[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
BARRIERS TO THE CLEANUP OF ABANDONED MINE SITES
=======================================================================
(109-62)
HEARING
BEFORE THE
SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
MARCH 30, 2006
__________
Printed for the use of the
Committee on Transportation and Infrastructure
____
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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
DON YOUNG, Alaska, Chairman
THOMAS E. PETRI, Wisconsin, Vice- JAMES L. OBERSTAR, Minnesota
Chair NICK J. RAHALL, II, West Virginia
SHERWOOD L. BOEHLERT, New York PETER A. DeFAZIO, Oregon
HOWARD COBLE, North Carolina JERRY F. COSTELLO, Illinois
JOHN J. DUNCAN, Jr., Tennessee ELEANOR HOLMES NORTON, District of
WAYNE T. GILCHREST, Maryland Columbia
JOHN L. MICA, Florida JERROLD NADLER, New York
PETER HOEKSTRA, Michigan CORRINE BROWN, Florida
VERNON J. EHLERS, Michigan BOB FILNER, California
SPENCER BACHUS, Alabama EDDIE BERNICE JOHNSON, Texas
STEVEN C. LaTOURETTE, Ohio GENE TAYLOR, Mississippi
SUE W. KELLY, New York JUANITA MILLENDER-McDONALD,
RICHARD H. BAKER, Louisiana California
ROBERT W. NEY, Ohio ELIJAH E. CUMMINGS, Maryland
FRANK A. LoBIONDO, New Jersey EARL BLUMENAUER, Oregon
JERRY MORAN, Kansas ELLEN O. TAUSCHER, California
GARY G. MILLER, California BILL PASCRELL, Jr., New Jersey
ROBIN HAYES, North Carolina LEONARD L. BOSWELL, Iowa
ROB SIMMONS, Connecticut TIM HOLDEN, Pennsylvania
HENRY E. BROWN, Jr., South Carolina BRIAN BAIRD, Washington
TIMOTHY V. JOHNSON, Illinois SHELLEY BERKLEY, Nevada
TODD RUSSELL PLATTS, Pennsylvania JIM MATHESON, Utah
SAM GRAVES, Missouri MICHAEL M. HONDA, California
MARK R. KENNEDY, Minnesota RICK LARSEN, Washington
BILL SHUSTER, Pennsylvania MICHAEL E. CAPUANO, Massachusetts
JOHN BOOZMAN, Arkansas ANTHONY D. WEINER, New York
JIM GERLACH, Pennsylvania JULIA CARSON, Indiana
MARIO DIAZ-BALART, Florida TIMOTHY H. BISHOP, New York
JON C. PORTER, Nevada MICHAEL H. MICHAUD, Maine
TOM OSBORNE, Nebraska LINCOLN DAVIS, Tennessee
KENNY MARCHANT, Texas BEN CHANDLER, Kentucky
MICHAEL E. SODREL, Indiana BRIAN HIGGINS, New York
CHARLES W. DENT, Pennsylvania RUSS CARNAHAN, Missouri
TED POE, Texas ALLYSON Y. SCHWARTZ, Pennsylvania
DAVID G. REICHERT, Washington JOHN T. SALAZAR, Colorado
CONNIE MACK, Florida JOHN BARROW, Georgia
JOHN R. `RANDY' KUHL, Jr., New York
LUIS G. FORTUNO, Puerto Rico
LYNN A. WESTMORELAND, Georgia
CHARLES W. BOUSTANY, Jr., Louisiana
JEAN SCHMIDT, Ohio
(ii)
Subcommittee on Water Resources and Environment
JOHN J. DUNCAN, Jr., Tennessee, Chairman
SHERWOOD L. BOEHLERT, New York EDDIE BERNICE JOHNSON, Texas
WAYNE T. GILCHREST, Maryland JOHN T. SALAZAR, Colorado
VERNON J. EHLERS, Michigan JERRY F. COSTELLO, Illinois
STEVEN C. LaTOURETTE, Ohio GENE TAYLOR, Mississippi
SUE W. KELLY, New York BRIAN BAIRD, Washington
RICHARD H. BAKER, Louisiana TIMOTHY H. BISHOP, New York
ROBERT W. NEY, Ohio BRIAN HIGGINS, New York
GARY G. MILLER, California ALLYSON Y. SCHWARTZ, Pennsylvania
HENRY E. BROWN, Jr., South Carolina EARL BLUMENAUER, Oregon
BILL SHUSTER, Pennsylvania ELLEN O. TAUSCHER, California
JOHN BOOZMAN, Arkansas BILL PASCRELL, Jr., New Jersey
JIM GERLACH, Pennsylvania RUSS CARNAHAN, Missouri
TOM OSBORNE, Nebraska NICK J. RAHALL, II, West Virginia
TED POE, Texas ELEANOR HOLMES NORTON, District of
CONNIE MACK, Florida Columbia
LUIS G. FORTUNO, Puerto Rico JOHN BARROW, Georgia
CHARLES W. BOUSTANY, Jr., JAMES L. OBERSTAR, Minnesota
Louisiana, Vice-Chair (Ex Officio)
JEAN SCHMIDT, Ohio
DON YOUNG, Alaska
(Ex Officio)
(iii)
CONTENTS
TESTIMONY
Page
Frohardt, Paul, Administrator, Colorado Water Quality Control
Commission..................................................... 5
Limerick, Patricia Nelson, Ph.D, Professor of History and
Faculty Director, University of Colorado at Boulder............ 19
Mudge, John, Director, Environmental Affairs, Newmint Mining
Corporation.................................................... 19
Grumbles, Benjamin H., Assistant Administrator for Water, U.S.
Environmental Protection Agency................................ 5
Pizarchik, Joseph G., Director, Bureau of Mining and
Reclamation, Pennsylvania Department of Environmental
Protection..................................................... 5
Smith, Velma M., Senior Policy Associate, National Environmental
Trust.......................................................... 19
Williams, Dave, Director, Wastewater, East Bay Municipal Utility
District, Oakland, California.................................. 5
Wood, Chris, Vice President for Conservation Programs, Trout
Unlimited...................................................... 19
PREPARED STATEMENT SUBMITTED BY MEMBERS OF CONGRESS
Carnahan, Hon. Russ, of Missouri................................. 31
Costello, Hon. Jerry F., of Illinois............................. 32
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Frohardt, Paul.................................................. 34
Grumbles, Benjamin H............................................ 51
Limerick, Patricia Nelson....................................... 59
Mudge, John..................................................... 71
Pizarchik, Joseph G............................................. 83
Smith, Velma M.................................................. 107
Williams, Dave.................................................. 118
Wood, Chris..................................................... 131
SUBMISSION FOR THE RECORD
Pizarchik, Joseph G., Director, Bureau of Mining and
Reclamation, Pennsylvania Department of Environmental
Protection, responses to questions............................. 103
BARRIERS TO THE CLEANUP OF ABANDONED MINE SITES
----------
Thursday, March 30, 2006,
House of Representatives, Committee on
Transportation and Infrastructure, Subcommittee
on Water Resources and Environment, Washington,
D.C.
The committee met, pursuant to call, at 10:00 a.m., in Room
2167, Rayburn House Office Building, Hon. John J. Duncan, Jr.
[chairman of the committee] presiding.
Mr. Duncan. I want to first of all welcome everyone to our
hearing today. This hearing is on barriers to the cleanup of
abandoned mine sites around the Country. Hopefully we will hear
about potential ways to encourage volunteers to help clean up
these sites.
Past mining activities which occurred when mining practices
were less sophisticated than today have disturbed hundreds of
thousands of acres of land, altered drainage patterns and
generated substantial amounts of waste scattered around the
landscape. Today there are several hundred thousands of these
old mine sites in the U.S., staff briefing memo say about half
a million. Many of these mines were abandoned by the owners or
operators a long time ago, when the remaining minerals became
too difficult or costly to extract.
Although operated consistent with the governing laws at the
time, many of these abandoned mines now pose environmental and
health threats to surrounding surface and groundwaters and to
downstream interests. Nationally, tens of thousands of miles of
streams are polluted by acid mine drainage and toxic loadings
of heavy metals leeching from many of these old mines,
impacting fisheries and water supplies.
State and Federal agencies have worked to remedy these
problems, but the number of sites and the expense involved has
made progress very slow. A lot of these old mine lands lack a
viable owner or operator with the resources to remediate them.
Many others are truly abandoned, with no identifiable owner or
operator to hold responsible. As a result, few of these old
mine sites are getting cleaned up.
Public or private volunteers are Good Samaritans, have been
willing to partially remediate many of these sites. These Good
Samaritans may be driven by a desire to improve the
environment, others may want to improve water quality at their
water supply source. Still others may want to clean up an old
mine site for the purpose of re-mining the area or developing
it in some other way.
However, most Good Samaritans have been deterred from
carrying out these projects by the risk of becoming liable for
complete cleanup required by various environmental laws. This
is because current Federal law does not allow for partial
cleanups. For example, if a Good Samaritan steps in to
partially clean up an abandoned mine site, that party could
become liable under the Clean Water Act or Superfund for a
greater level of cleanup and higher costs than the party
initially volunteered for. Because they could face the legal
consequences if they fall short of complete cleanup, most
potential Good Samaritans refrain from attempting to address a
site's pollution problems at all.
Federal policy should encourage and not discourage parties
to volunteer themselves to clean up abandoned sites. We should
consider whether in some circumstances environmental standards
should be made more flexible in order to achieve at least
partial cleanup of sites that otherwise would remain polluted.
This is not about letting polluters off the hook. They
should remain responsible under existing law. However, if a
party unconnected to an abandoned mine site steps forward to
help with remediation, everyone wins. I believe there is little
disagreement that encouraging volunteers to clean up abandoned
mine sites is a worthwhile policy.
However, in exploring the details of such a policy a number
of issues arise, such as who should be eligible for a lower
standard of cleanup; how should new standards be applied; and
how should potential re-mining of these sites be addressed. To
help us identify and address these and other issues, we have
assembled a number of parties who have been actively involved
in the debate over how to address the abandoned mines problem
in the Country. I hope our witnesses will bring forward ideas
on how we can remove impediments to abandoned mine cleanups and
get more Good Samaritans to step forward.
