[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]




                        OPPORTUNITIES FOR GOOD

                         SAMARITAN CLEANUP OF

                          HARD ROCK ABANDONED

                              MINE LANDS

=======================================================================

                           OVERSIGHT HEARING

                               before the

                       SUBCOMMITTEE ON ENERGY AND
                           MINERAL RESOURCES

                                 of the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                        Thursday, July 13, 2006

                               __________

                           Serial No. 109-59

                               __________

           Printed for the use of the Committee on Resources



  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
                                   or
        Committee address: http://resourcescommittee.house.gov



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                         COMMITTEE ON RESOURCES

                 RICHARD W. POMBO, California, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska                    Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Eni F.H. Faleomavaega, American 
Elton Gallegly, California               Samoa
John J. Duncan, Jr., Tennessee       Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming               Donna M. Christensen, Virgin 
  Vice Chair                             Islands
George P. Radanovich, California     Ron Kind, Wisconsin
Walter B. Jones, Jr., North          Grace F. Napolitano, California
    Carolina                         Tom Udall, New Mexico
Chris Cannon, Utah                   Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania       Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada                  Jim Costa, California
Greg Walden, Oregon                  Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado         Dan Boren, Oklahoma
J.D. Hayworth, Arizona               George Miller, California
Jeff Flake, Arizona                  Edward J. Markey, Massachusetts
Rick Renzi, Arizona                  Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico            Jay Inslee, Washington
Henry Brown, Jr., South Carolina     Mark Udall, Colorado
Thelma Drake, Virginia               Dennis Cardoza, California
Luis G. Fortuno, Puerto Rico         Stephanie Herseth, South Dakota
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
Vacancy

                     Steven J. Ding, Chief of Staff
                      Lisa Pittman, Chief Counsel
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel
                                 ------                                

              SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES

                     JIM GIBBONS, Nevada, Chairman
           RAUL M. GRIJALVA, Arizona, Ranking Democrat Member

Don Young, Alaska                    Eni F.H. Faleomavaega, American 
Barbara Cubin, Wyoming                   Samoa
Chris Cannon, Utah                   Solomon P. Ortiz, Texas
John E. Peterson, Pennsylvania       Jim Costa, California
Stevan Pearce, New Mexico            Charlie Melancon, Louisiana
Thelma Drake, Virginia               Dan Boren, Oklahoma
  Vice Chair                         Edward J. Markey, Massachusetts
Bobby Jindal, Louisiana              Nick J. Rahall II, West Virginia, 
Louie Gohmert, Texas                     ex officio
Richard W. Pombo, California, ex 
    officio
                                 ------                                


















                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Thursday, July 13, 2006..........................     1

Statement of Members:
    Gibbons, Hon. Jim, a Representative in Congress from the 
      State of Nevada............................................     1
        Prepared statement of....................................     3
    Grijalva, Hon. Raul M., a Representative in Congress from the 
      State of Arizona...........................................     4
        Prepared statement of....................................     5
    Rahall, Hon. Nick J. II, a Representative in Congress from 
      the State of West Virginia.................................     5

Statement of Witnesses:
    Brown, Timothy, Center of the American West, University of 
      Colorado...................................................    47
        Prepared statement of....................................    48
        Response to questions submitted for the record...........    60
    Card, Joan, Director of Arizona's Water Quality, Western 
      Governors' Association.....................................    24
        Prepared statement of....................................    26
        Response to questions submitted for the record...........    36
    Fewell, Brent, Deputy Assistant Administrator for the Office 
      of Water, U.S. Environmental Protection Agency.............     7
        Prepared statement of....................................     8
        Response to questions submitted for the record...........    10
    Pizarchik, Joseph, Director, Bureau of Mining and 
      Reclamation, Pennsylvania Department of Environmental 
      Protection.................................................    13
        Prepared statement of....................................    15
        Response to questions submitted for the record...........    21
    Quinn, Hal, Senior Vice President, National Mining 
      Association................................................    62
        Prepared statement of....................................    63
        Response to questions submitted for the record...........    67
    Skaer, Laura, Executive Director, Northwest Mining 
      Association................................................    68
        Prepared statement of....................................    70
        Response to questions submitted for the record...........    75
    Smith, Velma M., Senior Policy Associate, National 
      Environmental Trust........................................    78
        Prepared statement of....................................    79

Additional materials supplied:
    Udall, Hon. Mark, a Representative in Congress from the State 
      of Colorado, Statement submitted for the record............    97















 
 OVERSIGHT HEARING ON OPPORTUNITIES FOR GOOD SAMARITAN CLEANUP OF HARD 
                       ROCK ABANDONED MINE LANDS

                              ----------                              


                        Thursday, July 13, 2006

                     U.S. House of Representatives

              Subcommittee on Energy and Mineral Resources

                         Committee on Resources

                            Washington, D.C.

                              ----------                              

    The Subcommittee met, pursuant to call, at 10:03 a.m., in 
Room 1324, Longworth House Office Building, Hon. Jim Gibbons 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Gibbons, Pearce, Drake and 
Grijalva.
    Also Present: Representatives Mark Udall and Inslee.

STATEMENT OF THE HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF NEVADA

    Mr. Gibbons. Good morning. The Subcommittee on Energy and 
Mineral Resources will come to order.
    The Subcommittee is meeting today to hear testimony on the 
opportunity of Good Samaritan cleanup of hard rock abandoned 
mine lands.
    Under Committee Rule 4(g), only the Chairman and Ranking 
Minority Member can make opening statements; however, if any 
Members have other statements, I ask unanimous consent that 
they be included, and without objection, so ordered. And I will 
now recognize myself for an opening statement.
    As I said earlier, the Subcommittee meets today to discuss 
the opportunities for Good Samaritan cleanup of hard rock 
abandoned mine lands. Hard rock mining paved the way for the 
settlement in the American West, and many of our modern Western 
cities exist because of mining, and were even built on old mine 
sites. While mining has left many benefits for the people in 
the land, there are still historic, old, abandoned mine sites 
that require some form of reclamation for the purposes of 
public safety.
    Throughout the Western United States, abandoned hard rock 
mines--AML, as they are known--can be found. Many of these 
mines or workings were operated in the 1800s or the early 1900s 
prior to the enactment of the Nation's environmental and land 
management laws. At times the owner or operator of a mine 
historically did not always have the authority to make 
decisions regarding the operation of the mines. Specifically, 
during World War II, Federal agencies such as the U.S. 
Geological Survey, U.S. Bureau of Mines, War Production Board, 
Office of Price Administration and the War Manpower Commission 
controlled which mines operated, their hours of operation, 
which strategic metals were produced, and production price 
levels. All gold mines with one exception were ordered shut 
down during this time period. In fact, the Federal Government 
used the threat of seizure to ensure that mines complied with 
its orders.
    The actions by the Federal Government during World War II 
caused the abandonment of many mines. As a result, the Federal 
Government in many cases shares responsibility with the mining 
industry for environmental remediation and reclamation of mine 
sites operated prior to the enactment of our Federal and State 
framework of environmental land management laws and 
regulations.
    The definition of AML site differs from State to State. 
Mining is Nevada's second largest industry, and as such is home 
to literally thousands of old, historic, abandoned mine sites, 
most of which pose no threat to public safety, and some of 
which are even historic sites.
    Nevada and many other Western States have partnered with 
industry to reclaim these abandoned mines, and together have 
been able to achieve real progress in addressing the AML 
problem.
    As a former exploration geologist, I know that today's 
modern mining industry has the desire to be good stewards of 
the environment, and I believe the Federal Government should 
facilitate their efforts. Unfortunately, the law as it is 
currently written discourages voluntary efforts of abatement, 
reclamation and remediation efforts on these old, abandoned 
mine lands.
    While progress has been made in addressing some problem 
sites, there are legal barriers to creating a more aggressive 
and substantial program that relies on the expertise and 
resources of the mining industry and other parties interested 
in helping clean up hard rock AML sites.
    The principal legal challenges include CERCLA and Clean 
Water Act liability. Under current law, a Good Samaritan could 
be held responsible for all historic discharges and other 
environmental problems.
    Several different pieces of legislation have been 
introduced in the House and the Senate designed to address the 
CERCLA and Clean Water Act liability for existing conditions at 
AML sites. The concept is to provide limited liability relief 
to governments, NGO's, individuals and businesses that 
voluntarily clean up abandoned hard rock mines that have an 
environmental component; that is, the workings contain water 
and may have acid rock drainage rather than just present a 
physical hazard.
    The Good Samaritan Act would provide relief from Clean 
Water Act and CERCLA for historic existing conditions, but the 
individual would be held responsible for the work that they 
actually perform. EPA would issue a permit to the Good 
Samaritan authorizing the activity. And today we are here to 
learn from our witnesses what tools are necessary in order to 
encourage industry to be Good Samaritans, and to achieve our 
mutual goal of remediating abandoned mine lands. This is 
particularly important now when Federal budgets are tight and 
the mining industry is robust.
    I would like to thank all of our witnesses today for being 
here, and I look forward to learning from their experience and 
expertise on this important subject.
    [The prepared statement of Mr. Gibbons follows:]

           Statement of The Honorable Jim Gibbons, Chairman, 
              Subcommittee on Energy and Mineral Resources

    The Subcommittee meets today to discuss opportunities for Good 
Samaritan Cleanup of Hard Rock Abandoned Mine Lands.
    Hard rock mining paved the way for the settlement of the American 
West.
    Many of our modern Western cities exist because of mining and were 
even built on old mine sites.
    While mining has left many benefits for the people and the land, 
there are still abandoned mine sites that require reclamation for the 
purposes of public safety.
    Throughout the Western United States abandoned hard-rock mines 
(AML) can be found.
    Many of these mines or workings were operated in the 1800s and 
early 1900s prior to the enactment of the Nation's environmental and 
land management laws.
    At times the owner or operator of a mine did not always have the 
authority to make decisions regarding the operation of the mine.
    Specifically during World War II federal agencies such as the U.S. 
Geological Survey (USGS), U.S. Bureau of Mines (USBM), War Production 
Board, Office of Price Administration, and the War Manpower Commission, 
controlled which mines operated, their hours of operation, which 
strategic metals were produced, and production and price levels.
    All gold mines, with one exception, were ordered shut down during 
this time period. In fact, the federal government used the threat of 
seizure to ensure that mines complied with its orders.
    The actions by the federal government during World War II caused 
the abandonment of many mines.
    As a result, the federal government in many cases shares 
responsibility with the mining industry for environmental remediation 
and reclamation of mine sites operated prior to the enactment of our 
Federal and State framework of environmental and land management laws 
and regulations.
    The definition of an AML site differs from state to state.
    Mining is Nevada's second largest industry, and as such is home to 
literally thousands of abandoned mine sites--most of which pose no 
threat to public safety and some of which are even historic sites.
    Nevada, and many other Western states, have partnered with industry 
to reclaim these abandoned mine lands--and together have been able to 
achieve real progress in addressing the AML problem.
    As a former exploration geologist, I know that the mining industry 
has the desire to be good stewards of the environment--and I believe 
the federal government should facilitate their efforts.
    Unfortunately, the law as it is currently written discourages 
voluntary abatement, reclamation and remediation efforts on abandoned 
mine lands.
    While progress has been made in addressing some problem sites there 
are legal barriers to creating a more aggressive and substantial 
program that relies on the expertise, and resources of the mining 
industry and other parties interested in helping to clean up hard-rock 
AML sites.
    The principle legal challenges include CERCLA and CWA liability. 
Under current law a Good Samaritan could be held liable for historic 
discharges and other environmental problems.
    Several different pieces of legislation have been introduced in the 
House and Senate designed to address the CERCLA and CWA liability for 
existing conditions at AML sites.
    The concept is to provide limited liability relief to Governments, 
NGO's, Individuals and Businesses that voluntarily clean up abandoned 
hard rock mines that have an environmental component (the workings 
contain water and may have acid rock drainage) rather than just present 
a physical hazard.
    The Good Samaritan would have relief from the CWA and CERCLA for 
existing conditions but will be held responsible for the work that they 
perform.
    EPA would issue a permit to the Good Samaritan, authorizing the 
activity.
    Today we are here to learn from our witnesses what tools are 
necessary in order to encourage industry to be ``Good Samaritans'' and 
achieve our mutual goal of remediating abandoned mining lands.
    This is particularly important now when federal budgets are tight 
and the mining industry is robust.
    I'd like to thank all of our witnesses for being here and I look 
forward to learning from their experience and expertise on this 
important subject.
                                 ______
                                 
    Mr. Gibbons. And now I'd like to turn and recognize Mr. 
Grijalva, the Ranking Democratic Member, for any statement he 
may have. Mr. Grijalva.

  STATEMENT OF THE HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF ARIZONA

    Mr. Grijalva. Thank you very much, Mr. Chairman. And also, 
let me join with you in thanking the witnesses that we'll be 
hearing from today. And in particular, I'm pleased to welcome 
one of the witnesses, Ms. Joan Card, representing the Western 
Governors' Association. Welcome.
    I'm very fortunate and privileged to represent the people 
of the Seventh District of Arizona, a State so steeped in 
mining that many believe it was named for a huge silver deposit 
discovered in 1736. It was called the Arizonac mine, and it was 
southwest of what is present day Nogales, Arizona.
    From silver to gold to copper, Arizona has enjoyed--or 
suffered, depending on a person's point of view--a series of 
boom-and-bust periods directly attributable to mining. Under 
the 1872 mining law, miners have staked out over 1 million 
claims in Arizona. While some of these miners have been fair 
and responsible, there is no doubt that there have also been 
some bad actors as well.
    There are, according to EPA, more than 500,000 abandoned 
mines in the United States. And according to government 
estimates, the State of Arizona is home to approximately 20 
percent of that total. The government has found that an 
estimated 3,000 of the 100,000 abandoned mining sites in 
Arizona pose a significant environmental risk. Abandoned mines 
primarily threaten our water supplies. In fact, the Arizona 
Department of Environmental Qualities has asserted the 
pollutants that remain from active and former mines are some of 
the major pollution sources for Arizona's water bodies.
    Clearly, Congress owes it to the American people to address 
the threat to water quality in our drinking water supplies 
posed by abandoned hard rock mines across the Western United 
States.
    I commend my colleagues, Mark Udall and John Salazar, for 
introducing legislation to address this staggering problem. I 
also concur with Ranking Member Rahall that Congress should not 
enact legislation that exempts hard rock mining companies from 
the Clean Water Act or Superfund, and I join Mr. Rahall as a 
cosponsor to his mining law reform legislation.
    I also support the premise that hard rock mining companies 
should pay a royalty on production of hard rock minerals on 
Federal lands, and that that revenue be dedicated to the 
cleanup of past hard rock mining operations. It's well past 
time that Congress took up this very important environmental 
issue. And I'm glad for the hearing, Mr. Chairman.
    [The prepared statement of Mr. Grijalva follows:]

   Statement of The Honorable Raul M. Grijalva, a Representative in 
                   Congress from the State of Arizona

    Thank you, Mr. Chairman. And thank you to the witnesses we will be 
hearing from today. I am pleased to welcome one of our witnesses in 
particular: Joan Card, Director, Water Quality Division, Arizona 
Department of Environmental Quality who is representing the Western 
Governors Association.
    I am fortunate to represent the people of the 7th District of 
Arizona, a state so steeped in mining that many believe it was named 
for a huge silver deposit discovered in 1736 at the Arizonac mine 
southwest of present-day Nogales.
    From silver to gold to copper, Arizona has enjoyed----or suffered--
depending on your point of view--a series of boom-and-bust periods 
directly attributable to mining.
    Under the 1872 Mining Law, miners have staked over one million 
claims in Arizona. While some of these miners have been fair and 
responsible, there is no doubt that there have been many bad actors as 
well.
    There are according to EPA, more than 500,000 abandoned mines in 
the United States. And, according to government estimates, the State of 
Arizona is home to approximately 20% of that total. The government has 
found that an estimated 3,000 of those 100,000 abandoned mining sites 
in Arizona pose a significant environmental risk.
    Abandoned mines primarily threaten our water supplies. In fact, the 
Arizona Department of Environmental Quality has asserted that, ``the 
pollutants that remain from active and former mines are some of the 
major pollution sources for Arizona's waterbodies.''
    Clearly, Congress owes it to the American people to address the 
threat to water quality and our drinking water supplies posed by 
abandoned hard rock mines across the Western United States.
    And so, I commend my colleagues, Mark Udall and John Salazar, for 
introducing legislation to address this staggering problem. I also 
concur with Ranking Member Rahall that Congress should not enact 
legislation that exempts hard rock mining companies from the Clean 
Water Act or Superfund. And, as I have joined Mr. Rahall as a co-
sponsor to his Mining Law Reform legislation, I also support the 
premise that hard rock mining companies should pay a royalty on 
production of hard rock minerals on federal lands and that this revenue 
should be dedicated to clean-up of past hard rock mining operations.
    It is well past time that Congress take up this important 
environmental issue.
                                 ______
                                 
    Mr. Grijalva. And with that, I'd also like to, as you 
indicated at the beginning of this hearing, submit Mr. Rahall's 
comments for the record. Thank you.
    [The prepared statement of Mr. Rahall follows:]

              Statement of The Honorable Nick J. Rahall, 
                Ranking Democrat, Committee on Resources

    Thank you, Mr. Chairman. And thank you to our witnesses who are 
here to discuss the problems--and there are many--associated with the 
over half-a-million abandoned hardrock mine sites in the United States.
    This issue comes to us under the banner of ``Good Samaritan,'' 
giving it the Biblical luster of a well-known parable. But as we take 
up this issue, I am reminded of a verse from Proverbs (16:16), ``How 
much better to get wisdom than gold, to choose understanding rather 
than silver!''
    Today, I urge my colleagues to consider the folly of our hardrock 
mining policies with renewed wisdom and to understand the mess left by 
134 years of mining conducted under a now-badly outdated law.
    For multiple generations, hardrock mining companies have been 
profiting by extracting gold, silver, and other valuable minerals from 
our lands only to pull up stake and leave behind scarred and battered 
landscapes. These huge companies have often operated without mercy for 
the lands or nearby communities. They are able to do so, in large part, 
because the tarnished, antiquated Mining Law of 1872 that contains no 
environmental protection provisions. As a result, the headwaters of 40 
percent of Western waterways are polluted by mining, and hundreds of 
thousands of abandoned mine sites litter the West--including 87 sites 
so toxic they have been designated as Superfund sites.
    Under the guise of easing the burden on well-intentioned folks who 
simply want to clean up someone else's mess, the so-called ``Good 
Samaritan'' proposals coming forward would actually make it easier for 
hardrock mine companies to get away with making the mess in the first 
place.
    Instead of giving hardrock mine companies a free ride, I have, as 
many of my colleagues know, long advocated reform of the Mining Law of 
1872 as a means to achieve both a fair return to the public on the 
production of hardrock minerals from public lands, and the reclamation 
of abandoned mined lands using those returns or royalties. In fact, I 
began my efforts soon after I became Chairman of this Subcommittee in 
1987. We came close to enacting a major reform bill in 1994. 
Unfortunately, since then, the Republican Majority has done nothing to 
further this cause. In fact, the gears of reform have notably shifted 
into reverse.
    In May, the Bush Administration proposed the ``Good Samaritan Clean 
Watershed Act,'' a proposal that purports to promote the cleanup of 
inactive and abandoned hardrock mines by limiting liability from 
certain environmental laws to innocent parties who volunteer to provide 
partial cleanup of such sites. Instead, it has the potential to give 
the owners of hardrock mines a free pass from liability under the 
Superfund and the Clean Water Act requirements.
    Rather than enacting such flawed legislation, I urge my colleagues 
to look to H.R. 3968, the ``Federal Mineral Development and Land 
Protection Equity Act of 2005'' a bill that I introduced along with a 
bipartisan group of colleagues. Our legislation would prohibit the 
continued giveaway of public lands. It would require that a fee be paid 
for the use of the land, and that a royalty be paid on the production 
of valuable minerals, such as gold and silver, extracted from Western 
public domain lands. It would, as well, require industry to comply with 
some basic reclamation standards to ensure long-term protection of the 
environment both during mining and after it has been completed.
    This legislation would not only bring outmoded mining law into the 
21st century, it would also set a solid accountable course for the 
future of a thriving industry. For too long now, the hardrock mining 
industry has taken advantage of the lax law that allows them to extract 
valuable minerals from public lands for free--the last thing that 
industry needs is another free pass.
    Clearly, the environmental damage caused by hardrock mining and the 
dangers posed to nearby citizens are a result of weak and, at times, 
non-existent mining regulation. The Administration's proposal does 
nothing to remedy that. Their idea of Good Samaritan is simply bad 
public policy.
                                 ______
                                 
    Mr. Gibbons. Thank you, Mr. Grijalva.
    I'd like to call our first panel. It's Brent Fewell, Deputy 
Assistant Administrator for the Office of Water, United States 
Environmental Protection Agency; Joseph Pizarchik--I hope I'm 
pronouncing your name right, Joe. He's the Director of Bureau 
of Mining Reclamation, Pennsylvania Department of Environmental 
Protection; and Ms. Joan Card, Director of Arizona's Water 
Quality, Western Governors' Association.
    I also ask unanimous consent that Congressman Mark Udall be 
allowed to sit with us on the dais for the purposes of this 
hearing; and without hearing any objection, so ordered.
    Before we open the testimony, what we have is a procedure, 
a policy for the committee to swear in all of the witnesses. So 
if each of you will stand with me and raise your right hand, 
we'll swear you in.
    [Witnesses sworn.]
    Mr. Gibbons. Let the record reflect that each of the 
witnesses answered in the affirmative.
    And we will turn now to Mr. Brent Fewell. Brent, welcome. 
The floor is yours; we look forward to your testimony.

 STATEMENT OF BRENT FEWELL, DEPUTY ASSISTANT ADMINISTRATOR FOR 
   THE OFFICE OF WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY

    Mr. Fewell. Thank you, Mr. Chairman. Good morning, members 
of the Subcommittee. I am honored to appear before you today to 
testify on one of the most important environmental issues and 
opportunities currently facing the U.S.; that is, legacy 
impacts from abandoned hard rock mines, and the commonsense 
approach that we can take to accelerate cleanup of pollution 
from these mine sites.
    President Bush is committed to accelerating environmental 
progress through collaborative partnerships, and as part of 
this commitment, in May of this year EPA transmitted to 
Congress the Good Samaritan Clean Watershed Act. We are 
grateful to Representative Duncan, a member of your full 
committee, for introducing the Administration's bill. And we 
are grateful to you, Mr. Chairman, for holding this hearing 
today to continue focusing attention on this important issue.
    I'd also like to acknowledge the leadership of 
Representatives Udall, Salazar and Beauprez on this issue, and 
we applaud the bipartisan efforts in both Houses of Congress to 
try to fix this problem.
    As a Denver Post editorial staff aptly noted last week on 
this very issue, ``It's high time that Congress enable some 
real progress to be made toward cleaning up what is technically 
a very fixable mess.''
    Mr. Chairman, the issue of abandoned mine remediation has 
been discussed and debated for well over a decade, and a 
solution is long overdue. As you are well aware, hundreds of 
thousands of inactive and abandoned hard rock mines continue to 
impact local economies by threatening drinking and agricultural 
water supplies, increasing water treatment costs, and limiting 
fishing and recreational opportunities.
    In August of last year, as part of the White House 
Cooperative Conservation Conference, Administrator Johnson 
announced the Agency's Good Samaritan Initiative. In the first 
project under the initiative, the Agency partnered with Trout 
Unlimited, who volunteered to clean up an abandoned mine in 
Utah's American Fork Canyon. Trout Unlimited was willing to 
invest its time and resources to do the work. The property 
owner, Snowbird Ski Resort, who did not cause the pollution, 
was willing to provide access and other resources. The results 
are win-win for the environment and everyone involved. A 
watershed that has been impacted for over a century is well on 
its way to being restored, and will once again provide clean 
water and habitat for a rare trout species.
    Over the last 12 months, the Agency has engaged in 
extensive stakeholder outreach, and we have met and talked with 
over 100 groups representing industry, NGO's, State and local 
governments. And while the vast majority of the stakeholders I 
have met with are supportive of Good Samaritan legislation and 
its solution, a few still oppose the legislation and remain 
skeptical. I'd like to take a few moments to address directly 
some of the arguments made against this legislation.
    First, unfortunately, some have characterized our 
legislation as a free pass for polluters. I say absolutely not. 
This is not about letting polluters off the hook; rather, it's 
about accelerating environmental improvements by removing legal 
roadblocks. Under the Administration's bill, Good Samaritans 
will be held to a realistic standard that ensures real 
environmental improvements. Moreover, the legislation does not 
in any way waive liability for individuals or companies that 
are responsible for that pollution.
    Second, some will argue that Superfund relief is not 
needed; however, the simple fact is that Superfund liability is 
a very real threat to volunteers and will continue to stop 
voluntary cleanups in their tracks.
    Third, others point to EPA's existing administrative 
authorities as a reason why legislation is not needed. Simply 
stated, administrative authorities alone are woefully 
inadequate to address the scope and breadth of the challenge we 
currently face. Using Super Fund authorities, as we did in the 
case of Trout Unlimited through an administrative order, can 
involve a time-consuming and complicated process. Moreover, 
administrative authorities are not the best tool for maximizing 
public participation or engaging the States, tribes and local 
stakeholders in the cleanup process. Therefore, we think that 
legislation is absolutely essential to clearing these legal 
roadblocks that continue to impede environmental progress.
    Thank you, Mr. Chairman, for the opportunity to discuss 
this with you today. In closing, I would emphasize that action, 
not continued debate on this issue, is the only way to clean up 
what has been described as a very fixable mess. We look forward 
to working with you and your colleagues to get this important 
environmental legislation to the President's desk this year. 
Thank you.
    Mr. Gibbons. Thank you, Mr. Fewell. We appreciate your 
presence here and the content of your testimony. And your 
written statement will be entered into the record in its full 
context.
    [The prepared statement of Mr. Fewell follows:]

     Statement of Brent A. Fewell, Deputy Assistant Administrator, 
         Office of Water, U.S. Environmental Protection Agency

    Good morning Mr. Chairman and Members of the Subcommittee. I am 
honored to appear before you today to testify on one of the most 
important environmental issues, and opportunities, facing the United 
States--legacy impacts from abandoned mines and the innovative efforts 
we can all take to help clean up pollution from abandoned mines.
    The President is committed to accelerating environmental progress 
through collaborative partnerships and as part of this commitment the 
Environmental Protection Agency transmitted to Congress on May 10, 2006 
the Good Samaritan Clean Watershed Act (S. 2780 and H.R. 5404). This 
bill is one of several cooperative conservation legislative proposals 
that will be submitted by the Administration this year. We are grateful 
to Representative Duncan, a member of your full Committee, for 
introducing the Administration's bill. And we are grateful to you Mr. 
Chairman for holding this hearing today to continue focusing attention 
on this important issue.
    As the Denver Post editorial staff noted last week on this subject, 
``[I]t's high time that Congress enables some real progress to be made 
toward cleaning up what is, technically, a very fixable mess.'' Mr. 
Chairman, we look forward to working with you and members of this 
Committee to advance much needed and meaningful reform to solve this 
fixable mess.
The Abandoned Mine Problem
    Inactive or abandoned mine sites can pose serious public safety and 
environmental hazards. According to estimates, there are over half a 
million abandoned mines nationwide, most of which are former hardrock 
mines located in the western states, and which are among the largest 
sources of pollution degrading water quality in the United States. Acid 
mine drainage from these abandoned mines has polluted thousands of 
miles of streams and rivers, as well as ground water, posing serious 
risks to human health, wildlife, and the environment. EPA has estimated 
that approximately 40 percent of headwaters in the West have been 
impacted by discharges from abandoned hardrock mines. This problem can 
affect local economies by threatening drinking and agricultural water 
supplies, increasing water treatment costs, and limiting fishing and 
recreational opportunities.
Challenges To Cleaning Up Abandoned Mines
    Today's acid mine drainage and runoff problems can be traced to 
abandoned hardrock mines that date back to the mid- to late-1800s. In 
many cases, the parties responsible for the pollution are either 
insolvent or no longer available to participate in the remediation. 
However, over the years, an increasing number of ``Good Samaritans,'' 
not responsible for the pollution, have volunteered to cleanup these 
mines. Through their efforts to remediate these sites, we can help 
restore watersheds and improve water quality. Unfortunately, as a 
result of legal obstacles, we have been unable to take full advantage 
of opportunities to promote cooperative conservation through 
partnerships that will restore abandoned mine sites throughout the 
United States.
    The threat of liability, whether under the Clean Water Act (CWA) or 
the Comprehensive Environmental Response, Compensation and Liability 
Act (CERCLA), can be an impediment to voluntary remediation. A private 
party cleaning up a release of hazardous substances may become liable 
as either an operator of the site, or as an arranger for disposal of 
the hazardous substances. As well, under the CWA, a party may be 
obligated to obtain a discharge permit and comply with the permit's 
effluent limitations, which must be as stringent as necessary to meet 
water quality standards. The potential assignment of liability occurs 
even though the party performing the cleanup did not create the 
conditions causing or contributing to the degradation. Addressing this 
liability threat will encourage more Good Samaritans to improve the 
water quality of watersheds impacted by acid mine drainage.
    In some cases, remediation of these sites can be complex and 
extremely resource intensive. Yet even partial cleanups by Good 
Samaritans will result in meaningful environmental improvements and 
will help accelerate achieving water quality standards. By holding Good 
Samaritans accountable to the same cleanup standards as those that 
caused the pollution or requiring strict compliance with water quality 
standards, we have created a strong disincentive to voluntary cleanups. 
Unfortunately, this has resulted in the perfect being the enemy of the 
good. EPA strongly believes that liability should rest squarely on 
parties responsible for the environmental damage, not on those who are 
trying to clean it up. EPA has seen this concept work successfully all 
across the country to clean up and restore brownfield properties to 
beneficial reuse. By removing this threat of liability, we will 
encourage more voluntary and collaborative efforts to restore 
watersheds impacted by acid mine drainage.
    Let me emphasize, however, that encouraging Good Samaritan cleanups 
is not about lowering environmental standards nor letting polluters off 
the hook. Instead, this legislation will hold Good Samaritans to a 
realistic standard that ensures environmental improvement. And those 
responsible for the pollution, if still in existence, will remain 
accountable, consistent with the Agency's ``polluter pays'' policy.
Cooperative Conservation and EPA's Good Samaritan Initiative
    President Bush's August 2004 Executive Order on Cooperative 
Conservation directs federal agencies to ensure--when taking actions 
that relate to the use, protection, enhancement, and enjoyment of our 
natural resources--that the agencies will engage in collaborative 
partnerships with state, local, and tribal governments, private for 
profit and nonprofit institutions, and other nongovernment entities and 
individuals. Last August, as part of the President's Cooperative 
Conservation conference, EPA announced its Good Samaritan Initiative 
that focuses on developing administrative tools to encourage more 
voluntary efforts to remediate damage from abandoned mines.
    The first project under the Agency's Initiative involves working 
with the Trout Unlimited (TU) who volunteered to clean up an abandoned 
mine in Utah's American Fork Canyon. This project will restore a 
watershed that has been impacted for well over a century, improving the 
water quality and the habitat of a rare cutthroat trout species. We 
believe the TU project serves as a model of cooperative conservation--
placing a premium on collaboration and cooperation over confrontation 
and litigation--and is a win-win situation for the environment and all 
involved. However, using administrative authorities alone (without 
legislation) to solve such large and complex water quality challenges 
posed by abandoned mines is like applying a band-aid to a hemorrhaging 
wound. It's not enough.
Good Samaritan Clean Watershed Act
    The Administration's ``Good Samaritan Clean Watershed Act'' bill 
offers a comprehensive solution to restore watersheds and improve water 
quality by encouraging remediation of inactive or abandoned hardrock 
mining sites by persons who are not otherwise legally responsible for 
such remediation. In the spirit of cooperative conservation, this bill 
recognizes that environmental progress can be accelerated by 
encouraging citizens and government at all levels to achieve 
environmental results through cooperation instead of confrontation.
    The bill is narrowly targeted to remove the most significant legal 
obstacles to voluntary cleanups and establishes a streamlined permit 
program that would be administered at the federal level by EPA, and 
which can be administered by states or tribes if certain conditions are 
met. A permit issued under this bill would allow a Good Samaritan to 
clean up an inactive or abandoned mine site and would offer targeted 
protection from CWA or CERCLA liability for the actions taken under the 
permit. As drafted, the bill is a freestanding piece of legislation and 
not an amendment to any existing federal environmental statute.
    The bill also contains specific requirements regarding who is 
eligible for a Good Samaritan permit, the sites for which permits may 
be issued, and what must be included in the permit. Importantly, the 
bill encourages all volunteers, whether a private citizen, 
municipality, company, watershed group, or non-profit organization, to 
participate as a ``Good Samaritan'' provided that they did not 
contribute to the creation of the pollution, are not responsible under 
federal, state or tribal law for the cleanup, and do not have an 
ownership interest in the property.
    I want to take a moment to highlight a number of additional 
safeguards the bill provides to ensure that abandoned mines will be 
properly remediated:
      It requires a thorough ``due diligence'' evaluation of a 
Good Samaritan and proposed project, ensuring that the Good Samaritan 
is a ``good actor'' who has a history of good environmental compliance 
elsewhere and has sufficient financial resources to complete a project;
      It requires a determination that a project will result in 
improvement to the environment before any permit for the project is 
issued;
      While it provides that permits shall not authorize the 
extraction of new mineral resources, it allows the recycling of 
historic waste piles if directly related to the cleanup, and only after 
such activities are identified in a permit application and approved;
      It limits liability relief to only those activities 
undertaken pursuant to a permit issued under the Act;
      It nullifies liability protection under the Act where an 
applicant engages in fraud or provides materially misleading 
information;
      It requires robust public participation, including a 
mandatory public hearing before a permit is issued; and lastly,
      It provides ongoing federal oversight and enforcement of 
cleanup activities.
Conclusion
    Thank you, Mr. Chairman, for the opportunity to discuss with you 
the Administration's Clean Watershed Good Samaritan Act legislation. 
The issue of abandoned mine remediation has been discussed and debated 
for well over a decade. A comprehensive solution is long overdue. We 
applaud bipartisan efforts in both houses of Congress to fix the 
problem, and we look forward to working with you and your colleagues to 
get this important environmental legislation to the President's desk as 
soon as possible.
                                 ______
                                 
    [The response to questions submitted for the record by Mr. 
Fewell follows:]

Response to questions submitted for the record by Brent Fewell, Deputy 
Assistant Administrator for Water, U.S. Environmental Protection Agency

Question:
    The National Mining Association and the Northwest Mining 
Association testified that the Good Samaritan proposal should be 
expanded to include other environmental laws, not just Clean Water and 
Superfund. What is your organization's position on this recommendation?
Answer:
    The EPA believes that concerns about potential liability pursuant 
to the Clean Water Act and the Comprehensive Environmental Response, 
Compensation and Liability Act (CERCLA) present the most significant 
challenge to voluntary cleanups at abandoned hardrock mine sites.
Question:
    The National Mining Association and the Northwest Mining 
Association testified that the Good Samaritan proposal must allow 
mining companies to remediate abandoned mine sites. What is your 
organization's position on this recommendation?
Answer:
    Under the Administration's bill, a company is eligible as a Good 
Samaritan if it did not cause or contribute to the pollution and has no 
current or historical ownership ties to the abandoned or inactive mine 
site. EPA believes that many mining companies have the resources and 
technical expertise needed to remediate abandoned mines.
Question:
    In her statement on behalf of the Northwest Mining Association, Ms. 
Skaer has included a list of mine sites in Nevada that she states the 
industry was initially interested in reclaiming as ``Good Samaritans'' 
(middle of page 3). However, she goes on, ``In each case, the potential 
cradle-to-grave liability exposure under federal environmental laws 
prevented the mining industry from using its experience, expertise, 
technology, equipment and capital to remediate and reclaim the AML 
sites.''
    It has been brought to our attention that a number of those mines 
are also are on a list of bankruptcies included in the appendix to a 
state-sponsored report from 2003: ``Nevada Mining Bonding Task Force 
Report.''
    These mines all went out of business in 1998-1999. They are not, as 
is so often asserted, old historic mines for which no owner or 
responsible party can be located.
    The mining industry argues that ``Good Sam'' legislation is needed 
due to past, not current, mining practices. However, at least in 
Nevada, this does not appear to be true.
    To what degree are abandoned mines old historic mines and how many 
were created within the last decade?
Answer:
    EPA's National Mining Team (NMT) estimates that more than 90% of 
abandoned mines are historic mines which were created prior to the 
enactment of the 1976 Federal Land Policy and Management Act (FLPMA). 
While the number of abandoned sites over the last decade is rather 
small compared with historical numbers, the environmental liabilities 
and the costs associated with cleaning up these sites can be 
significant.
Question:
    Please explain why, in regard to modern abandoned mines, the 
reclamation bonds were not adequate to cover the cost of cleaning up 
the mines sites when the operator goes into bankruptcy.

                          List of Nevada Mines

    Easy Junior, Alta Gold, bankruptcy 1999
    Elder Creek, Alta Gold, bankruptcy 1999
    Golden Butte, Alta Gold, bankruptcy 1999
    Ward, Alta Gold, bankruptcy 1999
    Mt. Hamilton, Rea Gold, bankruptcy 1998
    Griffon, Alta Gold, bankruptcy 1999
    Aurora Partnership, Aurora Partnership, bankruptcy 1999
    Kinsley, Alta Gold, bankruptcy 1999
    Gold Bar, Atlas Gold Mining Inc, bankruptcy 1999

Full  report and appendix available:  http://www.unr.edu/mines/mlc/
presentations_pub/NV_bonding.asp

Answer:
    There were no bonding requirements from the Bureau of Land 
Management (BLM) or the State of Nevada before 1980. In 1980, federal 
regulations were adopted under the Federal Land Policy and Management 
Act which created the mine permit program for BLM. The program included 
bonding requirements which could be imposed at the discretion of BLM.
    In 1990 the State of Nevada established its own bonding program 
which initially received 140 reclamation bond submittals. It took the 
State a number of years to work through the backlog of submittals. 
Nevada currently has a several million dollar ``bond pool'' to address 
emergency response to imminent spills at sites where the operator has 
abandoned the site.
    In general, many State's bonds are largely based on the cost of 
reclaiming the surface of the land and do not cover the potential costs 
of addressing the release of hazardous substances from acid forming 
waste rock piles or tailings ponds. In addition, State bonds often do 
not address the need for long term treatment of contaminated 
groundwater.
Question:
    Mr. Fewell, you state that President Bush is committed to 
accelerating environmental progress through collaborative partnerships. 
Does the Administration support the mining industry's recommendation 
that mining companies should be allowed to conduct abandoned mine 
remediation under the proposed Good Sam proposal?
Answer:
    Under the Administration's bill, a company is eligible as a Good 
Samaritan if it did not cause or contribute to the pollution and has no 
current or historical ownership ties to the abandoned or inactive mine 
site. EPA believes that many mining companies have the resources and 
technical expertise needed to remediate abandoned mines. A joint 
partnership involving a technically proficient mining company and a 
local government and/or dedicated citizens group would be an ideal 
cooperative Good Samaritan project
Question:
    Mr. Fewell, Mr. Pizarchik, from Pennsylvania, testified that there 
needs to be a ``clear line'' between remediation and remining. This 
seems to make sense. Clearly we do not want to mix true ``Good 
Samaritan'' projects with profit-making endeavors. What is the 
Administration position on this?
Answer:
    The primary purpose of the Administration's bill is to accelerate 
the cleanup of abandoned hardrock mines through collaborative, 
voluntary efforts. The bill allows the recycling of historic tailings 
and waste piles but draws a ``bright line'' between the reclamation of 
these materials, created from historic mining operations, and the 
extraction of existing or new reserves. Such recycling activities must 
be directly related to the remediation and identified in a permit 
application before they would be authorized pursuant to a Good 
Samaritan permit. The bill does not preclude or limit profits that may 
be generated from these activities. Revenues from authorized recycling 
activities can provide important incentives to encourage more 
environmentally beneficial cleanups.
Question:
    H.R. 5404, the ``Good Samaritan Clean Watershed Act,'' allows for 
recycling of historic waste piles if directly related to the cleanup of 
the AML site. The proposed legislation does not allow for the 
extraction of newly identified mineral resources under a ``Good 
Samaritan permit.''
    The National Mining Association and the Northwest Mining 
Association have both stated that the mining industry would not use a 
``Good Samaritan permit'' to access newly identified mineral resources 
any company interested in exploring for and developing new resources 
would be required to go through a comprehensive mine permitting 
process.
    They have also both testified that removal and reprocessing of 
waste material, tailings and mineralized stockpiles could play an 
important role in addressing the problems associated with acid rock 
drainage and heavy metal contamination of streams and lakes. In 
addition a private party or other entity could help defray the costs of 
remediation with any metals recovered. These statements are not 
inconsistent with other witness testimony.
    However, it seems that there are some Members and others that are 
still concerned that Industry or others will try and take advantage of 
a ``Good Samaritan permit'' to access newly identified mineral 
resources without going through a comprehensive mine permitting 
process. It seems that some of the concern is a result of people using 
different terms to describe the same exercise or concept.
    Please define the following terms in the context of a ``Good 
Samaritan permit'':
      ``reprocessing of waste, ore or tailings''
      ``reclamation mining''
      ``recycling of waste, ore and tailings''
      ``Incidental reprocessing of tailings or waste rock 
piles''
      ``remining''
Answer:
    The Administration's bill would allow for the ``recycling or 
incidental reprocessing of historic mine residue,'' which by definition 
may include tailings or mine waste piles, provided such activities are 
directly related to the remediation. With the exception of the term 
``remining,'' all of the above mentioned phrases are related and 
indistinguishable from a number of onsite actions that generally would 
be undertaken to conduct cleanup and remediation of abandoned mine 
sites. In many instances, hauling off the contaminated tailings and 
waste rock piles is prohibitively expensive and merely transfers the 
contaminants to another location, where they might ultimately prove to 
be problematic in the future. Onsite reprocessing and reclamation 
activities are usually environmentally preferable and more cost 
effective. As the term implies, ``remining'' usually means initiating 
full scale mining of underground and/or surface ore deposits and waste 
piles at an abandoned mine site where a remediation bond has been 
forfeited. Remining is a commercial, ``for profit'' activity that would 
incur the same permitting and liability conditions required of any new 
mine site. The Administration's bill seeks to distinguish between the 
reclamation of materials that have been previously removed by historic 
operations and the commercial extraction of new materials, e.g., virgin 
ores and minerals, unrelated to the remediation of the site.
                                 ______
                                 
    Mr. Gibbons. I turn now to Mr. Joe Pizarchik. And welcome, 
Joe; we're happy to have you, and the floor is yours.

