[Senate Hearing 109-1043]
[From the U.S. Government Publishing Office]



                                                       S. Hrg. 109-1043
 
   OVERSIGHT HEARING TO CONSIDER WHETHER POTENTIAL LIABILITY DETERS 
                    ABANDONED HARDROCK MINE CLEANUP

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

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 14, 2006

                               __________

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


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


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                               __________

?

               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED NINTH CONGRESS
                             SECOND SESSION

                  JAMES M. INHOFE, Oklahoma, Chairman
JOHN W. WARNER, Virginia             JAMES M. JEFFORDS, Vermont
CHRISTOPHER S. BOND, Missouri        MAX BAUCUS, Montana
GEORGE V. VOINOVICH, Ohio            JOSEPH I. LIEBERMAN, Connecticut
LINCOLN CHAFEE, Rhode Island         BARBARA BOXER, California
LISA MURKOWSKI, Alaska               THOMAS R. CARPER, Delaware
JOHN THUNE, South Dakota             HILLARY RODHAM CLINTON, New York
JIM DeMINT, South Carolina           FRANK R. LAUTENBERG, New Jersey
JOHNNY ISAKSON, Georgia              BARACK OBAMA, Illinois
DAVID VITTER, Louisiana
                Andrew Wheeler, Majority Staff Director
                 Ken Connolly, Minority Staff Director

                                  (ii)

  
                            C O N T E N T S

                              ----------                              
                                                                   Page

                             June 14, 2006
                           OPENING STATEMENTS

Boxer, Hon. Barbara, U.S. Senator from the State of California...    14
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     1
Jeffords, Hon. James M., U.S. Senator from the State of Vermont..     4
Thune, Hon. John, U.S. Senator from the State of South Dakota....    33
Vitter, Hon. David, U.S. Senator from the State of Louisiana.....     6

                               WITNESSES

Allard, Hon. Wayne, U.S. Senator from the State of Colorado......     7
    Prepared statement...........................................    38
Salazar, Hon. Ken, U.S. Senator from the State of Colorado.......     9
    Prepared statement...........................................    38
Ellis, Dennis E., Executive Director, Colorado Department of 
  Public Health and Environment..................................    20
    Prepared statement...........................................    41
    Response to an additional question from Senator Jeffords.....    43
Gioia, John, chair, Board of Supervisors of Contra Costa County 
  and Contra Costa County Flood Control and Water Conservation 
  District.......................................................    23
    Prepared statement...........................................    43
Harwood, Terry A., Former Executive Director, Hazardous Materials 
  Policy Council, USDA; Former Chief Environmental Engineer, USFS    25
    Prepared statement...........................................    45
    Responses to additional questions from:
        Senator Inhofe...........................................    47
        Senator Jeffords.........................................    48
Johnson, Stephen L., Administrator, U.S. Environmental Protection 
  Agency.........................................................    12
    Prepared statement...........................................    48
    Responses to additional questions from:
        Senator Inhofe...........................................    51
        Senator Jeffords.........................................    51
Lewis, Scott A., director, Environmental and Governmental 
  Affairs, AngloGold Ashanti North America, INC..................    26
    Prepared statement...........................................    54
    Responses to additional questions from Senator Inhofe........    58
Smith, Velma M., senior policy associate, National Environmental 
  Trust..........................................................    22
    Prepared statement...........................................    64
    Responses to additional questions from:
        Senator Inhofe...........................................    71
        Senator Jeffords.........................................    73

                          ADDITIONAL MATERIAL

Article, Daily Journal, Wednesday, March 2, 1994; Good Intentions 
  Do Not Confer a Right to Pollute...............................    76
    Letters:
East Bay Municipal Utility District..............................    77
National Association of Clean Water Agencies.....................    82
Trout Unlimited..................................................    84
Undersigned groups; Trout Unlimited, Izaak Walton League of 
  America, American Fly Fishing Trade Association, BASS/ESPN 
  Outdoors, Federation of Fly Fishers, Theodore Roosevelt 
  Conservation Partnership, American Sportfishing Association....    80
Western Governors' Association...................................    88
Testimony, GAO, Environmental Liabilities: Hardrock Mining 
  Cleanup 
  Obligations....................................................    91


   OVERSIGHT HEARING TO CONSIDER WHETHER POTENTIAL LIABILITY DETERS 
                    ABANDONED HARDROCK MINE CLEANUP

                              ----------                              


                        Wednesday, June 14, 2006

                                        U.S. Senate
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:30 a.m. in room 
628, Senate Dirksen Building, Hon. James M. Inhofe (chairman of 
the committee) presiding.
    Present: Senators Inhofe, Warner, Thune, Vitter, Jeffords, 
and Boxer.
    Senator Inhofe. Our meeting will come to order. Senator 
Jeffords and I have a policy that we start on time, even if we 
are the only ones here, and that is what is happening.

 OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM 
                     THE STATE OF OKLAHOMA

    It has been 6 years since the EPW Committee has held a 
hearing on the issue of whether liability concerns are a 
deterrent to the cleanup of abandoned hard rock mines. In 
reviewing that hearing's testimony, I was struck by the fact 
that both Senator Mike Crapo, the former chairman of the 
Subcommittee on Fisheries, Wildlife, and Water, as well as 
Senator Baucus, the former chairman of this committee both 
asked that we not let the perfect be the enemy of the good. 
Here we are 6 years later and several legislative proposals 
later, and I fear that is exactly what has happened.
    We have come here today to find common ground as to how 
exactly liability fears are causing Good Samaritans to walk 
away from cleaning up abandoned mines. It is estimated that 
there are over 500,000 abandoned hardrock mines littering our 
country, and the Western Governors Association estimates that 
nearly 20 percent of them are posing a significant risk to the 
waterways into which they discharge.
    It is particularly important to understand what is the 
abandoned hardrock mine. These are mines from the Gold Rush Era 
and mines that produced the ores and metals that were needed 
during World War II. They are also mines that were abandoned 
long before modern environmental laws were enacted. 
Interestingly, it is those very laws which have protected our 
natural resources that may in fact be hindering the restoration 
of some of the States' waterways. This is certainly never the 
intent.
    John Whitaker, President Nixon's Undersecretary for the 
Environment said, ``We did not envision at the time that the 
day would come when the Zero Discharge Provision'' FE-we are 
talking about the Clean Water Act in this case FE-``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 
problems associated with abandoned mines.'' Keep in mind, that 
was back during the Nixon administration.
    In light of the potential magnitude of the problem, if we 
were to enact legislation, we must broadly define the Good 
Samaritans, so that as many innocent parties as possible can 
participate while taking necessary precautions to ensure that 
those who may have had any role in the mining of these sites 
are legally and financially accountable. No one here today 
proposes to violate the Polluter Pays concept.
    I was pleased to introduce, by request of the 
Administration, a Good Samaritan legislative proposal. As part 
of the President's commitment to cooperative conservation, the 
Administration has put forth a proposal to address the 
liability concerns of potential Good Samaritans. The Bush 
administration is following on support by the Clinton 
administration for the concept of addressing these liability 
issues.
    Charles Fox, who was President Clinton's Assistant 
Administrator for Water, testified in 2000 on Senator Baucus' 
Good Samaritan legislation. This is Charles Fox from the 
Clinton administration, he said, ``Unfortunately, there are 
limitations under the Clean Water Act that often hamper 
remediation and restoration activities at abandoned mine sites. 
In particular, the permitting requirements under Section 402 of 
the Clean Water Act require that the permittee meet all 
requirements and fluid discharge limits set out in their 
discharge permit. These discharge limits include water quality 
standards that have been established for the body of water into 
which the treated fluid is discharged. In addition, these 
requirements mean anyone conducting reclamation or remediation 
in an abandoned mine site may become liable for any continuing 
discharges from that site.'' Again, that was Charles Fox who 
made that statement back during the Clinton Administration.
    Further, there have been bipartisan bills introduced in 
each of the past three Congresses, and the only person on all 
three of these bills was Senator and Minority Leader Harry 
Reid. For three Congresses and two Administrations, there has 
been bipartisan consensus that liability is a factor affecting 
these cleanups, and clearly Senator Reid agrees that we can't 
let the perfect be the enemy of the good.
    We will hear today from a potential Good Samaritan who had 
funding available to clean up a mine but did not do it because 
of the fear of liability. We also will hear from the mining 
industry that may be better suited than anyone else to be a 
Good Samaritan. Today's mining industry is not responsible for 
the practices of several generations ago. They have the 
expertise, knowledge and resources to be able to effectively, 
quickly, and cost-efficiently restore more of these sites than 
potentially any other group.
    We have been presented with a unique opportunity, thanks in 
large part to the Administration's proposal and to our two 
fellow Senators, Senator Allard and Senator Salazar, who came 
together to craft this bipartisan bill. Their bill is co-
sponsored by two of the EPW Committee members, Senator Baucus 
and Senator Isakson. To put the final piece in place, our 
colleagues in the House have already held a hearing on this 
issue.
    There is now more momentum behind addressing this problem 
and restoring thousands of waterways than ever before. However, 
we must be sure that other non-related issues involving 
Superfund should not be part of this discussion and do not end 
up killing this opportunity. I urge all of those concerned 
about clean, fishable, swimmable waters to help Congress seize 
this great opportunity and pass the Good Samaritan Law this 
year.
    [The prepared statement of Senator Inhofe follows:]

       Statement of Hon. James M. Inhofe, U.S. Senator from the 
                           State of Oklahoma