When I chaired the Aviation Subcommittee, we produced the
first Good Samaritan law for the skies. In addition, we have
done some movements in this direction in brownfields
legislation that we passed through this Subcommittee a few
years ago. I look forward today to an educational and
enlightening hearing. I appreciate very much the witnesses who
have come here today, all of our witnesses. Our most
distinguished and prestigious witness, Mr. Grumbles, from the
EPA, who has been with us many times before and of course, the
other State witnesses who have come long distances to be here
in some cases.
Let me now turn to my distinguished Ranking Member, Ms.
Johnson, for any opening statement she wishes to make.
Ms. Johnson. Thank you very much, Mr. Chairman, and thank
you for holding this hearing.
Today we receive testimony from a wide spectrum of parties
and interests who all have a common goal of improving the
environmental situation associated with abandoned and inactive
mines. I share that goal.
I must say that I find it somewhat ironic that we are
considering legislative proposals to scale back environmental
standards in order to achieve improvements in water quality.
But that is where we find ourselves. Existing programs that
could address mine runoff are either inadequately funded or
inadequately enforced.
The Administration and the Republican-led Congress have
reduced funding for water quality under the Clean Water Act
both for point and non-point pollution controls. They have also
refused to reinstate funding for cleanup of toxic releases
under the Superfund program, so now we look to volunteers where
the Government will not help.
Within this reality, I believe that we can fashion a
legislative proposal that focuses upon areas of common ground
and avoids areas that are divisive. Today's hearing will help
identify those areas of common ground.
But in all of our years of examining this issue, I believe
that some common themes are already apparent. We should make
the focus water quality improvement and let other laws address
mining operations. We will need to define who can be a Good
Samaritan. But other than excluding responsible parties, we
should encourage all volunteers. A threshold level of
remediation should be a measurable improvement in water
quality, with no diminishing of water quality allowed. We must
recognize the legitimate role of States and Tribes in
implementing the Clean Water Act and ensure that the rights of
the public to fully participate in the permitting process are
preserved.
Abandoned, inactive mines are a major source of
uncontrolled pollution in America's waters, particularly in the
western States. This Committee has been talking about doing
something to encourage volunteer efforts to improve water
quality for nearly 15 years. Hopefully, this is the year we can
get something enacted. I look forward to the testimony today.
Ms. Johnson. Mr. Chairman, before I relinquish the mic, I
want to ask unanimous consent to put into the record a
statement by Congressman Tim Holden, who has a conflict and
could not be here this morning. But he has a very complete
statement.
Mr. Duncan. Thank you very much, Ms. Johnson, and
Congressman Holden's full statement will be placed into the
record.
Dr. Boozman.
Mr. Boozman. Thank you, Mr. Chairman, and thank you to you
and the Ranking Member for holding this hearing. The title of
our hearing today is Barriers to the Cleanup of Abandoned Mine
Sites. I would like to go on the record that I think one of the
barriers will be if this effort to make chicken litter meet the
definition of hazardous waste succeeds. You would be surprised,
your grandfather would be surprised, Chairman Duncan, that the
farm that he lived on, with the barnyard manure, was a
hazardous waste site.
We have limited resources to address cleanup sites, such as
abandoned mines. So I hope that we can address the problem with
trying to make manure a hazardous waste at some time. And
again, not waste our resources in efforts like that that are
totally ridiculous. We should not use the funding, the
resources that we have, in ways like this. Instead, we should
try to use them in logical ways to actually deal with
legitimate problems, such as abandoned mines.
Thank you.
Mr. Duncan. Well, I certainly agree with you there. Good
statement.
Mr. Salazar.
Mr. Salazar. Thank you, Mr. Chairman. I want to thank both
you and the Ranking Member for holding this hearing today.
Since enacting the Clean Water Act, our Nation has made
significant progress in improving our water quality around this
Country. One are that we need to make significant improvements,
I believe, is in the pollution of abandoned mine sites. As you
know, the settlement of the west was driving by mining. Mining
has and continues to be a critical part of our development
across the west.
We also have to remember that severe environmental
consequences can accompany mining. This rings true especially
in the earlier ways that mining activities were conducted. I
believe that the current system in place creates a disincentive
for parties from attempting to voluntarily clean up these mine
sites.
Today, I plan on introducing legislation that would form a
pilot project that would allow Good Samaritans to clean up the
Animus River Basin. This bill will be introduced with the
support and comments of local communities in the Animus River
Basin.
The objective of the bill is to allow those parties the
necessary tools to attempt to clean up the waters of the Animus
River as well as using it for a model for our Nation to see
what works and what does not work. I would urge my colleagues
to support this bill and help make it a reality. I think we
need to go forward with some piece of legislation. This problem
has been around for a very long time and the public is looking
to Congress for answers.
In closing, I look forward to hearing testimony from the
two panels, and I want to thank the panel participants and once
again, the Chairman and the Ranking Member.
Mr. Duncan. Thank you very much, Mr. Salazar. We will be
happy to work with you on that, your proposed legislation, too.
Our first panel this morning is led off by the Honorable
Benjamin H. Grumbles, who is Assistant Administrator for Water
from the U.S. Environmental Protection Agency. We also will
have testimony from three State witnesses. Representing the
Western Governors Association is Mr. Paul Frohardt,
Administrator of the Colorado Water Quality Control Commission
from Denver, Colorado.
We have representing the Interstate Mining Compact
Commission Mr. Joseph Pizarchik. Mr. Pizarchik is the Director
of the Bureau of Mining and Reclamation of the Pennsylvania
Department of Environmental Protection from Harrisburg,
Pennsylvania.
And we have representing the East Bay Municipal Utility
District Mr. Dave Williams, Director of Wastewater for Oakland,
California.
Gentlemen, we are happy and pleased that all of you are
here with us. Administrator Grumbles, you may begin your
statement. All of your full statements will be placed in the
record. The rules of the Committee are you are given five
minutes, but in this Subcommittee we give you six minutes. But
in consideration of the other witnesses, if you see me start to
wave this, that means to bring your statement to a close.
Thank you very much. Administrator Grumbles.
TESTIMONY OF THE HONORABLE BENJAMIN H. GRUMBLES, ASSISTANT
ADMINISTRATOR FOR WATER, UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY; PAUL FROHARDT, ADMINISTRATOR, COLORADO WATER QUALITY
CONTROL COMMISSION; JOSEPH G. PIZARCHIK, DIRECTOR, BUREAU OF
MINING AND RECLAMATION, PENNSYLVANIA DEPARTMENT OF
ENVIRONMENTAL PROTECTION; DAVE WILLIAMS, DIRECTOR, WASTEWATER,
EAST BAY MUNICIPAL UTILITY DISTRICT, OAKLAND, CALIFORNIA
Mr. Grumbles. Thank you, Mr. Chairman. And thank you also,
Congressman Boozman and Congressman Salazar, for your interest
and your leadership on Good Samaritan efforts and holding this
hearing. I was very encouraged by Congresswoman Johnson, her
statement that she was looking forward to legislation this
year, moving forward with legislation.
So on behalf of EPA, I am very honored to appear before the
Subcommittee to discuss the barriers and also talk about some
of the solutions and things that can be done to incorporate
cooperative conservation and common sense into what has been
over the decades a very complex issue. So there is great
opportunity to accelerate environmental protection and
watershed restoration through cooperative conservation and
common sense, as applied to clean water and other liabilities.
Mr. Chairman, I just wanted to mention that behind me is
the Deputy Assistant Administrator for Water, Brent Fewell, who
has been the fuel, the driving force behind a lot of the
Agency's Good Sam work over the last year. I remember sitting
over on the other side over a decade ago, when this
Subcommittee was listening to the problem about Good Samaritan,
the need for cleanup of abandoned mines throughout the West and
other places in the Country.
The main message is that we are committed to working with
the Committee on a bipartisan basis to really make this the
year where legislation moves forward. We also are committed
administratively to do everything we can to advance cooperative
conservation and common sense in the content of cleaning up
these abandoned mine sites.
As you and others have stated, the problem is large and
complex. There are hundreds of thousands of abandoned or
inactive mine sites across the Country, and there are thousands
that are contributing to water quality impairments and
degrading watersheds.
So the real issue is, how can we move forward in a
responsible way to accelerate the progress in environmental
restoration? A lot of experts speaking after me will highlight
some of the legal and bureaucratic complications when Good
Samaritans want to move forward. We view a Good Samaritan as a
good steward who is acting because he is inspired, not because
he is required to do so.
We see that there are challenges under the Clean Water Act
when it comes to the permitting responsibilities and the
liabilities and the standards. So what I wanted to do, Mr.
Chairman, in the remaining amount of time, was to focus on
first the threat of liability. It is a barrier, a barrier to
Good Samaritans stepping forward. It is a barrier under the
Superfund laws because of the operator liability or arranger
liability.
Those who do not own the land and want to step forward to
help remediate these legacy sites face the very real threat
that they won't be able to rely on protections under the
Superfund law. They face the very real threat that they will be
liable under the Clean Water Act for permitting
responsibilities. That is why we think both administrative and
legislative efforts are important to have a targeted and
responsible approach to reduce or remove some of the liability.
Partial cleanups by Good Samaritans will result in
meaningful environmental improvements. In many cases the
impaired water bodies may never fully meet water quality
standards, regardless of how much cleanup or remediation is
done.
By holding Good Samaritans accountable to the same cleanup
standards as polluters, or requiring strict compliance with the
highest water quality standards, we have created a strong
disincentive to voluntary cleanups. So in addition to the
barrier of liability under CERCLA or the Clean Water Act, there
is also the barrier of water quality standards that are not
appropriate for this precise situation when volunteers, Good
Samaritans are stepping forward.
We are not supporting, we are not talking about decreasing
the level of protection, the water quality standards, as much
as we are talking about injecting some common sense. If the
Good Samaritan is going to be improving water quality, that is
the real measure, and that is what we wanted to ensure occurs,
but not have a barrier where they are held to the same standard
as the industrial polluter or the other polluter who created
the problem in the first place.
In August of 2004, there was an executive order on
cooperative conservation. In August of 2005, Administrator
Steve Johnson announced a Good Samaritan initiative by the U.S.
EPA to really make progress in cleaning up these abandoned
hardrock mine sites across the Country. What we are doing, Mr.
