a Good Samaritan cleanup could commence without first 
trying to identify whether parties with liability for the site still 
exist. Consequently, states added a provision that the Good Samaritan 
``remediation plan'' include a summary of the results of a ``reasonable 
effort'' to identify parties whose past activities have affected 
discharges at the site. The language in S. 1787 is consistent with the 
WGA proposal.
    States do not support requiring the Good Samaritan to conduct 
``extensive'' searches such as those that are conducted under CERCLA to 
identify potentially responsible parties, and it may be important to 
clarify what is intended by ``reasonable effort.''

    Question 7. Given that most states are still undertaking surveys of 
abandoned and inactive mines, is the requirement that potential Good 
Samaritans undertake title searches and assessments of environmental 
impacts of sites actually an unfunded mandate on others?
    Response. As ``reasonable effort'' is defined, S. 1787 should not 
place an overly onerous burden on Good Samaritans such that an unfunded 
mandate is created. Additionally, it is important to realize that Good 
Samaritan cleanups are entirely voluntary. The concern raised in your 
question is appreciated, and I would like to work with you to ensure 
that no such unfunded mandate is indeed inadvertently created.

    Question 8. The testimony of David Gerard highlights a U.S. Forest 
Service Inspector General Report that observes that all Federal lands 
would be excluded from Good Samaritan remediation. Is this situation a 
problem for downstream interests?
    Response. There may be some disagreement over Mr. Gerard's 
testimony that indicated all Federal lands would be excluded. The 
exclusion applies to cleanups by Federal agencies on Federal land, 
which recognizes the commitment by those agencies to do complete 
cleanups of sites on lands they manage. There may be cases where a Good 
Samaritan is willing to conduct cleanups on Federal land, for example 
at mixed ownership sites.

    Question 9. What would you anticipate the impact to be of creating 
a public notice and public hearing option for modifications of every 
application?
    Response. Requirements for public notice and public hearings for 
permit modifications should be appropriate to the permit modifications, 
i.e., minor modifications should require minimal notification. There 
needs to be sufficient flexibility to change or modify a plan in a 
timely manner so that cleanup can continue expeditiously.

    Question 10. Is it appropriate for Good Samaritans to be subject to 
citizen suits under this legislation since they are not, in fact, 
responsible for the pollution?
    Response. Citizen suit authority under S. 1787 is limited to 
enforcement of the terms of the permit and is not available after 
termination of the permit. This is consistent with the WGA proposal and 
is also consistent with other Sec. 402 NPDES permits. An earlier 
version of the WGA proposal excluded the permits from the citizen 
suits, but environmental groups expressed strong objection. WGA would 
probably not be averse to excluding citizen suit provisions from the 
Act.

    Question 11. If a State determines that it will want to become a 
Good Samaritan for a site situated on land it does not own, do you 
envision that it will need to expend resources or time to identify 
another government agency to work through? Is this the most efficient 
use of money or time?
    Response. It is very possible that states will want to clean up 
lands that they do not own. In such cases, coordination with other 
appropriate entities would be necessary and warranted. This does not 
appear to be a waste of resources and is consistent with WGA's Enlibra 
principles.

    Question 12. Because so many sites in western states are found in 
areas of mixed ownership-sites where ownership by Federal, state, and 
private lands intermingle--do you believe that the preclusion in this 
bill for cleaning up one's own property would require separate permits 
for each element of a mixed ownership site? Or do you believe that the 
regulatory requirements in S. 1787 would discourage potential Good 
Samaritans from approaching such confusing mixed ownership sites?
    Response. If S. 1787 is amended to allow private entities to become 
Good Samaritans, the regulatory requirements in the bill may very well 
discourage potential Good Samaritans who own portions of a mixed site 
from becoming a Good Samaritan for that particular site.

    Question 13. Your written testimony suggests that ``some variation 
on the current proposal (S. 1787)'' needs to be adopted soon. Would the 
WGA support modifications to the bill to expand the definition of 
remediating parties and to eliminate more of the disincentives that 
exist under current law?
    Response. WGA's proposal allowed for private entities to be Good 
Samaritans with the conditions discussed in my answer to question 4a. 
WGA has maintained its support for broad inclusiveness given that those 
conditions are met. At the same time, WGA's priority is for legislation 
to be enacted as soon as possible that will allow states to begin 
cleanups. WGA attempted for a number of years to find a compromise 
between the mining interests, EPA, and the environmental interests 
regarding the scope of the definition of ``remediating party,'' but was 
ultimately unsuccessful.
                               __________
    Statement of J. Charles Fox, Assistant Administrator for Water, 
                  U.S. Environmental Protection Agency
                              introduction
    Good morning Mr. Chairman and members of the committee. I am Chuck 
Fox, Assistant Administrator for Water at the U.S. Environmental 
Protection Agency (EPA).
    I look forward to talking with you this morning about the Nation's 
clean water program and, more specifically, to support the ``Good 
Samaritan Abandoned or Inactive Mine Waste Remediation Act'' (S. 1787) 
introduced by Senator Baucus and others. This legislation will promote 
efforts to mitigate the effects of pollutants discharged from abandoned 
or inactive mines into the Nation's streams, rivers and lakes.
                               background
    Despite the great progress that has been made in improving the 
Nation's water quality since the passage of the Federal Water Pollution 
Control Act in 1972, serious water quality problems persist.
    States reported in 1998 that 35 percent of the rivers and streams 
they assessed do not meet clean water goals and another 10 percent of 
waters are threatened. In the case of lakes and ponds, 45 percent of 
these waters do not meet water quality goals and 9 percent are 
threatened. And, 44 percent of the coastal and estuarine waters that 
States assessed do not meet their clean water goals and 9 percent are 
threatened. In the Great Lakes, fully 96 percent of the shoreline miles 
assessed do not meet clean water goals. Based on this data, the States 
indicate that over 20,000 waterbodies are polluted and need the focused 
attention in order to recover.
    In the western States, one of the more serious threats to this 
Nation's water quality is pollution contributed by thousands of 
abandoned or inactive mines. Mining has a significant economic benefit 
to the west, but many of these former mine sites left an unfortunate 
legacy of water pollution or the threat of water pollution.
    Exact figures are not available due to the magnitude of historical, 
small-scale mining activities and the age of many of these abandoned 
mines, but estimates place the total number of abandoned mine sites at 
200,000 to 500,000 for the entire country. An independent assessment by 
the Western Governor's Association places the total at more than 
400,000 in the west alone. Most of these sites are classified as 
``hardrock'' mines that were developed to extract a wide variety of 
metal-bearing ores. Further complicating the problem is the fact that 
the majority of these sites were mined and abandoned prior to the 
enactment of modern environmental regulations in the 1970's.
    Estimates of the magnitude of the environmental impacts occurring 
as a result of historical hardrock mining activities in the western 
States vary significantly. Not all of these mine sites pose serious 
threats to human health and the environment. The Western Governors 
Association estimates that as many as 80 percent of the sites may not 
pose environmental or immediate public safety concerns. However, many 
mine sites do create significant environmental and public health 
hazards--anywhere from 40,000 to 100,000 sites, based upon the previous 
figures cited.
             regulatory authority--abandoned/inactive mines
    EPA has no single, comprehensive statutory authority to regulate 
mining and oversee development of environmental performance standards 
and financial assurances at individual mines. EPA does, however, have 
statutory authorities to help reduce potential environmental problems 
at individual mines and has used these authorities to prevent and 
remediate pollution at a number of mine sites. EPA also has used 
administrative statutes, such as the National Environmental Policy Act 
(NEPA), to try to introduce pollution prevention measures during the 
mine site selection and evaluation phase for new mines.
    EPA uses a number of statutory authorities including the Clean Air 
Act (CAA), Clean Water Act (CWA), the Resources Conservation and 
Recovery Act (RCRA), and the Comprehensive Environmental Response, 
Compensation and Recovery Act (CERCLA)--more commonly referred to as 
the ``Superfund''--to regulate and remediate hardrock mining 
activities.
    RCRA and CERCLA authorities have only been used for the highest 
priority sites posing the greatest threats to public health and safety.
    A number of sections in the CWA have a direct bearing on regulating 
both active and remediation activities at abandoned mines. Section 301 
prohibits discharges of any pollutant without a permit. Section 402, 
which authorizes the National Pollution Discharge Elimination System 
(NPDES) that requires permits for all discharges into waters of the 
United States, is the most comprehensive and commonly used authority to 
regulate all types of mining-related activities. The majority of active 
mines have CWA discharge permits and many of these permits implement 
national technology-based effluent limitations developed under section 
301 and 304 of the CWA. Section 309 provides very broad enforcement 
authority that includes issuing administrative penalty orders and 
assessing penalties.
    Closely related to provisions in Section 402 are certain provisions 
in Section 303(d) that require States to identify water bodies that 
exceed the prescribed water quality criteria and that the State develop 
a total maximum daily load (TMDL) limitation on pollutants being 
discharged into these water quality-limited bodies of water.
    Section 504 of the Act, which provides the Administrator with 
emergency powers to correct all activities that constitute an 
``imminent and substantial endangerment to public health and welfare,'' 
and Section 505, which permits citizen suits against polluters, also 
come into play in the overall regulatory scheme.
    Unfortunately, there are limitations under the CWA that often 
hamper remediation and restoration activities at abandoned mine sites. 
In particular, the permitting requirements under Section 402 of the CWA 
require that the permittee meet all of the requirements and effluent 
discharge limits set out in their discharge permit. These discharge 
limits include water quality standards that have been established for 
the body of water into which the treated effluent is discharged. In 
addition, these requirements mean anyone conducting reclamation or 
remediation at an abandoned mine site may become liable for any 
continuing discharges from that site.
                  proposed good samaritan legislation
    S. 1787 would encourage remediation activities for abandoned mine 
sites where no action would be taken otherwise because of potential 
liability and costs under the CWA. The Administration generally 
supports the bill and would like the opportunity to work with the 
sponsors of the bill and members of this committee to improve the bill 
in several respects.
    EPA supports the major provisions of the bill including the 
following critical elements:
    (1) the ``Good Samaritan'' acting as the remediating party can not 
have a historical or existing responsibility for the mine site; (2) 
sites are only subject to the bill's coverage if there is not an 
identifiable owner or operator of the mine that can clean up the site; 
(3) the permitting authority rests exclusively with EPA, ensuring 
consistency in application of this innovative approach to environmental 
regulation under the Act (4) a permit may only be issued where it is 
demonstrated, with reasonable certainty, that improvement in water 
quality will take place to the maximum extent practicable taking into 
consideration the resources available to the remediating party; (5) 
public participation in the permit issuance and modification process is 
ensured; (6) the permit is in force until either the site clean up is 
completed, the discharges are subject to a separate development permit, 
or the site is left in a condition that at least meets the baseline 
conditions prior to remediation efforts; (7) the bill provides for 
Federal enforcement of permit conditions, and preserves existing 
authorities over violations that occurred prior to issuance of the 
remediation permit; and (8) the use or sale associated with any mining 
conducted as part of the project is restricted to supporting 
remediation activities.
    EPA would like to work with the committee to address several 
issues.
    The first issue concerns the provision in the bill under section 
(2)(C) that ``The Administrator shall not delegate the authority under 
subparagraph (A) . . .'' to issue a permit. This prescriptive language 
would require that the Administrator personally be the authorizing 
official for each ``Good Samaritan'' permit. This provision should be 
amended to enable delegation of permit issuance authority to the 
Assistant Administrator for Water or Regional Administrators as the 
Administrator determines appropriate.
    The second issue concerns the timeframe for issuing amended 
regulations to address the provisions of the new section 402(q) created 
by the bill. Section (9)(A) of the bill language states that EPA shall 
have ``. . . not later than 1 year after the date of enactment of this 
subsection . . .'' to issue appropriate regulations. The language goes 
on further to State that these regulations should be developed ``. . . 
in consultation with State, tribal and local officials and after 
providing for public notice.'' Given the requirements for consultation 
with such a large number of potentially interested parties, EPA will 
need not less than 3 years to finalize appropriate regulations after 
the bill becomes law.
    Third, the Administration questions the provision of the bill that 
would make State grant funds for reducing nonpoint pollution under 
section 319 of the CWA available to pay for implementing controls over 
point source discharges of pollution from abandoned mine sites.
    Fourth, the current bill language does not consider providing 
``Good Samaritans'' with relief from ocean discharge criteria 
established under section 403(c) of the Clean Water Act. In the 
proposed legislation, S 1787 allows the Administrator to issue a permit 
to a ``Good Samaritan'' . . . [all the substantive and procedural 
safeguards] . . ., without compliance with other provisions of section 
301, 302 and 402. As you are aware, NPDES permits for discharges to the 
territorial seas also require compliance with the provisions of section 
403(c) of the CWA. To improve the usefulness of this provision, it may 
be necessary to add language allowing the ``Good Samaritan'' to also be 
exempted from provisions of 403(c).
    Finally, the bill provides that the permittee may request a 
modification of a permit. EPA suggests that the Administrator should be 
allowed to initiate a modification of the permit as needed. The bill 
should also provide authority for the Administrator to terminate the 
permit where appropriate. The Administration may provide additional 
comments.
                               conclusion
    In closing, I do want to take a minute to commend the Western 
Governor's Association (WGA) for the work that it has done over the 
past 5 years in both identifying issues and developing much of the 
background data that provided the foundation for the bill. WGA worked 
closely with a variety of stakeholders, such as industry, EPA and other 
Federal agencies and the States, to develop a strong foundation for 
this bill and to try to include as many perspectives on the proposed 
approach to remediation of abandoned mines.
    The ``Good Samaritan'' bill has much to offer in addressing and 
correcting the environmental insults arising from abandoned mine sites. 
The Administration is ready and willing to work with the committee, the 
States, other Federal agencies, the WGA and any other interested 
parties to help assure the environmental remediation of abandoned mine 
sites.
    Thank you, Mr. Chairman. I will be happy to answer any questions 
from the committee members.
                               __________
     Statement of Kate Kelly, Administrator, Waste Management and 
    Remediation Division, Idaho Department of Environmental Quality
                              introduction
    Inactive mine sites pose a significant threat to public safety and 
water quality in the western states and in the State of Idaho in 
particular. The ability to respond to these threats is severely 
restricted in cases where a mine is ``abandoned'' because there is no 
identifiable or economically viable operator responsible for cleanup. 
Where a government agency chooses to step in and take actions to 
respond to threats from such abandoned mines, the requirements of the 
Clean Water Act and the Superfund process pose a disincentive.
    The State of Idaho commends Congress for considering legislation to 
encourage Good Samaritan cleanups of abandoned and inactive mines. At 
the same time, it is our view that S. 1787 contains a number of serious 
problems and subtle but significant flaws. Most important to the State 
of Idaho, the Bill undermines the authority of States to control mine 
site remediations and water quality within their borders. Further, the 
usefulness of the Clean Water Act waiver created by this Bill is 
significantly undermined by its conditioned treatment of landowners, 
its failure to acknowledge the scope of potential CERCLA and RCRA 
liability which exists with regard to the owners of inactive mining 
sites, and its inexplicable exclusion of federal lands. The exclusion 
of sites subject to CERCLA actions is also unnecessarily broad. For 
these reasons, we are doubtful that this ``incentive'' would ever be 
used in Idaho to conduct an abandoned mine cleanup. The problems we 
have identified are described in detail below.
        the permit program has no provision for state delegation
    S.1787 amends the Clean Water Act to allow the U.S. Environmental 
Protection Agency (EPA) the discretion to issue a permit for 
remediation activities at abandoned mine sites. Although there is 
language requiring ``concurrence'' of the applicable State or Tribe, 33 
U.S.C. 1342 Sec. (q)(2)(A), the discretion to issue a permit and 
determine the terms and conditions of the permit, rests solely with EPA 
and is expressly forbidden from being delegated to the States. 33 
U.S.C. 1342 Sec. (q)(2)(C). Enforcement of the permit is also placed 
within EPA's authority. 33 U.S.C. 1342 Sec. (q)(2)(B), as is the 
promulgation of regulations to implement the legislation. 33 U.S.C. 
1342 Sec. (q)(9).
    The vesting of permitting authority in EPA is additionally 
problematic for the State of Idaho given that the Bill is vague about 
the standard to be used by EPA in issuing the permits. S. 1787 requires 
the remediation plan to ``reduce, control, mitigate, or eliminate the 
adverse water quality impacts'' of the mine, 33 U.S.C. 1342 
Sec. (q)(3)(B)(viii), and ``result in a water quality improvement for 
the identified waters.'' 33 U.S.C. 1342 Sec. (q)(3)(B)(ix). There is no 
definition for these terms in the Bill or elsewhere in the existing 
Clean Water Act language. It is clear, however, that by waiving 
compliance with section 301 of the statute, EPA can allow a discharge 
that does not meet State Water Quality Standards and that such decision 
is vested solely in the discretion of EPA. 33 U.S.C. 1342 
Sec. (q)(4)(C). At the same time, however, the Bill provides that 
nothing in its language ``limits any obligation of a State or Indian 
Tribe under section 303'' of the Clean Water Act which sets out the 
States' authorities and obligations to adopt water quality standards 
and do Total Daily Maximum Loads. Similarly, the Bill is silent as to 
whether States retain the right to certify the discharge under section 
401 of the Clean Water Act.
    The State of Idaho has concerns about S. 1787's vesting of broad 
permitting authority in the federal EPA. The Bill fails to acknowledge 
the significant State authorities and obligations created elsewhere in 
the Clean Water Act. The precedent of unilateral federal authority in 
this area is not only untenable, it is inconsistent with sound public 
policy favoring local control.
the incentive provided by the bill does not acknowledge land ownership 
                        patterns in mining areas
    Land ownership patterns in mining areas in the West create 
tremendous problems in conducting the remediation of inactive mine 
sites. The areas impacted by a single mine operation can frequently 
include a complex mixture of state, federal and private land ownership 
and interests. Ownership issues are compounded by severed mineral and 
surface ownership, participation of governmental land management 
agencies in approving and sometimes encouraging certain practices, and 
questions about tribal reservations. Under CERCLA, passive landowners 
may be liable for cleanup even if they had nothing actively to do with 
causing the problem. This, of course, has significant implications for 
federal and state land management agencies as well as local governments 
which own property.
    The incentives created by S. 1787 are expressly limited to sites 
``for which there is no identifiable owner or operator for the mine or 
mine facilities.'' 33 U.S.C. 1342 Sec. (q)(1)(A)(iii). Yet 
``identifiable owner or operator'' is limited to a person ``that is 
responsible for the activities . . . that created conditions that cause 
or contribute to the discharge of pollutants from the'' land. 33 U.S.C. 
1342 Sec. (q)(1)(B)(I). In this way, the Bill appears to be considering 
``abandoned'' to be a site with no viable operator to conduct the 
cleanup regardless of landownership or the potential liabilities of the 
landowner created in other applicable authorities. Yet the 
``remediating parties'' eligible to obtain the permits allowed by the 
Bill exclude the United States where the ``abandoned mined land is 
located on Federal land,'' 33 U.S.C. 1342 Sec. (q)(1)(D).
    The usefulness of the Clean Water Act waiver created by this Bill 
is significantly undermined by its conditioned treatment of landowners, 
its failure to acknowledge the broad (and well litigated) scope of 
potential CERCLA liability which exists with regard to the owners of 
inactive mining sites, and its exclusion of federal agencies acting on 
federal lands. The last thing that will encourage the cleanup of 
contaminated sites in this country is another system of identifying 
responsible parties; confusion and litigation over that very issue has 
held up more cleanups in this country than any Clean Water Act 
requirements.
    the bill adds process on top of process, bureaucracy on top of 
                              bureaucracy
    Whether implemented by government or private interests, remedial 
programs designed to respond to the impacts of inactive mines must 
overcome significant financial and technical hurdles. But the 
regulatory and procedural hurdles facing such projects are onerous as 
well. The process and regulations--at times--have no connection to a 
beneficial health or ecological outcome. This Bill inserts a totally 
new permitting application and review process into a scenario that is 
already crowded with such processes. While the Bill may provide some 
incentive in waiving certain Clean Water Act requirements (but see 
discussion above), the detailed content it requires for a remediation 
permit application creates a whole new layer of process and burdens. 
Equally problematic is the fact that nowhere does the Bill reference or 
acknowledge--or provide any protection or relief from--existing CERCLA 
and RCRA authorities and liabilities which potentially apply to the 
remediation projects envisioned by the Bill. It is well known that 
those statutes establish procedural systems comprehensible only to the 
experts. Do we really need to add more procedures without adding any 
relief from those that already exist? Combined with the seemingly 
unconditioned authority vested in the EPA, this omission greatly 
detracts from any appeal the Bill might have for States or other 
agencies considering cleanups of abandoned mine lands. Further, the 
requirement that to be eligible for a permit sites be the subject of a 
``planned or ongoing'' CERCLA action, 33 U.S.C. 1342 Sec. (q)(1)(A)(ii) 
eliminates many, many sites from consideration based on procedure 
rather than environmental good sense, erodes the State voice in the 
process, and vests tremendous discretion in EPA superfund programs 
based on whether they choose to ``plan'' a response action at a site.
                           absence of funding
    In addition to liability, another major hurdle to abandoned mine 
cleanups is money. Unlike abandoned coal mines, however, there is no 
single dedicated source of federal funds to cleanup abandoned hardrock 
sites. At all levels, limited financial resources severely limit the 
amount of environmental and safety work that can be accomplished. State 
land management agencies have access to only small or irregular funding 
from legislative appropriations or funds dedicated to mine cleanups, 
making comprehensive programmatic cleanups difficult. On the federal 
level things are not much better, although in recent years, the Bureau 
of Land Management and Forest Service have received significant 
increases in their appropriations for abandoned mine work. Where 
possible, the mining industry as a whole has contributed money to help 
solve the problem. In the absence of viable operators or owners, 
cleanup funding must be pieced together. The funds available have been 
spent on some high priority work. S. 1787 states that cleanups 
conducted under its provisions are eligible for section 319 grants. 33 
U.S.C. 1342 Sec. (q)(10). That option already exists, and has not 
proved to be a dramatic incentive to cleanups. If Congress' goal is to 
provide incentives for abandoned mine cleanup, the funding question 
needs to be addressed, and a Good Samaritan statute would be an 
appropriate mechanism to do so.
                               conclusion
    The State of Idaho is supportive of the intent behind Good 
Samaritan proposals in attempting to eliminate disincentives for 
abandoned mine cleanups. Where a government agency chooses to step in 
and take actions to respond to threats from such abandoned mines, S. 
1787 correctly identifies that the requirements of the Clean Water Act 
pose a disincentive. At the same time, we have grave concerns about the 
fact that the Bill fails to acknowledge the significant State 
authorities and obligations created elsewhere in the Clean Water Act 
and other environmental laws. There is simply no precedent or 
justification for unilateral federal authority in this area. Further, 
the usefulness of the Clean Water Act waiver created by this Bill is 
significantly undermined by its conditioned treatment of landowners, 
its failure to acknowledge the scope of potential CERCLA and RCRA 
liability which exists with regard to the owners of inactive mining 
sites, its failure to identify funding, and its inexplicable exclusion 
of federal lands. Also, the exclusion of sites subject to CERCLA 
actions is unnecessarily broad. In sum, while supportive of the intent 
of this legislation, the State of Idaho is doubtful that in its current 
form S. 1787 would ever be used by the State of Idaho or any other 
agency in Idaho to facilitate the cleanup of an abandoned mine site.
                                 ______
                                 
   Responses by Kate Kelly to Additional Questions from Senator Crapo
    Question 1. Should states or the EPA primarily establish water 
quality goals for waters within their borders? Is this bill consistent 
with that principle?
    Response. Water quality is and should remain primarily a State 
issue. Many states have primacy under the Clean Water Act and/or have 
State laws establishing water quality standards. States establish 
numeric and narrative standards for many contaminants such as fine 
sediment and metals, and certify that operating permits such as 
National Pollution Discharge Elimination System and Dredge and Fill 
permits are consistent with and protective of the state's standards. It 
is inconsistent to allow the potential for EPA to establish another set 
of criteria for water quality in a permit issued under this bill.

    Question 2. Do you believe that the water quality cleanup standards 
called for in this measure are clear or measurable?
    Response. No. S. 1787 provides EPA with discretionary authorities 
to establish cleanup standards which will result in ``improvement in 
water quality to the maximum extent practical.'' This term is not 
defined in the bill, and is impracticably vague. S. 1787 does not 
contain clear provisions for water quality cleanup standards that Idaho 
can compare with our own water quality standards.

    Question 3. Do you believe that any new good samaritans will 
undertake cleanups at sites under this proposal? Or do you believe that 
only already-acting parties will be interested in pursuing further 
liability protections afforded under S. 1787?
    Response. There is no question that State and Federal agencies will 
continue to try to find creative ways to clean up inactive and 
abandoned mine sites. It is doubtful, however, that the provisions of 
the bill will see much use by good samaritans who would not already act 
under the existing structure. The reasons for this are simple. S. 1787 
creates a complex process for navigating through already complex issues 
at inactive and abandoned mine sites. Also, S. 1787 does not address 
liabilities associated with CERCLA which, along with Clean Water Act 
requirements, are a major deterrent to good samaritan clean ups.

    Question 4. Do you believe that the eligibility for Section 319 
grants incentive provided by S. 1787 would be enough incentive for new 
potential good Samaritans?
    Response. No. States have many more projects proposed for 319 
grants than can ever be awarded. In Idaho, as in many states, those 
projects are focused on implementation plans for Total Maximum Daily 
Loads (TMDLs). These plans will take 10 to 20 years to implement 
statewide. A judicial ruling dictates that the TMDLs and their 
respective implementation plans must proceed. It is unlikely that 
``Good Samaritan'' cleanup activities would rank against the TMDLs for 
grant awards even if states wanted to divert the limited 319 funds 
available.

    Question 5. What problems do you envision would be created by this 
bill's lack of RCRA and Superfund liability waivers?
    Response. This omission will greatly detract from the usefulness of 
the bill and will leave in place another major deterrent to good 
samaritan cleanups.

    Question 6. If a State wants to effect a cleanup on its own lands, 
under this bill, that State would have to contract through another 
level of government for the permit. Do you consider this bureaucratic 
regulatory burden to be a significant disincentive for potential good 
samaritians? Is this the most efficient use of limited State resources?
    Response. States like Idaho will continue to develop comprehensive 
strategies and plans for systematically cleaning up inactive and 
abandoned mine sites. This bill replaces one burdensome permitting 
process (Clean Water Act) with another (Remediation Permit), without 
any apparent additional incentive. Moreover, the permit program created 
under the bill is administered solely by EPA; this fact creates a 
significant disincentive, and would delay cleanup plan development and 
implementation. The permitting structure created by the statute would 
not be a prudent place to dedicate the limited resources available to 
states.

    Question 7. Do you believe the conditions under which a permit 
could be terminated under this bill are correct?
    Response. The termination clause of S. 1787 invests considerable 
discretion in EPA to potentially terminate permits that would otherwise 
be relied on by the remediating party. This is another disincentive to 
using the provisions of the bill. Not only should the bill more 
narrowly restrict the conditions under which a permit can be 
terminated, S. 1787 should also conditionally provide for release of 
``Good Samaritans'' from liabilities under the Clean Water Act, RCRA 
and CERCLA.

    Question 8. Does S. 1787's threshold of cleanups to the ``maximum 
extent practicable'' provide appropriate standards or would it preclude 
marginal, but significant environmental improvements? Should potential 
good samaritans be excluded from consideration because they would not 
be able to accomplish small improvements to the environment?
    Response. The ``maximum extent practicable'' terminology is far too 
vague for interpretation or practical application. This language should 
be replaced by more familiar discussion of cleanup performance goals 
and measures established for each site by stakeholder groups (including 
but not limited to State and Federal land management agencies, and the 
public). Partial cleanups or closures would be much more likely to 
occur under this type of standard. So long as their activities improve 
the situation, potential good samaritans should not be discouraged from 
performing partial cleanups.