    It has been 6 years since the Environment and Public Works 
Committee has held a hearing on the issue of whether liability concerns 
are a deterrent to the clean up of abandoned hardrock mines. In 
reviewing that hearing's testimony, I was struck by the fact that both 
Senator Mike Crapo, the former chairman of the Subcommittee on 
Fisheries, Wildlife and Water as well as Senator Baucus, former 
chairman of the EPW Committee, both asked that we not let the perfect 
be the enemy of the good. Here we are 6 years and several legislative 
proposals later and I fear that is exactly what has happened and what 
will continue to happen.
    We've come here today to find common ground as to how exactly 
liability fears are causing Good Samaritans to walk away from cleaning 
up abandoned mines. It is estimated that there are over 500,000 
abandoned hardrock mine sites littering our country and the Western 
Governors Association estimates that nearly 20 percent of them are 
posing significant risks to the waterways into which they discharge.
    It is particularly important to understand what an abandoned 
hardrock mine is. These are mines from the gold rush era and mines that 
produced the ores and metals needed to build weapons during World War 
II. They are also mines that were abandoned long before modern 
environmental laws were enacted. Interestingly it is those very laws 
that have protected our natural resources for so many years that may in 
fact be hindering the restoration of some of the States' waterways. 
This was certainly never the intent. John Whitaker, President Nixon's 
Undersecretary for the Environment noted, ``We did not envision at the 
time that the day would come when the zero discharge provision [of the 
Clean Water Act] 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.'' (Center for 
American West, page 23).
    In light of the potential magnitude of the problem, if we were to 
enact legislation, we must broadly define a ``Good Samaritan'' so that 
as many innocent parties as possible can participate while taking 
necessary precautions to ensure that those who may have had any role in 
the mining of these sites are held legally and financially accountable. 
No one here today proposes to violate the polluter pays principal in 
which we all so firmly believe.
    I was pleased to introduce by request the Administration's Good 
Samaritan legislative proposal. As part of the President's commitment 
to cooperative conservation, the Administration has put forth a 
proposal to address the liability concerns of potential Good 
Samaritans. The Bush administration is following on support by the 
Clinton administration for the concept of addressing these liability 
issues. As Charles Fox, Clinton's Assistant Administrator for Water 
testified in 2000 on Senator Baucus' Good Samaritan legislation: 
``Unfortunately, there are limitations under the CWA that often hamper 
remediation and restoration activities at abandoned mine sites. In 
particular, the permitting requirements under Section 402 of the CWA 
require that the permittee meet all of the requirements and effluent 
discharge limits set out in their discharge permit. These discharge 
limits include water quality standards that have been established for 
the body of water into which the treated effluent is discharged. In 
addition, these requirements mean anyone conducting reclamation or 
remediation at an abandoned mine site may become liable for any 
continuing discharges from that site.'' Further, there have been 
bipartisan bills introduced in each of the past three Congresses and 
the only person on all three bills was the Senator Minority Leader, 
Harry Reid. For three Congresses and two Administrations there has been 
bipartisan consensus that liability is a factor affecting these 
cleanups and clearly Senator Reid agrees that we can't let the perfect 
be the enemy of the good.
    We will hear today from a potential Good Samaritan who had funding 
available to cleanup a mine but opted not to out of fear of liability. 
We also hear from the mining industry that may be better suited than 
anyone to be a Good Samaritan. Today's mining industry is not 
responsible for the practices of several generations ago. They have the 
expertise, knowledge and resources to be able to effectively, quickly 
and cost-efficiently restore more of these sites than potentially any 
other group.
    We have been presented with a unique opportunity thanks in large 
part to the Administration's proposal and to our two fellow Senators 
Wayne Allard and Ken Salazar who came together to craft a bipartisan 
bill. Their bill is cosponsored by two EPW Committee members, Senator 
Baucus and Senator Isakson. To put the final piece in place, our 
colleagues in the House have already held a hearing on the issue. There 
is now more momentum behind addressing this problem and restoring 
thousands of waterways than ever before. However, we must be sure that 
other non-related issues involving Superfund do not end up killing this 
opportunity. I urge all of those concerned about clean, fishable, 
swimmable waters to help Congress seize this great opportunity and pass 
a Good Samaritan law this year.

    Senator Inhofe. Senator Jeffords.

OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Senator Jeffords. Mr. Chairman, the title of this hearing 
implies that potential liability is the main deterrent to the 
cleanup of the thousands of abandoned mine sites in our 
country. I believe that this is only part of the picture 
presented in a manner designed to move us in only one direction 
for unnecessary waivers to environmental statutes that will 
cause undue risk to human health and the environment.
    The true story becomes apparent as one evaluates the 
Nation's hardrock mining policies. There are estimated to be 
over 500,000 abandoned contaminated hardrock mines in the 
United States, including three copper mines in Vermont that 
have been languishing on the Nation's National Priorities List 
for years. In 2004, the EPA's Office of Inspector General 
estimated that the potential cleanup costs nationwide could be 
as much as $24 billion.
    Can we expect Good Samaritans to volunteer to pay more than 
a small fraction of the cost to clean up the Nation's abandoned 
mines? Of course not. How then, can we solve this problem?
    I propose a twofold solution. First, we need to fully fund 
the Superfund, so that the EPA has the ability to do its job 
and cleanup contaminated toxic mining sites around the Nation. 
Due to this Administration's failure to seek reinstatement of 
the Superfund fees, the Superfund program is limping along with 
about 35 percent fewer dollars in real terms than in 1993. 
Second, the EPA needs to take action to prevent new abandoned 
mines.
    In a report I requested, the Government Accountability 
Office recommended that the EPA issue long overdue rules to 
require mining companies to set aside money now for existing 
and future cleanups. Yesterday, I co-sponsored legislation 
sponsored by Senator Cantwell that would require the EPA to 
take this action. The EPA has not pursued these rules and 
instead chose to put forward a legislative proposal to waive 
the environmental statues rather than focus on comprehensive 
long term solutions. Today's hearing reaches for another reason 
to justify waiving environmental statutes.
    I urge my colleagues to consider the following questions as 
you listen to today's testimony. First, is liability actually 
an impediment? There are several abandoned mine cleanups that 
have gone forward under the EPA's existing authority.
    Second, what would motivate someone to become a so-called 
Good Samaritan? It is conceivable that a State or a local 
Government would have an interest in cleaning up water supply 
for drinking water purposes. It seems contrary then to permit 
the waiver of drinking water standards as part of a cleanup 
action, but this is exactly what one legislative proposal would 
permit.
    Third, why would a for-profit entity spend millions of 
dollars on cleanups unless it has a financial interest? The 
legislative proposals referred to this committee would permit 
remining at cleanup sites without the protection of existing 
environmental statues, making this permit scheme a tool for 
future pollution.
    Fourth, doesn't the public have a clear interest in seeing 
that abandoned mine cleanups occur? Some legislative proposals 
appear to intentionally restrict the public's role by 
minimizing public notice and comment, waiving NEPA, and 
attaching legal privilege to some documents.
    I could go on and on, but in the interest of time, I will 
submit my full list of questions for the record, Mr. Chairman. 
I believe our focus at today's hearing is inadequate, and I 
urge our colleagues to take a look at the big picture.
    Thank you.
    [The prepared statement of Senator Jeffords follows:]

      Statement of Hon. James M. Jeffords, U.S. Senator from the 
                            State of Vermont

    Mr. Chairman, the title of this hearing implies that potential 
liability is the main deterrent to the cleanup of the thousands of 
abandoned mine sites in our country. I believe that this is only part 
of the picture, presented in a manner designed to move us in only one 
direction--toward unnecessary waivers to environmental statutes that 
will cause undue risk to human health and the environment.
    The true story becomes apparent as one evaluates the Nation's 
hardrock mining policies. There are estimated to be over 500,000 
abandoned contaminated hard rock mines in the United States, including 
three copper mines in Vermont that have been languishing on the 
Nation's National Priorities List for years. In 2004, the EPA's Office 
of Inspector General estimated that the potential cleanup costs 
nationwide could be as much as $24 billion.
    Can we expect Good Samaritans to volunteer to pay more than a small 
fraction of the cost to clean up the Nation's abandoned mines? Of 
course not.
    How then can we solve this problem? I propose a two-fold solution.
    First, we need to fully fund the Superfund program so that the EPA 
has the ability to do its job and clean up the contaminated toxic 
mining sites around the Nation. Due to this Administration's failure to 
seek reinstatement of the Superfund fees, the Superfund program is 
limping along with about 35 percent fewer dollars in real terms than in 
1993.
    Second, the EPA needs to take action to prevent new abandoned 
mines. In a report I requested, the Government Accountability Office 
recommended that the EPA issue long-overdue rules to require mining 
companies to set aside money now for existing and future cleanups. Just 
yesterday, I co-sponsored legislation authored by Senator Cantwell that 
would require the EPA to take this exact action. The EPA has not 
pursued those rules, and instead, chose to put forward a legislative 
proposal to waive environmental statutes.
    Rather than focus on comprehensive long-term solutions, today's 
hearing reaches for another reason to justify waiving environmental 
statutes.
    I urge my colleagues to consider the following questions as you 
listen to today's testimony.
    First, is liability actually an impediment? There are several 
abandoned mine cleanups that have gone forward under the EPA's existing 
authorities.
    Second, what would motivate someone to become a so-called Good 
Samaritan? It is conceivable that a State or local Government would 
have an interest in cleaning up a water supply for drinking water 
purposes. It seems contrary then, to permit the waiver of drinking 
water standards as part of a cleanup action. But, this is exactly what 
one legislative proposal would permit.
    Third, why would a for-profit entity spend millions of dollars on 
cleanups unless it had a financial interest? The legislative proposals 
referred to this Committee would permit re-mining at cleanup sites, 
without the protections of existing environmental statutes, making 
these permit schemes a tool for future pollution.
    Fourth, doesn't the public have a clear interest in seeing that 
abandoned mine cleanups occur? Some legislative proposals appear to 
intentionally restrict the public's role by minimizing public notice 
and comment, waiving NEPA, and attaching legal privilege to some 
documents.
    I could go on and on, but in the interest of time, I will submit my 
full list of questions for the record.
    Mr. Chairman, I believe our focus at today's hearing is inadequate, 
and I urge our colleagues to take a look at the big picture.
    Thank you.

    Senator Inhofe. Thank you, Senator Jeffords.
    We are delighted to have on the first panel, our fellow 
Senators, Senator Allard and Senator Salazar.
    I want to say something that will surprise everyone here, 
and that is I probably know more about these mines than anybody 
in this room. Back before most of you were born, I went to the 
University of Colorado and left to go back in the White River 
Forest country, and I prospected for uranium. At that time, 
what they had called fool's gold in these abandoned gold mines 
was really carnatite, and I was in there chopping it up. It is 
just a miracle that my remains aren't in there polluting a lot 
of streams right now.
    [Laughter.]
    Senator Vitter, I am sorry. I didn't see you way over in 
the corner there.