Chairman, administratively, is advancing a tool kit that will
provide an array of tools, a model covenant or agreement with
Good Samaritans to help reduce the threat of liability, also
letters, comfort letters to give them signals to move forward,
also guidance with other Federal agencies. We also have an
innovative project we are working on with Trout Unlimited at
the American Fork Canyon.
Mr. Chairman, the thing I really wanted to emphasize in the
remaining amount of time is on the legislative front. We
applaud the efforts, the bipartisan efforts of members of
Congress, both sides of the aisle and both chambers. But we
ourselves are also aggressively moving forward with developing
legislation on behalf of the Administration that will bring
together and help add momentum to the effort to get legislation
across the finish line. We would be delighted to share that
when we can, hopefully in the very near future. But it is
focused on streamlined permitting processes, a targeted
approach, realistic and common sense standards and really
accelerating watershed restoration and protection.
Mr. Chairman, I just want to commend the Committee and
Congresswoman Johnson for their interest in this, and pledge to
work with all of the members of the Committee in moving forward
responsibly with targeted legislation for Good Samaritans.
Thank you, Mr. Chairman.
Mr. Duncan. Thank you very much, Administrator Grumbles.
Your statement points up clearly that, as in most things,
nothing is as simple as it appears on the surface. It is a
complex problem and I applaud you for going forward with the
initiative that you have described administratively. We
appreciate your offer to help on the legislation. I think you
always approach these issues in a very sensible, intelligent
way.
I appreciate your comments. In almost no legislation can we
ever go as far as people who work full time on that particular
problem to the exclusion of all other problems. But hopefully
we can make some progress.
Our next witness is Mr. Frohardt. I have already introduced
Mr. Frohardt and you may begin your statement.
Mr. Frohardt. Thank you, Mr. Chairman, members of the
Committee. I appreciate the opportunity to be in front of you
today to talk about this issue, which is of great importance to
the Western Governors Association and western States.
Abandoned and inactive mines are responsible for many of
the greatest threats to water quality in western States. We do
have thousands of stream miles that are impacted by drainage
from these mines and runoff. And we have encountered a
situation where there is often no identifiable financially
responsible party to clean up these sites.
In view of the significant impacts that are caused and the
difficulties in finding a responsible party that can be
required to clean up the sites, States are very interested in
undertaking and encouraging Good Samaritan remediation
initiatives; that is, initiatives by States and other third
parties who are not legally responsible for the existing
conditions to try to improve the situation.
However, as has been pointed out, there is currently no
provision in the Clean Water Act that protects a Good Samaritan
that attempts to improve conditions at these sites from
becoming legally responsible for any continuing discharges
after completion of a cleanup project. We believe that this
potential liability under the Clean Water Act is the major
barrier currently to cleanup of these sites.
The western States greatly appreciates recent efforts by
EPA to examine and enhance administrative tools to facilitate
Good Samaritan remediation efforts. But we do believe that only
a legislative solution can fully address liability concerns,
particularly for sites with draining adits.
Our written testimony addressees several principles that
WGA believes are important for any Good Samaritan legislation.
This morning in the brief time that we have, I would just like
to highlight two of those principles. First, the definition of
a remediating party or Good Samaritan. The western States
believe that participation in Good Samaritan cleanups should
not be limited solely to governmental entities, since there are
many other persons that are likely willing to contribute to
Good Samaritan cleanup initiatives.
However, the States believe that statutory provisions
should be carefully crafted. In particular, that they should
broadly exclude those with prior involvement at abandoned or
inactive mine sites; they should broadly exclude those with
current or prior legal responsibility for discharges at a mine
site, and they should assure that any non-remediation related
development at a site is subject to the normal Clean Water Act
requirements, rather than the Good Samaritan provisions.
Secondly, the standard for cleanup under a Good Samaritan
project. We believe that EPA should approve a Good Samaritan
permit only if it determines that a remediation plan
demonstrates with reasonable certainty that the actions will
result in an improvement in water quality to the degree
reasonably possible with the resources available to the
remediating party for the proposed project.
However, we think it is particularly important that
analysis of a proposed project, that that analysis needs to
occur at the front of a project. It is very difficult to always
predict exactly what is going to be achieved and therefore, a
Good Samaritan's responsibility should be defined as
implementing an approved project, rather than, for example,
meeting specific numerical effluent limitations.
So the western States urge Congress to proceed quickly on
this issue and in addressing the issue, we would recommend that
Congress avoid expanding the Good Samaritan proposal toe
extraneous issues, such as re-mining or a general fee on
mining. The western States are concerned that efforts to expand
the scope of this issue are likely to generate significant
opposition that may further delay or frustrate the ability to
get this needed and widely supported proposal adopted into law.
Now I would like to turn for just a minute to a few
comments separately specifically on behalf of the State of
Colorado. Governor Owens is on record in support of S. 1848,
the Cleanup of Inactive and Abandoned Mines Act, which was
introduced by Senators Allard and Salazar. Colorado believes
that this bill provides a thoughtful and balanced approach to
the range of issues and options that have been discussed, and
urges Congress to move forward with S. 1848 as the basis for
Good Samaritan legislation.
For us, this is not an academic debate about appropriate
legislative language. We have a number of projects in the
pipeline that have been put on hold for many years, and if a
Good Samaritan bill is enacted, water quality in Colorado will
begin to improve during the next construction season.
Finally, I want to just provide a brief personal note. I
first testified before this Committee on this issue on behalf
of the Western Governor Association 11 years ago. At that time,
we worked with a very helpful young Committee staffer named Ben
Grumbles.
Unfortunately, sine then, in spite of a lot of efforts by a
lot of people, we still don't have a Good Samaritan Act, and we
still do have the same water quality impacts to the streams in
our mountains. Please work to get this legislation adopted
quickly, so that real progress can be made without substantial
further delay. Thank you for your time.
Mr. Duncan. Thank you very much, Mr. Frohardt. Somebody
told me a couple of months ago that the days are long but the
years are short. And I am sure you would say that 11 years has
probably gone by very, very quickly.
Mr. Pizarchik.
Mr. Pizarchik. Thank you, Chairman, members of the
Committee.
As part of my discussion today, in regard to the barriers
to the cleanup of abandoned mines, I would like to talk about
our experiences in Pennsylvania regarding the reclamation of
abandoned mine lands under Pennsylvania's Environmental Good
Samaritan Act and under our re-mining program.
In my home State, we have had over 200 years of mining that
have left a legacy of over 200,000 acres of abandoned mine
lines. These abandoned sites include open pits, water-filled
pits, spoil piles, waste coal piles, mine openings and subsided
surface areas. The water-filled pits shown on the easel there
in that photo covers 40 acres and is 238 feet deep. All that
water is acid mine drainage. It will cost over $20 million to
reclaim it.
We also have thousands of abandoned mine discharges with
varying degrees of acid, iron, aluminum, manganese and sulfates
in the water. Some of the discharges are small and some are
quite large. One such large discharge is a tunnel that drains
over a 20 square mile area and discharges 40,000 gallons per
minute.
According to an EPA Region III list from 1995, there were
3,158 miles of Pennsylvania streams affected by mine drainage.
Over the last 60 years, Pennsylvania has spent hundreds of
millions of dollars on abandoned mine problems. It became clear
that without help from others, Government efforts alone would
take many decades and billions of dollars to clean up all of
the problems. Additional options were needed.
One option was re-mining. We found that operators were
obtaining mining permits for abandoned sites and were mining
the coal that was previously economically and technologically
impossible to recover. However, such re-mining and reclamation
was not occurring on sites that contained mine drainage.
When Pennsylvania officials tried to leverage the State's
limited resources by working with citizen and watershed groups
to accomplish more reclamation, we met significant resistance.
Citizen groups and mine operators alike would not tackle sites
that had mine drainage on them, because State and Federal law
imposed liability on them to permanently treat that discharge.
With the advances made in science, technology and in our
understanding of mine drainage, we in the Pennsylvania mining
program knew that there were many abandoned discharges that
could be eliminated or improved at little or no cost to the
Commonwealth if we could address the potential liability issue.
In Pennsylvania, we took two different approaches to limit the
liability.
First, for re-mining of sites with pre-existing discharges,
we worked to change the mining laws to eliminate mine
operators' liability. Second, we enacted the Environmental Good
Samaritan Act to provide protections and immunities to people
who were not legally liable, but who voluntarily undertook
reclamation of abandoned mines.
For the re-mining, we only approved permits that are likely
to improve the discharge. While the law limits a permittee's
potential liability, it does not provide absolute liability.
Potential liability for making things worse helps weed out
those sites that cannot successfully be re-mined, and helps
ensure that the operator follows the special measures needed to
improve or eliminate the discharge.
Our re-mining program has been very successful. Of 112
abandoned surface mines containing 233 pre-existing discharges
that were re-mined, 48 discharges were eliminated, 61 were
improved, 122 showed no significant improvement and 2 were
degraded. Thousands of tons of metals deposited into the
streams annually were removed. Approximately 140 miles of our
streams were improved. Treatment would have cost at least $3
million a year every year to remove that through conventional
measures.
The benefits of re-mining are not limited to our water
quality improvements. Significant amounts of Pennsylvania's
abandoned mine lands have been reclaimed at no cost to the
Government. Over the past 10 years, 465 projects reclaimed over
250,000 acres and eliminated 140 miles of dangerous high wall.
Abandoned waste coal piles were eliminated. Abandoned pits were
filled. And lands were restored to a variety of productive
uses, including wildlife habitat.
On the photo that you see there, those are elk. They are
Pennsylvania elk, and they are feeding on a site that was re-
mined and reclaimed pursuant to our re-mining program. The
estimated value of the reclamation that was accomplished
through re-mining in the past 10 years exceeds $1 billion.
Separate from our re-mining laws is Pennsylvania's
Environmental Good Samaritan Act. Like re-mining, only projects
approved by our Department are eligible for the protection.
Approval is required to ensure that the project is likely to
make things better. The project must be an abandoned mine land
or abandoned discharge for which there is no liable party. And
protections are provided to the land owners, as well as those
who are doing the work or providing materials or services.
Pennsylvania has undertaken 34 Good Samaritan projects.
Some projects are simple, low-maintenance treatment systems.
Others are more complex, like the project in Bittendale,
Pennsylvania that transformed an abandoned mine into a part
that treats acid mine drainage, celebrates the coal mining
heritage and provides recreation facilities for the residents
and serves to heighten public awareness about the importance of
treating mine drainage.