 STATEMENT OF JOSEPH PIZARCHIK, DIRECTOR, BUREAU OF MINING AND 
     RECLAMATION, PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL 
                           PROTECTION

    Mr. Pizarchik. Thank you, Mr. Chairman, members of the 
Subcommittee, Congressman Udall.
    The challenges of cleaning up abandoned and inactive mines, 
both coal and noncoal, spans the entire country. I will briefly 
discuss the efforts of Pennsylvania to clean up these sites, 
many of which serve as examples of the work being undertaken by 
all States to address the problem.
    During my testimony, you will see on the monitors pictures 
of some of the challenges we have faced or have actually 
undertaken in Pennsylvania. There are similar problems, both 
coal and noncoal, throughout the country. These sites would be 
addressed but for the potential liabilities facing those who 
desire to assist with the cleanup. Given that Pennsylvania is 
the only State with the Good Samaritan law, there are valuable 
lessons to learn about how national legislation can be 
structured and implemented.
    In my State, over 200 years of mining has left more than 
200,000 acres of abandoned, unreclaimed mine lands. These sites 
include open pits, some of which are water-filled. The pit you 
see covers 40 acres, is 238 feet deep, and will cost over $20 
million to reclaim. These abandoned lands also include spoil 
piles, waste coal piles, mine openings and subsided surface 
areas. We also have thousands of abandoned discharges of 
polluted water. Some discharges are small seeps, while others 
are quite large. One such tunnel discharges 40,000 gallons per 
minute. According to EPA, there were over 3,000 miles of 
Pennsylvania streams affected by mine drainage. These 
discharges have a significant impact on Pennsylvania streams 
and rivers.
    Pennsylvania has spent hundreds of millions of dollars on 
abandoned mine problems. It became clear that without help from 
other parties, government efforts alone will take many decades 
and billions of dollars to clean up the problems. Additional 
options were needed. One option was remining. Operators were 
remining some abandoned sites, but remining and reclamation was 
not occurring on sites that contained mine drainage due to the 
liability under State and Federal laws. For remining the sites 
with preexisting discharges, we worked to change the law to 
limit mine operators' liability. We only approve permits that 
are likely to improve or eliminate the discharge.
    While the law limits the liability, it does not provide 
absolutely immunity. Pennsylvania's remining program has been 
very successful. Of 112 abandoned surface mines containing 233 
preexisting discharges that were remined, 48 discharges were 
eliminated, 61 were improved, 122 showed no improvement, and 2 
were degraded. Thousands of tons of metals were removed, and 
approximately 140 miles of streams were improved. Treatment 
would have cost at least $3 million a year every year.
    The benefits of remining are not limited to water quality 
improvement. Significant amounts of Pennsylvania's abandoned 
lands have been reclaimed at no cost to the government. Over 
the past 10 years, 465 projects have reclaimed 20,000 acres and 
eliminated 140 miles of highwall. Abandoned waste coal piles 
were eliminated--you can see a before and after picture there. 
In addition, abandoned pits were filled, and lands were 
restored to a variety of productive uses, including wildlife 
habitat.
    In addition to remining, Pennsylvania implemented a 
contract reclamation program for waste coal sites to allow for 
the limited recovery of coal from the waste piles where the 
coal removal was necessary to complete reclamation. The value 
of the recovered coal is used to pay for reclamation. This 
program has financed the reclamation of 800 acres valued at 
over $4 million. There are 54 other such projects under way.
    Where remining or waste coal contracts was not an option, 
Pennsylvania officials tried to leverage the State's limited 
resources to accomplish more reclamation by working with 
citizens' groups. Many such groups would not reclaim sites that 
had drainage because State and Federal law imposed liability on 
them to permanently treat the discharge if they reaffected it. 
In response, Pennsylvania enacted the Environmental Good 
Samaritan Act to provide protections and immunities to those 
who were not legally liable, but who voluntarily undertook the 
reclamation of abandoned lands or abatement of mine drainage.
    Only projects approved by the State are eligible. Approval 
is required to ensure that the project is likely to make things 
better, and there must be no liable party. Protections are 
provided to the people who do the work, for those who provide 
materials, and for the landowner.
    Pennsylvania has undertaken 34 Good Samaritan projects. 
Some are simple, others are large and complex; however, the 
number of these projects is less than it could be because of 
the potential Federal liability.
    During the 109th Congress, several bills have been 
introduced addressing the cleanup of active and abandoned 
mines. While each bill contains good points, the 
Administration's bill provides the best starting point on which 
to structure an effective Good Samaritan program. We have 
several recommendations for your consideration.
    Briefly stated, effective Good Samaritan legislation should 
be structured to allow implementation by the States, extend 
protection to abandoned coal as well as hard rock sites, 
include provisions that allow for the minerals to be recovered 
from the abandoned waste to offset reclamation costs, include 
public and private land, and provide flexible environmental 
standards, but should not include remining.
    Mr. Chairman, thank you for the opportunity to be here 
today, and I have a few documents I'd like to have made part of 
the record that accompany my statement.
    Mr. Gibbons. Mr. Pizarchik, thank you very much for your 
testimony and your presence here today. Your documents and your 
written testimony will be entered into the record, without 
objection.
    [The prepared statement of Mr. Pizarchik follows:]

Statement of Joseph G. Pizarchik, Esq., Director, Bureau of Mining and 
 Reclamation, Pennsylvania Department of Environmental Protection, on 
           behalf of The Interstate Mining Compact Commission

    Good morning, Mr. Chairman. My name is Joseph Pizarchik and I am 
Director of the Bureau of Mining and Reclamation within the 
Pennsylvania Department of Environmental Protection. I am appearing 
here today on behalf of the Interstate Mining Compact Commission 
(IMCC). The IMCC is an organization of 22 states located throughout the 
country that together produce some 80% of the nation's coal, as well as 
important noncoal materials. Each IMCC member state has active mining 
operations as well as numerous abandoned mine lands within its borders 
and is responsible for regulating those operations and addressing 
mining-related environmental issues, including the reclamation of 
abandoned mines. I am pleased to appear before this Subcommittee to 
discuss what we have accomplished in Pennsylvania through measures that 
encourage others to clean up abandoned mines and the opportunities for 
Good Samaritan Cleanup of Abandoned Mines that could be realized 
through the enactment of federal Good Samaritan legislation. In 
particular, I will address the views of the Commonwealth of 
Pennsylvania regarding our experience with the reclamation of abandoned 
mine lands under Title IV and Title V of the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA) and Pennsylvania's Environmental Good 
Samaritan Act and the need for federal Good Samaritan Legislation.
EXECUTIVE SUMMARY
    Over 200 years of mining in Pennsylvania left over 200,000 acres of 
abandoned mine lands and thousands of miles of streams affected by mine 
drainage. Reclamation efforts began 60 years ago. While hundreds of 
millions of dollars of state and federal funds eliminated many hazards, 
by the early 1980s it was clear that the limited government funds could 
not reclaim all of the abandoned mine lands and polluted streams.
    In 1984 Pennsylvania instituted a program that provided the 
opportunity for reclamation through remining of abandoned mine land 
with preexisting discharges. Under this program remining improved 140 
miles of streams by removing, on an annual basis, 2,900 tons of acid, 
95 tons of iron, 5.6 tons of manganese, 55 tons of aluminum and 2,400 
tons of sulfates saving over $3,000,000 per year of government funds. 
In 1992 Pennsylvania enacted incentives to encourage reclamation of 
abandoned mine lands through remining by providing permit application 
assistance, remining financial guarantees and reclamation bond credits. 
The additional remining resulted in the reclamation of 2,387 acres 
valued at $14,794,010.
    In 1999 Pennsylvania enacted the Environmental Good Samaritan Act 
to encourage volunteers to improve land and water adversely affected by 
mineral extraction by limiting the Good Samaritan's potential 
liability. Thirty-four projects, focused mainly on mine drainage but 
also including coal refuse, have been undertaken. A number of other 
projects have not been undertaken because of the potential for 
incurring liability under federal law. The opportunities for 
reclamation by Good Samaritans would be enhanced by the enactment of 
federal Good Samaritan legislation that includes coal.
    In 1992 Pennsylvania created a contract reclamation program to 
allow for the limited recovery of coal from waste piles where the coal 
removal was necessary to complete reclamation. The value of the 
recovered coal is used to pay for the reclamation. The program was 
expanded in 1999 to include other abandoned coal mine land. This 
program has financed the reclamation of 812 acres valued at $4,603,771.
    Pennsylvania has demonstrated there are countless opportunities for 
Good Samaritans to clean up abandoned mine land. We need federal Good 
Samaritan legislation that protects Good Samaritans from potential 
liability under the Clean Water Act and under the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA); that 
allows for the recovery of minerals from the mining waste; that 
provides flexible standards; that is not burdensome and can be 
administered by either the states or the federal government. While 
abandoned hard rock mines present the most pressing need for Good 
Samaritan Legislation, coal should also be included. It is time for 
Congress to act to enable Good Samaritans to help conquer the 
monumental task of abandoned mine lands.
BACKGROUND
    Mr. Chairman, during the past quarter of a century significant and 
remarkable work has been accomplished pursuant to the abandoned mine 
lands (AML) program under SMCRA. The Office of Surface Mining 
Reclamation and Enforcement (OSM) and the states have documented much 
of this work. (See the 2006 Accomplishments Report recently published 
by the National Association of Abandoned Mine Land Programs and OSM's 
twentieth anniversary report.) OSM's Abandoned Mine Land Inventory 
System (AMLIS) provides a fairly accurate accounting of the work 
undertaken by most of the states over the life of the AML program and 
also provides an indication of what is left to be done.
    Over the past 25 years, tens of thousands of acres of abandoned 
mine land have been reclaimed, thousands of mine openings have been 
closed, and safeguards for people, property and the environment have 
been put in place. Based on information maintained by OSM in AMLIS, as 
of June 30, 2005, $2.6 billion worth of high priority coal-related 
public health and safety problems have been funded and reclaimed. 
Another $354 million worth of environmental problems have been funded 
or completed and $398 million worth of noncoal AML problems have been 
funded and reclaimed. In addition to the aforementioned federally 
funded projects, Pennsylvania has taken other steps to address the 
abandoned mine land problem within the Commonwealth.
    There are numerous success stories from around the country where 
the states' AML programs have saved lives and significantly improved 
the environment. Suffice it to say that the AML Trust Fund, and the 
work of the states pursuant to the distribution of monies from the 
Fund, have played an important role in achieving the goals and 
objectives set forth by Congress when SMCRA was enacted--including 
protecting public health and safety, enhancing the environment, 
providing employment, and adding to the economies of communities 
impacted by past coal mining.
    As we work to address the remaining inventory of abandoned coal 
mine sites, the states are particularly concerned about the escalating 
cost of addressing these problems as they continue to go unattended due 
to insufficient appropriations from the AML Trust Fund for state 
programs. Unaddressed sites tend to get worse over time, thus 
increasing reclamation costs. Inflation exacerbates these costs. The 
longer the reclamation is postponed, the less reclamation will be 
accomplished. In addition, the states are finding new high priority 
problems each year, especially as we see many of our urban areas grow 
closer to what were formerly rural abandoned mine sites. New sites also 
continually manifest themselves due to time and weather. For instance, 
new mine subsidence events and landslides will develop and threaten 
homes, highways and the health and safety of coalfield residents. This 
underscores the need for constant vigilance to protect our citizens. In 
addition, as states certify that their abandoned coal mine problems 
have been corrected under SMCRA, they are authorized to address the 
myriad health and safety problems that attend abandoned noncoal mines. 
In the end, the real cost of addressing high priority coal AML problems 
likely exceeds $6 billion. The cost of cleaning up all coal related AML 
problems, including acid mine drainage, could be 5 to 10 times this 
amount and far exceeds available monies. Estimates for cleaning up 
abandoned noncoal sites are in the billions of dollars.
    In my home State of Pennsylvania, Mr. Chairman, over 200 years of 
mining in Pennsylvania left a legacy of over 200,000 acres of abandoned 
unreclaimed mine lands (Pennsylvania's Abandoned Mine Reclamation Plan, 
1983). These abandoned sites include open pits (Attachment 1), some of 
which are water filled pits (Attachment 2), spoil piles (Attachment 3), 
waste coal piles, mine openings and subsided surface areas.
    Many of the abandoned sites discharge polluted water (Attachment 
4). The mine drainage discharges range from alkaline water containing 
iron to heavily polluted acid discharges containing iron, aluminum, 
manganese and sulfates. The volume of pollution discharged varies. Some 
discharges are small seeps (Attachment 5) while others are large 
underground mine tunnels. One such tunnel discharges 40,000 gallons per 
minute (Attachment 6, Jeddo Mine Drainage Tunnel). According to an EPA 
Region III list from 1995 there were 4,485.55 miles of streams affected 
by mine drainage in Pennsylvania, Maryland, Virginia and West Virginia 
(Attachment 7). Three thousand one hundred and fifty eight miles were 
in Pennsylvania. These discharges have a significant impact on 
Pennsylvania's streams and rivers (Attachment 8).
    Pennsylvania began addressing abandoned mine land problems in the 
1940s. A more comprehensive and systematic approach to address these 
problems began in 1968 with the enactment of the Land and Water 
Conservation and Reclamation Act. After years of government effort and 
changes in state and federal law that imposed liability on a mine 
operator or anyone who remined or affected an abandoned discharge, it 
became clear that without help from other parties, government efforts 
would take many decades and billions of dollars to clean up all of the 
problems. Additional options were needed.
    Upon examining the issue, Pennsylvania found that operators were 
obtaining permits for previously abandoned sites, and, using modern 
equipment, they were mining the coal that previously had not been 
economically or technologically feasible to remove. These abandoned 
mine lands were being remined and reclaimed in accordance with modern 
standards and laws. However, such remining and reclamation was not 
occurring on sites that contained mine drainage discharges.
    Citizen, watershed, and environmental groups were also working to 
address some of the problems in their geographical areas. When 
Pennsylvania officials tried to leverage the state's limited resources 
to accomplish more reclamation by working with these groups, we met 
significant resistance regarding sites that had existing pollutional 
mine drainage.
    Mine operators and many citizen groups would not reclaim sites that 
had pollutional mine drainage discharges because if they reaffected the 
site they could be held liable under state and federal law to 
permanently treat the discharge. They could incur this liability even 
though they had not created the discharge and even if their remining or 
reclamation improved the quality of the discharge.
    With the advances made in science, technology, and our 
understanding of mine drainage, we in the Pennsylvania mining program 
knew many abandoned discharges could be eliminated or improved at 
little or no cost to the Commonwealth if we could address the potential 
for personal liability.
    In Pennsylvania we took two different approaches to limit the 
potential liability under state law. First, for remining and 
reclamation of abandoned mine sites with preexisting discharges we 
worked to change the mining laws to limit a mine operator's potential 
liability. Federal regulations contain similar remining provisions. 
Several years later incentives to encourage remining and reclamation 
were also enacted. Second, Pennsylvania enacted a new law to provide 
protections and immunities to those people who were not legally liable 
but who voluntarily undertook the reclamation of abandoned mine lands 
or abatement of mine drainage. This new law is called the Environmental 
Good Samaritan Act. Pennsylvania Good Samaritans are still exposed to 
potential liability under federal law for their good deeds. We also 
developed a way to make the coal waste pay for reclamation.
REMINING
    Under the changes made to the coal mining laws for remining, an 
operator gathers data on the quality and quantity of the preexisting 
pollutional discharge to establish a baseline of the pollutants being 
discharged. The operator must demonstrate in its mining permit 
application, and the Pennsylvania Department of Environmental 
Protection must find, that the remining and reclamation of the site is 
likely to improve or eliminate the preexisting discharge in order for 
the permit to be issued. These permitting decisions are made using the 
Best Professional Judgment Analysis in accordance with the Clean Water 
Act. If the remining and reclamation is successful, then the mine 
operator is not held responsible to treat that portion of the 
preexisting discharge that remains. If the discharge is made worse, 
then the operator must treat the discharge to the point of the 
previously established baseline of pollutants.
    Pennsylvania's remining program has been very successful. In a 
2000/2001 study of 112 abandoned surface mines containing 233 
preexisting discharges that were remined and reclaimed, 48 discharges 
were eliminated, 61 discharges were improved, 122 showed no significant 
improvement, and 2 were degraded. In terms of pollutant load 
reductions, the net acid load was reduced by 15,916 pounds per day or 
2,900 tons per year. The net iron load was reduced by 518 pounds per 
day or 95 tons per year. The net manganese load was reduced by 31 
pounds per day or 5.6 tons per year. Aluminum was reduced by 303 pounds 
per day or 55 tons per year. The sulfates being discharged to the 
streams were reduced by 13,175 pounds per day or 2,400 tons per year. 
Approximately 140 miles of streams were improved. The pollutant load 
reductions were due to reductions in the flow and concentrations. (The 
report can be found at pages 166-170, volume 312 of Transactions 2002 
published by the Society for Mining, Metallurgy, and Exploration, Inc.) 
If these materials were to have been removed through treatment, it is 
estimated it would have cost the government at least $3,000,000 per 
year, every year. (This number does not include the costs of 
constructing the treatment systems.) These cost savings do not include 
what it would have cost Pennsylvania to reclaim these 112 sites. These 
environmental improvements occurred at no cost to the government or 
taxpayers because the operator's potential liability was limited and 
the operators were able to recover the coal that remained on the site. 
In addition, the operators paid a reclamation fee of 35 cents per ton 
of coal mined, reclaimed the land in accordance with modern standards, 
and made a profit.
    The benefits of remining are not limited to water quality 
improvements. Significant amounts of Pennsylvania's abandoned lands 
have been reclaimed at a significant savings to the government. For 
example, from 1995 through 2005, 465 projects reclaimed 20,100 acres 
and eliminated 139.68 miles of highwall. Abandoned waste coal piles 
were eliminated (Attachments 9 and 10--before and after), abandoned 
pits were filled (Attachment 11), and lands were restored to a variety 
of productive uses, including wildlife habitat (Attachment 12). The 
estimated value of this reclamation is $1,135,695,950--money the state 
and federal government did not have to spend to reclaim these abandoned 
mine lands.
III. ENVIRONMENTAL GOOD SAMARITAN ACT
    A second approach undertaken to encourage reclamation of abandoned 
mine lands and treatment or abatement of abandoned discharges occurred 
in 1999 when Pennsylvania's General Assembly enacted the Environmental 
Good Samaritan Act, Title 27 Pennsylvania Consolidated Statutes 
Annotated Sections 8101-8114. The purpose of the Good Samaritan Act was 
to encourage volunteers to improve land and water adversely affected by 
mining or oil and gas extraction by limiting the potential liability. 
Prior to the Good Samaritan Act, anyone who voluntarily reclaimed 
abandoned lands or treated water pollution for which they were not 
liable could be held responsible for treating the residual pollution.
    Projects must meet certain criteria to be covered by the Good 
Samaritan Act. The project must be reviewed and approved by 
Pennsylvania's Department of Environmental Protection. The proposed 
project must restore mineral extraction lands that have been abandoned 
or not completely reclaimed, or it must be a water pollution abatement 
project that will treat or stop water pollution coming from abandoned 
mine lands or abandoned oil or gas wells.
    The law contains protections for landowners and for the people who 
do the work.
    Pennsylvania's Environmental Good Samaritan Act provides that a 
landowner who provides access to the land without charge or 
compensation to allow a reclamation or water pollution abatement 
project is eligible for protection. The Good Samaritan Act also 
provides that a person, corporation, nonprofit organization, or 
government entity that participates in a Good Samaritan project is 
eligible for protection if they:
      Provide equipment, materials or services for the project 
at cost or less than cost.
      Are not legally liable for the land or water pollution 
associated with past mineral extraction.
      Were not ordered by the state or federal government to do 
the work.
      Are not performing the work under a contract for profit, 
such as a competitively bid reclamation contract.
      Are not the surety that issued the bond for the site.
    Landowners who provide free access to the project area are not 
responsible for:
      Injury or damage to a person who is restoring the land or 
treating the water while the person is on the project area.
      Injury or damage to someone else that is caused by the 
people restoring the land or treating the water.
      Any pollution caused by the project.
      The operation and maintenance of any water pollution 
treatment facility constructed on the land, unless the landowner 
damages or destroys the facility or refuses to allow the facility to be 
operated or repaired.
    Landowners are not protected from liability if they:
      Cause injury or damage through the landowner's acts that 
are reckless, or that constitute gross negligence or willful 
misconduct.
      Charge a fee or receive compensation for access to the 
land.
      Violate the law.
      Fail to warn those working on the project of any hidden 
dangerous conditions of which they are aware within the project area.
    Landowners are also not protected if adjacent or downstream 
landowners are damaged by the project and written or public notice of 
the project was not provided.
    People who participate in a Good Samaritan project are not 
responsible for:
      Injury or damage that occurs during the work on the 
project.
      Pollution coming from the water treatment facilities.
      Operation and maintenance of the water treatment 
facilities.
    Good Samaritan project participants are not protected if they:
      Cause increased pollution by activities that are 
unrelated to work on an approved project.
      Cause injury or damage through acts that are reckless, 
constitute gross negligence or willful misconduct.
      Violate the law.
    Participants are also not protected if adjacent or downstream 
landowners are damaged by the project and written or public notice of 
that project was not provided.
    In addition to being crafted to address potential legal liabilities 
that deter Good Samaritans from acting, Pennsylvania's Environmental 
Good Samaritan Act was also crafted to address potential financial 
hurdles that could impede a Good Samaritan project. A landowner, 
contractor, or materialman who desires to profit from the efforts of 
the volunteers can do so. People who profit from Good Samaritans are 
not eligible for the immunities and protections available to the 
Environmental Good Samaritans. This approach was taken to encourage 
more people to provide their goods and services as economically as 
possible to allow Good Samaritans to accomplish more with their 
resources.
    Pennsylvanians have undertaken 34 Good Samaritan projects. 
Participants include local governments, individuals, watershed 
associations, corporations, municipal authorities and conservancies. 
The status of the projects range from ``very successful at removing 
metals from the water'' to ``not yet started.'' Some projects are 
simple low maintenance treatment systems. Other projects are large 
complex projects. A project in Vintondale, Pennsylvania, transformed an 
abandoned mine into a park that treats acid mine drainage, celebrates 
the coal mining heritage, provides recreation facilities for 
Vintondale's residents and serves to heighten public awareness and 
educate people on treating mine drainage.
MINERAL RECOVERY RECLAMATION CONTRACTS
    Pennsylvania has thousands of small abandoned coal waste sites. 
Remining was not occurring on small abandoned coal waste sites due to 
the low economic value of the waste coal, the cost of obtaining a 
mining permit, and the potential liability if a discharge was present. 
These sites were also a low priority under the SMCRA ranking system and 
were likely to never be funded for government cleanup.
    In 1992 Pennsylvania implemented a program where a reclamation 
contract is issued to reclaim abandoned waste coal sites. This program 
became part of Pennsylvania's federally approved SMCRA Title IV 
Reclamation Plan and includes safeguards to prevent misuse. The 
contractor is allowed to recover coal from the waste that is necessary 
to be removed in order to reclaim the site. The value of the recovered 
coal is used to pay for the cost of the reclamation. As of December 21, 
2005, 63 contracts have been completed reclaiming 812.9 acres. This 
reclamation is valued at $4,603,771; money the government did not 
spend. There are 54 other reclamation contracts underway.
V. RECENT LEGISLATION
    During the 109th Congress, several bills have been introduced 
addressing the cleanup of inactive and abandoned mines. These include 
H.R. 5404 (and its companion in the Senate, S. 2780), H.R. 1266, and S. 
1848. Each of these bills offers various approaches to ``Good 
Samaritan'' voluntary remediation efforts and the current disincentives 
in the Clean Water Act that inhibit those cleanups. While each of these 
bills provides a solid framework on which to build an effective Good 
Samaritan program, we have several recommendations, perspectives and/or 
concerns that we offer for your consideration:
      There are myriad reasons why Good Samaritan legislation 
is needed, but perhaps the most important is the potential for 
incurring liability under the Clean Water Act and CERCLA. These 
liabilities deter motivated, well-intentioned volunteers from 
undertaking projects to clean up or improve abandoned sites, thereby 
prolonging the harm to the environment and to the health and welfare of 
our citizens. These impacts also have economic impacts that are felt 
nationwide. In addition, the universe of abandoned mine lands is so 
large and the existing governmental resources so limited that without 
the assistance of Good Samaritan volunteers, it will be impossible to 
clean up all of these lands. In this regard, it makes sense to consider 
expanding the protection from potential liability beyond the Clean 
Water Act and CERCLA to include other laws such as the Toxic Substances 
Control Act, the Safe Drinking Water Act, the National Environmental 
Policy Act, the Clean Air Act, and the Uranium Mill Tailings Radiation 
Control Act.
      In accordance with the principles of state primacy 
contained in laws such as SMCRA and the Clean Water Act, we believe it 
is essential that Good Samaritan programs be administered by state 
regulatory authorities (or federal agencies where a state chooses not 
to administer the law), as the states best understand the complexities 
associated with abandoned mine lands within their borders, including 
which sites can be improved and how to accomplish the improvement. 
States also tend to have a better working relationship and 
understanding of potential Good Samaritans. Given the current structure 
of laws like SMCRA and the Clean Water Act, we believe that the states 
are in the best position to administer Good Samaritan programs with 
appropriate oversight by federal agencies such as EPA and OSM
      There is merit to extending Good Samaritan protection to 
abandoned coal, as well as hard rock, sites. The Western Governors 
Association has taken the position that the proposed definition of 
``abandoned or inactive mined lands'' could be drafted to include coal 
sites eligible for reclamation or drainage treatment expenditures under 
SMCRA. We agree with this assessment. Also, to the extent that Good 
Samaritan permits are not required by states who are certified under 
Title IV of SMCRA when performing hard rock AML remediation, this same 
protection should be afforded to states performing coal AML work. 
Furthermore, from a political support perspective, extending Good 
Samaritan protections to abandoned coal mines would likely enlist the 
support of more eastern and mid-continent states for the legislation.
      Some have suggested that provisions addressing remining 
of abandoned mine sites should be included in the legislation. Our 
position is that these two matters should not be connected. They have 
somewhat different goals. As an example, Pennsylvania allows those who 
are not legally liable for the reclamation to engage in remining. Sites 
that have a preexisting discharge can only be remined if the applicant 
demonstrates and the state finds that the remining will improve or 
eliminate the discharge. If the remining degrades the preexisting 
discharge, the mine operator is responsible to treat the resulting 
pollution. Remining of abandoned mine land that does not contain 
preexisting mine drainage is allowed, provided the operator reclaims 
the site to modern standards. To the extent that additional incentives 
are considered as part of Good Samaritan legislation, we suggest 
including technical assistance and federal funding for these projects.
      Good Samaritan legislation should also include provisions 
that allow for the minerals contained in the waste on the abandoned 
mine land to be recovered as part of the reclamation. Allowing recovery 
of materials from the waste can help offset or totally pay for the 
reclamation. However, the mineral recovery must be secondary to the 
purpose of reclaiming the site. Appropriate safeguards must be provided 
in the legislation to ensure the purpose of the work is to reclaim the 
site and not to conduct mining. New mining or remining should not be a 
part of Good Samaritan legislation.
      Good Samaritan protections should be extended to both 
public and private lands. The pollution problem knows no such 
boundaries and must be addressed wherever it occurs. The environment 
and public health and safety all benefit by cleanup of abandoned mine 
lands, whether public or private. We also believe the protections 
should extend beyond federal lands so as to allow nationwide 
application.
      With respect to applicable environmental standards for 
Good Samaritan projects, we believe it is absolutely critical that the 
legislation include flexible standards, based on a determination by the 
state or federal regulatory authority that the Good Samaritan efforts 
will result in environmental improvement. Some abandoned mine problems 
are so intractable that it is not possible with today's technology to 
achieve ``total cleanup''. These types of cleanups could also be cost 
prohibitive. We know that in many circumstances some cleanup can result 
in significant environmental improvement. Forswearing that improvement 
because total cleanup cannot be achieved is poor public policy and 
shortsighted. We also know that, in some circumstances, even where 
total cleanup is technically possible, at some juncture the cleanup 
reaches a point of diminishing returns and the money would be better 
spent on cleaning up other sites. In the end, some cleanup is often 
better than none at all.
      Finally, it has been Pennsylvania's experience that it is 
important that innocent landowners be covered for the Good Samaritan 
project activities. Some landowners will not cooperate if they are not 
protected.
VI. CONCLUSION
    While Pennsylvania's Good Samaritan Act has been successful in 
helping to engage local residents in restoring and assisting in the 
restoration of their environment, there are concerns. First, the 
Federal Clean Water Act citizen suit provision still poses a potential 
liability to the Good Samaritans. Recent developments portend actions 
by some who hold a strict, literal view of the National Pollutant 
Discharge Elimination System (NPDES) permitting requirements and of the 
Total Maximum Daily Load requirements. Without a Federal Good Samaritan 
Act or an amendment to the CWA providing that Good Samaritan projects 
and abandoned mining discharges are not point sources and are not 
subject to NPDES permitting requirements, the potential good work of 
volunteers in Pennsylvania and of others throughout the country are at 
risk. People who undertake projects that benefit the environment and 
America could be held personally liable for making things better 
because they did not make them perfect.
    Mr. Chairman, our experiences in Pennsylvania with Good Samaritan 
cleanups and remining cleanups is instructive for others who are 
struggling to find effective mechanisms for addressing abandoned mine 
sites, be they coal or noncoal. The opportunities are there. The 
country needs Congress to enact Good Samaritan legislation to make the 
opportunities a reality. Through the Interstate Mining Compact 
Commission, we have worked with other organizations to address this 
critical matter. We look forward to future opportunities to work 
together. We also welcome the opportunity to work with this 
Subcommittee, Mr. Chairman, to address the legal and legislative 
barriers that stand in the way of meaningful reclamation of abandoned 
mines throughout the country.
    Thank you for the opportunity of appearing before you today. I 
would be happy to answer questions you may have or to provide follow up 
answers at a later time.
                                 ______
                                 
    [The response to questions submitted for the record by Mr. 
Pizarchik, follows:]

Response to questions submitted for the record by Joseph G. Pizarchik, 
    Director of the Bureau of Mining and Reclamation, Pennsylvania 
                 Department of Environmental Protection

Questions from Mr. Gibbons:
    H.R. 5404, the ``Good Samaritan Clean Watershed Act,'' allows for 
recycling of historic waste piles if directly related to the cleanup of 
the AML site. The proposed legislation does not allow for the 
extraction of newly identified mineral resources under a ``good 
Samaritan permit.''
    The National Mining Association and the Northwest Mining 
Association have both stated that the mining industry would not use a 
``good Samaritan permit'' to access newly identified mineral resources 
any company interested in exploring for and developing new resources 
would be required to go through a comprehensive mine permitting 
process.
    They have also both testified that removal and reprocessing of 
waste material, tailings and mineralized stockpiles could play an 
important role in addressing the problems associated with acid rock 
drainage and heavy metal contamination of streams and lakes. In 
addition a private party or other entity could help defray the costs of 
remediation with any metals recovered. These statements are not 
inconsistent with other witness testimony.
    However it seems that there are some Members and others that are 
still concerned that Industry or others will try and take advantage of 
a ``good Samaritan permit'' to access newly identified mineral 
resources without going through a comprehensive mine permitting 
process. It seems that some of the concern is a result of people using 
different terms to describe the same exercise or concept.
    Please define the following terms in the context of a ``good 
Samaritan permit'':
      ``reprocessing of waste, ore or tailings''
      ``reclamation mining''
      ``recycling of waste, ore and tailings''
      ``incidental reprocessing of tailings or waste rock 
piles''
      ``remining''
    Answer: Copies of Pennsylvania's Good Samaritan law and 
accompanying guidelines were submitted for the record at the July 13, 
2006 hearing. While the specific terms identified in this question are 
not the same as those under Pennsylvania's law, there are some 
similarities and the definitions that we use are set forth in both the 
law and the guidelines. What the question seems primarily to be getting 
at, however, is the potential for remining under Good Samaritan laws. 
Neither Pennsylvania nor the Interstate Mining Compact Commission 
advocates including or addressing remining under Good Samaritan laws. 
These two types of activities should be treated and handled separately 
to avoid the potential for abuse of the Good Samaritan protections. 
While there is merit to remining activity that will eliminate or reduce 
pollution and reclaim the land, especially to the extent it allows us 
to address AML sites without expense to the taxpayer, there should be a 
separate and distinct regulatory program for this mining activity, as I 
lay out in my testimony.
Questions from Mr. Grijalva:
    1.  Mr. Pizarchik, as you stated, over 200 years of mining in 
Pennsylvania left over 200,000 acres of abandoned mine lands and 
thousands of miles of streams affected by mine drainage. Yet, as Dr. 
Brown outlined in his written statement, and you also explained, the 
State of Pennsylvania passed its own Good Sam law in 1999. Under this 
legislation, as long as you don't make the problem worse, you will be 
shielded from liability under the Clean Water Act. All work must be 
conducted with the guidance and approval of the Pennsylvania Department 
of Environmental Protection.

       At the same time, then-Pennsylvania Governor Tom Ridge signed 
the Growing Greener legislation, which provided $650 million from the 
state's general funds over five years to clean up critical 
environmental problems, including acid mine drainage from abandoned 
coal mines.

       As a result, Pennsylvania has answered the question on Clean 
Water Act liability, provided more than a half-billion dollars of 
funding for remediation projects, and encouraged community 
participation in cleanups on a wide scale.

       And yet you are here to today advocating a broader Good Sam 
program that would exempt coal mines from the Clean Water Act and 
Superfund. With you record of success, why do States need this extra 
program?
    Answer: The sheer magnitude of the abandoned mine land and acid 
mine drainage problem in Pennsylvania and Pennsylvania's record of 
success addressing the problem is the best argument for why states, and 
the country, need a Good Samaritan program that includes coal.
    First, over the past 12 years in Pennsylvania 222 acid mine 
drainage projects for several hundred abandoned coal mine discharges 
have been funded with Growing Greener money and other funds. These 
projects cost in excess of $60 million. The projects that have been 
completed treat an average of 36 billion gallons per year of mine 
drainage and remove thousands of tons per year of iron, manganese, 
aluminum and acidity. Governor Ed Rendell has signed Growing Greener II 
legislation that is providing $230 million over five years for the 
remediation of environmental problems and a minimum of $60 million is 
to be used for abandoned mine lands. Notwithstanding these efforts, 
there are many more abandoned, acid mine drainage discharges that need 
to be addressed. The problems that took over 200 years to create could 
not be addressed in just the last several years.
    Second, Pennsylvania is the only state that has a Good Samaritan 
law. All of the states with abandoned coal mines and acid mine drainage 
would be helped by federal Good Samaritan legislation that includes 
coal. Including coal would eliminate an impediment to voluntary 
remediation and would protect those Good Samaritans who undertook the 
clean up of these problems.
    Finally, even though Pennsylvania has a Good Samaritan law, 
Pennsylvania also needs federal Good Samaritan legislation to include 
coal. Congressional help is needed because under the supremacy clause 
of the United States Constitution Pennsylvania's Good Samaritan law 
cannot change the liability provisions of any federal law. 
Consequently, Pennsylvania's Good Samaritans are exposed to potential 
liability under the federal Clean Water Act. This potential federal 
liability has prevented some Good Samaritans from remediating acid mine 
drainage in Pennsylvania.
    The coal abandoned mine land and acid mine drainage problem in 
Pennsylvania, as in some other states, is so large that there is more 
than enough work for the government, citizens and the mining industry. 
Even with the money Pennsylvania would receive under the most 
comprehensive bill to reauthorize the Title IV reclamation fee of the 
Surface Mining Control and Reclamation Act, Pennsylvania would only be 
able to address the most dangerous abandoned coal mines. There would 
not be adequate funds to address all of the abandoned acid mine 
discharges. I cannot think of a reason why Congress would not want to 
empower Americans to help themselves and this country. A federal Good 
Samaritan law that includes coal would do that and would remove a 
barrier to American ingenuity.
    2.  The National Mining Association and the Northwest Mining 
Association testified that the Good Samaritan proposal should be 
expanded to include other environmental laws, not just Clean Water and 
Superfund. What is your organization's position on this recommendation?
    Answer: While there may be merit in extending Good Samaritan 
protections beyond the Clean Water Act and CERCLA to include other laws 
such as the Safe Drinking Water Act, the Toxic Substances Control Act, 
the National Environmental Policy Act, the Clean Air Act and the 
Uranium Mill Tailings Radiation Control Act, we understand that there 
is significant concern from some that to do so would be ``painting with 
too broad of a brush.'' We therefore support restricting Good Samaritan 
protections to just the Clean Water Act and CERCLA at this point in 
time and revisiting the question of further extensions of that 
protection in the future following several years of experience with the 
more limited protections.
    3.  The National Mining Association and the Northwest Mining 
Association testified that the Good Samaritan proposal must allow 
mining companies to remediate abandoned mine sites. What is your 
organization's position on this recommendation?
    Answer: As long as the mining company seeking to remediate the site 
is not legally liable for the land reclamation or water pollution 
associated with past mineral extraction at the site, the mining company 
should enjoy the Good Samaritan protections. Mining companies can be an 
important part of the solution. Some mining companies have been 
important contributors to addressing abandoned mine problems in 
Pennsylvania. If we do not expand the universe of potential parties who 
have an interest in remediating these sites, the work will never be 
completed.
    4.  In her statement on behalf of the Northwest Mining Association, 
Ms. Skaer has included a list of mine sites in Nevada that she states 
the industry was initially interested in reclaiming as ``Good 
Samaritans'' (middle of page 3). However, she goes on, ``In each case, 
the potential cradle-to-grave liability exposure under federal 
environmental laws prevented the mining industry from using its 
experience, expertise, technology, equipment and capital to remediate 
and reclaim the AML sites.''

       It has been brought to our attention that a number of those 
mines are also are on a list of bankruptcies included in the appendix 
to a state-sponsored report from 2003: ``Nevada Mining Bonding Task 
Force Report.''

       These mines all went out of business in 1998-1999. They are not, 
as is so often asserted, old historic mines for which no owner or 
responsible party can be located.

       The mining industry argues that ``Good Sam'' legislation is 
needed due to past, not current, mining practices. However, at least in 
Nevada, this does not appear to be true.

       To what degree are abandoned mines old historic mines and how 
many were created within the last decade?

       Please explain why, in regard to modern abandoned mines, the 
reclamation bonds were not adequate to cover the cost of cleaning up 
the mines sites when the operator goes into bankruptcy.

                          List of Nevada Mines

    Easy Junior, Alta Gold, bankruptcy 1999
    Elder Creek, Alta Gold, bankruptcy 1999
    Golden Butte, Alta Gold, bankruptcy 1999
    Ward, Alta Gold, bankruptcy 1999
    Mt. Hamilton, Rea Gold, bankruptcy 1998
    Griffon, Alta Gold, bankruptcy 1999
    Aurora Partnership, Aurora Partnership, bankruptcy 1999
    Kinsley, Alta Gold, bankruptcy 1999
    Gold Bar, Atlas Gold Mining Inc, bankruptcy 1999

Full  report and appendix available:  http://www.unr.edu/mines/mlc/
presentations_pub/NV_bonding.asp

    Answer: We do not have access to data or information that would 
allow us to answer the first part of this question related to when 
abandoned mines were created. In Pennsylvania, the noncoal mines that 
would qualify for Good Samaritan protections under the pending bills 
involve mining that occurred prior to 1972. Under the federal Surface 
Mining Control and Reclamation Act, abandoned coal mines are defined as 
those where mining occurred and terminated prior to the enactment of 
SMCRA (August 3, 1977). While it is our view that coal should be 
included in the Good Samaritan bill, we are not seeking coverage for 
coal mines abandoned after August 3, 1977.
    We also do not have access to data or information to enable us to 
answer the question regarding the adequacy of various states' mine 
reclamation bonds. Like other state regulatory authorities, we do our 
best to insure that the amount of bond is adequate to complete 
reclamation. However, unlike coal mining, there is no national law 
requiring the bond be adequate to complete reclamation of other types 
of mines. The adequacy of the bond can be affected by statutory limits, 
unexpected changes in the mining operation, bond calculation guidelines 
that were established before good data was available, or other factors. 
In these situations, the state will address the most critical 
reclamation needs with the forfeited bond moneys, but there may be 
issues that remain, particularly long-term water treatment issues 
associated with acid mine drainage or similar challenges. In these 
cases, where a Good Samaritan comes along at a later time and the 
mining company causing the damage is clearly out of the picture, the 
protections offered under Good Samaritan legislation are essential.
                                 ______
                                 
    Mr. Gibbons. I also want to thank you for bringing the 
photographs that you did of the areas that you have talked 
about. As we all say, a picture is worth 1,000 words. You saved 
yourself a lot of talking before the committee by providing 
these photographs.
    Mr. Pizarchik. Thank you.
    Mr. Gibbons. I turn now to Ms. Joan Card, Director of 
Arizona Water Quality and a member of the Western Governors' 
Association. Ms. Card, welcome, the floor is yours.
    Ms. Card, is your mike on?
    Ms. Card. My apologies, now it's on.