    Question 9. How many additional site cleanups do you expect the 
State of Idaho to undertake as a result of the enactment of this 
legislation?
    Response. None. The narrow application, disincentives and legal 
implications inherent in this bill effectively eliminate its potential 
usefulness to the State of Idaho.
                               __________
Statement of William B. Goodhard, Director, Reclamation & Environmental 
     Affairs, on Behalf of Echo Bay Mines and the National Mining 
                              Association
                              introduction
    Chairman Crapo, Senator Baucus my name is Bill Goodhard and I 
appear here today on behalf of Echo Bay Mines where I am the Director 
of Reclamation and Environmental Affairs. I also appear at the request 
of the National Mining Association. My comments today are based upon my 
24 years experience in the minerals industry.
    During my career in the industry I have worked as an exploration 
geologist, mine geologist, technical assistant to milling, mill 
superintendent, chief geologist, mine superintendent, superintendent of 
technical services, resident manager, project manager and director of 
reclamation and environmental affairs. For the last 12 years 
responsibilities have included mine reclamation and mine closure. I 
have designed or supervised reclamation and mine closure budgeting, 
negotiation and work. The work has been at four underground mines, two 
open pit mines and one developmental project located in the western 
United States and Canada. The work has included negotiating and working 
with local, State and Federal agencies as well as with a watershed 
stakeholder group. I appreciate the opportunity to share my thoughts on 
the ``abandoned and Inactive Mine Waste Remediation Act,'' S. 1787.
                            general comments
    First I would like to thank Senator Baucus, his colleagues and co-
sponsors, Senators Daschle, Campbell, and Reid for advancing the debate 
on Good Samaritan issues with the introduction of the ``Abandoned and 
Inactive Mine Waste Remediation Act, S. 1787. I also thank Senator 
Crapo for today's hearing, and for providing an opportunity to hear 
from the mining industry on an issue that the industry considers very 
important. The very fact that we are here today at this hearing speaks 
to the high level of importance that the U.S. Senate and numerous 
stakeholders have placed in solving this problem.
    Unfortunately, as currently drafted, the liability relief in S. 
1787 is illusory because it does not include the two groups of 
remediating parties that must play a significant role if we are to 
solve the abandoned mine cleanup problem. The two parties I am 
referring to are the Federal land management agencies (e.g., the U.S. 
Bureau of Land Management, the U.S. Forest Service, and the National 
Park Service) on whose land most abandoned mines are located, and the 
private sector who has demonstrated both the willingness and the 
capability to reclaim abandoned mine land (AML) sites.
    Like the Senators here today, the National Academy of Sciences/
National Research Council (NAS/NRC) also recognizes the need to enact 
Good Samaritan liability relief if we are to solve the AML cleanup 
problem. A recently published NAS/NRC study on hardrock mining entitled 
``Hardrock Mining on Federal Lands \1\ 
discusses the existing legal and regulatory impediments thwarting 
private-sector cleanup of AMLs and stresses the importance of enacting 
legislation to facilitate and promote AML cleanup. The NAS/NRC prepared 
this 249-page study'' (the Study) in response to a Congressional 
directive to review existing rules for mining and to determine how well 
these rules protect the environment. The Study findings regarding AML 
cleanup include the following:

    \1\ Hardrock Mining on Federal Lands, National Research Council/
National Academy of Sciences, 1999.

          Recommendation 7: Existing environmental laws and regulations 
        should be modified to allow and promote the cleanup of 
        abandoned mine sites in or adjacent to new mine areas without 
        causing mine operators to incur additional environmental 
        liabilities. \2\
---------------------------------------------------------------------------
    \2\ NRC/NAS Study, page 104.
---------------------------------------------------------------------------
          Implementation: To promote voluntary cleanup programs at 
        abandoned mine sites, Congress needs to approve changes to the 
        Clean Water Act and the CERCLA legislation to minimize company 
        liabilities. \3\

    \3\ NRC/NAS Study, page 106.

    These NAS/NRC findings are particularly noteworthy given the fact 
that Congress did not specifically ask the NAS/NRC to examine the AML 
issue. However, the evidence gathered during the course of the NAS/
NRC's research efforts was so compelling, that this recommendation was 
included in the Study. The NAS/NRC comments on the AML issue underscore 
the importance of our discussion here today and point to the need to 
enact meaningful liability relief as quickly as possible. I would like 
to devote the rest of my testimony to describing how the current bill 
will not achieve the goal of solving the liability problem and offer 
suggestions to address the shortcomings in S. 1787.
    The assertion that significant progress could be made toward 
solving the AML problem if the private sector were granted Good 
Samaritan liability relief is not conjectural. The private sector has 
already helped to clean up numerous abandoned and inactive mines 
throughout the West. Some of these private sector efforts are 
documented in a study published in 1998 by the National Mining 
Association entitled Reclaiming Inactive and Abandoned Mine Lands--What 
Really is Happening'' \4\. I would like to request that this study be 
placed in the hearing record.
---------------------------------------------------------------------------
    \4\ Reclaiming Inactive and Abandoned Mine Lands--What Really is 
Happening, Struhsacker, D.W., and Todd, J.W., prepared for the National 
Mining Association, 1998.
---------------------------------------------------------------------------
    The NMA study presents compelling evidence that given the right 
opportunity, the private sector can play a significant role in 
improving the environment at abandoned and inactive mines. The NMA 
study also documents that State and Federal agencies have accomplished 
AML cleanups.
    The NMA study presents data from industry sources and State 
abandoned mine programs on successfully reclaimed AML sites in a number 
of western states and includes detailed information on nearly 80 
successfully reclaimed AML sites. Like the NAS/NRC study, the NMA study 
also concludes that there are a number of legal, regulatory, and 
institutional barriers that are impeding progress on solving the AML 
problem. The NMA study findings are based on the characteristics of the 
80 reclaimed AML sites described in the report and comments made by 
State AML program personnel and mining industry sources contacted 
during the study. The study findings relevant to this discussion are 
summarized as follows:
     Private Funding, Equipment, and Labor from the Mining 
Industry Have Been Responsible for Reclaiming and Remediating Many AML 
Sites.--Industry has spent tens of millions of dollars in voluntary on-
the-ground cleanups and abatements of AML sites throughout the West. 
The progress made to date and the lessons learned by both the mining 
industry and State and Federal regulators in addressing these sites is 
often overlooked in policy discussions on the AML issue.
     AML Reclamation, Remediation, and Abatement Solutions Must 
be Site Specific.--Just as no two mines are identical, each AML has 
unique characteristics based upon site-specific physical conditions and 
ownership patterns and history. Therefore, appropriate solutions to 
problems at an AML must be determined on a site-by-site basis.
     The Term ``Remining'' Has Been Used Too Broadly.--AML 
stakeholders (e.g., industry, regulators, industry critics, and the 
public) have indiscriminately used the term ``remining'' to mean any 
project involving active mining and concurrent AML reclamation and 
cleanup. Remining should be used to describe projects that process or 
reprocess previously mined materials. Concurrent mining and 
reclamation/remediation of an adjacent or nearby AML is more 
appropriately called ``reclamation-mining''.
     Industry Reclamation-Mining Projects Have Contributed 
Significantly to AML Cleanups.--The numerous examples of reclamation-
mining examined in this survey document that significant synergism can 
be achieved when active mining operations reclaim and remediate 
problems at adjacent or nearby AML sites. There are a number of 
reclamation-mining sites at which industry-funded reclamation/
remediation activities have achieved significant environmental 
improvements. Most of these reclamation-mining projects occurred at 
sites acquired prior to the mid- to late 1980's. It appears that 
liability concerns have inhibited industry acquisition of previously 
mined areas since then, probably corresponding to the enactment of 
CERCLA and the Superfund Amendments and Reauthorization Act (SARA) in 
the 1980's. Reclamation-mining could be a significant partial solution 
to the AML problem if CERCLA, CWA and other liability barriers were 
removed.
     Remining Has Occurred on a Very Limited Basis and May Not 
be Profitable at Most Sites.--Only six examples of remining, in which 
previously mined materials were processed or reprocessed, were 
identified in this survey. Just one of the six produced a net economic 
gain which occurred during a period of extraordinarily high gold prices 
in 1981. Based on this limited data, remining may not be financially 
rewarding at many sites but may help off-set AML remediation and 
reclamation costs.
     Widespread Misconceptions About Remining Have Complicated 
Development of a Good Samaritan Liability Relief Policy.--Policy 
discussions have incorrectly characterized all concurrent mining and 
AML reclamation/remediation efforts as remining and have assumed 
remining is a profitable endeavor. The reluctance on the part of some 
members of the regulatory and activists communities to extend liability 
relief to a profitable remining project is perhaps understandable. 
Unfortunately, intransigence on this issue has created great 
difficulties in developing liability relief policies applicable to any 
industry-sponsored AML cleanup project.
     Renewed Dialogue to Develop Liability Relief for 
Uneconomic Remining Projects and for Reclamation-Mining Projects is 
Needed.--Concerns about extending liability relief to remining 
activities should be refocused on profitable projects. Uneconomic 
remining and reclamation-mining projects should qualify for liability 
protection.
     AML Sites with Acid Rock Drainage (ARD) From Mine Openings 
Pose the Most Challenging Technical and Policy Problems.--Remediation 
of ARD from underground workings is the most challenging issue both 
from a technical and a legal perspective. Although passive water 
treatment systems can achieve significant water quality improvements 
and are practical at remote sites with no power infrastructure, more 
sophisticated water treatment measures are typically required to meet 
water quality standards and NPDES permit limits. Both State agencies 
and the private sector face onerous legal challenges from Clean Water 
Act citizen lawsuits for residual drainage from remediated AML sites 
that does not meet arbitrary water quality standards--regardless of the 
improvements realized at these sites.
     CWA Citizen Lawsuits Are Significantly Chilling State and 
Industry Efforts to Improve AML Sites with ARD.-- Concerns about CWA 
citizen lawsuits have nearly completely stymied cleanup progress at 
sites with acid drainage from underground workings. The end result is a 
net loss to the environment as water quality problems at these sites 
remain unabated. Remediation measures that could result in incremental 
(and in some cases significant) water quality improvements are not 
undertaken for fear of the resulting liability exposure.
     Pursuit of the Perfect is Thwarting Realization of the 
Good.--Regulatory policies that require strict compliance with all 
environmental standards, particularly arbitrary one-size-fits-all water 
quality standards, have forestalled State and industry AML cleanup 
projects that may produce significant environmental benefits but that 
do not meet some water quality standards. A new policy approach is 
needed to facilitate partial and incremental cleanup efforts and to 
protect the parties involved from exposure to CWA citizen lawsuits.
             shortcomings of s. 1787 and suggested remedies
    Although the introduction of S. 1787 presents an opportunity to 
open the dialog, I must emphasize that S. 1787 by itself will not 
accomplish the goal of facilitating AML cleanup and improving the 
environment at AML sites. As documented by the findings of the NMA 
study, the bill as written does not go far enough to provide meaningful 
liability relief to both private and public sector interests who might 
otherwise be in a position to improve the environment at an inactive or 
abandoned mine, nor does it provide any incentives that would encourage 
voluntary cleanups. Therefore, I do not believe S. 1787, in its current 
form, will do much if anything to encourage on the ground cleanup of 
abandoned mine lands. The remainder of my testimony will present 
suggestions for addressing the current shortcomings in the bill: 
Specifically the following areas need to be addressed:
     Expand the definition of remediating parties;
     Recognize that land status at most AML sites is a complex 
mixture of private and public ownership;
     Allow the Federal and State governments, Indian Tribes and 
municipalities protection for cleanup of its sites for which it is not 
responsible;
     Accept the concept of net environmental gain in lieu of 
maximum extent practicable and use existing site conditions to define 
the baseline against which net environmental gain will be measured;
     Maximize the investment of resources spent on-the-ground 
rather than devoted to a protracted regulatory review process by 
developing a streamlined permitting process for proposed AML cleanup 
projects and eliminating open-ended authorities granted to the 
Administrator allowing for additional information;
     Allow States permitting authority;
     Provide liability protection from CERCLA actions to 
qualifying volunteers if the cleanup is done according to the approved 
plan;
     Provide liability protection from CWA citizen lawsuits at 
sites where cleanup activities result in incremental water quality 
improvement but may not be able to meet arbitrary water quality 
standards;
     Eliminate limitation precluding sites proposed for 
inclusion on National Priorities List (NPL) and sites that are subject 
of planned or ongoing response or resource damages actions;
     Remove disincentives for remining and reclamation mining 
where contemplated by the approved plan; and
     Provide incentives for encouraging private sector 
involvement in cleanups;
     Allow for grants from other programs, including 319 (h) to 
be used for cleanups.
    I believe these changes can be made while preserving the intent of 
the Clean Water Act that requires other actions and requirements of 
responsible parties. The Good Samaritan concept is a useful tool that 
foster voluntary cleanups of abandoned and inactive mines resulting in 
positive environmental gains and improved water quality. A more 
detailed discussion of these suggested changes follows.
The Definition of Remediating Parties Must be Expanded
    The first step in developing a Good Samaritan liability relief 
proposal must be founded on a clear understanding of the universe of 
parties (i.e., stakeholders) who may potentially undertake an AML 
cleanup effort. As documented in the above referenced NMA study, the 
private sector, State regulatory agencies, and Federal land management 
agencies have all performed AML cleanup projects in the past. It seems 
logical that under the proper circumstances, these three stakeholder 
groups are likely to be the remediating parties of the future. 
Therefore, it is imperative that liability relief extend to all of 
these entities in addition to those already included in the bill: the 
private sector, State agencies, Federal land management agencies, and 
Federal land owners.
    A careful consideration of the ownership conditions that apply to 
AML sites will quickly reveal that both the public and private sectors 
must be included in the definition of remediating party and granted 
Good Samaritan liability relief. Otherwise, very few problematic 
historic mines will benefit from Good Samaritan liability relief 
provisions, and the enacted liability relief will be so limited in its 
application as to be illusory. The following definitions are suggested 
to clarify these ownership issues:
    Abandoned Mine.--A site with no private owner of record typically 
on public land managed (and sometimes owned) by a Federal, State, or 
local government agency. These sites are sometimes referred to as 
``orphaned''. Abandoned mines on public land comprise a very 
significant portion of the universe of problematic AML sites.
    Inactive Mine.--A site on patented/private land which, in contrast 
to an abandoned site, has an owner or owners of record. However, at 
many sites the current inactive mine owners are not the entity involved 
in the past mining activities that created the safety hazards or 
environmental problems. Moreover, some owners of inactive mines do not 
have the financial resources necessary to correct the safety and 
environmental problems.
    Excluding Federal land management agencies or Federal land owners 
(on their own land) from the definition of remediating party will mean 
that a large population of AML sites will not benefit from the proposed 
Good Samaritan liability relief provisions. Thus, as currently written, 
S. 1787 does very little if anything at all to advance the goal of 
cleaning up problem sites on public land because Federal land owners 
and Federal land management agencies represent stakeholders with a 
significant interest in addressing abandoned mines, and are thus likely 
remediating parties. Likewise, precluding the State as a remediating 
party on its own lands unless the State purchased the land for the 
purpose of cleaning up the site similarly limits the utility of this 
bill.
    Another potential remediating party for abandoned sites on public 
land is the private sector, such as a mining company with a nearby or 
adjacent property. By excluding such private parties from remediating 
party status, the bill fails to recognize that industry is already 
investing millions of dollars voluntarily, yet such private parties 
would not receive the benefit of the liability protections provided by 
the bill. In fact, it was the hardrock mining industry that initiated, 
in cooperation with the Western Governors Association, the Abandoned 
Mine Land Initiative (AMLI). The AMLI was the first cooperative effort 
between industry and government to address the AML problem. Currently, 
the AMLI is working toward completing pilot cleanup projects in the 
western states. Unfortunately, until the CERCLA, RCRA and CWA liability 
issues are resolved, such projects are limited to the less complex 
sites, thereby leaving the high risk sites unaddressed. For these 
reasons, S. 1787 must be expanded to include private parties, including 
the mining industry, as a matter of good public policy.
    Finally, S. 1787 must be expanded to clarify that liability 
protections that apply to either a State or Federal agency also extend 
to private-sector contractors charged with executing the on-the-ground 
work. Because State and Federal agencies typically contract work to 
third-party, private-sector companies, the contractual relationship 
between a State or Federal agency should designate the contractor as an 
agent of the governmental entity, and clearly include the contractor in 
the liability coverage.
The Focus to Identify PRPs is Inconsistent with the Good Samaritan 
        Concept
    The concept of the Good Samaritan gets lost in the proposed 
legislation. In the context of AML cleanup, a Good Samaritan is a 
person, private-sector company, or government agency that acts 
voluntarily and without obligation to improve the environmental 
conditions at a specific site. Therefore to be maximally effective in 
facilitating AML cleanups, S. 1787 should provide complete protection 
for those who pursue voluntary cleanup activities. As a matter of 
policy, an entity that desires to remediate an AML site should not have 
to assume liability for pre-existing conditions at the AML site. 
Furthermore, once those planned activities are completed, the Good 
Samaritan should be released from any further permit obligations and 
should be free from exposure to citizen suits.
    It should also be clearly understood that identifying parties with 
previous involvement at an historically mined site is typically a very 
complicated task. Most historic mining districts are comprised of a 
complex mixture of private and public land. At many AML sites the 
private land consists of patented mining claims that are intermingled 
with and/or surrounded by unpatented claims (i.e., public land). 
Assigning liability is especially difficult at these mixed estate AML 
sites, and at sites with a history of multiple owner/operators. Some 
sites have numerous potentially responsible parties (PRPs); some have 
only one or two owners/operators; and others have no viable owners at 
all. Although a title search may reveal an owner of record for the 
patented claims, it is not uncommon for the current private land owner 
to be an absentee owner who had no involvement with the mining 
activities at the site and who may have limited or no resources to 
devote to an AML cleanup. For example, the patented claims may have 
been inherited by the present owners as part of an estate settlement. 
Or, for that matter, the private, absentee owner may be ``financially 
capable'' yet unwilling to engage in cleanup. S. 1787 provides no 
incentive to encourage the private, financially capable landowner to 
join the voluntary cleanup. Therefore, the majority of these sites will 
go unaddressed. This becomes particularly important where a site is 
situated in a watershed targeted for cleanup or where the site is 
located adjacent to a site undergoing cleanup, etc. It is important to 
note that this provision of S. 1787 in effect actually impedes 
addressing the AML problem on a watershed basis.
    It is highly likely that all or some of the public land at an 
historic mine site consists of unpatented mining claims for which there 
is no current claimant and is thus truly an abandoned site. The 
incidence of abandonment of unpatented claims increased dramatically 
following Congress' decision in 1993 to eliminate the annual assessment 
work requirement and to substitute an annual claim maintenance fee of 
$100 per unpatented mining claim. Since that date, many mining 
claimants abandoned their claims because they were unwilling or unable 
to pay for the annual claim maintenance fee.
    In the context of Good Samaritan provisions, these factors mean 
that an effort to identify PRPs is difficult, impractical, and may not 
find entities with significant financial resources. Moreover, a 
protracted PRP search merely detracts from the resources that could 
otherwise be spent performing on-the-ground environmental improvement 
measures.
    The focus of S. 1787 should be to expedite and facilitate tangible 
environmental improvement at sites affected by outmoded mining 
practices that existed prior to the development of today's 
environmental laws and regulations. The proposed PRP search 
requirements are inconsistent with that goal and regrettably reflect a 
``search for the guilty party'' vendetta rooted in an attitude of 
historical revisionism that fails to recognize that nearly all AML 
sites were mined in the distant past when there were no environmental 
controls on mining--or other human endeavors.
S. 1787 Should Facilitate Projects that Have a Reasonable Chance to 
        Produce Net Environmental Benefits
    If it is agreed that the principal objective of S. 1787 is to help 
solve the AML problem by encouraging and facilitating voluntary 
cleanups of AML sites, then it is important to recognize that other 
issues besides liability exposure must also be addressed. One of the 
main regulatory barriers currently thwarting both private and public 
sector voluntary cleanups is concern about whether a proposed cleanup 
project will be able to meet stringent water quality standards. This 
concern translates into a significant reluctance to pursue voluntary 
cleanup projects for fear that the remediating party will be subjected 
to regulatory sanctions and even citizen lawsuits if water quality at 
the remediated site does not meet predetermined and typically arbitrary 
water quality standards. The following sections discuss this issue in 
detail and suggest ways to address this significant regulatory barrier 
to voluntary AML cleanups.
            Defining and Attaining Cleanup Criteria
    Defining appropriate and attainable cleanup criteria at AML sites 
with contaminated surface water and/or groundwater creates both 
technical and regulatory challenges that are impeding public- and 
private-sector AML cleanup activities. At many AML sites, naturally 
occurring geochemical reactions between the mineralized rocks and the 
surface water or groundwater systems contribute dissolved metals, 
sulfate and other parameters to proximal surface and groundwater 
resources. Consequently, surface water and groundwater systems in and 
near some orebodies have background water quality conditions that may 
exceed one or more regulatory standards. The absence of baseline (i.e., 
pre-mining) water quality data for most AML sites makes determining any 
incremental contamination due to mining activities technically 
challenging and impractical at some sites.
    However, the naturally occurring levels of metals and other 
chemical constituents contributed by the orebody need to be considered 
in developing reasonable AML water quality cleanup goals. As discussed 
in CCEM (1998), states often apply EPA ``Gold Book'' standards in 
defining numeric concentration limits for pollutants like heavy metals. 
These one-size-fits-all standards do not consider site-specific factors 
including the geochemical signature that an orebody may imprint upon 
nearby surface waters. The unilateral application of Maximum 
Contaminant Levels (MCLs) to determine groundwater quality cleanup 
requirements poses similar problems at mineralized sites at which 
groundwater quality reflects the geochemistry of the orebody.
    The CWA authorizes the EPA to require owners of both active and 
inactive mines to obtain an NPDES permit that stipulates effluent 
limits for surface water discharges. Depending upon the designated 
beneficial use of the receiving surface water and the corresponding 
water quality standards, NPDES permits typically establish stringent 
effluent limits. Active mining operations successfully employ proven 
and effective water treatment technologies to meet NPDES permit limits. 
However, these water treatment measures may not be feasible at many AML 
sites in remote locations lacking the necessary infrastructure to 
operate a water treatment plant.
    The use of Gold Book standards to set surface water quality 
standards or MCLs to set groundwater quality standards creates a 
significant dilemma at many AML sites. Applying these standards may 
require an AML cleanup effort to achieve the impossible--to make a site 
``cleaner than clean'' by mandating improvements in water quality that 
do not reflect pre-mining conditions and the presence of metals, 
sulfate, etc. due to naturally occurring reactions between the orebody 
and the surrounding water systems.
    It is important to note that the Environmental Protection Agency 
(EPA) acknowledges, in the context of coal remining operations, that 
requiring AML cleanup efforts to meet strict numeric standards is 
sometimes inappropriate and is a disincentive to remining. In an effort 
to remove regulatory impediments and to encourage remining, EPA 
recently proposed to amend the CWA regulations to address pre-
existing discharges at coal remining operations. 65 Fed. Reg. 19440. As 
justification for the proposal, the EPA acknowledges the following: 
``remining has the multiple benefits of improving water quality, 
removing hazardous conditions, and utilizing remaining coal as a 
resource instead of mining virgin land.'' Furthermore, the Agency 
acknowledges, ``requiring the treatment of pre-existing discharges to 
meet existing standards has been shown to be cost prohibitive, and 
thus, a disincentive to remining activities.'' \5\ S. 1787 fails to 
make similar findings.
---------------------------------------------------------------------------
    \5\ EPA Fact Sheet ``Amendments to Effluent Limitations Guidelines 
and New Source Performance Standards for the Coal Mining Point Source 
Category: Proposed Rule'' March 2000.
---------------------------------------------------------------------------
            AML Cleanup Policies Should Focus on Net Environmental 
                    Benefit--Not Arbitrary Standards
    In discussing the issue of AML reclamation/remediation and water 
quality requirements it is very important to acknowledge that 
significant water quality improvements can be achieved at many sites by 
performing some fairly straightforward physical reclamation. The NMA 
study documents a number of cases where the simple removal of mine 
waste from a drainage course, rerouting a drainage away from or around 
a mine waste pile, or capping a mine waste pile to minimize 
infiltration of meteoric water has improved water quality--sometimes 
substantially. Moreover, these improvements in water quality often 
translate into a significant recovery of aquatic habitat to the point 
where fish populations have dramatically increased.
    However, additional, costly water treatment measures, including 
construction and operation of a water treatment plant, would be 
required at some of these sites in order to achieve water quality 
standards such as those that might be specified in an NPDES discharge 
permit. The concern that voluntary reclamation work could ultimately 
force the remediating party to construct and operate additional water 
treatment requirements is having a significantly chilling effect on 
voluntary AML reclamation work. This means that the significant 
environmental benefits that can be achieved with physical reclamation 
work are foregone. Moreover, the incremental improvement in water 
quality that may be achievable with a water treatment plant may not be 
cost effective when measured in the context of meaningful improvements 
in fish populations, enhancements of aquatic habitat, or benefits to 
downstream users. S. 1787 thus needs to be modified to remove this 
regulatory barrier in order to allow and encourage projects that result 
in a net environmental benefit but may not meet arbitrary water quality 
standards.
            How Should Environmental Benefits be Measured
    As discussed above, determining pre-mining water quality conditions 
is a technically challenging if not impossible task at many AML sites. 
It should also be recognized as an unnecessary complication when 
applied to a voluntary AML cleanup project. AML cleanup policies should 
specify that the only conditions that are relevant in assessing a 
cleanup proposal are the existing conditions. The baseline data 
inventory effort should be accomplished as expeditiously as possible in 
order to minimize the resources spent studying the problem, and to 
maximize the resources spent solving the problem.
            AML Cleanup Policies Should Not Stifle Experimental Cleanup 
                    Techniques
    Although significant environmental improvements can be achieved at 
AML sites using existing techniques and technology, it is highly likely 
that an improved regulatory climate that allows voluntary AML cleanups 
would stimulate the development of new and possibly more effective 
cleanup technologies. AML cleanup policies should therefore include 
provisions to allow onsite testing of new or experimental reclamation 
and remediation techniques. Remediating parties who wish to try new or 
unproven techniques at voluntary cleanup sites should be allowed to do 
so without fear of regulatory sanctions or citizen lawsuits if the 
resulting water quality does not meet expectations.
    S. 1787 needs to be modified to include language that authorizes 
remediating parties conducting voluntary cleanups to use experimental 
techniques that have a reasonable likelihood of success. The absence of 
this type of liability and regulatory relief measure will completely 
stymie the development of new and improved AML reclamation and 
remediation techniques.
S. 1787 Should Be Modified to Include CERCLA/RCRA and CWA Citizen Suit 
        Liability Relief
    Past industry-funded improvement projects at AML sites have been 
driven primarily by the desire to avoid, reduce, or otherwise limit 
liabilities associated with both safety hazards and environmental 
concerns. If contaminants such as metals, sediments, or acid rock 
drainage (ARD) have been or are being released or have the potential to 
be released from an AML site, the owners, operators, or managers of 
that site potentially face liabilities under a number of State and 
Federal environmental laws, CERCLA, RCRA and the CWA being foremost 
among them.
    Without the necessary liability relief from CERCLA, RCRA and the 
equivalent State statutes, most AMLs will simply go unaddressed. 
Potential CERCLA liability is considered the single greatest obstacle 
to cleaning up AMLs. Because heavy metals are considered ``hazardous 
substances'' under the CERCLA regulatory regime, a current or past 
owner or operator of an AML could be liable for cleanup of the AML to 
the extent ``hazardous substances'' are determined at the site. 
Incurring CERCLA liability can be as easy as having ``active 
involvement in the activities'' at a site. Furthermore, any ``active 
management'' of mining wastes not excluded by the Bevill exemption 
would trigger RCRA Subtitle C regulation of the actively managed wastes 
to the extent those wastes qualify as ``hazardous wastes.'' Once 
triggered, RCRA Subtitle C regulation would impose exceedingly 
stringent generation, transportation, treatment, storage and disposal 
requirements, the so-called ``cradle to grave'' regulation.
    Thus, at many AML sites it is simply good business practice and in 
the owners' best interest to reclaim the site as expeditiously and 
efficiently as possible. However, the potential for citizen lawsuits 
under the CWA should discharges occur at reclaimed AML sites 
effectively suffocates the best intents of industry (as well as State 
AML agencies and Federal agencies) to reclaim any more sites than 
absolutely necessary to contain potential CERCLA actions. While 
industry may have the desire and the means to abate and remediate AML 
sites throughout the West, implementation will not be achieved until 
there is indemnification against such litigation and associated 
liabilities.
    Voluntary remediators should be treated similar to CERCLA remedial 
action contractors. Under this exemption, a remediator would not be 
liable under CERCLA or any other Federal law unless they cause damages 
as a result of their negligence, gross negligence or intentional 
misconduct. If S. 1787 is to have any utility, the CERCLA/RCRA 
liability issues must be addressed.
The Term ``Remining'' Has Been Used Too Broadly in AML Policy 
        Discussions
            Defining Remining
    The term ``remining'' is used rather indiscriminately in both the 
public and the private sectors to describe a broad range of renewed 
mining activities in previously mined areas. The findings of the NMA 
study suggest that a narrower definition of remining would be useful in 
focusing policy issues that affect remining and AML reclamation and 
remediation. The suggestion is made herein to restrict the use of the 
term remining to projects involving processing of existing mine wastes 
(e.g., waste rocks, and low-grade stockpiles) and/or reprocessing of 
tailings and previously leached materials (e.g., heap leach ores) at a 
nearby metals recovery (i.e., treatment) plant. The term ``reclamation-
mining'' is suggested for active mining projects with concurrent AML 
reclamation and remediation activities that do not include mine waste 
processing or reprocessing. Using these definitions, remining is a 
subset of reclamation-mining. Reclamation-mining is discussed later in 
this testimony.
            Remining Benefits
    In the last few years, AML policy discussions about remining have 
assumed that remining results in both environmental and economic 
benefits. Because remining metal-bearing mine wastes achieves source 
reduction, it can be an exceptionally effective environmental cleanup 
method for AML sites. Other cleanup methods such as water treatment or 
waste containment do not reduce or eliminate the source of the 
contaminants, and may create long-term operational and monitoring 
requirements. In contrast, recovering metals by remining removes some 
or all of the contaminant source, thereby minimizing the volume of 
problematic mine waste and reducing the residual metals content in the 
resulting waste product. Additionally, the newly generated mineral 
processing wastes are disposed of in a modern, permitted mine waste 
disposal facility with appropriate containment, monitoring, and 
financial guarantees. Remining is thus an environmental remedy in the 
form of resource recovery and source reduction, both of which are EPA-
favored responses for environmental cleanups and waste management.
    Remining is also assumed to produce economic rewards for the 
company that processes or reprocessed the previously mined materials 
because the company recovers some of the metals in these materials and 
avoids some of the costs associated with mining new ore. A 1993 
remining study identified widespread industry interest in remining, 
suggesting that remining could be viable at a number of sites. However, 
this study also revealed equally widespread concerns about the 
potential environmental liability exposure associated with becoming 
involved with historically mined areas (Struhsacker, 1993).
            Remining Examples
    Despite the widespread recognition that remining could facilitate 
AML cleanups at some AML sites, the NMA study identified only six sites 
(the Alta Mine in Idaho, the Maitland Tailings and the Double Rainbow 
Mine in South Dakota, the Dean Mine in Nevada, the Mercur Mine in Utah, 
and the Westar Heap in New Mexico) at which remining involving mine 
waste reprocessing has occurred. The limited number of remining sites 
appears to be due to the same liability concerns identified in the 1993 
remining survey. (It should be noted that mine wastes at the Westar 
Heap were sold as a silica flux source; they were not reprocessed as a 
source of residual metals). Details about these six sites are presented 
in the NMA study.
    The NMA study indicates that the assumptions regarding the economic 
rewards associated with remining are inaccurate or overstated. Only one 
of the identified remining projects, the 1981 reprocessing of the 
Maitland Tailings in Lawrence County, South Dakota, produced a net 
economic gain. Remining at the Double Rainbow Mine and the Westar Heap 
sites helped defray the reclamation and remediation costs; however, 
remining was not profitable at either project. The positive economics 
realized by reprocessing the Maitland Tailings were due largely to 
anomalously high gold prices in 1981. This project was undertaken 
principally as an economic endeavor rather than as an AML remediation 
effort--land use. It is not known whether remining would be financially 
rewarding if pursued at other sites.
    In several of the identified remining projects, remining was 
selected as the most cost effective AML cleanup measure because it 
allowed the mining companies to place the resulting tailings into an 
existing tailings disposal facility, thus avoiding the costs and 
environmental impacts associated with a new waste repository. However, 
using an existing tailings facility for remining tailings consumes 
space that would otherwise be available for tailings from processing 
the primary orebody. Moreover, the remining wastes may not be of 
comparable grade or recovery characteristics as the primary orebody. 
Therefore, the decision to engage in remining and to displace primary 
ore tailings with remining tailings must involve a site-specific cost-
benefit analysis.
Remining Policy Issues
    The NMA study findings regarding the limited circumstances in which 
remining is profitable are significant from a policy perspective. At 
least some of the controversy surrounding development of a Good 
Samaritan provision to the CWA for AML remediation has revolved around 
remining. Mining industry critics and some regulators have strenuously 
objected to allowing remining projects to qualify for the Good 
Samaritan provision (CCEM, 1998). Their objections to providing 
liability relief for remining presumably stem from the belief that an 
economic endeavor should not enjoy liability protection. The limited 
data available on remining suggests that this opposition may be based 
upon an incorrect perception of remining economics. Moreover, the 
widespread misuse of the term remining to mean concurrent mining and 
any AML reclamation/remediation activity has inappropriately lumped 
together a diverse group of industry-sponsored AML projects and stymied 
progress on development of a liability relief policy applicable to some 
industry-led AML cleanup efforts.
    The suggestion is made herein to refocus these discussions in the 
context of the restricted definition of remining as used in this report 
(i.e., projects involving 
processing or reprocessing of previously mined materials). By doing so, 
perhaps the discussion can be focused on the environmental benefits 
that stand to be gained by including provisions for such remining 
projects outlined in this discussion. Accordingly, the committee should 
reconsider the possibility of including a remining component with S. 
1787.
Reclamation-Mining
            Defining Reclamation-Mining
    Although the NMA study identified only a few remining projects at 
which industry processed or reprocessed previously mined materials as 
part of an AML remediation effort, the study includes numerous examples 
of reclamation-mining in which industry reclaimed and remediated AML 
sites in and near active mining operations through synergism between 
the active mine/mill and the AML site. The reclamation-mining examples 
described in the NMA study capitalized upon industry expertise, 
equipment, personnel, and existing mine waste disposal and mineral 
processing facilities and infrastructure to close, reclaim, or 
remediate the nearby AML site(s).
    Reclamation-mining is a highly site specific undertaking both in 
terms of the AML site characteristics and the range of activities, 
resources, and facilities at the active mine and mineral processing 
operation. The reclamation-mining sites identified in the NMA study 
encompass a broad range of activities that have produced numerous and 
varied environmental benefits. Examples of reclamation-mining 
activities identified in the NMA study include the following:
     Remining (as discussed above);
     Removing and relocating old mine wastes to existing 
project components (i.e., active, permitted tailings, heap leach, or 
waste rock facilities)
     Removing and relocating old mine wastes to new waste 
repositories;
     Stabilizing old mine wastes in-situ using appropriate 
liners, caps, and covers; and
     Remediating groundwater by taking advantage of dewatering 
activities to support pump and treat opportunities.
    The NMA study identifies the following environmental and public 
safety benefits and improvements that have occurred as a result of 
reclamation-mining activities:
     Surface water quality improvements;
     Landscape improvements;
     Wildlife habitat restoration, preservation and 
enhancement;
     Historical preservation; and
     Safety closures.
Appropriate Incentives Would Stimulate Voluntary AML Cleanup
    Removing the liability risks and regulatory barriers discussed in 
this testimony would be a significant step in solving the AML problem 
by making voluntary AML cleanups a much less problematic. However, 
creating incentives for parties engaged in voluntary AML cleanup 
efforts could increase the number of voluntary AML reclamation projects 
and would result in more and accelerated progress in reclaiming and 
remediating AMLs. AML policy discussions such as the current dialog on 
S. 1787 should go beyond the topic of liability relief and consider 
ways to encourage and promote private-sector voluntary AML cleanup 
efforts.
    The types of incentives that could be considered could include a 
streamlined regulatory review process, reduced or waived royalties in 
the event Congress establishes hard rock mining royalty provisions in 
the future, and depletion allowances. Also, tax credits could be 
considered for projects which are not economic but which are pursuing 
reclamation-mining to address environmental issues. Similarly voluntary 
AML cleanup projects could generate environmental credits that could be 
used to mitigate or offset impacts at other mining projects operated by 
the remediating party.
    The advantages to the public in creating incentives for private-
sector, voluntary AML cleanups is that the resulting reclamation-mining 
projects would expedite cleanups at a number of sites and ameliorate 
environmental conditions with no or minimized public funding. This 
would reduce the scope of government sponsored mine land reclamation 
programs currently envisioned as being necessary to solve the AML 
program.
                               conclusion
    I appreciate the opportunity to present to this committee my views 
and the views of the National Mining Association regarding S. 1787. I 
believe the bill serves to further the discussion regarding the Good 
Samaritan concept. However, without significant changes as outlined in 
my comments I am afraid the bill will fall short of achieving its 
intended goals, that of increasing voluntary, cooperative efforts 
toward cleaning up AMLs. I wish to encourage this committee to work 
together to revise S. 1787 accordingly to provide a workable and 
meaningful bill.
    At a minimum, I suggest the committee work to revise the definition 
of remediating party to include private parties and the State and 
Federal Governments on their own lands; reconsider the cleanup 
standards required of Good Samaritans; address CERCLA, RCRA, and CWA 
citizen suit liability issues; provide opportunity for states with 
adequate programs to issue remediating permits; and reconsider the 
possibility of including a remining component.
                               __________
 Reclaiming Inactive and Abandoned Mine Lands--What Really is Happening
                           Executive Summary
                               background
    On behalf of the National Mining Association (NMA), Debra W. 
Struhsacker, Environmental and Government Relations Consultant, and 
Jeffrey W. Todd, Senior Consultant with Schafer and Associates, 
performed a survey to identify successfully reclaimed abandoned and 
inactive mines. This survey was undertaken in conjunction with the 
Abandoned Mine Land Initiative (AMLI), a partnership between the NMA 
and the Western Governors' Association designed to take a proactive 
approach to the hardrock abandoned and inactive mine land (AML) 
problem. This investigation on successfully reclaimed AML sites had the 
following objectives:
     Compile data available from industry sources and State 
abandoned mine programs on successfully reclaimed AML sites in each WGA 
state;
     Obtain information on AML reclamation success stories to 
showcase the effective application of modern environmental and 
reclamation technology at hardrock AML sites; and
     Determine the regulatory, legal, and institutional policy 
issues that are facilitating or impeding progress on solving the AML 
problem.
    Information on nearly 80 successfully reclaimed AML sites was 
gathered during the short duration of this survey (Appendix A). These 
data were obtained from approximately 95 representatives from the 
mining industry and State AML programs who responded to this survey 
(Appendix B).
    The types of reclamation and remediation efforts at the sites 
included in this survey are typical of the accomplishments being made 
by State AML programs and industry. However, it must be emphasized that 
this survey was not intended to be all inclusive. Based on the 
information gathered to date, it is apparent that there are hundreds of 
examples of State and industry AML projects involving reduction of 
safety hazards and environmental improvements that could be included in 
this study.
                            survey findings
    The survey findings listed below are based on an analysis of the 
characteristics of the reclaimed AML sites in Appendix A, and on 
comments made by State AML program personnel and mining industry 
sources contacted during the survey.
     Both the Western States and the Mining Industry Have 
Achieved Measurable Progress in Addressing the AML Problem.--This 
survey found that State AML programs and industry-sponsored efforts 
have abated, reclaimed, and remediated a number of high-priority AML 
sites throughout the west. AML policy discussions typically dismiss or 
fail to recognize the progress made to date, choosing instead to 
emphasize the large but poorly defined dimensions of the AML problem.
     Private Funding, Equipment, and Labor from the Mining 
Industry Have Been Responsible for Reclaiming and Remediating Many AML 
Sites.--Industry has spent tens of millions of dollars in voluntary on-
the-ground cleanups and abatements of AML sites throughout the WGA 
region. Mining industry critics often overlook or ignore this 
significant industry contribution.
     States with SMCRA Reclamation Funds Have Significant AML 
Abatement Accomplishments and Have Achieved Some AML Cleanup and 
Reclamation.--AML programs in the western coal-producing states (e.g., 
Wyoming, Colorado, Utah, Montana, Texas, and to a lesser extent Alaska 
and New Mexico) have been able to use SMCRA reclamation money derived 
from a tax on coal to reduce or eliminate public safety hazards at 
hardrock AML sites. As a result, these states have made significant 
progress in addressing AML safety problems. The OSM has certified the 
Wyoming and Montana coal AML reclamation effort as complete and these 
states have started using some SMCRA reclamation funds to cleanup 
environmental problems at hardrock AML sites. States with no SMCRA 
funds have much more limited AML programs and greater reliance on 
industry-funded efforts.
     The Term ``Site'' has Different Meanings and Must be 
Defined Specifically in Every Forum.--Some AML inventory efforts, 
including those performed by mining industry critics, have considered a 
``site'' to be any single mine opening, mining or exploration 
disturbance, or mining-related feature. Inventories performed in this 
fashion typically reflect a desire to show as many sites as possible to 
qualify for a larger share of available reclamation funds, or in some 
cases, to advance a political agenda. In contrast, many State AML 
programs and the mining industry define ``site'' in a much broader 
sense. In this context a site may contain multiple features that can be 
addressed with coordinated and consolidated abatement or remediation 
measures.
     A Comprehensive AML Inventory is Not a Necessary First 
Step in Solving the AML Problem.--The successfully reclaimed AML sites 
identified in this study indicate that a complete inventory of the 
universe of hardrock AML sites is not required for the states or 
industry to achieve meaningful progress on correcting the AML problem.
     AML Reclamation, Remediation, and Abatement Solutions Must 
be Site Specific.--Just as no two mines are identical, each AML has 
unique characteristics based upon site-specific physical conditions and 
ownership patterns and history. Therefore, appropriate solutions to 
problems at an AML must be determined on a site-by-site basis. Efforts 
to categorize, pigeonhole, and inventory all aspects of the AML problem 
have reached a point of diminishing returns and will add nothing more 
to solving the AML problem. A one-size-fits-all approach to AML site 
definition and reclamation is neither necessary nor appropriate.
     Safety Hazards are the Dominant AML Problem.--There are 
far more AML sites that create a public safety problem than sites with 
environmental problems. In a recent survey of western State AML 
programs, 11 of the top 30 AML problem sites have safety hazards; 
another 9 sites pose both safety and environmental problems. The 
remainder of the sites have environmental issues. Other recent surveys 
corroborate that safety hazards are the dominant problem at hardrock 
AML sites. Abating safety hazards at many sites is relatively 
straightforward.
     South Dakota Has the Most Industry-funded AML Cleanup and 
Reclamation Accomplishments.--A streamlined regulatory environment that 
has minimized legal proceedings and protracted administrative and 
regulatory reviews, and has maximized resource expenditure for on-the-
ground reclamation and remediation measures has facilitated industry-
sponsored AML projects in South Dakota. This streamlined approach is 
critical and appropriate for industry-funded cleanups that involve no 
expenditure of public resources. These projects should not be burdened 
with unnecessary regulatory reviews and attendant costs and delays. The 
South Dakota regulatory model may be easiest to replicate in states 
with an omnibus regulatory agency with jurisdiction over water quality, 
air quality, hazardous and solid waste, and mine reclamation.
     Safety Closures May Create Conflicts with Bat Habitat and 
Historic Preservation Concerns.--A number of State AML program 
officials mentioned the difficulties encountered in balancing the need 
to seal mine openings to protect public safety with the need to 
preserve wildlife (especially bat) habitat and the integrity of old 
mine workings as historic resources. In some settings, fencing old 
workings may be adequate to protect public safety and avoids these 
potential resource conflicts. However, fencing does not satisfy the 
SMCRA mine closure prescription.
     The Term ``Remining'' Has Been Used Too Broadly.--AML 
stakeholders (e.g., industry, regulators, industry critics, and the 
public) have indiscriminately used the term ``remining'' to mean any 
project involving active mining and concurrent AML reclamation and 
cleanup. Remining should be used to describe projects that process or 
reprocess previously mined materials. Concurrent mining and 
reclamation/remediation of an adjacent or nearby AML is more 
appropriately called ``reclamation-mining''.
     Industry Reclamation-Mining Projects Have Contributed 
Significantly to AML Cleanups.--The numerous examples of reclamation-
mining examined in this survey document that significant synergism can 
be achieved when active mining operations reclaim and remediate 
problems at adjacent or nearby AML sites. There are a number of 
reclamation-mining sites at which industry-funded reclamation/
remediation activities have achieved significant environmental 
improvements. Most of these reclamation-mining projects occurred at 
sites acquired prior to the mid- to late 1980's. It appears that 
liability concerns have inhibited industry acquisition of previously 
mined areas since then, probably corresponding to the enactment of 
CERCLA and the Superfund Amendments and Reauthorization Act (SARA) in 
the 1980's. Reclamation-mining could be a significant partial solution 
to the AML problem if CERCLA, CWA and other liability barriers were 
removed.
     Remining Has Occurred on a Very Limited Basis and May Not 
be Profitable at Most Sites.--Only six examples of remining in which 
previously mined materials were processed or reprocessed were 
identified in this survey. Just one of the six produced a net economic 
gain which occurred during a period of extraordinarily high gold prices 
in 1981. Based on this limited data, remining may not be financially 
rewarding at many sites but may help off-set AML remediation and 
reclamation costs.
     Widespread Misconceptions About Remining Have Complicated 
Development of a Good Samaritan Liability Relief Policy.--Policy 
discussions have incorrectly characterized all concurrent mining and 
AML reclamation/remediation efforts as remining and have assumed 
remining is a profitable endeavor. The reluctance on the part of some 
members of the regulatory and activists communities to extend liability 
relief to a profitable remining project is perhaps understandable. 
Unfortunately, intransigence on this issue has created great 
difficulties in developing liability relief policies applicable to any 
industry-sponsored AML cleanup project.
     Renewed Dialogue to Develop Liability Relief for 
Uneconomic Remining Projects and for Reclamation-Mining Projects is 
Needed.--Concerns about extending liability relief to remining 
activities should be refocused on profitable projects. Uneconomic 
remining and reclamation-mining projects should qualify for liability 
protection.
     AML Sites with Acid Drainage From Mine Openings Pose the 
Most Challenging Technical and Policy Problems.--Remediation of ARD 
from underground workings is the most challenging issue both from a 
technical and a legal perspective. Although passive water treatment 
systems can achieve significant water quality improvements and are 
practical at remote sites with no power infrastructure, more 
sophisticated water treatment measures are typically required to meet 
water quality standards and NPDES permit limits. Both State agencies 
and the private sector face onerous legal challenges from Clean Water 
Act citizen lawsuits for residual drainage from remediated AML sites 
that does not meet arbitrary water quality standards--regardless of the 
improvements realized at these sites.
     CWA Citizen Lawsuits Are Significantly Chilling State and 
Industry Efforts to Improve AML Sites with ARD.--Concerns about CWA 
citizen lawsuits have nearly completely stymied cleanup progress at 
sites with acid drainage from underground workings. The end result is a 
net loss to the environment as water quality problems at these sites 
remain unabated. Remediation measures that could result in incremental 
(and in some cases significant) water quality improvements are not 
undertaken for fear of the resulting liability exposure.
     Pursuit of the Perfect is Thwarting Realization of the 
Good.--Regulatory policies that require strict compliance with all 
environmental standards, particularly arbitrary one-size-fits-all water 
quality standards, have forestalled State and industry AML cleanup 
projects that may produce significant environmental benefits but that 
do not meet some water quality standards. A new policy approach is 
needed to facilitate partial and incremental cleanup efforts and to 
protect the parties involved from exposure to CWA citizen lawsuits.
     AML Liability Issues May be Best Solved with a Parallel-
Track Approach.--It may be appropriate for future AML policy 
discussions to proceed on two parallel tracks that differentiate 
between sites with ARD from underground mine openings versus sites with 
waste stabilization/removal issues. Parallel track discussions that 
devote specific attention to developing liability relief mechanisms for 
less complex sites (primarily sites with waste removal or stabilization 
needs rather than sites with drainage from underground workings) could 
bear fruit while continuing to work on the more challenging legal and 
technical issues at mine sites with acid drainage. This incremental 
step could accelerate AML cleanup progress at a number of sites and 
result in significant environmental improvement and meaningful progress 
toward solving the AML problem.
                                 ______
                                 