 OPENING STATEMENT OF HON. DAVID VITTER, U.S. SENATOR FROM THE 
                       STATE OF LOUISIANA

    Senator Vitter. Thank you, Mr. Chairman. I will submit my 
opening statement for the record, but I just want to thank you 
and the Ranking Member for this hearing on a very important 
issue. I want to thank our colleagues for their work on the 
issue and for testifying today, and certainly the EPA 
Administrator.
    This is an important issue because thousands of rivers and 
streams are impacted by acid mine discharge, and many, many 
sites have to be cleaned up. I would hope that we all bring the 
spirit of common sense and unity of purpose to this discussion, 
and I would hope it would be virtually beyond debate that we 
want to encourage Good Samaritans, folks in that position, to 
help with the cleanup and certainly don't want to saddle them 
with liability for pollution they had nothing to do with 
producing. That should be a very common sense, straight forward 
principle.
    I think if we all focus on that common sense principle and 
work out reasonable language, we can achieve an important 
result, even as we may have continuing disagreements on levels 
of funding for various programs and other things. I encourage 
that spirit. I thank our two colleagues for bringing that 
spirit to the debate.
    I think they are destined to have some success because I 
was at the Nationals game last night, and the Rockies are on a 
roll. Senator Allard was there as well. The Rockies are on a 
roll this week, so hopefully that will inure to the benefit of 
this issue as well.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Vitter follows:]

    Statement of Hon. David Vitter, U.S. Senator from the State of 
                               Louisiana

    I want to thank you Mr. Chairman and the Ranking Member for this 
hearing on a very important issue. I want to thank our colleagues for 
their work on the issue and for testifying today, and certainly the EPA 
Administrator.
    This is an important issue because thousands of rivers and streams 
are impacted by acid mine discharge, and many, many sites have to be 
cleaned up. Most of these mines were developed and abandoned long 
before modern environmental laws were enacted. While those 
environmental laws have contributed greatly to the restoration of our 
environment, they are not perfect and in small ways may be negatively 
impacting the ability to clean up these sites. As the witnesses will 
point out in their testimony today, no amount of money will be enough 
to restore all of the possible 500,000 sites that may need mitigation. 
Liability is obviously a major factor in the inability to address 
abandoned mines.
    I would hope that we all bring the spirit of common sense and unity 
of purpose to this discussion, and I would hope it would be virtually 
beyond debate that we want to encourage Good Samaritans to help with 
the cleanup. We certainly do not want to saddle Good Samaritans with 
liability for pollution they had nothing to do with producing; that 
would not encourage efforts to address these sites. It is time for 
Congress to address the liability concerns of municipalities and other 
Good Samaritans so that we can restore these thousands of waterbodies 
and improve water quality. That should be a very common sense, straight 
forward principle.
    I think if we all focus on that common sense principle and work out 
reasonable legislation, we can achieve an important result. I encourage 
that spirit. I look forward to hearing from the witnesses today and 
working with the committee to seek to provide liability relief to Good 
Samaritans. Thank you, Mr. Chairman.

    Senator Inhofe. The Rockies are on a roll, OK, good.
    By previous agreement, we will hear from both of our 
Senators on the first panel. They will then be excused, and we 
will get to Mr. Johnson, the EPA Administrator.
    Senator Allard.

STATEMENT OF HON. WAYNE ALLARD, U.S. SENATOR FROM THE STATE OF 
                            COLORADO

    Senator Allard. Mr. Chairman, thank you. I would like to 
make my full statement a part of the record.
    Senator Inhofe. Without objection.
    Senator Allard. Then I would just like to talk a little bit 
about the problem that we have in the State of Colorado and I 
think many Western States. My hope is what we are putting 
forward here, meaning Senator Salazar and myself, is a common 
sense approach to the problem that we have in the State of 
Colorado. Our intention is not to let anybody off the hook but 
actually to create an opportunity for private parties and 
individuals to be able to step forward and cleanup these mines.
    I want to thank you, Mr. Chairman, for allowing both 
Senator Salazar and myself to testify this morning. Certainly, 
we are not going to question your knowledge on mining. It is 
nice to have somebody who is sitting in the Chair, who has some 
practical experience as far as mining is concerned.
    As you probably are well aware, a mining claim in Colorado, 
well, all over the country, is a relatively small parcel of 
land, 600 feet by 1,500 feet long. This dates back to the early 
silver and gold days of Colorado when silver and gold was very 
profitable in the State, and we had many prospectors come to 
Colorado and file claims. They would start a mine, they would 
hit a small vein or something, and then maybe it wasn't 
financially practical to continue with it. Then these small, 
little claims, there wasn't anybody there to continue to 
operate the claim. So, it was sitting there.
    There are individuals, single individuals, not large mining 
companies--these aren't Superfund sites--who have come in and 
said, well, I would like to purchase a small parcel of land, 
but I am concerned about the liability. These are individuals 
like you and I. You can't afford to go down and pay a lawyer 
thousands of dollars in order to try and fight a liability 
claim or an environmental claim because when you buy that, that 
liability then transfers to you. We try to prevent that from 
happening.
    If you would not have the liability transfer over to the 
private party, then individuals will look at this and say, 
well, this is something, a piece of land I would like to 
purchase, and I can clean it up. I can take the tailings and 
whatnot from the mining operation there. We can clean it up. We 
can stop the discharge that comes out of the mine that is 
polluting the river. This creates a wonderful opportunity for 
small individuals like any member here on this committee to go 
and buy a small parcel of land to do that.
    There are a number of reasons for them to buy a parcel of 
land. Sometimes they just want to have a little piece of 
property in the mountains for one reason or another. Sometimes 
it might be just somebody who has an intention to try and do 
their little part to clean up the environment. There are all 
sorts of reasons why somebody might want to do this. It may 
very well go beyond any profit motive. It may just strictly be 
a Good Samaritan effort to try and cleanup the environment.
    This particular piece of legislation is targeted for these 
hundreds upon hundreds of small mining claims which I 
described, to make them available so that individuals, without 
fear of a lawsuit, can own these and clean them up. If we can 
accomplish this, you would see, I think, a big difference in 
the mountains of Colorado and other Western States who have had 
many prospectors come and have small mines which they are 
trying to clean up.
    I just would ask the committee to act expeditiously on 
this. This is an important piece of legislation. It has nothing 
to do with the Superfund issue. It has more to do with small 
parties, individuals in particular, who want an opportunity to 
do something to help the environment for whatever reason they 
may desire to purchase that particular mining claim.
    I see my time has expired.
    Senator Inhofe. Thank you, Senator Allard.
    Senator Salazar.

 STATEMENT OF HON. KEN SALAZAR, U.S. SENATOR FROM THE STATE OF 
                            COLORADO

    Senator Salazar. Thank you very much, Chairman Inhofe and 
Ranking Member Jeffords. It is an honor to appear before your 
committee. Thank you, Senator Vitter, as well.
    I look forward to working with this committee and with my 
colleague, Senator Allard, as we move forward on this very 
specific issue that is focused on only the Good Samaritan 
legislation. It does not deal with the rest of the issues that 
we sometimes have to deal with, including Superfund liability 
and CERCLA reform. This is very specific and focused on what we 
do with respect to Good Samaritans.
    Let me say that, as we have worked on this legislation over 
the last year and a half, I am proud of the work that Senator 
Allard and I have done. Supporters of the legislation, Senate 
bill 1848, include our Governor of Colorado, Bill Owens, and on 
this committee, Senator Isakson, a co-sponsor of the bill, as 
well as Senator Max Baucus and Senator Harry Reid. We also 
worked very closely with the National Mining Association, the 
Colorado Mining Association, the Colorado Water Congress, and 
the Western Business Roundtable in putting together legislation 
that we believe will address the issue of Good Samaritan 
liability.
    The concept that we would pass in our legislation is 
simple. The main three points of what the legislation does are: 
It simplifies what we do with respect to permitting by 
requiring only one permit. It is an EPA permit that would be 
granted to somebody who is going to work on the Good Samaritan 
activity.
    Second, the liability protections are customized. You look 
at a site and you determine what it is that you are going to 
protect the Good Samaritan from. That is a function and a 
responsibility that would be given to the EPA.
    Third, we allow broad participation from those would-be 
Good Samaritans. It is not just local Governments or private 
landowners that happen to buy property, but also maybe 
companies and other non-profits that are very interested in the 
cleanup of a watershed. I will try to touch briefly on what 
some of those opportunities are within my State of Colorado.
    I will submit my full statement for the record as well, 
Senator Inhofe. I will not read it all but would ask that you 
accept that for the record.
    Senator Inhofe. Without objection.
    Senator Salazar. Let me just say, in Colorado, we have 
22,000 inactive and abandoned sites in my State, and some of 
those may have been the ones that you excavated, Senator 
Inhofe, but all of these sites today are beyond the reach of 
the EPA, Superfund, and the State Health Department. That is 
22,000 sites in one State alone. It is not because the 
pollution laws don't apply to those 22,000 sites. It is simply 
that there are no identifiable owners or operators to take on 
the responsibility of cleaning up the sites.
    Ironically, it is the draconian liability schemes under 
CERCLA and the Clean Water Act that deter would-be volunteers, 
Good Samaritans, from getting near those sites for fear of 
unlimited liability. With a sensible plan to clean up a mine 
site, a Good Samaritan assumes massive liabilities that 
dissuade them from working to undo the environmental legacy of 
hardrock mining. The barriers discouraging Good Samaritans from 
helping with cleanups is one of the most frustrating realities 
of cleaning up abandoned mine sites throughout our country.
    That is why, with my Republican and Democratic colleagues, 
I worked hard to draft this bill. The bill aims to fulfill a 
simple objective: We want to make it easier for Good Samaritans 
to clean up inactive and abandoned mine sites when a cleanup by 
the liable party is otherwise very unlikely.
    I want to briefly highlight three ways in which this bill 
accomplishes the goal of providing Good Samaritan liability 
protection in a straightforward and pragmatic manner.
    First, there is one permit for the Good Samaritan. In my 
experience with water and public land issues, I have found the 
best results are achieved when all stakeholders agree on the 
scope of a project before the project begins. Under our bill, 
the Good Samaritan applies for one permit from the EPA. In 
order to receive that permit for the project, local, State and 
Federal authorities must all agree that the overall 
environmental improvement will be significant and there will 
not be environmental degradation. At the end of that process, 
there will be one permit that is issued.
    Second, there are customized liability protections that are 
included in the legislation. While some approaches have offered 
blanket liability protection from environmental laws for Good 
Samaritans, our legislation provides that liability protections 
will be crafted on a case by case basis. The local and State 
Governments can then create liability protections from their 
laws, and the EPA can offer limited or extensive liability 
protection under the Clean Water Act or CERCLA.
    Mr. Chairman, I see my time is up. May I have two more 
minutes?
    Senator Inhofe. Take all the time you want. That doesn't go 
for the future panelists.
    [Laughter.]
    Senator Allard. I think I quit a little early, so he can 
have some of my time.
    Senator Salazar. Thank you, Senator Inhofe and Senator 
Allard. I was trying to speed read through it.
    Third, what the bill does, it is also broad in its scope, 
and this goes to one of the questions that Senator Jeffords 
asked. It enables cleanups at abandoned mine sites where the 
person who may be responsible for the mine residue does not 
have the financial resources to pay for the cleanup. In that 
case, it is more important to clean up the site than it is to 
point a finger of liability. Given the safeguards in the bill, 
there is no good policy to limit Good Samaritan permits to 
local or State Governments when so many capable non-profit 
organizations, individuals, and businesses are willing and able 
to make significant improvements at these sites.
    Mr. Chairman, I believe that our bill is a balanced and 
pragmatic approach to solving a vexing problem that has eluded 
resolution for a very long time. It creates an open and 
straightforward process that is neither bureaucratic nor unduly 
legalistic but based on consensus and a sound technically based 
work plan.
    My experience in having worked for more than a decade in 
the natural resources section of the law and having worked on 
CERCLA cases and having run the Colorado Department of Natural 
Resources and being the Attorney General for Colorado, I 
believe that what we have put forward here will advance the 
cleanup of many abandoned mine sites in my State and across the 
country.
    I want to thank you, Mr. Chairman, and Ranking Member 
Jeffords for holding this hearing today and for inviting both 
my colleague, Senator Allard, and me to testify. It is 
important work for the Nation.
    If I may, I want to answer just two quick questions that 
Senator Jeffords posed.
    First, he asked, ``is the liability on cleaning up these 
sites an impediment?'' The fact of the matter is that it is 
because once you touch one of these abandoned mine sites, the 
CERCLA liability that comes with cleaning up these abandoned 
mine sites attaches to you.
    A related question that you asked, Senator Jeffords, is 
what would motivate a Good Samaritan to invest the financial 
resources in getting some of this done? I can think of a lot of 
examples, but I will point out only one. To the west of Denver 
is a place I know that Senator Allard knows well and Senator 
Inhofe I am sure visited while he was there in Colorado. There 
is a major brewing company by the name of Coors, the Coors 
Brewing Company. What they do is they take their water from a 
place called Clear Creek for much of the beer that is produced 
around the country by the company. Up above Golden, sitting in 
places that were historically mined as some of the richest 
mining lands in the history of the entire Nation, up in places 
like Central City and Black Hawk and Georgetown, are thousands 
upon thousands of abandoned mine sites.
    The Coors Brewing Company, along with the city of Golden 
and many stakeholders that share the water supply from Clear 
Creek, have a major interest in making sure that these 
thousands of abandoned mine sites up there are in fact cleaned 
up because right now those sites are contributing to the 
degradation of the water quality within Clear Creek. There is a 
major incentive for the private sector and a major incentive 
for the local Governments--for the many counties and 
communities that share the water of Clear Creek--to clean up 
these abandoned mine sites. Also, there is a major incentive 
for non-profits that have been involved in the restoration of 
the Clear Creek watershed to try to move forward with a 
watershed restoration plan that necessarily must involve 
cleaning up these abandoned mine sites.
    So, there is major incentive there, but at this point in 
time, most people would be afraid to touch these sites because 
of the CERCLA liability that comes attached to this.
    This is very important legislation. I know there are issues 
and there is the Administration's proposal that Senator Inhofe 
and others have looked at. I think there is a way in which we 
can work through some of these issues, so that we can do 
something that is very good for the environment. I hope that we 
can continue, Senator Inhofe and Senator Jeffords, with the 
bipartisan approach that my colleague, Senator Allard, and I 
come with to the table this morning to make this presentation 
to all of you.
    Thank you very much, Mr. Chairman.
    Senator Inhofe. Thank you, Senator Salazar. I thank both of 
you, and you may be excused now or you can stay.
    I would like to ask Administrator Johnson to please come 
forward.
    Mr. Administrator, you are recognized for an opening 
statement.