 STATEMENT OF JOAN CARD, DIRECTOR OF ARIZONA'S WATER QUALITY, 
                 WESTERN GOVERNORS' ASSOCIATION

    Ms. Card. Mr. Chairman, Members of the committee and 
Congressman Udall, thank you.
    As I said, this issue is of great importance to Western 
States, abandoned and inactive mines and the barriers that 
exist to the cleanup of these mines. Abandoned and inactive 
mines are responsible for many of the greatest threats and 
impairments to water quality across the Western United States. 
Thousands of stream miles are severely impacted by drainage and 
runoff from these mines.
    In view of the impacts on water quality caused by these 
mines and the difficulty in identifying responsible parties to 
remediate the sites, Western States are very interested in 
undertaking and encouraging voluntary Good Samaritan 
remediation initiatives; that is, cleanup efforts by States or 
other third parties who are not legally responsible for the 
existing conditions at the site. However, Good Samaritans 
currently are dissuaded from taking measures to clean up the 
mines due to an overwhelming disincentive in the Clean Water 
Act.
    There is currently no provision in the Clean Water Act that 
protects a Good Samaritan who attempts to improve the 
conditions at abandoned mine sites from becoming legally 
responsible for any continuing discharges from the mine land 
after completion of a cleanup project. The Western States have 
found that there would be a high degree of interest and 
willingness on the part of Federal, State and local agencies, 
volunteer organizations and private parties to work together 
toward solutions to the problems commonly found on inactive 
mine lands if an effective Good Samaritan provision were 
adopted. Consequently, for over a decade Western States have 
participated in and encouraged efforts to develop appropriate 
Good Samaritan legislation.
    Regarding a few of the hot-button issues that come up in 
the context of Good Samaritan legislation, first, the scope of 
the Good Samaritan definition, Western States believe that 
participation in Good Samaritan cleanup should not be limited 
solely to governmental entities. Also, the Western States 
believe the statutory provision should broadly exclude those 
with prior involvement at the abandoned or inactive mine site, 
and those with current or prior legal responsibility for 
discharges at the site. Also, it should assure that any 
nonremediation-related development or mining at a site is 
subject to normal Clean Water Act rules. And it should be 
narrowly enough conducted to minimize concerns over potential 
abuses of this type of discharge permit.
    Second, Western States support including authority to the 
EPA Administrator to delegate Good Samaritan permitting 
authority to the States.
    Third, the Good Samaritan proposal was developed initially 
with a focus principally on impacts from abandoned or inactive 
hard rock mines in the Western United States, and hard rock 
mine sites remain the priority to the Western States.
    Fourth, remining. Western States believe it is appropriate 
to allow limited incidental reprocessing of tailings or waste 
rock piles to take place during an approved Good Samaritan 
cleanup so long as the revenues which result from such 
reprocessing would go toward offsetting the total cost of 
cleaning up the site.
    The Western Governors commend Administrator Johnson and the 
EPA for their efforts in developing the Good Samaritan Clean 
Watershed Act. We strongly support these efforts and believe 
the bill represents a solid basis for moving forward.
    The Western Governors have consistently identified the Good 
Samaritan program as one of their highest priorities regarding 
water quality. And the Western States urge Congress to proceed 
with the enactment of a Good Samaritan program that will allow 
States and other parties to proceed on Good Samaritan cleanups 
in accordance with the principles I have just described.
    We look forward to working with the appropriate 
congressional committees and other interested parties to see 
Good Samaritan legislation enacted this year. As soon as a law 
is passed allowing Good Samaritan cleanups of abandoned or 
inactive mines, water quality in the West will begin to 
improve.
    Thank you. We also have some submissions for the record, 
Mr. Chairman.
    Mr. Gibbons. And without objection, they will be entered 
into the record, as well as your full and complete written 
testimony, Ms. Card. Thank you very much for your presence and 
your testimony here today.
    [The prepared statement of Ms. Card follows:]

   Statement of Joan Card, Director, Water Quality Division, Arizona 
     Department of Environmental Quality, on behalf of the Western 
      Governors' Association and the Western States Water Council

    Mr. Chairman, and members of the Subcommittee, thank you for the 
opportunity to appear before you today to discuss an issue of great 
importance to Western states' abandoned or inactive mines and the 
barriers that exist to the cleanup of these mines. Abandoned or 
inactive mines are responsible for many of the greatest threats and 
impairments to water quality across the Western United States. 
Thousands of stream miles are severely impacted by drainage and runoff 
from these mines, often for which a responsible party is unidentifiable 
or not economically viable.
    Regulatory approaches to address the environmental impacts of 
abandoned or inactive mines are often fraught with difficulties, 
starting with the challenge of identifying legally responsible and 
financially viable parties for particular impacted sites. Mine 
operators responsible for conditions at a site may be long gone. The 
land and mineral ownership patterns in mining districts are extremely 
complex and highly differentiated. The surface and mineral estates at 
mine sites are often severed and water rights may exist for mine 
drainage. It is not uncommon for there to be dozens of parties with 
partial ownership or operational histories associated with a given 
site.
    In view of the impacts on water quality caused by these abandoned 
mines and the difficulties in identifying responsible parties to 
remediate the sites, Western states are very interested in undertaking 
and encouraging voluntary ``Good Samaritan'' remediation initiatives, 
i.e., cleanup efforts by states or other third parties who are not 
legally responsible for the existing conditions at a site. However, 
``Good Samaritans'' currently are dissuaded from taking measures to 
clean up the mines due to an overwhelming disincentive in the Clean 
Water Act.
    To date, Environmental Protection Agency (EPA) policy and some case 
law have viewed abandoned or inactive mined land drainage and runoff as 
problems that must be addressed under the Clean Water Act Section 402 
National Pollutant Discharge Elimination system (NPDES) permit program. 
However, there is currently no provision in the Clean Water Act that 
protects a ``Good Samaritan'' who attempts to improve the conditions at 
these sites from becoming legally responsible for any continuing 
discharges from the mined land after completion of a cleanup project. 
This potential liability is an overwhelming disincentive to voluntary 
remedial activities to address the serious problems associated with 
inactive or abandoned mined lands.
    The Western states have found that there would be a high degree of 
interest and willingness on the part of federal, state and local 
agencies, volunteer organizations and private parties to work together 
toward solutions to the multi-faceted problems commonly found on 
inactive mined lands if an effective Good Samaritan provision were 
adopted. Consequently, for over a decade Western states have 
participated in and encourage--in cooperation with Congressional 
Offices, the environmental community, the mining industry, EPA, and 
other interested parties--efforts to develop appropriate Good Samaritan 
legislation. The Western Governors' Association and the Western States 
Water Council have focused on amending the Clean Water Act in order to 
eliminate the current disincentives that exist in the Act. However, the 
Western States believe that there could be benefits to addressing 
potential liabilities under CERCLA as well.
Responses to Major Issues
Scope of ``Good Samaritan'' or ``Remediating Party'' Definition
    The Western states believe that participation in Good Samaritan 
cleanups should not be limited solely to governmental entities, since 
there are many other persons likely willing to contribute to Good 
Samaritan cleanup initiatives. The states believe the statutory 
provisions should do the following:
    1)  broadly exclude those with prior involvement at the abandoned 
or inactive mine site;
    2)  broadly exclude those with current or prior legal 
responsibility for discharges at a site;
    3)  assure that any non-remediation-related development at a site 
is subject to the normal NPDES rules, rather than the Good Samaritan 
provision; and
    4)  be narrowly enough constructed to minimize fears over potential 
abuses of this type of discharge permit.
Delegation Authority
    The Western states support including authority to the EPA 
Administrator to delegate permitting authority to states. At a minimum, 
the program should be delegable to states where the remediating party 
is not a state government agency.
    If Good Samaritan permits can only be issued by the Administrator, 
it will be important to clarify the states' and tribal roles in this 
process when entities other than states act as remediating parties. The 
Western states believe the proposal should include a requirement that 
the Administrator only issue a permit with the concurrence of the 
applicable State or Indian tribe. By ``concurrence,'' the states mean 
that a permit shall not be issued or modified unless the EPA 
Administrator and the applicable State, and if appropriate, the 
applicable Indian Tribe, have agreed to all terms specified in the 
permit.
Standard for Cleanup
    An important issue that any Good Samaritan bill will need to 
address is the standard to which sites need be cleaned. The Western 
states believe only those Good Samaritan projects that will result in 
significant improvements should be approved, but recognize the 
difficulty in legislatively defining such terms as ``significant.'' A 
Good Samaritan clean up permit should be approved only if the 
remediation plan demonstrates with reasonable certainty that the 
actions will result in an improvement in water quality. Further, we 
believe Good Samaritans will have no reason to undertake the expense of 
an abandoned mine cleanup project unless they believe that meaningful 
water quality improvement will result.
    The analysis of a proposed project needs to occur at the front end 
of a project. Once there is agreement that a project is expected to 
result in water quality improvement, with no reasonable likelihood of 
resulting in water quality degradation, the Good Samaritan's 
responsibility must be defined as implementing the approved project 
rather than meeting specific numerical effluent limits or standards. 
The exception to this structure that the states agree upon is that if a 
Good Samaritan seeks early termination of a permit, meaning they will 
not fulfill the obligations of the permit, then they have to ensure 
that the conditions at the site are no worse than before they started 
the project.
Mining Site Eligibility
    The Good Samaritan proposal was developed initially with a focus 
principally on impacts from abandoned or inactive hardrock mines in the 
Western United States. However, the Western states recognize that there 
are also remaining challenges regarding the remediation of abandoned or 
inactive coal mines. Therefore, the Western states accept that the 
proposed definition of ``abandoned or inactive mined lands'' could be 
drafted to include coal sites eligible for reclamation or drainage 
abatement expenditures under the Surface Mining Control and Reclamation 
Act (SMCRA). However, to avoid interference with complex issues 
regarding the implementation of SMCRA, the definition should not 
include sites under Title V of SMCRA where mining has occurred 
subsequent to SMCRA's adoption. The Western Governors' Association 
would have concerns with efforts to allow Good Samaritan permits for 
lands regulated under Title V of SMCRA. The Western states advocate 
that any Good Samaritan bill include a provision exempting state AML 
programs certified under SMCRA from having to obtain a Clean Water 
Act--Good Samaritan permit. SMCRA-certified AML programs already 
receive liability protections, and the states want to ensure that these 
SMCRA protections are preserved.
Search for Parties with Existing Liabilities
    Western states agree that any Good Samaritan cleanup must include a 
summary of the results of a reasonable effort to identify parties whose 
past activities have affected discharges at the site. Additionally, 
Western states agree that the permitting authority should make a 
determination that no identifiable, financially viable, owner or 
operator exists before issuing a permit. Western states further agree 
that existing liabilities for mined lands should not be affected by the 
clean up.
Remining
    The Western states find that, while providing incentives for 
remining is an important topic that warrants further public discussion 
and analysis, the issue brings into play policy considerations and 
stakeholders that go well beyond those involved in Good Samaritan 
remediation issues. Aside from the stated opposition a remining 
provision would bring, it would also necessarily involve other statutes 
beyond the Clean Water Act and thus trigger other congressional 
committee jurisdictions, all of which would greatly complicate 
enactment of a Good Samaritan provision. Western states believe it is 
appropriate to allow limited incidental reprocessing of tailings or 
waste rock piles to take place during an approved Good Samaritan 
cleanup, so long as the revenues which result from such reprocessing 
would go toward offsetting the total costs of cleaning up the site.
Citizen Suit Enforcement
    The citizen suit enforcement tool under the Clean Water Act has 
proven to be a useful incentive to encourage permit compliance by point 
source dischargers subject to the NPDES program. From the outset of 
development of the Good Samaritan proposal, the Western states have 
believed that a different set of enforcement tools is warranted for 
Good Samaritan permittees. Other permittees are required to get Clean 
Water Act Section 402 permits because they are undertaking activities 
that cause pollution, and a policy decision has been made that a broad 
array of enforcement tools are appropriate to assure that these 
polluting activities are adequately controlled. A Good Samaritan is not 
a ``polluter,'' but rather an entity that voluntarily steps in to 
remediate pollution caused by others. In this case, sound public policy 
needs to be focused on creating incentives for the Good Samaritans' 
actions, not on aggressive enforcement that creates real or perceived 
risks to those that might otherwise undertake such projects. It is 
clear that the perceived risk of Clean Water Act citizen suit action is 
currently a major disincentive for such efforts.
Funding for Remediation
    Historically, Clean Water Act Section 319 funds for addressing 
nonpoint sources of pollution have been utilized for a number of 
cleanup projects at inactive and abandoned mines. To ensure that 
Section 319 funds will continue to be available for such cleanup 
projects, any Good Samaritan legislation should include a provision 
expressing that Section 319 funds may be used for approved Good 
Samaritan projects. Such provision would not be intended to change the 
current Section 319 allocation formula or a state's prioritization of 
projects under a state nonpoint source management program.
H.R. 5404, ``Good Samaritan Clean Watershed Act''
    The Western Governors commend Administrator Johnson and the U.S. 
Environmental Protection Agency for their efforts in developing H.R. 
5404, ``Good Samaritan Clean Watershed Act'' and its companion in the 
Senate, S. 2780. We strongly support these efforts, and believe the 
bill represents a solid basis for moving forward. There are a limited 
set of issues for which we would like clarification, but we are 
confident that these issues can be easily resolved. A description of 
the issues follows:
      Scope of Liability Protection--WGA supports allowing 
liability relief to Good Samaritans for both the Clean Water Act and 
CERCLA (as contained in the bill under the definition of 
``Environmental Laws''). However, we would like clarification of how 
the CERCLA liability relief would function under the bill.
      Federal Lands--WGA would like clarification regarding the 
extent to which Good Samaritan cleanups would be allowed on federal 
lands, and the potential role of federal agencies in Good Samaritan 
projects.
      Early Termination of a Permit--WGA would like 
clarification regarding the standards for cleanup in the event of early 
termination, e.g., ``no worse than before,'' and clarification of 
whether the permitting agency would have the authority to set such 
standards.
      Implementing Regulations--WGA would like clarification of 
whether EPA would be required to issue regulations before Good 
Samaritan permits could be issued.
Conclusion
    The Western Governors have consistently identified the Good 
Samaritan provision as one of their high priorities regarding water 
quality. The Western states urge Congress to proceed with the enactment 
of a Good Samaritan program that will allow states to proceed on Good 
Samaritan cleanups in accordance with the principles I have described. 
We urge Congress to avoid expanding the Good Samaritan proposal to 
include issues such as remining or a general fee on mining. The Western 
states are concerned that efforts to expand the scope of this program 
are likely to generate significant opposition that may further delay or 
frustrate the ability to get this needed and widely supported proposal 
enacted into law.
    The Western Governors' Association and the Western States Water 
Council commend you for this oversight hearing and for your interest in 
H.R. 5404, ``Good Samaritan Clean Watershed Act.'' We would welcome the 
opportunity to work with you to clarify a limited set of issues in that 
bill as outlined in this testimony. We look forward to working with the 
appropriate Congressional committees, Senator Salazar, Senator Allard--
the sponsors of S.1848, Representative Udall and Representative 
Beauprez--the sponsors of H.R.1266, the EPA, the mining industry, 
environmental groups and other interested parties to see Good Samaritan 
legislation enacted this year. As soon as a law is passed allowing Good 
Samaritan cleanups of abandoned or inactive mines, water quality in the 
West will begin to improve.
Attachments
      Examples of Abandoned or Inactive Mines which have been 
Assessed for Remediation in Western States
      WGA Policy Resolution 04-10 ``Cleaning Up Abandoned 
Mines''
                                 ______
                                 

                Examples of Abandoned or Inactive Mines 
       which have been Assessed for Remediation in Western States

    The following cleanups have been postponed due to potential NPDES 
liability.
California
Walker Mine Copper Mine, Plumas County
    Regional Board spent over 30 years unsuccessfully suing the mine 
owner to cleanup acid mine drainage discharge that sterilized a creek. 
Finally, the Board plugged mine shaft and accepted settlement from mine 
owner's estate. The Board remains liable for any point source discharge 
that may occur from the plug.
Buena Vista/Klau Mine Mercury Mine, San Luis Obispo County
    Central Coast Board has unsuccessfully tried to secure cleanup from 
mine owner for over 20 years. These mines are the source of 80 percent 
of mercury pollution in Nacimiento Reservoir, which is under a fishing 
advisory. U.S. EPA is willing to do cleanup on condition California 
takes over the long-term operation and maintenance. The state is 
unwilling to accept liability for NPDES discharges at site and so 
relieve the recalcitrant mine owner of responsibility. Cleanup may be 
delayed until potential state liability is resolved.
Mt. Diablo Mine Mercury Mine, Contra Costa County
    Owner discovered mine after spending entire savings to buy land for 
a residence. Mine pollution has sterilized a creek and caused a fishing 
advisory in a nearby reservoir. With liability protection, a government 
agency could do partial remediation to significantly reduce pollutant 
discharges from the site. Without liability protection it is likely no 
remediation will occur.
Stowell Mine, Keystone Mine, and Mammoth Mine, Shasta County
    In 1991, the Board secured $1 million from the State Cleanup 
Account to hire consultants to perform remedial work at those three 
mines. Although a responsible party eventually came forward to take 
remedial action, the Board decided to return the funds rather than 
apply them to mine cleanup because of liability concerns (brought on by 
the Penn Mine case.)
Balaklala and Shasta King Mines, Shasta County
    These mines discharge abandoned mine drainage to West Squaw Creek, 
a tributary to Shasta Lake. Impacts include elimination of aquatic life 
in the stream below the mines, frequent fish kills where the stream 
enters Shasta Lake and degradation of recreational/aesthetic uses in 
this part of the National Recreation Area. The owner, Alta Gold 
Company, has performed some remedial work but final site restoration is 
probably beyond their capability. There is a unique opportunity here 
for Alta Gold to sell the property to the public resource agencies for 
development of an off-road vehicle park with funds from the sale to be 
used for mine drainage control. This arrangement could provide 
substantial funds for problem solution but is presently not being 
actively pursued due to the liability issue.
Mammoth Mine, Shasta County
    This large abandoned copper mine discharges abandoned mine drainage 
to Little Backbone Creek and Shasta Lake. Impacts are similar to those 
previously described for the West Squaw Creek mines. The owner, Mining 
Remedial Recovery Company, has implemented a comprehensive mine sealing 
program but the results to date have been disappointing. Substantial 
modification of the sealing program or a new control strategy, such as 
collection and treatment, will be required to address the problem. The 
issue is further complicated by a lawsuit filed by the California Sport 
Fishing Protection Alliance. We believe that a cooperative effort at 
Mammoth Mine between the owners, resource protection groups, and the 
agencies would be more effective than lawsuits and enforcement orders.
Greenhorn Mine, Shasta County
    This acid mine west of Redding discharges abandoned mine drainage 
to Willow Creek which is a tributary to the Wiskeytown Lake National 
Recreation Area. The discharge impacts aquatic life and recreational 
uses in the area. There is no responsible owner capable of implementing 
a control program. A reclamation feasibility study has been prepared by 
the Department of Water Resources (under contract to Regional Board), 
but no work has been done. Water quality and beneficial use 
improvements could be achieved through a combination of surface 
drainage control and mine sealing.
Corona Mine and Abbott Mine, Lake County
    These two mercury mines would each benefit from actions to contain 
tailings and solid wastes and to divert surface waters. Staff estimates 
a cost of $1-2 million per mine.
Afterthought Mine, Shasta County
    Proposed actions at this mine include sealing the multiple portals, 
removing and covering the tailings pond, and rehabilitating the access 
road.
Bully Hill Mine, Shasta County
    Staff proposes solid waste containment and portal scaling at this 
site.
      S. 1787 would also support watershed cleanups. U.S. EPA 
is working on regulations to permit publicly owned sewage treatment 
works (POTWS) to cleanup pollution within a watershed as an alternative 
to removing pollutants that exist at very low levels in the POTWS' 
discharge. This will provide much greater removal of pollutants from 
watersheds and will help California comply with its mandate to 
implement Total Maximum Daily Load allocations. However, POTWS are not 
likely to cleanup abandoned mines under a watershed program unless they 
get some liability protection.
Colorado
St. Kevin Gulch, Lake County
    The St. Kevin Gulch project is located northwest of Leadville in 
the small perennial drainage known as St. Kevin Gulch. Mine drainage 
from the lower Griffin Tunnel flows as a series of springs from the 
waste rock pile approximately two miles above the confluence of St. 
Kevin Gulch and Tennessee Creek. The mine drainage has a pH of 2.6 to 
2.9 and has rendered St. Kevin Gulch virtually devoid on any aquatic 
life below the drainage, and has an adverse effect on trout 
reproduction in Tennessee Creek. The mine drainage is to be treated 
using a combination of an anoxic limestone drain and a sulfate reducing 
bioreactor (wetland). An interceptor trench has been completed to help 
site the treatment system. The project is in the final design state. 
Commitments for materials, labor, services, and cash were obtained from 
local individuals, Lake County, and the USGS. These commitments have at 
least partially been withdrawn and the project postponed because of 
concerns about assumption of liability.
McClelland Tunnel, Clear Creek County
    The McClelland Tunnel project is located along Interstate 70, one-
half mile southeast of the town of Dumont. The McClelland Tunnel drains 
approximately 15 gallons per minute of metal laden water into Clear 
Creek. The site also contains mine and mill waste along Clear Creek, a 
county road, and a State Highway. The Colorado School of Mines, 
Department of Transportation, Department of Public Health and 
Environment, Clear Creek County, and Coors have been collaborating with 
DMG on this project. The DMG's part of the project is to construct a 
small sulfate reducing bioreactor and a small aerobic wetland to treat 
the mine drainage. Final designs for the water treatment aspects of the 
project have been prepared and are ready to be bid. The project portion 
has been halted because of the concern of the State for incurring 
perpetual liability for maintaining the treatment system.
Perigo, Gilpin County
    The Perigo project is located approximately 6 miles north of 
Central City in a small perennial steam known as Gamble Gulch. The 
Perigo mine drains an average of 70 gallons per minute of pH 2.9-3.9 
metal laden water. Gamble Gulch below the mine drainage is virtually 
devoid of aquatic life for six miles before its confluence with South 
Boulder Creek. In 1989 and 1990, a small project was completed in this 
drainage to remove mine waste rock and mill tailings from the steam bed 
in two locations and construct a test treatment system at the Perigo 
mine. The proposed treatment techniques for this site include an 
aqueous lime injection system, settling pond and sulfate reducing 
bioreactor, which will be capable of treating all the mine drainage. 
The design for the project is completed but will not be bid out for 
construction because the state is concerned about incurring perpetual 
liability for maintaining the treatment system.
Pennsylvania Mine, Summit County
    The Pennsylvania Mine project is located just east of Keystone ski 
area on Peru Creek. Acidic metal laden water drains from caved mine 
workings making the creek biologically dead. Through a 319 grant from 
EPA, DMG has installed an innovative hydro-powered water treatment 
mechanism and a settling pond. The drainage water is diverted from the 
mine adit into a hydropower turbine, thus generating the power to drive 
a feeder that doses limestone to buffer the water. Once in the pond 
metal precipitate can settle out, and the effluent progresses through 
three wetland cells. Here, sulfate reducing bacteria and low oxygen 
waters remove much of the remaining acid and metal. The project is 80% 
complete with only a redesigned feeder mechanism necessary. The project 
is on hold pending resolution of NPDES liability issues.
Animas River Mine Sites, San Juan County
    The Division of Minerals and Geology in conjunction with the Animas 
River Stakeholders Group has investigated hundreds of mine sites in the 
vicinity of Silverton. The resulting feasibility reports for Mineral 
Creek, Cement Creek, and the Animas River have identified at least 32 
sites having a significant impact on the Animas River water quality. 
Treatment recommendations have been made but project work cannot 
proceed until the NPDES issue is resolved.
Frank Hough Mine, Hinsdale County
    The Frank Hough Mine is located in Palmetto Gulch near the top of 
Engineer Pass in Hinsdale County. The water quality of Palmetto Gulch 
and Henson Creek (the receiving stream) was investigated in 2005. The 
water quality analysis shows that runoff from the Frank Hough Mine is 
one of the main sources of heavy metals during spring snowmelt. During 
low-flow periods, the Frank Hough Mine drainage is a significant source 
of heavy metals. This site is at an elevation of 12,700 feet, which 
severely limits access and also limits the available treatment options.
Dinero Tunnel, Lake County
    Dinero Tunnel is located in Sugarloaf Gulch approximately 1/4 mile 
southwest of the Turquoise Lake Dam in Lake County. This is a 
cooperative project with the Lake Fork Watershed Group and BLM. The 
Dinero Tunnel drains approximately 40-45 gallons per minute of metal 
laden water into the Lake Fork of the Arkansas. Previous investigations 
had shown that there was a collapse damming the water approximately 400 
feet from the entrance. The collapse had formed a chimney that extended 
to the surface approximately 100 feet above. Work to remove the 
blockage in the adit to facilitate underground investigation of inflows 
was completed in the fall of 2004. Water behind the collapse was 
drained slowly and treated, and then the tunnel was rehabilitated. 
During the summer of 2005, the Dinero Tunnel Underground Phase II 
project installed compressed airline for oxygen ventilation in the 
tunnel and rehabilitated the tunnel up to 2000 feet. At 2000 feet the 
tunnel contains another cave-in, which extends laterally for at least 
150 feet. Treatment and hydrologic control methods are being considered 
at this site with NPDES issues also needing to be resolved.
Commodore Mine/Nelson Tunnel, Mineral County
    The Commodore Mine and Nelson Tunnel are located 1 mile north of 
Creede in Mineral County. This is a long-term cooperative project with 
the Willow Creek Reclamation Committee (WCRC) near Creede, Colorado. 
Nine open connections between the Commodore Mine and the Nelson Tunnel 
have been identified and rehabilitated. Approximately three miles of 
mine workings have been rehabilitated. Current work is to install the 
infrastructure to pump the flooded portion of the Nelson Tunnel. This 
is the area where historic documents have indicated that the majority 
of the flow enters the Nelson Tunnel workings. Currently, these 
workings are completely flooded and are inaccessible. The Nelson Tunnel 
drainage is the principal source of metals to Willow Creek. The 
feasibility of constructing hydrologic controls will be investigated. 
Hydrologic controls may reduce the flow from the Nelson Tunnel, but it 
is doubtful that all the acid mine drainage can be eliminated by 
construction of hydrologic controls and other treatment methods have 
significant liability concerns.
Solomon Mine, Mineral County
    The Solomon Mine is located in East Willow Creek approximately 2 
miles north of Creede in Mineral County. A sulfate reducing wetland was 
constructed to treat the mine drainage in 1991. The Solomon Mine 
drainage is the largest source of zinc and cadmium in East Willow 
Creek. The sulfate reducing wetland worked well for several years, but 
without maintenance is currently providing very little treatment. The 
Willow Creek Reclamation Committee is very interested in resurrecting 
the wetland system, but has been unable to reconstruct the system 
because of liability concerns.
Carbonero Mine, San Miguel County
    The Carbonero Mine is located in San Miguel County near the small 
mining town of Ophir. The Carbonero mine drains in excess of 1,000 
gallons per minute. Metals concentrations are relatively low, but 
because of the high flow the metal loading to the Howards Fork is very 
high. There has been considerable interest in the past to use the mine 
drainage to generate power because of the high flow rate and over 2,000 
feet of relief from the mine to the Howards Fork. Power generation can 
offset or partially offset the cost for treating the mine drainage 
should liability concerns be addressed.
Mary Murphy Mine, Chaffee County
    The Mary Murphy Mine is located near the small mining town of St. 
Elmo in Chaffee County. The Mary Murphy Mine drains metal laden water 
from two different portals. Underground water quality sampling has 
shown that over 70% of the metals in the mine drainage come from one 
inflow in the mine at the 1400 level. The purpose of this project is to 
determine if the main inflow source of water can be diverted inside the 
mine before it become contaminated. To date, all of the accessible mine 
workings have been investigated, and the contaminated water flow has 
been followed up to the 1000 level. Initial water sampling has 
indicated that the zinc level is as high at the 1000 level as at the 
1400 level. Currently, DMG is investigating the potential to freeze the 
upper mine workings. The first step in this process was to install air-
locks on the 2200 level and on the 1400 level. The 1100 level was 
opened and safeguarded to prevent access while allowing airflow. The 
temperatures are being monitored to see if the mine cools or warms as a 
result. If this natural ventilation of the upper levels does not work, 
consideration will be given to installing and running a fan during the 
winter months. Other treatment methods would be investigated if 
liability concerns could be addressed.
Montana
    The State of Montana has inventoried its abandoned non-coal mine 
sites. Thus far, Montana has found 245 abandoned mines which have the 
potential to impact surface waters because they are within 100 feet of 
a stream. Of these, 71 sites have discharging adits (mine entrances 
emitting acid mine drainage into the environment). 89 of 245 sites are 
already known to be degrading water quality. These 89 sites have caused 
downstream water quality samples to exceed at least one Clean Water Act 
parameter--either the Maximum Contaminant Limits or Aquatic Life 
Standards.
    Given recent developments in federal case law, Montana officials 
are gravely concerned that cleanup projects addressing abandoned mines 
which are known to be seriously degrading the state's water quality 
will be halted due to Clean Water Act liability concerns.
Nevada
Tybo Tailings Site, Nye County, Nevada
    The Tybo Tailings Site is located in the Tybo mining district in 
Nye County, Nevada. It is approximately 58 miles east of Tonopah on 
U.S. Highway 6 and thence 6.5 miles northwest on the Central Nevada 
Test Sites Base Camp access road. The site is located in the Hot Creek 
hydrographic basin. Tybo Creek flows from Tybo Canyon in the Hot Creek 
Range and then easterly into the Hot Creek Valley. The tailings are the 
result of mining activity, which began around 1866. Silver, lead, zinc, 
copper, mercury, and small amounts of gold were recovered. By 1877, 
Tybo was the second largest lead producing area in the United States 
after Eureka, Nevada. Production continued on an intermittent basis 
until around 1940. Some very minor production occurred in the 1950's 
and early 1960's. Total recorded production from the district is valued 
at over $9 million.
    The tailings impoundment is located just downstream from the mouth 
of Tybo Canyon. The actual impoundment is located in an ephemeral wash 
and is about 1,000 feet long and up to 600 feet wide (approximately 12 
acres total). The dam has been breached, allowing tailings to migrate 
down the creek for at least 6 miles. The tailings appear to be about 20 
feet thick at the dam. The tailings are highly acidic (surface water on 
the tailings has a pH of 1-3), have a strong sulfur smell, and are 
stained brown-orange to purple, red and black. Surface water has eroded 
channels into the tailings. All vegetation along the migration path 
from the impoundment is stressed or dead for at least 3 miles 
downstream.
    Preliminary studies have detected arsenic and lead range up to 
10,000 ppm, zinc up to 7,500 ppm, and copper up to 233 ppm. At this 
time, the State of Nevada has recommended evaluating groundwater use 
and the habitat of threatened and endangered species. Additional 
recommendations include measures to prevent wildlife from drinking 
surface water, and restricting site access by fencing and gating. NDOW 
has expressed concern about the effects on plants and wildlife and 
groundwater.
Rip Van Winkle Mine, Elko County, Nevada
    The Rip Van Winkle Mine site is located in the Merrimac mining 
district, Elko County, Nevada. The site is located at approximately 
7,000 feet above mean sea level on Lone Mountain in the Independence 
Mountains, and is situated in the Maggie Creek Area hydrographic basin, 
which flows into the Humboldt River near Elko, Nevada. The Rip Van 
Winkle Mine recorded first production in 1918. It was the only active 
producer in the district after 1949 with limited production of lead, 
zinc and silver through 1966.
    The mine site consists of shafts and underground workings, a mill, 
building foundations and several cabins, waste dumps and tailing 
impoundments. The tailings impoundments cover approximately 3 acres and 
contain acid-generating materials. Vegetation on the site is sparse and 
in the vicinity of the tailings, plants show signs of stress. Impacts 
to Humboldt River flows are unknown at present, but may be impacting 
endangered species.
Norse-Windfall Mill Site, Eureka County, Nevada
    The Norse-Windfall Mill Site is located 5 miles south of Eureka, 
Nevada. It is located in the Diamond Valley hydrographic basin in which 
perennial springs are prolific in the mountainous regions south of 
Eureka, with many flowing springs existing at the mill site. The 
Windfall Mine was discovered in 1908, and was operated intermittently 
for about 30 years as an underground operation with a cyanide vat leach 
facility. Around 1968, Idaho Mining Corp. acquired the property and 
mined the same ore body via open pit methods. Between 1975 and 1978 the 
Windfall Pit, and associated cyanide heap-leach piles, waste dumps, 
mill process building, office and laboratory were constructed. The last 
operator of the site was Norse Windfall Mines, Inc. The site has been 
abandoned since 1989 and little or no reclamation has occurred. In July 
1994, the Nevada Division of Environmental Protection conducted a 
compliance inspection of the site and noted that unmaintained process 
components and materials left scattered about the property may have the 
potential to cause environmental damage by degrading the waters of the 
state.
    Springs located within the site exceed the Nevada Water Quality 
Standards for arsenic, mercury, nickel, and cyanide. Within a 4-mile 
radius of the site, six municipal springs and one domestic well provide 
drinking water for Eureka. Water from the nearby springs are blended 
and pumped into 2 water tanks located just outside of Eureka. This 
water serves as the main water supply for the entire town.
South Dakota
    In the early 1990's, South Dakota completed an inventory of 
abandoned hardrock mines occurring in the Black Hills of western South 
Dakota in conjunction with the South Dakota School of Mines and 
Technology. Approximately 900 mines were identified in a four-county 
area (about 700 on private land and about 200 on federal land). The 
inventory purpose was primarily to identify abandoned mine locations, 
so little or no assessment work was completed for many of the mines 
identified. Many of these historic mines pose significant safety 
hazards, and some pose environmental problems, including impacts to 
water quality. The Good Samaritan bill would certainly be an incentive 
for getting some of these mines cleaned up.
    South Dakota has been working on reclaiming several hardrock mines 
that occur in the Black Hills with EPA and the federal agencies that 
administer the land upon which the mines are located. Several mines 
have been reclaimed, including the Belle Eldridge gold mine (BLM land), 
the Minnesota Ridge gold mine (Forest Service and private land), and 
the Blue Lagoon uranium mine (Forest Service land). The state is 
working with the Forest Service in developing plans to reclaim the 
following mines:
Riley Pass Mine (Harding County)
    The Riley Pass uranium mine (Forest Service land) is located in the 
northwest corner of the state. The main hazards associated with the 
mine are eroding waste material high in radioactivity and heavy metals 
and unstable highwalls. In the 1990s the Forest Service began to take 
steps to minimize impacts at some of these sites by constructing 
sediment ponds to capture contaminated sediment, notably at the Riley 
Pass mine in the North Cave Hills. These ponds were cleaned 
periodically and the material stored in an on-site repository. The 
Forest Service is currently working on an environmental evaluation and 
cost estimate for the site.
The King of the West Mine (Pennington County)
    The King of the West gold mine is located approximately 20 mines 
west of Rapid City. The main hazards associated with the King of the 
West mine include eroding unvegetated tailings, acid mine drainage, and 
unfenced mine shafts. These hazards have been documented in a report 
developed for the Forest Service by the South Dakota School of Mines 
and Technology. They recommended the King of the West Mine as a 
priority site for remediation in the Black Hills.
Freezeout Mine (Fall River County)
    The Freezeout uranium mine is located approximately 14 miles 
northwest of Edgemont. The main hazards associated with the Freezeout 
mine are unstable pit highwalls, erosion, and waste material with high 
radioactivity. The Forest Service has completed a preliminary 
assessment and site investigation for the mine.
                                 ______
                                 

                      WGA Policy Resolution 04-10

                      Cleaning Up Abandoned Mines

                             June 22, 2004

                          Santa Fe, New Mexico

A. BACKGROUND
    1.  Inactive or abandoned mines are responsible for threats and 
impairments to water quality throughout the western United States. Many 
also pose safety hazards from open adits and shafts. These historic 
mines pre-date modern federal and state environmental regulations which 
were enacted in the 1970s. Often a responsible party for these mines is 
not identifiable or not economically viable enough to be compelled to 
clean up the site. Thousands of stream miles are impacted by drainage 
and runoff from such mines, one of the largest sources of adverse water 
quality impacts in several western states.
    2.  Mine drainage and runoff problems are extremely complex and 
solutions are often highly site-specific. Although cost-effective 
management practices likely to reduce water quality impacts from such 
sites can be formulated, the specific improvement attainable through 
implementation of these practices cannot be predicted in advance. 
Moreover, such practices generally cannot eliminate all impacts and may 
not result in the attainment of water quality standards.
    3.  Cleanup of these abandoned mines and securing of open adits and 
shafts has not been a high funding priority for most state and federal 
agencies. Most of these sites are located in remote and rugged terrain 
and the risks they pose to human health and safety have been relatively 
small. That is changing, however, as the West has gained in population 
and increased tourism. Both of these factors are bringing people into 
closer contact with abandoned mines and their impacts.
    4.  Cleanup of abandoned mines is hampered by two issues--lack of 
funding and concerns about liability. Both of these issues are 
compounded by the land and mineral ownership patterns in mining 
districts. It is not uncommon to have private, federal, and state owned 
land side-by-side or intermingled. Sometimes the minerals under the 
ground are not owned by the same person or agency that owns the 
property. As a result, it is not uncommon for there to be dozens of 
parties with partial ownership or operational histories associated with 
a given site.
    5.  Recognizing the potential for economic, environmental and 
social benefits to downstream users of impaired streams, western 
states, municipalities, federal agencies, volunteer citizen groups and 
private parties have come together across the West to try to clean up 
some of these sites. However, due to questions of liability, many of 
these Good Samaritan efforts have been stymied.
      a.  To date, EPA policy and some case law have viewed inactive or 
abandoned mine drainage and runoff as problems that must be addressed 
under the Clean Water Act's (CWA) Section 402 National Pollutant 
Discharge Elimination System (NPDES) permit program. This, however, has 
become an overwhelming disincentive for any voluntary cleanup efforts 
because of the liability that can be inherited for any discharges from 
an abandoned mine site remaining after cleanup, even though the 
volunteering remediating party had no previous responsibility or 
liability for the site, and has reduced the water quality impacts from 
the site by completing a cleanup project.
      b.  The western states have developed a package of legislative 
language in the form of a proposed amendment to the Clean Water Act. 
The effect of the proposed amendment would be to eliminate the current 
disincentives in the Act for Good Samaritan cleanups of abandoned 
mines. Throughout development of legislation, the states have received 
extensive input from EPA, environmental groups, and the mining 
industry.
      c.  During the 106th Congress, a bi-partisan Good Samaritan bill 
was introduced that was largely based on the WGA proposal. WGA 
supported the bill, S. 1787.
    6.  Liability concerns also prevent mining companies from going 
back into historic mining districts and remining old abandoned mine 
sites or doing volunteer cleanup work. While this could result in an 
improved environment, companies which are interested are justifiably 
hesitant to incur liability for cleaning up the entire abandoned mine 
site.
B. GOVERNORS' POLICY STATEMENT
Good Samaritan
    1.  The Western Governors believe that there is a need to eliminate 
disincentives, and establish incentives, to voluntary, cooperative 
efforts aimed at improving and protecting water quality impacted by 
abandoned or inactive mines.
    2.  The Western Governors believe the Clean Water Act should be 
amended to protect a remediating agency from becoming legally 
responsible under section 301(a) and section 402 of the CWA for any 
continuing discharges from the abandoned mine site after completion of 
a cleanup project, provided that the remediating agency--or ``Good 
Samaritan''--does not otherwise have liability for that abandoned or 
inactive mine site and attempts to improve the conditions at the site.
    3.  The Western Governors believe that Congress, as a priority, 
should amend the Clean Water Act in a manner that accomplishes the 
goals embodied in the WGA legislative package on Good Samaritan 
cleanups. S.1787 from the 106th Congress is a good starting point for 
future congressional deliberations of Good Samaritan legislation.
Cleanup and Funding
    4.  The Governors encourage federal land management agencies such 
as the Bureau of Land Management, U.S. Forest Service, and National 
Park Service, as well as support agencies such as the U.S. 
Environmental Protection Agency, the U.S. Geological Survey, and the 
U.S. Army Corps of Engineers to coordinate their abandoned mine efforts 
with state efforts to avoid redundancy and unnecessary duplication.
    5.  Reliable sources of funds that do not divert from other 
important Clean Water programs should be identified and made available 
for the cleanup of hardrock abandoned mines in the West.
    6.  The Western Governors continue to urge the Administration and 
Congress to promptly distribute to states abandoned coal mine land 
funds in the Abandoned Mine Reclamation Trust Fund, including 
accumulated interest, collected under Surface Mining Control and 
Reclamation Act of 1977. In addition, the Western Governors urge the 
Administration and Congress to continue funding the mitigation of mine 
scarred lands through dedicated funding under the Small Business 
Liability Relief and Brownfields Revitalization Act of 2002.
    7.  The U.S. Army Corps of Engineers can provide valuable services 
in assisting the states and the federal government to clean up 
abandoned, inactive, and post-production non-coal mine sites. The 
Governors support legislation that authorizes the Corps, through their 
Restoration of Abandoned Mine Sites (RAMS) program, to undertake and 
fund cleanup activities, including the closure of safety hazards, at 
such sites. In states where an AML program is authorized under Title IV 
of the Surface Mining Control and Reclamation Act (SMCRA), funding from 
the Corps should be administered by the authorized state program. The 
Corps should consult with state and federal agencies with 
administrative and programmatic jurisdiction
C. GOVERNORS' MANAGEMENT DIRECTIVE
    1.  This resolution is to be posted on the Western Governors' 
Association website and it should be referenced and used as appropriate 
by Governors and staff.
    2.  WGA shall work with Congress, the Administration, and affected 
stakeholder groups to pursue enactment of Good Samaritan legislation 
consistent with the WGA proposal.
    3.  WGA shall continue to work cooperatively with the National 
Mining Association, federal agencies, and other interested stakeholders 
to examine other mechanisms to accelerate responsible cleanup and 
securing of abandoned mines.
    This resolution was originally adopted as Policy Resolution 98-004 
in 1998 and readopted in 2001 as 01-15.
                                 ______
                                 
    [The response to questions submitted for the record by Ms. 
Card follows:]

 Response to questions submitted for the record by Joan Card, Director 
 of Water Quality Division, Arizona Department of Environmental Quality

Answers to Chairman Gibbons:
    H.R. 5404, the ``Good Samaritan Clean Watershed Act,'' allows for 
recycling of historic waste piles if directly related to the cleanup of 
the AML site. The proposed legislation does not allow for the 
extraction of newly identified mineral resources under a ``good 
Samaritan permit.''
    The National Mining Association and the Northwest Mining 
Association have both stated that the mining industry would not use a 
``good Samaritan permit'' to access newly identified mineral resources 
any company interested in exploring for and developing new resources 
would be required to go through a comprehensive mine permitting 
process.
    They have also both testified that removal and reprocessing of 
waste material, tailings and mineralized stockpiles could play an 
important role in addressing the problems associated with acid rock 
drainage and heavy metal contamination of streams and lakes. In 
addition a private party or other entity could help defray the costs of 
remediation with any metals recovered. These statements are not 
inconsistent with other witness testimony.
    However, it seems that there are some Members and others that are 
still concerned that Industry or others will try and take advantage of 
a ``good Samaritan permit'' to access newly identified mineral 
resources without going through a comprehensive mine permitting 
process. It seems that some of the concern is a result of people using 
different terms to describe the same exercise or concept.
    Please define the following terms in the context of a ``good 
Samaritan permit'':
      ``reprocessing of waste, ore or tailings''
      ``reclamation mining''
      ``recycling of waste, ore and tailings''
      ``incidental reprocessing of tailings or waste rock 
piles''
      ``remining''

    The Western Governors' Association has not taken a position 
relative to specific definitions of these terms.
    The following responses describe the WGA positions in general.
Answer #1:
    ``Reclamation mining'' & ``remining'' would appear to be 
synonymous.
    Although many support the concept of ``remining'' as a tool and 
incentive for mining companies to perform cleanups of abandoned mines, 
past attempts have shown that it is very difficult and controversial to 
legislatively define what ``remining'' is--and what it is not--to the 
satisfaction of the various parties involved. The difficulty in 
legislating remining seems to come in drawing the line between 
reclamation and new mining.
Answer #2:
    ``Reprocessing of waste, ore or tailings,'' ``recycling of waste, 
ore and tailings,'' and ``incidental reprocessing of tailings or waste 
rock piles'' all appear to be synonymous terms.
    Western states believe it is appropriate to allow limited 
incidental reprocessing of tailings or waste rock piles to take place 
during an approved Good Samaritan cleanup, so long as the revenues 
which result from such reprocessing would go toward offsetting the 
total costs of cleaning up the site.
Answers to Representative Grijalva
    1.  Ms. Card, you state that the Western Governors Association is 
urging Congress to avoid expanding the Good Samaritan proposal to 
include issues such as remining. Why do you think it is important to 
keep remining separate from remediation?
    The WGA position on Remining is:
        The Western states find that, while providing incentives for 
        remining is an important topic that warrants further public 
        discussion and analysis, the issue brings into play policy 
        considerations and stakeholders that go well beyond those 
        involved in Good Samaritan remediation issues. Aside from the 
        stated opposition a remining provision would bring, it would 
        also necessarily involve other statutes beyond the Clean Water 
        Act and thus trigger other congressional committee 
        jurisdictions, all of which would greatly complicate enactment 
        of a Good Samaritan provision. Western states believe it is 
        appropriate to allow limited incidental reprocessing of 
        tailings or waste rock piles to take place during an approved 
        Good Samaritan cleanup, so long as the revenues which result 
        from such reprocessing would go toward offsetting the total 
        costs of cleaning up the site.
    From the State of Arizona's perspective, including the issue of 
remining in the Good Samaritan legislation would unnecessarily 
complicate the issue, likely diminishing the prospects for passing the 
much-needed Good Samaritan protections. Good Samaritan legislation is 
different from remining in that it is removing current disincentives 
for purely voluntary cleanups, not only for mining companies, but also 
for states, local governments, tribes, non-profits and other entities.
    Although many support the concept of ``remining'' as a tool and 
incentive for mining companies to perform cleanups of abandoned mines, 
past attempts have shown that it is very difficult and controversial to 
legislatively define what ``remining'' is--and what it is not--to the 
satisfaction of the various parties involved. Remining would allow 
mining to take place on historic mines in the hope that overall 
conditions on the site would improve as a result of the new mining and 
subsequent reclamation. The difficulty in legislating remining seems to 
come in drawing the line between reclamation and new mining.
    Western States have consistently named Good Samaritan legislation 
as a top Clean Water Act priority. States have cleanup projects we want 
to begin implementing, but cannot, due to the overwhelming liability 
concerns we face under the Clean Water Act and possibly CERCLA. Again, 
remining, if crafted properly, may be an appropriate tool and incentive 
for the mining industry to clean up abandoned mines. However, we should 
not tie the fate of Good Samaritan legislation to it. Since the Penn 
Mine case in California, very few voluntary cleanups have taken place. 
We should not risk that another 15 years will go by without voluntary 
remediation efforts going forward, because Good Samaritan legislation 
is stalled.
QUESTIONS FOR ALL:
    1.  The National Mining Association and the Northwest Mining 
Association testified that the Good Samaritan proposal should be 
expanded to include other environmental laws, not just Clean Water and 
Superfund. What is your organization's position on this recommendation?
    The Western Governors' Association and the Western States Water 
Council have focused on amending the Clean Water Act in order to 
eliminate the current disincentives that exist in the Act. However, the 
Western States believe that there could be benefits to addressing 
potential liabilities under CERCLA as well.
    2.  The National Mining Association and the Northwest Mining 
Association testified that the Good Samaritan proposal must allow 
mining companies to remediate abandoned mine sites. What is your 
organization's position on this recommendation?
    The Western states believe that participation in Good Samaritan 
cleanups should not be limited solely to governmental entities, since 
there are many other persons likely willing to contribute to Good 
Samaritan cleanup initiatives. The states believe the statutory 
provisions should do the following:
        1)  broadly exclude those with prior involvement at the 
        abandoned or inactive mine site;
        2)  broadly exclude those with current or prior legal 
        responsibility for discharges at a site;
        3)  assure that any non-remediation-related development at a 
        site is subject to the normal NPDES rules, rather than the Good 
        Samaritan provision; and
        4)  be narrowly enough constructed to minimize fears over 
        potential abuses of this type of discharge permit.
    3.  In her statement on behalf of the Northwest Mining Association, 
Ms. Skaer has included a list of mine sites in Nevada that she states 
the industry was initially interested in reclaiming as ``Good 
Samaritans'' (middle of page 3). However, she goes on, ``In each case, 
the potential cradle-to-grave liability exposure under federal 
environmental laws prevented the mining industry from using its 
experience, expertise, technology, equipment and capital to remediate 
and reclaim the AML sites.''