      Responses by William B. Goodhard, Director, Reclamation and 
 Environmental Affairs to Additional Questions from Senators Crapo and 
                                 Boxer
    Question 1. Did the mining industry play a material role in the 
development of S. 1787? If limited, does this represent a lost 
opportunity to benefit from the expertise brought by the industry to 
the problem of remediating abandoned or inactive mine sites? Which 
specific provisions of S. 1787 does the mining industry consider the 
result of its recommendation to the bill's sponsor?
    Response. The mining industry did participate in development of S. 
1787 through the Abandoned Mine Lands Initiative, a partnership with 
the Western Governors Association, and directly with the Senate staff. 
Throughout the discussions the mining industry worked toward removing 
inappropriate ownership and control language and suggested self-
certification language. The concept of self-certification was not well 
received and little discussion occurred. This issue was very 
contentious and it was apparent that the bill would not move forward 
unless resolved. The mining industry withdrew from discussions focused 
on expanding remediating parties to include private parties, in the 
interest of advancing the bill with the intention that ``Remediating 
Parties'' would be readdressed later in the process. Unfortunately, 
this never happened.

    Question 2. The legislation before us excludes sites on Federal 
lands where the government is the remediator and sites under 
consideration for the superfund program. What does the mining community 
believe will be the impact on the number of sites qualifying for Good 
Samaritan?
    Response. Exclusion of Federal agencies on Federal lands for 
impacts for which it is not responsible and sites under consideration 
for the superfund program clearly limits the number of sites available 
for voluntary remediation. Certainly many of the more serious sites are 
located on Federal lands. Limiting the number and these types of sites 
in this manner will have a direct impact on how broadly Good Samaritan 
provision is used and limit the scope of our cleanups. Fewer potential 
sites will mean fewer voluntary cleanups and that translates into fewer 
water quality improvements. Projects that occur at sites under 
consideration for superfund could result in improvements in water 
quality at minimal or no cost to the taxpayers. Should a qualifying 
``Remediating Party'' have the desire to voluntarily fund work that 
makes an incremental improvement to water quality it should be allowed 
to do so. Furthermore, allowing voluntary cleanup at these sites does 
not relieve any legally responsible party of its obligations under the 
CWA and or CERCLA.

    Question 3. This legislation does not provide complete liability 
protection even under the Clean Water Act. Do you believe that certain 
parties may need to also apply for a Section 404 permit to undertake a 
comprehensive and effective cleanup?
    Response. Yes, I agree that in many instances remediation 
activities will require Section 404 permits. Currently, the bill does 
not provide liability protection for activities undertaken pursuant to 
section 404. The bill should be expanded to provide such liability 
protections as broader liability protection will help to further 
encourage voluntary cleanup efforts.

    Question 4. Your experience suggests that the mining industry is 
engaged in 
numerous abandoned and inactive mine cleanup projects. Is it 
appropriate for this legislation to provide a liability shield for 
government agencies, who already enjoy sovereign immunity in many 
instances, but not to provide liability protection for potential 
private Good Samaritans?
    Response. No, as written the liability protection stops with the 
defined ``Remediating Party'' and does not provide protection for the 
agents and contractors who will ultimately be responsible for 
completing the site work. The mining industry strongly believes that 
the language needs to be expanded to include, at a minimum, the current 
remediating parties, agents and contractors. For example, the mining 
industry believes that mining companies which have no legal liability 
at the site should be afforded liability protection if they are working 
under an approved permit. The mining industry has the experience and 
special expertise for addressing many of the environmental problems at 
these sites. If they or any other industry faces liability for working 
on these sites then you will lose the benefit of that knowledge and 
expertise. Furthermore, many of the sites are located in remote areas 
making access expensive. In these cases, it may be most efficient for a 
mining company already located in that remote vicinity to address the 
site.

    Question 5. Do you believe that Superfund liability for potential 
Good Samaritans is an important current disincentive that should be 
addressed in S. 1787?
    Response. This issue was discussed during the hearing and the 
mining industry is supportive of specific language to be included in 
the Good Samaritan Bill addressing Superfund liability. If you wish to 
get the broadest possible Good Samaritan cleanup accomplished it should 
be clarified that Remediating Parties are not liable under any other 
law for their work at the site, except for those obligations that they 
have assumed under the terms of their permit. Without clear language 
granting protection from Superfund, only the non-Superfund sites will 
be able to be addressed, relegating those sites to much more expensive 
and drawn out processes.

    Question 6. The term ``maximum extent practicable'' in determining 
acceptable cleanup levels is used in this bill. Is this too high a 
threshold? Would it preclude marginal improvements from being made?
    Response. The term ``maximum extent practicable'' is undefined and 
therefore creates a significant disincentive to remediation activities 
and will lead to extensive debate over whether the standard is being 
met in any particular case, with the effect that time will be lost in 
getting cleanups underway and resources wasted in trying to determine 
how to proceed. A more workable standard would be ``a net improvement 
in surface water quality'' recognizing that partial or incremental 
improvements in water quality at a specific site may go far toward 
overall improvement of the water quality in a watershed. It is 
important to recognize that a series of cleanups can occur under the 
bill and that ``everything'' does not have to be taken care of all at 
once. If we adopt this latter language we will be encouraging 
incremental cleanups over time, allowing the most important areas to be 
addressed first and getting cleanups started sooner.

    Question 7. What is the mining industry's record in undertaking 
voluntary cleanups of abandoned or inactive mine sites? Should this 
experience be used in the development of Good Samaritan legislation in 
Congress?
    Response. The mining industry has spent tens of millions of dollars 
in voluntary cleanups of AML sites throughout the West. This is 
documented in the AMLI report submitted to the record at my request at 
the hearing. It would be shortsighted to preclude further participation 
by an industry whose successes are already well documented and whose 
motivation to continue cleanups is high.

    Question 8. What principles of SMCRA should be applied to this 
legislation?
    Response. I have no experience with SMCRA and therefore prefer not 
to elaborate.

    Question 9. Would remining of cleanup materials be appropriate for 
encouraging new Good Samaritans?
    Response. I assume by ``remining'' you mean processing previously 
mined materials at abandoned sites while undergoing remediation 
activities. In my written testimony, I encouraged the committee to 
reconsider remining. With proper liability protections remining could 
provide an incentive for cleanups to proceed and for defraying the cost 
of those cleanups. It is clearly in the public interest to keep cleanup 
costs as low as possible, and allowing remining will help to accomplish 
this goal. Is the conduct of PRP searches by Good Samaritans 
appropriate and should it be their responsibility?

    Question 10. Is the conduct of PRP searches by Good Samaritans 
appropriate and should it be their responsibility?
    Response. Good Samaritans will be voluntarily funding efforts 
focused at improving water quality. Conducting PRP searches is not the 
best nor even a sensible use of these funds. The Good Samaritan will 
need the current owners permission to do work on a site. Decisions 
about whether the agencies should identify and pursue PRP's for 
additional cleanup work is best left with the agencies.

    Question 11. How important would a Section 404 permit waiver be to 
ensuring further Good Samaritan cleanups?
    Response. There are instances where a Section 404 permit is 
necessary to complete a remediation project, therefore, any favorable 
language, which extends or expands the lands upon which the Good 
Samaritan Act can be used and limits the exposure of the Remediating 
Parties will increase the number and scope of sites potentially 
available for voluntary cleanups to occur.

    Question 12. Is the bill's preclusion of Federal agencies cleaning 
up Federal lands a problem?
    Response. This preclusion will limit one of the largest landowners 
from voluntarily cleaning up its own sites, presumably sites for which 
it does not have responsibility. As long as the agency is not 
responsible for the site it should be allowed to do a voluntary cleanup 
that will improve water quality.