     STATEMENT OF STEPHEN L. JOHNSON, ADMINISTRATOR, U.S. 
                ENVIRONMENTAL PROTECTION AGENCY

    Mr. Johnson. Thank you and good morning, Mr. Chairman and 
members of the committee. I am honored to appear before you 
today to testify on one of the most important environmental 
challenges and, I believe, opportunities facing the United 
States: legacy impacts from abandoned hardrock mines and the 
innovative efforts that we can make to remove their threats and 
impairment to water quality.
    First of all, I would like to thank you, Mr. Chairman, for 
introducing by request of the Administration, S. 2780, the Good 
Samaritan Clean Watershed Act. I also want to commend Senator 
Allard and Senator Salazar and their colleagues for their 
legislative efforts to date. Finally, I would like to 
acknowledge the long term efforts of the Western Governors 
Association to address this issue.
    We hope that this committee reports out, that the Congress 
passes, and that the President signs into law S. 2780 or 
similar legislation this year.
    Inactive or abandoned mine sites can pose serious public 
safety and environmental hazards. According to estimates, there 
are over a half million abandoned mines nationwide, most of 
which are former hardrock mines located in Western States. Acid 
mine drainage from these abandoned mines pollute thousands of 
miles of streams and rivers as well as groundwater. Mine 
drainage and runoff challenges can be extremely complex, and 
solutions are often highly site-specific. In many cases, the 
parties responsible for the pollution are either insolvent or 
no longer available to participate in remediation.
    However, over the years, an increasing number of Good 
Samaritans, those not responsible for the pollution, have 
volunteered to clean up these mines. Unfortunately, the 
potential liability associated with voluntary hardrock mine 
cleanup has discouraged their good work. By clearing these 
legal roadblocks, we can accelerate the pace of watershed 
restoration and advance the President's ethic of cooperative 
conservation. Remediation of these sites can be complex and 
resource-intensive. Yet, even partial cleanups by Good 
Samaritans will result in meaningful environmental 
improvements.
    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 made 
the perfect enemy of the good. The EPA strongly believes that 
liability should rest squarely on parties responsible for the 
environmental damage, not on those volunteers trying to clean 
it up.
    Let me emphasize, encouraging Good Samaritan cleanups is 
not about lowering environmental standards or letting polluters 
off the hook. Those responsible for the pollution, if still in 
existence, will remain accountable, consistent with the 
Agency's Polluters Pay policy. This legislation will hold Good 
Samaritans, those not responsible, to a realistic standard that 
ensures environmental results.
    Last August, as part of the President's Conference on 
Cooperative Conservation, I announced the EPA's Good Samaritan 
Initiative as a means to encourage more effective voluntary 
efforts to remediate damage from abandoned mines. The 
initiative accomplishes the objectives of cooperative 
conservation by empowering communities and grassroots 
organizations to confront environmental challenges. 
Unfortunately, our one success to date took far too long to 
accomplish.
    By passing the Good Samaritan Clean Watershed Act, we would 
quickly clear the legal roadblocks and allow more projects to 
get off the ground. Safeguards in the bill ensure that 
abandoned mines will be properly remediated. This legislation 
requires a thorough due diligence evaluation of a Good 
Samaritan and a proposed project. It requires a determination 
that a project will result in environmental improvements, 
limits liability relief to only those activities undertaken 
through an issued permit, and nullifies liability protection 
for those engaged in fraud. Initially, this legislation 
requires robust public participation before a permit is issued 
and provides ongoing Federal oversight and enforcement of 
cleanup activities.
    In 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 hardrock 
mines has been discussed and debated for well over a decade, 
and a solution is long overdue. The American people and our 
water deserve results. We applaud bipartisan efforts in both 
Houses of Congress to address this issue and look forward to 
working with you and your colleagues to get this important 
environmental legislation to the President's desk as soon as 
possible.
    Thank you, Mr. Chairman.
    Senator Inhofe. Thank you, Mr. Administrator. That is an 
excellent opening statement.
    We have been joined by Senator Warner. He tells me he does 
not have an opening statement, so I will go ahead and just ask 
a couple of questions.
    Mr. Johnson. Please.
    Senator Inhofe. Some of our colleagues and some of the 
witnesses suggest we just need to do three things to take care 
of this problem. One would be reform existing laws; another is 
make the mine owners more financially responsible; and third is 
put more money into Superfund. Now, those are three things. How 
do you respond to that?
    Mr. Johnson. Well, what we are doing is focusing on a 
narrow but important issue--allowing volunteers to go in and 
cleanup abandoned hard rock mines without fear of liability. It 
just makes sense. We are not talking about major reforms of 
CERCLA or the Clean Water Act. We are talking about just 
allowing volunteers to go in and do the right thing without 
fear of liability.
    Senator Inhofe. It would seem to me if you are doing that, 
one of the objections I have heard is maybe these people don't 
know how to do it, but even if it is improved a little bit, 
that is better than it is today. The magnitude of this thing, 
for example 500,000 mines are going to have to be cleaned up, 
is pretty overwhelming.
    In your testimony, you speak of the value of providing 
legislative solutions to the problem. What would you say to 
those who suggest that providing administrative relief is 
really all we need?
    Mr. Johnson. We are pursuing the administrative path. We 
have one success story with Trout Unlimited, but what we have 
found through that experience is it is very time consuming. 
There is still legal uncertainty. The value of legislation is 
that it provides legal certainty; it provides a streamlined 
permitting process; and it also ensures inclusive stakeholder 
involvement. I think one of the important things is that this 
is very similar to the brownfields voluntary cleanup 
legislative model which has had bipartisan support and has had 
great success.
    Senator Inhofe. It seems to me that this legislation and 
other legislation that has been introduced before really 
empowers local Governments to get involved in this process, 
whether it is a licensing process or permit process or just to 
get some of these things cleaned up. It seems to me that the 
closer you get to the problem in government, the better job 
that is being done.
    Mr. Johnson. Absolutely.
    Senator Inhofe. Senator Warner.
    Senator Warner. Thank you, Mr. Chairman. I have to disclose 
a bias or conflict. I am a member of Trout Unlimited, but I 
don't believe that will disqualify me from voting. I wanted to 
come and lend my support to this legislation this morning 
because I really think it is a wise thing, and I concur 
wholeheartedly in your observation that, while the regulation 
might suffice, there is a world full of trial lawyers out here 
who will challenge that. If these Good Samaritans are willing 
to step up, I don't want to see them exhaust all their funds in 
legal fees.
    I am going to support this legislation. I thank the Chair 
for bringing this matter up here this morning.
    Senator Inhofe. Thank you, Senator Warner. Do you have any 
questions of the Administrator?
    Senator Warner. No.
    Senator Inhofe. Senator Boxer, we have made our opening 
statements. If you have a great desire to make an opening 
statement, we would recognize you to do that if you would keep 
it within the time limit.
    Senator Boxer. Thank you. I will keep it within the time 
limit. I apologize, my grandchild graduated from fifth grade. 
They do a graduation.
    Mr. Johnson. Congratulations.
    Senator Inhofe. With honors?
    Senator Boxer. Always with honors. It is an honor just to 
have him as a grandchild.