       It has been brought to our attention that a number of those 
mines are also on a list of bankruptcies included in the appendix to a 
state-sponsored report from 2003: ``Nevada Mining Bonding Task Force 
Report.''

       These mines all went out of business in 1998-1999. They are not, 
as is so often asserted, old historic mines for which no owner or 
responsible party can be located.

       The mining industry argues that ``Good Sam'' legislation is 
needed due to past, not current, mining practices. However, at least in 
Nevada, this does not appear to be true.

       To what degree are abandoned mines old historic mines and how 
many were created within the last decade?

       Please explain why, in regard to modern abandoned mines, the 
reclamation bonds were not adequate to cover the cost of cleaning up 
the mines sites when the operator goes into bankruptcy.

                          List of Nevada Mines

    Easy Junior, Alta Gold, bankruptcy 1999
    Elder Creek, Alta Gold, bankruptcy 1999
    Golden Butte, Alta Gold, bankruptcy 1999
    Ward, Alta Gold, bankruptcy 1999
    Mt. Hamilton, Rea Gold, bankruptcy 1998
    Griffon, Alta Gold, bankruptcy 1999
    Aurora Partnership, Aurora Partnership, bankruptcy 1999
    Kinsley, Alta Gold, bankruptcy 1999
    Gold Bar, Atlas Gold Mining Inc, bankruptcy 1999

Full  report and appendix available:  http://www.unr.edu/mines/mlc/
presentations_pub/NV_bonding.asp

    With regard to limiting the Good Samaritan provision to ``abandoned 
and inactive'' mines, the Western states agree that any Good Samaritan 
cleanup must include a summary of the results of a reasonable effort to 
identify parties whose past activities have affected discharges at the 
site. Additionally, Western states agree that the permitting authority 
should make a determination that no identifiable, financially viable, 
owner or operator exists before issuing a permit. Western states 
further agree that existing liabilities for mined lands should not be 
affected by the clean up.
                                 ______
                                 
    Mr. Gibbons. We'll turn now to individual questions from 
the committee, and it will be a 5-minute time limit on each of 
the Members for questioning.
    Let me begin by asking Ms. Card, because I listened to your 
testimony here, I've read your statement, and the question I 
had is you've asked for State authority delegated from EPA to 
oversee the permit process. Does that indicate, that delegation 
of authority that you're talking about--is that equivalent to a 
State veto of such Federal permits?
    Ms. Card. Well, the delegation we're asking for, Mr. 
Chairman, members of the Subcommittee, is similar to the 
delegation to issue section 402 MPDS permits, the ability for 
the State to permit third parties to do the cleanups.
    If the delegation were not part of the Good Samaritan 
package, we would hope that EPA would not issue permits without 
the concurrence of the affected State. Veto may be a strong 
word, but we would certainly want to work in concert with EPA 
to ensure that the State supported the permit to be issued.
    Mr. Gibbons. In your testimony you state that a Good 
Samaritan would have no reason to undertake the expense of an 
abandoned mine cleanup project unless they believe that 
meaningful water quality improvement will result. Does this 
mean that you don't believe that the possibility of earning a 
profit from the reprocessing of and recycling of metals 
contained in the waste and tailings would not work well in this 
process, short of an altruistic motive?
    Ms. Card. Mr. Chairman, members of the Subcommittee, we 
believe that incidental reprocessing and recycling of tailings 
and waste rock piles would be a common activity in the context 
of a Good Samaritan cleanup, but because of the controversy and 
concern, we don't think it should be the primary purpose for 
recycling or reprocessing. The water quality improvements ought 
to be the driver.
    Mr. Gibbons. Mr. Fewell, let me turn to you for a minute. 
In your testimony, in your list of safeguards for ensuring 
abandoned mines would be properly remediated, you want to 
ensure that Good Samaritan is a good actor. How do you define 
``good''? Put good in quotes, because it's obviously an 
objective standard.
    Mr. Fewell. Mr. Chairman, good active provisions are common 
with respect to other Federal environmental laws, and the 
permitting authorities in many cases should have the 
information regarding the compliance history of the permit 
applicant. And we believe it's appropriate of even Good 
Samaritan legislation that a Good Samaritan provide a 5-year 
history of their compliance at other sites to give the 
permitting authority additional information to decide whether, 
in fact, the Good Samaritan is capable and has a good track 
record. It does not--within the Administration's bill, it does 
not necessarily preclude a permitting authority from issuing a 
permit even though there may be some violations of the past; 
it's just one more bit of information we believe the authority 
needs to make its decision.
    Mr. Gibbons. I think what our purpose is, of course, with 
any legislation is not to see it--reinvent the wheel each and 
every time it has to go back through a litigation process, so 
that was the purpose of the question.
    Let me also ask that some people may have an ownership 
interest in an abandoned mine land and may not have been 
responsible for the disturbance or the mining activity. Why 
shouldn't they be able to participate in a Good Samaritan 
cleanup effort?
    Mr. Fewell. Mr. Chairman, you're correct. Under the 
Administration's legislation, landowners, Good Samaritans who 
have an ownership interest in the property, would not be 
eligible to be Good Samaritans under our bill. Having said 
that, they are very much an important partner in the cleanup 
process. It does not mean that a passive landowner who did not 
cause the pollution would not be able to have mines on their 
property cleaned up; they simply would not be able to have the 
liability protection provided under the legislation. We did not 
believe it was appropriate in the context of our legislation to 
disrupt or change the current liability structure for parties 
that are liable or potentially liable.
    Mr. Gibbons. Thank you.
    Mr. Pizarchik, what are the permit timelines for cleanup 
efforts under the Good Samaritan provisions there in 
Pennsylvania?
    Mr. Pizarchik. The amount of time it takes depends on the 
complexity of the situation. We will work closely with the Good 
Samaritan, and we have guidelines that are publically 
available, and help them to design the project and provide 
technical support to them. And they could be something as 
simple as several weeks, or maybe a little longer depending on 
the complexity of the situation. And we try to make it as 
timely and as simple as possible in order to facilitate the 
reclamation rather than be an impediment to it.
    Mr. Gibbons. Thank you. My time is expired, and I turn now 
to Mr. Grijalva for questions he may have.
    Mr. Grijalva. Thank you very much.
    Let me begin, I guess, with a question for a brief response 
from all the witnesses today.
    The National Mining Association and the Northwest Mining 
Association will testify later that the Good Samaritan proposal 
should be expanded to include other environmental laws, not 
just Clean Water and the Superfund. And I'm curious to know 
what your position is on this particular recommendation that 
we'll hear later, from the three of you if you don't mind.
    Mr. Fewell. Congressman Grijalva, we--under the 
Administration's bill, we have identified the Clean Water Act 
and Superfund as the primary impediments to voluntary cleanups. 
We have engaged in extensive stakeholder outreach and talked to 
lots of municipalities, States, watershed groups and industry 
groups, and while there is an interest to expand it beyond 
that, our belief is Clean Water Act and Superfund are the 
biggest impediments, and that's what we're focusing on.
    Mr. Grijalva. Thank you.
    Sir.
    Mr. Pizarchik. From Pennsylvania's perspective and that of 
the Interstate Mining Compact Commission, we believe that the 
primary focus ought to be on the Clean Water Act and also on 
the Federal Superfund, or CERCLA. That appears to us to be the 
biggest impediments to the Good Samaritan cleanups of abandoned 
mine sites.
    Mr. Grijalva. Thank you.
    Ms. Card. Mr. Chairman, Congressman Grijalva, the Western 
Governors' Association, as I stated in my testimony, has 
focused on Clean Water Act disincentives. We're certainly 
willing to discuss how a CERCLA exemption might work because we 
have found that that's also a disincentive to the cleanups.
    With regard to other environmental laws, putting on my 
Arizona hat here, we have concerns that the laundry list of 
environmental laws, there hasn't been a real stated 
justification for including exemptions for so many 
environmental laws. Our primary interest, from an Arizona 
perspective, is to protect Good Samaritans for future 
liabilities from historic contamination. Good Samaritans ought 
to get all the necessary permits to cover the project, but 
should be protected from future liability for historic 
contamination.
    Mr. Grijalva. If I may, also, Mr. Fewell, testimony today 
indicated that there needs to be a clear line between 
remediation and remining, and it seems to make sense. We 
don't--in a Good Samaritan project, we don't want to mix a true 
Good Samaritan project with profit-making endeavors, and I'd 
like to know what the--on the clear line question what the 
position of the Administration is on that.
    Mr. Fewell. The Administration bill actually does allow for 
limited reprocessing and recycling of tailings and waste piles. 
In many cases these waste piles are the cause of water quality 
impacts. Our bill does not exclude Good Samaritans provided 
that they meet the qualifications under the act. It does not 
exclude a Good Samaritan, however, from benefitting and 
profiting from the reprocessing of those waste piles. In fact, 
we think it's an important tool and an incentive to encourage 
cleanup.
    Mr. Grijalva. Ms. Card, on that same question, you state 
that the Western Governors' Association is urging Congress to 
avoid expanding the proposal to include issues such as 
remining. And I just want to have that reemphasized. Why is it 
important to keep those issues separate?
    Ms. Card. Mr. Chairman, Congressman Grijalva, frankly, 
because of the concerns and oppositions to remining provisions, 
we think that's better avoided and separated from this 
legislation. Because of the importance of the Good Samaritan 
program to water quality in the West, our main goal is to get a 
program, an effective program, passed.
    Mr. Grijalva. No further questions, and I yield back.
    Mr. Gibbons. Thank you.
    I turn now to the gentleman from New Mexico Mr. Pearce.
    Mr. Pearce. Thank you, Mr. Chairman.
    Mr. Pizarchik, you mention in page 1 of your testimony that 
the reclamation of 2,387 acres--and there is a rough value at 
14 million something. Would you see a problem in the future of 
offering some sort of participation in the resale of that land 
that groups could come in, say, Trout Unlimited can take a 
percentage of the sale of the land if we were actually to 
create value; in other words, some incentives down the road for 
groups that are actually benefitting the public, but they would 
then develop some incentives? What would you think about that 
sort of proposal?
    Mr. Pizarchik. I presume that's in the context of cleaning 
up Federal lands?
    Mr. Pearce. No. I mean even private lands. What are you--
where does the value go? Let's say that somebody owns the 
private land, and they're not participating in the cleanup at 
all. Do they get the full value? How do you handle that?
    Mr. Pizarchik. In Pennsylvania we require the landowner's 
approval to be part of the project in order for it to go 
forward. And the added value to the land generally accrues to 
the property owner, it doesn't go to the Good Samaritan or 
other folks.
    Now, from our experiences in Pennsylvania, we have not seen 
a significant increase in the value of land. Back in the 1960s, 
the Pennsylvania General Assembly instituted a program where it 
provided seed money for the States to reclaim abandoned mine 
lands, and it was designed to be a revolving fund where that 
land would then be sold, and the increase in the value would 
fund additional reclamation. What we found was the cost of 
reclamation far exceeded the increase in value to the land, and 
it did not generate enough funds for it to be a revolving fund.
    So with that history on that, I'm uncertain whether the 
value would be that significant of an increase that it would be 
worth pursuing.
    Mr. Pearce. Ms. Card, tell me a little bit about this 
resistance for any kind of remining that's going on. If the 
objective is to clean up the water--and I think that's a pretty 
close summation of what you said, clean up the air and the 
water--where do we generate this political opposition? Myself, 
if the objective is clean water, and we can get closer to that 
by some remining and then an improvement of the site, where 
does the political backlash start on that? I just don't follow, 
I guess, the logic.
    Ms. Card. Mr. Chairman, Congressman, my understanding of 
the opposition is that remining ought to be permitted under the 
standard and currently applicable requirements as opposed to 
the kind of exemption that a Good Samaritan program would 
offer.
    Once again, if it's incidental recycling and reprocessing, 
Western Governors' Association can be behind that and would 
hope that the resulting commercial value would offset the cost 
of the cleanup.
    Mr. Pearce. And you state on page 3 of your written 
testimony that the Western States believe that only Good 
Samaritan projects that will result in significant improvement, 
and in your mind--I know that you go on in your text to 
describe the difficulty of defining ``significant.'' in your 
own mind, what is significant, 50 percent or more, or 30 
percent or more?
    Ms. Card. Mr. Chairman, Congressman, I hesitate to put a 
number on that, and that's part of the problem. As you know, 
under the Clean Water Act it's all about numbers and what can 
be achieved in the stream.
    I think from our perspective significant improvement means 
it's improvement, it's better than it was before, and it was a 
worthwhile effort.
    Mr. Pearce. That's the problem that I'm finding with this 
statement from the Governors. They want to use the term 
``significant,'' but they don't want to define it, and you're 
equally hesitant. And from sitting on this side of the table, 
that makes it very difficult to evaluate what your position 
really is, because from my standing, again, the idea is we 
clean water up. A 10 percent cleanup when it doesn't cost the 
government, it doesn't cost the taxpayer anything would be 
significant. But the wording and then the follow-up language is 
so--do you have another comment? I saw you getting legal 
advice--go ahead.
    Ms. Card. Mr. Chairman, Congressman, as Mr. McGraph here 
suggested over my shoulder, and it's true, it would be expected 
that the permitting authority, EPA or the delegated State, 
would have the technical expertise and the discretion to know 
that the project would significantly improve water quality and 
would only permit such a project.
    Mr. Pearce. Just for my purpose, if you would tell him that 
one Member really was not too overwhelmed with your suggestion 
to limit it only to significant, without defining significant 
themselves in their own minds, find that to be somewhat 
duplicitous. But thank you, Mr. Chairman.
    Mr. Gibbons. Thank you.
    We turn now to the gentleman from Colorado, Mr. Mark Udall.
    Mr. Mark Udall. Thank you, Mr. Chairman, thank you for 
holding this hearing.
    I think this is an important subject. In fact, I've been 
known to say that the gray hair that I sport is because I have 
two children, but as I sit here, I realize that part of the 
gray hair is all the work that I've done on the Good Samaritan 
legislation over the last 8 years with no real results yet, but 
I'm still hopeful. And the two bills that I have introduced, 
one, H.R. 1265, deals with financing abandoned mine cleanups, 
and it's pending in the Subcommittee, and I would hope perhaps 
we could have a hearing on that at some point. And the other, 
H.R. 1266, deals with the concerns about liability that deter 
would-be Good Samaritans from cleanups. In that way I think 
it's similar to the legislation proposed by the Administration, 
introduced by our colleague, Mr. Duncan.
    It's very important for Colorado and for the West, as Ms. 
Card has suggested, and I think that's shown by the fact that 
1266, the bill I've introduced on the liability side, is 
sponsored not just only by two Democrats, Mr. Salazar and Ms. 
DeGette from Colorado, but also from Mr. Beauprez.
    Mr. Chairman, I was tempted to read off 40 pages of 
speeches and statements I made through the years, but if I 
could, I'd ask that if we could include those in the hearing 
record under a unanimous consent request.
    Mr. Gibbons. Without objection.
    [NOTE: The information submitted for the record by Mr. 
Udall has been retained in the Committee's official files.]
    Mr. Mark Udall. And with that behind us, I would like to 
turn to Mr. Fewell and again say I'm glad the Administration 
has recognized the importance of the issue and the need for 
legislation. I would have to say I think my own bill has 
perhaps a few advantages over your proposal, but I really don't 
think we're that far apart. Would you care to comment--I'm not 
trying to lead the witness here, but I'd be curious about your 
thoughts.
    Mr. Fewell. Congressman Udall, first of all, I want to take 
this moment to thank you for your leadership on this important 
issue. I think we, too, are optimistic that something can be 
done soon.
    With respect to the difference between the Administration's 
bill and your bill, I think while there are more similarities 
than not, probably the biggest difference, however, ours is a 
stand-alone bill, and yours is an amendment to the Clean Water 
Act. I would think that that's probably the fundamental 
difference, but I think the goal and many of the provisions are 
the same.
    Mr. Mark Udall. Thank you for that insight.
    Ms. Card, if I might turn to you before I direct a comment 
and then a question. I want to thank the Western Governors' 
Association. Without the ongoing interest of the WGA and their 
willingness to work with me, and hopefully our willingness to 
work with you, I might have lost hope a few years ago, because 
the WGA has been on point. And, again, this has been a real 
bipartisan effort.
    In your testimony, and this is a bit of a follow-on of Mr. 
Gibbons' questions, you urge that the EPA be able to delegate 
to the States the authority to issue Good Sam permits, and I 
think that makes sense. But do you think Congress should say 
that unless there is a State program, there could be no Good 
Sam permits in that State?
    Ms. Card. Mr. Chairman, Congressman Udall, to clarify, 
unless there is a State Good Samaritan program, is that the 
question?
    Mr. Mark Udall. Yes, yes.
    Ms. Card. Mr. Chairman, Congressman Udall, I think from my 
perspective as a water quality administrator in the State, I 
can't do anything without my State Legislature telling me it's 
OK to do it. So it would be my expectation that Arizona--for 
example, in Arizona, I would have to have authority from the 
Arizona Legislature to issue those permits.
    Mr. Mark Udall. So, again, I don't want to lead you, but 
what I think you I hear you saying is that it would be 
appropriate for Congress to allow EPA to delegate authority to 
the States, but it wouldn't mandate the States to undertake the 
job of Good Samaritan oversight, if you will.
    Ms. Card. Mr. Chairman, Congressman Udall, that is correct.
    Mr. Mark Udall. Could I, in the time I have remaining, turn 
also to your comments about keeping the legislation that we're 
considering today relatively clean? And you talk about not 
delving into the issue of general fees. Would you like to 
expand a little bit more on that point? It led me, as an aside, 
to break the initial legislation I've introduced a few years 
ago into two parts because of the discussion about fees and how 
we might proceed.
    Ms. Card. Mr. Chairman, Congressman Udall, that's correct. 
Similar to the concerns about--the general concerns in the 
community about remining, there are similar concerns about the 
general fees. So as I've already stated, the Western Governors' 
goal is to clean up these water quality impairments, and 
without a Good Samaritan program in place, I have little hope 
of many cleanups occurring in Arizona, for example.
    So in an effort for an effective Good Samaritan program to 
actually pass, we would hope to separate remining and the 
general fee from the discussion.
    Mr. Mark Udall. Thank you.
    Thank you, Mr. Chairman. Again, this is a very important 
hearing. And for us westerners, it is just about water, isn't 
it? Always about water. Thank you.
    Mr. Gibbons. Thank you, Mr. Udall.
    We turn now to the gentlelady from Virginia, Mrs. Drake.
    Mrs. Drake. Thank you, Mr. Chairman. I would like to thank 
the panel for being here.
    I'm one of the very few members of this committee from the 
east coast, so we sort of have a different way of looking at 
this committee. But I'm a former member of the Chesapeake Bay 
Commission, so, Mr. Pizarchik, I have visited Pennsylvania and 
seen some of the work that you've done, and it truly was 
remarkable to look at the original pictures and then look at 
the reclaimed land.
    My first question will go to you. And I'm curious, does the 
industry work with the NGO's and community groups on these Good 
Samaritan projects, or should we be looking at ways to 
encourage that more? Because certainly they have the same goal, 
that landscape be left intact. And they want to do what they do 
and do it effectively and not have all of us saying, you can't 
do this anymore because of the impact. So is that working?
    Mr. Pizarchik. Congresswoman, it's been our experience that 
industry does help and does cooperate on these. They oftentimes 
have the equipment in the area that they could provide at a 
very reasonable cost, or they provide it at no cost because 
they're in the neighborhood. Sometimes they provide materials. 
So the industry does work. We've got a lot of good responsible 
operators in Pennsylvania who see the value of helping to clean 
up the problems of the past.
    Mrs. Drake. That's been my experience in talking with them 
is they want to be part of the answer.
    Mr. Fewell----
    Mr. Fewell. Fewell, just like gasoline.
    Mrs. Drake. Well, that's very appropriate; for my question 
that's very appropriate.
    One of the things this committee has been talking about a 
lot is liquified coal, and certainly what I've learned in 
Virginia is our coal is too good, and we need a lesser grade of 
coal. And you have stated that these permits should not 
authorize the extraction of new mineral resources. So I guess 
part of my question is how would that work with the whole issue 
of us looking more at alternatives? I think liquified coal has 
such great potential, to think you could run it in your car 
today without any changes or have it in our supply system. So 
I'm just wondering is that, in your opinion, good, sound 
policy; or is it something we should look at as part of a total 
package to reclaim these lands?
    Mr. Fewell. Congresswoman, first of all, the 
Administration's bill applies to hard rock mines, not coal 
mines, so it would not apply in the case that you're 
mentioning. However, we are mindful of the fact that if this 
legislation is successful, we would like to see it used as a 
model to expand into the arena of coal, because we believe some 
of the--obviously the environmental issues and water quality 
impacts from abandoned coal mines are as great in many Eastern 
States. But, again, we do have a provision that provides 
incentives for recycling of waste piles and tailings.
    And let me just state that the Agency--with respect to 
coal, the Agency has been supportive in the past of coal 
remining, and certainly we would encourage those options and 
those ideas that you mentioned.
    Mrs. Drake. Thank you.
    And, Ms. Card, would it be appropriate for us to exempt 
Good Samaritan actions from civil suit provisions and simply 
leave enforcement to both the State and Federal agencies?
    Ms. Card. Mr. Chairman, Congresswoman, from the Western 
Governors' Association perspective, we believe the Good 
Samaritan permitting ought to be enforceable; in other words, 
the conditions of the permit ought to be enforceable by the 
permitting authority. However, we have had concerns expressed 
that a citizen's provision would be a disincentive to Good 
Samaritans moving forward with cleanups.
    So while we certainly support enforcement of the Good 
Samaritan permit by the permitting authority, we have concerns 
that a citizen's provision like the one under the Clean Water 
Act would remain a disincentive to cleanups.
    Mrs. Drake. Thank you, Mr. Chairman. I'll yield back. I see 
my time is up.
    Mr. Gibbons. Thank you very much.
    I think what we may do, if those Members here have any 
follow-on questions, is ask that they submit those questions in 
writing to the witnesses. And we would ask that the witnesses 
do return those questions and answers to us within 10 days as 
such. There are a number of additional follow-on questions, I 
know, that I had that I'd like to ask, but I know that our time 
is quite limited in a committee hearing, and we do want to make 
room for those panelists that are following.
    Mr. Gibbons. So with that, I want to thank these witnesses 
for their presence here and testimony today, and also excuse 
them from the panel and call up the second panel of witnesses, 
which will include Mr. Tim Brown, Center for the America West, 
University of Colorado; Mr. Hal Quinn, senior vice president, 
National Mining Association; Ms. Laura Skaer, Executive 
Director, Northwest Mining Association; and Ms. Velma M. Smith, 
Senior Policy Associate, National Environmental Trust.
    If you could come forward and take your seats, please.
    First of all, I want to welcome each and every one of you 
to the committee hearing. And as you saw with the first panel, 
we have a procedure whereby we swear you in and have you take 
an oath for testimony before this committee. So if each one of 
you will rise and raise your right hand.
    [Witnesses sworn.]
    Mr. Gibbons. Let the record reflect that each of the 
witnesses answered in the affirmative.
    We want to welcome you here. We appreciate the time and 
distance many of you have traveled to come before this 
committee, and we're anxious to hear your testimony.
    We'll turn now to Mr. Tim Brown, Center of the American 
West, University of Colorado, for your remarks. And, Mr. Brown, 
your full and complete written testimony will be entered into 
the record, and you will have 5 minutes to summarize your 
testimony.

STATEMENT OF TIM BROWN, CENTER OF THE AMERICAN WEST, UNIVERSITY 
                          OF COLORADO

    Mr. Brown. Thank you.
    Good morning, Mr. Chairman, members of the Subcommittee, 
and Congressman Udall. It is a privilege to speak to you on the 
Good Samaritan bill under consideration today.
    I'd like to start by commending Mr. Fewell and his 
colleagues at the EPA for producing a very fine draft. This 
bill would deliver liability relief to the many volunteer 
organizations who are now poised to clean up abandoned hard 
rock mines across the West. This bill appropriately concerns 
itself with just two problematic environmental laws, the Clean 
Water Act and CERCLA, and wisely leaves aside the question of 
remining for another day.
    Effectively amending a landmark environmental law such as 
the Clean Water Act should not be undertaken lightly. In this 
deliberation, however, it is helpful to recall that hard rock 
acid mine drainage was far from the minds of the authors of the 
1972 Water Pollution Control Act.
    John Whitaker, Environmental Advisor to President Nixon and 
later Under Secretary of the Interior, recently acknowledged 
that he and his congressional collaborators designed the law 
for very different purposes. Mr. Whitaker wrote just last year, 
quote, ``When I and other White House staffers recommended to 
the President new water pollution control strategies for 
congressional consideration, our focus was primarily on sewage 
treatment and industrial fluids, not the acid mine drainage 
problems from abandoned mines. We should have had more 
foresight,'' unquote.
    Well, I think we would all want to rush to absolve Mr. 
Whitaker and his collaborators of any lack of foresight and 
instead thank them and the other Clean Water Act authors for 
statutes that have done immense good for our environment and 
our quality of life in this country. But the Clean Water Act, 
like the other environmental laws of the 1960s and 1970s, are 
not infallible texts. They will not provide perfect remedies in 
all circumstances, and they should not be immune to amendment 
where experience shows that they impede rather than facilitate 
environmental improvement.
    The second point that I would make is that the growing 
consensus for Good Samaritan legislation reflects a trend in 
environmental management toward the restoration of the diverse 
values found in healthy, natural environments.
    In the case of those watersheds impaired by acid mine 
drainage, there are compelling reasons for restoration, 
economic benefits not the least among them. The prosperity of 
the Rocky Mountain community, to say nothing of a downstream 
municipality such as Denver, depends on the ability of their 
watersheds to support recreation, tourism and population 
growth. More and more westerners are coming around to the idea 
that an intact natural environment is a large part of their 
future economic well-being.
    Anglers alone spend $500 million in Wyoming and $800 
million in Colorado every year. This recreation sustains 
fishing guides, outfitters, shopkeepers, motel owners, and tens 
of thousands of other business people in the tourism sector. 
However, 40 percent of Colorado's watersheds are impaired by 
abandoned mine pollutants, and each of these areas is therefore 
economically handicapped.
    And my final point, I wish to assure you that there are 
Good Samaritans out there waiting for your action. This point 
was brought home to many of us who attended an EPA press 
conference held at the McClelland abandoned mine site in Idaho 
Springs, Colorado, on July 6th.
    A local Good Samaritan group, the Clear Creek Watershed 
Foundation, has made great progress in cleaning up the dried 
portions of the mine; that is, the piles of tailings that lead 
to polluting into the adjacent river. But out of fear of the 
Clean Water Act liability, they could not, ``work in the 
wet''--that is, they could not treat the acid mine drainage 
flowing from the mine entrance.
    I can soon wear out my welcome here by relating other cases 
of watershed groups and State agencies who also cannot work in 
the wet, who can only conduct partial cleanups, or who must 
even abandon existing acid mine drainage treatment systems.
    Liability relief for environmental Good Samaritans has 
brought support from State and Federal agencies, conservation 
groups, the mining industry, and, happily, from both 
Republicans and Democrats, as seen in the sponsorship of the 
different bills introduced in both the House and Senate.
    I thank the Chairman and the committee members for their 
attention and for expediting action on this legislation. The 
people of the West look forward to beginning work on abandoned 
mines in the next construction season. I shall be happy to 
answer any questions.
    [The prepared statement of Mr. Brown follows:]

        Statement of Timothy Brown, Ph.D., Research Associate, 
      Center of the American West, University of Colorado, Boulder