    Question 13. Do you agree with the provision in S. 1787 that would 
sunset the program after 10 years? If not, what would you recommend?
    Response. Based on EPA's testimony that it will take 3 years to 
promulgate regulations 10 years is not a sufficient time. There does 
need to be a point where Congress can examine whether or not the 
program is working, but of course they are always free to do so. 
Regardless of the timing, providing for a formal examination or review 
of the Act could result in changes in the Act that may further improve 
upon the program by drawing upon the experience gained.
                               __________
 Abandoned Mine Land Initiative by Debra W. Struhsacker, Environmental 
    and Government Relations Consultant and Jeffrey W. Todd, Senior 
                 Consultant, Schafer & Associates, Inc.
                           executive summary
Introduction
    Abandoned hardrock mines have long been an issue of concern to 
industry, government and the public. The majority of AML sites are 
historic, and some are in mining districts with features included on 
the National Register of Historic Places. The ``typical'' site can be 
described as an underground mine which began operation in the mid to 
late 1800's or early 1900's. Generally, but not always, a mill was 
associated with these historic operations.
    The technologies employed at these historic sites were refined for 
production efficiency over the years, but the management of air 
emissions, water discharges and wastes were not radically changed until 
the enactment of environmental legislation in the 1970's. Mining in a 
number of important U.S. mining districts commenced more than a century 
before the passage of these environmental laws, and a number of 
abandoned mines in some of these districts now present safety and 
environmental problems.
    Environmentally responsible mining is rooted in the passage of the 
National Environmental Policy Act of 1969 (NEPA) and the program-
specific environmental laws and land management acts that followed. 
Many Western states enacted state-level mining reclamation legislation 
over the last 25 years. These State laws include reclamation bond 
requirements to ensure that today's mines do not become tomorrow's 
unreclaimed AML sites.
    In conjunction with the Abandoned Mine Land Initiative (AMLI), a 
partnership between the National Mining Association (NMA) and the 
Western Governors' Association (WGA), NMA recently undertook a survey 
to identify successfully reclaimed abandoned and inactive hardrock 
mines in WGA states. This investigation on successfully reclaimed AML 
sites had the following objectives:
     Compile data available from industry sources and State 
abandoned mine programs on successfully reclaimed AML sites in each WGA 
state;
     Obtain information on AML reclamation success stories to 
showcase the effective application of modern environmental and 
reclamation technology at hardrock AML sites; and
     Determine the regulatory, legal, and institutional policy 
issues that are facilitating or impeding progress on solving the AML 
problem.
    The types of reclamation and remediation efforts at the sites 
included in this survey are typical of the accomplishments being made 
by State AML programs and industry. However, it must be emphasized that 
this survey was conducted over a short timeframe and was not intended 
to be all inclusive. Based on the information gathered to date, it is 
apparent that there are hundreds of examples of State and industry AML 
projects involving reduction of safety hazards and environmental 
improvements that could be included in this study.
                       summary of survey findings
    The survey findings listed below are based on an analysis of the 
characteristics of the reclaimed AML sites in Appendix A, and on 
comments made by State AML program personnel and mining industry 
sources contacted during the survey. The survey gathered information 
from approximately 95 representatives from the mining industry and AML 
programs in WGA states on 83 reclaimed AML sites. The following 
summarizes the key findings from this survey.
     Both the Western states and the mining industry have 
achieved measurable progress in addressing the AML problem. This survey 
found that State AML programs and industry-sponsored efforts have 
abated, reclaimed and remediated a number of high priority AML sites 
throughout the West. Private funding, equipment and labor from mining 
companies have been responsible for reclaiming and remediating many AML 
sites. Mining companies have spent tens of millions of dollars in 
voluntary on-the-ground cleanups and abatements of AML sites. AML 
policy discussions often dismiss or fail to recognize the progress 
made. Instead, the debate emphasizes the large but poorly defined 
dimensions of the AML problem.
    The Term Site Has Different Meanings and Must be Defined 
Specifically in Each Forum.--Some AML inventory efforts have considered 
a ``site'' to be any single opening, mining or exploration disturbance, 
or mining related feature. Other State AML programs and the mining 
industry define ``site'' to include multiple features that can be 
addressed with coordinated and consolidation abatement and remediation 
measures. Continued debate over a universal definition of AML ``site'' 
and development of a comprehensive hardrock AML inventory diverts 
attention and resources from the real issues that need to be addressed.
     Safety hazards are the dominant AML problem, and most 
sites pose no problem at all.--According to the Mineral Policy Center, 
97 percent of the abandoned sites it identified were characterized as 
reclaimed and/or benign, landscape disturbances or safety hazards. The 
survey indicates that abatement of safety hazards are generally less 
complex and less costly than environmental remediation actions. The WGA 
recently indicated that the majority of abandoned mines (greater than 
80 percent) create neither environmental nor immediate public safety 
concerns. These sites are either benign or manifest a landscape 
disturbance of some variety.
     The impediments to voluntary cleanup are twofold.--First 
there are the legal impediments, or risks of incurring new legal 
liability for taking voluntary action at an AML site. Second, there is 
the institutional impediment, which consists of the systematic one-
size-fits-all or command-and-control approach taken by regulatory 
agencies to public safety and environmental issues that inhibits 
voluntary, cooperative action at AML sites.
     The most significant legal barrier to voluntary cleanup at 
AML sites is the potential for incurring Comprehensive Environmental 
Response, Compensation and Liability Act (CERCLA) liability. Many high 
priority AML sites will not be remediated or reclaimed voluntarily, 
given the attachment of CERCLA liability to ``actual control'' 
activities.
     The Clean Water Act (CWA) creates another legal impediment 
to voluntary AML cleanups.--Given the CWA's broad legal jurisdiction, 
AML abatement, remediation or reclamation could easily be subject to 
CWA permitting requirements in the event of a discharge. The current 
CWA liability scheme discourages cleanup of AML sites, even if the 
cleanup would significantly reduce water pollution by controlling and 
treating discharges. This impediment is particularly apparent in cases 
involving the remediation of acid rock drainage (ARD) from underground 
workings.
     AML abatement, reclamation, and remediation solutions must 
be site specific.--Just as no two mines are identical, each AML site 
has unique characteristics based upon site-specific physical 
conditions, ownership patterns and history. Therefore appropriate 
solutions to problems at AML sites must be determined on a site-by-site 
basis. Command-and-control regulatory policies that require strict 
compliance with all environmental standards, particularly one-size-
fits-all water quality standards, have forestalled State and industry 
cleanup projects that would produce significant environmental benefits 
but do not meet specific numeric water quality standards. A new policy 
approach is needed to recognize the appropriateness of site-specific 
measures and to facilitate partial and incremental cleanup efforts by 
protecting participating parties from exposure to CWA liability.
     The regulatory approach in South Dakota has facilitated 
significant AML cleanup.--A streamlined regulatory environment that has 
minimized legal proceedings and protracted administrative and 
regulatory reviews and associated expenses in South Dakota has resulted 
in maximum resource expenditures for industry-
sponsored reclamation and remediation projects. This streamlined 
approach is critical and appropriate for industry-funded cleanups that 
involve no expenditure of public resources. The South Dakota regulatory 
model may be the easiest to replicate in states with an omnibus agency 
with jurisdiction over water quality, air quality, hazardous and solid 
waste, and mine reclamation.
     There are several sources of potential funding for the 
cleanup of abandoned mine sites.--Under the umbrella of the ``Clean 
Water Action Plan'', several Federal agencies have requested funds to 
engage in abandoned hardrock mine cleanups. Under certain circumstances 
and subject to certain constraints, funding for AML remediation 
projects also may be available under the Clean Water Act, section 319; 
Title IV of the Surface Coal Mining and Reclamation Act; and section 
206 of the Water Resources Development Act of 1996. Several states have 
established their own funding mechanisms to further their involvement 
in voluntary remediation projects.
     A funding information clearinghouse is needed.--It is 
difficult to assess the adequacy of available AML reclamation and 
remediation funding when the sources are located in so many different 
Federal programs. Industry, other private and semi-private parties, 
States, and the Federal Government would benefit from the creation of a 
data bank or cleaninghouse that identifies and describes available 
resources.
     There are numerous examples of remining, including the 
processing of existing mine wastes and the reprocessing of tailings and 
previously leached materials, in which mining companies reclaimed and 
remediated AML sites in and near active mining operations through 
synergism between the active mine/mill and the AML site.--Remining 
capitalizes on mining industry expertise, equipment, personnel, and 
existing waste disposal and mineral processing facilities and 
infrastructure to reclaim and remediate the nearby AML site. There are 
a number of AML sites where remining has occurred that have achieved 
significant environmental improvements. However, concerns about 
potential CERCLA and CWA liability attaching have inhibited mining 
industry activity in historic mining areas. Remining could contribute 
more to AML reclamation and remediation if CERCLA, CWA and other 
liability and institutional barriers were removed.
                               conclusion
    Western states and the mining industry have achieved measurable 
progress in addressing the AML problem. The progress has occurred in 
spite of significant legal and institutional barriers and disincentives 
and funding constraints. The threat of CWA and CERCLA liability pose 
serious legal impediments to both industry- and state-led hardrock AML 
abatement, reclamation, and remediation efforts. Similarly, 
institutional preferences for command-and-control approaches to public 
safety and environmental issues create a system in which incremental 
improvements at AML sites are foregone, because unattainable standards 
attach to states and miners who, in good faith, attempt reclamation and 
remediation of sites long since abandoned by an unidentifiable entity. 
The absence of a well coordinated information source on available 
funding mechanisms is also hindering state-led AML cleanup efforts.
                            1.0 introduction
1.1 The History
    When James Marshall reached into a side channel of California's 
American River to pick up a glittering nugget on a cold January day in 
1848, he unknowingly started the first hardrock mining boom in the 
American west. Mining districts organized and flourished and technology 
advanced rapidly. Names such as Coloma, Virginia City, Deadwood, Butte, 
White Pine, Bisbee, Wallace, Leadville, Telluride, Creede and a myriad 
of others became known throughout the country. Advancements in 
processing technology left sluices, arrastras, and stamp mills as 
historic artifacts. Although there were fits and starts, booms and 
busts, hardrock mining grew steadily into a powerful industry over the 
next 150 years, becoming a keystone in the settlement of the American 
west and in the development of the U.S. as a world-class industrial 
nation.
    However, like any growing industry with a rich history, mining left 
its mark. Prior to the enactment of stringent local, state, and Federal 
environmental laws and regulations beginning, more or less in the early 
1970's, mining was conducted in accordance with the existing laws that 
reflected the priorities of the time. The wastes produced by mining and 
ore processing--waste rock, mill tailings, and smelter slags--were 
deposited adjacent to the operating facilities or directly down-
gradient in the nearest valley or low spot, much as domestic wastes of 
the time were sent to the nearest moving water body. Gravity was 
considered the great equalizer--the best friend of miners and other 
industrial waste generators of the time. Once the commercial ore was 
exhausted or market prices fell below the cost of extraction and 
processing, operators commonly abandoned sites with little, if any, 
thought to reclamation or reuse of the land.
    In many settings, these old mine wastes remain vulnerable to wind 
and water erosion and, with the right geology and geochemistry, they 
generate acid and leach heavy metals. Throughout the west, there are 
streams in the vicinity of old mines with acid- and metals-contaminated 
waters draining from mine opening and mine waste piles. Unsecured mine 
openings and pit highwalls at old mines also create a public safety 
hazard--especially as suburban expansion of many western cities 
encroaches upon previously mined areas.
1.2 Previous Studies of Abandoned and Inactive Mines
    There is widespread agreement amongst all stakeholders--industry, 
government, and industry critics--that correcting the environmental and 
public safety problems created by old mines is an important goal. 
Various entities have undertaken a number of studies in the last 
several years to define the problem and to examine policy issues 
affecting cleanup and reclamation of old mines.
    In the early 1990's, the Western Governors' Association (WGA) 
conducted a detailed study and evaluation of the environmental and 
public health and safety aspects of abandoned and inactive mine 
(hereinafter referred to as ``Abandoned Mine Land or AML'') sites as 
well as the policy options for addressing these AML problems (Western 
Interstate Energy Board, 1991). Shortly thereafter, in 1994, the 
Colorado Center for Environmental Management (CCEM) and the U.S. Bureau 
of Mines (now defunct) released a report which extended the findings of 
the earlier WGA study (CCEM and USBM 1994).
    The debate regarding the extent, nature, and impacts of AML sites 
continued to gain momentum in the mid-1990's with significant 
discussion between the hardrock mining industry, State and Federal 
regulatory agencies, and the WGA. The issue of AML sites garnered 
considerable notice and concern at the national level in discussions 
relative to changes in mining laws and national mining regulatory 
strategies. Several reports were generated. One of the most recent, 
CCEM (1998), presents an excellent discussion of the barriers to and 
incentives for voluntary cleanup of AML sites.
    Also in the mid-1990's, the AML issue began to play an important 
role in influencing public dialog about proposals for new mines. For 
example, in a recent effort to stop the proposed Crandon Mine in Forest 
County, Wisconsin, anti-mining activists in Wisconsin pointed to 
environmental problems at old mines to justify mining moratorium 
legislation. In this context, AML sites create a challenging political 
and public opinion problem for the mining industry due to the effective 
manner in which anti-mining activists exploit environmental issues at 
old mines to create public concern about new mining proposals.
    Recognizing the importance of developing a coordinated program to 
help solve the AML problem, the mining industry, through the National 
Mining Association (NMA), began a dialog with the WGA. In 1997, the WGA 
and the NMA entered into a Memorandum of Agreement for the Abandoned 
Mine Land Initiative (AMLI), the first cooperative effort between 
industry and government to address the AML problem. Using seed money 
from the mining industry, AMLI is designed to consolidate financial 
resources and technological expertise in order to facilitate the 
identification and evaluation, and then promote the abatement 
remediation and reclamation of hardrock AML sites. This initiative is 
discussed at length in Crozier (1997).
1.3 AMLI Study Purpose and Scope
    One of AMLI's first goals is to obtain information on successfully 
reclaimed AML sites in WGA states. In March 1998, the NMA retained the 
services of the authors to compile data available from industry and WGA 
State AML programs on reclaimed or remediated inactive and abandoned 
sites and to prepare this report. The specific goal of this effort is 
to illustrate, with examples, that reclamation and remediation of AML 
sites is being accomplished effectively and efficiently by industry and 
the states using modern technology within the limitations of available 
resources and laws that create unintended barriers and disincentives.
    Within each WGA state, there are excellent examples of AML 
reclamation by the appropriate State agency, by industry alone, and by 
cooperative efforts between the states and industry. While the authors 
readily acknowledge that Federal land management agencies also have 
conducted significant reclamation and remediation of AML sites within 
their jurisdictions, evaluating these sites is beyond the designated 
scope of this investigation. In addition, cleanups of AML sites listed 
on the National Priorities List (NPL) and under the direct jurisdiction 
of the Comprehensive Environmental Response, Compensation and Liability 
Act (CERCLA) were not reviewed. However, some sites were included at 
which the implied or potential threat of becoming an NPL site triggered 
the cleanup action. Also, several sites at which AML cleanups were 
conducted as a CERCLA removal action (as distinguished from a CERCLA 
remedial action) were considered.
1.4 Methodology and Limitations
    Time and resource constraints limited this investigation primarily 
to telephone inquiries and interviews and searches of selected Internet 
resources and publications databases. Since both investigators reside 
in states (Nevada and Colorado) with long mining histories, active 
mining operations, and similarly active State AML programs, personal 
visits to those AML program managers were conducted. A meeting was also 
held with Wyoming AML program personnel because of this agency's 
accomplishments and well-funded AML efforts.
    Data and information regarding the sites investigated were 
consolidated in a simple data base arranged as a single page per site 
for quick and efficient review. This data base was designed for MS 
Access for PC and FileMaker Pro for the Mac platform. The information 
data base format was approved by NMA and WGA personnel prior to 
conducting the investigation. The data base was not designed to provide 
detailed technical information for each site. Likewise, this 
investigation is not an all inclusive inventory of the entire universe 
of successfully reclaimed AML sites. This is an important distinction 
because it became quickly apparent during the investigation that there 
are hundreds of examples of State and industry AML projects involving 
reduction of safety hazards and environmental improvements that could 
be included in the data base. If certain sites were excluded, it was 
just a matter of logistics given the short time frame of this study. 
For instance, discussions with some state AML agencies revealed that 
while there might be 50 or more completed AML actions in that state, 
time should limit inclusion to only a small percentage that represent 
elements of the others. Likewise, numerous industry projects were not 
included simply because designated contacts/managers were unavailable 
in time. Indeed, the listings in this report easily could be tripled or 
beyond given additional time.
    The discussions in this report and the conclusions and 
recommendations of this investigation are based on the data and 
information included in the 83 site data base forms in Appendix A and 
on the discussions held with the State and industry representatives 
listed in Appendix B. The sites in Appendix A are sorted alphabetically 
according to State and project within each state. As discussed, each 
data sheet is a stand-alone representation of a single project, or in a 
few cases, of a larger group of projects with similar characteristics. 
Many of the contacts listed in Appendix B are also shown in the 
``Comments'' data field for each site and are useful for future follow-
up or for obtaining photographs, additional detailed information, and 
information for possible future site visits if desired.
1.5 Definitions
    At first glance, the majority of terms used herein are well-known 
to those familiar with the hardrock mining industry and the AML issue. 
However, in conducting this investigation, it became evident that there 
are some subtle and not so subtle differences in the way in which these 
terms are used. Therefore, the following terms and definitions apply to 
this investigation:
     Site.--A specific ``project.'' A project can be a 
district, area, property, or ownership block and can have multiple 
``features'' such as adits, shafts, tailings facilities, and smelters, 
singly or collectively. However, a project also can entail, for 
example, closure of a single feature as at Wyoming's Jesse Project. The 
important point is that a ``one-size-fits-all'' definition for an AML 
site is not appropriate.
     Abandoned.--A site with no private owner of record 
typically on land managed (and often owned) by a Federal, state, or 
local government agency. These sites also have been referred to as 
``orphaned''.
     Inactive.--A site on patented/private land which, in 
contrast to an abandoned site, has an owner or owners of record. 
However, inactive mine owners are not typically the entity involved in 
the past mining activities that created the safety hazards or 
environmental problems. Moreover some owners of inactive mines do not 
have the financial resources necessary to correct the safety and 
environmental problems.
     Abatement.--The process of reducing public safety risks by 
sealing mine openings or other measures to secure safety hazards 
(Crozier, 1997).
     Reclamation.--The process of returning a site to a 
beneficial post-mining land use (Crozier, 1997).
     Remediation.--The process of improving environmental 
conditions and reducing environmental risks (Crozier, 1997). The terms 
``remediation'' and ``cleanup'' are used synonymously in this report.
     AML Improvement Project.--A collective and inclusive term 
meaning any combination of abatement, reclamation, or remediation 
measures that address one or more safety or environmental problems at 
an AML site.
     Remining.--The process of concurrent mining at an active 
mine and AML abatement, reclamation, and remediation at an adjacent or 
nearby AML site. Remining is a synergistic use of industry resources 
that benefits the environment with little or no expenditure of public 
resources, and reduces the AML owner's liability exposure. Some 
remining projects use existing, permitted facilities to process or 
reprocess previously mined materials such as mine wastes, waste rock, 
unused ore stockpiles, heap leach ores, tailings, contaminated soils, 
or smelter wastes at an AML site. More commonly, remining projects 
achieve AML abatement, reclamation, and remediation as a necessary 
consequence of new mining activity, as a feasible undertaking at an 
active mine, or as a voluntary measure at an adjacent or nearby AML 
site.
     Remowal Actions.--The process of removing and relocating 
previously mined materials to a mine waste disposal facility.
     In Situ Actions.--The process of regrading, covering, 
capping, or other measures to stabilize previously mined materials in 
place. In situ actions performed with resources from a nearby active 
mine are a form of remining.
                   2.0 an overview of the aml problem
2.1 What is an AML Site
    Exactly what is an AML site? This question has arisen numerous 
times from a variety of interested parties with varied backgrounds. As 
discussed previously, there is no pat answer, no standardized 
description. An AML site can be as small as a single shaft or open 
stope or as large as a multi-thousand acre district. An AML site can be 
owned by an individual or multiple persons, a large corporation with an 
active operation nearby, a small miner, a real estate developer, a 
bankrupt firm, a non-profit organization, an unknowing heir, an 
historical preservation group, the public at large (managed by a local, 
State or Federal Government agency), or any combination or permutation 
thereof. However, there are some generalities that apply to most (but 
not all) AML sites.
    The majority of AML sites are historic, and some are in mining 
districts with features included on the National Register of Historic 
Places. The ``typical'' site can be described as an underground mine 
which began operation in the mid- to late-1800's or early 1900's. 
Generally, but not always, a mill was associated with these historic 
operations. Milling may have started as a stamp operation and then been 
converted to a cyanide mill (after 1893) or a flotation mill where 
sulfides were present. Prior to approximately 1900, and even thereafter 
for some years, mill tailings were piped directly down-gradient to the 
nearest low point--usually a stream-course or moving water body. 
Likewise, waste rock materials were deposited near and directly down 
hill of the mine openings.
    In the early 1900's, constucted tailing impoundment technology 
began to be used in the industry, particularly where water was limited 
or scarce. These impoundments were constructed of wooden-cribbed dam 
faces and wooden decants and launder systems which allowed both process 
water and tailing to be diverted directly to the stream under overload 
circumstances. Although these impoundments provided a degree of 
environmental protection while active, they soon failed when operations 
became inactive or were abandoned.
2.2 The Temporal Relationship Between AML Sites and Environmental Laws
    These technologies certainly were refined for production 
efficiency, but generally were not radically changed until the 
enactment of environmental legislation and regulations in the 1970's 
and early 1980's. As discussed in Todd and Struhsacker (1997) and WGA 
(1998), mining at many metallic mining districts throughout the country 
began well before the advent of environmental laws and regulations. 
Nearly all of the environmental laws and regulations affecting metallic 
mining were enacted since about 1970. Mining at a number of important 
U.S. mining districts commenced more than a century before the 
enactment of these environmental laws, and were governed by existing 
laws that often favored development.
    What today is regarded as environmentally responsible modern mining 
is rooted in passage of the National Environmental Policy Act of 1969 
(NEPA), the Clean Air Act of 1970, the Clean Water Act of 1972, Federal 
Land Policy and Management Act of 1976, and other Federal laws. Many of 
the WGA states enacted state-level mining reclamation legislation 
during this same period (for example, the Montana Metal Mine 
Reclamation Act of 1971, the Colorado Mined Land Reclamation Act of 
1976, the Idaho Surface Mining Act of 1977, and the South Dakota Mined 
Land Reclamation Act of 1982). These State mining laws include 
reclamation bond requirements that are intended to ensure that today's 
mines do not become tomorrow's AML sites.
    Mine, mill, and smelter sites that closed, became inactive, or were 
abandoned prior to the enactment of Federal and State environmental 
laws were grandfathered and not required to come into compliance with 
the newly passed laws, or to be reclaimed or remediated in any fashion. 
In addition, a few sites became inactive or were abandoned after 
implementation of environmental regulation because of insolvency and 
bankruptcy. Thus, a variety of public safety and environmental problems 
remain unattended at many of these sites.
2.3 How Many AML Sites Are There
    The WGA recently contacted State AML programs to obtain information 
on the number of AML sites in each state. This information gathering 
exercise confirmed earlier AML inventory efforts that show that AML 
sites are spread unevenly throughout the west and that the confidence 
level of the data in the AML databases varies among states (WGA, 1998). 
The completeness of AML inventories is quite variable. To complicate 
matters even further, each State defines an abandoned mine slightly 
differently, making nation-wide compilations difficult if not 
impossible. Generally speaking, coal producing states have access to 
reclamation funds collected as a tax on coal production authorized by 
SMCRA, and therefore have more comprehensive AML inventories than those 
states with no or minor coal mining. (It should be noted that the SMCRA 
inventory process, especially for coal AML sites, was costly and 
inefficient and should not be used as a model for any future hardrock 
AML inventories).
    Although the desire for a definitive picture of the AML problem in 
the western U.S. is understandable, the unique and site-specific 
character of AML sites makes this a difficult if not impossible task. 
As discussed in Chapter 1, there is no one-size-fits-all definition of 
an AML site. Each site must be defined taking into account site 
specific factors including, but not limited to, climate, terrain, 
geology, hydrology, types of AML features, history, and ownership. It 
thus makes sense for each State to use a definition of AML site best 
suited to the conditions within that state.
    There are just too many variables at AML sites to pigeonhole, 
categorize and neatly inventory the universe of hardrock AML sites. 
Efforts to develop a comprehensive western regional AML inventory have 
reached a point of diminishing returns and will contribute nothing more 
to solving the AML problem.
    This investigation of successfully reclaimed AML sites shows that 
significant AML abatement, reclamation, and cleanup progress is being 
made by both State agencies and the private sector without a 
comprehensive AML inventory, and suggests a new AML paradigm is needed 
which recognizes it is not necessary to have a complete AML inventory 
prior to initiating AML reclamation and remediation programs. This 
finding validates the recent recommendation of the WGA's Abandoned Mine 
Inventory Guiding Principles Group (WGA, 1996). This group of diverse 
AML stakeholders including representatives from the mining industry, 
citizen and environmental groups, and State and Federal regulatory 
agencies developed a set of principles to guide future AML inventory 
efforts. One of the group's recommendations is that future inventory 
efforts should be viewed as an ongoing effort that can proceed 
concurrently with on-the-ground AML abatement, reclamation and 
remediation.
2.4 Typical Problems at AML Sites
    According to the WGA's recent AML data compilation, a majority of 
abandoned mines (greater than 80 percent) create neither environmental 
nor immediate public safety concerns (WGA, 1998). Of those sites at 
which problems exist, safety hazards are the dominant problem, although 
some AML sites have both safety and environmental issues.
    Other recent investigations corroborate that most hardrock AML 
sites pose no problems at all, and that the bulk of AML problem sites 
pose public safety hazards rather than environmental risks. For 
example, The Mineral Policy Center's (MPC's) 1993 AML report, ``Burden 
of Guilt'' speculates that there are 557,650 hardrock AML sites (Lyon, 
1993). Although the mining industry is highly critical of this report 
and the purported number of AML sites, the MPC's characterization of 
the nature of the AML problem (Table 2-1) is nonetheless consistent 
with the observation that most AML sites are not problematic and that 
landscape disturbance and safety hazards are the most common problems 
at AML sites.
    Although each AML site is unique, some generalizations can be made 
about AML safety, landscape disturbance (i.e., reclamation), and 
environmental issues. Most AML sites have one or more of the following 
problems:
     unrestricted and hazardous openings (shafts, adits, 
portals, stopes, subsidence features, exploration ``dog holes'');
     dangerous highwalls and open pits;
     unsafe structures and dilapidated buildings (many of which 
are of historic significance);
     physically unstable or erodible waste rock dumps, tailings 
deposits, and smelter wastes;
     acid rock drainage (ARD) from mine openings, waste rock 
dumps, and tailings deposits;
     surface and ground water quality degradation from 
sedimentation, ARD, and metals releases;
     blowing dust problems from unreclaimed tailings piles;
     contaminated soils;
     chemical contamination from processing reagents such as 
cyanide; and
     surface disturbance that detracts from the aesthetic or 
natural appearance of the site.
    The sites listed in Appendix A had one or more of these problems 
and are representative of the ways in which the states and industry 
have addressed safety, landscape, and environmental concerns at AML 
sites.

        Table 2-1.--Mineral Policy Center's Burden of Gilt Report
               Characterization of U.S.  Abandoned Minesa
------------------------------------------------------------------------
                                    Assumed Number of   Percent of Total
             Category                     Sites              Sites
------------------------------------------------------------------------
Reclaimed and/or Benign...........            194,500               34.8
Landscape Disturbance.............            231,900               41.6
Safety Hazard.....................            116,300               20.9
Surface Water Contamination.......             14,400                2.6
Groundwater Contamination.........                500              0.089
Superfund.........................                 50             0.0089
                                   -------------------------------------
  Totals..........................            557,650              100.8
------------------------------------------------------------------------
a Modified after Burden of Gilt, pages 6 and 31, Mineral Policy Center,
  June 1993.