While Pennsylvania's Good Samaritan Act has been
successful, there are concerns. First, the Federal Clean Water
Act citizen supervision still poses a potential liability to
these Good Samaritans. Recent developments portend action by
some who hold a strict, literal view of the permitting
requirements and the total maximum daily load requirements of
the Federal Clean Water Act. Without Federal Good Samaritan Act
or an amendment to the Clean Water Act providing that Good
Samaritan projects and abandoned mine discharges are not point
sources or not subject to the permitting requirements, the
potential good work of the volunteers in Pennsylvania
throughout the Country is at risk.
People who would undertake projects to benefit the
environment in America could be personally liable for making
things better just because they didn't make them perfect.
Thank you.
Mr. Duncan. Thank you very much, Mr. Pizarchik. Very fine
statement. It has been a wonderful thing to see some of these
reclamation projects where people have put golf courses,
retirement communities, green spaces and parks. I particularly
enjoyed the picture of the elks feeding there. Thank you very
much.
Mr. Williams.
Mr. Williams. Thanks for the opportunity to address you
this morning.
I think we need Good Samaritan legislation and what I
wanted to do is touch on an example that we had at our
district, and then give you some of my thoughts on how the
POTW, the publicly-owned treatment works, could play a role in
this.
Abandoned mines are a big problem. There are over 39,000
alone in California. A lot of waste rock goes along with that,
and the acid mine drainage. The East Bay MUD story is that we
are a wastewater district serving 1.3 million people in the
East San Francisco Bay. Our water supply is on the Mokelumne
River in the Sierra Foothills. We have a couple of reservoirs
there.
We have a reservoir, and the south shore of that reservoir
has an abandoned mine. It is called Penn Mine. It was a major
copper producer during World War II, and it was abandoned in
the 1950s. When it was abandoned, there were 400,000 cubic
yards of waste rock left in piles on the site. That resulted in
100,000 pounds of copper being discharged in the Mokelumne
River every single year from acid mind drainage and massive
fish kills.
We were asked by the State in 1978 to help implement an
abatement plan. We said okay. Our part of the plan was to build
a berm about 100 feet long, 15 feet tall, to basically keep the
acid mine drainage from entering the river. We did that on our
land. It resulted in dramatic improvements in the reduction of
acid mine drainage and reduction in fish kills.
We were then sued in 1990 by the Committee to Save the
Mokelumne. They said that it represented a potential to
discharge, the spillway on this berm, into the Mokelumne. We
argued that in court and lost. When we lost, we were then
ordered by EPA to restore the entire site to the pre-mining
condition. So we did that at a cost of $10 million. That was
completed in 2000.
The story spread like wildfire throughout California, put a
chilling effect on any efforts to clean up abandoned mines and
little has happened since then.
I think that is a good example, but I think there is a lot
of potential for benefits. And I think the POTW community could
play a role in that. I wanted to give you an example of how
that might work. Currently, San Francisco Bay is impaired for
mercury. So how did all the mercury get there? Well, it came
from mining operations, 26 million pounds of mercury was used
to extract gold during the Gold Rush days. Eight million pounds
of mercury found its way down into the sediment into San
Francisco Bay.
So you have sediment and you have the continued runoff from
the abandoned mines. The total maximum daily load report for
San Francisco Bay identified the major sources. Two major
sources: sediment and abandoned mines. Publicly-owned treatment
works were also a contributor. We contribute, total, all 40
treatment plants in the Bay Area, 17 kilograms out of a total
of 1,220 kilograms that find its way into San Francisco Bay
every year. We are viewed as a de minimis source.
Nonetheless, the TMDL is proposing that we cut back the
mercury discharge from treatments by 40 percent in 20 years.
You can do a little bit with pollution prevention. But you
can't make the 40 percent. So we need some assistance there.
What we are faced with is installing costly tertiary
treatment facilities at a cost of an estimated $200 million to
$300 million per year on the ratepayers, in addition to what
they are currently paying in the San Francisco Bay area.
Doesn't it make sense to spend much less than that and get much
more bang for the buck by creating a mechanism where you could
go in and relieve some liability and do some good by cleaning
up abandoned mines? It seems to make sense to me.
Let me give you some thoughts on what I think a Good
Samaritan legislation should address. One is, it should provide
for a process to assure that projects make sense and a
reasonable expectation that you are going to get the
environmental benefit that you are expecting. There should be
assurances that the project will be done without imposing some
of the typical NPDES permit requirements as Mr. Grumbles
mentioned that may be unnecessary and inapplicable.
It should limit long term responsibility once the
remediation is done. And of course, it should not negate
existing liability of those who have caused the problem.
There are just a few other considerations, whether they be
addressed in legislation or policy or guidance. But that is,
the effort should be voluntary. There should be cost certainty,
so that someone is not writing a blank check.
And the cleanup effort should be reasonably related to that
which a discharger would otherwise have to do and have an
incentive built in it. If you are going to spend $50 million on
treatment facilities and you would have to spend the same
amount to clean up an abandoned mine, you are going to build
the treatment facilities, because you have control over that.
There needs to be some incentive there. Also, it needs to be
documented in the permit, because the permit does give a
shield.
In summary, I think that efforts on mine cleanup are
stalled. The time is right. You have the power, and I urge you
to act.
Mr. Duncan. Thank you very much, Mr. Williams. Four very
fine statements, very informative and I think very helpful.
Mr. Grumbles, you mentioned and I mentioned the Good
Samaritan initiative that the EPA is presently attempting. Can
you do enough, can you provide adequate legal protection
through your initiative administratively without legislation?
Mr. Grumbles. Mr. Chairman, we believe legislation would be
extremely important and helpful. It is very hard to accelerate
watershed restoration at the pace we want to accelerate it,
based solely on administrative authorities. We will use those
to the fullest extent, but legislative guidance and direction
from Congress is really what is needed.
Mr. Duncan. Are there other major laws or obstacles besides
the Clean Water Act and the Superfund law that would get in the
way of potential environmental Good Samaritans?
Mr. Grumbles. Mr. Chairman, I would say on a case by case,
watershed by watershed basis, there may be times when another
law creates a barrier that needs to be worked out, worked
through. But we feel that based on the evidence and some of the
work that, in the report, that you will hear more about--
cleaning up abandoned hardrock mines in the west, Patty
Limerick's efforts--the evidence is that those are two of the
primary obstacles, and certainly the Clean Water Act, the
permitting and the liability and the right standards question
are ones that we think merit the greatest amount of attention
and focus, and focus in a targeted way so that a decade from
today there is not another hearing urging movement on
legislation. The barriers, the pitfalls to legislation in the
past, have been trying to solve or respond to too many other
ancillary issues. So we support focused activity on the Clean
Water Act and some of the Superfund-related issues.
Mr. Duncan. Do we need to treat public or private lands
differently in any way?
Mr. Grumbles. Well, I think that one of the challenges and
opportunities for moving forward smartly is to ensure that
Federal land management agencies are very much involved in
these Good Samaritan projects, as cooperating agencies. And we
do need to keep in mind, on a site by site basis, the different
factors that play in having a successful bill. We think it is
important to focus on the status of the Good Samaritan and make
sure that that person or organization is in fact a Good
Samaritan and that it is not about profit, but it is about
environmental protection.
Mr. Duncan. Are there other measures that you think we need
to take in addition to Good Samaritan legislation to speed up
our assist in the cleanup of these abandoned mine sites?
Mr. Grumbles. Certainly the whole spirit of the executive
order on cooperative conservation is, work with all parties to
facilitate cooperation and conservation as opposed to
confrontation. I would say that pilot projects are very
important, they are very good, and we are using our authorities
to carry out pilot projects under the Clean Water Act and non-
point source programs and the targeted watershed grants. But it
requires more than just pilot projects. There needs to be, from
the top, a strong message providing legal protection and
inserting common sense into the standards process.
Mr. Duncan. Administrator Grumbles needs to leave here in
just a few minutes. I have questions for the State witnesses
but I am going to turn to Ms. Johnson now for any questions she
has for Administrator Grumbles.
Ms. Johnson. Thank you very much, Mr. Chairman. I really
don't have in particular for Mr. Grumbles, but I appreciate
your being here and making yourself available.
Mr. Grumbles. Thank you.
Mr. Duncan. All right, thank you very much, Mr. Grumbles,
you are free to go. Thank you very much for being with us.
Mr. Frohardt, what is your best estimate of how many
abandoned mine sites there are in the U.S. and how many in the
State of Colorado?
Mr. Frohardt. Mr. Chairman, I don't have those numbers
specifically. There have been widely varying estimates and it
really depends on what people are looking at. We have a lot of
abandoned sites, and then you get different estimates of what
subset of those sites are specifically causing water quality
impacts. But throughout Colorado, we have sites, in each of the
headwaters of each of our river basins that continue to cause
significant impacts. We have local groups in each of those
basins that are anxious to undertake efforts to clean them up
if we can get this issue addressed.
Mr. Duncan. How many States are there in the Western
Governors Association?
Mr. Frohardt. Eighteen.
Mr. Duncan. Eighteen? And do you have any kind of rough
estimate as to how many abandoned mine sites there are in those
western States? Do you think this is primarily an eastern
problem or primarily a western problem or about the same all
over the whole Country?
Mr. Frohardt. The western States have been focused in
particular on the hardrock sites, are where we are seeing the
greatest impacts from the historic activities. I would assume
that those problems occur much more frequently in the western
States.
Mr. Duncan. Have you found, or do you believe there are
quite a few Good Samaritans that would be willing to perform
abandoned mine site cleanups?
Mr. Frohardt. Absolutely. Again, we have over a dozen
groups in Colorado in different locales, different river
basins, different specific historic impact sites that have
really over the last decade gotten themselves organized and
interested in undertaking projects. They are at varying degrees
in terms of their analysis or how ready a specific project is
to go forward. But I believe that if this liability issue can
be addressed we have quite a few instances where progress could
be made quickly.
Mr. Duncan. You have been involved in this for a long time,
because you mentioned testifying 11 years ago, and I assume you
were involved in it for at least a few years prior to that.
What laws do you think have been the greatest obstacles to
getting these abandoned mines cleaned up?