OPENING STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    But anyway, thank you, Mr. Chairman. I can't stress enough 
how critical it is that we address the threat of toxic waste 
sites in the Committee, particularly the threat these sites 
pose to the health of families including children in nearby 
communities. I hope we can have a series of hearings on 
environmental cleanup issues that go beyond the issue for 
today's hearing.
    I also greatly appreciate your agreement with me to allow a 
Superfund oversight hearing in the Superfund Subcommittee 
tomorrow because the information we have gathered on the 
current status of toxic sites around the country makes it clear 
the threat posed by these sites merit our immediate attention.
    I am pleased that Mr. Johnson is here today, and I have 
several questions for him on EPA's approach to clean up 
programs, including mine cleanup. It is worth noting that the 
Administrator is testifying today in support of an effort--and 
he is certainly not the only one, there are colleagues who 
support this--to roll back environmental laws and standards 
that would provide a direct financial benefit to industry. The 
enthusiasm shown by the Administration for waivers and 
rollbacks of environmental laws that protect public health is 
striking. Proposals to streamline environmental cleanup by 
undermining standards is the wrong approach. I don't really 
think they are streamlinings so much as they are rollbacks, and 
they raise the risks to communities that things could possibly 
get worse, not better.
    Abandoned mine sites pose a serious threat to water 
resources. Mine wastes frequently contain high levels of heavy 
metals, including mercury and arsenic, and cyanide and other 
hazardous chemicals are used in mine operations. In California, 
there are 47,000 abandoned mines, so this is an issue that I 
care deeply about for my State.
    If mishandled, well-intentioned efforts can have disastrous 
effects. In fact, in my home State, we have a clear example of 
a well-intentioned cleanup effort gone wrong, and this is the 
problem. When someone gets injured, they don't care whether it 
was a well-intentioned effort or a not well-intentioned effort. 
If it goes wrong, it is very, very dangerous. I will briefly 
describe that experience to highlight why environmental 
rollbacks are the wrong path to take when it comes to cleaning 
up abandoned mine sites.
    The experience at the Penn Mine in Calaveras County, CA, 
was well-intentioned but poorly executed and destructive. This 
mine site has been used to justify the so-called Good Samaritan 
initiative because it involved litigation and significant 
cleanup costs. As you will see, the limited regulatory review 
and the poor engineering at the site made a bad situation 
worse.
    Let me read from a letter from a long list of groups 
opposing the so-called Good Samaritan legislation and hear what 
they have to say about the lessons at Penn Mine. ``At Penn 
Mine, the waiving of environmental review coupled with an 
egregious lack of understanding of complex geochemical and 
hydrogeological processes at the site led to terrible water 
quality problems, accelerating the formation of acid mine 
drainage by up to a million times. A prominent geochemist 
testified that `The facility could not have been better 
designed had its intention been maximum reduction of toxic acid 
mine drainage.' ''
    There is a long list of groups on the letter opposing the 
rollback legislation, including S. 1848 as well as S. 2780, and 
with good reason. I would ask unanimous consent that the letter 
in opposition be printed in the record.
    Senator Inhofe. Without objection.
    [The referenced letter can be found on page 80.]
    Senator Boxer. Thank you.
    If you read this, it would astound you to see the 
opposition to what I think we are trying to do here today.
    I think there is a much better way to approach this issue, 
Mr. Chairman. First, the EPA does in fact have significant 
administrative authority and could streamline the cleanup 
process with model orders under Superfund. These orders could 
contain appropriate liability relief, could be limited in 
scope, and could maintain environmental standards. The EPA has 
some experience with this approach and, with effort, could do 
more. I appreciate well-intentioned efforts to allow so-called 
Good Samaritan cleanups to proceed more efficiently.
    However, environmental rollbacks are not the answer. The 
Good Samaritan proposals don't even contain the basic 
protections of the brownfields law and raise the risk that 
things could get worse, not better. We also cannot afford to 
lose sight of one of the key parts of any solution to the toxic 
waste problem. Superfund must be funded, and polluters must 
once again pay into the fund. The need for cleanup of abandoned 
mine land dwarfs any Good Samaritan initiative. This is a large 
and complex problem, and the Good Samaritan proposals are a 
drop in the bucket, but they could be worse if things go wrong.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Senator Boxer follows:]

        Statement of Hon. Barbara Boxer, U.S. Senator from the 
                          State of California

    Mr. Chairman, I cannot stress enough how critical it is that we 
address the threat of toxic waste sites in this committee, particularly 
the threat these sites pose to the health of families, including 
children in nearby communities. I hope we can have a series of hearings 
on environmental cleanup issues that go beyond the issue for today's 
hearing. I also appreciate your agreement to allow a Superfund 
oversight hearing in the Superfund Subcommittee tomorrow. Information 
we have gathered on the current status of toxic sites around the 
country makes it clear--the threat posed by these sites merits our 
immediate attention.
    I am pleased that the EPA Administrator is here today, and, as you 
might imagine, I have a few questions for Administrator Johnson on 
EPA's approach to cleanup programs, including abandoned mine cleanup.
    It is worth noting that the Administrator is testifying today in 
support of efforts to rollback environmental laws and standards that 
would provide a direct financial benefit to industry. The enthusiasm 
shown by this Administration for waivers and rollbacks of environmental 
laws that protect public health is striking. Proposals to streamline 
environmental cleanup by undermining standards is the wrong approach 
and raises the risk to communities that things will get worse, not 
better.
    Abandoned mine sites pose a serious threat to water resources. Mine 
wastes frequently contain high levels of heavy metals, including 
mercury, and arsenic. Cyanide and other hazardous chemicals are used in 
mine operations. In California, it is estimated there are 47,000 
abandoned mines.
    If mishandled, well-intentioned efforts can have disastrous 
results. In fact, in my home State we have a clear example of a well-
intentioned cleanup effort gone wrong. I will briefly describe that 
experience to highlight why environmental rollbacks are the wrong path 
to take when it comes to cleaning up abandoned mine sites.
    The experience at the Penn Mine in Calaveras County, CA was well-
intentioned but poorly executed and is instructive. This mine site has 
been used to justify the so-called ``Good Samaritan'' initiatives 
because it involved litigation and significant cleanup costs. As you 
will see, the limited regulatory review and poor engineering at this 
site made a bad situation dramatically worse. Let me read from a letter 
from a long list of groups opposing the ``Good Samaritan legislation'' 
and what they have to say about the lessons of Penn Mine:
    ``At Penn Mine, the waiving of environmental review coupled with an 
egregious lack of understanding of complex geochemical and hydro-
geological processes at the site led to exacerbated water quality 
problems. . . accelerat[ing] the formation of acid mine drainage by up 
to one million times.'' A prominent geochemist testified that ``the 
facility could not have been better designed had its intention been 
maximum production of toxic acid mine drainage.'' There is a very long 
list of groups on this letter opposing the rollback legislation, 
including both S. 1848 as well as S. 2780 and with good reason. (See 
letter for groups attached)
    There is a much better way to approach this issue. First, EPA does 
in fact have significant administrative authority and could streamline 
the cleanup process with model orders under Superfund. These orders 
could contain appropriate liability relief, could be limited in scope 
and could maintain environmental standards. EPA has some experience 
with this approach and with effort could do more.
    I appreciate well intentioned efforts to allow so-called ``Good 
Samaritan'' cleanups to proceed more efficiently. However, 
environmental rollbacks are not the answer. The Good Samaritan 
proposals do not even contain the basic protections of the Brownfields 
law and raise the risk that things will get worse not better. There is 
another way that does not involve rollbacks or waivers, or giveaways to 
industry. We also cannot afford to lose sight of one of the key parts 
to any solution to the toxic waste problem. Superfund needs to be 
funded and polluters must once again pay into that fund. The need for 
cleanup of abandoned mine lands dwarfs any Good Samaritan Initiative. 
This is a large complex problem and the Good Samaritan proposals are a 
drop in the bucket. Worse if they go wrong.