  3.0 survey findings: state and industry progress in addressing aml 
                                problems
3.1 Types of Sites Being Improved
    Consistent with the findings of the recent AML investigations 
discussed in Chapter 2, this investigation found that the majority of 
AML sites reviewed required abatement of physical safety hazards (see 
Appendix A). At many of these sites, closure of mine-related openings 
such as adits, shafts, portals, subsidence features, and ponds 
constituted the only action required. One of the best examples of this 
is the Central City area-wide site in Colorado where over 1000 features 
have been abated in some manner. Of these 1000 features, approximately 
950 are vertical openings (each of these features may be designated as 
an individual ``site'' by others). Likewise, the Nevada Statewide 
Program has abated over 4500 such features either directly through the 
State AML program or in conjunction with private land owners and claim 
holders.
    A smaller percentage of the sites examined in this survey required 
both abatement of safety hazards and site reclamation and/or 
remediation activities. Typically, actions at these sites are larger 
scale and may involve some or all of the following measures: securing 
mine openings; removing or stabilizing buildings, foundations, or other 
operational structures; minimizing highwalls; reducing unsafe slopes on 
waste rock dumps and dredge tails; recontouring and revegetating (i.e., 
reclaiming) disturbed land; and remediating environmental problems 
caused by mine, mill and smelter wastes and mine drainage.
    Generally speaking, State AML programs are principally involved 
with abating AML safety hazards whereas industry efforts typically 
address AML environmental as well as safety problems. The predominance 
of state-sponsored safety closures largely reflects restrictions in the 
way in which SMCRA reclamation funds can be used. The remainder of this 
chapter presents some generalizations about the various safety 
abatement and environmental remediation methods typically used at AML 
sites.
3.2 Abatement of Safety Hazards
            3.2.1 Methods for Securing Mine Openings
    There is no prescriptive, one-size-fits-all means for closing or 
otherwise abating public safety hazards at AML sites. Numerous 
techniques and methods are being used depending upon the type of 
feature, public accessibility, land/claim owner or manager, location 
and general environment, presence of bats, historic importance of the 
feature, and funding availability and sources. Again, as with all 
facets of AML site reclamation/remediation, each site and each feature 
requires abatement measures tailored in response to site-specific 
conditions.
    The most prevalent means of closing mine openings throughout the 
WGA region is by partial or complete backfilling. If heavy equipment is 
available at the site or at nearby active operations, backfilling may 
be expedient. Backfilling combined with a plug, panel, or cap of some 
sort also is popular in a number of states. Such seals can be concrete, 
in situ or as precast panels, wood, steel, or sprayed/pumped 
polyurethane. In several instances, expensive and sophisticated 
engineered bulkhead plugs have been installed in adits and portals 
where mine drainage is active. Such bulkheads allow control and 
monitoring of mine water. In some instances, as in the case of the 
Keystone Mine in Colorado, these bulkheads direct mine drainage to an 
active water treatment facility.
    Gates, doors, drain doors, and grates also are in widespread use by 
both State AML agencies and industry. Gates and doors can be installed 
inexpensively, and are appropriate in more remote areas where access to 
heavy equipment is limited. Grates and grated gates are used widely to 
close adits known to be used by various bat species. It has been long 
known that bats will inhabit abandoned or inactive mine openings. 
Significant research (Pierson, et al., 1991) at Homestake Mining 
Company's McLaughlin Mine in California documented and substantiated 
such use and initiated industry-wide awareness of mine closure and bat 
habitat issues. However, as discussed below, developing measures to 
close mine openings that do not preclude use of the mine by bats 
sometimes creates challenges and resource conflicts.
    The least expensive, and in some areas, the most widely used method 
of safety hazard abatement is simple fencing and signage. The State of 
Nevada AML program minimizes public safety problems at AML openings 
through the use of fencing and warning signs. (The Nevada program also 
features an aggressive public outreach campaign, ``Stay Out and Stay 
Alive'', to educate the public about the dangers associated with mine 
openings. Arguably, fencing is easily breached or destroyed by the 
curious or those seeking entrance. However, fencing is inexpensive 
(approximately $175 per feature in Nevada) and easily maintained or 
reinstalled. Given the limited availability of AML funds, many more 
sites can be secured with fences than backfilled, sealed, or gated. 
Nevada AML program personnel make the case that the majority of closure 
techniques may fail over time and that most can be breached by those 
with the will and means to gain entrance. In addition, issues related 
to historic preservation and bat habitat become moot if the features 
are left undisturbed except for fence installation.
            3.2.2 Issues and Problems Associated with Safety Abatements
    It became quickly apparent during this investigation that several 
specific issues face both state AML agencies and private parties when 
closing mine openings or removing/stabilizing mine and mill structures 
at AML sites. These issues involve historical aspects of the site or 
feature and utilization of specific features by bat species. A third 
issue involves the long-term integrity and stability of closures.
    Historical preservation has become an extremely important and 
sensitive issue in implementing safety abatement programs involving 
public or private funds. Commonly, AML sites are located within or 
adjacent to historic mining districts with rich histories. In some 
instances, mine or mill sites may have distinct architectural 
structures remaining such as headframes, loadouts, or step-design 
buildings which contribute to the historical value of the particular 
site. Local stakeholders, State historic preservation officers (SHPOs), 
Federal land management agencies (if Federal lands are involved), and 
the general public have interests in maintaining historical integrity 
of such sites.
    Thus, what would be (in most cases) a relatively simple safety 
abatement can become an expensive, complex and, occasionally, a highly 
contentious public issue if a site is within an area of historical 
importance or on its own merits may qualify for historical designation.
    During this investigation, 15 sites (see Appendix A) were found 
where historical/cultural resources issues were considered 
``obstacles'' to efficient closure. However, in each case, State 
agencies and private parties worked through the process to obtain 
consensus for the closure action. As evidenced by Colorado's 
historically complex Central City area wide site (Appendix A), the 
Colorado Division of Minerals and Geology (DMG) has been particularly 
effective in integrating historical aspects of features into abatement 
programs.
    As discussed above, preserving bat habitat in mine-related openings 
has become an issue complicating some AML abatement efforts since the 
beginning of the 1990's. Of the sites in Appendix A, 11 had definitive 
bat habitat which required specifically designed closure techniques. 
Grates and bat gates which allow free movement of bats into the mine 
openings but exclude larger animals and humans are the most common 
forms of closures in these instances. Construction and installation of 
bat gates is expensive when compared to other closure techniques. For 
example, the bat gates installed at the Nevada Golconda Tungsten site 
(private funding) cost approximately $1000 each. In comparison, the 
State of Nevada AML program abates all openings with fencing which 
costs approximately $175 per mine opening, causes no disturbance to the 
openings proper, and has no impact upon bat usage of the underground 
mine.
    Although the jury remains out, most if not all safety abatements 
other than complete backfill, while generally effective in the short-
term, may not withstand the test of time. Certainly, wooden structures 
such as some doors, gates, and panels will deteriorate over time even 
if properly treated. Likewise, concrete and steel, while lasting 
significantly longer, also will deteriorate. Minor subsidence, changes 
in mine water quality and quantity, and general exterior and internal 
mine climatic factors can cause bulkheads, plugs, and seals to lose 
integrity and efficiency.
    Vandalism in its varied forms and styles is anathema to closure 
structures, agencies, and industry. Human will-power, coupled with the 
right equipment, can breach all closures including concrete panels, 
bulkheads, and partial backfills, with the possible exception of total 
backfill. Therefore, to be effective in the long-term, safety closures 
need to be monitored for structural integrity on a regular basis. 
Indeed, the majority of the sites in Appendix A which include safety 
closures are monitored to varying degrees. However, the future duration 
of such monitoring beyond 3 to 5 years is unknown even to the agencies 
and firms conducting the inspections, and will depend to a large degree 
upon availability of funds and personnel.
3.3 Remediation of Environmental Problems
            3.3.1 Characteristics of AML Sites with Environmental 
                    Problems
    Under the broad definition of the term ``remediation'' used in this 
investigation, 63 of the sites listed in Appendix A have been or are 
undergoing remediation actions to address environmental problems. A 
number of these remediated sites also include significant abatement 
activities.
    Interestingly, of these 63 remediated AML sites, 43 have been (or 
are being) done by industry and funded, in large part, with private 
capital.
    Environmental cleanup problems at the AML sites listed in Appendix 
A typically were due to contaminant releases or the potential for such 
releases from mine wastes to the environment. Releases of sediments, 
metals, and ARD to surface waters and groundwater present the largest 
issues at these sites. Wind-blown tailings were problematic at several 
of the sites examined. A few of the identified sites also had 
contamination or potential contamination due to the presence of non-
mining wastes and chemicals. Typically, the non-mining and chemical 
wastes were materials used in mineral processing and equipment 
maintenance. Some of these non-mining and chemical wastes may be 
regulated as hazardous (i.e., RCRA Subtitle C wastes) and require 
special, offsite disposal or treatment measures.
    Although environmental problems at many of the AML sites in 
Appendix A were derived directly from the interaction between the 
environment and aboveground mine wastes, problems at several of the 
sites were due to contaminated drainage emanating from underground mine 
openings. Contaminated mine drainage typically has a low pH (i.e., is 
acidic) and contains dissolved metals in concentrations harmful to 
aquatic life and other beneficial uses of surface water. Mine openings 
with contaminated drainage constitute a subset of AML remediation 
problems and represent some of the most technically challenging AML 
sites to remediate. Moreover, parties involved with remediation efforts 
at these sites potentially face complex regulatory and liability 
issues. The technical challenges; associated with remediating 
contaminated drainage from mine openings is discussed in more detail 
below. The legal and regulatory issues surrounding these sites are 
discussed in Chapter 4.
            3.3.2 Typical Environmental Cleanup Measures
    Regardless of the nature or severity of the environmental 
problem(s) an AML site, the survey results indicate that viable 
solutions require a site-specific approach. The methods used for source 
control and remediation of the sites in Appendix A are designed in 
response to the climate, terrain, geology, mining features, and other 
factors at each site. The need for site-specific solutions to AML 
problems is analogous to the need for site specificity in designing 
mine plans and reclamation measures for active mines. However, from 
site to site, there are some general similarities in approach to AML 
environmental remediation, and it is possible to make some 
generalizations about the types of environmental cleanup measures 
commonly used.
    The remediated sites in Appendix A include removal actions, 
repository actions, and in situ actions. Removals have caused the mine 
wastes to be completely or partially removed from the initial 
deposition area to an active, permitted facility. (In some cases, 
removal actions involve remining in which the previously mined 
materials are processed or reprocessed at an existing modern mill or 
heap leach facility. (Remining is discussed in detail in Chapter 5). 
Repository actions involve consolidating and moving the wastes to a 
new, engineered mine waste repository that has been specifically 
designed and built as a remediation measure to contain the old mine 
wastes. In situ actions stabilize and reclaim the wastes in place. As 
per the definitions in Chapter 1, all removal actions, and those 
repository and in situ actions using equipment/personnel from a nearby 
active mining operation are considered remining.
    Removal actions, repository actions, or a combination of the two 
were typically used to remediate sites where mine wastes were in 
contact with surface water (including wetlands) or had a demonstrated 
impact to groundwater. While expensive, removal and repository AML 
remediation actions were usually technically straightforward. Of the 
sites in Appendix A, 23 involved repositories, 29 involved in situ 
actions, five involved removal actions, and two involved a combination 
of remedial actions Table 3-1). All of these AML remediation actions 
have improved the landscape and environmental conditions at each site.
    If the source of contaminant release is fine-grained wind-blown 
tailings only, remediation actions many times are characterized by in-
situ reclamation. Multiple tailings impoundments may (or may not be) 
consolidated and surfaces stabilized by capping and vegetating. In some 
instances, particularly where radionuclides are an issue, a multi-media 
cap followed by placement of a rock cover on the surface may be the 
remedy of choice.

       Table 3-1.--Remediation Actions at AML Sites in Appendix A
------------------------------------------------------------------------
              Site                      Action          Funding Source
------------------------------------------------------------------------
AZ--Stockton Mill...............  Repository........  Private
CA--Buchanan Mine...............  In situ...........  Private
CA--Valley View Mine............  In situ...........  Private
CO--Alta........................  In situ...........  Private
CO--Capitol Prize...............  In situ...........  Private
CO--Crystal Hill................  In situ...........  Private
CO--John Reed Mine..............  Removal...........  Private
CO--Keystone Mine...............  In situ...........  Private
CO--Rawley Mine and Tailings....  Repository........  Private
CO--Rico........................  In situ...........  Private
CO--Sunbank.....................  In situ...........  Private*
CO--Sunnyside Mine and Tailings.  In situ...........  Private
CO--Upper Chalk Creek/Mary        Repository........  SMCRA, 319 et al
 Murphy.
ID--Alta Mine...................  Removal...........  Private
ID--Cataldo Flats...............  Repository........  Private
ID--Wagontown Placer............  In situ...........  Private
MT--Black Pine..................  In situ...........  Private
MT--Blackfoot Tailings..........  Repository........  SMCRA
MT--Brooklyn Mine...............  Repository........  SMCRA, USFS
MT--Charter Oak Mine and Mill...  Repository........  SMCRA
MT--Corbin Flats Tailings.......  Repository........  Private
MT--Curlew Mine.................  Repository........  SMCRA
MT--Empire Mine.................  Repository........  SMCRA
MT--Glen Tungsten Mill..........  In situ...........  SMCRA
MT--Golden Messenger Mine and     In situ...........  SMCRA
 Mill.
MT--Joslyn Street Tailings......  Repository........  Private**
MT--Lower Tenmile Mill..........  Repository........  EPA
MT--Maxville Tailings/            Repository........  SMCRA
 Londonderry.
MT--McLaren Tailings............  In situ...........  Private
MT--Mike Horse Mine.............  Repository........  Private
MT--Park Mine...................  In situ...........  SMCRA
MT--Piegan Gloster..............  Repository........  SMCRA
MT--Pony Mill...................  In situ...........  Private
MT--Red Water...................  Repository........  EPA
MT--Stillwater Chromium Tailings  Repository/In situ  Private
MT--Vosberg.....................  Repository........  SMCRA, USFS
NV--Alligator Ridge Project.....  In situ...........  Private
NV--Buckhorn/Red Springs........  In situ...........  Private
NV--Dean Mine...................  Removal/In situ...  Private
NV--Getchell Smelter and          In situ...........  Private
 Tailings.
NV--Golconda Tungsten Mine......  In situ...........  Private
NV--Nevada Copper Tailings......  In situ...........  Private
NV--Robinson Mining District....  In situ...........  Private
NM--Bull Hill Mine and Mill.....  Repository........  Private
NM--Bull Frog Mill and Tailing..  Repository........  Private
NM--Westar Heap.................  Removal...........  Private
OR--Amalgamated Mill............  Removal...........  Private
SD--Bald Mountain Tailings......  In situ...........  Private
SD--Double Rainbow Mine.........  Removal...........  Private
SD--Gilt Edge Tailings..........  Respository.......  Private
SD--Maitland....................  Removal...........  Private
SD--Red Placer..................  In situ...........  Private
TX--Shafter Tailings............  Respository.......  Private
UT--Gold Hill...................  In situ...........  Private
UT--Mercur Mine.................  Removal...........  Private
UT--SF Phosphate................  In situ...........  Private
WA--Sherwood Mine...............  In situ...........  Private
WY--Atlantic City Tailings......  In situ...........  SMCRA
WY--Carissa Mine Tailings.......  Repository........  SMCRA
WY--Encampment River Tailings...  Repository........  SMCRA
WY--Shirley Basin Uranium.......  In situ...........  SMCRA
WY--Sunrise Mining District.....  In situ...........  SMCRA***
------------------------------------------------------------------------
*Included some Clean Water Act 319 funds for experimental work.
**Included off-set funds from MT CECRA.
***Included small forfeited bond from previous operator.

3.4 Technical Challenges
    As a general observation based on the information in Appendix A, 
technical challenges are not a significant barrier to AML abatement or 
AML cleanup at sites requiring mine waste removal, repository, or in 
sit actions and landscape improvements. The technologies used to 
relocate and stabilize mine waste typically involve engineered liner 
and capping systems and stream diversion measures identical to those 
used at modern mines and other industrial facilities, and no technology 
gaps were identified. Similarly, AML landscape issues are addressed 
using the same reclamation techniques employed at active mines. No 
technical problems were recognized with the commonly used techniques to 
seal mine openings to abate safety hazards. Although implementing the 
appropriate abatement and remediation measures may be costly, (and 
available funding sources are typically quite limited), technical 
challenges do not appear to be a significant impediment.
    In contrast, technical challenges are a serious barrier to AML 
cleanup at sites with acidic and metals-bearing drainage from 
underground mine openings. Mine plugging activities to eliminate 
drainage from an underground mine often produce contaminated seepage 
from some other location. Moreover, treating mine drainage to meet 
National Pollutant Discharge Elimination System (NPDES) permit effluent 
limits may be very costly, particularly at remote sites with no source 
of power, and may require treatment in perpetuity. Although passive 
water treatment systems such as wetlands may significantly improve 
water quality conditions, they may not achieve full compliance with 
strict, numeric water quality standards for one or more parameter. The 
Acid Drainage Technology Initiative (ADTI), a cooperative effort 
involving the mining industry and State and Federal agencies, and other 
entities are currently researching and developing new passive treatment 
technologies.
    Additionally, as discussed in Chapter 4, sites that are unable to 
meet applicable water quality standards and NPDES permit effluent 
limits face serious legal problems due to their vulnerability to CWA 
lawsuits. Given the chilling effect that CWA lawsuits are currently 
having on State and industry cleanup of AML sites with acidic mine 
drainage, it appears that this legal barrier must be removed prior to 
committing any significant resources towards mine plugging and water 
treatment technology development. It seems unlikely that either the 
states or industry will be willing to pursue AML cleanups and test new 
technologies at sites with acid drainage from mine openings without 
some form of liability relief.
3.5 Funding Sources for AML Improvement Projects
    A complete investigation of the funding sources available for AML 
improvement projects was beyond the scope of this survey. However, the 
following presents a brief overview of existing funding sources and 
several funding proposals currently under consideration in the Federal 
Fiscal Year 1999 budget.
    There are several sources of proposed Federal funding for the 
cleanup of abandoned mine sites. For fiscal year 1999, the Bureau of 
Land Management (BLM) has requested a $6 million ``investment in the 
cleanup of abandoned hardrock mine sites.'' (Interior Budget in Brief, 
February 1998 at page BH 6). In conjunction with this proposal, the 
U.S. Geological Survey will provide support to the BLM and other 
agencies to characterize watersheds and the impacts of past mining 
practices. (Interior Budget in Brief, February 1998 at page DH 20).
    In addition to these sources, individual line item appropriations 
such as $3.74 million approved by the House Appropriations Committee 
for the continued cleanup of the abandoned Penn Mine site in California 
may become available for specific projects. Under certain 
circumstances, and subject to certain constraints, funding for AML 
Remediation projects also may be available under the Clean Water Act, 
section 319; Title IV of the Surface Mining Control and Reclamation Act 
of 1997; and section 206 of the Water Resources Development Act of 
1996. Other sources of funding available to State AML agencies include, 
but are not limited to, grants from the EPA (headquarters grants, 
headwaters programs, etc.) and other Federal agencies, historic 
preservation grants, and partnerships with industry.
    During the survey, several individuals associated with State AML 
programs indicated that information on the existence and availability 
of Federal AML cleanup funds is not always easy to obtain. It is clear 
from these discussions that State and Federal agencies, industry, and 
watershed organizations would all benefit from the creation of a data 
bank or clearinghouse that identifies and describes available Federal 
AML cleanup resources. The issue of AML funding sources is explored at 
greater length in CCEM (1998).
    Several states have established their own funding mechanisms to 
further their involvement in AML improvement projects. For example, the 
Colorado DMG receives annual capital for AML closures from the Gaming 
Fund from the casino industry located in historic mining areas of 
Central City, Blackhawk, and Cripple Creek. The DMG also has 
established a highly workable policy of cost-sharing to close hazardous 
mine openings on private lands. Landowners with such hazards can make a 
contribution to the DMG AML fund in return for which their site is 
given preferential treatment for abatement action . . . those 
contributing the most move higher on the list of priorities. In one 
case (Colorado-Alta), a larger scale AML site owned by a real estate 
developer was remediated in award-winning fashion through the DMG and 
funded by a significant contribution from the owner.
    State-industry partnership programs have been used on an ad hoc 
basis with some success on some sites, but the concept has not been 
institutionalized in any State with the possible exception of South 
Dakota. The South Dakota Department of Environment and Natural 
Resources (DENR) developed a program that works directly with industry 
to provide some CERCLA liability relief and to streamline the 
regulatory and administrative processes which commonly cause industry 
to shy away from undertaking AML improvement projects. This program has 
been a resounding success, driving the voluntary reclamation/
remediation of approximately 65 AML sites in the Black Hills region. 
Additional information on this program is found in Chapter 4.
3.6 AML Improvement Project Awards
    While this investigation has documented many of the issues, 
problems, and obstacles to solving the AML problems, it also has found 
that many AML projects have received prestigious State and Federal 
awards for reclamation and environmental stewardship. Seventeen of the 
sites in Appendix A either have received awards or have been nominated 
for an award. Award recipients include AML, improvement projects 
undertaken by both State AML agencies and industry (five and twelve, 
respectively). Table 3-2 presents these sites and the awards received.

    Table 3-2.--Award for State and Industry AML Improvement Projects
------------------------------------------------------------------------
             State                      Site                Award
------------------------------------------------------------------------
Colorado.......................  Alta..............  1997 CMLRB
                                                      Reclamation Award
Colorado.......................  Crystal Hill......  1995 CMLRB
                                                      Reclamation Award;
                                                      BLM Byways Site
Colorado.......................  Keystone Mine.....  1993 CMLRB
                                                      Reclamation Award
Idaho..........................  Alta..............  ID Reclamation
                                                      Awards--Outstandin
                                                      g Achievement
                                                      Award
Idaho..........................  Wagontown Placer..  ID Reclamation
                                                      Awards--1997
                                                      Special
                                                      Reclamation
                                                      Project Award
                                                      (nominated)
Montana........................  Brooklyn Mine.....  1995 USFS
                                                      Appreciation Award
Montana........................  Curlew Mine.......  Nominated for
                                                      several, but
                                                      unlisted.
Montana........................  Mike Horse Mine...  1996 Lewis & Clark
                                                      SCS Environmental
                                                      Excellence Award
Nevada.........................  Alligator Ridge     1997 BLM Health of
                                  Mine.               the Land Award
Nevada.........................  Nevada Copper       1995 Nevada
                                  Tailings.           Governor's Award
New Mexico.....................  Gage..............  1995 OSM National
                                                      AML Award
Texas..........................  Terlingua.........  1996 National Park
                                                      Partnership-
                                                      Leadership
Utah...........................  Calumet Shaft.....  1998 State of Utah
                                                      Earth Day Award
Utah...........................  Gold Hill.........  State of Utah Earth
                                                      Day Award
Utah...........................  Parrot Shaft......  State of Utah Earth
                                                      Day Award
Utah...........................  Texas Shaft.......  State of Utah Earth
                                                      Day Award
Wyoming........................  Sunrise Mining      1998 OSM National
                                  District.           AML Award
                                                      (nominated)
------------------------------------------------------------------------