    Mr. Chairman and Members of the Subcommittee:
    Thank you for this invitation to speak to you on the subject of 
abandoned mines and acid mine drainage. It is an honor and privilege to 
come before you.
    The mining booms of the nineteenth and early twentieth centuries 
left behind a mixed heritage: families supported by wages, wealth 
acquired by some, national prosperity and high standard of living, a 
folklore of color and adventure, and, regrettably, thousands of 
hardrock mines that discharge highly toxic water pollution. We now face 
the necessity of reckoning with this unfortunate environmental legacy 
of our mining past.
    These abandoned hardrock mines and their discharge of pollutants 
(acid mine drainage) exact a high cost on the environment and society. 
They kill aquatic life in tens of thousands of rivers and streams, some 
potential fisheries; they deprive communities of the economic benefits 
brought by anglers and other recreational visitors. They taint water 
supplies, requiring municipalities to spend significant monies on water 
purification. Some mountain communities find their chances of economic 
development constrained by the toxic discharge of local mining sites.
    The cleanup of these mines presents a formidable technical 
challenge. However, the greatest impediment to the remediation of 
abandoned mines is, ironically, the potential to incur liabilities and 
penalties prescribed by the Clean Water Act. Government agencies, the 
mining industry, and environmental groups agree that Good Samaritan 
remediating parties must have relief from Clean Water Act liability in 
order to make substantial progress in addressing this problem.
    While there is broad consensus on the need for liability relief, 
other issues remain unresolved. I believe that an understanding of the 
history of mining in the West can help show us not only how we find 
ourselves in this predicament today, but also how to proceed toward 
agreement on those remaining points of discord.
The Historical Significance of Mining
    No other industry changed the West as rapidly and as profoundly as 
did the gold and silver rushes of the nineteenth century. Mining, more 
than any other white American enterprise, accelerated the colonization 
of the West. It brought with it systems of law, governance, commerce, 
transportation, communications, and finance. Only with these 
institutions of civil society in place could miners proceed in relative 
security with the harvest of the mineral wealth that lay in the western 
territories.
    Mining, as a labor intensive industry, also populated the West. The 
California Gold Rush of 1849 inspired thousands of Easterners, 
Southerners, and Midwesterners to make the difficult passage across the 
American interior. The quest for precious metals then drew prospectors 
into the interior itself, with major rushes in 1859 to the areas that 
would become Colorado and Nevada. Gold and silver brought Americans to 
places they otherwise would have avoided or even fled. To those men 
intent on harvesting the mineral bounty of the American West, the 
territorial constraints imposed by treaties and Indian country 
boundaries carried little meaning. Thus mining had the effect of 
pushing American political sovereignty into many areas of the 
Northwest, the Rockies, the Great Basin, and the Southwest.
Scope of Environmental Degradation from Abandoned Mines
    Although the old-timers knew not to drink water downstream from 
their stake, they had little notion of the environmental legacy that 
they were bequeathing to later generations of Americans. The extent of 
this degradation is daunting. The U.S. Bureau of Mines estimated that 
12,000 miles of waterways in the Western United States, or about 40 
percent, are contaminated by metals from acid mine drainage, mostly 
from abandoned mines, while 180,000 acres of lakes and reservoirs are 
tainted by abandoned mine runoff. 1 The Mineral Policy 
Center (now Earthworks), put the number of abandoned hardrock mines at 
about 500,000 a few years ago, and it estimated cleanup costs from 30 
to 70 billion dollars. Such figures may well be inflated, and we must 
remember that all rivers contain some amount of minerals from natural 
sources. But these figures correctly convey the fact that a great deal 
of wilderness, much of it located in National Forests and other public 
lands, is partially or wholly spoiled for fishing, hunting, and hiking. 
That means great deal of lost revenue for communities whose economies 
depend on these outdoor pursuits. Anglers especially are affected by 
acid mine drainage and have become a strong voice in calling for the 
cleanup of abandoned mines. Their main organization, Trout Unlimited, 
now devotes significant resources to AMD cleanups. 2 Some 
municipalities must also spend hundreds of thousands of dollars to 
purify their water supply. The City of Golden, Colorado, was at one 
point spending $250,000 annually to remove heavy metals and acid from 
Clear Creek.
---------------------------------------------------------------------------
    \1\ Cited in Carlos D. Da Rosa and James S. Lyon, Golden Dreams, 
Poisoned Streams (Washington, D. C.: Mineral Policy Center, 1997), p. 
4. See also Robert L. P. Kleinmann, ``Acid Mine Drainage'' Engineering 
and Mining Journal (July 1989), p. 161.
    \2\ See Trout Unlimited's recent publication by Russ Schnitzer and 
Rob Roberts, Settled, Mined & Left Behind: The Legacy of Abandoned 
Hardrock Mines for the Rivers and Fish of the American West, and 
Solutions for Cleaning Them Up (2004), also online at http://
www.centerwest.org/acid--mine/reading-tu.pdf.
---------------------------------------------------------------------------
How Can a Mine Be ``Abandoned''?
    Who is responsible today for the acid mine drainage coming from 
these historic mines? Technically, some entity or individual owns every 
square mile of U.S. land and the mines on them, whether it is a federal 
agency, a former mine operator, or someone who inherited the claim from 
the operator and who may not even know about the mining that once took 
place on the land. It may be someone who bought the land from the 
former operator and now plans to reactivate the mine. In many cases, 
claims were made on federal land, and some mining was done, but the 
claim was never transferred into private ownership and therefore 
ownership of the land reverted to a federal agency.
    Theoretically, these owners are responsible for the water 
discharged from their mines. But regulatory agencies find it 
impractical to take legal action against the vast majority of private 
owners. Most unwittingly inherited the problem, and could not begin to 
pay for remediation. They are, by virtue of having little or no 
financial means, ``judgment-proof'' should someone sue them for 
environmental violations. Old mines belonging to such private 
individuals are simply waiting for a third party, an environmental Good 
Samaritan, to clean them up.
Clean Water Act Impediments to Mine Remediation
    The Clean Water Act creates both a mandate and an obstacle for 
cleaning up acid mine drainage. The Clean Water Act prohibits ``the 
discharge of any pollutant by any person'' without a permit, into 
``navigable waters from any point source.'' The law delegates to the 
EPA or the states the responsibility of identifying streams that are 
impaired in terms of their designated uses. For many alpine streams 
affected by acid mine drainage, that designation is ``Class 1 Cold 
Water Aquatic''--this means that the stream should support aquatic 
life, including species that may be sensitive to trace amounts of metal 
contamination. If the concentrations of metals exceed the standards for 
sustaining aquatic life, then the stream is impaired, and some kind of 
remedial action is required by the Clean Water Act.
    Remediating parties are required in normal circumstances to obtain 
a Clean Water Act discharge permit (a National Pollutant Discharge 
Elimination System permit or NPDES). The permit requires that the 
treatment will result in Clean Water Act water quality standards, which 
are very stringent, and that the remediator will remain responsible for 
the source of pollution in perpetuity. These two provisions have 
deterred many interested parties from cleaning up polluting mines. When 
a third party--a nonprofit organization, community group, government 
agency, or corporation--attempts to clean up acid mine drainage coming 
from an abandoned mine, that party legally assumes liability for the 
mine's discharge. A Good Samaritan remediator might wish to decrease 
the acid mine drainage at a particular site, but could not undertake a 
comprehensive remediation project that would satisfy Clean Water Act 
water quality standards. Current federal law allows for no such partial 
cleanup. A Good Samaritan has the choice of achieving the highest water 
quality standards or of not undertaking the project at all.
    An additional deterrent is the financial penalty that such an 
operator might incur under Clean Water Act provisions. Although it is 
up to the discretion of individual judges, an operator of a mine is 
liable to incur penalties of up to $32,500 for every day that the mine 
discharges pollution. Would-be environmental Good Samaritans abandon 
their good mission because they cannot possibly risk these fines, 
assume the long-term financial liability, or meet the water quality 
standards dictated by the Clean Water Act.
    Some jurists argue that abandoned mines should not be covered by 
the Clean Water Act. John Whitaker, environmental advisor and 
Undersecretary of the Interior during President Richard M. Nixon's last 
administration, and a principle author of the Clean Water Act, here 
looks back on the unintended consequence of CWA liability for would-be 
environmental Good Samaritans:
           When I and other White House staffers responsible for 
        environmental initiatives during the Nixon administration 
        recommended to the President new water pollution control 
        strategies for congressional consideration, our focus was 
        primarily on sewage treatment and industrial effluent, not the 
        acid mine drainage problems from abandoned mines. We should 
        have had more foresight.
           Before we decided on a regulatory enforcement strategy, our 
        initial inclination was to propose to President Nixon an 
        effluent fee system, i.e., a market-oriented alternative to 
        regulation by enforcement that relied on financial, not 
        regulatory, incentives to clean the nation's waters.
           The effluent fee concept was appealingly simple. The more an 
        enterprise polluted, the more it paid. This way, the free 
        market could set the cost of cleaner water, not a regulatory 
        system, which often turned out to be based on unscientific 
        assumptions with politically motivated goals that were 
        impossible to meet.
           However, the effluent fee concept died because there were 
        serious political disadvantages. Congress had only given 
        consideration over the years to a ``tough cop'' regulatory 
        approach. ``Sue the bastards'' had a nice ring to it.
           Also, effluent fees are a form of taxation, and the House 
        Ways and Means Committee and the Senate Finance Committee would 
        have claimed jurisdiction. Under those conditions, it was 
        highly unlikely that Nixon's proposals would have ever seen the 
        light of day because members of these committees saw taxation 
        only as a means for increasing or decreasing revenue, not as a 
        means of curing social ills such as water pollution.
           In retrospect, one wonders what might have been. Later, in 
        1972, an EPA paper, ``Alternative Strategies in Water Quality 
        Management,'' concluded that an ``effluent fee is the most 
        effective alternative for national water quality objectives. It 
        promises to be the most effective and simultaneously requires 
        the least cost.''
           Eventually, bowing to political realities, we decided to go 
        down the traditional regulatory path, which indeed turned out 
        to be the proverbial slippery slope.
           Impatient that Congress had sat on Nixon's proposed water 
        quality legislation for almost a year (Congress held a few 
        water pollution hearings, then spent most of its time on air 
        pollution, solid waste, and ocean pollution legislation), we 
        decided to revive the permit authority in the old 1899 Refuse 
        Act that required a federal permit to discharge effluents into 
        navigable waters. Later Congress incorporated this permitting 
        authority into the Water Pollution Control Act of 1971.
           However, Congress required that the water pollution control 
        standard be ``zero discharge.'' At the time, the Nixon 
        Administration witnesses testified before Congress that the 
        zero discharge provision was an impossible goal to achieve, and 
        also an unreasonable financial impediment to clean water 
        because of the very high cost of removing the last few 
        percentages of effluents in relation to the benefit of the 
        result. The stated goal reflected a lack of understanding of 
        the scientific and technical aspects of water pollution 
        control.
           For example, a zero discharge provision ignores the nature 
        of the river, lake, or ocean into which the discharge is 
        flowing, and this oversight can lead to absurd results: water 
        distilled to the zero discharge standard at great cost might be 
        dumped into naturally saline or mineralized streams, altering 
        them for the worse.
           We did not envision at the time that the day would come when 
        the zero discharge provision would prevent Good Samaritans from 
        cleaning up acid mine drainage or when the onerous and costly 
        federal permit requirements would snuff out any economic 
        incentive to curb the acid mine drainage problem associated 
        with abandoned mines.
           So perhaps the time has come to take another look at the 
        basic water quality laws and reconsider a market-based effluent 
        fee approach. 3
---------------------------------------------------------------------------
    \3\ Patricia Limerick, et. al. Cleaning Up Abandoned Hardrock Mines 
in the West: Prospecting for a Better Future (Boulder: Center of the 
American West, University of Colorado, 2005), p. 23.
---------------------------------------------------------------------------
    Such testimony underlines the need to adjust the Clean Water Act so 
that it might facilitate rather than inhibit environmental improvement.
    Some legal experts argue potential Good Samaritans could plausibly 
defend themselves against a Clean Water Act liability suit and against 
the Comprehensive Environmental Response Compensation and Liability Act 
(CERCLA), whose liability provisions Good Samaritans also fear. 
4 This is a matter of legal opinion, however, and few Good 
Samaritans would care to test it in court.
---------------------------------------------------------------------------
    \4\ Sean McAllister, ``Unnecessarily Hesitant Good Samaritans: 
Conducting Voluntary Cleanup of Inactive and Abandoned Mines Without 
Incurring Liability,'' Environmental Law Reporter 33 (2003): 10245-
10264.
---------------------------------------------------------------------------
What Is an Environmental Good Samaritan?
    All parties agree that disinterested, altruistic parties--
environmental Good Samaritans--should be able to undertake mine 
cleanups without incurring Clean Water Act liability. But who qualifies 
for such a designation? Such an entity--whether an individual, a group, 
a government agency, or a complex coalition of groups--would be moved 
first and foremost by the desire to clean up an environmental mess; 
that to do so, it would bring its resources to bear, not just once, but 
until the problem was resolved; and finally, that it would understand 
this act as a moral obligation of environmental stewardship.
    A trickier issue, arises with the introduction of a commercial 
aspect into the question. In terms of healing the environment, the 
issues of self-interest and a profit motive are points of contention 
when trying to define who counts as a Good Samaritan. Some argue that 
an environmental Good Samaritan can only work on behalf of public 
welfare broadly defined. This means, in practical terms, that the 
redemptive actions must be governmental because government, unlike most 
commercial or philanthropic enterprises, endeavors to balance the needs 
and desires of society's many competing interests. Government agencies 
are also accountable to elected politicians and ultimately to the 
public. Others also worry that if environmental Good Samaritans are 
allowed to profit in some fashion from a clean up--as some mining 
companies now propose--the purpose of environmental cleanup will be 
lost in the pursuit of economic gain. On the other hand, some kind of 
profit incentive could dramatically accelerate the process of cleaning 
up abandoned mines. Private enterprise has an energy and drive that 
could have a very positive effect. Mining companies, after all, know 
how to work the sites. Government processes, on the other hand, do not 
enjoy a reputation for efficiency. Some argue that the government is 
good at conducting studies and writing reports, but the real 
technological know-how, the scientific brain power, and the right 
equipment are all found in the mining industry. We favor a broad 
definition of who might qualify as a Good Samaritan even though some 
bad actors using this status may be tempted to conduct new mining 
activities without a proper permits. This seems to us a marginal risk 
given the potential for environmental improvement.
State Good Samaritan Initiatives
    Rather than waiting for federal Good Samaritan legislation, the 
State of Pennsylvania passed its own in 1999--the Environmental Good 
Samaritan Act. 5 This act presumably provides protection 
against liability for land owners and third parties (individuals, 
nonprofit organizations, corporations, and government agencies) that 
take on abandoned mine reclamation and water-pollution abatement 
projects. By this legislation, as long as you don't make the problem 
worse, you will be shielded from liability under the Clean Water Act. 
All work must be conducted with the guidance and approval of the 
Pennsylvania Department of Environmental Protection.
---------------------------------------------------------------------------
    \5\ Environmental Good Samaritan Legislation, Act 1999-68, http://
www.centerwest.org/acid--mine/reading-pa1999-68.pdf
---------------------------------------------------------------------------
    At the same time, then-Pennsylvania Governor Tom Ridge signed the 
Growing Greener legislation, which provided $650 million from the 
state's general funds over five years to clean up critical 
environmental problems, including acid mine drainage from abandoned 
coal mines. State legislators recognized acid mine drainage as 
Pennsylvania's most pressing water quality problem, and they sought to 
provide both liability relief and the money to do the work of 
remediation.
    Removing the obstacles of liability and insufficient funding has 
resulted in a proliferation of active watershed groups in 
Pennsylvania--the Pennsylvania Organization for Watersheds & Rivers 
lists about three hundred watershed alliances, associations, and 
friends--Friends of the Mingo Creek, of the Poquessing Watershed, of 
the Sinking Valley, of the Nescopeck Creek, of the Wissahickon Creek--
just to name a few. The most notable is the community organization 
headed by T. Allan Comp, a historian with the Office of Surface Mining. 
Comp's AMD&ART in Vintondale, Pennsylvania, has won awards for its 
innovative efforts to transform an abandoned colliery into a public 
park and to raise public awareness of the need for cleaning up 
abandoned mines.
    Pennsylvania has managed to relieve Clean Water Act liability, 
provide more than a half-billion dollars of funding for remediation 
projects, and encourage community participation in cleanups on a wide 
scale. Should Western states follow Pennsylvania's example by passing 
their own Good Samaritan legislation?
    The Pennsylvania model is not perfect. Its Environmental Good 
Samaritan law cannot legally supersede the requirements and provisions 
of federal law. Pennsylvania Good Samaritan groups such as AMD&ART, 
Inc. presume that they are protected from Clean Water Act penalties and 
liability as they work under the auspices of their state's Good 
Samaritan law. However, they cannot know for certain if a state or 
federal environmental standards enforcement agency, particularly the 
EPA, will not step in and hold them to the stricter federal standards. 
In fact, EPA officials know that good work is being done in 
Pennsylvania; they want to see mines cleaned up and so are probably not 
going to interfere with the progress. The bigger risk to Pennsylvania 
Good Samaritans comes in the form of citizen groups, especially 
environmentalists, who oppose any laws which allow an exception to or 
variance from the standards and provisions of the Clean Water Act. 
There might be broad agreement on a reasonable approach to cleaning up 
a site, but it would take only one dissatisfied holdout to scuttle a 
project.
Funding Sources for Mine Remediation
    Despite the threat of liability, mine cleanups do happen, either 
through a consent decree that establishes alternative cleanup standards 
for a particular project, or by not directly treating the polluted 
water.
    How are these projects funded? Depending on the severity of a 
mine's pollution, its threat to public health, its environmental 
impact, and its location on public or private land, there are a variety 
of public funding sources and strategies available for cleanups. The 
obvious places are the established federal programs, without which 
virtually all acid mine cleanups would be impossible. Here is a very 
brief description of some of those programs:
    CERCLA. If the pollution is a ``hazardous substance'' and poses an 
immediate threat to human health, the Environmental Protection Agency 
may designate a mine as a Superfund site under the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA). 
Signed into law in 1980, Superfund law initially provided funding 
through a tax on the chemical industry. Congress, however, failed to 
reauthorize this tax in 1995, terminating this source of cleanup 
funding. Now projects done under CERCLA authority depend in part on 
general congressional appropriations to various federal agencies such 
as the EPA. 6
---------------------------------------------------------------------------
    \6\ Abandoned Mine Site Characterization and Cleanup Handbook, 
August 2000, http://www.centerwest.org/acid--mine/reading-
epa910b00001.pdf.
---------------------------------------------------------------------------
    Brownfields Revitalization Act. Acid mine remediators have been 
innovative in tapping other cleanup and redevelopment initiatives that 
were not originally intended for acid mine remediation. The Brownfields 
program, begun in 1995 under the administration of the EPA and as a 
part of CERCLA, seeks to assist states, communities, and other 
stakeholders in the reclamation and redevelopment of ``brown fields''--
those areas, usually located in industrialized cities, that were 
compromised by the presence of hazardous materials and other forms of 
industrial pollution. While initially conceived as a means of 
revitalizing economies in urban, formerly industrial, neighborhoods, 
the Brownfields program now also makes grants to acid mine remediation 
projects where restoration of the natural landscape is the primary 
concern. Brownfields grants emphasize the reclamation of disturbed land 
in contrast to those Clean Water Act Section 319 grants mentioned 
below, which are designed specifically for the remediation of water. 
Where both acreage and water need attention, Brownfields and Section 
319 grants might be used in complementary fashion.
    Brownfields, however, has limitations. Its funds are not currently 
applicable to superfund sites, and loosening this restriction would 
allow many mitigators access to this funding source.
    Clean Water Act Section 319 Non-Point Source grants. These grants 
from the EPA are administered by the states for use by non-profit 
organizations engaged in the design and implementation of watershed 
restoration projects. ``Non-point'' means those polluting sites where 
it is difficult to identify a single point, like a drainage pipe, from 
which the pollution flows. Mines often discharge pollution from tunnel 
openings, but polluted water can also emanate from the site through 
more diffuse seepages.
    SMCRA. Some states like Montana utilize industry tax funds 
collected under the Surface Mining Control and Reclamation Act. Enacted 
in l977, SMCRA was designed to regulate every aspect of coal mining 
operations and to establish standards for the restoration of areas 
disturbed by coal extraction. It has had a profound effect on areas 
where coal was or is now being mined. SMCRA has also been stretched to 
assist in the cleanup of hardrock mining in certain areas. If a state 
can show that it has completed the remediation of its coal mine sites, 
then it becomes eligible to receive SMCRA funds for hardrock abandoned-
mine remediation (but not usually the acid drainage itself).
    Bureau of Land Management. In the 1990s, BLM, in cooperation with 
various states, inventoried and assessed nearly 8,000 abandoned 
hardrock mines on its lands. The BLM now is working to treat those 
sites that cause the most environmental damage to watersheds or pose 
the greatest risks to public health. Like other government entities, 
the BLM works cooperatively with other agencies and private owners to 
secure funds and undertake cleanups in those watersheds most in need of 
remediation. Besides receiving an annual congressional appropriation of 
around $10 million for this work, the BLM also procures funds from 
other AMD-related federal programs. Through these efforts, about a 
dozen BLM abandoned mines are cleaned up each year.
    U.S. Forest Service. National Forest watersheds are the single 
largest provider of municipal water for 66 million people in 33 western 
states, 7 but some 7,600 abandoned mines threaten the 
quality of their water. 8 The Forest Service receives about 
$20 million annually from congress and federal programs for the 
assessment and cleanup of abandoned mines, and usually manages to treat 
between ten and forty projects each year. 9
---------------------------------------------------------------------------
    \7\ U.S. Forest Service's Abandoned Mine Land Program (August 2004) 
http://www.fs.fed.us/geology/fs--aml--program.pdf
    \8\ U.S. Department of Agriculture, Forest Service, FY 2005 Budget 
Justification, available at http://www.fs.fed.us/publications/budget-
2005/fy-2005-budget-justication-pdf.pdf.
    \9\ U.S. Department of Agriculture, Forest Service, FY 2005 Budget 
Justification, at 15-30, available at http://www.fs.fed.us/
publications/budget-2005/fy-2005-budget-justication-pdf.pdf.
---------------------------------------------------------------------------
    These federal programs mesh with the many state programs 
10 in the effort to undertake voluntary cleanups of 
abandoned mines, and Western states establish their own programs and 
funding. Colorado's Inactive Mine Reclamation Program, established in 
1980 spent more than $18 million on abandoned mine remediation in 2002. 
11
---------------------------------------------------------------------------
    \10\ McElfish, J.M., Jr., Bernstein, T., Bass, S.P., and Sheldon, 
E., Hard Rock Mining: State Approaches to Environmental Protection. 
Washington, DC: Environmental Law Institute, 1996.
    \11\ U.S. Department of Interior, Colorado Inactive Mine 
Reclamation Program, Annual Summary Evaluation Report of the Colorado-
Utah Abandoned Mine Land Team (Evaluation Year 2002), available at 
http://www.osmire.gov/../oversight/coloradoaml02.pdf. [check URL]
---------------------------------------------------------------------------
Who Should Pay for Mine Remediation?
    Federal and state funding programs must be carefully designed in 
order to place the financial burden of remediation on the right 
parties. SMCRA, for example, depends on taxation of the coal mining 
industry, and this draws our attention to a contentious issue. The coal 
industry has paid more than $7.2 billion in fees to the SMCRA abandoned 
mine lands fund to date. 12 Coal companies located in 
Wyoming, for example, pay into taxes that are then partially 
redistributed to other states. Why should a Wyoming coal company help 
pay for mine remediation in Colorado or West Virginia? Even more 
puzzling, should this company help pay to clean up a hardrock mine that 
closed down in the late 1800s? The placement of tax burdens on the 
mining industry through programs like SMCRA requires careful 
consideration and committed diplomacy.
---------------------------------------------------------------------------
    \12\ Office of Surface Mining, Abandoned Mine Land Program, 
Completed Reclamation of Problems Created by Mining Other Than Coal 
Mining, available at http://www.osmre.gov.aml.accomp/znoncoal.htm.
---------------------------------------------------------------------------
    Consumers, we believe, have both an opportunity and obligation to 
acknowledge the extent to which they have driven mining enterprises, 
and accept responsibility for the environmental consequences for their 
consumption. Consumers have not seen the true cost of the mineral and 
metal commodities because the price of their goods has not included the 
environmental costs. That cost has been passed on to the future, and 
now the future has arrived. Part of an honest reckoning with the legacy 
of mining must be a willingness on the part of consumers to pay for 
abandoned mine remediation.
    Hardrock miners also fear that any movement to tax their industry 
would have the effect of pricing their commodities out of the 
international marketplace. Such taxation might have the unintended and 
unfortunate effect of increasing the importation of minerals and metals 
from countries with few or no environmental controls. In this case, the 
environmental problems associated with extractive industry would simply 
be exported to another country, as is already beginning to happen in 
the timber industry.
    Western states should also be prepared to assume at least some of 
the financial and legislative responsibility themselves. In these times 
of tight budgets, creative sources of funding will have to be tapped. A 
state tourism tax might be considered because abandoned mine 
remediation restores aquatic habitat, and fishing is a major attraction 
for visitors in most Western states. In general, the financial 
responsibility of acid mine remediation must fall more broadly on those 
who have enjoyed mining's benefits, and that means average American 
consumers. How best to achieve that fairer distribution of financial 
responsibility is open to discussion, but it is time that we consumers 
take responsibility for our part in the environmental legacy of mining.
Congressional Action
    No fewer than five Western Members of Congress--Max Baucus, Mark 
Udall, Scott McInnis, Ben Nighthorse Campbell, Ken Salazar, and James 
Inhofe-- and their cosponsors have introduced environmental Good 
Samaritan bills since 1999. The focus of all of the bills was relief 
from Clean Water Act liability for third parties taking on cleanup of 
abandoned mines. Some of the bills also proposed that royalties on 
hardrock mining be used to fund cleanups. But designing legislation 
with a double mission--providing for Clean Water Act liability 
exemption and setting up a funding mechanism--has thus far proven too 
difficult, and none of these bills succeeded. There is increasing 
sentiment that these two aspects of the problem should be tackled 
separately.
    A partial solution to crafting a Good Samaritan bill is to separate 
the protection from liability from the funding issues. A bill designed 
to allow Good Samaritans to proceed with their work without incurring 
Clean Water Act liability could encounter much less opposition if it 
did not attempt to address the question of who will pay. Such a bill 
could allow individuals or organizations the ability to obtain a permit 
to undertake cleanups of hardrock mines according to adjusted 
environmental standards. Having gotten a Good Samaritan provision in 
place, Congress could then work on the right formula for funding such 
cleanups.
    If Congress amends the Clean Water Act, it should be careful not to 
impair the general integrity of this environmental law. The Clean Water 
Act is generally very useful in protecting the environment from 
industrial polluters. This principal purpose should not be compromised 
in an revision of the Clean Water Act.
    On the other, there is good reason to fight for a stand-alone Good 
Samaritan bill. Good Samaritans working under the shelter of this kind 
of legislation would still be executing a cleanup plan and meeting 
water quality standards, albeit lowered, approved by the EPA. Some 
improvement is better than no improvement. But if we use adjusted 
standards, we must ask ourselves exactly what the goals of cleanup are 
and what constitutes a success. The recalibration of standards to allow 
Good Samaritan actions would need to consider, for example, whether the 
intention of the cleanup would be to return fish to a stream. Is a 
partial cleanup good enough for the fish? Failing this goal, what would 
other cleanup benchmarks be? Would those cleanup goals be too expensive 
to achieve in some areas? Such questions require us to think about the 
precise purposes of a cleanup and where it is feasible to achieve them.
Conclusion
    The environmental laws of the 1960s and 1970s created a new world 
for the operations of extractive industries, and we are all 
beneficiaries of that transformation. And yet those laws were not 
written under divine inspiration. They are not sacred, infallible texts 
that will impart perfect wisdom for all needs or for all time. 
Legislation designed to protect the environment can inadvertently harm 
it.
    I urge you to work toward the passage of a simple, restricted bill 
to allow Good Samaritans the ability to conduct mine cleanups without 
fear of Clean Water Act liability. We need to remain vigilant in 
ensuring that current mining operations would not conduct new mining 
activity under relaxed regulatory standards, but we feel that such a 
risk is acceptable next to the potential environmental benefits 
produced by such a law.
                                 ______
                                 

          An Analysis of Abandoned Mine Good Samaritan Policy

                          Timothy Brown, Ph.D.

                      Center of the American West

                         University of Colorado

                               July 2006

    In October of 2004, The Center of the American West hosted a 
workshop on the problem of acid mine drainage produced by abandoned 
hardrock mines throughout the West. This workshop included state and 
federal officials, environmental advocates, scientists, watershed 
associations, and representatives from the mining industry. The Center 
subsequently published a report in January 2005 that reflected the 
workshop participants' consensus that volunteer, financially 
disinterested parties seeking to clean up abandoned mines and their 
pollutants needed relief from the threat of legal and financial 
liability posed by federal environmental laws, notably the Clean Water 
Act (CWA) and the Comprehensive Environmental Response, Compensation, 
and Liability Act (CERCLA).
    Since the publication of the Center's report, Republican and 
Democratic Members of Congress have joined the effort to remove the 
legal obstacles to mine cleanups. Congress is now contemplating three 
Good Samaritan bills. While there is broad agreement in them on the 
need for the abatement of mine pollution and on the principle of 
liability protection, there remain points of difference.
    As a supplement to its earlier report, this Center of the American 
West paper weighs these differences and offers specific 
recommendations. We hope that our perspective might bring clarity to 
those issues still under deliberation.
    This paper will refer to the bills by their principal sponsors' 
names, thus ``Udall,'' ``Inhofe,'' and ``Salazar.''
Eligibility for Good Samaritan Designation
    Summary: Salazar and Inhofe allow any federal, state, or private 
entity to act as a Good Samaritan so long as it had no causal role in 
the creation of or ownership interest in the mine site in question or 
otherwise carries no liability for the site. Salazar makes an exception 
for those who hold an ownership interest by virtue of a succession to 
title. Udall takes a different approach by designating a federal agency 
to serve as the Good Samaritan except where the mine site is located on 
federal land, in which case a state agency assumes that role. Udall 
thereby retains for a federal or state governmental agency relief of 
liability, and envisions that it would work with one or more 
``cooperating parties'' such as a watershed group or mining company.
    CAW Position: While we understand that Udall attempts to disarm 
concerns that come with extending exceptions to environmental quality 
standards to private entities such as mining companies, we favor the 
more inclusive definition set out in Inhofe and Salazar, and agree with 
Salazar's succession to title provision. The permitting and enforcement 
provisions in these bills are adequate to ensure that Good Samaritan 
entities will be held to the objective of environmental improvement. In 
the interest of removing obstacles to mine cleanups, the Inhofe/Salazar 
definition allows the private sector to seize the initiative and guide 
the process from a more local set of interests.
    As a matter of practicality, Good Samaritan entities are by 
necessity consortiums of local, state, and government agencies, and 
nonprofit organizations and for-profit businesses. This reality will 
render any of the proposed statutory definitions of a Good Samaritan 
largely moot, and require the permitting authority to rule on exactly 
what entity is being granted the cleanup permit. For example, The Snake 
River Watershed Task Force, a coalition working to improve the water 
quality in Peru Creek and the Snake River in Summit County, Colorado, 
lists as members consultants, the Colorado Division of Minerals and 
Geology, the EPA, the U.S. Forest Service, Keystone Resort, private 
citizens, the U.S. Geological Survey, water utilities, the Colorado 
Department of Public Health and Environment, Summit County Open Space 
and Trails, the University of Colorado, Trout Unlimited, the Colorado 
School of Mines, the Trust for Land Restoration, and the Northwest 
Colorado Council of Governments. All these groups must participate for 
a successful outcome, but this association remains informally 
constituted and unincorporated. How would it appear as a Good Samaritan 
applicant? The permitting authority will have to decide how it will 
designate as the Good Samaritan one or another member of such 
consortiums, or if it will give the consortium an individual corporate 
identity. At a minimum, the liability protection must cover that 
business which does the physical work at the mine site, but the 
operator of any passive or active treatment system must also have 
protection. There may be in some cases a need to cover multiple 
entities under the same permit.
Funding of Projects
    Summary: All three bills require that applicants demonstrate the 
financial capability to complete the proposed work. While this does not 
probably mean that the Good Samaritan must have the money on hand at 
the time of application, it does mean that the permitting authority 
would have to be satisfied that the project is financially viable.
    CAW Position: While all of the bills want assurances that the 
project has adequate funding, it is likely that a Good Samaritan would 
have greater success in securing grants and raising corporate money 
after the cleanup permit has been secured. The language in Udall and 
Inhofe should be softened by requiring in the application a project 
budget and proposed funding strategy, rather than a demonstration of 
sufficient financial resources.
    The funding language in all three bills could also recognize that 
the issue of funding pertains not just to the completion of the initial 
cleanup, but also to the maintenance of acid mine drainage treatment 
systems into the indefinite future. A Good Samaritan permit should 
require that the applicant make, as far as is reasonable and 
practicable, arrangements for the maintenance and operation of 
treatment systems in perpetuity.
    While it seems not politically feasible at this time for a Good 
Samaritan bill to contemplate funding programs, the scope and longevity 
of the problem posed by acid mine drainage will sooner or later require 
Congress to raise and appropriate more funds for hardrock mine 
remediation. Upon seeing a period of successful Good Samaritan 
projects, Congress may wish to guarantee the appropriation of 
maintenance funds for those projects that have made significant 
environmental improvements.
Future landowners
    Summary: The Udall bill is unique in obligating the owner of a site 
to establish a covenant whereby any future owners are required to 
operate and maintain whatever treatment systems are in place. Any 
future owner may not degrade, neglect, or disturb mine remediation 
work. However, future owners need not show their financial capability 
to do so.
    CAW Position: This provision goes some way in addressing the issue 
of perpetual maintenance, and the potential for remediation systems to 
fail or loose efficacy through neglect or mismanagement. However, none 
of the bills gives the issue of perpetual maintenance adequate 
emphasis.
Remining (distinct from recycling or reprocessing)
    Summary: Udall requires that any development of a historic mine 
site be conducted under normal permitting provisions of the Clean Water 
Act and any other applicable regulatory regime. Moreover, Udall 
excludes any site with economic mineral value from its Good Samaritan 
provisions. In other words, an eligible site must not have obvious 
remining potential. Likewise, Inhofe and Salazar do not allow for new 
mining activity to be conducted under the Good Samaritan remediation 
permit.
    CAW Position: The role of the mining industry in Good Samaritan 
actions has been one of the more difficult points of negotiation in 
crafting legislation. The Center's report broached the issue of 
remining, giving a brief outline of the advantages and potential 
drawbacks in allowing mining companies to conduct new mining activities 
at a historic site while remediating polluting residues. Mining 
companies should be given the opportunity to participate in Good 
Samaritan actions; they have the equipment and expertise. These three 
bills, however, are correct in disallowing any new mining activities 
under a Good Samaritan permit. Should a mining company wish to engage 
in the mining of virgin ground, it should undertake that activity under 
the purview of normal leasing and permitting processes.
    It is necessary to differentiate clearly environmental Good 
Samaritan projects from commercial activities; although these actions 
may be physically compatible at some sites, their combination may 
create a conflict of priorities and interests in the execution of the 
remediation activities.
    There remains, however, compelling commercial reasons why a mining 
company would spend its resources on Good Samaritan cleanups. For these 
companies, the greatest value in such projects lies not in the minerals 
that they might take away from the site, but in the good will and 
improvement in public image accruing to them from cleaning up the 
environment. Mining companies should be full partners in watershed 
improvement associations, and they should enjoy the full commercial 
value that is earned through responsible corporate citizenship.
    The question of remining should, in any case, be framed in terms of 
its real economic potential. Of those historic mines in greatest need 
of remediation, it remains unclear how many offer real remining 
possibilities. Until this number is given some definition, the question 
of remining remains abstract; in fact, it may be a moot point if few 
mines are remining candidates.
Recycling
    Summary: Each bill allows for the recovery of minerals from the 
historic mine residues such as tailings and ore, but on different 
terms. Udall allows a Good Samaritan cleanup to use or sell minerals 
recovered in the course of the implementation of the cleanup, but the 
consequent earnings must be used to defray costs at some Good Samaritan 
remediation project. Inhofe and Salazar put no such conditions on the 
use of the recovered minerals, however, Inhofe's language may be 
interpreted as being more restrictive than Salazar's.
    CAW Position: Remediation projects are costly, and any opportunity 
to subsidize the expenses through the recycling of residual minerals 
makes good sense. Udall's stipulation that such funds directly go 
toward cleanups is probably redundant, but it raises the larger issue 
of the ownership of such materials. Given the membership of Good 
Samaritan organizations such as the Snake River Watershed Task Force, 
the permitting authority will not only have to decide what entity is 
designated as Good Samaritan but also who owns the rights to the 
residual minerals. Presumably, the value of minerals would be used to 
reimburse an association's members for the resources spent on their 
project.
    The mining industry believes that the Inhofe bill, with its 
reference to ``incidental'' reprocessing of mine residue, is more 
restrictive than Salazar. Given Salazar's prohibition on remining, its 
definition of recycling or reprocessing is adequate.
Standards
    Summary: Udall and Salazar similarly prescribe that a Good 
Samaritan action achieve CWA quality standards to the maximum extent 
circumstantially, reasonably, and practicably possible. That is, the 
CWA standard remains the objective, but need not be met. Udall requires 
that applicants show with ``reasonable certainty'' that their project 
will achieve some improvement. Inhofe departs from the CWA framework by 
requiring the project to result in some degree of improvement to the 
larger watershed.
    CAW Position: Inhofe appropriately recognizes that many watersheds 
are dotted with mines that individually contribute to an overall 
degradation of the environment, and that the treatment of any one mine 
is only an incremental improvement in a larger hydrological system. The 
standard of success should therefore not be measured at any one mine, 
but in the overall improvement of the ecosystem within a watershed. 
Individual mines within a watershed may not achieve CWA standards after 
treatment, but their incremental improvement should cumulatively allow 
the main watercourses to support aquatic life. The permitting authority 
may have to determine what is a meaningful level of improvement at a 
specific mine in context of the larger watershed, and grant or deny 
applications on the likelihood that a Good Samaritan action would 
achieve that level of improvement.
Scope of Liability Relief
    Summary: As an amendment to the CWA, Udall explicitly extends 
liability relief only for CWA Sec. 402. Udall presumes that a Good 
Samaritan permit would also provide protection from CERCLA liability, 
and that CERCLA contains its own Good Samaritan accommodations. Inhofe 
would shelter Good Samaritans from CWA and CERCLA, while Salazar 
extends relief for CWA, CERCLA, the Toxic Substances Control Act, Safe 
Drinking Water Act, National Environmental Policy Act, Solid Waste 
Disposal Act, Clean Air Act, Uranium Mill Tailings Radiation Control 
Act, and applicable state and local environmental laws.
    CAW Position: In identifying CWA and CERCLA for liability 
protection, Inhofe correctly gauges the needs of Good Samaritan to 
proceed with their work. Udall falls short in assuming that CERCLA 
liability is otherwise neutralized, and Salazar needlessly extends 
relief to laws that have not been impediments to Good Samaritan 
actions, and will thereby arouse opposition from environmentalists. 
Salazar's inclusion of additional laws will only create unforeseen 
problems and consequences. It is best to begin with the most minimal 
necessary fix possible, and make adjustments as the need arises.
Conclusion:
    While all three bills offer certain advantages, Inhofe, if passed 
into law, would best test the premise that the CWA and CERCLA currently 
stands between would-be Good Samaritans and environmental restoration 
without undue weakening of these environmental laws. Inhofe strikes the 
best balance between environmental and industry concerns on the 
question of remining and recycling, and correctly delineates the scope 
of liability relief. So too is its emphasis on watershed improvement 
well conceived. Finally, Inhofe proposes a very rigorous permitting 
process and potentially responsible party search process, both 
strengths. However, Inhofe could adopt the succession to title 
provision of Salazar, and as well as soften its language on recycling. 
Inhofe would be improved also by addressing the issue of perpetual 
maintenance with a future landowners' covenant as is found in Udall.

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                 ______
                                 
    [The response to questions submitted for the record by Mr. 
Brown follows:]

Response to questions submitted for the record by Timothy Brown, Ph.D., 
          Center of the American West, University of Colorado

    Question: You also advocate, and I quote from your statement, ``a 
broad definition of who might qualify as a Good Samaritan even through 
some bad actors using this status may be tempted to conduct new mining 
activities without proper permits. This seems to us a marginal risk 
given the potential for environmental improvement.''
    How did you reach this conclusion? What do you mean by ``marginal 
risk'' and do you also think mining companies should profit from ``Good 
Samaritan'' projects?
    Response: Environmental advocates have long expressed the concern 
that some mining companies might surreptitiously conduct new mining 
activity while remediating a site under the protection of a Good 
Samaritan permit. I conclude, however, that this risk is negligible and 
should not undermine the more real potential benefits that would come 
from the participation of mining companies in Good Samaritan actions. I 
therefore believe that mining companies, with their capacity to conduct 
the physical work of remediation and thereby function as the 
``operator'' of an abandoned mine, must be eligible for Good Samaritan 
protection.
    The question of Good Samaritan eligibility, in any case, is not 
adequately addressed in any of the proposed bills. As a matter of 
practicality, Good Samaritan entities are by necessity consortiums of 
local, state, and government agencies, and nonprofit organizations and 
for-profit businesses. This reality is not contemplated by any of the 
proposed statutory definitions of a Good Samaritan, and will require 
the permitting authority to decide what entity is being granted the 
cleanup permit. For example, The Snake River Watershed Task Force, a 
coalition working to improve the water quality in Peru Creek and the 
Snake River in Summit County, Colorado, lists as members consultants, 
the Colorado Division of Minerals and Geology, the EPA, the U.S. Forest 
Service, Keystone Resort, private citizens, the U.S. Geological Survey, 
water utilities, the Colorado Department of Public Health and 
Environment, Summit County Open Space and Trails, the University of 
Colorado, Trout Unlimited, the Colorado School of Mines, the Trust for 
Land Restoration, and the Northwest Colorado Council of Governments. 
All these groups must participate for a successful outcome, but this 
association remains informally constituted and unincorporated. How 
would it appear as a Good Samaritan applicant? The permitting authority 
will have to decide how it will designate one or another member as the 
Good Samaritan, or if it will give the consortium a unified corporate 
identity. At a minimum, the liability protection must cover that entity 
that does the physical work at the mine site, but the operator of any 
passive or active treatment system must also have protection. There may 
be in some cases a need to cover multiple entities under the same 
permit.
    Having said that mining companies should be eligible for Good 
Samaritan protection, I also believe that the Good Samaritan entity 
should be able to recover its costs so far as is possible from the 
reprocessing or recycling of historic mineral residues. The residual 
ore, tailings and waste rock that must otherwise be removed or capped 
may as well be processed, probably off-site, for their mineral value. 
However, the question of whether or not a mining company should profit 
from a Good Samaritan action is based on a faulty premise. Good 
Samaritan organizations, like the Snake River Watershed Task Force, may 
include mining companies as participating members, but it is improbable 
that a mining company could be the sole entity in a Good Samaritan 
action, and even less likely that a mining company would initiate a 
remediation project for its dollar-profit potential.
    The three Good Samaritan bills, however, are correct in disallowing 
any remining (extraction of minerals from previously undisturbed ground 
at a historic mine site) under a Good Samaritan permit. Should a mining 
company wish to engage in the mining of virgin ground, it should 
undertake that activity under the purview of normal leasing and 
permitting processes. There remains, however, compelling commercial 
reasons why a mining company would spend its resources on Good 
Samaritan cleanups. For these companies, the greatest value in such 
projects lies not in the minerals that they might take away from the 
site, but in the good will and improvement in public image accruing to 
them from cleaning up the environment. Mining companies should be full 
partners in watershed improvement associations, and they should enjoy 
the full commercial benefit that is earned through responsible 
corporate citizenship. The question of remining should, in any case, be 
framed in terms of its real economic potential. Of those historic mines 
in greatest need of remediation, it remains unclear how many offer real 
remining possibilities. Until this number is given some definition, the 
question of remining remains abstract; in fact, it may be a moot point 
if few mines are remining candidates.
    Question: Please define ``reprocessing of waste, ore or tailings,'' 
``reclamation mining,'' ``recycling of waste, ore and tailings,'' 
``incidental reprocessing or waste rock piles,'' and ``remining.''
    Response: With the Subcommittee's permission, I will defer the 
definitions of those terms to those panelists with technical expertise 
in mining practices.
    Question: You've stated that the consumer is ultimately responsible 
for the environmental legacy of AML sites. That's a refreshing notion. 
Just how would get the consumer to pay for that legacy?
    Would you do so through a consumption tax on end products? Assuming 
that the consumer will resist or oppose that tax, doesn't it seem to 
lead you to the equally compelling notion that a ``self-interested 
person'' might well be the vehicle for undertaking Good Samaritan 
operations by making a profit either as a miner or as a re-processor of 
wastes, as both Mr. Quinn and Ms. Skaer seem to favor?
    Response: Consumers have an obligation to acknowledge that historic 
mining greatly contributed to the building of American society, but 
that legacy also comes with an environmental cost. However, consumers 
have not seen the true cost of mineral commodities because the historic 
pricing of mineral commodities has not factored in abandoned mine 
cleanups. Those costs have been passed on to future generations of 
Americans. In truth, we have turned out to be that generation, as our 
need for ample supplies of clean water and for a healthy environment 
becomes more acute. Part of an honest reckoning with the legacy of 
mining must be a willingness on the part of consumers to pay for 
abandoned mine remediation. Fiscal policy is not any area of my 
expertise, but I would suggest that the proper place to raise revenue 
for acid mine remediation at historic sites is a tax, not on mining 
production, but on mineral consumer products. Such a tax would place 
the financial burden of AML remediation more directly on the consumers 
who continue to enjoy a quality of life and standard of living largely 
derived from the historic abundance of mineral commodities.
    All participants in a Good Samaritan action are self-interested; 
they all want to realize some benefit from a mine cleanup. It is not 
correct to think of a Good Samaritan action as altruistic. However, 
Good Samaritans may be motivated by many different values. Some want to 
restore an impaired river so that it once again supports aquatic life. 
For them, there may be great value in simply reintroducing a rare 
native trout species. Some others would see in a revived fishery the 
tourist and recreational dollars brought by anglers. Others might see 
in a mine cleanup a solution to a municipal water shortage. Mining 
companies, therefore, would not be unique in expecting to derive some 
benefit from contributing to a Good Samaritan action.
    I have argued above that, in the absence of better estimates on the 
remining and recycling potential of abandoned mines sites, the greatest 
value of Good Samaritan participation for mining companies is in the 
accrual of good will and improvement in their pubic image. Again, the 
question of for-profit cleanups rests on faulty premises. That a 
dollar-profit motive would spur Good Samaritan cleanups presumes that a 
mining company could initiate and conduct such cleanups as a kind of 
for-profit business. However, such cleanups require extensive 
cooperation between many different federal, state, and local 
stakeholders. A mining company could not go it alone. H.R. 5404 
acknowledges this reality emphasizing the language of cooperative 
conservation.
                                 ______
                                 
    Mrs. Drake. Thank you, Mr. Brown, and next we'll recognize 
Mr. Hal Quinn with the National Mining Association for 5 
minutes. Thank you, Mr. Quinn, for being here.

        STATEMENT OF HAL QUINN, SENIOR VICE PRESIDENT, 
                  NATIONAL MINING ASSOCIATION

    Mr. Quinn. Morning, Madam Chairwoman and members of the 
Subcommittee. Thank you for the opportunity to share with you 
the National Mining Association's views on promoting the 
voluntary cleanup of abandoned mines.
    Many parties who have participated in this discussion over 
the years, including the Western Governors Association, the 
National Academy of Sciences, The Center for the American West, 
and the Environmental Protection Agency, to name a few, have 
all recognized that various regulatory and legal impediments 
deter public and private parties from engaging in voluntary 
efforts to clean up abandoned mine sites. There seems to be a 
general consensus that legislation is necessary to remove these 
barriers and provide a framework of greater regulatory legal 
certainty in order to promote these public and private efforts.
    Today I would like to briefly present five core principles 
the National Mining Association believes are essential for an 
effective Good Samaritan legislation.
    First, mining companies that did not create the 
environmental problems at abandoned mine sites should qualify 
as Good Samaritans. Mining companies have the resources, 
expertise, experience and technology to efficiently and 
appropriately assess and address the public safety 
environmental problems at such sites often in conjunction with 
their nearby mining operations, where necessary equipment and 
manpower is already mobilized.
    Second, a Good Samaritan project should be subject to 
review and authorized through a Good Samaritan permit after an 
opportunity for public participation in the form of notice and 
comment and, if necessary, a hearing or conference.
    Third, a Good Samaritan project should be authorized so 
long as they result in improvement to the environment, if they 
will not result in the cleanup of all contaminants or address 
every environmental condition. Improvement, not perfection, 
should be the standard of performance.
    Fourth, a Good Samaritan program must provide the 
flexibility to adjust environmental requirements and standards 
and address liability exposures arising under Federal and State 
laws, particularly liability under CERCLA, the Clean Water Act, 
the Clean Air Act, the Toxic Substances Control Act, and the 
Resource Conservation and Recovery Act, which all deter Good 
Samaritans from undertaking beneficial remedial actions.
    Finally, the types of remedial activities that could be 
authorized as Good Samaritan activities must also include the 
reprocessing and reuse of ores, minerals, waste and materials 
existing at the site. Such processing and reuse of historic 
mining materials may often be the most efficient and least 
costly means of cleaning up the AML site.
    The fact a Good Samaritan can recover its costs and even 
make a profit on such activities would provide just an 
additional incentive for engaging in such AML cleanup efforts. 
Legislation which embodies these core principles would remove 
the most significant barriers and provide appropriate 
incentives for private and public efforts to move forward with 
voluntary cleanup efforts while protecting the environment and 
the interests of the public.
    We would commend to the Subcommittee's attention S. 1848, 
the Cleanup of Active and Abandoned Mines Act, introduced by 
Senators Allard and Salazar of Colorado. We believe that bill 
contains many of the core elements necessary to remove the 
existing impediments that deter mining companies and others 
from undertaking voluntary investigations and remediations of 
abandoned mines.
    Again, I thank the members of the Subcommittee and the 
Chair for the opportunity to appear today and share with you 
our views about legislation designed to remove barriers to the 
voluntary cleanup of abandoned mine sites.
    [The prepared statement of Mr. Quinn follows:]

     Statement of Harold P. Quinn, Jr., Senior Vice President and 
              General Counsel, National Mining Association

Introduction:
    My name is Hal Quinn. I am the Senior Vice President and General 
Counsel of the National Mining Association (NMA). NMA is the national 
trade association whose members include the producers of most of the 
nation's coal, metals, industrial and agricultural minerals, the 
manufacturers of mining and mineral processing machinery, equipment and 
supplies, and the engineering and consulting firms, financial 
institutions and other firms serving the mining industry.
    The mining industry has long been interested in promoting the 
voluntary cleanup of abandoned mine lands (AML's). NMA, in cooperation 
with the Western Governors' Association, started the Abandoned Mine 
Lands Initiative (AMLI). The AMLI was the first cooperative effort 
between industry and government to address AML issues, and focuses on 
disseminating data on the scope of the AML problem, technologies that 
can be used to address AML sites, and legal impediments to voluntary 
cleanup of AML's. NMA, along with the Office of Surface Mining (OSM) 
and the Interstate Mining Compact Commission (representing the States), 
also co-founded the Acid Drainage Technology Initiative (ADTI). The 
purpose of the ADTI is to develop and disseminate information about 
cost-effective and practical methods and technologies to manage 
drainage from active and abandoned mining and processing operations. A 
report published in 1998 by the National Mining Association entitled 
``Reclaiming Inactive and Abandoned Mine Lands--What is Really 
Happening'' 1 describes how, given the right opportunity, 
the mining industry can play a significant role in improving 
environmental conditions at abandoned and inactive mines.
---------------------------------------------------------------------------
    \1\ Reclaiming Inactive and Abandoned Mine Lands--What Really is 
Happening, Struhsacker, D.W., and Todd, J.W., prepared for the National 
Mining Association, 1998.
---------------------------------------------------------------------------
    I am here on behalf of the National Mining Association and its 
member companies to urge this committee to develop Good Samaritan 
legislation that will create a framework for private parties and 
government agencies to voluntarily remediate the environmental problems 
at abandoned hardrock mine lands. The Western Governors' Association, 
the National Academy of Sciences, and the Center of the American West 
have all recognized the legal impediments to voluntary clean-ups of 
AMLs deriving from federal and State environmental laws, and have urged 
that these impediments be removed. 2
---------------------------------------------------------------------------
    \2\ See Western Governors' See Western Governors' Association & 
National Mining Association, Cleaning Up Abandoned Mines: A Western 
Partnership at 8, available at www.westqov.orq/wqa/publicat/
mininqre.pdf; National Research Counsel, Hardrock Mining on Federal 
Lands (1999)at 72, reproduced at http://www.nap.edu/html/
hardrockfedland/index.html; Center of American West, Cleaning Up 
Abandoned hard rock Mines in the West (2005) at 20-24, available at 
www.centerwest.org/cawabandonedmines.pdf.
---------------------------------------------------------------------------
    I would like to summarize five key concepts that must be included 
for effective Good Samaritan legislation:
    1.  Mining companies that did not create the environmental problems 
caused by the AML in question should qualify as ``Good Samaritans.'' 
Mining companies have the resources, expertise, experience and 
technology to efficiently and appropriately assess the problems, often 
in conjunction with undertaking reclamation measures at nearby active 
mines which the company operates.
    2.  Individual Good Samaritan projects should be subject to review 
and authorization by EPA, after adequate opportunity for public notice 
and comment. Such authorization, which can be granted in the form of a 
Good Samaritan permit, would specify the scope and details for the Good 
Samaritan project that will be undertaken. Governmental authorization 
of such projects will ensure that a Good Samaritan permit is not used 
to engage in other activities that are not necessary to remediate the 
site.
    3.  Perfection or significant improvement should not be the clean-
up standard in every case, particularly where persons will be 
voluntarily remediating problems for which they have no legal or 
factual responsibility. Good Samaritan projects should be allowed so 
long as they result in an improvement to the environment, even if they 
will not result in the clean-up of all contaminants at an AML or the 
attainment of all otherwise applicable environmental standards, such as 
stringent water quality standards.
    4.  There must be discretion under any Good Samaritan program to 
adjust environmental requirements, standards and liabilities arising 
under State and federal environmental laws (particularly liability 
under CERCLA, the Clean Water Act, the Clean Air Act, the Toxic 
Substances Control Act, the Resource Conservation and Recovery Act and 
others) that deter Good Samaritans from undertaking beneficial remedial 
actions.
    5.  The types of remedial activities that can be authorized as Good 
Samaritan activities must include the reprocessing and reuse of ores, 
minerals, wastes, and materials existing at an AML--even if this may 
result in the mining company recovering metals from such wastes and 
making some cost recovery and profit. Such processing and reuse of 
historic mining materials may often be the most efficient and least 
costly means of cleaning up an AML, with the wastes from any 
reprocessing or reuse activities being disposed of in accord with 
current environmental standards. The fact that a Good Samaritan could 
potentially make a profit on such activities would provide an added 
free market incentive for companies to clean up AML's, although it 
should be kept in mind that, given the costs involved and the 
volatility of commodity prices, it is just as likely that a company 
could lose money as make a profit. Considering the level of downside 
risk involved, there must be the possibility for at least some upside 
potential. The goal should be on remediating the AML's and if the 
potential to realize a profit from an AML provides an incentive to 
achieve that goal then it should be allowed.
BACKGROUND
    By way of background, mining activities have taken place in the 
Western States (including on public lands) for the past century and a 
half. Most of this mining occurred before the advent of modern 
environmental regulation at the State or federal level. As a result, 
many historic mining operations were abandoned without being adequately 
reclaimed to ensure against potential future environmental damage. 
Although there are thousands of AML's located in the western States, no 
one really knows how many pose significant dangers to our nation's 
waterways, soils, groundwater or air. The Western Governors' 
Association has estimated that more than 80 percent of AML's do not 
pose any environmental or safety problems. 3 The Center of 
the American West recently concluded that ``only a small fraction'' of 
the abandoned mines are causing significant problems for water quality. 
4 Nonetheless, the federal land management agencies and the 
States are generally agreed that at least some percentage of these 
AML's are causing or contributing to the impairment of rivers, streams, 
and potential contamination of air and groundwater resources.
---------------------------------------------------------------------------
    \3\ Western Governors' Association & National Mining Association, 
Cleaning Up Abandoned Mines: A Western Partnership at 5, available at 
www.westgov.org/wga/publicat/miningre.pdf.
    \4\ Center of the American West, Cleaning Up Abandoned Hardrock 
Mines in the West (2005) at 31.
---------------------------------------------------------------------------
    At the vast majority of AML's, there are no financially viable 
owners, operators, or other responsible persons whom the federal 
government or the States can pursue in order to fund clean-up of these 
sites. While the federal land management agencies can use monies within 
their budgets to investigate or remediate AML's located on the public 
lands, the fact is that those budgets are limited. So are grant monies 
that can be provided under environmental programs aimed at 
investigating or remediating pollution, such as Clean Water Act 
Sec. 319 grants or grants under the Brownfields Revitalization Act. 
Effective Good Samaritan legislation can, we believe, provide 
incentives for a diverse array of persons, ranging from local, state, 
and federal agencies to citizen's groups, non-Governmental 
Organizations, private landowners, and companies, to partially fill 
this gap and help remediate some AML's posing environmental dangers.
ELEMENTS OF EFFECTIVE GOOD SAMARITAN LEGISLATION
    Efforts to enact Good Samaritan legislation have been ongoing in 
the Congress for the past decade. It has become clear to NMA and its 
members that, in order to be effective, Good Samaritan legislation must 
include a number of elements.
    1.  Mining Companies must be allowed to qualify as Good Samaritans. 
The NMA supports the concept that to be a Good Samaritan, an entity 
must not have caused the environmental pollution at issue. That does 
not mean, however, that all mining companies should automatically be 
excluded from the universe of persons who can qualify as Good 
Samaritans. The majority of AMLs were created decades before modern 
environmental laws were enacted. There is simply no reason to preclude 
an existing company that is not responsible for creating the orphaned 
site from being a Good Samaritan.