Mr. Frohardt. Again, the Western Governors Association's
focus has always been to principally on the Clean Water Act.
Within the State of Colorado, when we first started looking at
actually using some Section 319 non-point source funds under
the Clean Water Act for our Division of Minerals and Geology to
clean up some sites in the late 1980s, the first thing we
worried about was CERCLA liability, because that is usually
much broader and scarier liability.
We found some mechanisms under CERCLA that appeared to us
to be workable. Our State entered into a memorandum of
understanding with EPA and using on-scene coordinator
provisions of CERCLA, felt that we had a mechanism which was
maybe not ideal but at least workable to move forward, until in
the early 1990s, thanks to the unfortunate experience of East
Bay MUD, we all became aware of these concerns under the Clean
Water Act for which we were unable to find an administrative
solution.
So I think it starts with the Clean Water Act. I think
there are some complications in CERCLA. As Ben Grumbles said,
there may well be instances where there could be issues that
come up under other statutes as well, but we believe those are
the primary concerns.
Mr. Duncan. Well, thank you very much.
Mr. Pizarchik, you have described the Pennsylvania program,
and I commend you for what you have been able to do so far. Do
you feel that your State program has been able to give adequate
legal protection to the people who want to clean up or
redevelop these sites? Or do you think it would help for
additional Federal legislation to be passed?
Mr. Pizarchik. Additional Federal legislation would be very
helpful, Mr. Chairman. We have a number of folks who have been
reluctant to undertake some of these cleanup projects because
of their concern for the Federal legislation. We have had some
other folks who were willing to proceed and take the risks on
somebody suing them on that point, and we have been fortunate
to date that we haven't had that happen.
But I believe a Federal assistance, Federal legislative fix
for that potential liability would go a long way to encouraging
more people to undertake these projects.
Mr. Duncan. Have you had a difficult time or an easy time
trying to determine what level of cleanup a potential Good
Samaritan should be required to achieve?
Mr. Pizarchik. We have not had that problem, Mr. Chairman.
Based on the long history that we have had with our re-mining
program, we have learned a lot about what can be accomplished
through certain best management practices or activities out on
the site. We work with the watershed groups who are wiling to
take these projects to undertake those.
I would strongly recommend against the establishment of a
numerical number, because the sites vary so much in the
quantity and the quality of the pollutants and the problems
that are out there that what can be achieved by a Good
Samaritan can vary significantly. Sometimes we can get total
elimination of the discharge, other times we can only get an
incremental improvement.
So something that was more along the lines of a best
management practice approved by the State agency that was
likely to make things better would be much better suited to the
problem than establishing numerical limits.
Mr. Duncan. Thank you very much.
Mr. Williams, you mentioned the gigantic problem that you
face in the Bay there, but you are a de minimis participant, as
you said, a very small part of the problem. What do you think
we need to do? What approach would you recommend that would,
you think, facilitate or speed up this mine cleanup process?
Mr. Williams. One thing I think that is needed is some sort
of an offset program. Right now there isn't an offset program
in California and--
Mr. Duncan. How does that work?
Mr. Williams. It could work in a number of different ways.
But an example would be that if you are looking at reducing a
discharge from your treatment works by a kilogram, you might go
and clean up 10 kilograms of a same pollutant or a similar
pollutant, a toxic pollutant at a different site. You could set
up some sort of a mitigation bank, where you could actually pay
into that and reap the benefits of that leveraging there.
One of the fundamental problems is the liability issue. EPA
has a trading policy, but it doesn't allow for going outside
the watershed. It also states that if you trade, and this is
where somebody is in business, so you trade with somebody, so
it is much more cost effective to reduce their pollutant
loading than to reduce yours. That is kind of a trading policy.
But the way the policy reads is if they do not uphold their
end of the bargain, then you are still on the hook. Well, that
doesn't work very well for abandoned mines, right? So it is
kind of that blank check type of thing.
So I think having legislation that addresses the liability
issue would be a major step forward to allowing States to begin
to tackle this offset type of concept.
Mr. Duncan. How long have you been in the utility business?
Mr. Williams. Thirty-three years.
Mr. Duncan. Thirty-three. And I assume you know, you go to
a lot of utility meetings and know a lot of people in this
industry.
Mr. Williams. I do.
Mr. Duncan. Do you think that a lot of utilities would
consider engaging in Good Samaritan projects if they had
adequate liability protections?
Mr. Williams. If it was adequate liability and if it was
voluntary, I think they would certainly consider that. They
would be looking at meeting TMDLs, and it doesn't matter if it
is a TMDL for mercury or PCBs or legacy pesticides, anything
where they are a very small contributor and it is going to be
very difficult for them to meet. If there was liability
protection and it was voluntary, you would certainly have
people looking at that very carefully.
Mr. Duncan. How would you respond to statements that if
your utility district only had sought a permit from the State,
the district would not have been held liable for cleanup and
subsequent monitoring action?
Mr. Williams. That's an interesting question. You go back
20 some years, at the time, 1978, massive fish kills on the
Mokelumne River, which is a reservoir that we owned. It is a
huge recreational resource in the Sierra foothills. Unabated
discharges of acid mine drainage, high in copper loadings, into
this reservoir. And we get approached by the State regulatory
body that actually issues permits. And they say, you don't need
a permit for this, would you participate in this abatement
effort and build this berm that would keep the acid mine
drainage from running into the river.
With 20-20 hindsight, but at the time, on the ground, we
said, yes, we will. Obviously we were wrong, because a court
ultimately determined that the fact that periodically in heavy
rain types of situations there was a spillway on that berm and
that spillway could overflow. And what overflowed was going to
receiving water in the United Sates, and it did not meet water
quality standards. So we got burned.
Mr. Duncan. All right, well, thank you very much.
Ms. Johnson.
Ms. Johnson. Thank you very much, Mr. Chairman.
Mr. Pizarchik, from Pennsylvania, you have a State
legislative action on Good Samaritans. Tell me exactly how that
works. How do you go about encouraging people?
Mr. Pizarchik. At the time we had that legislation enacted,
we also had a bond sale that was approved, and where it has
raised $650 million for watershed improvements projects, spring
cleanup projects. Our agency used that money for grants to
watershed groups to do cleanup streams, but also helped to
encourage the construction of watershed groups.
As part of the Environmental Good Samaritan Act, we have a
fact sheet out that we distributed to watershed groups, we have
watershed coordinators in our various district mining offices
that attend these types of meetings. We have a formal guidance
document that lays out the process about how a group can come
in under the protections of that particular statute.
They submit their proposal to our agency. We review it for
the purposes of determining whether or not it is going to make
the water quality better, to improve water quality. We also get
all the participants identified. We track that information in a
data base. And for whatever sources these folks are using for
their money, they go out and will complete the project. We work
with them on that particular project.
Our Good Samaritan Act provides them protections under any
citizen suit provisions under our State laws, or State Clean
Water act. And it also protects those folks should anybody be
injured while the project is occurring. It allows for future
protection as well, if that project should fail at some point
in the future, if their treatment system failed, they would not
have liability under at that point as well.
In addition, we also undertake a public notice provision
where we notify the adjacent property owners and downstream
riparian landowners and give them an opportunity to have input
on the project, to make sure that any concerns that they may
have would be considered in the approval or incorporated into
the plan, in order to help project them from any adverse
consequences.
In essence, what we have for those approved projects, it is
set up pretty much as an affirmative defense if someone were to
try to challenge or to sue those people for anything that
happened out on that project, or for something that might
happen in the future. And we maintain a data base that lists
the participants, the location of the projects, et cetera, so
it is accessible to any members of the public to be raised as
that type of an affirmative defense.
Ms. Johnson. Thank you very much.
Anyone else with a program that might not be codified yet?
All codified?
Mr. Frohardt. Thank you, Representative Johnson. In
Colorado, we have not adopted any State law at this point.
There has been some consideration of that. But because the
ultimate liability concern really is the Federal law, and
obviously we can't affect that liability, we have made the
decision at this point not to do anything especially with our
State law until Federal law hopefully gets addressed.
Ms. Johnson. Mr. Williams, do you have anything similar?
Mr. Williams. In terms of a State law?
Ms. Johnson. Well, whether you have a law or not, whether
you have maybe a volunteer program, and how it works.
Mr. Williams. No, there is concern right now with respect
to adoption of the TMDLs. That is something that many POTWs are
concerned about. And that is that absent a framework of any
kind of an offset program, and absent any fix with respect to
liability issues, the concern is that if you are a de minimis
source and the TMDL gets adopted, and you are at a point where
the only thing that you could possibly do aside from adding
very expensive treatment facilities is try to do source
control.
And you do that, but you know that the source control isn't
going to get you to the end point, the concern is that you will
be ratcheted down because you are a point source, and be
leveraged to go out and do something. The situation is, do
something until we tell you it is enough. And that is the
concern that we have as a POTW community.
Ms. Johnson. Thank you very much, Mr. Chairman.
Mr. Duncan. All right, thank you, Ms. Johnson.
There are so many parts of this that we haven't covered,
and we are going to be getting into some votes in just a few
minutes, and we are going to have to move on to the next panel.
But just for a few examples, our staff, when we were discussing
this yesterday, we came up with some of these things, whether
Good Samaritan legislation is necessary, who should be allowed
to remediate with reduced liability, whether and to what extent
anyone should try to find the original responsible parties,
whether in some circumstances environmental standards should be
made more flexible in order to achieve at least partial
cleanup, what and how cleanup benchmarks or standards should be
applied in Good Samaritan cleanups, whether citizen suits
should be allowed against a party acting as a Good Samaritan,
what are the restrictions on these suits? That is a difficult
question there.
Whether to extend Good Samaritan protections to abandoned
coal as well as hardrock mines, whether to extend Good
Samaritan protections to public as well as private lands, what
incentives should be extended to encourage Good Samaritan
cleanup? That is a potentially interesting thing, too. Whether
and what circumstances and by whom re-mining of abandoned mine
sites should be allowed. Re-mining could be a big question.
Whether and how to set up a funding mechanism to pay for
cleanup of abandoned mine sites. Who should administer a Good
Samaritan program.
