[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.
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\5\ Environmental Good Samaritan Legislation, Act 1999-68, http://
www.centerwest.org/acid--mine/reading-pa1999-68.pdf
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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
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\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
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\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
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\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.
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\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.
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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.
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\9\ US EPA, Office of Solid Waste and Emergency Response, Cleaning
Up the Nation's Waste Sites: Markets and Technology Trends, September
2004.
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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.
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\14\ Subsidence Subcommittee, ``Report to Governor Keating's Tar
Creek Superfund Task Force,'' July 21, 2000.
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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.
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\15\ See, for example, ``The Earth's Open Wounds: Abandoned and
Orphaned Mines,'' Environmental Health Perspectives, Volume 111, Number
3, March 2003.
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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.
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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.