       4.0 survey findings: policy issues affecting aml solutions
4.1 Policy Issues Overview
    Based upon the survey results, there are a number of policy issues 
affecting State and industry AML abatement, reclamation, and 
remediation activities (including remining in historic mining 
districts) throughout the western U.S. For the most part, these policy 
issues are impeding and in some cases preventing solutions to the AML 
problem. However, the survey did identify a few policy approaches that 
show promise in facilitating AML improvement projects.
    The specific policy issues that are adversely affecting progress on 
solving the AML problem include the following:
     Legal Impediments: CWA and CERCLA liability;
     Institutional Impediments: command-and-control regulatory 
approach;
     Defining and attaining cleanup requirements--particularly 
water quality standards in highly mineralized areas;
     Interagency jurisdiction and coordination; and
     Failure to differentiate between sites with long-term 
liabilities versus sites with less serious liabilities.
    The following emerging policy approaches offer partial solutions to 
the AML problem:
     The South Dakota Steamlined Interagency Regulatory Process 
Model
     CWA Section 319 Grants; and
     State Voluntary Cleanup Programs.
    These policy issues are discussed in this chapter.
4.2 Legal and Institutional Impediments
    At many inactive mine sites it is simply good business practice and 
in the owner's best interest to reclaim the site as expeditiously and 
efficiently as possible. However, two major impediments to voluntary 
cleanups are significantly limiting the mining industry's ability to 
undertake AML improvement projects (Crozier, 1997). First there are the 
legal impediments, or risks of being exposed to new legal liability for 
taking voluntary action at an AML site. Perhaps the most significant 
legal barrier to voluntary cleanup at AML sites is the potential for 
incurring CERCLA liability. Many high priority AML sites will not be 
remediated or reclaimed voluntarily, given the attachment of CERCLA 
liability to ``actual control'' activities. Another legal impediment to 
voluntary AML cleanups is the CWA. Given the CWA's broad legal 
jurisdiction, AML abatement, remediation or reclamation activities 
could easily be subject to CWA permitting requirements in the event of 
a discharge. The current CWA permitting liability scheme discourages 
cleanup of AML sites, even if the cleanup would significantly reduce 
water pollution by controlling and treating discharges. This impediment 
is particularly apparent in cases involving remedition of acid rock 
drainage (ARD) from underground workings.
    Second, there is the institutional impediment associated with 
having to comply with the systematic command-and-control approach taken 
by regulatory agencies to public safety and environmental issues. This 
mind set and the rigid application of arbitrary and prescriptive 
environmental performance standards inhibits voluntary, cooperative 
action at AML sites. It also stifles innovation and new technology 
development. Moreover, regulatory policies that require strict 
compliance with all environmental standards, particularly one-size-
fits-all water quality standards, have forestalled State and industry 
cleanup projects that would produce significant environmental benefits 
but do not meet specific numeric water quality standards.
    Just as no two mines are identical, each AML site has unique 
characteristics based upon site-specific physical conditions, ownership 
patterns and history. Therefore, appropriate solutions to problems at 
AML sites must be determined on a site-by-site basis. Unfortunately, a 
command-and-control regulatory framework is not supportive of site-
specific solutions. A new policy approach is needed to recognize the 
appropriateness of site-specific measures and to facilitate partial and 
incremental cleanup efforts by protecting participating parties from 
exposure to CWA liability.
            4.2.1 Defining and Attaining Cleanup Criteria
    Defining appropriate and attainable cleanup criteria at AML sites 
with contaminated surface water and/or groundwater creates both 
technical and regulatory challenges that may impede State and industry 
AML cleanup activities. At many AML sites, naturally occurring 
geochemical reactions between the mineralized rocks and the surface 
water or groundwater systems contribute dissolved metals, sulfate and 
other parameters to proximal surface and groundwater resources. 
Consequently, surface water and groundwater systems in and near some 
orebodies have background water quality conditions that may exceed one 
or more regulatory standards. The absence of baseline (i.e., premining) 
water quality data for most AML sites makes determining any incremental 
contamination due to mining activities technically challenging and 
impractical at some sites.
    However, the naturally occurring levels of metals and other 
chemical constituents contributed by the orebody need to be considered 
in developing reasonable AML water quality cleanup goals. As discussed 
in CCEM (1998), states often apply EPA ``Gold Book'' standards in 
defining numeric concentration limits for pollutants like heavy metals. 
These one-size-fits-all standards do not consider site-specific factors 
including the geochemical signature that an orebody may imprint upon 
nearby surface waters. The unilateral application of Maximum 
Contaminant Levels (MCLs) to determine groundwater quality cleanup 
requirements poses similar problems at mineralized sites at which 
groundwater quality reflects the geochemistry of the orebody.
    The CWA authorizes the EPA to require owners of both active and 
inactive mines to obtain an NPDES permit that stipulates effluent 
limits for surface water discharges from both active and inactive 
mines. Depending upon the designated beneficial use of the receiving 
surface water and the corresponding water quality standards, NPDES 
permits typically establish stringent effluent limits. Active mining 
operations successfully employ proven and effective water treatment 
technologies to meet NPDES permit limits. However, these water 
treatment measures may not be feasible at many AML sites.
    The use of Gold Book standards to set surface water quality 
standards or MCLs to set groundwater quality standards creates a 
significant dilemma at many AML sites. Applying these standards may 
require an AML cleanup effort to achieve the impossible--to make a site 
``cleaner than clean'' by mandating improvements in water quality that 
do not reflect pre-mining conditions and the presence of metals, 
sulfate, etc. due to naturally occurring reactions between the orebody 
and the surrounding water systems.
    The legal and regulatory problems created by applying established, 
one-size-fits-all water quality standards to ARD cleanup projects are 
not unique to hardrock AML sites. Numerous coal AML sites have ARD 
problems similar to hardrock AML sites and face analogous policy issues 
regarding compliance with NPDES permit limits. The OSM recognizes these 
challenges and is considering scenarios in which relaxed water quality 
standards should be applied in order to facilitate AML cleanup projects 
that would result in incremental water quality improvements but that 
may not meet stringent NPDES permit limits (K. Karpan, personal 
communication).
            4.2.2 Clean Water Act Lawsuits
    A number of State and industry survey respondents expressed 
concerns about the cleanup standards with which they would be faced 
should they undertake an AML project involving surface water or 
groundwater remediation. As discussed in Chapter 3, significant water 
quality improvements can be realized using a number of proven and 
practical technologies. However, at many sites, achieving compliance 
with water quality standards and NPDES permit limits may be difficult 
and costly. For example, passive water treatment systems such as 
wetlands or anoxic lime beds are a practical solution at AML sites 
without power or an entity with sufficient funds to run a treatment 
plant, and can achieve significant water quality improvements. However, 
passive systems may not be able to achieve compliance with water 
quality standards and NPDES permit limits.
    Owners of inactive mine sites with an unpermitted surface water 
drainage are facing third-party CWA lawsuits compelling them to acquire 
an NPDES permit. One California regulator predicted that these mine 
owners, some of whom are individuals not otherwise affiliated with the 
mining industry, may face future litigation under the CWA for failure 
to meet the effluent limits mandated in their NPDES permits. 
Individuals from both State agencies and industry voiced serious 
concerns about vulnerability to third-party CWA lawsuits in the event 
that AML cleanup measures do not meet water quality standards, and 
stated that this concern is having a significant chilling effect on 
both state-led and industry-led AML projects at which there are surface 
water quality and mine drainage issues.
    Several respondents referred to the Penn Mine in California in 
justifying their concerns about potential exposure to CWA lawsuits. At 
the Penn Mine, the East Bay Municipal Utilities District (EBMUD), and a 
State regulatory agency, the Central Valley Regional Water Quality 
Control Board, constructed facilities to contain contaminated mine 
drainage. The containment measures substantially improved downstream 
water quality conditions but did not eliminate drainage from the site. 
A local activists' group sued the utility district and the regulatory 
agency claiming illegal discharges without an NPDES permit (Committee 
to Save the Mokelumne River v. EBMUD, 1993). The plaintiffs prevailed 
in Federal appeals Court and ultimately reached a settlement with the 
defendants involving a plan to treat the remaining mine drainage and 
additional site remediation work.
    The Rico Project in Dolores County, Colorado is another example of 
a site at which concerns about CWA liability significantly influenced 
AML cleanup activities. Atlantic Richfield Company (ARCO) performed 
extensive AML remediation and reclamation work at this site under 
Colorado's Voluntary Cleanup and Redevelopment Act (see Appendix A). 
However, mine water treatment was not included as part of the 
remediation effort due to CWA liability concerns. Similarly, the 
Colorado DMG has been unwilling to pursue water treatment remediation 
efforts in the Central City area due to concerns about CWA liability 
and becoming a potential target for third-party lawsuits.
    Based upon the survey results, it appears that the concern about 
vulnerability to CWA citizen lawsuits is creating a significant barrier 
to both State and industry efforts to improve AML sites with acid mine 
drainage issues. The end result of this reluctance to become involved 
with these AML sites is a net loss to the environment. No environmental 
improvements are being realized at sites at which a partial cleanup 
could achieve incremental (and in some cases significant) water quality 
improvements. It is truly unfortunate that what appears to be misguided 
pursuit of the possibly unattainable perfect (i.e., 100 percent 
cleanup) is thwarting realization of the good (i.e., a partial but 
meaningful cleanup).
            4.2.3 Interagency Jurisdiction and Coordination
    A number of survey respondents noted that work on AML sites is 
sometimes made more complicated and frustrating due to interagency 
jurisdictional issues that precipitate a challenging agency 
coordination task. Although these issues were ultimately resolved at 
most sites, they did cause delays and added to the overall cost of the 
AML improvement projects.
    The most common interagency issue identified during the survey was 
satisfying the conflicting mandates between agencies charged with 
protecting historic sites, wetlands, or wildlife habitat, and agencies 
whose primary mission is abating public safety hazards at AML sites. As 
described in Chapter 3, AML closure measures that focus on plugging 
mine openings and removing dilapidated buildings and mine structures 
may first have to address concerns regarding historic preservation or 
wildlife (especially bat) habitat protection. Resolution of these 
competing interests was time consuming and expensive at some sites.
    Another source of interagency conflict was different agency 
perceptions regarding the necessary level of environmental review and 
formal permitting. A formal (and sometimes protracted) environmental 
review and permitting process may delay AML improvement projects and 
can be a significant disincentive for industry-led AML projects. Work 
on AML sites is season-dependent at many high elevation sites 
throughout the west where the practical field season is limited. 
Moreover, there are seasonal constraints associated with revegetation 
measures (i.e., reseeding, seedling transplanting, etc.) in order to 
take advantage of optimal soil moisture and precipitation conditions. 
Regulatory reviews that are not responsive to these seasonal 
considerations can delay work on an AML site by an entire field season 
or more.
    Industry-led AML projects are particularly sensitive to delays and 
increased expenses that may result from a time-consuming formal 
environmental review and permitting process. For example, at some 
active mining operations, including remining opportunities at adjacent 
or nearby AML sites, are highly time sensitive and need to be 
integrated into the overall mine plan in order to be feasible. 
Additionally, a number of industry responses to the survey indicated 
that companies need to be able to maximize expenditure of resources on 
actual on-the-ground measures and are unwilling to devote significant 
company resources to transaction costs such as legal, administrative or 
regulatory reviews. It should be noted that this comment does not 
specifically apply to resolving site-specific technical issues and 
identifying appropriate reclamation and remediation measures. A number 
of respondents noted that they had worked closely with agency personnel 
to develop an optimal reclamation/remediation design. However, several 
companies stated their concerns about participating in a regulatory 
review process just for process sake. Industry-sponsored AML cleanup 
efforts that do not involve a commitment of public resources should not 
be burdened with unnecessary regulatory reviews.
            4.2.4 Failure to Differentiate Liability Type and Degree
    The large number of variables at AML sites--climate, terrain, 
accessibility, geology and geochemistry, hydrology, mine waste 
characteristics and distribution, mining and mineral processing 
history, and ownership patterns means that liability must be considered 
on a site-by-site basis. Sites involving complex liability issues may 
not require complex cleanup measures.
    Sites with uncontrolled mine drainage or contamination of several 
environmental media (i.e., soil, surface water, and groundwater) may 
require extensive remediation and may expose the owner or a third party 
that becomes involved with the site to significant liability under the 
CWA, CERCLA, and State environmental laws. On the other hand, there are 
numerous sites with less complex environmental issues and substantially 
less liability exposure that could be significantly improved by 
relatively straightforward (although not necessarily inexpensive) 
remediation measures such as waste removal, repository, or in situ 
actions. It should also be noted again that at most AML sites, the 
principal issue is landscape disturbance and not environmental 
remediation.
    Site history and ownership issues make assigning liability a 
complex endeavor at many AML sites, especially at mixed estate sites 
with both private and public lands, and at sites with a history of 
multiple owner/operators. Some sites have numerous potentially 
responsible parties (PRPs); some have only one or two owners/operators; 
and other have no viable owners at all.
    AML policy discussions often focus on the worst and most complex 
AML sites--for the most part sites with acid drainage from underground 
mine openings, at which extensive and costly remediation requirements 
trigger the need to identify PRPs in order to pay for the cleanup 
costs. The survey results verify that these types of sites do indeed 
create serious environmental problems and pose significant policy 
challenges. Sites with acid drainage from underground mine openings 
represent some of the most technically challenging sites to remediate, 
and as discussed above, are also burdened with vexing liability issues. 
This observation is consistent with CCEM's recent study of barriers to 
voluntary AML cleanup (CCEM, 1998).
    However, the environmental and liability issues at sites with acid 
drainage from underground workings are not representative of the 
environmental concerns at many AML sites, and should be considered as a 
subset of the overall AML environmental problem. This survey identified 
a number of AML sites with more tractable and easily managed problems 
at which private and public-sector AML cleanup projects have realized 
significant environmental improvements. Straightforward waste removal, 
repository, and in situ actions have proven very effective in 
addressing surface water and air quality environmental impacts at some 
sites. For example, Brohm Mining Company's Strawberry Creek AML project 
in the Black Hills of South Dakota achieved significant water quality 
and aquatic habitat improvements by relocating the historic Gilt Edge 
tailings from Strawberry Creek to a secure, engineered waste 
repository. Tailings stabilization work involving in situ covers at 
both the Getchell and the Nevada Copper tailings sites in Nevada 
virtually eliminated the fugitive dust problems previously caused by 
these unreclaimed tailings piles. A number of similar waste removal or 
stabilization AML projects are described in Appendix A.
            4.2.5 Dialogue on Liability Issues
    Solving the legal and policy liability issues at all AML sites has 
proven to be difficult and controversial. The WGA's ongoing efforts to 
develop an AML Good Samaritan provision to the CWA point to the 
challenges in addressing AML liability (CCEM, 1998). Cooperative 
efforts such as this, however, will be ongoing under the auspices of 
various memoranda of agreement undertaken by the WGA. Continued dialog 
among interested parties can provide solutions to liability-based 
impediments to AML cleanups resulting in the on-the-ground cleanup of a 
greater number of sites with commensurate environmental benefits and 
reduced transactions costs.
4.3 Promising Policy Approaches
    This survey did identify policy approaches that have facilitated 
AML projects in several states. These promising policy approaches 
include one or more of the following elements:
     minimal administrative delays;
     streamlined regulatory reviews;
     significant interagency cooperation;
     industry--state partnerships;
     stakeholder involvement;
     liability relief; and
     finding sources.
    CCEM, 1998 presents a thorough discussion of the policy approaches 
that appear to promote AML improvement projects. The remainder of this 
chapter examines how AML improvement projects were facilitated at 
several of the AML sites in 
Appendix A.
            4.3.1 The South Dakota Streamlined Interagency Regulatory 
                    Process Model
    According to the South Dakota DENR, the mining industry has 
reclaimed about 65 inactive and abandoned mine sites on a voluntary 
basis at a cost of about $6.2 million (DENR, 1998). In discussing South 
Dakota AML reclamation and remediation activities with both industry 
representatives and State personnel, it appears that one of the most 
important factors in facilitating these activities was a regulatory 
environment that allowed the mining companies to devote most of their 
resources to implementing on-the-ground measures rather than on trying 
to resolve competing agency interests and requirements, or engaging in 
formal permitting processes and protracted agency reviews. In many 
cases, this required significant interagency coordination, particularly 
with respect to wildlife habitat issues. Durkin (1996) cites the 
importance of keeping these AML improvement projects out of the legal 
realm and overcoming regulatory barriers that might otherwise stifle 
cleanup efforts in order to solve the AML problem in South Dakota.
    The South Dakota regulatory review and interagency cooperative 
approach could be used as a template to facilitate industry-led cleanup 
activities in other states. This streamlined regulatory approach may be 
most readily achieved in states with an omnibus environmental agency 
like the South Dakota DENR which has jurisdiction over water and air 
quality, public health, and mining regulation and reclamation. Only two 
State agencies, the DENR and the Department of Fish, Game, and Parks, 
were involved with most of the South Dakota AML cleanup projects. It 
may be more difficult to achieve such a streamlined regulatory approach 
in states with more numerous agencies with different or overlapping 
jurisdictions. Many of the South Dakota AML sites are on private land, 
so Federal agencies are not involved as land managers. However, the 
U.S. Army Corps of Engineers has had CWA 404 permit program 
jurisdiction over stream restoration projects like the Red Placer AML 
cleanup described in Appendix A. This project required extensive State 
and Federal interagency coordination and technical review of the 
proposed stream restoration design.
    The Upper Chalk Creek--Mary Murphy AML site in Colorado is another 
example of good interagency coordination. The Colorado DMG used SMCRA 
funds to abate safety hazards at this site. A different State agency, 
the Colorado Department of Public Health and Environment, used a CWA 
Section 319 grant to consolidate historic tailings into an engineered 
repository. The two agencies worked together to coordinate the separate 
abatement and remediation actions.
            4.3.2 CWA Section 319 Grants
    Several of the sites in Appendix A were remediated in part using 
CWA Section 319 non-point source grants. These grant funds are 
available for projects proposing innovative measures to address non-
point source pollution problems. (Adverse impacts to surface water due 
to non-point source runoff from mine waste piles are a common problem 
at AML sites). Projects that receive Section 319 grants must match 40 
percent of the grant with non-Federal (either State or private) funds. 
CCEM (1998) reports that 16 mining-related non-point source remediation 
project have been funded in Colorado at a cost of $3.4 million. 
Examples of Colorado AML cleanups at which Section 319 funds were used 
include the Upper Chalk Creek--Mary Murphy site, and sites in Central 
City with environmental issues. According to the CCEM (1998), Utah, New 
Mexico, and Montana have used CWA Section 319 funds for AML cleanup 
activities. Colorado and New Mexico are also using this program to fund 
AML remediation technologies and management practices demonstration 
projects. Use of Section 319 funds does not address the liability 
problems for discharges that may persist following completion of the 
reclamation/remediation activities.
            4.3.3 State Voluntary Cleanup Programs
    This survey identified several sites at which AML cleanup 
activities took place under the aegis of a State Voluntary Cleanup 
Programs (VCPs). CCEM (1998) describes the use of VCPs for cleanup of 
AML sites. The ``Abandoned Mine Lands Preliminary Assessment Handbook'' 
recently published by the California Environmental Protection Agency 
Department of Toxic Substances Control (DTSC, 1998) describes a DTSC-
managed VCP in the context of a regulatory resource for industry and 
private-sector AML cleanup activities. A VCP allows states to provide 
some liability relief, a more streamlined regulatory process, and some 
measure of predictability of technical and cleanup requirements.
    The Rico Project in Dolores County, Colorado, and the Corbin Flats 
Tailings project in Jefferson County, Montana are examples of AML 
cleanup projects involving industry working under a VCP to remediate an 
AML site. The industry representatives interviewed about these sites 
(see Appendix A) had positive things to say about the VCP concept. 
However, they mentioned the significant amount of agency coordination 
and stakeholder involvement required for these projects, and suggested 
that a more streamlined process would be desirable.
            4.3.4 Liability Relief
    Several states have developed partial solutions to the AML 
liability problem. In 1995, the California State Legislature enacted 
amendments to the State's water law that provide regulatory relief for 
a State agency and private parties engaged in remediation activities 
approved by the California Regional Water Quality Control Board. 
Colorado has a Memorandum of Understanding (MOU) with the EPA for 
liability protection for AML cleanup projects conducted under the CWA 
Section 319 program. South Dakota has a similar agreement with the EPA 
that provides the State and its agents with CLRCLA liability relief for 
inventory or cleanup activities at abandoned or inactive mines on 
private lands. However, none of these liability relief measures 
minimize exposure to CWA citizen lawsuits (CCEM, 1998).
                              5.0 remining
5.1 Defining Remining
    The term ``remining'' includes the process where mining at an 
active mine and AML abatement, reclamation and remediation are 
accomplished concurrently as a necessary consequence of new mining 
activity, as a feasible undertaking at an active site, or as a 
voluntary measure at an adjacent or nearby site. The term ``remining'' 
includes the use of existing, permitted facilities to process or 
reprocess previously mined materials such as mine wastes, waste rock 
unused ore stockpiles, heap leach ores, tailings, contaminated soils, 
or smelter wastes from an AML site. However, this investigation 
identified only a few remining projects at which industry processed or 
reprocessed previously mined materials as part of an AML remediation 
effort.
    More commonly, remining involves other types of AML improvement 
measures. Appendix A includes numerous examples of remining projects in 
which industry reclaimed and remediated AML sites in and near active 
mining operations through synergism between the active mine/mill and 
the AML site. These examples capitalized upon industry expertise, 
equipment, personnel, and existing mine waste disposal and mineral 
processing facilities and infrastructure to close, reclaim, or 
remediate the nearby AML site(s). The survey indicates that there are 
situations where these two types of remining activities (e.g., 
reprocessing versus other AML abatement, reclamation, and remediation 
measures) should be differentiated in order to clarify the context in 
which the term ``remining'' is being used.
    Remining is a highly site specific undertaking both in terms of the 
AML site characteristics and the range of activities, resources, and 
facilities at the active mine and mineral processing operation. The 
remining sites identified in this survey encompass a broad range of 
activities that have produced numerous and varied environmental 
benefits. Examples of remining activities identified in this survey 
include the following:
     Processing of waste rock and low grade stack piles and/or 
reprocessing of tailings and previously leached materials;
     Removing and relocating old mine wastes to existing 
project components (i.e., active, permitted tailings, heap leach, or 
waste rock facilities);
     Removing and relocating old mine wastes to new waste 
repositories;
     Stabilizing old mine wastes in-situ using appropriate 
liners, caps, and covers; and
     Remediating groundwater by taking advantage of dewatering 
activities to support pump and treat opportunities.
    The following environmental and public safety benefits and 
improvements have occurred at sites identified in this survey as a 
result of remining activities:
     Surface water quality improvements;
     Landscape improvements;
     Wildlife habitat restoration, preservation and 
enhancement;
     Historical preservation; and
     Safety closures.
5.2 Remining/Reprocessing Benefits
    Because reprocessing metal-bearing mine wastes achieves source 
reduction, it is considered to be an effective environmental cleanup 
method for AML sites. Other cleanup methods such as water treatment or 
waste containment do not reduce or eliminate the source of the 
contaminants, and may create long-term operational and monitoring 
requirements. In contrast, recovering metals by reprocessing removes 
some or all of the contaminant source, thereby minimizing the volume of 
problematic material and reducing the residual metals content in the 
resulting waste product. Additionally, the newly generated mineral 
processing wastes are disposed of in a modern, permitted mine waste 
disposal facility with appropriate containment, monitoring, and 
financial guarantees. Remining/reprocessing is thus an environmental 
remedy in the form of resource recovery and source reduction, both of 
which are EPA-favored responses for environmental cleanups and waste 
management.
5.3 Remining Examples
    Despite the widespread recognition that remining could facilitate 
AML cleanups at some AML sites, this survey identified only eight sites 
at which remining involving mine waste processing or reprocessing has 
occurred. The limited number of this type of remining site appears to 
be due to the same liability concerns identified in the 1993 remining 
survey.
    All of the remining/reprocessing sites identified in this survey 
capitalized upon opportunities to integrate reprocessing of previously 
mined materials into the modern mining and milling sequence. For 
example, remining at the Mercur Mine in Utah removed approximately 4 
million tons of historic tailings from the Mercur drainage basin 
produced from mining activities from 1890 to 1913. Some of these 
historic tailings were used during 1985 to 1990 as composite liner 
cushioning material to protect the new heap leach pad liners from 
punctures and to achieve incidental gold recovery. The remaining 
historic tailings were reprocessed during the period March 1997 through 
April 1998. The tailings produced from this reprocessing effort were 
placed into the engineered and permitted tailings disposal facility 
used at Mercur from 1983-1997 for tailings from processing new ore. 
Remining and reprocessing of the historic tailings at Mercur removed a 
waste from a watershed, allowed secondary gold recovery from a material 
otherwise given up for waste, and allowed access to historically 
impacted surface areas in the basin to more effectively accommodate 
mined land reclamation and post-closure land uses.
    In several of the identified remining projects, processing of 
existing mine wastes and/or reprocessing of tailings and previously 
leached materials was selected as the most cost effective (although 
seldom profitable) AML cleanup measure, because it allowed the mining 
companies to place the resulting tailings into an existing tailings 
disposal facility, thus avoiding the costs and environmental impacts 
associated with a new waste repository. However, using an existing 
tailings facility for remining tailings consumes space that would 
otherwise be available for tailings from processing the primary 
orebody. Moreover, the remining wastes may not be of comparable grade 
or recovery characteristics as the primary orebody. Therefore, the 
decision to engage in remining and to displace primary ore tailings 
with remining tailings must involve a site-specific cost benefit 
analysis. Liability issues discussed above must be carefully evaluated 
in each instance.
    Table 5-1 is a partial listing of the remining projects identified 
during this survey. The projects listed are representative of the range 
of industry reclamation and remediation activities at remining sites 
located in and near currently operating mining and exploration 
projects. Based on the survey data, the State with the most remining 
sites is South Dakota. As discussed in Chapter 4, South Dakota mine 
operators have reclaimed about 65 inactive mines in the Black Hills 
(DENR, 1998).
    The information about remining obtained during this survey is 
consistent with the results of another recent survey to evaluate 
environmental practices at North American hard rock mines (Todd and 
Struhsacker, 1997). This comprehensive evaluation involved contacting 
over 150 individuals in the mining industry and mining regulatory 
communities, detailed consideration of over two dozen mines, and field 
examination of 14 mine sites in geographically diverse areas of the 
U.S. The Todd-Struhsacker survey identified a number of mines that had 
performed remining to address environmental impacts from previous 
mining activities. Significant environmental improvements were 
documented at a number of these sites, many of which are included in 
Appendix A.

            Table 5-1.--Example of Industry Remining Projects
------------------------------------------------------------------------
               Remining Type                   Site Names and Location
------------------------------------------------------------------------
Processing and Reprocessing...............  Maitland--SD
                                            Double Rainbow Mine--SD
                                            Westar, NM
                                            Alta, ID
                                            Mercur, UT
                                            Dean Mine, NV
Removal Actions...........................  John Reed Mine--CO
Repository Action.........................  Upper Chalk Creek--Mary
                                             Murphy
                                            Gilt Edge Tailings--SD
                                            Corbin Flat--MT
In situ Actions...........................  Keystone Mine--CO
                                            Stillwater Mine--MT
                                            Getchell--NV
                                            Bald Mountain Tailings--SD
Groundwater cleanup facilitated by active   Confidential
 mine dewatering activities.
Water quality improvements................  Keystone Mine--CO
                                            Buclthorn--NV
                                            Gilt Edge Tailings--SD
Landscape rehabilitation and improvement..  Castle Mountain--CA
                                            Golconda--NV
                                            Getchell--NV
                                            Robinson District--NV
                                            SF Phosphates--UT
Safety closures...........................  Castle Mountain--CA
                                            John Reed Mine--CO
                                            Keystone Mine--CO
                                            Alta Mine--ID
                                            Golconda--NV
Wildlife habitat restoration, preservation  Wagontown Placer--ID
 and enhancement.                           Red Tail Placer--SD
                                            Golconda, NV
                                            Maitland Tailings--SD
Historic resource preservation............  Midas--NV
                                            Getchell--NV
------------------------------------------------------------------------

