[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


                                   ____

                    U.S. GOVERNMENT PRINTING OFFICE
28-277                      WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001


             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.]

    [GRAPHIC] [TIFF OMITTED] T8277.001
    
    [GRAPHIC] [TIFF OMITTED] T8277.002
    
    [GRAPHIC] [TIFF OMITTED] T8277.003
    
    [GRAPHIC] [TIFF OMITTED] T8277.004
    
    [GRAPHIC] [TIFF OMITTED] T8277.005
    
    [GRAPHIC] [TIFF OMITTED] T8277.006
    
    [GRAPHIC] [TIFF OMITTED] T8277.007
    
    [GRAPHIC] [TIFF OMITTED] T8277.008
    
    [GRAPHIC] [TIFF OMITTED] T8277.009
    
    [GRAPHIC] [TIFF OMITTED] T8277.010
    
    [GRAPHIC] [TIFF OMITTED] T8277.011
    
    [GRAPHIC] [TIFF OMITTED] T8277.012
    
    [GRAPHIC] [TIFF OMITTED] T8277.013
    
    [GRAPHIC] [TIFF OMITTED] T8277.014
    
    [GRAPHIC] [TIFF OMITTED] T8277.015
    
    [GRAPHIC] [TIFF OMITTED] T8277.016
    
    [GRAPHIC] [TIFF OMITTED] T8277.017
    
    [GRAPHIC] [TIFF OMITTED] T8277.018
    
    [GRAPHIC] [TIFF OMITTED] T8277.019
    
    [GRAPHIC] [TIFF OMITTED] T8277.020
    
    [GRAPHIC] [TIFF OMITTED] T8277.021
    
    [GRAPHIC] [TIFF OMITTED] T8277.022
    
    [GRAPHIC] [TIFF OMITTED] T8277.023
    
    [GRAPHIC] [TIFF OMITTED] T8277.024
    
    [GRAPHIC] [TIFF OMITTED] T8277.025
    
    [GRAPHIC] [TIFF OMITTED] T8277.026
    
    [GRAPHIC] [TIFF OMITTED] T8277.027
    
    [GRAPHIC] [TIFF OMITTED] T8277.028
    
    [GRAPHIC] [TIFF OMITTED] T8277.029
    
    [GRAPHIC] [TIFF OMITTED] T8277.030
    
    [GRAPHIC] [TIFF OMITTED] T8277.031
    
    [GRAPHIC] [TIFF OMITTED] T8277.032
    
    [GRAPHIC] [TIFF OMITTED] T8277.033
    
    [GRAPHIC] [TIFF OMITTED] T8277.034
    
    [GRAPHIC] [TIFF OMITTED] T8277.035
    
    [GRAPHIC] [TIFF OMITTED] T8277.036
    
    [GRAPHIC] [TIFF OMITTED] T8277.037
    
    [GRAPHIC] [TIFF OMITTED] T8277.038
    
    [GRAPHIC] [TIFF OMITTED] T8277.039
    
    [GRAPHIC] [TIFF OMITTED] T8277.040
    
    [GRAPHIC] [TIFF OMITTED] T8277.041
    
    [GRAPHIC] [TIFF OMITTED] T8277.042
    
    [GRAPHIC] [TIFF OMITTED] T8277.043
    
    [GRAPHIC] [TIFF OMITTED] T8277.044
    
    [GRAPHIC] [TIFF OMITTED] T8277.045
    
    [GRAPHIC] [TIFF OMITTED] T8277.046
    
    [GRAPHIC] [TIFF OMITTED] T8277.047
    
    [GRAPHIC] [TIFF OMITTED] T8277.048
    
    [GRAPHIC] [TIFF OMITTED] T8277.049
    
    [GRAPHIC] [TIFF OMITTED] T8277.050
    