       To the contrary, there are good reasons why mining companies 
should be allowed to qualify as Good Samaritan. Mining companies have 
the resources, know-how and technology to properly assess environmental 
dangers posed by an AML, and to efficiently remediate such sites. 
Indeed, to the extent that AML's are located near active mining 
operations, a mining company would in the best position to efficiently 
use equipment and personnel from its current operations, including its 
current reclamation operations, to remediate or reclaim a nearby AML.
    2.  The EPA Must Authorize Good Samaritan Projects. Good Samaritan 
projects should be approved by EPA, or by a state implementing a 
delegated program, after prior notice to and comment from the public. 
Such approval should be given if the project will result in 
environmental improvement. Appropriate conditions (such as monitoring 
requirements and financial assurance requirements) should be included 
in a Good Samaritan permit.
    3.  EPA must be given discretion, on a case by case basis, to 
revise the regulatory and/or liability provisions of federal and State 
environmental law that might otherwise apply to the Good Samaritan. The 
main obstacles to mining companies and others to conduct voluntary 
clean-ups at AML's are the potential liabilities and requirements 
deriving from federal and state environmental laws. A Good Samaritan 
that begins to clean up, or even investigate, an AML runs the risk of 
being an ``operator'' under CERCLA, and could become liable for 
cleaning-up all pollution at the site to strict Superfund standards. A 
Good Samaritan also runs the risk of having to comply in perpetuity 
with all Clean Water Act requirements for any discharges from the site, 
including stringent effluent limitations and water quality standards. 
These are liabilities and regulatory responsibilities that mining 
companies and others are unlikely to voluntarily accept, particularly 
with respect to AML's that are posing significant environmental 
problems. NMA members have, for instance, in the past considered taking 
actions to voluntarily address pollution at a certain inactive site 
near active operations throughout the West, but ultimately declined to 
do so because of the potential liability concerns under CERCLA, the 
Clean Water Act, the Clean Air Act, and possibly other environmental 
laws.

       Some have argued that the EPA's discretion to revise regulatory 
requirements should be limited to the Clean Water Act and CERCLA. A 
Good Samaritan could easily find itself incurring liability under other 
environmental acts as well. While NGOs may not be particularly worried 
about being sued under these other laws out of professional courtesy to 
each other, a mining company has no such expectation. In order for the 
mining industry to participate in Good Samaritan efforts, there needs 
to be assurance that the mining company will not be subject to suits 
after the fact for having done exactly what was permitted by the EPA.

       Good Samaritan legislation should not be so narrowly drafted as 
to adopt a one-size-fits all approach. Since the environmental 
characterization of each site will vary drastically, the permit-writer 
must be given the discretion to tailor the permit to the specifics of 
the site. This should be done on a site-by-site basis. The legislation 
must allow the permit issuer, on a case-by-case basis, to relax the 
liability provisions and regulatory standards that might otherwise 
apply to the Good Samaritan project so long as: (1) the project would 
result in some environmental benefit; and (2) the project would not go 
forward absent the waiver of such provisions and standards. As 
discussed previously, the Western Governors' Association, the National 
Academy of Sciences and the Center for American West have all urged 
that certain environmental standards and liabilities otherwise 
applicable to a Good Samaritan be waived or relaxed, in order to 
encourage Good Samaritan clean-ups.
    4.  Good Samaritan legislation must not unduly narrow the types of 
activities that constitute legitimate remediation. Abandoned hardrock 
mines pose a variety of environmental and safety problems throughout 
the West. They also call for a variety of clean-up measures. At some 
sites, the physical removal of wastes and their disposal off-site may 
be the appropriate solution. At other sites, it may be a matter of 
diverting stormwater or drainage away from wastes and materials that 
are highly mineralized. And yet, at other sites, the best, most 
efficient, and least costly way to partially or wholly remediate the 
environment may be to collect the various wastes and materials located 
at the site, to then process those wastes and materials to remove any 
valuable minerals contained in them, and then to dispose of the wastes 
from the reprocessing operation in an environmentally-sound manner.

       AML's are located in highly mineralized areas--that is why 
mining occurred at those sites in the first place. Often, materials and 
wastes abandoned by historic mining operations have quantities of a 
desired metal (such as gold, silver, zinc, or copper) that can be 
recovered with modern mining technology. Allowing the mining company--
particularly a company with operations nearby to an AML ``to process 
such materials and wastes as part of the Good Samaritan project would 
provide a financial incentive for mining companies to remediate such 
sites.

       We recognize that some groups are opposed to allowing mining 
companies to ever make a profit through Good Samaritan activities. Some 
groups have even argued that a mining company might seek to misuse Good 
Samaritan legislation as a way to engage in new mining, beneficiation 
and mineral processing operations without complying with the 
environmental laws that apply to such operations.

       Such concerns are misplaced. NMA member companies have no plans 
to utilize Good Samaritan legislation to undermine application of all 
legitimate mining projects. Nor could they. Under our proposal, a Good 
Samaritan could not proceed without a permit. Prior to issuing a 
permit, the regulatory agency will certainly be aware--and if they are 
not, the public would make them aware--if a given project is in fact a 
stand-alone economically viable project that the mining company would 
undertake without Good Samaritan protections. The permit-writer will 
also know whether what is being authorized is focused on remediating 
existing pollution, or whether the project is a for-profit operation 
operating under the guise of cleanup.

       We also disagree with the notion that a mining company should 
never be in a position to make a potential profit from clean-up 
activities. Unlike governmental entities and some NGOs who might 
undertake Good Samaritan activities, a mining company will be spending 
its own funds (not grants obtained from EPA or States) to undertake 
remediation activities. If it turns out that the price of a metal 
recovered through remediation activities is such that the mining 
company has made a profit, this does not detract from the fact that, 
without spending public funds, the mining company has in fact 
remediated an environmental danger. Moreover, the price of any given 
metal could just as likely go down as go up, leaving the mining company 
with no profit. In fact, a number of potential complications or 
unexpected conditions could arise during clean-up and rapidly change 
the economics. Considering the level of downside risk involved, there 
must be the possibility for at least some upside potential.
CONCLUSION
    Legislation that embodies the concepts discussed above will provide 
incentives to mining companies and other entities to go forward and 
voluntarily remediate AML's, while fully protecting the environment and 
the interests of the public. We would commend to the Committee's 
attention S. 1848, the Cleanup of Inactive and Abandoned Mines Act, 
introduced by Senators Wayne Allard (R-Col.) and Ken Salazar (D-Col.) 
as well as H.R. 5404, the Good Samaritan Clean Watershed Act, 
introduced by Chairman John Duncan (R-TN.) on behalf of the 
Administration. We believe that these bills represent a good starting 
point for those elements necessary to remove existing legal impediments 
that deter companies and others from undertaking investigations and 
remediation of AML's. We also believe that these bills fully protect 
the public interest by requiring EPA to sign off on any Good Samaritan 
permit, and by only allowing such permits in situations where the 
environment will be significantly benefited.
    I will be happy to answer any questions that members of this 
Committee may have.
                                 ______
                                 
    [The response to questions submitted for the record by Mr. 
Quinn follows:]

                      National Mining Association

                     101 Constitution Avenue, N.W.

                             Suite 500 East

                         Washington, D.C. 20001

                           September 1, 2006

Congressman James Gibbons
Chairman, Subcommittee on Energy and Minerals
House Resources Committee
1626 Longworth HOB
Washington, DC 20515

Dear Chairman Gibbons:

    Thank you for inviting the National Mining Association (NMA) to 
testify before the Committee on Resources Subcommittee on Energy and 
Mineral Resources at the July 13, 2006 hearing regarding 
``Opportunities for Good Samaritan Cleanup of Hardrock Abandoned Mine 
Lands.'' This letter provides NMA's responses to follow-up questions 
posed by members of the subcommittee.

    1.  Mr. Quinn and Ms. Skaer, while the EPA seems to be advocating a 
Good Sam program that is a parallel to the Brownfields program, you do 
not seem to be taking the same approach. Your testimony suggests that 
what you are after is an alternative to the permitting programs that 
exist for environmental control of mine operations. Please explain.
    NMA is not advocating an alternative to the permitting programs 
that exist for environmental control of mining operations. In fact, NMA 
does not anticipate that enactment of Good Samaritan legislation would 
in any way affect the current regulatory scheme that governs current 
active mining operations. What NMA does advocate is legislation that 
would provide the regulatory agencies with the authority to exempt a 
``Good Samaritan'' from some or all liability under certain 
environmental laws that deter voluntary cleanup of abandoned mined 
lands (AML). Furthermore, NMA believes the mining industry is best 
equipped to provide the necessary expertise, experience and technology 
to assess and design appropriate solutions, often in conjunction with 
the completion of reclamation activities at nearby active mines 
operated by a mining company.

    2.  Please define the following terms in the context of a ``Good 
Samaritan'' permit:
      Reprocessing of waste, ore or tailings:
        Activities associated with the beneficiation or re-
processing of previously mined and/or processed material (such as low-
grade ore stock piles, leached heaps, waste rock, and tailings) found 
at an AML site for the purpose of extracting metals. As indicated in 
our testimony before the Committee on July 13, such previously mined 
and/or processed materials found at AMLs often contain concentrations 
of desired metals (such as gold, copper, lead, etc.) or minerals that 
can be recovered through processing these materials. The waste streams 
from reprocessing operations can be managed in an environmentally-sound 
manner. The result is the amelioration of pollution caused by such 
previously mined and/or processed material.
      Reclamation mining or Remining:
        Recovering metals or minerals from mined and unmined 
mineral resources in conjunction with reclaiming an AML for the purpose 
of contaminant removal. This can be accomplished at sites in and near 
active mining operations through synergism between the active mine/mill 
and the AML site, although it can also be accomplished at stand-alone 
AML sites. Reclamation mining capitalizes upon industry expertise, 
equipment, personnel, existing mine waste disposal and mineral 
processing facilities and infrastructure to close, reclaim, or 
remediate an AML site. The term remining may include: the processing of 
waste rock and low grade stock piles and/or reprocessing of tailings 
and previously leached materials to recover desired metals; removing 
and relocating old mine wastes to existing (permitted) facilities such 
as tailings, or waste rock facilities; removing and relocating old mine 
wastes to new waste repositories; stabilizing old in-situ mine wastes 
using appropriate liners, caps, and covers; moving or removing ores or 
materials from a mine that are a source of acid mine drainage; and 
remediating groundwater by taking advantage of de-watering activities 
to support pump and treat opportunities.
      Recycling of waste, ore and tailings:
        Reuse of waste, ore or tailings from an AML for purposes 
of metal extraction and for other uses such as construction of tailings 
dams.
      Incidental reprocessing of tailings or waste rock piles:
        Recovery of metals or other valuable constituent's 
incidental to AML cleanup activities.
      Remining:
        See Reclamation Mining.
    Again, NMA appreciates the opportunity to present our views on 
``Good Samaritan'' legislation.

                            Sincerely yours,

                          Harold P. Quinn, Jr.

                                 ______
                                 
    Mrs. Drake. Thank you, Mr. Quinn.
    Next Ms. Laura Skaer, with Northwest Mining Association. 
Thank you for being here.

         STATEMENT OF LAURA SKAER, EXECUTIVE DIRECTOR, 
                  NORTHWEST MINING ASSOCIATION

    Ms. Skaer. Thank you, Madam Chairwoman and members of the 
committee. I am here today to testify on behalf of the more 
than 1,300 members of our association that work in the mining 
industry and reside or work in more than 31 States. Our members 
are the experts at reclaiming and remediating mine sites. It is 
a significant part of what our membership does on a daily 
basis, and we are here to tell you that we are ready, willing 
and able to come to the table and help address the abandoned 
mine land issues in the West.
    We are ready to take on this problem of abandoned mines, 
but as several other witnesses have indicated, there are 
significant impediments from potential liability under various 
Federal and State environmental laws, and we are here to ask 
Congress to help us come to the table by removing those 
impediments.
    We also believe that Good Samaritan legislation should 
include significant encouragement and incentives to promote the 
cleanup of these lands through Good Samaritan actions. If I was 
sitting on your side of the dais and I looked out and saw an 
industry that had the expertise and the knowledge and the 
experience and the equipment and the personnel and the 
resources and the desire to tackle this issue, I would want to 
try to find a way to bring them to the table. This is an 
industry that has more experience cleaning up mine sites and 
reclaiming mine sites than everybody else put together. I would 
want to try to find a way to bring them to the table.
    One way to do that is to allow reprocessing and reuse and 
remining of ores at the mine site. In many cases, the only way 
you are going to achieve an improvement in water quality at the 
mine site and downstream is to allow the removal of the 
mineralized material that is at that site because it is the 
mineralized material that is causing the pollution in the first 
place, and if you just allow the removal of just the waste rock 
and just the waste materials and the tailings piles at the 
site, you may not truly get to the heart of the problem, and so 
removing that mineralized material is a way to improve water 
quality, and may be the only way to improve water quality at 
the site.
    We have to ask ourselves, what's the goal here? And if the 
goal is to improve water quality and clean up the environment, 
then we should not, you know, impede our ability to do that by 
putting restrictions on the mining industry to participate as a 
Good Samaritan or put restrictions on their ability to use 
remining and even if they make a little profit, you know, this 
is a free market system and that incentive should carry 
forward.
    There's a couple of examples that I have given in my 
written testimony where from the Northwest that kind of shows 
the need for Good Samaritan action. There is one mine site that 
is now closed in Idaho where the mining company had historical 
mine deposits and waste rock on their mine property in Napias 
Creek that was former salmon habitat, and by having the 
equipment nearby, they were able to remove those materials, 
take them to their mine, run them through the mill, generate 
some cash out of it, and in the process restored Napias Creek 
to salmon habitat. Everybody wins.
    In the Northwest--northeast Washington, at the Ponderay 
Mine, State and Federal officials have approached the mining 
company there to tackle legacy issues in the vicinity of the 
mine, but in each and every case the potential of liability 
under the Clean Water Act and other State and Federal 
environmental laws has, you know, prohibited the company from 
doing essentially what was done in Idaho.
    So the industry is there. They have proven that they can do 
this, and can take, you know, can help make important strides 
to cleaning up the environment. Of the legislation that has 
been introduced, we believe that the Allard-Salazar bill is the 
best starting point, but we have some suggestions that we put 
forth in our written testimony that could improve that bill so 
that it actually works for on-the-ground cleanup. 
Unfortunately, the Administration's bill as drafted in our 
members' opinion is not going to generate on-the-ground cleanup 
of a significant extent.
    Thank you.
    [The prepared statement of Ms. Skaer follows:]

             Statement of Laura Skaer, Executive Director, 
                      Northwest Mining Association

INTRODUCTION:
    My name is Laura Skaer. I am the Executive Director of the 
Northwest Mining Association, a 112 year old non-profit mining industry 
trade association. Our offices are located in Spokane, Washington. NWMA 
has more than 1,300 members residing in 31 states and 6 Canadian 
provinces. Our members are actively involved in exploration, mining and 
reclamation operations on BLM and USFS administered land in every 
western state, in addition to private land. Our membership represents 
every facet of the mining industry, including geology, exploration, 
mining, reclamation, engineering, equipment manufacturing, technical 
services, and sales of equipment and supplies. Our broad-based 
membership includes many small miners and exploration geologists, as 
well as junior and large mining companies. More than 90% of our members 
are small businesses or work for small businesses. Our members have 
extensive first-hand experience with reclaiming active and inactive 
mine sites and remediating a variety of environmental conditions and 
safety issues at these sites.
    Our members also have extensive knowledge of Abandoned Mine Lands 
(AMLs) in the U.S. Two of our members, Debra W. Struhsacker and Jeff W. 
Todd, researched and authored a study published in 1998 by the National 
Mining Association entitled ``Reclaiming Inactive and Abandoned Mine 
Lands--What Really is Happening.'' (A copy of this study is being 
included in the record). This study documents that the mining industry 
has spent tens of millions of dollars to cleanup numerous AMLs 
throughout the west. As evidenced by this report, the mining industry 
is ready, willing and able to play a significant role in cleaning up 
abandoned and inactive mines. We are here today to ask Congress to do 
its part and enact Good Samaritan legislation that will remove the 
legal liability hurdles and provide incentives for a variety of persons 
and entities to remediate and reclaim AMLs throughout the West.
    Unfortunately, the number one impediment to voluntarily Good 
Samaritan cleanup of abandoned mine lands is the potential liability 
imposed by existing federal and state environmental laws, in particular 
the Clean Water Act (CWA), the Comprehensive Environmental Response, 
Compensation and Liability Act (CERCLA) (commonly known as Superfund), 
the Resource Conservation & Recovery Act (RCRA), and the Federal Toxic 
Substances Act. Under these laws and others, a mining company, 
individuals, or other entities that begin to voluntarily remediate an 
abandoned mine site could potentially incur ``cradle-to-grave'' 
liability under the CWA, CERCLA, and other environmental laws, even 
though it did not cause or contribute to the environmental condition at 
the abandoned mine land site.
    Furthermore, they could be required under the CWA to prevent 
discharges to surface waters from the AML in perpetuity, unless those 
discharges meet strict effluent limitations and do not result in 
exceedences of stringent water quality standards, something that may 
not be possible; and in any event, may be so expensive that no company, 
individual, or other entity would undertake a voluntary cleanup.
    Virtually everyone who has looked at the AML issue in the west has 
recognized and documented the legal impediments to voluntary cleanup of 
AMLs and have urged that those impediments be eliminated. These groups 
include the Western Governors Association, the National Academy of 
Sciences, and the Center for the American West.
    The time has come for Congress to pass effective Good Samaritan 
legislation that will create a framework, with incentives and liability 
protection for numerous entities, including mining companies, local, 
state and federal agencies, NGO's, and tribes to voluntarily remediate 
of environmental problems caused by others at abandoned hardrock mine 
sites in the U.S.
Elements of Effective Good Samaritan Legislation:
    To be effective, Good Samaritan legislation must embody the 
following key provisions:
    1.  Mining companies that did not create environmental problems at 
an AML must qualify as Good Samaritans. No one knows more about 
reclaiming and remediating mine sites than the mining industry. The 
mining industry has the desire, the resources, expertise, experience, 
and technology to effectively and efficiently assess the environmental 
and safety issues present at an AML and to properly remediate, reclaim 
and secure those sites. This often can be done in conjunction with 
reclamation activities at nearby active mines which the company 
operates, resulting in an efficient use of resources to improve the 
environment and enhance public safety.

       For example, Teck Cominco American Incorporated purchased the 
Pend Oreille Mine in Pend Oreille County, Washington in 1996 and 
brought it back into production in 2004. It is located in a setting 
where a substantial amount of historical mining took place before there 
were environmental laws and regulations and modern mining practices. 
There are many abandoned mine sites in the area of the Pend Oreille 
Mine. In working with the local community, Teck Cominco determined that 
many of the old mine openings presented a potential hazard to public 
safety. Those that did not involve environmental issues were 
voluntarily closed through the installation of bulkheads in several of 
the openings.

       Teck Cominco has been approached by state and federal agencies 
to see if it could process some of the historic waste rock piles, ore 
piles and concentrate accumulations in the area. In each and every 
case, the company chose not to undertake this cleanup effort due to the 
strict nature of its Clean Water Act authorization that prohibits any 
tailings other than those generated from the Pend Oreille Mine to be 
placed in the lined and approved tailings disposal facility. 
Furthermore, the company is reluctant to undertake cleanup efforts at 
any of these old sites for fear of being deemed an operator and 
incurring cradle-to-grave liability for the site under a variety of 
federal and state environmental laws.

       All mines run out of ore and towards the end of production may 
look for additional sources of mineralized material to process. Having 
the ability to augment or extend the productive life of the mine 
benefits the mining company, the community and the nation. It also 
benefits the environment through metal source reduction as more metal 
will ultimately be recovered from the AML sites and the resulting 
tailings are placed in a regulated, engineered and permitted 
containment structure. This promotes conservation of the resource and 
sustainable development with a net improvement in the environment.

       This is but one of many, many examples of sites throughout North 
America where existing mines are located adjacent to abandoned 
historical mines. Another example from the Northwest is Meridian Gold 
Company's Beartrack Mine near Salmon, Idaho. Deposits from historic 
mining were included on the mine property. As a result, Napias Creek no 
longer supported salmon habitat. Meridian used the equipment and 
personnel that were on-site at Beartrack to remove the tailings and 
waste rock piles from Napias Creek and fully remediate the site and 
restore the streambed to salmon habitat. The company won several 
environmental awards for their work. The mine was able to process 
tailings and waste rock materials from historic mining located on the 
mine property (emphasis added), at the Beartrack Mine, increase the 
ultimate recovery of metals from the mine and improve the environment. 
A scenario where everyone wins.

       I have emphasized located on the mine property to highlight the 
important distinction between the Pend Oreille mine example and the 
Beartrack example. The Napias Creek tailings and waste rock piles were 
located on the mine property and covered by Beartrack's operating 
permits. The lack of effective Good Samaritan legislation has 
prevented, to date, the same win-win-win result at Pend Oreille.

       In Nevada, the mining industry initially expressed interest, as 
Good Samaritans, in remediating and reclaiming several AMLs. The AML 
sites included Easy Junior, Elder Creek, Golden Butte, Ward, Mt. 
Hamilton, Griffon, Aurora Partnership, Kinsley, Norse-Windfall, 
Arimetco and Gold Bar.

       In each case, the potential cradle-to-grave liability exposure 
under federal environmental laws prevented the mining industry from 
using its experience, expertise, technology, equipment and capital to 
remediate and reclaim the AML sites.

       Four of the sites (Easy Junior, Golden Butte, Elder Creek and 
Ward) have been and/or are being remediated under the Army Corps of 
Engineers Restoration of Abandoned Mine Sites (RAMS) program. Sadly, as 
good as the RAMS program is, it is not adequately funded to perform 
complete reclamation to current mining industry standards. If there was 
effective Good Samaritan legislation in place, then these sites would 
have been closed by the mining industry, and the final result would 
have been more than the minimum needed to ensure basic environmental 
protection.

       Some of the other sites have been closed and reclaimed in part 
using a combination of bond money and federal agency funding. Again, 
the lack of Good Samaritan legislation prevented industry from 
participating in the remediation, reclamation and closure of these 
sites.
    2.  A potential Good Samaritan must be able to gather the needed 
site characterization data to develop a technically sound remediation 
proposal without having to conduct a Potentially Responsible Party 
(PRP) search or go through a long, complicated and involved permitting 
process. A Good Samaritan must be able to conduct a site survey without 
the potential for becoming liable for the site solely by virtue of 
gathering data.
    3.  Individual Good Samaritan projects should be subject to review 
and authorization by the federal government or by an individual state's 
abandoned mine land program (and/or the environmental permitting 
authority for those states where EPA has delegated Clean Water Act 
authority). In addition to providing for review and authorization by 
EPA, the bill should authorize the Army Corps of Engineers' RAMS 
program to issue Good Samaritan permits. The chairman will recall that 
he authored the legislation that created the RAMS program in 1999 as 
part of that year's Water Resources Development Act (WRDA). Although 
the RAMS program has not been adequately funded, its stakeholder 
approach to remediating and restoring abandoned mine sites is a model 
that is well-suited for Good Samaritan cleanups.

       Unfortunately, the RAMS program will sunset at the end of the 
next fiscal year if it is not reauthorized. The only reason the RAMS 
program has not been reauthorized is Congress has not passed a WRDA in 
six years. We urge the Chairman to communicate his support for RAMS to 
both the House and Senate authorizing committees for WRDA, or find a 
way to insert reauthorizing language in a bill that will move this 
year.
    4.  The Good Samaritan permitting process should include meaningful 
public input. The permit process also must be simple, straight-forward 
and understandable. The environmental requirements for a Good Samaritan 
project should be wrapped into a single permit. The permit should be 
approved only if the project is technically sound and promises overall 
improvement to the environment and/or securing of safety hazards.
    5.  The Good Samaritan must have full legal protection under the 
permit. That is, a Good Samaritan permit-holder must be able to obtain 
a specific, concrete list of the federal, state and local environmental 
laws that would be deemed satisfied by completion of the work 
authorized under the permit. One of the Good Samaritan bills introduced 
in the Senate, S. 1848, contains a list of federal environmental laws 
that is a good starting point.
    6.  Good Samaritan projects should be allowed as long as they 
result in an improvement to the environment, even if they will not 
result in the complete cleanup of all contaminants at an abandoned mine 
land site or the attainment of all otherwise applicable environmental 
standards, such as stringent water quality standards. To quote an oft-
repeated phrase, ``don't let pursuit of the perfect be the enemy of the 
good.'' An 85 percent improvement in water quality downstream from an 
AML site is a far better result than no cleanup due to a Good 
Samaritan's concerns that their cleanup activities may not be able to 
achieve water quality standards that would be applicable at a modern 
mine.
    7.  The permitting authority must be given discretion under any 
Good Samaritan legislation to make site-specific adjustments to 
environmental requirements, standards and liabilities arising under 
state and federal environmental laws that could otherwise be applicable 
and prevent Good Samaritans from undertaking remedial actions. This is 
not a new concept. The Applicable or Relevant and Appropriate (ARAR) 
approach under CERCLA might be a reasonable starting point.

       The permitting authority also should have the discretion to 
waive the PRP search requirement. A Good Samaritan that is willing to 
spend private monies to remediate and reclaim an AML site should not 
have to spend time and resources conducting and certifying a PRP 
search. It should not matter whether there might be a PRP. The goal 
should be environmental improvement, not finding someone to blame.
    8.  Any Good Samaritan legislation, to be effective and result in 
actual, on-the-ground cleanup, must allow the reprocessing, remining, 
and reuse of ores, minerals, waste rock piles and other materials 
existing at an AML, even if this results in the mining company or other 
Good Samaritan recovering metals from such materials and making some 
cost recovery and perhaps a little profit on its Good Samaritan 
operations. Given the volatility and cyclical nature of metal prices, 
it is just as likely that the costs of any Good Samaritan project would 
exceed the revenue generated by removal and reprocessing. In any event, 
these activities should be allowed as part of a Good Samaritan project 
only if the overall result would be an improvement in environmental 
conditions at the site.

       In many cases, processing tailings, waste rock piles and other 
historic mining materials at AML sites may be the most efficient and 
least costly means of cleaning up a site. The waste from any 
reprocessing or remining activities would then be disposed in 
compliance with current environmental standards and practices. The net 
result would be an efficient use of resources to increase the ultimate 
recovery of metals the U.S. needs for strategic and economic purposes 
while improving the environment.

       AMLs are generally located in highly mineralized areas. Not only 
are these highly mineralized areas the location of historic mining, 
they are likely to be the location for future mines as prices and 
technology allow. A Good Samaritan project could lead to the discovery 
of a new mine, which would require the full NEPA and mine permitting 
process, and would be allowed only if the proposed new mine complied 
with all current standards of environmental protection. The mining 
industry has no desire to use Good Samaritan legislation to avoid the 
mine permitting process or the application of current environmental 
laws and regulations that apply to today's modern mines. The Good 
Samaritan permitting authority, through permit conditions, can easily 
prevent the misuse of a Good Samaritan permit.

       The Mining and Minerals Policy Act of 1970 (30 U.S.C. 
Sec. 21(a)), specifically establishes the Congressional intent ``to 
foster and encourage private enterprise in the development of 
economically sound and stable domestic mining, minerals, metal, and 
mineral reclamation industries.'' Including remining and reprocessing 
authority in Good Samaritan legislation is consistent with and promotes 
this Congressional intent.

       We must ask ourselves what are the goals of Good Samaritan 
legislation? If a goal is to improve water quality, the environment and 
public safety by remediating and reclaiming Abandoned Mine Sites, which 
by definition have no current owner or financially responsible party, 
then Good Samaritan legislation must encourage and incentivize Good 
Samaritan cleanups. One way to do this is to allow the Good Samaritan 
to reprocess and remine.
    9.  Good Samaritan legislation should allow Good Samaritan actions 
at AMLs to qualify as off-site mitigation under the CWA for mining 
companies permitting new mines or expansion of existing mines. This 
would provide an additional incentive for a mining company to undertake 
a Good Samaritan cleanup while meeting the permitting requirements at 
new or expanded.
Superfund is Not the Answer:
    Some Members of Congress and anti-mining groups argue that instead 
of focusing on Good Samaritan legislation, Congress should fund the 
Superfund program and EPA, under the Superfund program, should address 
all Abandoned Mine Lands. In our opinion, this is a wrong-headed 
approach to remediating and reclaiming historic abandoned mine lands.
    Superfund does not have a very good track record at mine sites. 
Superfund was not designed to address natural processes that result in 
contaminated watersheds at AMLs. The historic mining communities of 
Aspen and Leadville in Colorado, Butte, Montana, Triumph, Idaho and the 
Bunker Hill site in northern Idaho's Silver Valley all have experienced 
first hand the failures of Superfund and the costly results of 
misguided policies and millions of dollars wasted on legal delays and 
repetitive studies. Of the billions of dollars spent of Superfund 
efforts, only 12% of those moneys have actually gone into cleaning up 
the environment while the balance went to legal and consulting fees.
    In each of the Superfund sites cited above, the cleanup costs have 
exceeded reasonable estimates by a magnitude of three to five times. 
Bunker Hill is a prime example of the waste that occurs when an EPA-led 
Superfund effort is undertaken at mine sites. This can be demonstrated 
by comparing Bunker Hill with another example from the Silver Valley in 
northern Idaho.
    Just outside the Bunker Hill Superfund site are many historic 
mining sites on Nine Mile and Canyon Creeks. Two mining companies 
working together with the State of Idaho were able to cleanup and 
remove historic mine wastes, tailings and waste rock piles from Nine 
Mile and Canyon Creeks, and restore fish habitat on the two creeks at 
cleanup costs one-fourth to one-fifth the cleanup costs incurred by EPA 
under Superfund on a per-cubic-yard of material removed basis.
    I have visited these sites on at least three occasions and can 
personally testify to the outstanding remediation and reclamation on 
Canyon and Nine Mile Creeks, and that there has been substantial 
improvement in water quality as a result of these efforts. And, the 
work is done, unlike the work at Superfund sites which seems to never 
end.
    There may be some sites for which Superfund is the appropriate 
remedy, but let's not limit the tools we have in the toolbox. 
Thoughtful and effective Good Samaritan legislation that encourages and 
incentivizes Good Samaritans is an important tool to add to the 
Abandoned Mine Land remediation and reclamation toolbox.
Current Good Samaritan Proposals:
    Our members are familiar with all Good Samaritan legislation that 
has been drafted and introduced over the past ten years. While we 
applaud any and all efforts to advance the Good Samaritan concept, our 
analysis of most Good Samaritan legislation introduced is that it is 
not intended for use by the mining industry. This is especially true of 
the Administration's bill. This not only disappoints our members, it 
would be a huge opportunity lost for the nation and for the environment 
if mining companies were not allowed to utilize Good Samaritan 
legislation.
    With respect to the two bills that have been introduced in the 
Senate, the Administration's bill introduced by Chairman Inhofe, and S. 
1848 introduced by Senators Salazar and Allard from Colorado, we 
believe S. 1848 is clearly the better bill and is a good starting 
point. We also believe that S. 1848 can and should be improved to 
ensure that it results in on-the-ground Good Samaritan projects at AML 
sites. S. 1848 already incorporates many of the nine (9) concepts 
listed above, and could be improved by: 1) providing a mechanism for 
conducting site investigations without incurring environmental 
liability and without having to go through the full permitting process; 
2) the PRP search should be significantly streamlined and eliminated 
when only private monies are funding the cleanup; and 3) any 
restrictions on the ability of a mining company or other Good Samaritan 
to remine, remove and reprocess ores and other waste materials from a 
mine site should be eliminated.
    The Administration's bill, as currently drafted, is pretty much a 
non-starter for our members. The major problems our members have with 
this bill are: 1) the liability relief provision is too restrictive; 2) 
the PRP search requirements are too cumbersome and costly; 3) the 
permitting process is too complex and rigid; 4) a full PRP search and 
certification is required for privately funded cleanups; 5) the 
definition of a Good Samaritan is too limiting--merely appearing in the 
chain of title should not disqualify someone; and 6) there are too many 
restrictions on remining and reprocessing. Significant on-the-ground 
Good Samaritan activities at AMLs are not going to take place under the 
Administration's bill without significant changes.
CONCLUSION:
    Industry wants to see abandoned mines cleaned up. After all, they 
are our dirty pictures, our Achilles Heel. Mining opponents use 
pictures of historic, unreclaimed abandoned mines to foment public 
opposition to new mine proposals. Industry wants to see AMLs remediated 
and reclaimed as much as anyone, but we need your help. The mining 
industry has the desire, the experience, the technology, the expertise 
and the capital to remediate and reclaim AMLs. In fact, the mining 
industry has more experience and expertise than all other potential 
Good Samaritans put together. Effective Good Samaritan legislation 
makes sense and can be a win-win-win-win for the environment, for the 
Good Samaritan, for the community, and for society. We applaud the 
Chairman for holding this hearing and look forward to working with him 
to produce Good Samaritan legislation that will actually result in on-
the-ground Good Samaritan cleanups at Abandoned Mine sites.
    I will be happy to answer any questions.
                                 ______
                                 
    [NOTE: A report submitted with Ms. Skaer's testimony 
entitled ``Abandoned Mine Land Initiative'' prepared by Debra 
W. Struhsacker and Jeffrey W. Todd for the National Mining 
Association, dated July 1998, has been retained in the 
Committee's official files.]
    [The response to questions submitted for the record by Ms. 
Skaer follows:]

                      Northwest Mining Association

                      10 N. Post Street, Suite 220

                           Spokane, WA 99201

                            August 23, 2006

Jim Gibbons
Chairman, Subcommittee on Energy and Minerals
House Resources Committee
1626 Longworth HOB
Washington, DC 20515

Dear Chairman Gibbons:

    I want to thank you again for inviting me to testify before the 
Subcommittee on Energy and Mineral Resources on July 13, 2006 to 
present testimony concerning opportunities for Good Samaritan cleanup 
of hardrock abandoned mine lands. Northwest Mining Association 
appreciates the opportunity to present the views of its members on this 
important issue. This letter is in response to yours dated July 20, 
2006 concerning a number of follow-up questions from members of the 
Subcommittee.
    The Subcommittee has asked all witnesses to define the following 
terms:
      Reprocessing of waste, ore or tailings
      Reclamation mining
      Recycling of waste, ore and tailings
      Incidental reprocessing of tailings or waste rock piles
      Remining
    The Subcommittee has asked the witnesses to define these five terms 
in the context that some members of the Subcommittee and others are 
concerned that the mining industry or other Good Samaritans will try to 
use a Good Samaritan permit to access newly identified mineral 
resources without going through a comprehensive mine permitting 
process. We would like to put these concerns to rest, once and for all.
    In our written testimony we clearly stated: ``The mining industry 
has no desire to use Good Samaritan legislation to avoid the mine 
permitting process or the application of current environmental laws and 
regulations that apply to today's modern mines.''
    We believe it is important that any Good Samaritan legislation 
allow and encourage remining and/or reprocessing operations as a viable 
option for remediating and reclaiming an abandoned mine site to improve 
water quality by removing and processing metal-bearing source 
contaminants. The processing/reprocessing of the source contaminant 
material most likely would occur at an existing, fully permitted off-
site facility.
    An existing off-site processing facility would have been permitted 
pursuant to design, operating, monitoring, and closure requirements of 
relevant and comprehensive state and federal mining regulatory 
programs. In the unlikely event an on-site facility would be used, the 
Good Samaritan permit could incorporate current design and operation 
requirements on a site-specific basis.
    The permitting authority under Good Samaritan legislation would be 
able to condition the permit to ensure that the Good Samaritan permit 
is not used to access newly identified mineral resources or to bypass 
the comprehensive NEPA and mine permitting processes for new mining 
sites on public land or the applicable state permitting process for new 
mining on other sites.
    In addition to the ability of the Good Samaritan permitting 
authority to condition Good Samaritan permits to prevent unauthorized 
mining of newly identified mineral resources, it would be highly 
unlikely (or at least very risky) for a mining company to make the 
investment in mining and processing newly identified mineral resources 
at an abandoned mine land site subject to a Good Samaritan permit 
without locating claims to prevent interference from rival claimants. 
Once a mining company located claims at the abandoned mine site, the 
site would no longer be abandoned and, by definition, the site would 
become ineligible for a Good Samaritan permit. Any mining of newly 
identified mineral resources would require a NEPA analysis and mine 
permitting process under either the Bureau of Land Management's 43 CFR 
3809 regulations or the United States Forest Service's 36 CFR 228A 
regulations in the case of public land, or a comprehensive state 
permitting process in the case of other lands.
    Even without a mining claim, either the 43 CFR 3809 or the 36 CFR 
228A regulations would apply to any mining-related activities on public 
land outside of the conditions of the Good Samaritan permit. On non-
public land, ownership--or at least permission from an insolvent owner, 
would be necessary to recover and sell metals from old mine wastes/ore. 
Otherwise, the Good Samaritan would be stealing the metals from the 
owner. Thus, there would be no regulatory gaps and no ability for a 
Good Samaritan to use Good Samaritan legislation to avoid the mine 
permitting process or the application of current environmental laws and 
regulations that apply to today's modern mines.
    Set forth below are our definitions of the five terms listed in the 
Subcommittee's questions for all witnesses:
      Reprocessing of waste, ore or tailings--Any activity 
associated with treating previously mined and/or processed material 
found at an AML site with the purpose of extracting metals to achieve 
contaminant source reduction.
      Reclamation mining--The activity of reopening a mining 
operation with the intent of mining additional mineral resources and 
reprocessing existing waste or tailings or previously mined ore in 
conjunction with reclaiming a mine site or part of a mine site in order 
to achieve contaminant source reduction or removal. In this scenario, 
the Good Samaritan portion of the project would be permitted under the 
Good Samaritan legislation. Any new mining activity to extract new ore 
and all associated activities including reclamation thereof would be 
permitted in accordance with current applicable laws and regulations 
for a new mining operation.
      Recycling of waste, ore and tailings--Reuse of waste, ore 
or tailings for purposes other than metal extraction (road building, 
underground-mine back filling, construction materials, fill material, 
construction of permitted mine facilities, etc.).
      Incidental reprocessing of tailings or waste rock piles--
Recovery of metals or other valuable constituents incidental to other 
AML cleanup activities. For example, some water treatment technologies 
may include incidental recovery of metals in the waste streams.
      Remining--This term is synonymous with reclamation 
mining.
    Our written testimony cited and included a 1998 study by NWMA 
members Debra W. Struhsacker and Jeffrey W. Todd entitled, ``Reclaiming 
Inactive and Abandoned Mine Lands--What Really is Happening.'' This 
study contains an extensive discussion of remining in the context of 
abandoned mine land remediation and reclamation. Appendix A to this 
study included numerous examples of remining projects in which the 
mining industry reclaimed and remediated AML sites in and near active 
mining operations through synergism between the active mine/mill and 
the AML sites. These examples capitalized upon industry expertise, 
equipment, personnel, and existing mine waste disposal and mineral 
processing facilities and infrastructure to close, reclaim or remediate 
nearby AML sites.
    The study identifies a number of sites where remining constituted a 
broad range of activities that produced numerous and varied 
environmental benefits. Examples of remining activities identified in 
this study are:
      Processing of waste rock in low-grade stockpiles and/or 
reprocessing of tailings of previously leached materials;
      Removing and relocating old mine waste to existing 
project components (i.e., active, permitted tailings, heap leach, or 
waste rock facilities);
      Removing and relocating old mine wastes to new waste 
repositories;
      Stabilizing old mine waste in-situ using appropriate 
liners, caps and covers; and
      Remediating ground water by taking advantage of 
dewatering activities to support pump and treat opportunities.
    The study identified the following environmental and public safety 
benefits and improvements that occurred at these sites as a result of 
the remining activities mentioned above:
      Surface water quality improvement;
      Landscape improvement;
      Wildlife habitat restoration, preservation and 
enhancement;
      Historical preservation; and
      Safety closures
    As stated in the study:
        Reprocessing of metal-bearing mine waste achieves source 
        reduction and therefore has proved to be an effective 
        environmental cleanup method for AML sites. Other cleanup 
        methods such as water treatment or waste containment do not 
        reduce or eliminate the source of the contaminants, and may 
        create long-term operational and monitoring requirements. In 
        contrast, recovering metals by reprocessing removes some or all 
        of the contaminant source, thereby minimizing the volume of 
        problematic material and reducing the residual metals content 
        in the resulting waste product. Additionally, the newly 
        generated mineral processing wastes are disposed of in a 
        modern, permitted mine waste disposal facility with appropriate 
        containment, monitoring and financial guarantees.
Struhsacker/Todd Study at p. 29
    Remining/reprocessing is an environmental remedy that contributes 
to ultimate resource recovery (conservation) and source reduction 
(environmental improvement), and therefore should be allowed and 
encouraged under any Good Samaritan legislation.
    Ranking Member Grijalva proposed the following question:
        Mr. Quinn and Ms. Skaer, while the EPA seems to be advocating a 
        Good Sam program that is parallel to the Brownfields program, 
        you do not seem to be taking the same approach. Your testimony 
        suggests that what you are after is an alternative to the 
        permitting programs that exist for environmental control of 
        mine operations. Please explain.
    We have partly addressed this question and the Ranking Member's 
concerns in our response to the questions from the Subcommittee 
Chairman to all witnesses and would incorporate those responses in 
response to this question as though fully set out herein.
    While there are some similar aspects between the provisions we 
believe effective Good Samaritan legislation must contain and the EPA 
Brownfields program, there are a number of key differences. The most 
important difference is that under a Brownfields program, the specific 
intent of the entity doing the cleanup is to redevelop the site for 
alternative uses with the goal of realizing a financial benefit from 
the project. To do that, one must have protection from pre-existing 
liability (a similarity with Good Samaritan legislation) and be allowed 
to redevelop the property for commercial or industrial uses with the 
expectation of generating a profit.
    Under Good Samaritan legislation, there would be no guarantee of a 
financial benefit, nor any reasonable expectation of one. Furthermore, 
given the location and condition of most AML sites, redevelopment for 
other commercial or industrial uses is unlikely. Good Samaritan is 
simply a program that would remove liability impediments to allow and 
encourage a Good Samaritan to clean up a site voluntarily without 
expectation of financial benefit. There is nothing in it for the Good 
Samaritan except to know that they have done a service to the citizens 
of this country.
    The reason the Brownfields program won't work for most AML sites is 
that we are not dealing with an urban or rural industrial site that is 
contaminated and if cleaned, could be reused. Most AML sites are 
remotely located without access, infrastructure, or a workforce that 
would allow successful re-development. Although there are a few mine 
sites that have been successfully closed with alternative land uses 
(landfills, wind farms, etc.), those are the rare exceptions, and, each 
of those were modern facilities which were closed when the 
infrastructure was still in place.
    To try and perform that type of redevelopment at the vast majority 
of AML sites would be infeasible and unprofitable. We need a Good 
Samaritan law that removes the liability impediments so that the mining 
industry (and others) can do what our members are prepared to do: clean 
up abandoned mine sites for the good of the citizens of this country.
    Some might ask, ``Why would the mining industry be willing to do 
this? What's in it for them?'' The answer is simple: Because it is the 
right thing to do. That is the essence of being a Good Samaritan.
    If the purpose of the remining/reprocessing is to reduce the source 
of metal contaminants at the site and in the resulting waste, it should 
be allowed by the Good Samaritan permit. Otherwise, a Good Samaritan 
would be required to engage in an inefficient and unnecessary 
duplicative permitting process that would only discourage Good 
Samaritan efforts.
    If the Chairman, Ranking Member or other members of the Committee 
have additional questions, we would be pleased to answer them.
    Thank you for the opportunity to provide additional information to 
the Committee. We stand ready, willing and able to work with the 
Subcommittee to advance and enact effective Good Samaritan legislation 
that results in on-the-ground cleanup of AML sites.