5.4 Remining Policy Issues
    It is important to note that, with just a few exceptions, the 
remining examples identified in this study have occurred at historic 
mining properties that were acquired by the current owners prior to the 
late 1980's--a date that appears to signal the development of 
heightened industry awareness and concerns regarding the liability 
considerations associated with acquiring old mining properties. This 
awareness probably emerged in the late 1980's as industry began to 
recognize the implications of CERCLA and the Superfund Amendments and 
Reauthorization Act (SARA) which were enacted in the 1980's. Although 
many of the remining sites were acquired by the present owners in the 
1970's and early 1980's, some represent mining districts in which one 
or more company has had a significant presence for many years. The 
Black Hills gold mining district in South Dakota, and the Coeur d'Alene 
lead-silver distinct in Idaho are two areas in which the present mine 
owners have had property positions for a number of years.
    Since the late 1980's, the paucity of historic property 
acquisitions suggests that elevated concerns about liability exposure 
have significantly influenced corporate mining property acquisition 
policies. It appears that most companies are unwilling to acquire 
previously mined properties with known or suspected substantial 
reclamation or remediation needs for fear of being held responsible for 
these problems.
    This downturn in acquisition of previously mined properties does 
not reflect lack of industry interest in the mineral potential of these 
areas. Liability issues not withstanding, industry generally perceives 
old mining districts to hold considerable promise. A number of industry 
representatives contacted during the 1993 remining study commented that 
old mining districts are often attractive mineral exploration targets 
(Struhsacker, 1993). If the liability-related impediments set forth 
above were adequately addressed, remining, and corresponding 
reclamation, of these historic sites certainly would increase.
                  6.0 conclusions and recommendations
    The following conclusions and observations are based on an in-depth 
review and analysis of the site data in Appendix A. They also reflect 
many of the comments made by the State AML program personnel and mining 
industry sources listed in Appendix B.
     Both the Western States and the Mining Industry Have Achieved 
Measurable Progress in Addressing the AML Problem.--This survey found 
that State AML programs and industry-sponsored efforts have abated, 
reclaimed, and remediated a number of high-priority AML sites 
throughout the west. AML policy discussions often dismiss or fail to 
recognize the progress made to date, choosing instead to emphasize the 
large but poorly defined dimensions of the problem.
     Private Funding, Equipment, and Labor from the Mining Industry 
Have Been Responsible for Reclaiming and Remediating Many AML Sites.--
Industry has spent tens of millions of dollars in voluntary on-the-
ground cleanups and abatements of AML sites throughout the WGA region. 
Mining industry critics often overlook or ignore this significant 
industry contribution.
     The Term Site Has Different Meanings and Must be Defined 
Specifically in Each Forum.-- Some AML inventory efforts have 
considered a ``site'' to be any single opening, mining or exploration 
disturbance, or mining related feature. Other State AML programs and 
the mining industry define ``site'' to include multiple features that 
can be addressed with coordinated and consolidated abatement and 
remediation measures. Continued debate over a universal definition of 
AML ``site'' and development of a comprehensive hardrock AML inventory 
diverts attention and resources from the real issues that need to be 
addressed.
     A Comprehensive AML Inventory is Not a Necessary First Step in 
Solving the AML Problem.--The successfully reclaimed AML sites 
identified in this study indicate that a complete inventory of the 
universe of hardrock AML sites is not required for the States or 
industry to achieve meaningful progress on correcting the AML problem.
     AML Reclamation, Remediation, and Abatement Solutions Must be Site 
Specific.--Just as no two mines are identical, each AML has unique 
characteristics based upon site-specific physical conditions and 
ownership patterns and history. Therefore, appropriate solutions to 
problems at an AML must be determined on a site-by-site basis. Efforts 
to categorize, pigeonhole, and inventory all aspects of the AML problem 
have reached a point of diminishing returns and will add nothing more 
to solving the AML problem. A one-size-fits-all approach to AML site 
definition and reclamation is neither necessary nor appropriate.
     Safety Hazards are the Dominant AML Problem and Most AML Sites are 
not Problematic.--As indicated in Table 2-1, 97 percent of the 
abandoned mine sites are characterized by the Mineral Policy Center as 
reclaimed and/or benign, landscape disturbances, or safety hazards. 
According to the Western Governors' Association, greater than 80 
percent of abandoned mines create neither environmental nor immediate 
public safety concerns.
     Impediments to Voluntary Cleanups are Two-Fold.--First there are 
the legal impediments, or risks of incurring new CWA or CERCLA 
liability for taking voluntary action at an AML site. Second, there is 
the institutional impediment, which consists of the systematic one-
size-fits-all or command-and-control approach taken by regulatory 
agencies to public safety and environmental issues that inhibits 
voluntary, cooperative, and innovative action at AML sites.
     Pursuit of the Perfect is Thwarting Realization of the Good.--
Regulatory policies that require strict compliance with all 
environmental standards, particularly arbitrary one-size-fits-all water 
quality standards, have forestalled State and industry AML cleanup 
projects that may produce significant environmental benefits but that 
do not meet some water quality standards. A new policy approach is 
needed to facilitate partial and incremental cleanup efforts and to 
protect the parties involved from exposure to CWA citizen lawsuits.
     South Dakota Has the Most Industry-funded AML Cleanup and 
Reclamation Accomplishments.--A streamlined regulatory environment that 
has minimized legal proceedings and protracted administrative and 
regulatory reviews, and has maximized resource expenditure for on-the-
ground reclamation and remediation measures has facilitated industry-
sponsored AML projects in South Dakota. This streamlined approach is 
critical and appropriate for industry-funded cleanup that involve no 
expenditure of public resources. These projects should not be burdened 
with unnecessary regulatory reviews and attendant costs and delays. The 
South Dakota regulatory model may be easiest to replicate in States 
with an omnibus agency with jurisdiction over water quality, air 
quality, hazardous and solid waste, and mine reclamation.
     Industry Remining Projects Have Contributed Significantly to AML 
Cleanups.--The numerous examples of remining examined in this survey 
document that significant synergism can be achieved when active mining 
operations reclaim and remediate problems at adjacent or nearby AML 
sites. Remining projects involving the processing of existing mine 
wastes and the reprocessing of tailings and previously leached 
materials comprise a fraction of the total remining sites. There are a 
number of remining sites at which industry-funded reclamation/
remediation activities have achieved significant environmental 
improvements. Most of these remining projects occurred at sites 
acquired prior to the mid- to late 1980's. It appears that liability 
concerns have inhibited industry acquisition of previously mined areas 
since then, probably corresponding to the enactment of CERCLA and the 
Superfund Amendments and Reauthorization Act (SARA) in the 1980's. 
Reclamation-mining could be a significant partial solution to the AML 
problem if CERCLA, CWA and other liability barriers were removed.
     AML Sites with Acid Drainage From Mine Openings Pose the Most 
Challenging Technical and Policy Problems.--Remediation of ARD from 
underground workings is the most challenging issue both from a 
technical and a legal perspective. Although passive water treatment 
systems can achieve significant water quality improvements and are 
practical at remote sites with no power infrastructure, more 
sophisticated water treatment measures are typically required to meet 
water quality standards and NPDES permit limits. Both State agencies 
and the private sector face onerous legal challenges from CWA lawsuits 
for residual drainage from remediated AML sites that do not meet 
numeric water quality standards--regardless of the improvements 
realized at these sites.
     Safety Closures May Create Conflicts with Bat Habitat and Historic 
Preservation Concerns.--A number of State AML program officials 
mentioned the difficulties encountered in balancing the need to seal 
mine openings to protect public safety with the need to preserve 
wildlife (especially bat) habitat and the integrity of old mine 
workings as historic resources. In some settings, fencing old workings 
may be adequate to protect public safety and avoid these potential 
resource conflicts.
     There are Several Sources of Potential Funding for the Cleanup of 
Abandoned Mines.--Under the umbrella of the ``Clean Water Action 
Plan'', several Federal agencies have requested funds to engage in 
abandoned hardrock mine cleanups. In certain circumstances, the 
Environmental Protection Agency, Department of Interior and Corps of 
Engineers programs can be a source of primary or matching funds for 
cleanups. In addition to these Federal sources, several States have 
established their own funding mechanisms. The survey also manifests 
significant private industry contributions to the cleanup effort. State 
and Federal agencies, industry and watershed organizations would all 
benefit from the creation of a data bank or clearinghouse that 
identifies and describes available Federal AML cleanup resources.
    Based on the site information collected for this survey and the 
conclusions and observations listed above, the authors offer the 
following recommendations:
     Collect Additional Data.--The data included with this report in 
Appendix A are limited due the short time available to conduct this 
study. This data base of successfully reclaimed AML sites could be 
expanded with continued study. Future data collection efforts should 
focus on industry-sponsored remining projects in order to develop a 
comprehensive understanding how to facilitate future industry AML 
efforts.
     Conduct Field Visits.--Field visits to successfully improved AML 
sites could provide all stakeholders in the AML issue with a better 
awareness of the successes achieved to date. Field visits could also be 
a valuable opportunity for industry and State representatives to 
collaborate on proven AML abatement, reclamation, and remediation 
techniques and to examine effective solutions to specific technical and 
policy challenges.
     Compile Photo and Video Documentation of AML Improvement 
Projects.--Armed with vivid images of AML sites, mining opponents have 
an easy job in provoking public concerns about mining and the 
environment, and fomenting opposition to proposed mining projects. 
Pictures and videos of reclaimed AML sites are needed to displace these 
dated images of landscapes and environments damaged by past mining 
activities.
     Prepare Detailed Case Studies of Selected Sites.--Case studies 
should be prepared for several types of reclaimed AML sites to provide 
detailed information about the technical and policy issues that either 
facilitated or impeded AML improvement efforts. The types of AML sites 
that would be appropriate for case study evaluation include the 
following: a composite of the South Dakota sites to evaluate the 
streamlined regulatory approach; a site with acid drainage from a mine 
opening to evaluate the technical and legal challenges; a remining/
reprocessing site to examine 
liability, technical, and economic issues; several other types of 
remining sites including sites requiring removal, repository, and in 
situ actions to define liability, 
technical, and economic issues; and a safety abatement site to assess 
the conflicting concerns regarding historic preservation, bat habitat 
protection, and mine sealing.
                            acknowledgments
    The authors wish to gratefully acknowledge the excellent response 
and cooperation from both the mining and regulatory communities in 
supplying information on reclaimed AML sites. Preparation of this 
report would not have been possible without the significant 
contribution of data and information from both industry and agency 
sources.
                            references cited
California Environmental Protection Agency Department of Toxic 
    Substances Control (DTSC), 1998, The Abandoned Mine Lands 
    Preliminary Assessment Handbook, January, 1998, 75 pages.
Colorado Center for Environmental Management (CCEM), 1998, Barriers and 
    Incentives to Voluntary Cleanup of Abandoned Hardrock Mine Sites, 
    report prepared for the U.S. Department of Energy, Office of 
    Science and Technology, 29 pages.
Colorado Center for Environmental Management (CCEM) and U.S. Bureau of 
    Mines, 1994, Inactive and Abandoned Non-Coal Mine Inventory and 
    Reclamation--A Status Report on 19 States.
Crozier, S.A., 1997, The Abandoned Mine Land Initiative: Regulatory 
    Impediments and Policy Options, unpublished report, 19 pages.
Durkin, T.V., 1996, Acid Mine Drainage: Reclamation at the Richmond 
    Hill and Gilt Edge Mines, South Dakota, EPA Seminar Publication no. 
    EPA/625/R-95/007: Managing Environmental Problems at Inactive and 
    Abandoned Metals Mine Sites, October, pp. 54-61.
Lyon, J.S., et al., 1993, Burden of Gilt, Mineral Policy Center, 
    Washington, DC.
Pierson, E.D., et al., 1991, Bats and Mines: Experimental Mitigation 
    for Townsend's Big-eared Bat at the McLaughlin Mine in California 
    in Proc. V: Issues and Tech. In the Management of Impacted 
    Wildlife, Snowmass, CO, April 8-10, 1991.
South Dakota Department of Environment and Natural Resources (DENR), 
    1998, 1997 Summary of the Mining Industry in South Dakota.
Struhsacker, D.W., 1993, Proposed Industry Program for Re-mining and 
    Reclamation of Inactive Mine Sites: paper prepared for McClure 
    Gerard & Neuenschwander and placed into the record of August 5, 
    1993 House Natural Resources Committee hearing on unreclaimed hard 
    rock mines.
Todd, J.W., and Struhsacker D.W., 1997, Environmentally Responsible 
    Mining: Results and Thoughts regarding a Survey of North American 
    Metallic Mineral Mines: Society for Mining, Metallurgy, and 
    Exploration, Inc., Preprint 97-304.
Western Governors' Association (WGA), 1998, Abandoned Hardrock and Non-
    Coal Mines in the West, Draft Report, May 1998.
Western Governors' Association, 1996, Guiding Principles for 
    Inventorying Inactive and Abandoned Hardrock Mining Sites, in, 
    Abandoned Mine Waste Working Group Final Report, June 1996.
Western Interstate Energy Board, 1991, Inactive and Abandoned Noncoal 
    Mines, A Scoping Study, prepared for the Western Governors' 
    Association.
                               __________

          Statement of Jack Lyman, Executive Vice President, 
                        Idaho Mining Association

    Mr. Chairman, members of the subcommittee, my name is Jack 
Lyman. I am Executive Vice President of the Idaho Mining 
Association. It is a pleasure to be here today to provide you 
with a mining industry perspective on S. 1787, the ``Good 
Samaritan Abandoned or Inactive Mine Waste Remediation Act.'' 
The Idaho Mining Association consists of over 50 members who 
mine and process minerals and who provide equipment and 
services to the industry.
    The Idaho Mining Association supports the concept of 
encouraging and promoting the remediation of abandoned or 
inactive mined land through a Good Samaritan program. S. 1787, 
however, is seriously flawed and will not achieve the desired 
objective of remediating these areas.
    The State of Idaho has a long history of mining activity 
and, as a result, the state possesses a large number of 
abandoned mine sites. Our industry is aware of the challenges 
presented by abandoned and inactive mines and has worked with 
the State of Idaho to address these challenges.
    Good samaritan legislation at the federal level has the 
potential to be a powerful and effective tool for helping to 
address abandoned and inactive mines. It is possible to craft 
legislation that would not only provide significant incentives 
for parties to engage in remediating these mines but also to 
remove the existing remediation obstacles. Unfortunately, S. 
1787 is not that legislation.
    From a mining industry perspective, there are numerous 
concerns with S. 1787. Today, I would like to highlight three 
of these concerns: (1) The program established in S. 1787 is 
far too limited with respect to both the areas that qualify for 
remediation and the entities that may engage in remediation; 
(2) the bill establishes a standard for water quality that is 
so stringent it will act as a disincentive to participation in 
the program; and (3) the bill contains other major 
disincentives to participation such as exposing parties who 
remediate under the program to potential liability under the 
Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (CERCLA).
    I will briefly amplify each of these concerns. First, the 
bill has an overly strict definition of ``abandoned or inactive 
mined land'' resulting in an unnecessary limit on eligibility. 
The bill excludes areas that are on CERCLA's National 
Priorities List (NPL), proposed for inclusion on the NPL, or 
the subject of a planned or ongoing response or natural 
resource damages action. This provision eliminates large areas 
throughout the country from eligibility. For example, the Coeur 
d'Alene Basin in Idaho, where there is a heavy concentration of 
abandoned mines, would be excluded from eligibility under the 
bill. This is an area that might benefit from a self-structured 
Good Samaritan program. If improvement in water quality is the 
goal, then deferring in this way to CERCLA is not the answer 
unless you are satisfied waiting a decade or more to see 
remedial action taken, and then only at an inordinate cost.
    S. 1787 is also unduly restrictive with respect to the 
parties that are eligible to engage in Good Samaritan 
remediation. The bill limits participation to the United 
States, states, Indian tribes and municipalities. However, the 
United States cannot be a remediating party with respect to 
abandoned or inactive mined land located on federal land. In 
addition, the bill provides, with one narrow exception, that a 
remediating party cannot apply for a permit if the abandoned or 
inactive mined land is owned by the remediating party. If the 
United States cannot remediate on land it owns, and in general, 
neither can a state, Indian tribe or municipality, then what 
land is eligible for remediation and who is eligible to 
remediate it? It seems that the bill has so many restrictions 
in place that not much land will be eligible for remediation 
and not many entities will qualify as remediation parties. In 
order to maximize the number of areas that are remediated, S. 
1787 needs to be less restrictive, and the definition of 
remediating party needs to include private entities as well as 
governmental agents and contractors.
    Second, a remediation plan, in order to be approved, must 
demonstrate with ``reasonable certainty'' that it will result 
in ``an improvement in water quality to the maximum extent 
practicable, taking into consideration the resources available 
to the remediating party for the proposed remediation 
activity.'' The standard for remediation should, instead, be 
``an improvement in surface water quality.'' By adding ``to the 
maximum extent practicable'' an overly stringent standard is 
created that will lead to protracted debate as to its meaning 
and will act as a serious disincentive to participating in the 
program. In addition, the requirement to demonstrate a 
``reasonable certainty'' that maximum water quality improvement 
will occur is likely to discourage the use of innovative 
technologies.
    Third, S. 1787 contains several additional disincentives to 
participation in the program. Even if an eligible party (e.g., 
the United States) finds a land area that meets the bill's 
overly restrictive eligibility criteria, and the party is 
willing to brave the requirement to improve water quality ``to 
the maximum extent practicable,'' there are additional 
requirements in the bill that discourage participation in the 
program. I will mention one of these disincentives.
    The purpose of the bill is to allow a limited class of 
eligible parties to remediate a limited number of eligible 
abandoned or inactive mined lands without incurring liability 
under sections 301, 302, and 402 of the Federal Water Pollution 
Control Act, commonly known as the Clean Water Act. What the 
bill fails to address, and therefore is one of its fatal flaws, 
is the fact that parties will not go near an area if the 
potential exists that CERCLA liability will attach in the 
future. Because of CERCLA's draconian liability system 
(retroactive, strict, joint and several liability) and the fact 
that liability attaches to ``any person who owned, operated, or 
otherwise controlled activities'' at the facility, no party 
would risk potential CERCLA liability attaching in the future 
to remediate under this bill. The bill excludes CERCLA sites 
from eligibility but a non-CERCLA site today could be a CERCLA 
site tomorrow and anyone who ``operated'' at the area would be 
liable under CERCLA section 107(a). The ultimate disincentive 
to remediation under S. 1787 is the fact that every remediating 
party will face the prospect that the area in question will 
some day be subject to CERCLA and, therefore, subject them to 
retroactive, strict, joint and several liability.
    In closing, let me reiterate that the Idaho Mining 
Association supports the concept of encouraging the remediation 
of abandoned or inactive mined lands through a Good Samaritan 
program. We believe that any such legislation, to be effective, 
should encompass the maximum number of areas and should have a 
broad definition of remediating parties; should provide clear 
and reasonable remediation standards; and should provide 
incentives for participation. S. 1787 fails on all three of 
these counts by unduly restricting both the type of area that 
qualifies for the program and the type of parties that may 
engage in Good Samaritan remediation; by imposing a remediation 
standard that encourages debate and delay and discourages 
participation; and by failing to remove some current obstacles 
to engaging in Good Samaritan remediation and by imposing new 
obstacles. For these reasons, S. 1787 would not be an effective 
tool for encouraging the remediation of abandoned or inactive 
mined land.
    Thank you for the opportunity to testify on S. 1787. Mr. 
Chairman, I look forward to working with you to craft 
legislation that would create a meaningful and effective good 
samaritan program for abandoned and inactive mined lands.
    I would be happy to answer any questions that you or any 
member of your subcommittee might have.
                                ------                                


  Statement of Sara Kendall, Western Organization of Resource Councils

    Good morning. My name is Sara Kendall, and I am the 
Washington, D.C. Representative for the Western Organization of 
Resource Councils, or WORC. WORC is an association of 
grassroots community-based organizations in six western 
states--the Dakota Resource Council in North Dakota, Dakota 
Rural Action in South Dakota, the Idaho Rural Council, the 
Northern Plains Resource Council in Montana, the Powder River 
Basin Resource Council in Wyoming, and the Western Colorado 
Congress. We work primarily on environmental and family farm 
agriculture issues. Many of our members live and work in 
communities impacted by mining and abandoned mine lands.
    I'd like to start by commending the subcommittee for its 
interest in addressing the persistent problem of pollution from 
abandoned mines. Abandoned mines are one of the major sources 
of water pollution in western states. These sites release 
sediments, heavy metals and other toxic chemicals into 
community water supplies, are harmful to fish and wildlife, and 
often impact local economies.
    The primary obstacles that must be addressed if these sites 
are to be cleaned up are the minimal efforts currently being 
made to track down responsible parties and the lack of 
sufficient funds for remediation. But, we acknowledge that it 
is also important for states to stretch the funds they do have 
as far as possible. In addition, we recognize that, at some 
abandoned mine sites, it would be difficult to restore streams 
to the applicable water quality standards. For these reasons, 
we support the concept at the core of Senator Baucus' Good 
Samaritan legislation--reducing water quality standards and 
liability for third parties that want to clean up abandoned 
mines.
    I'd like to express WORC's appreciation for changes that 
Senator Baucus and the Western Governors' Association made from 
earlier drafts of the legislation to address concerns raised by 
our organization and others:
     S. 1787 is restricted to state, tribal and 
municipal governments, eliminating the concern that loopholes 
in earlier versions might have allowed a potentially 
responsible party to qualify as a good samaritan.
     The bill's requirement that revenue generated 
through the use or sale of minerals be used for additional 
remediation alleviates the concern that it is inappropriate for 
a good samaritan to profit from cleaning up a site to anything 
less than Clean Water Act standards, but does so without going 
so far as to prohibit the sale of such resources and thereby 
shut off a potential source of additional clean up funds.
     The 10-year sunset leaves room for the Congress to 
extend the Act if it is a success, but ensures that it will 
automatically lapse if it is not.
     The more detailed requirements for an analysis of 
baseline conditions at the site will help good samaritans 
document their successes and respond if charges are made that 
their remediation efforts increased pollution from an abandoned 
site.
     Limiting the bill to abandoned hard rock mine 
sites removes questions over the need for reducing water 
quality standards at coal sites, where clean ups are occurring 
at a much higher rate than they are at hard rock sites, thanks 
to the coal royalty that funds an abandoned mine land clean up 
program.
    We view all of these changes as positive developments that 
will enhance abandoned mine remediation and protect the 
interests of communities and taxpayers.
    We continue to have concerns, however, with a couple of S. 
1787's provisions. We remain concerned that the best efforts of 
the states, tribes or municipalities will not always succeed in 
improving water quality, and in some cases may actually result 
in increased pollution. S. 1787 would not hold good samaritans 
responsible for meeting the clean up goals they themselves set, 
or even to the level of pollution documented in the baseline 
analysis, as long as they stick to their remediation plans. We 
believe that if the good samaritan actually increases the 
pollution from the mine site, they should be held liable for 
returning the site to the condition documented in the baseline 
analysis.
    It is a basic tenet of the Clean Water Act that any party 
must try to achieve some objective or standard for water 
quality. While, as I said earlier, we recognize that it would 
be difficult to restore streams at some abandoned mines to the 
applicable water quality standards, we strongly urge the 
incorporation of a mechanism for establishing a clear objective 
good samaritan remediation efforts, with input from people in 
the impacted communities. There are mechanisms in place today 
under the Clean Water Act, such as a Use Attainability 
Assessment (or some modification thereof), that could be used 
to address this concern.
    Finally, the reduced water quality standards and liability 
waiver should only apply to mines that are truly abandoned, and 
not to sites that are inactive, in bankruptcy proceedings or 
permitted.
    In closing, we ask that you consider, in addition to this 
Good Samaritan legislation, a more comprehensive approach to 
the problems associated with abandoned hard rock mines in the 
West. Many states still need to inventory their abandoned mine 
sites and set priorities for clean up. Strategies need to be 
developed to remediate the high priority sites, including 
attempting to identify the parties who own the mine sites and 
are responsible for the pollution. Funds are needed for states, 
tribes or municipalities to pursue responsible parties and, 
when necessary, to remediate pollution problems. Without an 
adequate funding source, no waiver of liability will even begin 
to address the problem.
    Although S. 1787 has the potential to facilitate the clean 
up of a number of abandoned mine sites, this potential is very 
limited because the Good Samaritan approach picks at the edges 
of a problem fundamentally caused by an antiquated law and 
outdated regulations under that law. We hope that the 
subcommittee will address the concerns we've raised and move 
forward with S. 1787, but we urge you to make it part of a more 
comprehensive approach to the abandoned mine problem.
    Thank you for the opportunity to testify.
                                ------                                

   Statement of David Gerard, Research Associate, Political Economy 
                  Research Center (PERC), Bozeman, MT
    PERC is the nation's oldest and largest nonprofit institute 
dedicated to original research that advocates using market principles 
to address environmental problems. More than 90 percent of our funding 
comes from foundations and individual donors. As part of its mission, 
PERC produces independent scholarly research on environmental policies. 
Thus, PERC's comments on the proposed Clean Water Act revisions do not 
represent the views of any affected parties or special interest groups, 
but instead represent the interests of American citizens.
    PERC has ongoing research on mining and hazardous waste issues, 
including a current study of abandoned mines. Our abandoned mines 
project is in the process of examining the status of abandoned mine 
reclamation efforts, identifying issues confounding reclamation 
(including liability issues), and exploring alternative approaches for 
encouraging and funding site reclamation.
    We would like to express our thanks to the members of the committee 
for allowing us to testify on this proposed legislation.
                    summary of testimony on s. 1787
    The intent of S. 1787 is to encourage parties that are not 
responsible for environmental conditions to take steps to improve water 
quality at abandoned mine sites. The question is: Are any Good 
Samaritans likely to emerge? If not, why not? And, if so, will their 
resources be put to their best use?
    The proposed legislation responds to the provisions of the Clean 
Water Act (CWA) that discourage parties from remediating waste 
discharges from abandoned mine sites. The disincentive stems from the 
fact that, pursuant to the CWA, any party that in any way affects a 
discharge becomes fully responsible in perpetuity to meet the CWA water 
quality standard. This full compliance holds even if the remediating 
party had no role in creating the conditions that originally caused the 
adverse water quality impacts. Thus, it is not possible for a 
remediating party simply to improve water quality; the party must meet 
the water quality standard specified by the CWA, whatever the cost.
    As the title of the legislation suggests, meeting the CWA standard 
at many abandoned sites is such a daunting responsibility, even the 
proverbial Good Samaritan would need an additional incentive before 
undertaking site remediation. The legislation provides this incentive 
by amending the CWA to allow a remediating party to improve water 
quality without being held responsible to comply fully with the CWA 
water quality standard. Thus, the intent of the proposed legislation is 
to promote voluntary cleanup.
    My analysis of the proposed legislation draws two principal 
conclusions:
     S. 1787 will have positive environmental impacts on sites 
addressed through state abandoned mine programs.
     S. 1787 does not encourage Good Samaritans to undertake 
cleanup efforts, and will therefore have little impact on the number of 
sites addressed.
    For sites slated for reclamation or already in the remediation 
process, the proposed legislation will broaden the scope of activities 
allowable. The resulting environmental quality at reclaimed sites will 
be higher once the CWA liability is relaxed.
    At the same time, however, the disincentives built into S. 1787 
make it unlikely that new remediation parties will emerge. For 
instance, the proposed legislation forces the Good Samaritan to expend 
resources on an owner/operator search, which has proven to be a costly 
and uncertain process in other contexts. In addition, the proposed 
legislation does not eliminate all relevant liability concerns. 
Specifically, potential liability under the Comprehensive Environmental 
Response Compensation and Liability Act (CERCLA) is a major industry 
concern, and might also be of concern to other potential remediating 
parties. These liability concerns alone make industry Good Samaritan 
efforts unlikely. Almost without exception, the proposed legislation 
discourages potential remediation parties from pursuing cleanup efforts
                       abandoned mines background
    There are thousands of abandoned noncoal mine sites in the U.S. 
that pose environmental and/or safety hazards. Some of these abandoned 
sites are the source of environmental contamination, including heavy 
metal and acid discharges that degrade surface or groundwater quality.
    Arizona has surveyed 5,890 mine openings, shafts, adits, prospects, 
and quarried out areas. Of these sites, 118 (2 percent) have possible 
environmental hazards, and 668 (11 percent) pose public safety hazards 
(Arizona, 1999). In Montana the state has evaluated more than 3,800 
sites based on their environmental and safety characteristics, and has 
designated 380 priority cleanup sites from this list.
    As the table indicates, these sites are located both on private and 
on public lands. The table, however, belies the complex ownership 
patterns of historic mining districts. As a result of various land 
policies, it was common for the same mine site and processing 
facilities to be located both on public land (e.g., mining claims) and 
private land. Even for sites on private lands, however, often there is 
either no identifiable owner or the owner does not have the financial 
resources to reclaim the site. In cases where there is no identifiable 
and solvent owner, the site is considered to be abandoned.

    Table.--Ownership of Inactive Mines and Priority Cleanup Sites in
                                 Montana
------------------------------------------------------------------------
                                                                 All
                                                  Priority     Inactive
                                                   Sites        Sites
------------------------------------------------------------------------
Private.......................................          262         1820
Public........................................           85         1325
Unclassified..................................           33          709
                                               -------------------------
  Total.......................................          380         3834
------------------------------------------------------------------------
Source: Montana Department of Environmental Quality, August 1998

    The legacy of abandoned mines is attributed to both a lack of 
industry and public concern about potential hazards and an absence of 
environmental regulation to address these hazards. Of course, public 
attitudes and regulatory systems have changed radically over the past 
three decades, and mining is now one of the country's most heavily 
regulated industries. Mining activities are subject to federal statutes 
and federal land agency regulations, as well as state statutes and 
regulations. These regulations also affect activities at inactive and 
abandoned mines. Though intended to promote sound environmental 
management, these regulations can discourage remediation of hazardous 
waste sites, including abandoned mined lands.
        the clean water act and abandoned mine land remediation
    The U.S. Environmental Protection Agency (EPA) maintains that 
discharges from abandoned mine sites are subject to the National 
Pollutant Discharge Elimination System (NPDES) under Section 402 of the 
Clean Water Act. Thus, whether the mine is active or inactive, the mine 
owner must obtain an NPDES permit, and the owner is responsible for 
meeting water quality standards as specified in the permit.
    Many abandoned sites produce discharges that contribute to 
degradation of water quality. In such cases a party that begins 
remediation activity that alters the current discharge becomes 
permanently responsible for meeting the permit standard. The assignment 
of liability occurs even though the remediating party did not create 
the conditions causing or contributing to the water quality degradation 
and had no previous responsibility or liability for the condition of 
the site. This potential liability discourages parties that might 
otherwise take steps to improve water quality at abandoned mines.
Enter the Good Samaritan?
    The proposed legislation (S. 1787) addresses these disincentives. 
The legislation allows the potential remediating party--the Good 
Samaritan--to obtain a permit that allows it to take steps to improve 
water quality without being required to comply fully with the water 
quality standard.
    The liability shield from liability for parties that had no role in 
creating the water quality degradation would allow remediating 
parties--particularly state abandoned mine land programs--to expand the 
types of allowable activities (i.e., activities that affect the 
discharge covered by NPDES permit). What is less clear is whether the 
liability shield would be sufficient to encourage new parties to pursue 
or to expand remediation activities. To address this issue, consider 
the following possible Good Samaritan candidates:
     federal agencies (Bureau of Land Management, Forest 
Service, National Park Service)
     local governments
     non-profit groups
     mining companies
    Federal Agencies.--The legislation prohibits federal agencies from 
acting as Good Samaritans on lands owned by the federal government. In 
fact, if federal agencies are always considered responsible parties on 
federal lands, it could be the case that S. 1787 does not apply to any 
abandoned mine sites on federal lands (see below).
    Local Governments and Private Groups.--The legislation builds in a 
number of hurdles for private groups. Specifically, it requires Good 
Samaritans to identify the identity and financial solvency of the 
property owners, even though these expenditures do nothing to improve 
the water quality at the site. Nonprofit groups may also have concerns 
about being exposed to liability under CERCLA.
    Mining Companies.--Mining companies face these same hurdles, and 
are particularly concerned about potential CERCLA liability. In 
addition, the proposed legislation removes other incentives by 
prohibiting remining and mineral exploration, and also by prohibiting 
remediating parties from profiting from a Good Samaritan cleanup.
    Thus, there are clear obstacles other than CWA liability that could 
prevent Good Samaritan cleanups.
            disincentives for potential remediating parties
    This brief survey indicates that new parties might not emerge 
because (1) all liability is not removed, and (2) additional hurdles 
and disincentives are added. I discuss these problems in greater detail 
below.
1. The Search for Owner/Operators and the Solvency Test--Wasting Time 
        and Resources While Water Quality Deteriorates
    As part of the permit requirements, the potential remediating party 
is required to take steps to identify an owner or operator (e.g., 
current or past owners, mine operators, lessees). An identifiable owner 
is defined as a party that (1) is responsible for creating or 
contributing to the current waste discharge; and (2) ``is financially 
capable of compliance with requirements of sections 301, 302, and 402'' 
of the Clean Water Act.
    The EPA (the Administrator) will approve the permit application 
only if ``no identifiable owner or operator exists.'' Thus, EPA can 
reject a permit if the Good Samaritan has not taken ``reasonable 
efforts'' to identify an owner/operator; or if the Administrator 
determines that the party identified, in fact, meets the rather loosely 
defined solvency requirements.
    It is not clear why the potential remediating party should be 
required to expend resources on an owner/operator search. Even so, the 
proposed legislation does nothing to limit owner liability. If an owner 
is identified, it will still be responsible for bringing water quality 
into compliance with CWA permit requirements.
    Moreover, the search process is likely to be complicated. The Good 
Samaritan is required to not only search for an operator, but also to 
determine whether the operator is solvent. As we have seen, land 
ownership in historic mining districts is most often a mixture of 
public and private land, and therefore there are often several parties 
with partial ownership or some history of operations at a given site. 
The search requirement does nothing to improve environmental quality. 
Instead it creates uncertainty as to the issuance of a permit and 
diverts resources that could otherwise be allocated toward cleanup.
    Why should legislation prohibit a Good Samaritan effort to mitigate 
the effects of ongoing waste discharges? If private funds are used, 
that is the choice of the private party; if public funds are used, the 
state or federal agency would be able to put a lien on the property or 
to sue to recover the remediation costs. There is no reason to believe 
that environmental quality would suffer if the search provision was 
eliminated from the proposed legislation.
    The Forest Service's abandoned mine cleanup efforts are instructive 
on these issues. According to a 1996 Inspector General (IG) audit, the 
Forest Service had identified 335 contaminated sites, but the agency 
had remediated only 16 of these sites. The IG makes it clear that the 
Forest Service's emphasis on determining the existence of a 
potentially-responsible party (PRP) limited the number of site 
cleanups:
    Because of emphasis on sites where [the Forest Service] is the only 
responsible party, [the Forest Service] has, so far, spent about $12.7 
million on actual cleanup of mines and only 16 sites have been 
completely cleanup up (USDA, 1996, 9).
    The passage suggests that there will be few cases where there are 
no parties that satisfy some element of the ``ownership'' criteria as 
spelled out in the proposed legislation.
    Even where the Forest Service found a PRP, however, it found it 
difficult to collect funds. The IG found that:

          [The Forest Service] has pursued PRP's (sic) at 29 sites with 
        estimated cleanup cost of $48.5 million. Bills of collection 
        totaling $4.3 million have been issued at only 6 sites and only 
        $2.2 million collected. Of the $2.2 million collected, $1.56 
        million came from one PRP (USDA, 1996, 16).