I mean, these are just a few of the questions. And the
reason I covered these things, very quickly, like I said, we
are going to have to move on to this next panel. But to help
us, if there is anything that I haven't covered here or
anything that I have mentioned there that creates some thoughts
in your minds, I wish that you would, I hope you would be
willing to submit an additional statement or comments that we
can place in the record. You would have to do that within the
next few days, if you could do that. But that would be very
helpful to go into the final report of this hearing.
So we thank you very much for being with us today and for
coming long distances to be here. You have been really
outstanding witnesses, in my opinion. Thank you very much.
We will proceed with the next panel, and hopefully we can
get in their statements before the votes occur. We have as the
second panel, representing the Center of the American West, Ms.
Patricia Nelson Limerick, Ph.D, Professor of History and
Faculty Director at the University of Colorado at Boulder;
representing the National Mining Association, we have Mr. John
Mudge, who is the Director of Environmental Affairs of the
Newmont Mining Corporation from Reno, Nevada; we have
representing Trout Unlimited Mr. Chris Wood, who is Vice
President for Conservation Programs, and he is based here in
Arlington, Virginia; and we have representing the National
Environmental Trust Ms. Velma M. Smith, Senior Policy
Associate, and she is here in Washington.
We are very pleased and appreciative that all of you would
take time out from your busy schedules to come here. You have
probably heard me say that your full statements will be placed
in the record. You will be given six minutes, but I stick
strictly to that. If you see me wave this, I do that to try to
be polite to the other witnesses and in consideration of
members' schedules, so that they can hopefully get to some
questions.
But we will start with Dr. Limerick.
TESTIMONY OF PATRICIA NELSON LIMERICK, PH.D, PROFESSOR OF
HISTORY AND FACULTY DIRECTOR, UNIVERSITY OF COLORADO AT
BOULDER; JOHN MUDGE, DIRECTOR, ENVIRONMENTAL AFFAIRS, NEWMONT
MINING CORPORATION; CHRIS WOOD, VICE PRESIDENT FOR CONSERVATION
PROGRAMS, TROUT UNLIMITED; VELMA M. SMITH, SENIOR POLICY
ASSOCIATE, NATIONAL ENVIRONMENTAL TRUST
Ms. Limerick. Thank you very much, Mr. Chairman and members
of the Subcommittee. I thank you for your public service, as an
historian and as an American citizen, I have a two-fold
appreciation for what you do in your offices.
It is a great honor and privilege to appear before you. I
feel particularly fortunate to be speaking on behalf of a good
cause, to be discussing a problem that comes with a solution
and a practical and pragmatic solution at that. We were
fortunate to write a report at the Center of the American West
called Cleaning Up Abandoned Mines, Hardrock Mines in the West,
with the support of EPA, with the participation of Trout
Unlimited and with a big debt to the Western Governors
Association.
I must say that writing that report was a spirit-lifting
exercise for us at the Center, because this is not an
intractable problem. This is one of the few environmental
issues in which a clear and workable solution sits before us, a
solution carrying bipartisan sponsorship and support.
Abandoned mines and acid mine drainage present the
opportunity for a rewarding, inspirational and I hope
precedent-setting exercise in legislative problem solving. I
believe it also represents an alternative to the polarization
and condemnation that I know wears on you, as it wears on
others of us.
Two historical reckonings are involved in this. The first
reckoning, obviously, with the legacy of hardrock mining. No
one in the field of history, no one who lives in the west can
be in denial for a moment of the significance and value of
mining in building the west and indeed, building the Nation,
winning the Civil War, Nevada silver, I will not give a lengthy
historical lecture there, but no one can mistake the importance
of mining in building the region and the Country. So this is
not a matter of blame and regret, dealing with these mines. It
is instead a realistic reckoning with consequences, and a
reckoning that can lead us to an important and inspirational
precedent for other reckonings with the environmental legacy
from our national past.
The dimensions of the legacy of abandoned mining and
unfortunate mentions are obvious to everyone here, the loss of
recreational opportunities, the impediment to economic
development and diversification in western communities, the
threat to wildlife, especially endangered fish species, the
impairment of water supplies to downstream municipalities and
other users, and even airborne pollution from the dust from
tailings.
It is a daunting matter when you look at the number of
abandoned mines. The estimates are of course uncertain. There
is no exact record of this. Numbers as high as 500,000 for the
American west have been given.
But the good news, and often not noted, I think,
sufficiently, is that there is a comparatively small number of
abandoned mines that could be a priority for cleanup. There is
no need to treat all 500,000 or whatever the number is. In
fact, there would be significant, enormously significant gains
from the treatment of a small percentage of these sites.
Now, the second aspect of reckoning with history comes with
our reckoning with the environmental laws of the 1970s, I know
a matter that comes before Congress in all sorts of forums. In
this case, we reckoned with the legacy of the Clean Water Act,
and the unforeseen and unintended consequences of that Act as
it was written and then put into practice.
The goals and intentions of the Clean Water Act have proven
in a sense counterproductive in the matter of abandoned mines.
We quote in our report from a man, John Whitacre, one of my
favorite, favorite public officials, the Environmental Policy
Advisor to President Nixon and then the Under Secretary of
Interior after that, who was present at the creation of the
Clean Water Act and who says, I think quotably and memorably in
our report, ``We did not envision at the time that the day
would come when the zero charge instruction would prevent Good
Samaritans from cleaning up acid mind drainage.'' So here we
have one statement, I am sure we could get many others from
people present at the time of the passage of the law that the
effect on discouraging Good Samaritans was not an intended part
of the passage of that Act.
So honoring the core values of the Clean Water Act requires
a modification of one regulatory element of the original Act. I
believe that, speaking as an historian, an important
demonstration of flexibility and a willingness to make sure
that an important act of legislation achieves its goals.
The west is well populated with Good Samaritans waiting to
get to work on this issue. These are people, groups of
dedicated citizens currently stymied by an unnecessary
obstacle. When they are unleashed they are people with a
creative capacity to cobble together funding resources to find
a spectrum of local revenues, Federal grants programs and even
private funding.
There is also a significant role potentially for companies
and for the mining industry to play in this. We are talking
about local people trying to act responsibly and even
heroically to address local problems and being unnecessarily
stymied. This is in other words a force for good that is easily
unleashed. When Good Samaritans are released from the penalty,
I believe we will see material, visible, measurable
improvements in many western locations.
The issue of re-mining is, as a number of people have
noted, including the Chairman, a difficult issue. But it is my
judgment that there are a limited number of sites involved in
the issue of re-mining. It would be interesting to have an
investigation--maybe the Congressional Research Service could
help with this--to put this problem in perspective.
What seems most likely to us at the Center of the American
West is that re-mining, as a possible abuse of the flexibility
of the provisions and requirements that would reduce the
penalty on Good Samaritans, that re-mining poses a marginal
risk and should not be an obstacle to the good that would come
from new arrangements on behalf of Good Samaritans.
It seems to me also that adaptive of management flexibility
in appraising the results of particular efforts could play a
part in setting the standards in terms of how much improvement
in water quality should be mandated for Good Samaritans.
I conclude with the well-known reality of American life.
The American west is associated with the spirit of optimism and
hope. We are challenged, we are challenged every day, we are
called every day to match the enterprise, pluck and
determination of those who came before us in the west and the
cleanup of the abandoned mines as a providential opportunity to
demonstrate that we have that enterprise, that pluck, that
determination.
The timing of your considerations also seems to me as an
historian to be promising and providential. The stars are
coming together. Many of you have ben in meetings on this
subject for a long time. But I think the moment has begun to
appear before us when change can happen.
I ask you as an historian to think of our relationship to
posterity, the American citizens of the future. Good Samaritan
legislation would be a clear and concrete way to court the good
opinion of our descendants. I cannot deny myself what a
professional and personal pleasure it would be for me to act as
an historian and to write the history of the creative and
positive actions of all of you as you solve this problem.
Thank you.
Mr. Duncan. Thank you very much, Dr. Limerick. Very
interesting to say that there would be a significant number
that would be unleashed for this force for good. That is a very
hopeful statement.
Mr. Mudge.
Mr. Mudge. Thank you, Mr. Chairman, Congresspersons. It is
a pleasure to be here today, and especially to work on what
appears to be a win-win situation here.
My name is John Mudge. I am the Director of Environmental
Affairs for Newmont Mining Corporation. Newmont is a large,
multi-national mining company, with extensive operations in the
west, gold and copper primarily, as well as operations on five
continents around the world. I have been with Newmont for 24
years, working in mining and environmental protection aspects
associated with mining, and recognize the importance of doing
it right in today's world, mining-wise, with environmental
protection and reclamation.
But also through that, I recognize the hazards that have
been created out there from past mining, turn of the century
mining, and the abandoned mines that have been associated with
that effort. Newmont in our effort really strives to do things
right. We have received a number of reclamation awards over the
years. Most recently we received a 2005 award from the Bureau
of Land Management for 40 years of mining on the Carlin Trend
in North Central Nevada and sustainability, reclamation and
rehabilitation projects that we have carried out in association
with that.
Despite the good work that we have done and our peers do,
there are problems out there that have been discussed in fair
detail here. I am here on behalf of the National Mining
Association to endorse Good Samaritan legislation as we are
discussing here today. We would like this to be a framework for
incentives for Government entities, mining companies, citizen
groups, non-profit organizations, to go forward and voluntarily
remediate these problem abandoned mine lands.
As has been discussed, there are definitely limits and
concerns about voluntarily cleaning up under the current
statutes. Clean Water Act is one. RCRA may be a problem
resource, Conservation and Recovery Act. A third of course is
CERCLA. As we have discussed the possibility of entering old
mine sites and doing cleanup, it has really been the Superfund
liability under CERCLA that has dissuaded us from going into
those properties.
The possibility of having to face another entity like a
State or Federal Government coming in, cleaning up a property
and then billing us because we spent any time on the property,
is a deterrent that we just haven't got around to date. The
Clean Water Act, and it has been discussed here today, but the
stringent requirement on discharges and the stringent standards
just may not be doable at some of these abandoned mine sites in
any practical way.
This has been pointed out by the Western Governors
Association, National Academy of Sciences and the Center of the
American West in their review of legal impediments to cleaning
up abandoned mine lands. We believe that there are five key
concepts that should be in legislation going forward for Good
Samaritan cleanup of abandoned mines. One is that mining
companies that are active today that did not create this
disturbance should be allowed to go in and clean up and it
should be authorized under this Good Samaritan language. We
have the know-how, the technology and in some cases the
processing facilities nearby to carry out this work.