    Senator Inhofe. Thank you, Senator Boxer. You may proceed 
with your questions now. It is around to you. Thank you for 
staying within your time limit.
    Senator Boxer. Administrator, welcome.
    Mr. Johnson. Thank you.
    Senator Boxer. You say in your written testimony that the 
impacts of abandoned mines are one of the most important 
environmental issues and opportunities facing the United 
States. Do you believe the fact that children are living in 
communities where exposure to toxic material from Superfund 
sites is not under control is also one of the most important 
issues facing the United States, and what opportunities and 
specific plans have you formulated to remedy the problem?
    Mr. Johnson. Thank you, Senator Boxer. I do believe that 
those Superfund sites in cities where children may be exposed 
are significant and very important. I, too, believe 500,000 
abandoned mines are also an important issue and again, provide 
a tremendous opportunity for us to be innovative and allow 
volunteers liability protection to go in and make environmental 
improvements.
    This is not a rollback. This is an opportunity to actually 
improve the environment. Very much as the lessons we learned 
from brownfields in starting with voluntary programs, here is 
another opportunity for us to make significant progress. It is 
not a rollback. We have a number of safeguards to ensure that 
it is not increased risk, and we learned a lot from the Penn 
Mine example that you mentioned earlier in your testimony.
    I look forward to working with you and the chairman to move 
this forward because it just makes sense.
    Senator Boxer. Mr. Johnson, are you aware that the EPA 
career staff in the Superfund program concluded in written 
comments, after reviewing the Good Samaritan legislation, but 
that most of their comments were not incorporated, including 
comments on the inadequate environmental standards in the bill, 
in other words, what they considered to be rollbacks? Are you 
aware that is the case and we have those comments?
    Mr. Johnson. I am aware that there were a number of 
discussions inside the Agency. Again, this is not about 
Superfund reform. This is not about Clean Water Act reform. 
This is about providing a very narrow opportunity for voluntary 
cleanup of abandoned hard rock mines by third parties, Good 
Samaritans. These are people who have not caused the problem. 
They are not legally responsible for cleanup of pollution. They 
want to volunteer, and we want to provide them the opportunity 
to do the right thing.
    Senator Boxer. Well, why weren't their comments included?
    Mr. Johnson. Again, this is the opportunity for voluntary 
cleanup. This is to make incremental progress. This is not 
requiring, as under the brownfields program, meeting a strict 
environmental standard.
    Senator Boxer. No, no, no, their comments on the 
legislation. Obviously, they were asked to comment on it. Why 
didn't you include their comments? Why would they be deep-
sixed?
    Mr. Johnson. Again, our focus is to provide for incentives 
for people to voluntarily cleanup and make progress, not 
requiring a strict standard.
    Senator Boxer. I understand, but they disagreed.
    Mr. Johnson. Well, that is fine.
    Senator Boxer. Is that why you left it out?
    Mr. Johnson. Well, that is right because I disagree with 
that.
    Senator Boxer. You disagree?
    Mr. Johnson. I disagree.
    Senator Boxer. So, you think we ought to waive standards 
then for this program.
    Mr. Johnson. What I believe, Senator, is I believe that we 
ought to provide volunteers with the opportunity and liability 
protection to do the right thing. To do the right thing is to 
improve the environment. These sites----
    Senator Boxer. What if it doesn't work out that way?
    Mr. Johnson. Senator, you know what, nothing has happened 
in decades, absolutely nothing. Here is a wonderful opportunity 
for there to be environmental progress, and that is what we 
want to do, to allow volunteers to be able to do that.
    Senator Boxer. The issue that I described to you, where 
scientists said it was an absolute disaster when this happened, 
that doesn't concern you?
    Mr. Johnson. Of course, it concerns me. That is why we have 
built into the legislation a number of safeguards, both a 
rigorous screening process including data to demonstrate that 
they are good actors. We require that they make sure they have 
adequate financial resources. The EPA and the State and tribes 
retain our oversight and enforcement authority. We have 
penalties, both civil and if there are local violations, and we 
also have a very rigorous public comment period, both notice 
and comment as well as a requirement for hearing, again all to 
help ensure that we are making environmental progress and that 
nothing goes wrong.
    Senator Boxer. Your staff said, nowhere does the 
legislation specify what standards would govern whether there 
is an improvement to the environment. It appears that water 
quality, under this act, would not apply. How will the 
permitting authority assess whether a project will result in 
improvement? How do they measure improvement? They said, it 
lacks national guidelines and you can't really do cost benefit 
analysis.
    As I said, in this last experience, a prominent geochemist 
said, ``A facility could not have been better designed had its 
intention been maximum production of toxic acid mine 
drainage.''
    I am not sure that we are learning from experience. That is 
one thing that I thought we would do.
    Mr. Johnson. I think that the experience you mentioned, the 
Penn Mine example, is actually an excellent mine example 
because they started out trying to do a voluntary cleanup. The 
East Bay Municipal Utility District found themselves being 
responsible for a $10 million cleanup. They started to try to 
do things voluntarily. Again, there are probably lessons 
learned of how they could have done things better; more 
importantly, certainly, are the safeguard which we have 
included in our legislative proposal. But the point is: here is 
an organization that tried to do things voluntarily and then 
ended up being responsible or saddled with a $10 million 
cleanup.
    Again, we are trying to see and trying to encourage 
voluntary Good Samaritans. We are trying to see environmental 
progress, and we put in safeguards to make sure they do that, 
they document it, and it is done well.
    I think that there are many issues we have to face under 
Superfund as well as others.
    Mr. Chairman, I would like to submit for the record a 
letter that has been sent both to Chairman Inhofe and myself 
from the Western Governors Association which says, ``We 
strongly support the efforts of the U.S. Environmental 
Protection Agency in developing this legislation and believe it 
represents a solid basis for moving forward.''
    Senator Inhofe. Without objection, that will be part of the 
record. I received that letter and read it, and I find it to be 
a very good letter.
    [The referenced letter can be found on page 88.]
    Senator Inhofe. Do you have one more question?
    Senator Boxer. Yes, I do, one more. Thank you very much.
    Now, the EPA can already issue a Good Samaritan 
administrative order that protects innocent parties and allows 
cleanups at abandoned mines, is that correct?
    Mr. Johnson. Under CERCLA 107(j), it does not protect 
volunteers from liability. It still leaves volunteers subject 
to CERCLA Section 106.
    Senator Boxer. Would you support EPA standardizing the 
process and applying it nationwide to help facilitate cleanups? 
You already have a process.
    Mr. Johnson. The problem is the law. The current construct 
of the law does not provide liability protection for 
volunteers. That is why. That is what the focus is on.
    Senator Boxer. That is not my understanding at all. So, why 
don't we talk about that later?
    To me, this thing seems to be a rollback, plain and simple. 
We have seen it from this Administration before, and that is 
what I see.
    The last thing I would ask, and I am done here, is I would 
like to submit into the record an article called ``Good 
Intentions Do Not Confer a Right to Pollute,'' and it is the 
whole story about what goes wrong in some of these cases where 
you don't have rigorous standards, if I might put this into the 
record.
    [The referenced article can be found on 76.]
    Senator Inhofe. Sure, without objection, so ordered. Thank 
you very much, Senator Boxer.
    Thank you, Mr. Administrator. When I look at this 
legislation, you see such individuals as Senator Baucus and 
Senator Reid and Senator Salazar. This is bipartisan. It is a 
problem. We can't just keep putting it off.
    I think you have done an excellent job of testifying today, 
and you may be excused.
    Mr. Johnson. Thank you, Mr. Chairman. Thank you for your 
leadership.
    Senator Inhofe. Thank you.
    I will invite our next panel to come forward. We have a 
very distinguished panel. Dennis Ellis, Executive Director of 
the Colorado Department of Public Health and Environment; Velma 
Smith, National Environmental Trust; John Gioia, Chairman of 
the Board of Supervisors for Contra Costa County Public Works; 
Terry Harwood, former Executive Director of the Hazardous 
Material Policy Council, USDA, and former U.S. Forest Service 
Chief Environmental Engineer; and Scott Lewis, Director of 
Environmental and Governmental Affairs, AngloGold Ashanti North 
America.
    We will start with you, Mr. Ellis, and then work across. We 
would like to ask you to try to confine your opening remarks to 
5 minutes. We do have the timer up here. You are recognized.

  STATEMENT OF DENNIS E. ELLIS, EXECUTIVE DIRECTOR, COLORADO 
          DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

    Mr. Ellis. Thank you, Mr. Chairman and Senator Boxer. Thank 
you for the opportunity to appear before you today to discuss 
an issue of great importance to the State of Colorado: 
abandoned or inactive mines and the liability barriers that 
exist to clean ups of these mines.
    Abandoned or inactive mines are responsible for the 
greatest threats and impairments to water quality in Colorado 
and indeed across the Western United States. Due to the impacts 
on water quality caused by these abandoned mines and the 
difficulties in identifying responsible parties to remediate 
the sites, Colorado is very interested in undertaking and 
encouraging voluntary Good Samaritan remediation initiatives, 
such as cleanup efforts by States or other third parties who 
are not legally responsible for existing conditions at the 
site. However, Good Samaritans currently are dissuaded from 
taking measures to clean up the mines due to an overwhelming 
legal disincentive.
    Colorado has 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 problems commonly found on 
inactive mine lands if an effective Good Samaritan provision 
were adopted. Consequently, for over a decade, Colorado has 
participated in and encouraged, in cooperation with other 
States, congressional offices, the environmental community, the 
mining industry, EPA, and other interested parties, efforts to 
develop bipartisan Good Samaritan legislation. Colorado 
strongly believes that only a legislative solution can 
effectively address liability concerns and therefore strongly 
encourages Congress to move forward on this issue.
    We encourage this committee to consider the following six 
components of a Good Samaritan proposal.
    Scope of remediating party: First, Colorado believes that 
participation in a Good Samaritan cleanup should not be limited 
solely to governmental entities since there are many other 
persons willing to contribute to Good Samaritan cleanups. The 
provision should include broadly excluding those with prior 
involvement at the abandoned site, broadly excluding those with 
current or prior legal responsibilities for discharges at a 
site, assurance that any nonremediation-related development is 
subject to the normal NPDES system rules, and be narrowly 
enough constructed to minimize fears over potential abuses of 
this liability protection.
    Second, the Citizen Suit Enforcement Tool has proven to be 
a useful incentive to encourage permit compliance by point 
source dischargers subject to the NPDES program. However, from 
the outset, Colorado has believed that a different set of 
enforcement tools is warranted for Good Samaritan permittees. 
Other permittees are required to get permits because they are 
undertaking activities that cause pollution. A Good Samaritan 
is not a polluter. Rather, they are an entity that voluntarily 
attempts to step in and remediate pollution caused by others. 
In this case, sound public policy needs to be focused on 
creating incentives for Good Samaritans' actions, not on 
aggressive enforcement that creates risks to those that might 
otherwise undertake such projects.
    Third, the analysis and standard for cleanup of a proposed 
project needs to occur at the front end. Once there is 
agreement that a specific 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.
    Fourth, Colorado supports the adoption of a Good Samaritan 
bill that addresses abandoned or inactive hard rock mines. 
Colorado is concerned that any efforts to include coal mines in 
Good Samaritan legislation would bring into play additional 
issues that would make adoption of legislation much more 
challenging and lead to further delays of cleanups.
    Fifth, Colorado has actively encouraged remining as a form 
of environmental cleanup since 1987. Colorado Governor Bill 
Owens supports remining as an option that presents the 
potential for achieving further cleanup of historic mining 
impacts. Options for promoting responsible remining that can 
result in additional remediation of historic mining impacts 
should be fully explored.
    Sixth, regarding funding for remediation, Clean Water Act 
Section 319 funds have been utilized for a number of projects 
remediating inactive and abandoned mine lands. To assure that 
Section 319 funds will continue to be available for such 
cleanup projects, any Good Samaritan proposal should include a 
provision clarifying that such funds may be used for projects 
subject to Good Samaritan permits.
    In conclusion, Governor Owens is on the record in support 
of S. 1848, the Cleanup of Inactive and Abandoned Mines Act, 
introduced by Senators Allard and Salazar. We believe this bill 
provides a thoughtful and balanced approach to the range of 
issues and options that have been discussed. Governor Owens 
also applauds the efforts of the EPA to pursue administrative 
as well as legislative avenues to move forward on Good 
Samaritan efforts.
    For Colorado, this is not an academic debate about 
appropriate legislative language. If a Good Samaritan bill is 
enacted, then water quality in Colorado will improve as soon as 
the next available construction season. The State of Colorado 
urges Congress to move forward with S. 1848 as a basis for Good 
Samaritan legislation.
    Thank you for allowing me to testify today. I would like to 
submit my full statement for the record, and I am more than 
willing to answer any questions you may have.
    Senator Inhofe. Yes, without objection, all full statements 
will be submitted as part of the record. We appreciate your 
keeping within your time.
    Ms. Smith.