                        Respectfully submitted,

                              Laura Skaer

                           Executive Director

                                 ______
                                 
    Mrs. Drake. Thank you, and next is Ms. Velma Smith. She is 
a Senior Policy Associate with the National Environmental 
Trust. Thank you for being here.

STATEMENT OF VELMA M. SMITH, SENIOR POLICY ASSOCIATE, NATIONAL 
                      ENVIRONMENTAL TRUST

    Ms. Smith. Thank you. Thank you, Madam Chair. On behalf of 
the National Environmental Trust I thank you for this 
opportunity to testify and for shining a light on the long-
festering and still growing problem of abandoned hard rock 
mines.
    As I said in my written testimony, we are coming to you 
this morning with dual messages, optimism along with caution. 
Caution so that Congress recognizes not only the enormity of 
the problem, which we agree with, but also its continuing 
nature and its complexity. And my pictures aren't as large and 
they are certainly not as technically sophisticated, but I have 
asked if the staff would share these pictures. You will see 
that mine sites vary in terms of abandoned mine sites, the 
challenges vary, and I would point out, Madam Chair, that 
actually there is an East Coast picture on there. There could 
have been more because indeed there are quite a number of 
abandoned mines in the East and, indeed, South Carolina had one 
that made the Superfund list, I believe it was last year, may 
have been the year before. But the abandoned PCB transformers 
there are in a site in Tennessee.
    But what I am trying to illustrate with that is that some 
mine cleanups indeed may be easy. Some of the very, very old 
small mine tailings disposal may be easy to solve, but many 
others--and as the Chairman knows, as Mr. Gibbons knows, from 
the sprawling Yerington site in Nevada, they are anything but 
simple.
    So we urge caution, lest good intentions actually take us 
backwards, lowering the floor even further of environmental 
management in the mining industry. It is not a matter of 
letting the perfect become the enemy of the good. It is an 
appeal not to simplify what should not be simplified, not to 
promote the creation of more Yeringtons.
    But I also bring optimism and I urge the committee to look 
at the truly significant amount of work that is going on. I can 
commend my friends and colleagues at Trout Unlimited, and they 
are doing good work. They may have had the most stubborn 
lawyers around in terms of protecting their liability, but 
there is a lot of work similar and even tougher projects going 
on all around the U.S. today.
    Collaborative efforts, engaging Federal and State agencies, 
tribal organizations, nonprofits, businesses. What these 
efforts need, first and foremost, is funding. Now, some have 
pointed out that there are current rates of spending. The best 
we can do is address 8 to 20 percent of cleanup problems in the 
next 30 years. Surely we all agree that is unacceptable. We 
believe that Congress needs to appropriate more funds for 
cleanup and that the mining industry should follow the approach 
of their coal mining brethren, picking up a share of the cost 
of cleaning up legacy mining problems, and to that I think we 
should look toward Mr. Udall's bill.
    We also underscore that many of the messes that exist today 
have failed because mining regulation has failed and problems 
continue today. The old Anaconda copper mine that vexed state 
regulators in Nevada for years is going to continue as a long 
and expensive cleanup project. It is a site where remining and 
reprocessing were undertaken, but without significant 
remediation benefits. To the contrary, what occurred on this 
site appears to have only added to the problems. It is a harsh 
illustration of why you should be wary of weakening 
environmental controls and accountability. Arimetco, the 
company that did extensive copper recovery on this site, walked 
away in 2000 leaving nearly 92 million gallons of acidic metal-
laden waste water and a radioactive nightmare and a financial 
bond that won't begin to cover what will undoubtedly begin to 
be a cleanup reaching into the hundreds of millions.
    So with Yerington in mind we would ask you not to weaken 
environmental law, but to take action to strengthen current 
protections and there we ask you to look at the bill that has 
set here for quite some time in this committee and Mr. Rahall's 
legislation. We think you should--and I would also appeal to 
the industry to begin a serious dialogue on Mr. Rahall's 
legislation.
    Again, I thank you for this opportunity, and I look forward 
to your questions. Thank you.
    [The prepared statement of Ms. Smith follows:]

         Statement of Velma M. Smith, Senior Policy Associate, 
                      National Environmental Trust

    On behalf of the National Environmental Trust, I thank the 
Committee for this opportunity to testify on the important issue of 
cleaning up abandoned mine sites.
    Our hope this morning is to bring several messages before the 
Committee. First, a message of appreciation for recognizing the long-
festering and still-growing problem of abandoned hardrock mines. In 
addition, a sense of optimism to what can clearly seem like a daunting 
task--noting the important cleanup work that is going on already, under 
current law and involving diverse parties.
    At the same time, we would hope to dispel what appear to be 
critical misperceptions about this problem, including the idea that 
nearly all abandoned mines date from the turn-of-the-20th-century or 
that liability is always a barrier to cleanup. We also offer cautions 
about the complexity of cleanup at many sites, the potential for 
remediation failures--regardless of good intentions, the need for solid 
information and analyses, and the absolutely inescapable need for 
resources.
    In fact, we would argue that the pressing need today is not for new 
legislation but for an infusion of funds: Mining sites are not being 
cleaned up fast enough because neither the industry nor the government 
is contributing sufficient money to the task. The federal budget is 
tight, but to really address this problem, you must find a way to bring 
more resources to a serious cleanup effort.
    We would also underscore the fact that while fear of liability may, 
in some cases, give pause to non-mining parties who would otherwise 
venture into mine cleanup, that pause, in and of itself, may not be a 
bad thing when it comes to cleaning up these difficult messes. Mining 
sites can be not only difficult to diagnose but also enormously 
difficult to cure. Entered upon without solid information, with poor 
design or with faulty execution, cleanups can and have gone terribly 
wrong.
    Finally, we urge you to recognize that liability for both previous 
operators and land owners is an important factor that has been driving 
many cleanups--cleanups that are happening at listed Superfund sites 
like the Iron Mountain Mine in California, Clark Fork in Montana, and 
the Captain Jack Mill in Colorado and at non-listed sites like 
Yerington, Nevada, Bingham Canyon, Utah and the Copper Basin Mining 
District of Tennessee. If Congress reaches too broadly to encourage the 
cleanup of the most easily remedied mine sites, it will put at risk the 
current liability leverage that leads to cleanup of enormously 
difficult and expensive mining messes. And if a Congressional response 
brings remining and reprocessing operations into the definition of 
``Good Samaritan'' actions, you may end up creating the exception to 
swallow the rule, removing normal, for-profit operations, which nearly 
always take place in old mining districts, from existing regulatory 
requirements.
    So please, don't look simply through the narrow prism of regulatory 
hurdles for cleaning up a few of the many mining problems. Look broadly 
at the full scope of the problem and recast your topic as ``Solutions 
to Mining Contamination.'' In that context, figure out not only how to 
drive more of the easier cleanups but also how to stop adding to the 
problem and how to address the large and seemingly intractable mining 
messes. In that context, we believe you should look, with new openness, 
to the mining reform legislation sponsored by Congressman Rahall, which 
includes dedicated funding that can be used for mine cleanups and also 
sets a new standard of environmental scrutiny and performance for 
hardrock mines. The Rahall bill addresses only operations that take 
place on federal lands, but we would argue that it should be applied to 
all hardrock mining, regardless of location.
    Hardrock mining is enjoying a boom. Metals prices are breaking 
records; exploration fever has once again hit the West; and even old 
operations that seemed like economic losers are attracting new 
attention. So now, while hardrock mining is flush, is the time to 
engage the industry in cleaning up its past and current operations. 
Now, we would hope, is the time for the mining industry to act 
cooperatively in the true spirit of the Good Samaritan who gave aid to 
the injured man and paid his expenses with no thought of compensation. 
Our plea to the industry is to step forward willingly to pay a modest 
fee on mining profits in order to create a trust fund that can remedy a 
long legacy of pollution problems.
A Big Problem
    In 1993 the Mineral Policy Center, now known as Earthworks, 
assembled data on hardrock abandoned mines from state and federal 
agencies, private contractors and associations. 1 From this 
effort, they estimated nearly 557,000 abandoned hardrock mines in 32 
states. Their numbers, though perhaps considered high at the time, are 
generally in line with other best judgments--including estimates from 
the Western Governors' Association, the Bureau of Land Management and 
the Environmental Protection Agency.
---------------------------------------------------------------------------
    \1\ Mineral Policy Center, Burden of Gilt, June 1993.
---------------------------------------------------------------------------
    A compilation of abandoned mine land data assembled by the Western 
Governors Association, for example, shows counts ranging from 150 
abandoned mines in North Dakota to 100,000 in Arizona. 2 The 
WGA report cautions that different states use different definitions of 
abandoned mines and count mines and mine sites in different ways. It 
also clearly acknowledges that existing inventories are incomplete. The 
report's numbers for 13 states total more than a quarter of a million.
---------------------------------------------------------------------------
    \2\ Western Governors' Association, Abandoned Hardrock & Noncoal 
Mines in the West: A Partnership Report, 1998 available online at 
http://www.westgov.org/wga/publicat/miningre.pdf.
---------------------------------------------------------------------------
    Estimates from Federal agencies are high as well. BLM, for example, 
places the number of abandoned mines on lands that it administers at a 
low of 100,000 or a high topping half a million. 3 About 5 
percent of those sites--possibly more than 25,000 mines--have caused or 
could cause environmental damage, according to the Bureau. The Forest 
Service estimates that about 5 percent of an estimated 25,000 to 35,000 
abandoned mines on its lands will require cleanup under Superfund 
authorities; another 12 percent of those sites are expected to require 
water-related cleanup using authorities other than Superfund. Excluding 
lands in Alaska and California, the National Park Service estimates the 
number of abandoned sites on its lands at more than 3,200--with 
abandoned mines inventoried in 134 of the 387 National Park System 
units
---------------------------------------------------------------------------
    \3\ US EPA, Office of Solid Waste and Emergency Response, Cleaning 
Up the Nation's Waste Sites: Markets and Technology Trends, September 
2004.
---------------------------------------------------------------------------
A Varied Universe, in the West and Beyond
    What types of sites are these and what types of remediation is 
called for? The answers run the gamut from small problems to large 
complexes. And though much of the focus in this discussion is on the 
West, where the number of sites is huge, there are mine messes in other 
parts of the country as well.
    In some instances, the highest priority problems may be open shafts 
and adits that pose physical hazards to people and wildlife. These must 
be plugged, filled, secured or closed off.
      A motorcyclist was killed in 2003, for example, when he 
rode his bike over a tailings pile directly into an open mine shaft in 
the Red Mountain area of California.
      In Nevada, the state reports that people have died 
swimming in open pit lakes and suffocated after entering open mine 
shafts.
      Wyoming has reports of mine subsidence affecting an 
interstate highway, a public water line and a housing development.
      In Alaska, 500 feet of dangerous high wall was reported 
in a heavily used area near Juneau, and open portals and shafts found 
within a few hundred feet of a public use cabin in a state park
      In Oklahoma, the community has learned that a third of 
the small town's 400 houses sit atop or near a huge mining cavern with 
a probability of collapse. 4
---------------------------------------------------------------------------
    \4\ Omer Gilham, ``Calls for Tar Creek buyouts intensify: A Corps 
of Engineers report brings home to residents the dangers of possible 
cave-ins,'' Tulsa World, February 2, 2006.
---------------------------------------------------------------------------
      In California alone, the Office of Mine Reclamation has 
stated that 84 percent of the state's abandoned mines ``that's nearly 
33,000 mines--present physical hazards. 5
---------------------------------------------------------------------------
    \5\ California Department Of Conservation, Office of Mine 
Reclamation, Abandoned Mine Lands Unit, California's Abandoned Mines: A 
Report on the Magnitude and Scope of the Issue in the State, June 2000.
---------------------------------------------------------------------------
    In other cases, the threats are from elevated levels of pollutants 
in mine wastes, contaminated soils, blowing tailings and abandoned 
ponds of cyanide solutions or other wastewaters. Abandoned mines, as 
the U.S. Geological Survey reports, may degrade water quality and 
aquatic resources with releases of acid drainage, seepage from tailings 
piles, streambank erosion and storm runoff.
    Overall, the government estimates that old mines have contaminated 
about 40 percent of all Western river headwaters, and scientists have 
reported loss of fish populations and deterioration of fish health as 
well as groundwater contamination, including contamination of drinking 
water wells, all associated with continuing pollution from abandoned or 
inactive mines.
      In Arkansas, for example, a 1996 report attributed 
problems in nearly 200 miles of streams to the impacts of old lead, 
zinc and coal mines.
      In Oklahoma, a report from that same year identified 23 
lakes and streams adversely impacted from past and then present mining 
operations.
      In Utah an estimated 300 uranium mines have moderate to 
high levels of radiation.
      A 1999 Nevada report on abandoned mines notes problems 
with breached tailings dams spreading heavy metals and acidic 
wastewaters, elevated levels of contaminants including mercury, lead, 
cyanide and arsenic from abandoned mines, and mining-related threats to 
local agricultural activities and the habitat of the endangered Desert 
Tortoise and the Northwest Valley Fly Catcher.
      In March of 2005, a ``flash report'' by the Department of 
Interior's Office of Inspector General reported dangerous levels of 
arsenic and contaminated groundwater in a growing area of Pima County, 
Arizona.
    Solutions to these problems will run the gamut as well, ranging 
from removing small piles of waste rock or tailings from a floodplain 
or reseeding a disturbed area, to removing transformers, machinery and 
buildings, stabilizing large waste piles, rerouting water flows, 
building new retention ponds, reinforcing old dams, managing toxic 
lagoons, removing or covering contaminated soils.
Old and New Contributions to the Problem
    Much of the discussion of abandoned mines brings to mind the 
grizzled prospector with mule and pick axe, faded sepia-tone images and 
thoughts of the Wild West. But before you assume that the nation's 
abandoned mine messes all date from the 19th century, well before 
modern environmental regulation, consider this.
    Modern-day mines are often located in historic mining areas, where 
mining wastes have been deposited in stream beds and other fragile 
areas, and where acid drainage still flows from old mine workings. In 
some cases, this makes it difficult to say with certainty just how much 
of a pollution problem is linked solely to recent activity.
    In many instances, however, it is clear that modern operations not 
only worsen existing problems but also create new problems. Modern mine 
operations can cover large acreages and employ enormous earth-moving 
equipment. Their scale, complexity and waste production can dwarf that 
of historic mines. Frequently modern mines use large amounts of toxic 
chemicals, and collectively they release more toxics into the 
environment than any other industry. Their impact on the environment is 
enormous--and not always according to plan.
      Perhaps the most notorious example of a modern mine gone 
wrong is from Colorado. The Summitville gold mine opened in 1986 and 
was abandoned in 1992. It became one of the nation's most expensive 
Superfund cleanup sites, while the Canadian business tycoon behind the 
venture moved his schemes and his assets overseas. The Summitville area 
had a long history of mining, but the acid and cyanide drainage that 
killed miles of the Alamosa River were clearly connected to this faulty 
heap leach mine operation.
      In 1996, Canyon Resources boasted that reclamation of the 
northern section of its Montana Kendall heap-leach operation was 90 
percent complete, and they predicted that they would rinse out the 
``last traces of cyanide'' through the next year. Reclamation of the 
mine that opened in the late 1980s is still incomplete today, and 
according to news reports, the mining company is resisting State calls 
for more extensive cleanup. Canyon extracted gold and silver from the 
ground from 1989 until 1995. Treating the mine-contaminated water, says 
the State, will have to continue indefinitely.
      Near Riddle, Oregon, a now-defunct Canadian company ran 
the Formosa copper and zinc mine between 1990 and 1993. The company 
abandoned the 100-acre property in 1994, and by 1997 the system they 
had installed to handle acid mine drainage was no longer working. As is 
the case with many other mines--some reclamation was accomplished by 
the company before its departure, but those efforts did not stop 
copper, cadmium, lead and zinc from polluting some 18 miles of a nearby 
stream. According to the state, the contamination has ``...severely 
harmed the ecosystem of these streams, including protected Coho and 
Steelhead salmon populations.''
      In South Dakota, the Gilt Edge Mine was a 260-acre open 
pit and cyanide heap leach facility. Granted a permit in 1986, the 
operation was reportedly mined out by 1992. The mine's initial bond of 
$1.2 million was based on a prediction that the mine would encounter 
only non-acid generating rock. The prediction, however, turned out to 
be wrong. When the mine closed, 150 million gallons of acidic, metal-
laden wastes remained along with millions of cubic yards of acid-
generating waste rock.
      Idaho's Grouse Creek mine began production in 1994, and 
its tailings impoundment, declared ``state-of-the-art'' when it was 
built, included clay and plastic liners and, according to a company 
spokesperson, exceeded permit requirements. But Hecla's gold find 
wasn't as rich as anticipated, and the company ran into processing 
problems. In July of 1995, EPA cited this mine near the Frank Church 
Wilderness for violations of cyanide, mercury and total suspended 
solids water quality standards. The problem: leakage from the 
impoundment liner. A month later, it was the pipeline carrying slurried 
mill wastes that caused more violations. In 1996, according to the U.S. 
Forest Service, another 19,000 gallon spill occurred in the mill area. 
The mine closed in 1997 and by 1999 ``pervasive levels'' of cyanide 
were found in Jordan Creek.
    I could go on. But suffice it to say that mining's mistakes have 
and will always be characterized by the mining industry as its 
misguided past. In the 1970's, history included the turn-of-the-century 
gold rush mines as well as mine operations from the 1940s and 50s. Now, 
it appears, that mines from the 1960s, 70s and 80s have taken their 
place in ``history'' as well. By 2020, will the mines of today be 
lumped in with those ``turn-of-the-century'' mines that bear all the 
responsibility for pressing pollution problems?
    From Brewer Gold in South Carolina to the Battle Mountain mine in 
Nevada, from Zortman Landusky in Montana to Red Dog in Alaska, modern 
mines have given us ample evidence of continuing pollution problems. 
The facts on the ground suggest that regulation--even today--is sorely 
lacking in substance or enforcement, or perhaps both. And in too many 
instances mining companies seek the shelter of bankruptcy courts before 
they meet their reclamation and cleanup obligations.
    We agree with the National Center for Manufacturing Sciences: 
``[T]he mining sector is, from an environmental standpoint, the least 
regulated of any comparable industry sector.'' (Emphasis in original.) 
The Center goes on to state that the lack of regulation for mining ``is 
no chance oversight,'' but actually the result of a specific 
legislative loophole. Their reference is to the so-called Bevill 
amendment that shields the mining and mineral processing industry from 
federal hazardous waste rules. This hard-fought and carefully protected 
special deal for mine-related wastes keeps EPA from regulating wastes 
derived from extraction and beneficiation of minerals, even if they met 
established criteria for designating wastes as ``hazardous.''
    These wastes are frequently the crux of the problem at abandoned 
mine sites.
    EPA issued a National Hardrock Mining Framework in September of 
1997, with the specific aim of improving environmental protection with 
coordination and collaboration across programs and agencies, but in 
August of 2003, the EPA Inspector General declared that it ``...found 
no evidence that the Framework contributed to environmental 
improvements or protections at specific hardrock mining sites.'' The IG 
noted that the Framework's goal of protecting human health and the 
environment at hardrock mining sites was hampered by EPA's lack of 
direct regulatory authority.
    In addition, as the Government Accountability Office made so clear 
in its August 2005 report, 6 the federal government's 
cleanup burden grows as businesses reorganize and restructure to limit 
their future expenditures for environmental cleanups. GAO points out 
that ``EPA has not yet implemented a 1980 statutory mandate under 
Superfund to require businesses handling hazardous substances to 
maintain financial assurances'' for environmental cleanups.
---------------------------------------------------------------------------
    \6\ US Government Accountability Office, ``Environmental 
Liabilities: EPA Should Do More to Ensure that Liable Parties Meet 
Their Cleanup Obligations,'' August 2005.
---------------------------------------------------------------------------
    Only two months earlier, the GAO also concluded that BLM's failure 
to obtain proper financial assurances from mining operations on federal 
lands has left a gap of some $56.4 million in unfunded reclamation 
costs. 7 That number, by the way, covers only 48 hardrock 
mines that had ceased operations by the time the study was undertaken. 
It doesn't cover mines that are still operating.
---------------------------------------------------------------------------
    \7\ US Government Accountability Office, ``Hardrock Mining: BLM 
Needs to Better Manage Financial Assurances to Guarantee Coverage of 
Reclamation Costs'', June 2005.
---------------------------------------------------------------------------
A Matter of Money, Lots and Lots of Money
    Because abandoned mine inventories have not been completed--and 
indeed may never be--it is difficult, if not impossible, to offer any 
certainty about the likely costs of addressing these problems. Some 
sobering numbers have been put forward, however.
    Earthworks, working with experienced mining engineers, has 
predicted that approximately 15,000 mines would require cleanup of 
water-related problems. The cleanup tab for the full universe of 
abandoned mine sites, according to the group, may run as high as $72 
billion.
    In January 2003, the EPA Inspector General reported that 87 sites 
classified as abandoned hardrock mines or mine-related sites had been 
placed on the Superfund National Priorities List (NPL). 8 At 
the time of the IG's report, EPA's rough estimate of cleanup costs for 
these specific sites was about $2 billion. Since then, more mine-
related sites have been added to the list--and many more are possible 
candidates.
---------------------------------------------------------------------------
    \8\ Office of the Inspector General, U.S. EPA, Nationwide 
Identification of Hardrock Mining Sites, March 31, 2004, Report 2004-P-
00005.
---------------------------------------------------------------------------
    Looking beyond these few sites, EPA's Superfund office has 
predicted that somewhere between 7,700 and 31,000 mines will require 
cleanup--either under Superfund or under another program. 9 
An EPA report on the cleanup technologies, notes that the need for 
cleanup grows as the public looks increasingly toward rural areas for 
recreation and as some old mining areas are developed for primary 
housing or second homes. Certainly in your own thirsty state, Mr. 
Chairman, you understand that mining's impact on water resources grows 
more relevant to the entire state as downstate populations grow and 
look beyond existing water allocations for new water sources. Data from 
several sources cited in this EPA report indicate a range of cleanup 
cost running from $20 to $54 billion, with about $3.5 billion of that 
related to Superfund designated sites.
---------------------------------------------------------------------------
    \9\ US EPA, Office of Solid Waste and Emergency Response, Cleaning 
Up the Nation's Waste Sites: Markets and Technology Trends, September 
2004.
---------------------------------------------------------------------------
    The Bureau of Land Management estimates that cleanup of abandoned 
mine sites in its jurisdiction may cost as much as $35 billion. 
10 Damage on U.S. Forest Service land alone would cost $4.7 
billion to fix. 11
---------------------------------------------------------------------------
    \10\ Ibid.
    \11\ Robert McClure and Andrew Schneider, ``More than a century of 
mining has left the West deeply scarred,'' The Seattle Post-
Intelligencer, June 12, 2001.
---------------------------------------------------------------------------
    How do expenditures match up against these figures? According to 
EPA 12, the total federal, state and private party outlays 
for mining site remediation have been averaging about $100 million to 
$150 million per year.
---------------------------------------------------------------------------
    \12\ US EPA, Office of Solid Waste and Emergency Response, Cleaning 
Up the Nation's Waste Sites: Markets and Technology Trends, September 
2004.
---------------------------------------------------------------------------
    At this rate of expenditure, notes the report, only 8 to 20 percent 
of all the cleanup work will be completed over the next 3 decades.
No Easy Solutions
    And now for the bad news. Cleaning up mining problems can be, not 
only expensive, but also technically challenging.
    The case of the Penn Mine in California--the case that initially 
prompted the call to loosen Clean Water Act requirements for mining 
cleanups--makes the point.
    The abandoned old copper mine in the Sierra Nevada Mountains was 
producing acid mine drainage flowing into the watershed that provides 
drinking water to the East Bay Municipal Utility District. The water 
utility, with the best of intentions, took on what it apparently 
thought would be a modest project to protect its water source. The 
Utility constructed a small dam, diversion facilities and retention 
ponds. Unfortunately, however, the results fell short of what was 
desired.
    The ponds were not sized properly and maintenance of the structures 
was reportedly minimal. So the facilities--though they solved some 
problems--actually created additional problems at certain times of 
year. People in the community were upset and took legal action to 
compel more cleanup. The Utility found itself with a long-term cleanup 
job that it had not initially anticipated.
    Was this particular party particularly inept or sloppy? Probably 
not.
      In 1997, a mining company in Arizona was attempting to 
cover a tailings impoundment with waste rock. The impoundment failed 
and tailings and debris moved into Pinto Creek. 13
---------------------------------------------------------------------------
    \13\ US EPA, Region 9, ``Total Maximum Daily Load for Copper in 
Pinto Creek, Arizona,'' April 2001.
---------------------------------------------------------------------------
      In Montana, a mining company reconstructed a tailings dam 
that had failed. Today, the State, the Forest Service, the EPA and the 
community are searching for answers and money to fix this previous 
``fix'' that is now leaking and considered unstable. The company 
involved in this case and dozens of others is in bankruptcy.
      Initial cleanup efforts at the Sulphur Bank mine--an old 
mercury mine in California--used monitoring data from what turned out 
to be an unusual dry spell. When precipitation levels changed, the 
conceptual model of the mine's release of mercury into the environment 
was proven wrong and adjustments to the remedy were required.
      A host of engineers tried to address the problems of acid 
drainage running through the Oklahoma lead mining district some 20 
years ago. They apparently managed to keep acidic waters from returning 
to the surface through unplugged boreholes, and they thought they got 
it right with water diversions and ``rerouting.'' But just recently 
monitoring has shown high levels of lead and arsenic headed toward 
Oklahoma's Grand Lake.
      Sadly, another lesson in unintended consequences comes 
from the same Tar Creek area, where the sensible course of action at 
one point seemed to be to encourage ``remining'' of abandoned ore 
bodies. In this case, ``gougers'' leased mines that had been abandoned 
in order to recover lower grade ores, and their modest operations 
provided some modest economic benefits as the mines were closing in the 
late 60s and early 70s. Since that time, however, there have been 
numerous and sometimes tragic cases of subsidence. 14 Homes 
and businesses in the small town have been declared unsafe, and the 
community is now seeking federal support for relocation.
---------------------------------------------------------------------------
    \14\ Subsidence Subcommittee, ``Report to Governor Keating's Tar 
Creek Superfund Task Force,'' July 21, 2000.
---------------------------------------------------------------------------
The Lessons of Yerington
    But perhaps, Mr. Chairman, the most relevant case-in-point comes 
from your own Silver State. The old Anaconda Copper Mine is a sprawling 
site that has vexed State regulators for years and will, no doubt, 
continue as an expensive, long-term cleanup project. It is a site where 
remining and reprocessing were undertaken--but without significant 
remediation benefits. To the contrary, the reprocessing that occurred 
on this site appears only to have added to underlying problems. 
Yerington, as it is known, stands as a harsh illustration of why 
policymakers should be extremely wary of weakening environmental 
controls and accountability, waiving liability or allowing projects to 
proceed with less than thorough knowledge and understanding of baseline 
conditions and possible outcomes.
    As I am sure you know, Mr. Chairman, Anaconda mined copper and 
produced sulfuric acid at this 3,400-acre site near the small City of 
Yerington from 1953 through the late 70s. At some point in the 70s, as 
regulators and the public later learned, the company recognized the 
presence of radioactive elements in the mine waste and considered 
options for uranium reprocessing. The property was purchased by 
Atlantic Richfield Company in 1977 as the mines were closing down. 
Shortly thereafter the property was purchased by another owner, who 
worked to demonstrate the potential for additional copper recovery from 
the tailings.
    At this point, the site was used for copper recovery and for metal 
salvage operations. Arimetco then purchased the property and 
constructed five heap leach pads and other facilities. The company 
filed for bankruptcy in 1997 but continued to recover copper from 
tailings until late in 1999. In 2000, they walked away from the site 
leaving nearly 92 million gallons of acidic, metal-laden wastewater. 
Using standard BLM costing methods, engineers estimate that the closure 
of just the five leach pads could cost somewhere in the range of $12 
million to $15 million--a fraction, unfortunately, of what the entire 
site cleanup may cost.
    The site is difficult, not just because of the size and the range 
of activities that took place, but also because of the co-occurrence of 
the uranium in the copper ores and the fact that that information was 
not shared early on with regulators, the public and, perhaps, with some 
users of the property. And problems with groundwater contamination have 
worsened, it seems, because the picture of what was happening with 
seepage and groundwater flows was sketchy at best for far too long. In 
fact, disputes over needed testing at this site are a strong argument 
against the language in H.R. 5404, which seems to discount the need for 
solid baseline data and careful site characterization.
    So with Yerington in mind, we would ask you to recognize that 
mining problems can be a bear to solve. Remediation--whether it 
involves sealing adits, reconstructing tailings ponds, diverting waters 
or recovering valuable minerals left as waste ``can and often does go 
wrong. An adit may be plugged, only to blow out as water pressure 
increases. New seeps from a closed tunnel may open up, not at the 
original point of discharge, but in other unexpected areas. 
15 Constructed wetlands may function for a time but cease 
their cleaning function when they reach a point of saturation. Acid-
generating rock may be encountered where none was anticipated; a season 
of drought, can pull groundwater into a pit lake faster than expected; 
storms or heavy snowmelt overwhelm the capacity of detention ponds. And 
reprocessing or remining, as Yerington so clearly illustrates, can 
create its own significant problems.
---------------------------------------------------------------------------
    \15\ See, for example, ``The Earth's Open Wounds: Abandoned and 
Orphaned Mines,'' Environmental Health Perspectives, Volume 111, Number 
3, March 2003.
---------------------------------------------------------------------------
    These examples are offered, not to suggest that nothing can be done 
to abate the problems of mining, but only to caution against a 
``solution'' that tries to fast-track decisions that should not be 
fast-tracked, that skims over the need for critical baseline data, that 
imposes unreasonable deadlines on those reviewing cleanup plans, that 
skimps on oversight, or that absolves operators of responsibility from 
the outset. All of these are problems we seen in H.R. 5404
No Quick Fixes for Acid Mine Drainage
    These real world lessons also remind us that time is an element to 
be reckoned with in mine cleanup efforts. In many cases, mining 
cleanups will have to be viewed as holding actions, and responsibility 
for long-term management must fall to someone, if not to the party that 
initiates cleanup. According to EPA, nearly 60 percent of the mining 
sites listed on the Superfund NPL are expected to require from 40 years 
to ``perpetuity'' for cleanup operations. 16 Many other mine 
sites will require long-term maintenance and vigilance in similar time 
frames.
---------------------------------------------------------------------------
    \16\ Ibid.
---------------------------------------------------------------------------
    This is a critically important point that any ``Good Samaritan'' 
legislation must face up to. It is understandable that small non-profit 
organizations or even large corporations have little interest in 
assuming responsibility for a discharge that may well outlast the life 
of their organizations. But the reality is that acid mine drainage 
will, in many instances, go on for decades or longer, and that someone, 
some entity must retain responsibility for operating active treatment 
systems or maintaining wetlands or other more passive systems. If the 
Committee does not wish to consider leaving this obligation with 
private entities, then it must determine how to enable state 
governments or federal agencies to take on the long-term maintenance 
that many sites will require.
    These examples also make it clear that a general directive to ``do 
no harm'' or ``improve the environment,'' much like that in the 
legislation before you, may be difficult to follow or to assess. We do 
not believe that vague language and lofty but unclear goals should 
sweep away the fundamental underpinnings of the Clean Water Act, 
including water quality standards. The communities surrounding these 
mines--or downstream, downgradient or downwind from these mines--
deserve more assurances than these vague goals can provide.
    And, because things can go wrong, despite the best of intentions, 
we think it would be more than reasonable for any provisions that 
encourage ``Good Samaritan'' actions to also ensure against the 
unforeseen. H.R. 5404 allows for but does not require financial 
assurance, but financial assurance would be essential for any complex 
cleanup project. We recognize that financial assurance would add an up-
front cost to cleanup projects, but that cost would be a small fraction 
of a project's overall cost. It could be subsidized by a trust fund, 
and its existence would help to ensure that the cleanup projects 
undertaken today do not become tomorrow's emergency removals, that what 
are anticipated to be small projects do not end up draining the 
government's resources for response and remediation. That a poorly 
crafted ``cooperative conservation'' program doesn't create more 
Yeringtons.
Existing Law Allows for Cleanups
    It is, no doubt, frustrating to hear of cases in which a willing 
Samaritan hesitates to act because he doesn't want to become embroiled 
in Clean Water Act permitting, is wary of a citizen suit or fears the 
reach of Superfund liability. But consider that there is another side 
to that coin. Liability and obligations under environmental laws is, in 
many instances, is driving cleanups, not impeding them.
    Yerington, for example, is being cleaned up today because the 
threat of Superfund liability offers strong motivation to potentially 
responsible parties.
    In Utah, the Kennecott case is also instructive. It has been 
heralded as a ``voluntary'' effort to clean up massive amounts of 
groundwater, but the more than 20-year cleanup was ``voluntary'' only 
in the sense that Kennecott negotiated out and agreed to a cleanup 
plan--after complaints were filed by regulatory agencies. In 1986, the 
State Health Department, acting as Trustee of Natural Resources as 
provided for under the Superfund law, filed a complaint against 
Kennecott Utah Copper Corporation for groundwater contamination. 
Superfund liability, again, drove cleanup.
    In the Copper Basin of Tennessee, at the Rio Tinto mine in Nevada, 
along the Canadian border in Washington State and in dozens of other 
cases, investigation, cleanup and stabilization is happening, not in 
spite of liability and regulation, but because of it.
    Mine cleanups are taking place not only within the context of the 
Superfund program--as National Priority List sites, under orders and 
authorities for response actions and time-critical removals, as part of 
the Natural Resource Damage Assessment provisions and as Brownfields 
site. Mine sites are being cleaned up as part of community watershed 
initiatives, non-point pollution control programs and basin-wide 
programs to restore impaired waters. They happen under the authorities 
of the federal surface mining law and federal hazardous waste rules. 
And they involve not only the parties who created or worsened problems 
but also those who own the properties or want to own or use the 
properties. They engage volunteers, government agencies, non-profits 
and corporations. They are happening today--under current law.
      In Colorado, for example, EPA reports that casino 
developers have capped and removed mine waste piles contributing to 
cleanup.
      In an area near the Birch Creek National Wild River 
Corridor, the Bureau of Land Management, the Alaska Department of Fish 
and Game, the Alaska Department of Transportation and the Alaska 
Department of Natural Resources worked together to restore portions of 
a reclaimed channel breach on land that had been used for placer gold 
mining from 1984 to 1990.
      In an area along the Hammond River, also in Alaska, BLM 
worked cooperatively with the State and Alyeska to clean up mine waste 
from an old 1930s to 1950s mine.
      The Martin Mine restoration project in Idaho was 
undertaken by the National Park Service in cooperation with the Craters 
of the Moon Natural History Association, the BLM and a local Boy Scout 
troop. This modest but useful project helped to eliminate a water 
quality threat to Little Cottonwood Creek.
      Not too far from here, over the river in Virginia, the 
Park Service worked with the State of Virginia and local volunteers to 
clean up the old Cabin Branch pyrite mine in the Prince William Forest 
Park.
      In Nevada and elsewhere, Bat Conservation International 
has worked cooperatively with U.S. Borax and others to address hazards 
in old mines in ways that help conserve bat habitat. Their work 
includes closure at the abandoned Murphy Gold Mine in Nevada designed 
to protect a large colony of pallid bats--again accomplished within the 
context of current law.
      And in January of this year, the Deltakeeper Chapter of 
Baykeeper and the California Department of Parks & Recreation signed a 
consent decree aimed at preventing a hundred year-old toxic waste at 
Empire Mine State Historic Park from continuing to degrade local 
waterways. The agreement--which actually grew out of challenge to the 
polluting discharges coming from the mine, was hammered out--not in 
spite of the Clean Water Act, but because of it.
    Projects such as these and, of course, the much-talked about Trout 
Unlimited efforts, suggest to us that those who are determined can find 
room to work within the context of current law. Current law allows for 
creative and effective mine cleanup partnerships. The lesson from these 
examples is not, in our view, that the law should be changed, but that 
the experiences of mine cleanups should be shared widely; that more 
funds should be made available to allow for more projects.
H.R. 5404 is Not the Answer
    In sum, Mr. Chairman, we repeat: The problems of abandoned mines 
are large and difficult, and Congress should be wary of simple 
solutions. Any effort to ``encourage'' cleanups with broad exemptions 
from Clean Water Act obligations, or worse still, from Superfund 
liability and other environmental requirements, is fraught with 
difficulty and unnecessary.
    If a ``Good Samaritan'' is relieved of achieving Clean Water Act 
standards, what standards must they achieve? The legislation before you 
doesn't answer that question. Over what time frame? What data should 
prospective Samaritans have in hand to assure that they understand 
critical aspects of water flow and geochemistry? Again, the legislation 
holds no answers. If a remedy fails, who bears responsibility? Who can 
be called upon for additional work or for maintaining treatment systems 
and reclamation work? On these points, the legislation tells us that 
the Samaritan is not responsible. It says that if the land is owned by 
the federal government, that the federal government is not responsible. 
But it doesn't suggest just who it is that will take responsibility.
    So what to do instead? We have a few recommendations.
     1.  Endorse EPA's efforts to use model consent agreements, 
prospective purchaser agreements and other existing regulatory tools to 
promote ``Good Samaritan'' projects. Enable this work with adequate 
appropriations to support and enlarge the Mine-Scarred Land team of 
mining reclamation experts from federal agencies. Assure that this team 
has the resources and the support to act in an advisory capacity for 
new cleanup projects, providing technical critiques and disseminating 
information about the best practices and most likely problems.
     2.  Look to the mining industry to help fund cleanup of abandoned 
mines, following the model set out for coal mine restoration under the 
Surface Mining Reclamation and Control Act (SMCRA). Congress should 
impose a tonnage fee on all metals mined from private and public land 
to fund a serious, long-term remediation program. Use the resulting 
trust fund to pay for cleanup at old sites where responsible, solvent 
entities cannot be found. Congressman Mark Udall's H.R. 1265 would be 
an excellent mark up vehicle.
     3.  Boost federal funding for cleanups and provide for 
coordination and sharing of funds among states, BLM, Forest Service, 
EPA and other appropriate agencies. Do this with more funding for 
Superfund, for brownfields, for Clean Water Act Section 319 grants and 
more. By encouraging federal agencies and the states to do joint 
planning and to pool resources, the best expertise and capacities of 
many parties can be leveraged for the maximum results.
     4.  Engage states and federal agencies in developing adequate 
inventories of sites and, perhaps more importantly, selecting priority 
areas for voluntary cleanups and for re-invigorated enforcement-driven 
cleanups.
     5.  Direct EPA to get off the dime and issue rules for financial 
assurance for the mining sector, which makes such an enormous 
contribution to the country's Superfund burden. This duty already 
exists in law, so you don't have to pass new legislation. Make things 
happen with directions and appropriations. Senator Maria Cantwell has 
introduced legislation on this matter--S. 3515. No similar legislation 
exists in the House at this point.
     6.  Stop the continued creation of additional mine problems by 
first clearly defining ``abandoned,'' as recommended by the National 
Academy of Sciences and as done under SMCRA. And begin work on 
legislation to set out minimum performance standards, strong financial 
assurance requirements and clear permitting guidelines. Have the 
agencies create clear requirements for operators to notify regulators 
of changing conditions at operating mines, and be certain that mine 
permits--as well as bonding amounts--are updated as conditions change. 
Set out monitoring and reporting requirements as well fair and firm 
enforcement mechanisms. Build regulatory capacity and expertise in the 
field with grants to support state programs. Again, Congressman 
Rahall's legislation, H.R. 3968, offers the most thorough and useful 
model.
     7.  Weed out irresponsible investors and operators with solid 
``bad actor'' provisions to deny future permits or government contracts 
to companies that violate environmental rules or walk away from 
reclamation obligations. Make sure bad actors cannot hide behind 
corporate reshuffling and creation of new subsidiaries. Such provisions 
are included in H.R. 3968.
     8.  Deal with the most dramatic regulatory loophole for mine 
operations by directing EPA to establish waste regulations specifically 
crafted for the management of mine waste rock, tailings or other 
mineral-processing wastes, including wastes currently covered by the 
Bevill amendment.
     9.  Invest in research that will allow for more reliable 
predictions about mining's impacts on water resources, looking closely 
at the potential for creating acid mine drainage but also focusing on 
other difficult issues, such as disruption of aquifers from dewatering, 
mechanisms for groundwater contamination and impacts of pit lakes that 
refill with acids, metals and other pollutants after mine operations 
cease. Make sure that the best available predictive tools are used to 
plan cleanups and to permit mines in the first instance.
    10.  Learn from past mistakes with failure analyses conducted in 
conjunction with mine cleanups. Whenever federal dollars or enforcement 
authorities are used for cleanup of a mine site that operated during 
the mid-1980s or forward, regulators should analyze those aspects of 
the operation that led to a need for cleanup. As these analyses 
identify problem management areas--be they heap leach pads, faulty 
liners, pipeline breaks, unstable waste piles, poorly characterized 
geology or something else--regulators should act to disseminate new 
information on ``best practices'' and, as necessary, adopt new 
regulations to prevent repeat failures.
    11.  Commit to carrying out your oversight duties. This is a thorny 
issue, but there is much activity in the field. Congress should keep a 
close eye on developments, positive and negative, regarding mining and 
water quality.
    12.  And, to the extent that you decide to take legislative action 
on Good Samaritan cleanups, look to language introduced by Congressman 
John Salazar. Work from his carefully crafted legislation, H.R. 5071, 
that builds upon long efforts of many parties to address significant 
problems in the Upper Animas watershed of Colorado. It is based on 
solid background work to characterize and understand threats in the 
watershed and it authorizes a demonstration project that will be 
carried out as part of a watershed Total Maximum Daily Load program. 
This legislation could be expanded beyond the single watershed in 
Colorado, incorporating other TMDL restoration work in other 
watersheds. A watershed context for cleanups can provide valuable 
context, assuring that individual projects do not unintentionally 
improve water quality for one parameter or in one location only to 
undermine it elsewhere. In addition, several projects within a single 
watershed may be able to share important baseline data and technical 
information. Assure that all projects have appropriate oversight, and 
require a report--say on a two-to-three-year time-frame--about 
successes and problems with the projects chosen.
    13.  As part of this effort, set up a trust fund--like that 
established under the Surface Mining Control and Reclamation Act--that 
can be used not just to fund individual cleanup projects but also to 
underwrite financial assurances for this work. Even well-planned 
projects can meet with difficulty, and a shared trust fund could be 
used to insure against creating new problems at any mine site.
    Again, Mr. Chairman, I appreciate this opportunity to testify, and 
I hope that Committee members find this information and these 
recommendations of assistance. I look forward to your questions and to 
working with your staff on these important issues.
                                 ______
                                 