These projects should be authorized by a permit issued by
the EPA. The EPA has the knowledge and the authority to set
standards and to work with the permittee.
Mr. Duncan. You can keep going.
Mr. Mudge. My time never came up here, so--
Mr. Duncan. You are fine.
Mr. Mudge. I am in good shape? Good.
So the third component, Good Samaritan projects should be
allowed to go forward as long as they will benefit the
environment, even if they won't meet necessarily the stringent
standards of acts like the Clean Water Act. The perfect should
not be the enemy of the good in this case.
The fourth point, the EPA and the States should be given
really the discretion and the authority to establish what the
provisions would be in this Good Samaritan permit and the cite-
specific conditions need to be taken into consideration. What
are the issues, what are the sources of pollutants, what are
the various bodies of water and such that might be impacted.
The fifth point is, the types of remedial activities that
can be authorized under the Good Samaritan permit must include
the processing and the re-use of ores, minerals, wastes,
mineral processing wastes, and the like. It is that aspect that
the mining industry has the knowledge, has the capability and
has the ability and the equipment to deal with.
In conclusion, legislation that embodies these five points
that I have mentioned, and that will provide incentives to
mining companies and other entities to go forward voluntarily,
to remediate these AMLs, while fully protecting the environment
and the interests of the public, should go forward. We commend
the Subcommittee's attention to the Senate bill, S. 1848,
introduced by Senators Allard and Salazar. We believe the
Salazar-Allard legislation contains the elements necessary to
remove the existing legal impediments that currently deter
mining companies and others from undertaking investigations and
remediations at these AMLs.
We also believe that it fully protects the public interest
by requiring EPA and States to sign off on any Good Samaritan
permit and by only allowing such permits in situations where
the environment will be significantly benefitted.
I would be happy to answer questions at the appropriate
time. Thank you.
Mr. Duncan. Thank you very much, Mr. Mudge.
Mr. Wood.
Mr. Wood. Thank you, Mr. Chairman, Ranking Member Johnson,
and other members of the Subcommittee. It is an honor to be
here today to talk about abandoned mine cleanup and to share
with you some of what we have learned on our own on the ground
work cleaning up abandoned mines throughout the east and the
west.
Trout Unlimited has about 160,000 members in 36 States
across the Country. We have a long history of engaging in
watershed restoration projects that improve fisheries and water
quality and otherwise improve watershed health. In fact, each
of our more than 400 chapters donates well more than 1,200
hours a year in volunteer service doing stream cleanups,
including a number of abandoned coal and hardrock mine
projects.
Since the creation of the Office of Surface Mining's
Abandoned Mine Reclamation Fund in 1977, more than $7.5 billion
has been collected from the coal industry to help heal
Appalachian and western coal fields. In places such as Kettle
Creek watershed of North Central Pennsylvania, our work
provides an example of how you can use those resources to both
accomplish ecological restoration as well as achieve economic
opportunities.
In some of the places that we work in that State, thanks in
large part to Pennsylvania's Good Samaritan legislation, which
you heard about earlier, coal contributing to acid mine
drainage is mined as part of a remediation plan. And then
follow-up reclamation work can virtually eliminate abandoned
mine drainage. Trout Unlimited is working with the Commonwealth
of Pennsylvania, the Office of Surface Mining and other
partners to extend this combination of active and passive
treatments, habitat restoration and community education to the
Broader West Branch watershed, which is a watershed that drains
20 percent of the State of Pennsylvania and many, many miles of
which are essentially lifeless due to acid mine drainage.
From a fisheries and watershed health perspective, issues
associated with abandoned gold and silver mines and copper
mines are very similar to those of coal mines. The enormity and
scope of the abandoned mine problem in the western United
States has led to a collective sense of futility which I think
you have heard a fair amount about today, that has fostered
inactivity in many landscapes.
In 2003, Trout Unlimited decided to restore the American
Fork Creek which is in Utah. This is an area that is visited by
about a million and a half people or so a year. The Forest
Service had reclaimed much of the landscape that was degraded
by abandoned minds on public land. Those areas that were
remained were largely on private lands that were owned by the
Snowbird Ski and Summer Resort.
After reaching an agreement with EPA called an
administrative order on consent, Trout Unlimited is now in the
midst of removing the single largest sources of pollution from
the private lands in the watershed. When complete this summer,
fisheries and water quality will be significantly improved.
In our view, the two greatest needs for increasing the
scope and scale of abandoned mine cleanup are creating a
dedicated funding source, and establishing a Federal permitting
process that encourages Good Samaritan restoration projects.
Lack of money and liability concerns are significant barriers
to local restoration.
In the coal fields, as I mentioned earlier, the Federal
Abandoned Mine Land Reclamation Fund has collected over $7.5
billion for the recovery of mine-scarred areas. That
legislation needs long-term reauthorization, and the
Appalachian Clean Streams Program needs increased funding.
Mr. Duncan. Mr. Wood, I apologize, let me interrupt you
there. I had hoped we could get your full statement in, but we
will just have to interrupt at this point. We have two votes
going on. I wish we didn't have to do this, but we are going to
have to break to do these votes. We should be back in about 15
minutes, and we will let you conclude your statement at that
time. We will give you some extra time. Thank you very much.
[Recess.]
Mr. Duncan. I am sorry, they drag these votes out
sometimes, and Mr. Wood, we caught you in the middle of your
statement. You may resume your statement.
Mr. Wood. Thank you, sir.
On the American Fork, we were able to cobble together some
private and Federal funding, in particular, from the Tiffany
and Company Foundation and through the Natural Resource
Conservation Service to initiate our restoration. It is
important to note that cleaning up private lands on the
American Fork is not a particularly expensive proposition. To
finish doing the job that the Forest Service started will only
cost about $150,000 to $200,000.
There are hundreds if not thousands of other cleanups
across the west that could be conducted if liability issues and
funding issues were addressed. Every commodity developed off
public lands has dedicated funding to pay for cleanup
associated with production, except for hardrock minerals.
Communities and organizations such as ours could get a lot more
done if the resources were more readily available and in more
obvious places than they are today.
The other impediment that we have talked a lot about this
morning to making progress on the ground is a clear permitting
process for Good Samaritans who wish to recovery abandoned
mines. While CERCLA and the Clean Water Act are outstanding
mechanisms for preventing pollution and holding polluters
accountable, on many sites those polluters are long gone.
Liability concerns can prevent Good Samaritan cleanups, as you
have heard already today from taking place.
Our experience is that using existing tools to facilitate
cleanup by Good Samaritans sometimes feels like pounding a
square peg into a round hole. We are making progress, however.
For example, the agreement that we reached with EPA on the
American Fork can serve as a model for other cleanups across
the Country. Our agreement protects Trout Unlimited by making
our essential obligation the completion of an agreed-upon
cleanup plan. In exchange for raising the money and doing the
work, we get from EPA a covenant from the EPA not to sue us if
they decide to go after a polluter; protection from other
potentially responsible parties suing us, if EPA goes after
them; a cap on our own liability if EPA chooses to step in and
complete the work itself; and an expedited permitting procedure
for meeting State and Federal legal requirements.
Once we complete the cleanup to the specifications of the
plan and the satisfaction of EPA, we walk away. Too often,
trailing liability concerns from the Clean Water Act and CERCLA
are seen as impeding this kind of agreement.
Our administrative order on consent with EPA provides a
model that can be replicated and alleviate many, if not all,
the liability impediments to cleaning up abandoned mines. The
fact is, though, that we never would have completed this
agreement were it not for the direct involvement of Ben
Grumbles' shop, Brent Fewell and the rest of the Office of
Water and Administrator Johnson himself. Such extraordinary
intervention should not be required for projects as small in
scale as the American Fork. Now that the first one is complete,
we expect and hope that future cleanups and future agreements
will be easier to obtain.
In closing, the position of Trout Unlimited is that whether
through new legislation or the creation of a new permitting
system at EPA under existing law, a lot of good work can be
done to improve the quality of people's lives and the health of
our lands. Thank you for inviting me to testify today.
Mr. Duncan. Thank you very much, Mr. Wood.
Ms. Smith.
Ms. Smith. Thank you, Mr. Chairman. Since I am last in the
lineup here, I am going to try to help your deliberations by
getting straight to the point. You have heard this morning a
number of speakers focus their concerns on the chill that the
Clean Water Act seems to have on those who might opt to get in
mine cleanups. We fully understand that parties, be they local
governments, water utilities, or groups like Chris's may be
hesitant to become holders of Clean Water permits.
We actually have some sympathy with their cautions, but we
also believe that the concerns that have been raised can and in
fact have, as Chris was just talking about, been addressed by
working closely with regulators, carefully planning and
tailoring cleanup projects to the appropriate scale and type,
sometimes avoiding any discharge at all and working out
appropriate consent agreements where necessary.
The folks from Pennsylvania earlier talked about a program
that is working. Chris talked about cleanup that is working.
And we believe that others can follow using that model consent
agreement.
We think that caution is important. When it comes to mine
cleanup, some significant caution is warranted. I would just
draw your attention back to the case of the Penn Mine. It is
actually one of those examples where, although conducted with
the best of intentions, a mine cleanup actually went back and
created new problems. I think that is what you need to guard
against.
More importantly, we don't believe that the Good Samaritan
projects are the real crux of the problem. There are down sides
in trying to craft, it is difficult, as you drew out, Mr.
Chairman, trying to figure out how craft legislation so you
don't have projects that make mistakes and you don't weaken
liability and stop cleanup at sites like Arrington, Nevada or
Kennecott in Utah.
The inescapable fact is that there is an enormous universe
of abandoned mines, perhaps in the range of half a million
total, and neither industry nor Government is spending enough
money to make a serious dent in the problem. Money is the
single most important barrier to cleanup. Congress needs to
appropriate more funds for cleanup. States need to contribute
more to cleanup. And the hardrock mining industry needs to
follow the approach of their coal mining brethren picking up a
share of the cost of cleaning up legacy mining problems.
The other part of the problem is that not all of mining's
problems are in the past. There are many mines, like those in
the Copper Basin of Tennessee, Mr. Chairman, that do fit that
image of the legacy or historic mine. But there are many more
that are far more recent vintage. The west is dotted with
abandoned mines that date from the 1980s, not the 1880s, but
the 1980s when gold, copper and uranium mining were booming.