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

    Ms. Smith. Thank you, Mr. Chairman. On behalf of the 
National Environmental Trust, I thank you for this opportunity 
to testify on the important issues surrounding cleanup of 
abandoned mines. Since Monday morning when I submitted my 
written testimony, that testimony has been joined by the 
Wilderness Society and the Sierra Club who would also like to 
join in on that testimony.
    While we appreciate the good intentions of those who worked 
so hard on the bills before you today, we know that they 
focused attention on a long festering and still growing 
national problem, and that focus would be useful if it would 
prompt new action to clean up mine sites and to stop new mines 
from joining the enormous universe of abandoned mining messes. 
But I must be perfectly frank. The bills before you don't do 
that. On the contrary, in our view, they may well take us in 
the wrong direction.
    If you want to address mine sites, there are two things 
that are needed: more funding for cleanup and better regulation 
of mining. On the latter, I point out the legislation that 
Senator Jeffords mentioned, sponsored by Senator Cantwell, as 
one such piece of improvement that may make a contribution to 
the problem.
    I am going to depart a little from what I had planned to 
say because I need to speak to the characterization that those 
of us who have concerns with these bills are letting the 
perfect become the enemy of the good. I say that is not the 
case at all, and we are fearful that the slapdash will replace 
the thoughtful and deliberate. We must be careful about making 
improvements. The Penn Mine case indeed shows us and many 
others do, with wetlands that have failed, with waste rock 
piles that have collapsed, with tailing stems that have 
collapsed, that mistakes can be made which is not to say the 
intention was ill to start with, but mistakes can be made and 
we have to be careful.
    I also want to depart from my notes because I am somewhat 
baffled that Administrator Johnson is calling this effort 
similar to brownfields, and I am also baffled that he would say 
nothing has happened. In fact, I went to the EPA web site, and 
there you will find that there is much going on in the way of 
abandoned mine cleanup. These are not only Superfund sites, 
they are Superfund alternative sites; they are brownfield 
sites; they are State efforts; they are the Forest Service and 
BLM. The brownfields program itself is being used to clean up 
mine sites, to assess mine sites, to redevelop mine sites. What 
would be useful would be to continue to use that program and to 
put more money into the brownfield program, specifically for 
mining sites.
    I would also point out that the EPA has worked with USGS 
and the Federal Land Managers, developing a watershed-based 
approach to setting priorities and doing cleanup from a 
watershed approach. That has great promise and is being used 
successfully in certain areas. What is needed is additional 
money, once they identify what needs to be done, for cleanup in 
a watershed and to have funds to implement that cleanup.
    As my time is running out, I did want to mention that I 
think if you wanted to pursue legislation, I would look to the 
other body and to Congressman John Salazar who has a 
demonstration project based in Colorado on the upper Animas 
River. The Animas River Stakeholders Group has been in 
existence for 12 years, and they have developed some plans that 
they would like to implement for cleanup in that watershed. I 
think if you look at Congressman Salazar's bill, that is the 
way you may find a constructive approach if you want to 
legislate on this area.
    I thank you for the time, and I look forward to your 
questions.
    Senator Inhofe. Thank you, Ms. Smith.
    Mr. Gioia.

STATEMENT OF JOHN GIOIA, CHAIR, BOARD OF SUPERVISORS OF CONTRA 
 COSTA COUNTY AND CONTRA COSTA COUNTY FLOOD CONTROL AND WATER 
                     CONSERVATION DISTRICT

    Mr. Gioia. Thank you, Mr. Chairman and Senator Boxer. Thank 
you for the opportunity to discuss an issue of great importance 
for water quality and the environment in our county and 
throughout this country.
    I am here as the Chair of the Contra Costa County Board of 
Supervisors, and I would like to describe to you a project in 
our county that would greatly benefit water quality in the San 
Francisco Bay Area but has not been completed due to liability 
exposure concerns. Contra Costa County has one million people 
and fronts on San Francisco Bay in the Sacramento Delta through 
which most of the runoff from the Sierra Nevada Mountains flows 
on its way to the Pacific Ocean. Probably most importantly, we 
are just across the bridge from Senator Boxer's home county of 
Marin.
    The abandoned Mount Diablo mercury mine is located on 
private property near the headwaters of Marsh Creek on the 
upper slopes of Mount Diablo, one of the most prominent 
landmarks in the San Francisco Bay Area. Rainwater washing over 
the mine tailings transports mercury into Marsh Creek which 
flows through several communities with a population of over 
60,000 people and ultimately into San Francisco Bay. Nearly 90 
percent of the mercury in the Marsh Creek Watershed originates 
from this abandoned mine. Also, one of the most significant 
sources of mercury in San Francisco Bay is runoff from 
abandoned mines like the Mount Diablo mercury mine. In fact, 
advisory notices are posted for adults to not eat fish from the 
bay more than twice every month.
    The property owner in this case purchased the abandoned 
mine and surrounding property in 1974. The property is bordered 
on three sides by a popular State park. The current owners 
never intended to develop or mine the property but bought it as 
a beautiful site to raise their children and retire.
    In 1978, the Regional Water Board issued the property 
owners a cleanup and abatement order, even though they did not 
create the problem. The owners have taken efforts to clean up 
the property as best they can but do not have the resources to 
complete a full scale mine remediation. In fact, they stated 
they spent well over $300,000 of their retirement money in 
cleaning the mine.
    In 1997, Contra Costa County applied for grant moneys to 
voluntarily conduct remediation of the mine. After legal 
consideration of the liability issues, the county withdrew the 
grant application because it would be exposed to substantial 
liability if the project were built. We are still interested in 
remediating the mine and are confident we can obtain the grant 
funds to do so. Money is not the issue for us.
    The county has been working cooperatively with a very 
supportive local watershed council, environmental groups, and 
property owners who are all supportive of our remediation 
efforts. Last year, we partnered with Sustainable Conservation, 
a non-profit with experience in liability exposure in 
environmental projects. This has led to discussions with the 
Environmental Protection Agency on their Good Samaritan 
initiative and the prospect of emulating the recent Trout 
Unlimited cleanup project in Utah, accomplished through an 
administrative order on consent developed during a 
collaborative process with the EPA.
    However, in order for this collaborative administrative 
process to be successful in the future, the process needs to be 
made more straight forward, shorter, less cumbersome, and less 
costly. It took over a year for Trout Unlimited to develop an 
AOC with the EPA that limited their liability. Rather than 
developing each administrative order on consent from scratch 
which involves substantial resources and time, a model should 
be developed which can be replicated by other Good Samaritan 
public agencies seeking to remediate abandoned mines. We fully 
expect and support appropriate protections for the environment 
in this process.
    We believe our project can be a demonstration project and 
model for others. We are ready, willing, and able to fix a 
source of pollution in our county and improve water quality for 
the San Francisco Bay Area. We support any efforts of the EPA 
and Congress to develop legislation for an effective and 
efficient collaborative administrative process that will allow 
public agencies like ours to responsibly and safely remediate 
an abandoned mine without becoming exposed to unlimited 
liability.
    Thank you for the opportunity to address you on this issue.
    Senator Inhofe. Thank you, Mr. Gioia.
    Mr. Harwood.

   STATEMENT OF TERRY A. HARWOOD, FORMER EXECUTIVE DIRECTOR, 
    HAZARDOUS MATERIALS POLICY COUNCIL, USDA; FORMER CHIEF 
                  ENVIRONMENTAL ENGINEER, USFS