    Mrs. Drake. Thank you. We will move to questions. We will 
work with a 5-minute limit on questions. I will begin, and 
first of all, Ms. Skaer, thank you for bringing to our 
attention what industry has done voluntarily when you talked 
about a company that--Idaho I think you said, who had stepped 
in, but for both you and Mr. Quinn, if Good Samaritan 
provisions were available in the past, would the industry have 
stepped in and helped address environmental and water 
management problems at some of the modern mine properties 
listed on the AML sites? Would they have stepped in and done 
that sooner or have been able to do more?
    Ms. Skaer. Well, I believe the industry would have done 
that. As I indicated in the closing part of my written 
testimony, these historic abandoned mines, they are dirty 
pictures. They are our Achilles' heel. It is what mining 
opponents use to foment public opposition to modern, 
environmentally responsible mining projects under current 
regulations. They drag in pictures of the past. It is an--it 
not only is in our--it not only helps clean up the environment, 
it is in industry's best interest to clean these sites up and 
get them off the radar screen as quickly as possible. If we 
would have had good sound legislation that would have allowed 
reprocessing and remining and provided appropriate liability 
relief--and we are not asking for a liability relief if we 
caused problems in the Good Samaritan work, but from liability 
relief from the actions of others in the past, I definitely 
believe we would have addressed many of those sites.
    Mrs. Drake. And Mr. Quinn, did you want to add to that?
    Mr. Quinn. Yes. Clearly if the incentives provided under 
legislation being offered today, particularly the legislation 
introduced by Senators Allard and Salazar, had been available a 
while back, there are opportunities lost because of the lack of 
those protections and those incentives, and the industry, there 
are many instances--I know WGA can testify to this as well 
there are instances--of their member States and our members 
trying to partner together on projects, but oftentimes the 
final barrier is some of these legal and regulatory 
impediments.
    Mrs. Drake. Can you also answer, either or both of you, to 
what extent did litigation by groups opposed to mining 
contribute to some of the modern mining sites listed as AML 
sites? Did that have an impact as well?
    Mr. Quinn. Madam Chairman, I cannot speak to that point, 
but in terms of citizens suit exposure as being a deterrent to 
undertake these types of projects, that is clearly an issue.
    Ms. Skaer. Madam Chairwoman, I know a site in the State of 
South Dakota, known as the Anchor Hill deposit, in which a 
company was proposing to bring in a new mine and the proposal 
was to use the revenue generated by that mine to not only 
provide for the reclamation of the new mine, but to clean up 
historic waste and acid rock drainage on the mine site that the 
company proposing the new mine did not create, and yet mining 
opponent opposition to this mine delayed the permitting. The 
litigation resulted during a period of time when the price of 
gold dropped from $400 an ounce to $240 an ounce and the 
project became no longer feasible, and that site is now--you 
know, the revenue is not generated to clean that site up and it 
ended up being an AML site that the public is going to have to 
pay for.
    Mrs. Drake. Well, in the same vain as that, to what extent, 
if at all, could the Good Samaritan program eliminate or at 
least reduce the need for a Superfund outlay? We always talk 
about more money from the Federal Government, but do we have 
any estimates of what we could either reduce or eliminate that 
need of funding through these Good Samaritan programs?
    Ms. Skaer. Well, I think that clearly Superfund is not the 
answer here. Experience has shown that the costs under 
Superfund run three to five times higher. It is much more 
expensive. They spend--about 12 percent of the money that 
Superfund collects actually goes into the ground. The rest of 
the money goes into studies and consultants. I think it is much 
more efficient to encourage the mining industry to step forward 
and other Good Samaritans with their own money and put it into 
the ground rather than collecting money from the industry, 
sending it back to Washington, D.C., and then sending it back 
to the ground, where you lose 90 percent of the money in the 
transition. It seems like a much more efficient process to 
allow the free market to work.
    Mrs. Drake. Thank you. And I will now recognize Mr. Mark 
Udall for 5 minutes.
    Mr. Mark Udall. Thank you, Madam Chairman, and again 
welcome to the panel. Your testimony has been very 
enlightening. If I might, I would like to start with Dr. Brown. 
Dr. Brown, welcome.
    It is always terrific to have somebody from Colorado to 
join us. We appreciate you making the trip back here. You 
suggested that separating the protection from liability from 
funding issues would help make it easier to craft legislation. 
I came to that same conclusion over the last year or so, and 
that is why I decided to introduce two separate bills, one that 
deals with the funding, one that deals with the liability side. 
But I take it that you think a complete solution needs to 
address both issues at some point.
    Mr. Brown. Indeed. I am sorry.
    Mr. Udall. If you would like to continue.
    Mr. Brown. Madam Chairman and Congressman Udall certainly 
funding is also an impediment to the cleanup of these mines. We 
have seen, however, in Colorado and across the West various 
different ways how different sites have been funded.
    Mrs. Drake. Could you turn your mike on for us?
    Mr. Brown. I am sorry. It is on. I am not sitting close 
enough.
    Mrs. Drake. Thank you.
    Mr. Brown. Sometimes there are communities who will be able 
to exploit the commercial value of reclaimed land to a fund 
site. Sometimes a community, such as they did in Breckenridge, 
will pass a local sales tax to help pay for cleanups. There are 
as many funding solutions as there are mines needing to be 
cleaned up.
    I think that the Administration's bill is strong because it 
focuses on the liability aspect and leaves aside for another 
day the possibility of considering a kind of fee on the 
industry. What we need, the strategy of taking on this problem 
bit by bit I think is the most practical one in terms of seeing 
action as soon as possible on the liability question.
    Mr. Mark Udall. Thank you. Yeah. With this disclaimer, I am 
biased. My bill does as well focus, as you know, on the 
liability side.
    Page 10 of your statement, you talked about some of the 
things we should do, some of the things we should avoid when we 
craft such legislation. Have you had a chance to review all the 
various bills introduced in the House and the Senate? And if 
so, could you rate them in terms of the criteria you have 
described and perhaps we ought to give you a chance to respond 
to the committee in more detail in that regard. Based on the 
look on your face, I would make that offer.
    Mr. Brown. Madam Chairwoman and Congressman, I have to 
admit that I am not a policy technician nor a lawyer. I am a 
historian by training and it is a historical perspective that I 
take on these issues. I would be happy to generate a memo that 
more in detail weighs the different strengths and weaknesses of 
the various bills as a homework assignment.
    Mr. Mark Udall. We appreciate your willingness to undertake 
such an assignment. If I might, Mr. Quinn, on page 8 of your 
statement you say Good Samaritan doing a cleanup under permit 
could find itself incurring liability under other laws besides 
the Clean Water Act. Could you give us some examples of what 
you have in mind?
    Mr. Quinn. Certainly, Congressman. For instance, RCRA is 
another issue that needs to be dealt with in terms of 
permitting and corrective actions, and so forth, if we incur 
particularly materials that are considered generated by the 
Good Samaritan activity and has to be regulated either as a 
subtitle C hazardous waste prospectively. So there are issues 
associated with RCRA that deal with how we are going to apply 
RCRA. Is it appropriate to be applied as is or tailored in a 
Good Samaritan project? That is just one example, one 
additional law.
    TSCA could potentially be a problem, as Ms. Smith just 
testified, in terms of the Tennessee site with PCBs. That would 
be another issue that we would be confronted with. Good 
Samaritan confronted an abandoned mine with transformers or PCB 
with materials that have been somehow spread in part of the 
site and have to do with TSCA.
    What we are speaking about in that testimony is the 
framework we see for Good Sam providing up front the 
flexibility to address those issues by naming those laws as 
eligible to be addressed in a Good Sam permit and then in the 
permit process, the regulators and the parties come together to 
decide what is necessary to adjust those existing standards to 
allow the Good Samaritan projects to go forward, at the same 
time result in some improvement.
    Mr. Mark Udall. I see my time is about to expire, Madam 
Chair. I don't know if we are going to have time for another 
round of questions. I would hope we might.
    Mrs. Drake. I think we would have time for that.
    Mr. Mark Udall. For another round. I will yield the time I 
do not have remaining, and we will come back around to Ms. 
Smith and Ms. Skaer.
    Mrs. Drake. The Chair will recognize Mr. Pearce.
    Mr. Pearce. Thank you, Madam Chair. Ms. Smith, you said you 
are not in favor of weakening environmental laws and you 
consider this Good Samaritan law to be a weakening of 
environmental laws.
    Ms. Smith. I consider the Administration bill to do that 
because I feel like what we see is they don't set a standard. I 
know that Mr. Fewell said they set realistic standards, but I 
say it is--basically it is a real mushy standard. There is no 
standard in the alternative. The analogy I would think of is, I 
have good intentions, I want to drive safely. You wouldn't tell 
me, OK, now you don't have to obey the traffic lights, you 
don't have to stop at stop signs, you don't have to obey the 
speed limit. There are no clear standards, and there is no way 
of getting to clear standards within the Administration bill. 
It absolves people of liability and responsibility, and it 
takes the public in many ways out of the game in terms of being 
able to have access to information and access to the courts if 
things go wrong.
    Mr. Pearce. You would be opposed if we did pass some sort 
of legislation for--let's say that we could get those 
objections resolved and we did have some form of Good Samaritan 
legislation where we could begin to clean up some of these 
sites that exist, you would be opposed to having, like Ms. 
Skaer suggested, mines that did not contribute to the problem 
be a part of the solution; you would think that would be 
offensive?
    Ms. Smith. I am not opposed at all to remining or 
reprocessing.
    Mr. Pearce. No. I was asking to right on exactly the point. 
She said that it makes sense to allow mines who know the 
process, which makes sense to me, if you know the process, 
those would be the people that we would--and you would find 
that to be somewhat problematic?
    Ms. Smith. Well, I don't see any reason to absolve the 
people who if they know what they are doing, they have a good 
plan----
    Mr. Pearce. No, no, no. The problem is we are going into 
the back. We are saying if a problem existed a hundred years 
ago, that if you ever touch it you are now part of the problem 
for a hundred years ago, and that is why we don't get anywhere 
on asbestos, it is why we don't get anywhere on this issue, and 
I am asking as a person that comes from industry, in the oil 
and gas industry, if you want somebody to clean up an old 
orphaned well you probably ought to get somebody from the oil 
and gas industry to clean it up. And if you make them 
responsible for what happened in the past, nobody is going to 
touch it. And that is simply what he is saying and you would 
find that objectionable it seems.
    Ms. Smith. The reason I would find it objectionable is that 
much of the mess today--there are many arguments that many of 
these sites with companies who are operating in the 70s in the 
80s and the 90s and today and creating pollution problems and 
saying that those pollution problems are from the turn of the 
20th century, and many of those pollution problems are not from 
the turn of the 20th century. They are from the last few----
    Mr. Pearce. OK. Ms. Skaer, you hear the conversation. Is 
that true? You have people in the industry who are really 
ducking responsibility, claiming under their watch that the 
things they see belong back there. Do you have people that will 
admit to problems that they see that have been created under 
their watch and go about solving them? Tell me a little about 
your industry.
    Ms. Skaer. Well, you know today's industry is a highly 
environmentally responsible industry. They have--the industries 
figured out that being environmentally responsible is not only 
the right thing to do, it is good for the bottom line. You 
know, it would be very easy on a site-by-site basis to 
determine whether or not there is a responsible party, a mining 
industry in existence today who worked at the site and caused 
or contributed to the problem. That is going to be easily 
determined. We start from the standpoint that by definition an 
abandoned mine is a mine that has no identifiable owner today 
or party that was responsible for the problem. And what we are 
suggesting is that--like you said, Congressman, if you want an 
abandoned mine cleaned up, then you ought to bring in the 
experts in cleaning it up, and that is the industry, just like 
in the oil and gas industry. You know, we are not looking to 
absolve liability for problems that we contributed to. We are 
looking at saying we want to be part of the solution to this 
problem that we didn't cause.
    Mr. Pearce. And that is typically what I see in industry 
today. I see in the oil and gas industry when my--in my dad's 
generation significant problems, but I just don't see random 
acts today in the oil industry, and I suspect that they are not 
there.
    I have another round of questions also, Madam Chair.
    Mrs. Drake. Mr. Quinn, your written testimony calls for 
permit writers to have flexibility and to tailor the permit to 
the need of the site. Don't the permit writers already have 
that ability today?
    Mr. Quinn. Apparently not in terms of applying current 
environmental statutes to the situation. They do not appear to 
think they have that authority. Arguably, there might be a 
situation where EPA or other regulators may think they can 
tailor the Clean Water Act, and so forth, but that has 
obviously not been forthcoming and as I indicated in my 
testimony, it seems to be the consensus of many of the 
organizations which have had a dialogue on this for well over a 
decade that to break the logjam we need to have a legislative 
solution that clearly signals to the State agencies and Federal 
agencies that they have that discretion to tailor in a single 
permit how different environmental measures will be applied to 
that situation for a voluntary cleanup.
    Mrs. Drake. Thank you. I am going to go ahead and go--the 
Chair is going to recognize Mr. Udall for the second round.
    Mr. Mark Udall. Thank you, Madam Chair. Ms. Skaer, is that 
how you pronounce your last name?
    Ms. Skaer. Correct.
    Mr. Udall. OK. Thank you for your testimony. In particular, 
I could make an editorial comment. I think we all have a real 
opportunity here, as you point out, for a win-win-win across a 
lot of spheres, and I appreciate the mining industry's 
acknowledgment that if we could move in this direction. It is 
quite a statement, and so I hope we can seize the moment, 
frankly. As I mentioned earlier, I have been working on this 
since I arrived in the Congress in 1999. I know Senator Baucus 
has been working on this since the 1980s and at one point he 
threw his hands up and said enough, people just don't seem to 
want to move ahead. So I think there is a real opportunity here 
for the mining industry to provide great leadership on this, 
and it would be a great success before we even cleaned up some 
of these mines to have the possibility of doing so.
    In one of your criticisms of the bill, if I could become a 
little more specific here, you focus on the fact that the 
definition of a Good Samaritan is too limiting and you suggest 
the company shouldn't be disqualified just because it appears 
in the chain of a title for a mine. But wouldn't a company that 
appears in the chain of title be liable at least to some extent 
for cleaning it up? And if so, why should Congress relieve them 
of that liability?
    Ms. Skaer. Well, there is a lot of times in the course of 
mergers and acquisitions a company may end up, you know, a 
modern mining company may end up in the chain of title of a 
legacy site but they didn't work on the site. They didn't cause 
the problem, and what we are suggesting is that merely 
appearing in the chain of titles should not be enough in and of 
itself to disqualify a company from being a Good Samaritan if 
they are willing to come forward with their own money and their 
own equipment and clean up the site. It seems to me that if our 
goal is to improve water quality and clean up these sites, 
let's not limit the people that can participate.
    Mr. Mark Udall. A devil's advocate would say they should 
have undertaken due diligence when they were involved in that 
transaction and that they have that legal responsibility. I 
know that has been part of the discussion between Mr. Pearce 
and Ms. Smith in the committee in general.
    Ms. Smith, would you want to respond here, present your 
point of view on this as well? Because I think this is an 
important discussion here.
    Ms. Smith. I think it is, and I am fearful that that kind 
of exemption feeds into how the mining industry operates. It is 
not a criticism of how they operate, but there is a lot of 
transfer of properties and interest in particular mining 
operations. So it is very common, and you will find in many 
cases, you know, there is whole numbers of bankruptcies that go 
on and then their portfolio of mines, the mines that have 
uncleaned up messes go one place and the mines that have, you 
know, messes that maybe have a little money attached to them, 
you know, get spun off to someone else, and I think by doing 
that we pretty much basically tell the industry that is all 
right, you can trade your mining messes, and no one will have 
to clean up after themselves.
    Mr. Mark Udall. My sense, again editorially, is that there 
are arguments on both side of this that make some sense and we 
ought to continue to have this discussion to see if there isn't 
a sweet spot that we could embrace because I think there are a 
number of companies that would like to do the right thing, as 
Ms. Skaer suggested, and in other cases maybe somebody has been 
playing fast and loose and gaming the system. But would you 
like to respond, Ms. Smith?
    Ms. Smith. I would say--I would propose to the mining 
folks, wonder if they would--I would challenge them that if 
they had Good Samaritan legislation, that no mining company who 
has outstanding cleanup obligations of their own has 
unreclaimed land that they have not--that is closed and not 
cleaned up could participate at any site as a Good Samaritan 
until they clean up their existing obligations.
    Mr. Mark Udall. It might be interesting to embrace the 
American principle that we all get second or third chances, and 
perhaps it is opportunity for some companies--if in fact they 
exist, and let Ms. Skaer speak to this--get a second start, 
prove that in this day and age, as Mr. Pearce has suggested, 
that we know what we need to do and the technology is available 
and perhaps those companies will want to put that legacy behind 
them and start a new legacy.
    Ms. Skaer, would you care to comment further?
    Ms. Skaer. Well, I think that is true, Congressman. You 
know, like most industries in America, you know, we operated at 
a time when society did not have the same environmental ethic 
that we have today. We lacked the practices and the technology 
and the processes. I mean, we used to put--as a society, we 
used to put our sewage in the river because the river took the 
sewage away. We don't do that anymore. The industry has 
changed. When presented with problems, the mining industry has 
time and time again looked at it and found a solution. They 
have developed the technology, the practices to address these 
issues. It is a much different industry today than it was 30 
years ago, 40, 50 years ago.
    I do think that, you know, that if they have obligations 
somewhere else that should not prohibit a company who is 
willing to step forward and spend their own money and use their 
own equipment and apply their own expertise to clean up an 
abandoned mine site if the goal is to improve water quality and 
clean up these sites, then we should allow the people--you 
know, companies that are willing to do that to step forward to 
do that as long as they didn't cause the problem at the site 
they are cleaning up.
    Mr. Mark Udall. Thank you again, both of you. Madam Chair, 
thanks for your indulgence. Made very good points here. I am 
not sure where the answer lies, but it is the discussion we 
ought to continue to have. When you speak about the old days 
and sending sewage downstream, I am not sure that Mr. Pearce 
agrees that Colorado doesn't still do that today.
    Ms. Skaer. Well, Congressman, we look forward to continuing 
the dialogue and working with you. Our members are very 
supportive, and we support any and all efforts to advance the 
Good Samaritan concept. We just want to make it clear that we 
want to participate and in order for the industry to 
participate, there is certain elements that the legislation 
needs to contain to ensure that we are at the table and 
bringing our expertise to the table.
    Thank you.
    Mrs. Drake. The Chair recognizes Mr. Pearce.
    Mr. Pearce. Thank you. And I have several questions, so if 
you would go to the shorter version of your answer rather than 
the longer version.
    Mr. Quinn, you have heard Ms. Smith's concern and Mr. 
Udall's question that you might have some companies that play 
right and some play fast and loose. What would the 
association's position be if you have some company out there 
playing fast and loose with the rules? Would you tolerate it?
    Mr. Quinn. No, and they shouldn't be eligible for a Good 
Samaritan.
    Mr. Pearce. Ms. Smith, the deal is that I think you have an 
industry that is willing to differentiate and yet people with 
the viewpoint somewhat similar to yours are continuing to block 
almost all improvement in this, and it just gets very 
frustrating because I think we all could move not all the way 
to the goal but somewhat closer to the goal. I see if you do 
address it, very shortly, Ms. Quinn--I mean Ms. Smith.
    Ms. Smith. I would say that colleagues of mine indeed have 
been trying to advance this discussion and have been actually 
supportive of Mr. Udall's legislation on--not just the finance 
part.
    Mr. Pearce. OK. Mr. Quinn, you have heard Ms. Smith talk 
about some of the ongoing current problems that we are--the 
statement is that we are continuing even today under regulatory 
practices. Are the regulatory practices that allow, and are 
there mines that are just starting today that are creating the 
same problems that we have seen created in the past? Is that a 
true statement?
    Mr. Quinn. No. I mean if the premise is that there is a 
number of instances where mines that began in 1970s or 80s have 
ended up causing some environmental concern but that should 
now--that should make the entire industry ineligible for 
cleaning up sites that were at the turn of the century, in the 
early part of the century and in the last century in the 50s, I 
don't really accept that premise. I think what we are talking 
about here is a predominant amount of the problems are problems 
when the ethic and the technology and the know-how and the 
expectation is entirely different. Now we are saying we have a 
different ethic. We have a different expectation and we have 
the technology and know how to fix those problems if the cloud 
of liability and regulatory impediments are----
    Mr. Pearce. If we were to look at the more current 
problems, and I don't doubt that there are some, but I suspect 
that they are completely on a different scale than previously, 
if, again, my background in oil and gas is any correct 
viewpoint. How much effect does litigation have, coming from 
the outside, on the difficulty of mines to continue or mining 
companies to continue or to clean up? Tell me a little bit 
about that.
    Mr. Quinn. Well, Congressman, a lot of the litigation is a 
huge problem in terms of planning and receiving the 
authorizations you need to start mining. This prolongs the 
process. Expanding cases in the West and for large operations, 
it is taking 7 to 10 years to get permits you need to start up, 
and if they can get permits within 18 months, using--meeting 
similar environmental standards in another country, all things 
considered, I am going to be going offshore because as an 
investor I will get a quicker return on my same investment. So 
I really can't, again, speak to how much litigation has been a 
cause of----
    Mr. Pearce. That is fine. Let me ease on ahead here then.
    Ms. Smith, you had suggested we need to do more funding. 
That would be the solution. You have heard Ms. Skaer testify I 
think 12 percent in one of her answers of the Superfund 
actually goes to the ground. The rest goes to studies and 
consultants. Who would you--I mean, you obviously do not want 
the mining companies to participate in the rehabilitation of 
the mine. Who would you direct that funding toward? Who would 
actually do the work since we are not going to use the people 
with the know-how?
    Ms. Smith. No. I didn't say I would exclude mining 
companies across the board. I was saying bad actor mining 
companies shouldn't be allowed to be Good Samaritans. And the 
12 percent figure for Superfund was--I believe that is like a 
15 or so year old study about----
    Mr. Pearce. How much is that today then?
    Ms. Smith. I don't know that there is a figure today. I 
think that it is probably a much higher percentage of it that 
goes----
    Mr. Pearce. See, I doubt it. And the reason I am not 
willing just to pour money into it, because I see the same 
thing Ms. Skaer sees. I will give you an instance. We have Blue 
Hole, just an aqua spring in the district that I represent out 
in the middle of the desert. There is a hole about the size of 
this room that flows with water all the time, and the city 
thought they would do something really good and make it where 
you could drop big rocks so the scuba divers could see 
something. Well, it disrupted the flow. So now the water is 
eating away. So we wanted the big rocks out. If I were doing 
that as an industry guy, I could do that for $5,000. But we got 
the Corps of Engineers, what was it, $75,000? We got them 
$75,000. Well, they should have been able to study it, to draw 
a picture, to go down there and look at it, to go down there 
upside down to look at it, and instead they only got the 
$75,000 to study it. So then we said, OK, next year we wanted 
absolute. So they requested another $250,000 to study it again, 
and that is the problem with these things wherein the 
government is involved and where any agency, they are self-
protecting, they want to pay the consultants, they want to pay 
all this stuff, and I don't think--I would be worried that it 
would be even lower than that. And so that is the reason that I 
am not sitting here chomping at the bit to pour money into 
this. If I saw that we were cleaning--even 80 percent of the 
money went to the cleanup, I would begin to vote for funding, 
but when 12 percent--when 80 percent goes to the bureaucracy, I 
am not interested.
    Thank you, Madam Chair, and I probably have 8 or 10 more 
rounds of questions.
    Mrs. Drake. Well, I thank the witnesses for their valuable 
testimony and the members for their questions. Members of the 
committee may have additional questions for the witnesses, and 
we will ask you to respond to these in writing. So thank you 
for being here.
    If there is no further business to come before the 
Subcommittee, the Chairman again thanks the members of the 
committee and our witnesses. Without objection, the committee 
stands adjourned.
    [Whereupon, at 11:45 a.m., the Subcommittee was adjourned.]

    [A statement submitted for the record by Mr. Udall 
follows:]

                       REPRESENTATIVE MARK UDALL

          BILLS TO ASSIST ABANDONED HARDROCK MINES RECLAMATION

                             March 10, 2005

    Mr. Speaker, today I am again introducing legislation designed to 
help promote the cleanup of abandoned and inactive hardrock mines that 
are a menace to the environment and public health throughout the 
country, but especially in the west. I introduced a bill aimed at that 
result in the 107th Congress, and in the 108th introduced a revised 
version that incorporated a number of changes developed in consultation 
with interested parties, including representatives of the Western 
Governors' Association, the hardrock mining industry, and environmental 
groups.
    Today, I am introducing two separate but complementary bills that 
together include the provisions of the bill I introduced in the 108th 
Congress. This two-bill approach reflects the fact that while the 
Resources Committee has jurisdiction over the proposed funding 
legislation, the provisions dealing with liability fall within the 
responsibility of the Transportation and Infrastructure Committee. In 
other words, while the one-bill approach had the virtue of being 
comprehensive, the two-bill approach may facilitate Congressional 
action. But it remains the fact that both bills are equally necessary 
for a complete response to the problem.

                             THE BACKGROUND

    For over one hundred years, miners and prospectors have searched 
for and developed valuable ``hardrock'' minerals--gold, silver, copper, 
molybdenum, and others. Hardrock mining has played a key role in the 
history of Colorado and other states, and the resulting mineral wealth 
has been an important aspect of our economy and the development of 
essential products. However, as all westerners know, this history has 
too often been marked by a series of ``boom'' times followed by a 
``bust'' when mines were no longer profitable. When these busts came, 
too often the miners would abandon their workings and move on, seeking 
riches over the next mountain. The resulting legacy of unsafe open mine 
shafts and acid mine drainages can be seen throughout the country and 
especially on the western public lands where mineral development was 
encouraged to help settle our region.

                              THE PROBLEMS

    The problems caused by abandoned and inactive mines are very real 
and very large--including acidic water draining from old tunnels, heavy 
metals leaching into streams killing fish and tainting water supplies, 
open vertical mine shafts, dangerous highwalls, large open pits, waste 
rock piles that are unsightly and dangerous, and hazardous dilapidated 
structures.
    And, unfortunately, many of our current environmental laws, 
designed to mitigate the impact from operating hardrock mines, are of 
limited effectiveness when applied to abandoned and inactive mines. As 
a result, many of these old mines go on polluting streams and rivers 
and potentially risking the health of people who live nearby or 
downstream.

                         OBSTACLES TO CLEANUPS

    Right now there are two serious obstacles to progress. One is a 
serious lack of funds for cleaning up sites for which no private person 
or entity can be held liable. The other obstacle is legal. While the 
Clean Water Act is one of the most effective and important of our 
environmental laws, as applied it can mean that someone undertaking to 
clean up an abandoned or inactive mine will be exposed to the same 
liability that would apply to a party responsible for creating the 
site's problems in the first place. As a result, would-be ``good 
Samaritans'' understandably have been unwilling to volunteer their 
services to clean up abandoned and inactive mines.
    Unless these fiscal and legal obstacles are overcome, often the 
only route to clean up abandoned mines will be to place them on the 
nation's Superfund list. Colorado has experience with that approach, so 
Coloradans know that while it can be effective it also has 
shortcomings. For one thing, just being placed on the Superfund list 
does not guarantee prompt cleanup. The site will have to get in line 
behind other listed sites and await the availability of financial 
resources. In addition, as many communities within or near Superfund 
sites know, listing an area on the Superfund list can create concerns 
about stigmatizing an area and potentially harming nearby property 
values.
    We need to develop an alternative approach that will mean we are 
not left only with the options of doing nothing or creating additional 
Superfund sites--because while in some cases the Superfund approach may 
make the most sense, in many others there could be a more direct and 
effective way to remedy the problem.

                     WESTERN GOVERNORS WANT ACTION

    The Governors of our western States have recognized the need for 
action to address this serious problem. The Western Governors' 
Association has several times adopted resolutions on the subject, such 
as the one of June, 2004 entitled ``Cleaning Up Abandoned Mines'' 
sponsored by Governor Bill Owens of Colorado along with Governor Bill 
Richardson of New Mexico and Governor Kenny Guinn of Nevada.

                        OUTLINE OF THE TWO BILLS

    My two bills are based directly on those recommendations by the 
Western Governors. One addresses the lack of resources, while the other 
deals with the liability risks to those doing cleanups.

                   Bill to Provide Funds for Cleanups

    To help fund cleanup projects, one bill--entitled the ``Abandoned 
Hardrock Mines Reclamation Funding Act''--would create a reclamation 
fund paid for by a modest fee applied to existing hardrock mining 
operations. The fund would be used by the Secretary of the Interior to 
assist projects to reclaim and restore lands and waters adversely 
affected by abandoned or inactive hardrock mines.
    A similar method already exists to fund clean up of abandoned coal 
mines. The Surface Mining Control and Reclamation Act of 1977 (SMCRA) 
provides for fees on coal production. Those fees are deposited into the 
Abandoned Mine Reclamation Fund and used to fund reclamation of sites 
that had been mined for coal and then abandoned before enactment of 
SMCRA. Similarly, my bill provides for fees on mineral production from 
producing hardrock mines.
    In developing this bill, I have followed the lead of a 1999 
resolution of the Western Governors Association. That resolution notes 
that ``While society has benefited broadly from the metal mining 
industry, problems created by some abandoned mine lands [are] a 
significant national concern..... [and] industry can play an important 
role in the resolution of these problems through funding mechanisms'' 
as well as in other ways.
    In accord with that suggestion, the bill provides for fees on 
producing hardrock mines on federal lands or lands that were federal 
before issuance of a mining-law patent. Fees would be paid to the 
Secretary of the Interior and would be deposited in a new Abandoned 
Minerals Mine Reclamation Fund in the U.S. Treasury. Money in that fund 
would earn interest and would be available for reclamation of abandoned 
hardrock mines and associated sites.
    In developing the bill, I decided that a one-fee-fits-all approach 
would not be fair. Instead, the bill provides for only modest fees and 
a sliding scale based on the ability of mines to pay.
    Mines Exempt from Fees--To begin with, the bill would entirely 
exempt mines with gross proceeds of less than $500,000 per year. That 
means many--probably most--small operations, such as Alaskan 
prospectors working individual placer claims, will not be liable for 
any fees.
    Calculation of Fees--For more lucrative mines, fees would be based 
on the ratio of net proceeds to gross proceeds. If a mine's net 
proceeds were under 10% of gross proceeds, the fee would be 2% of the 
net proceeds. For mines with net proceeds of at least 10% but less than 
18% of gross proceeds, the fee would be 2.5% of net proceeds. Mines 
where the net proceeds were at least 18% but less than 26% of gross 
proceeds would pay a fee of 3% of net proceeds. If the net proceeds 
were at least 26% but less than 34% of gross proceeds, the fee would be 
3.5% of net proceeds. Where the net proceeds were at least 34% but less 
than 42% of gross proceeds the fee would be 4% of net proceeds. Mines 
with net proceeds equal to at least 42% but less than 50% of gross 
proceeds would pay a fee of 4.5% of net proceeds. And mines whose net 
proceeds were 50% or more of the gross proceeds would pay a fee of 5% 
of the net proceeds.
    For the purpose of calculating these fees, the bill defines gross 
proceeds as the value of any extracted hardrock minerals that are sold, 
exchanged for good or services, exported ready for use or sale, or 
initially used in manufacture or service. Net proceeds are defined as 
how much of the gross proceeds remain after deducting the costs of mine 
development; mineral extraction; transporting minerals for smelting or 
similar processing; mineral processing; marketing and delivery to 
customers; maintenance and repairs of machinery and facilities; 
depreciation; insurance on mine facilities and equipment; insurance for 
employees; and royalties and taxes.
    Based on Nevada Model--This way of calculating fees resembles one 
used by Nevada, which collects similar production-based fees from mines 
in that state. However, the fees in my bill are more moderate than 
those set by the Nevada law in one important respect--Nevada imposes 
its maximum fee rate on all mines with net proceeds of $5 million or 
more, regardless of the ratio between those net proceeds and the gross 
proceeds. My bill does not do that--instead, all of its fees are based 
on the ratio. In other words, under my bill a mine with earnings (i.e., 
net proceeds) of more than $5 million per year still might pay the 
minimum fee if those earnings were less than 10% of the gross proceeds.
    Offset Provision--Under current law, the United States does not 
receive royalties from production of hardrock minerals from federal 
lands. Over the years, there have been frequent proposals to establish 
royalties for hardrock production, in order to provide a greater return 
to the American people. I think there are strong arguments in favor of 
such an approach. Accordingly, this bill would require the Secretary of 
the Interior to reduce payments under this title so as to offset any 
royalties hardrock producers may pay in the future pursuant to changes 
in current law. This is intended to avoid the chance that 
implementation of a royalty would result in inequitable treatment of a 
producer covered by both the royalty and Title I of this bill.
    Estimated Proceeds from Fees and Use of Fund--There are not 
sufficient data available to say exactly how much money the fees would 
bring into the new reclamation fund each year. However, the United 
States Geological Survey does have information about the number of 
operating copper and gold mines and the State of Nevada has data about 
the money raised by their similar fee system. By extrapolating from 
those data, it is possible to estimate that the fees provided for in my 
bill would generate about $40 million annually for the Abandoned 
Minerals Mine Reclamation Fund.
    Funds in the new reclamation fund would be available for 
appropriation for grants to States to complete inventories of abandoned 
hardrock mine sites, as mentioned above. A state with sites covered by 
the bill could receive a grant of up to $2 million annually for this 
purpose. In addition, money from the fund would be available for 
cleanup work at eligible sites.
    To be eligible, a site would have to be within a state subject to 
operation of the general mining laws that has completed its statewide 
inventory. Within those states, eligible sites would be those--(1) 
where former hardrock-mining activities had permanently ceased as of 
the date of the bill's enactment; (2) that are not on the National 
Priorities List under the Superfund law; (3) for which there are no 
identifiable owners or operators; and (4) that lack sufficient minerals 
to make further mining, remining, or reprocessing of minerals 
economically feasible. Sites designated for remedial action under the 
Uranium Mill Tailings Radiation Control Act of 1978 or subject to 
planned or ongoing response or natural resource damage action under the 
Superfund law would not be eligible for cleanup funding from the new 
reclamation fund.
    The Interior Department could use money from the fund to do cleanup 
work itself or could authorize use of the money for cleanup work by a 
holder of one of the new ``good Samaritan'' permits provided for in the 
other bill I am introducing today. Among eligible sites, priorities for 
funding would be based on the presence and severity of threats to 
public health, safety, general welfare, or property from the effects of 
past mining and the improvement that cleanup work could make in 
restoration of degraded water and other resources. The first priority 
would be for sites where effects of past mining pose an extreme danger. 
After that, priorities would be sites where past mining has resulted in 
adverse effects (but not extreme danger) and then those where past 
mining has not led to equally serious consequences but where cleanup 
work would have a beneficial effect.
    Further, the bill recognizes that in Colorado and other states 
there are often concentrations of abandoned mining sites that vary in 
the severity of their threat to the public health and the environment 
but that can and should be dealt with in a comprehensive manner. 
Therefore, it provides that sites of varying priority should be dealt 
with at the same time when feasible and appropriate.

           Bill to Provide Protection for ``Good Samaritans''

    To help encourage the efforts of ``good Samaritans,'' the second 
bill--entitled the ``Abandoned Hardrock Mines Reclamation Facilitation 
Act--would create a new program under the Clean Water Act under which 
qualifying individuals and entities could obtain permits to conduct 
cleanups of abandoned or inactive hardrock mines.
    These permits would give some liability protection to those 
volunteering to clean up these sites, while also requiring the permit 
holders to meet certain requirements.
    The bill specifies who can secure these permits, what would be 
required by way of a cleanup plan, and the extent of liability 
exposure. Notably, unlike regular Clean Water Act point-source 
(``NPDES'') permits, these new permits would not require meeting 
specific standards for specific pollutants and would not impose 
liabilities for monitoring or long-term maintenance and operations. 
These permits would terminate upon completion of cleanup, if a regular 
Clean Water Act permit is issued for the same site, or if a permit 
holder encounters unforeseen conditions beyond the holder's control. I 
think this would encourage efforts to fix problems like those at the 
Pennsylvania Mine.
    Together, these two bills can help address problems that have 
frustrated federal and state agencies throughout the country. As 
population growth continues near these old mines, more and more risks 
to public health and safety are likely to occur. We simply must begin 
to address this issue--not only to improve the environment, but also to 
ensure that our water supplies are safe and usable.

                                 
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