Too many of those boom projects, once touted as environmental
models and economic windfalls, have left large and costly
messes.
These messes exist today, threats to public health and the
environment and drains on the Federal Treasury, because the
programs for regulating hardrock mining have failed. There is a
desperate need for improvement of mining regulation, for a
reasonable and enforceable program to govern disposal of mine
waste, for financial assurance rules that actually assure that
cleanup funds are available when mining operations cease.
In our view, the pressing need today is not to hurry along
modest cleanup projects. Some of those will do good, but
others, hurried, will go wrong and themselves have to be
remedied. The pressing need is for improved regulation. The
pressing need is for scrutiny and controls that recognize that
perpetual pollution can occur at facilities like the Zortman
Landusky Mine in Montana. The pressing need is for a regulatory
system that deals with the vast amount of toxic waste produced
by this industry.
Now, while the industry is on the crest of a boom, action
to assure that this new generation of mining projects does not
yet yield another generation of mining messes is what is
needed. If as apparently you are anxious to legislate something
to aid Good Samaritans, we urge you to look on the model of a
demonstration project with funds, a demonstration project that
looks at it on a watershed basis, that makes sure that there is
appropriate baseline data, that engages mining reclamation
experts, that includes a bond pool or other mechanisms to
underwrite financial assurances for projects, and that doesn't
undermine the liability that governs cleanup at other sites and
that excludes re-mining.
We look forward to working with you, Mr. Chairman, and I
look forward to your questions. Thank you.
Mr. Duncan. Ms. Smith, I am interested in your last few
words there. You said that excludes re-mining. Do you think it
would ever be possible to re-mine at an abandoned site in an
environmentally safe way? Or do you think that is impossible?
Ms. Smith. I don't know that the act of re-mining itself
couldn't be done in an environmental way. I don't think it
should be part of a waiver or exclusion. The fact is that many
mining projects, especially in the west today, most all of them
are probably at some level of re-mining. They are going back
into old mining districts.
Summittville, Colorado, which was one of the sort of poster
children of bad mine problems, actually was back in an area
that had been mined before. There are a whole variety of mining
projects that are going back into old areas. Which is not to
say that you wouldn't want to go in and re-mine, just don't
handle those, as a matter of a Good Samaritan project, with a
streamlined permitting process. Just let them be mining
projects.
Mr. Duncan. Since you say that some of the 1980s projects
or areas that were mined, and they were described as
environmentally safe at that time, and now they are disasters
or harmful areas in your opinion, do you feel that mining
companies should be excluded from any Good Samaritan
legislation?
Ms. Smith. I think the best way to get, if you want to move
on this, is to get going with local governments, watersheds,
water utilities, non-profit groups. I don't imagine, I think
that the contribution that the mining industry could make would
be like the coal mining industry has made under SMCRA, which is
to contribute a certain percentage of profits or gross to a
mine cleanup fund. I think that could be the primary role for
the mining industry.
Mr. Duncan. Mr. Mudge, what do you say? When you heard Ms.
Smith say that we should exclude re-mining, what is your
position on her response to those last two questions?
Mr. Mudge. I think in terms of re-mining, re-mining needs
to be defined. If re-mining is going into an abandoned mine
site and picking up mineralized materials that were left at the
site and processing those, most likely to remove the metals,
then re-mining absolutely should be allowed.
If re-mining means not only doing that, but then developing
a new deposit of ore that may underlie that, then the myriad of
State and Federal permits that are in place now would cover
that activity outside of this legislation.
Mr. Duncan. Ms. Smith referred to the gold and copper
mining boom of the 1980s and said that many of those areas are
environmental problems at this point. Do you know what she is
talking about there? Has new mining, do you have any projects
from the 1980s that were described as environmentally safe at
that time that are hazardous or problem areas now?
Mr. Mudge. Well, a couple of examples. We have been mining
on the Carlin Trend since 1965, and continue to develop those
deposits. The rules and the regulations have changed over time.
We have helped manage those changes, and we have brought our
facilities up to today's standards over that time.
We have one facility that started up in the 1950s under old
Atomic Energy Commission contracts. As we got into the 1980s,
we built it according to more like today's standards, but there
are some issues that date back way prior. But for the most
part, our facilities that have been going since the 1960s,
1970s, 1980s are in very good shape environmentally.
Mr. Duncan. Dr. Limerick and Mr. Wood, do most of these
projects, can they be done without very, very large amounts of
money, or do you think that most of these projects would be,
that it is very, very expensive to clean up these mine sites?
Let's just go with that. What has your experience been in that
regard?
Mr. Wood. Our experience is that it varies. But I can use
the American Fork as an example. The engineering involved on
the American Fork was really straightforward. We essentially
dug a pit, created a repository, moved some tailings that were
leaching into the American Fork Creek and harming Bonneville
Cutthroat trout, moved those tailings into the hole, actually
this work is going to be conducted this summer, and then we are
putting a liner over it, re-vegetating and then recontouring
the land to keep the drainage away.
It will have a significant effect on water quality in the
river, and it will cost us between $150,000 to $200,000 for the
project.
Ms. Limerick. I would simply add that the goal of
perfection is very expensive, that the pursuit of perfection
would be prohibitive. But the pursuit of significant change and
significant improvement, I think that is within the reach of
manageable.
And again, I have been really struck by the pluck and
spirit and originality of some of these groups in fighting
multiple sources, whether that is a local sales tax or a
district bond or something like that. It is really quite
remarkable to me how many different funding sources can open up
on that.
But what I wouldn't want is, well, that is exactly why we
are here to have this discussion, is a standard of something
close to perfection which is prohibitive in cost.
Mr. Duncan. What other incentives could we come up with or
could communities come up with to encourage abandoned mine
cleanup other than the Good Samaritan legislation that we are
talking about?
Ms. Limerick. The matter of incentives, as an historian, to
me is very interesting. I personally am privately a supporter
of getting as many incentives into play as possible. But I do
understand that there is, in some circles in the environmental
community, a real anxiety that opening the door to financial
profit from companies could return us to the late nineteenth
century in a free-for-all. That seems to me as an historian an
exaggerated fear.
But I do understand that we have to walk very carefully
when we seem to be opening the door to market incentives for
companies and re-mining is of course the trigger point for
that.
My feeling is that there is an enormous financial benefit
to companies who take part in this in public relations, and a
really good set of community relations and good feelings from
citizens, public officials, regulators. But I really come from
our work to have a deep recognition of how jumpy that subject
of market incentives and other financial rewards for people
doing the right thing.
I am struck, one of the few people I know in this whole
discussion who went back and read the Bible and read the Good
Samaritan parable and thought, who is this Good Samaritan, it
is very striking to see that the Good Samaritan not only helped
the poor soul by the road, but then puts a lot of money into
it, says to the innkeeper, I will be back here on my return
trip and if you need more money I will give it to you. So if we
go by the Bible, and I know I'm speaking in the wrong framework
here, but there is a financial investment.
But I just think for the purposes of getting things moving,
decoupling the Good Samaritan relief from the matter of funding
that it is probably best not to read Luke at this point in time
in our discussion.
Mr. Duncan. I think Mr. Mudge and Ms. Smith want to make
comments. Mr. Mudge?
Mr. Mudge. Frankly, the incentive for us is good will. We
are always looking for good projects that we can show to the
community and to really improve mining's reputation. We have
done a project on the Carlin Trend, actually working with Trout
Unlimited to improve the habitat for a threatened trout. There
happens to be an abandoned mine also in this same drainage on
BLM property. There has been some discussion about how we can
help on that abandoned mine.
In an effort to holistically improve this whole drainage,
it is something that we would be very interested in doing. And
the good will and the reclamation awards we get out of it go a
long way in our organization. But as we have talked before,
there is the impediments and deterrents to doing that.
Mr. Duncan. Ms. Smith?
Ms. Smith. Yes, Mr. Chairman. I think programs like
Pennsylvania where there is transparency, there is planning,
there is priority setting, they are looking on a watershed
basis, they are engaging the public in mine cleanups, engaging
experts, keeping--and doing that, I believe you can do that
within the framework of consent agreements and within the
framework of the Clean Water Act.
Mr. Duncan. So you believe the Pennsylvania program is a
pretty good program?
Ms. Smith. I think that might a model to learn from for
other States. To look at a watershed basis, to prioritize, not
to do a little bit over here, a little bit over there, but try
to prioritize where small projects can get you the best result.
I also think that in some projects, and where you can
identify ones that will be really truly small, where you are
moving some waste, where you perhaps are not touching the water
itself. I think for the ones that deal with discharges, then
what the States, the Feds could do is step up to the plate and
have someone who will be the keeper of the permit for
perpetuity, because many of these sites, you are going to have
to treat the acid mine drainage forever. You can't just build a
facility and walk away.
That is one of the issues in terms of Penn Mine, was the
best of intentions, but the facility they built was not
engineered correctly, and it wasn't maintained. Then you ended
up with more problems.
But if someone, if the State, if the local government wants
to say, we will take the responsibility for the ongoing
discharge, but we will take the help for the revegetation, the
planting, the other kind of work, then those are the kinds of
programs that you can have within the framework of the Clean
Water Act now.
Mr. Duncan. All right. Mr. Woods.
Mr. Wood. Perhaps for slightly different reasons than Velma
mentioned, I think Pennsylvania also provides an outstanding
model. We have done a lot of work there in the Kettle Creek
watershed extending now into the West Branch. The two
incentives that the State provides are, or three incentives,
are the liability relief, which is real and significant,
technical resources to help out these groups with planning,
design planning and such, and then the last incentive, which
is, it just can't be overstated, is financial resources. The
State has made available, I think it is over $650 million for
their Growing Greener program to fund a lot of these cleanups.
Mr. Duncan. All right. Well, let me apologize to you once
again. I am running late for another meeting now. You have been
very helpful. I will say the same thing to you that I said to
the first panel, that if you have additional comments or
suggestions that would be helpful to us, we will keep the
record open for just a few days, if you could get those to us
by some time next week, they will be included in the record of
the hearing. We will refer to them when we work on this
legislation.
Thank you very much for being with us and that will
conclude this hearing.
[Whereupon, at 12:17 p.m., the subcommittee was adjourned.]
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