    Although the emphasis on sites with no identifiable PRPs delayed 
cleanup efforts, it did little to actually collect funds from PRPs. 
Presumably no cleanup had occurred at these sites. At the same time, 
because the Forest Service identified owners, these 29 sites would have 
been off limits to any Good Samaritan efforts (the EPA will not approve 
a permit if an identifiable owner exists). As a result, the offensive 
discharge will continue.
    The benefit of finding an owner/operator comes at a very high 
price: The search for an owner/operator will be time consuming and 
costly, which will delay cleanup and limit resources available for site 
remediation. If an owner/operator is located, the EPA will deny the 
permit application, further delaying cleanup.
    State Agencies.--State agencies that remediate sites, however, 
generally do not object to these search provisions because funding 
sources for these cleanups are often tied to completing a search. For 
instance, the Montana State Department of Environmental Quality (DEQ) 
is a primary agency involved in abandoned mine cleanup. The DEQ uses 
surplus funding from the Surface Mining Control and Reclamation Act 
(SMCRA) to finance the cleanup of hardrock sites. In order to tap this 
funding, DEQ must complete a PRP search. PRP searches are also routine 
under federal and state Superfund programs. Thus, S. 1787 does not 
create an additional hurdle for state abandoned mine programs because 
that hurdle already exists.
    The owner/operator search is a potentially costly hurdle. If the 
provision is retained (and there is no reason to believe that the 
provision will have any beneficial environmental impacts) the language 
should allow for fast, low-cost searches.
2. Are Federal Lands Excluded?
    The proposed legislation excludes federal agencies from being a 
remediating party on federal lands. The text of the IG audit of the 
Forest Service suggests that all federal lands are excluded from Good 
Samaritan remediation:

          Because of emphasis on sites where [the Forest Service] is 
        the only responsible party. . . (USDA, 1996, 9, emphasis mine).

    This phrase suggests that if no owner/operator exists, then the 
administrative agency is considered an owner of abandoned sites on 
federal lands. If this is the case, there is no possibility of a Good 
Samaritan cleanup because there is always a solvent owner--the Federal 
Government. If this is the case, then the opportunities for Good 
Samaritan cleanups will be limited. In Montana, more than 20 percent of 
priority sites are on federal land, and there are some estimates that 
as much as 70 percent of abandoned mine lands are located on federal 
land. This would severely limit scope of proposed legislation.
    Therefore, the legislation should explicitly provide for Good 
Samaritan cleanups on federal land.
3. CERCLA Liability
    A major industry concern is that a permit obtained pursuant to the 
proposed legislation will move a remediating party out of the frying 
pan of Clean Water Act liability and into the fire of CERCLA liability. 
If there is any uncertainty about CERCLA liability, the number of 
industry Good Samaritan cleanups will be roughly zero. Again, this does 
not present a disincentive to state abandoned mine programs, as the 
states are immune from CERCLA liability.
4. Remining and Mineral Exploration Prohibited
    In addition to exposing industry Good Samaritans to CERCLA 
liability, the proposed legislation does its best to discourage 
involvement by the mining industry. This is unfortunate, as industry is 
a primary source of both expertise and potential reclamation funding.
    Remining.--There is a reasonable rationale for not providing for 
remining. The allowance of remining would complicate the basic scope of 
the legislation by extending it beyond the purview of the CWA.
    Reprocessing.--The proposed legislation requires a remediating 
party that generates revenues by reprocessing materials to put those 
funds back into the remediation effort. The proposed legislation 
stipulates that the processing and removal of minerals can only be used 
to ``further improve the quality of waters identified in paragraph 
(3)(B)(iii)'' (emphasis added). Thus, a company cannot use proceeds to 
finance a remediation effort, but is required by law to take a loss on 
the venture.
    Exploration.--Mineral exploration is expressly prohibited.
    The disincentive effects of these provisions require no 
elaboration. Given the political opposition of environmental groups, 
bringing remining or mineral exploration to the table complicates 
passage of this legislation. However, it is not clear why the 
legislation should so thoroughly reject parties that will improve water 
quality at a given site. Moreover, success of remining at sites such as 
the Druid and Sunnyside Mines in Colorado makes remining a possibility 
that warrants further review.
5. Citizen Suits
    The proposed legislation allows for citizen suits. The entire 
rationale for Good Samaritan legislation is that the remediating party 
is not a polluter, and therefore should not be treated as such. The 
Western Governors Association has asserted that citizen suits are a 
``major disincentive'' for Good Samaritan efforts (WGA, 1998).
                               federalism
    Under the Clean Water Act the EPA generally delegates authority to 
the states (1) to issue discharge permits to industries and 
municipalities and (2) to enforce the permit requirements. EPA has 
delegated this responsibility to 43 states. In the proposed 
legislation, however, the EPA will not delegate authority to state 
agencies. The rationale for this is that it is inappropriate for a 
state to issue a permit to itself, given the uncertainty surrounding 
enforcement and the general absence of checks. (Unfortunately, this 
provision reflects the underlying theme of my analysis, which is that 
it is unlikely that remediation parties other than the states are 
likely to emerge.
    Because the proposed legislation does not prohibit citizen suits, 
it is difficult to see why this argument applies. If there is some 
question about the state's compliance with the permit provisions in a 
cleanup effort, citizen suits can be used as an enforcement mechanism.
    But even without the citizen suit provision, the explicit 
prohibition on delegation to the states is questionable. States are 
closer to the actual situation, and therefore have a better chance to 
make appropriate decisions than the national government. The purpose of 
the proposed legislation is to give remediating parties greater 
discretion over discharge, without assuming liability under the CWA. 
Thus, the legislation is intended to encourage actions that improve 
water quality. It is hard to imagine how a federal regulatory agency 
would have greater incentive to improve environmental quality within a 
state than a state agency. It is much easier for citizens to hold local 
government officials accountable and to monitor local environmental 
regulations.
                              conclusions
    It is difficult to label S. 1787 as ``Good Samaritan'' legislation. 
Almost without exception, the provisions discourage all potential 
remediating parties other than state abandoned mine programs from 
undertaking cleanup efforts.
    The exception, of course, is a very important one. The proposed 
legislation would provide state abandoned mine programs, such as the 
one operated by the Montana DEQ, with broader latitude in their 
remediation activities. This should have positive impacts on water 
quality at sites remediated by state agencies, though the cost of the 
permit process is probably more cumbersone than it needs to be.
    The intent of the proposed legislation is to encourage parties that 
are not responsible for environmental conditions to take steps to 
improve water quality at abandoned mine sites. The question is: Are any 
other Good Samaritans likely to emerge? And, if so, will their 
resources be put to their best use?
    S. 1787 has been marketed as legislation that provides positive 
incentives for parties to address water quality problems at abandoned 
mine sites. This is important conceptually because a fundamental 
precept of sound environmental policy is that incentives matter. The 
problem, however, is the only positive incentive contained in the 
legislation will primarily affect state abandoned mine land programs 
that are already undertaking cleanup efforts. For other parties the 
incentive structure is not as promising. Most significantly, the 
legislation does not clearly eliminate all potential sources of 
retroactive liability, and it builds in disincentives for other parties 
that might initiate cleanup efforts. To summarize:
     There is uncertainty concerning CERCLA liability
     The permitting process requires the Good Samaritan to 
conduct a search for a solvent owner. The search is costly and creates 
uncertainty, though there are no obvious environmental benefits from 
the provision.
     Mining firms, the source of potential funding and 
expertise, have no reason to act as Good Samaritans. In addition to 
potential CERCLA liability, remining and mineral exploration are 
expressly prohibited; processing minerals allowed only if remediating 
party operates at a loss.
     Citizen suits create disincentive to all potential 
remediating parties.
     The scope of the legislation will be narrow if federal 
lands are excluded.
    S. 1787 is a positive step that will improve environmental quality 
at some abandoned mine sites, but it will fail to encourage new Good 
Samaritans to emerge. Therefore, I suggest the proposed legislation is 
either amended to address the many disincentives to potential 
remediating parties, or renamed ``The Clean Water Act Liability 
Reduction for State Abandoned Mine Land Programs.''
                               references
Arizona State Mine Inspector (1999) ``Abandoned and Inactive Mine 
    Survey,'' Pamphlet.
Montana Department of Environmental Quality (1998) ``Montana Inactive 
    Mine Inventory and Mine Reclamation Priorities.''
United States Department of Agriculture, Office of the Inspector 
    General (1996) Forest Service Management of Hazardous Material at 
    Active and Abandoned Mines. Audit Report No. 08601-1-At. Atlanta: 
    USDA.
Western Governors' Association (19989) ``Background Summary on the WGA 
    Proposed Amendment to the Clean Water Act Regarding Good Samaritan 
    Cleanups of Abandoned and Inactive Mines.''
                                 ______
                                 
  Responses by David Gerard to Follow-up Questions from Senator Crapo
  the good samaritan abandoned or inactive mine waste remediation act
    Question 1. What kinds of market-based approaches would you 
recommend for this proposal to result in Good Samaritan cleanups?
    Response. Market-based approaches is a generic term that centers 
attention on how laws and regulations affect incentives; this contrasts 
to many regulations which prescribe both a standard and the means in 
which that standard must be achieved.
    Conceptually, Good Samaritan legislation intends to treat those 
that would voluntarily remediate abandoned mine land (AML) sites in a 
manner different than those who are responsible for the mess in the 
first place. This can be done both by removing disincentives and adding 
positive incentives to encourage voluntary cleanup efforts. I believe a 
market approach to the AML program has these fundamental components:
     removing liability for governmental AML programs;
     removing hurdles for private cleanup efforts;
     creating positive incentives for governmental and private 
cleanup efforts.
    There are political realities beyond my expertise that limit my 
knowledge of what should be included in the bill. Some components, for 
instance, are so controversial that they might make the legislation 
politically unviable. That being said, it is my opinion that S. 1787 
exclusively concerns State AML cleanups. If private parties are ever to 
be involved in Good Samaritan cleanups, I think there are a number of 
disincentives that absolutely must be addressed:
     remove Clean Water Act liability;
     remove CERCLA liability;
     remove owner-operator and solvency searches;
     remove or severely curtail Citizen Suits.
    Removing these disincentives seems to be a reasonably 
straightforward enterprise. The issue of creating positive incentives, 
however, (e.g., through financial incentives or Brownfield initiatives) 
is considerably more complex.

    Question 2. This legislation would allow the EPA to insist on 
unexplained ``other'' information, at the determination of the 
Administrator, from the permit applicant and holder. What do you 
anticipate would be the practical application of this provision?
    Response. The language gives the EPA broad discretion to do what it 
likes, but I have no idea how the EPA would apply the provision. I 
think the effect of the provision is to create uncertainty as to the 
issuance of a permit.
    As an aside, it is not clear why the bill grants any authority to 
EPA. According to the testimony of the EPA witness--Assistant 
Administrator of Water Chuck Fox--``this issue of mining has been 
unaddressed from EPA for some time. And I have had one heck of a time 
trying to find the resources in a declining budget to try and invest in 
these kinds of problems.''
    Good Samaritan legislation has been at the fore of the Western 
Governors Association priority list for some time. It seems that we 
should not allocate authority for the program to an agency that has 
been disinterested at best in the matter, and places low priority on 
mining issues. In my mind, this is not a recipe for success.

    Question 3. Do you think that the mining industry should be 
excluded from the liability shields provided in this legislation or 
should they be a part of the solution to abandoned and inactive mine 
cleanups?
    Response. As it stands, S. 1787 very narrowly applies to State AML 
programs. If there is ever to be a comprehensive approach to the AML 
problem, I do not see how the mining industry could be excluded.

    Question 4. How many additional areas do you anticipate would be 
cleaned up as a result of the enactment of S. 1787?
    Response. Many State AML programs have a list of priority sites, 
and the effect of Clean Water Act liability is to reduce how these 
programs address discharges from abandoned mine land sites. The passage 
of S. 1787 would allow these programs to clean up sites on their 
priority lists to a greater extent.
    It is not clear whether the bill applies to federal lands, however. 
Obviously, if the bill does not apply to federal lands, fewer sites 
will be addressed. In Montana, at least 85 of 380 sites on the State's 
priority list are on federal land. If S. 1787 does not apply to federal 
lands, then the scope of the legislation is pretty narrow--State AML 
cleanups on private lands.
    In addition, there are a number of major hurdles for private 
parities to get involved in remediation activities (plus the fact that 
S. 1787 only allows government entities to act as Good Samaritans), I 
would expect few if any new sites to be addressed.

    Question 5. Under what conditions would this legislation allow a 
Good Samaritan to be discharged from their permit? Is this sufficient 
or are there other situations in which a permit holder should be 
excused from further obligations under the permit?
    Response. I do not have a definite opinion on this matter. Whatever 
the conditions for discharging the Good Samaritan, however, the 
stipulations must be very clear ex ante, otherwise the inherent 
uncertainty will be potentially costly to resolve ex post, and will 
ultimately discourage future cleanups.

    Question 6. Do you believe the requirements called for in S. 1787 
for a complete permit to be too little, just about right, or too 
exhaustive?
    Response. If the sole intent of the bill is to give greater 
latitude to State AML programs for cleanups on private lands, the 
permit requirements are ridiculously exhaustive. The same goal could be 
accomplished in a single sentence--``State Abandoned Mine Land Programs 
are not subject to liability under the Clean Water Act.''
    If the intent of the bill is to bring in new parties and increase 
the universe of sites addressed, the permit requirements are still too 
exhaustive, but not ridiculously so. As it stands, there is tremendous 
uncertainty as to the issuance of a permit. It seems to me that anyone 
who is going to think about expending time and resources planning an 
AML cleanup is going to want to have a good idea of the likelihood of 
the issuance of a permit. As it stands, EPA has broad discretion over 
issuance, and there is inherent uncertainty with respect to issues such 
as the owner-operator and solvency searches and the maximum extent 
practicable. Of course, State programs are not affected by some of the 
disincentives to private parties, such as CERCLA liability (states are 
immune), and owner-operator searches (AML programs typically must 
conduct such searches to secure various sources of funding).

    Question 7. Is it appropriate for a potential Good Samaritan--in 
essence, a volunteer--to be required to undertake a PRP search? Whose 
responsibility should that be? Under this bill, who would be required 
to pick up the tab for such a search?
    Response. My written testimony covers this issue in detail. I think 
the PRP search does nothing to enhance environmental quality, and I 
think the experience of the federal Superfund program and the Forest 
Service AML efforts provide clear support for my view. There are 
several possible scenarios, and none provides much support for 
requiring a PRP search.
     The Good Samaritan does not find a PRP;
     The Good Samaritan finds a PRP, and the subsequent 
solvency search shows the PRP does not have sufficient resources for a 
cleanup.
     The Good Samaritan finds a PRP, and the subsequent 
solvency search shows the PRP has sufficient resources for a cleanup.
    In all three case resources the Good Samaritan is forced to expend 
time and resources that could otherwise be devoted to cleanup, and 
cleanup efforts would necessarily be delayed. If a solvency 
determination is necessary, the Good Samaritan must expend even more 
resources, and there is bound to be uncertainty as to whether a permit 
will be issued (for instance, who knows whether the EPA will issue a 
permit once it has a PRP discovered?). In the third case, the Good 
Samaritan would have expended resources, and not been able to do any 
cleanup.
    As long as S. 1787 does not remove responsibility from any 
responsible party for the cleanup, I see no reason to make the Good 
Samaritan foot the bill for the PRP search.

    Question 8. Senator Baucus is a principal sponsor of legislation to 
promote Brownfields cleanups including rural mine sites. S. 2700 
provides funding for a Brownfields program, grants for site 
assessments, and other federal assistance. Is it consistent to deny 
such incentives and financial assistance to those potential Good 
Samaritans for certain instances under this legislation, but not under 
S. 2700?
    Response. In my response to the first question I note that so-
called market-based approaches consist both of removing negative 
incentives and creating positive incentives. This question asks how far 
down the line should this legislation go? Because this is fundamentally 
a political question, I don't have an answer. However, it is clear that 
the next step to addressing the universe of abandoned mine sites in the 
western states is providing, for instance, a funding mechanism for 
State AML programs, or creating some sort of incentives for private 
contractors to remediate sites. Clearly, Brownfield initiatives can 
create incentives without necessarily warranting a financial commitment 
from any government body. Such programs are the next logical step from 
the liability waivers.

    Question 8a. Should this legislation include a waiver for Good 
Samaritans from Superfund liability?
    Response. If S. 1787 has any designs on encouraging non-
governmental bodies to pursue cleanups, then the waiver of CERCLA 
liability is essential.
                                 ______
                                 
             Association of Metropolitan Sewerage Agencies,
                                    Washington, DC., June 14, 2000.
Hon. Max Baucus,
Ranking Minority Member,
U.S. Senate,
Washington, DC.
    Dear Senator Baucus: I am writing to express the strong support of 
Association of Metropolitan Sewerage Agencies (AMSA) for the Good 
Samaritan Abandoned or Inactive Mine Waste Remediation Act (S. 1787). 
AMSA greatly appreciates your leadership in introducing S. 1787, along 
with Senators Campbell and Daschle. AMSA represents the interests of 
the country's wastewater treatment agencies that serve the majority of 
the sewered population in the United States, and collectively treat and 
reclaim more than 18 billion gallons of wastewater each day.
    As you know, the surface waters in many of our member agencies' 
communities have been impacted by pollutants introduced from abandoned 
and inactive mines. Heavy metal discharges from these mines result in 
lower quality drinking water and pose significant health risk to the 
biota that reside in these impacted waters, and the wildlife and 
fisherman that eat these fish and shellfish. The Western Governors' 
Association estimates that there are at least 400,000 abandoned or 
inactive mine sites in the west. The Mineral Policy Center concludes 
that nearly 14,400 abandoned hard rock mines directly degrade surface 
waters.
    AMSA believes that S. 1787 will encourage the federal government, 
states, tribes, local governments and private parties to undertake 
voluntary cleanup of abandoned or inactive hardrock mines, by 
establishing alternative remediation requirements than are currently 
available under the Clean Water Act for such ``Good Samaritan'' 
efforts. The legislation will provide enhanced environmental, economic 
and social benefits to downstream users of waters whose quality will be 
improve through such remediation efforts. This legislation is certainly 
worthy of widespread bipartisan support and adoption.
                                 ______
                                 
                                                   ASIWPCA,
                                    Washington, DC., June 15, 2000.
Hon. Max Baucus,
Ranking Minority Member,
U.S. Senate,
Washington, DC.
    Dear Senator Baucus: The Association of State and Interstate Water 
Pollution Control Administrators (ASIWPCA) has followed the issues of 
abandoned mines and the related pollution consequences for water 
quality for some time now. We are well aware of the problems associated 
with the runoff of inactive mines that have not been properly 
maintained or closed in accordance with sound environmental practices.
    Yet, over the years the states have found themselves in legal 
jeopardy because of the strict liabilities connected with the clean up 
process.
    It is not the habit nor tradition of this Association to support or 
oppose specific legislation, however, we do want to express to you our 
appreciation for your efforts to provide the States with the necessary 
flexibility to address water quality and with the legal protection to 
take remedial action without fearing legal repercussions of liabilities
    ``The Good Samaritan Abandoned or Inactive Mine Waste Remediation 
Act'' (S. 1787), as an amendment to the Clean Water Act, has as its 
intent the protection of State agencies engaged in the remediation 
process from becoming legally responsible for any continuing discharge 
from such abandoned mine sites after the completion of a clean up 
effort.
    States with concerns over mining activities are in need of support 
for their remediation activities and are also in need of protection 
from legal liability. For these reasons, we thank you for your efforts 
to provide the States with the flexibility and legal immunity that they 
need to enhance water quality.
            Sincerely,
                                             J. David Holm,
                                                         President.
                                 ______
                                 
                              Western States Water Council,
                                  South/Midvale, UT, June 20, 2000.
Hon. Bob Smith,
Chairman,
U.S. Senate,
Washington, DC.
    Dear Chairman Smith: On behalf of the Western States Water Council 
(WSWC), we are writing to express our support for amending the Clean 
Water Act (CWA) to allow for ``Good Samaritan'' clean up of inactive 
and abandoned mines. Thousands of such mines exist across the West, 
causing severe impairments to surface and ground water quality. In view 
of the impacts on water quality caused by these abandoned mines and the 
difficulties in identifying responsible parties to remediate the sites, 
states are very interested in undertaking and encouraging voluntary 
``Good Samaritan'' remediation initiatives, i.e., cleanup efforts by 
states or third parties who are not legally responsible for existing 
conditions at a site.
    Currently, a huge disincentive exists in the CWA, as recent court 
cases have found entities remediating mine-caused water quality impacts 
to be liable under the National Pollutant Discharge Elimination System 
for any remaining discharge. States and local government agencies 
should be encouraged to address water quality problems caused by 
abandoned and inactive mines. The Western Governors' Association with 
the support of Council members, has worked to produce a proposal that 
would provide encouragement, assuring the remediating party that its 
liability for cleanup at the site is limited to following its cleanup 
plan including any amendments thereto.
    It has been the experience of many western states, that the water 
quality impacts of an abandoned mine site can be substantially reduced 
by reasonable investment in a cleanup project at the site, although all 
impairment will not be eliminated. But currently, the CWA does not 
protect such a ``Good Samaritan''--who attempts to improve the 
conditions at such a site--from becoming legally responsible, under 
section 301(a) and section 402 of the Clan Water Act, for any 
continuing discharges from the mined land after completion of a cleanup 
project. 
    We understand that the Subcommittee on Fisheries, Wildlife, and 
Water will be holding a hearing on Good Samaritan legislation. 
Wednesday, June 21. We urge your support in passing legislation to 
address this current disincentive by amending the CWA to allow non-
responsible ``Good Samaritans'' to address water quality concerns 
caused by abandoned and inactive mines, and improving existing 
conditions without incurring legal liability for remaining problems.
            Respectfully,
                                          Francis Schwindt,
                                                        WSWC Chair.
                                 ______
                                 
                                    Office of the Governor,
                                      Helena, MT, October 12, 1999.
Hon. Max Baucus,
U.S. Senate,
Washington, DC.
    Dear Senator Baucus: I am writing to support passage of the ``Good 
Samaritan Abandoned or Inactive Mine Waste Remediation Act''.
    As you know, Montana has had a very active abandoned mine 
reclamation program for several years. This work is carried out with a 
combination of state and federal funds. Montana has developed a list 
and prioritized abandoned mines for cleanup. At each site, we do as 
much as we can with the limited funding that is available. Because the 
funding is limited oftentimes we are not able to take all the necessary 
steps to completely improve the water quality.
    Montana has also formed partnerships with federal agencies, such as 
the Bureau of Land Management and the U.S. Forest Service, as well as 
local counties and conservation districts to further leverage the funds 
available for cleanup. However, the liability issue has always served 
to make it very difficult to form these partnerships. Although everyone 
recognizes the importance of cleaning up abandoned mines, individuals 
and organizations without any direct responsibility for an abandoned 
mine site are often times reluctant to get involved without some 
assurance that they will not be assuming some larger liability for the 
site.
    The legislation which you have introduced is a positive step toward 
greater involvement in cleaning up abandoned mines. I am grateful that 
you have consulted with the Montana Department of Environmental Quality 
(DEQ) while drafting the legislation. Like any legislation we believe 
there are still some areas that need to be fine tuned, but on the whole 
are very pleased with this effort. I have asked Mark Simonich, with the 
DEQ, to continue to work with your staff as this legislation progresses 
through Congress.
            Sincerely,
                                              Marc Racicot,
                                                          Governor.
                                 ______
                                 
                               Colorado Mining Association,
                                         Denver, CO, June 20, 2000.
Hon. Michael D. Crapo,
Chairman, Senate Environment and Public Works,
Subcommittee on Fisheries, Wildlife, and Drinking Water,
Washington, DC.
    Dear Senator Crapo and members of the subcommittee: The Colorado 
Mining Association (CMA) appreciates the opportunity to submit its 
position to the committee on S. 1787, the Good Samaritan Abandoned and 
Inactive Mine bill.
    The CMA is a not-for-profit association founded in 1876 whose 
members are comprised of individuals and companies that explore for, 
develop, produce and refine coal, metals, and industrial minerals and 
supply goods and services to the mining industry.
    The CMA appreciates the bipartisan efforts of both the Western 
Governors' Association and Senators Baucus, Campbell, Reid, and Daschle 
in putting this reasonable legislation forward to improve water 
quality. CMA also appreciates Chairman Crapo's willingness to hold a 
hearing and become involved in this potentially valuable program for 
the West. The CMA has been engaged in this issue for nearly five years 
and is offering language today to expand the effectiveness of this 
program to assure that states, Indian tribes, municipalities and 
federal agencies can partner jointly with private contractors in this 
worthwhile program.
    In the spirit of expanding participation in this voluntary program, 
CMA encourages the sponsors and the committee to consider adopting, at 
a minimum, the following changes:
    1. Clarify that ``remediating parties'' includes the named entities 
as well as their contractors and agents.
    2. Consider language that establishes a ``net gain or improvement'' 
in water quality as the standard for accepting Good Samaritan projects. 
The bill currently requires cleanup to the ``maximum extent 
practicable,'' which is not easily defined and could engender delay in 
getting site cleanups started.
    3. Change the language of Section 3(2)(B)(vi)(II) to read as 
follows: ``Persons whose activities at the abandoned or inactive mined 
land after October 18, 1972, created a discharge of pollutants.'' With 
this change, the bill does not preclude enforcement actions against any 
responsible party under other provisions of the Clean Water Act; and 
furthermore, it will create a larger class of potential cleanup 
participants, thereby lowering the cost of Good Samaritan projects.
    4. Assure that baseline conditions are defined as ``current'' 
conditions, not left open to differing interpretation.
    The CMA is mystified as to the bill's provision prohibiting federal 
agencies, states, Indian tribes and municipalities from performing Good 
Samaritan projects on their own lands. This appears to be a limit on 
the bill's purpose of improving water quality in the West. We would 
encourage you to consider allowing these entities to clean up their own 
lands.
    The CMA thanks you for considering these comments.
            Sincerely,
                                          Stuart Sanderson,
                                                         President.
  

                                
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