    [GRAPHIC] [TIFF OMITTED] T8277.051
    
    [GRAPHIC] [TIFF OMITTED] T8277.052
    
    [GRAPHIC] [TIFF OMITTED] T8277.053
    
    [GRAPHIC] [TIFF OMITTED] T8277.054
    
    [GRAPHIC] [TIFF OMITTED] T8277.055
    
    [GRAPHIC] [TIFF OMITTED] T8277.056
    
    [GRAPHIC] [TIFF OMITTED] T8277.057
    
    [GRAPHIC] [TIFF OMITTED] T8277.058
    
    [GRAPHIC] [TIFF OMITTED] T8277.059
    
    [GRAPHIC] [TIFF OMITTED] T8277.060
    
    [GRAPHIC] [TIFF OMITTED] T8277.061
    
    [GRAPHIC] [TIFF OMITTED] T8277.062
    
    [GRAPHIC] [TIFF OMITTED] T8277.063
    
    [GRAPHIC] [TIFF OMITTED] T8277.064
    
    [GRAPHIC] [TIFF OMITTED] T8277.065
    
    [GRAPHIC] [TIFF OMITTED] T8277.066
    
    [GRAPHIC] [TIFF OMITTED] T8277.067
    
    [GRAPHIC] [TIFF OMITTED] T8277.068
    
    [GRAPHIC] [TIFF OMITTED] T8277.069
    
    [GRAPHIC] [TIFF OMITTED] T8277.070
    
    [GRAPHIC] [TIFF OMITTED] T8277.071
    
    [GRAPHIC] [TIFF OMITTED] T8277.072
    
    [GRAPHIC] [TIFF OMITTED] T8277.073
    
    [GRAPHIC] [TIFF OMITTED] T8277.074
    
    [GRAPHIC] [TIFF OMITTED] T8277.075
    
    [GRAPHIC] [TIFF OMITTED] T8277.076
    
    [GRAPHIC] [TIFF OMITTED] T8277.077
    
    [GRAPHIC] [TIFF OMITTED] T8277.078
    
    [GRAPHIC] [TIFF OMITTED] T8277.079
    
    [GRAPHIC] [TIFF OMITTED] T8277.080
    
    [GRAPHIC] [TIFF OMITTED] T8277.081
    
    [GRAPHIC] [TIFF OMITTED] T8277.082
    
    [GRAPHIC] [TIFF OMITTED] T8277.083
    
    [GRAPHIC] [TIFF OMITTED] T8277.084
    
    [GRAPHIC] [TIFF OMITTED] T8277.085
    
    [GRAPHIC] [TIFF OMITTED] T8277.086
    
    [GRAPHIC] [TIFF OMITTED] T8277.087
    
    [GRAPHIC] [TIFF OMITTED] T8277.088
    
    [GRAPHIC] [TIFF OMITTED] T8277.089
    
    [GRAPHIC] [TIFF OMITTED] T8277.090
    
    [GRAPHIC] [TIFF OMITTED] T8277.091
    
    [GRAPHIC] [TIFF OMITTED] T8277.092
    
    [GRAPHIC] [TIFF OMITTED] T8277.093
    
    [GRAPHIC] [TIFF OMITTED] T8277.094
    
    [GRAPHIC] [TIFF OMITTED] T8277.095
    
    [GRAPHIC] [TIFF OMITTED] T8277.096
    
    [GRAPHIC] [TIFF OMITTED] T8277.097
    
    [GRAPHIC] [TIFF OMITTED] T8277.098
    
    [GRAPHIC] [TIFF OMITTED] T8277.099
    
    [GRAPHIC] [TIFF OMITTED] T8277.100
    
    [GRAPHIC] [TIFF OMITTED] T8277.101
    
    [GRAPHIC] [TIFF OMITTED] T8277.102
    
    [GRAPHIC] [TIFF OMITTED] T8277.103
    
    [GRAPHIC] [TIFF OMITTED] T8277.104
    
    [GRAPHIC] [TIFF OMITTED] T8277.105
    
    [GRAPHIC] [TIFF OMITTED] T8277.106
    
                                    