    Mr. Harwood. Good morning, Mr. Chairman and Senator Boxer. 
I thank the committee for this opportunity to testify on the 
issue of cleanup of abandoned mines and mining-related 
contamination.
    You mentioned, Senator Inhofe, that you had been in the 
woods many years ago. Well, I have been in the woods 37 years.
    Senator Inhofe. I said in the mines, not in the woods.
    [Laughter.]
    Mr. Harwood. Anyway, a long time. I managed the Abandoned 
Mine Programs in USDA and the Forest Service at national and 
regional levels, and this experience included managing programs 
as well as actual on the ground work on cleanup of hundreds of 
sites. I continued to be professionally involved in cleanup of 
mining-related contamination and natural resource damage 
restoration after retirement from Federal service.
    The intent of this hearing is to consider whether potential 
liability deters abandoned hardrock mine cleanup. Our intention 
is focused on the potential for Good Samaritans to assist in 
the cleanup process, but this is not the right focus. It runs 
the risk of us ignoring the monster in the room which is the 
lack of sufficient commitment and funding for the State and 
Federal Governments and the industry to adequately address the 
task of cleanup. The potential for good intentioned, 
technically qualified Good Samaritans to make a discernible 
impact on this huge problem is highly questionable. There seems 
to be an attitude that volunteerism will offset real commitment 
by Government and industry to deal with mining-related 
environmental problems.
    One of my major concerns is, while attempting to deal with 
the list of impediments to voluntary action, we hide from 
public discussion and consideration the really important issue 
which is a lack of adequate funding and commitment by 
Government and industry. But this isn't my greatest concern. 
The proposed legislation may be an attempt to hide the true 
nature of cleanup challenges with a gross simplification or 
disregard for science and engineering that is needed to ensure 
that we end up with an environmental improvement. Effective 
cleanup actions oftentimes require a high level of expertise 
and substantial resources, and an improperly regulated Good 
Samaritan is not the answer.
    After review of S. 1848 and S. 2780, I see an attempt to 
remove most environmental regulation for potential Good 
Samaritan operations as an answer to this fear of liability 
issue. This can lead to degraded environmental conditions after 
the voluntary action is undertaken and may fail. The schemes 
outlined in the proposed legislation do not protect us from 
things getting substantially worse.
    For example, we cannot afford to have a remining operation 
where hazardous chemicals such as cyanide are used in leaching 
operations to be uncontrolled. Current new mining operations 
must meet environmental regulations and so must operations that 
are done by volunteers.
    For example, with S. 1848, we would regress to a time when 
there was little control over environmental disturbance 
activities, only the good intent of the party taking the 
action. This is the very reason why we find ourselves with the 
current environmental mess. They didn't have good intent. The 
bill is appropriately numbered because 1848 was a time in 
history when we didn't give much credence to the effect that 
our activities had the environment.
    The proposed intent of this discussion and the proposed 
legislation is to deal with disincentives to voluntary cleanups 
because of potential liability. What the proposed legislation 
does is eliminate most, if not all, environmental regulation 
and safeguards from voluntary actions.
    There is a better solution which has already been 
mentioned. It can be done under current CERCLA regulations 
through the use of a Good Samaritan administrative order on 
consent. With this process, we could assure that appropriate 
environmental regulations were considered. We could address the 
liability question for the Good Samaritan. We could protect the 
environment from the activities of an unscrupulous or highly 
speculative business interest acting as a volunteer. We need 
not create an entirely new program within EPA.
    Thank you for the opportunity to discuss my concerns and 
recommendations with you. My hope is that the Nation is not 
misled into thinking that a solution to the Good Samaritan 
liability issue through currently proposed legislation is a 
meaningful solution to the abandoned mine problem. It is not 
and far from it. With the legislation proposed, we run the risk 
of substantially adding to our environmental problems by 
creating a program where necessary scientific investigation of 
site conditions is not performed, where the development of 
regulations and cleanup standards is either nonexistent or 
weak, parties looking to make a buck can tear into the sites 
with little or no regulatory consequence to their behavior, and 
even with the best of intentions, the State and Federal land 
managers and the EPA will end up with a larger mess to deal 
with.
    I would like to add to my comments. I ran the program in 
USDA and the Forest Service for many years, and we got a lot of 
work done. So, there have been a lot of things done in the 
field that aren't being given credit.
    Thank you.
    Senator Inhofe. Thank you for that excellent statement, Mr. 
Harwood.
    Mr. Lewis.

   STATEMENT OF SCOTT A. LEWIS, DIRECTOR, ENVIRONMENTAL AND 
  GOVERNMENTAL AFFAIRS, ANGLOGOLD ASHANTI NORTH AMERICA, INC.

    Mr. Lewis. Good morning, Mr. Chairman and Senator Boxer. I 
am the Director of Environmental and Governmental Affairs for 
AngloGold Ashanti North America. Our U.S. offices are located 
in Denver, CO. The parent company, AngloGold Ashanti, Limited, 
has 21 operations on four continents.
    Over my 23 years of environmental experience in the mining 
industry, I have had the opportunity to examine a number of 
orphaned sites primarily in the West and evaluate them. That 
has provided some insights and opportunities that we will 
discuss later in terms of cleanups that have already occurred.
    The spectrum of disturbance or the environmental damage is 
broad and ranges from safety hazards to very complicated 
issues. The sad reality is without meaningful Good Samaritan 
legislation, there will be little more done. Some has already 
been done but little more will be done than has already been 
accomplished. This is an opportunity to really open the door 
and get a variety of stakeholders involved in the process.
    I am here today representing the National Mining 
Association and the member companies. Mining companies must be 
allowed to qualify as Good Samaritans if they have not caused 
or are not liable for the environmental damage. This is a key 
provision. We should not automatically be excluded from 
participating as Good Samaritans. We have and will continue to 
be responsible stakeholders in the process, doing the work. In 
many cases, it just makes sense for the mining companies to 
participate because we have the staff, the technology, the 
resources, contractors, etcetera in the area to do the work.
    The EPA must authorize Good Samaritan projects through a 
formal permitting process. That is a key to this, and we cannot 
forget that. It must be demonstrated through that process to 
EPA and the public and other interested parties that there will 
be an environmental benefit, that environmental quality will be 
improved. Similarly, that process should prevent a misuse of 
the Good Samaritan bill.
    Next, the EPA must be given discretion to relax certain 
regulatory and liability provisions of the environmental laws. 
This may indeed include CERCLA, the Clean Water Act, the Clean 
Air Act, and RCRA, but in order to get other people, industry, 
communities, local Governments involved, that is a key element 
when it is done on a case by case basis, again focusing on 
improvement in environmental quality.
    Good Samaritan legislation must not unduly narrow the types 
of activities that constitute legitimate remediation, and this 
is the reprocessing issue. There are opportunities in active 
mining districts to take historic wastes and reprocess those. 
Those reprocessed wastes then fall under the scrutiny and 
requirements of current environmental law. So, there are merits 
to considering reprocessing in Good Samaritan legislation.
    Mining companies should be allowed to potentially make a 
profit on certain cleanup activities. There can be no 
guarantees, that any profits will be made currently and in the 
future, as each project is evaluated. There is a lot of 
downside potential, but there needs to be some upside potential 
to doing these projects in the future under Good Samaritan 
legislation. It should not be prohibited if a profit is 
possible.
    In conclusion, legislation such as Senate bill 1848 by 
Senators Allard and Salazar and the Administration bill, Senate 
Bill 2780, are a great start. They really are. They offer some 
creative and innovative approaches to a solution that we have 
been struggling with for decades. We would encourage this 
committee to continue the process and further explore the 
merits of those two bills and move forward.
    Thank you, and I would be pleased to answer any questions.
    Senator Inhofe. Thank you very much, Mr. Lewis.
    I am hoping that this hearing today will provide a solution 
to the problem. We keep eating, meeting, and retreating, and 
nothing gets done. Let us hope that it will this time.
    Ms. Smith, I take issue with your statement that the 
perfect must not be the enemy of the good, and I will take your 
characterization of that statement along to its author, Harry 
Reid, who will be very interested in your comments.
    In all seriousness, Trout Unlimited spent a year 
negotiating the administrative order by consent, so that it 
could cleanup a site without incurring liability under the 
Superfund. One of our panelists has money to clean up an 
abandoned mine but won't touch it because of the liability 
issue, and I understand that you want us to focus on mines that 
will be abandoned and hold the current mining industry liable 
for the financing of these cleanups.
    But what about the mines they are talking about, Trout 
Unlimited and the mine our panelist talked about, where there 
is no current mining company to go after? Are you proposing 
that we go after mining companies even if they have nothing to 
do with the problem?
    Ms. Smith. Mr. Chairman, if they are not responsible 
parties, if they don't own the land, never owned the land, 
didn't participate in creating the problem, didn't generate the 
waste, no.
    I think there are a variety of ways to craft programs that 
will allow for voluntary cleanups, for cleanups by all sorts of 
people. If you look through EPA's data on cleanups that have 
been happening, you will find casino developers. You will find 
a whole variety of private land owners who have indeed 
volunteered and managed to find their way through to work 
within the context of existing laws, no doubt sitting down with 
people and figuring out what they had to do and what they 
needed to do to be protected but who have done cleanups. You 
have Viacom. You have Aventis. You have a whole variety of 
names of participants in cleanups that weren't mining 
companies. So, it is not a matter of trying to just stick it to 
the mining companies.
    Reprocessing and remining is a fine activity, and I think 
it would be a useful thing to do, but that can be done within 
the context of existing laws and existing permits and existing 
environmental reviews.
    Senator Inhofe. I will ask others to respond to that.
    Mr. Harwood, in your testimony, you take issue with what 
you believe to be a lack of accountability for the Good 
Samaritan projects. As you know, the Clean Water Act is 
delegated to the States to administer. I would ask the 
question, if the States are able to administer the Clean Water 
Act, why would they not be able to administer the Good 
Samaritan proposal?
    Mr. Harwood. I am not questioning the States' abilities to 
administer environmental regulations. I work with the States 
all the time in that role. It is part of the cooperative effort 
that we have between all the Governments in an area.
    The question that I had was concerning the open-endedness 
of the language in the legislation and my concern as to where 
we are headed with that open-ended language.
    Also, like I said in my testimony, I think people are 
having a tendency to say, well, these are all easy things to 
do, and all the engineering and science that is necessary to 
get the job done just gets in the way of progress. Having 
worked on hundreds of these sites and been responsible for 
accomplishing hundreds of site cleanups, I know that is not the 
case. There is every level of scientific and engineering 
expertise needed from the very small sites to the very biggest 
ones.
    I think what we need to do is get the EPA and the Federal 
Land Management Agencies, which are pretty well left out of 
this whole discussion, involved in the process of working on 
this model AOC process.
    Senator Inhofe. I appreciate that clarification because I 
think it is good for the record to know that you believe the 
States would be capable of doing something like this.
    Mr. Lewis, do you agree? Do you believe that the delegation 
of this to the States, that they would have the ability to do 
this, and the administration of this program would be as good 
or better than if it were done at the Federal level?
    Mr. Lewis. Thank you, Mr. Chairman. I think an EPA-
delegated program to States with robust programs like Colorado, 
where I am from, is a good example. It has great programs in 
plae now for the clean water, mining, and reclamation. I think 
that needs to be the criteria. There needs to be a decent, 
respectable State program in place. But, yes, the States are 
qualified. They have the staff. They deal with these issues on 
a daily basis. They are familiar with the site-specific 
conditions in and around these properties. So, they are 
imminently qualified, yes, sir.
    Senator Inhofe. I think that is an area where we are all in 
agreement.
    Mr. Gioia, first of all, help us out a little bit. Where is 
Contra Costa County?
    Mr. Gioia. Contra Costa County is just across the Bay from 
San Francisco and Marin County and just north of Berkeley and 
Oakland.
    Senator Inhofe. OK, well, thank you very much. I understand 
that the county had a grant.
    Mr. Gioia. We applied for a grant that we were pretty sure 
we were going to get, and we withdrew the grant application 
because of the liability issues.
    Senator Inhofe. What was the size of the grant?
    Mr. Gioia. Two to three million dollars is the cleanup cost 
we estimate, and we have been assured that there are many grant 
opportunities available for this type of cleanup in the San 
Francisco Bay area.
    Senator Inhofe. Yes, it is my understanding that you would 
have been granted that.
    Mr. Gioia. Yes, right.
    Senator Inhofe. In fact, for all practical purposes, you 
turned down a grant.
    Mr. Gioia. We did.
    Senator Inhofe. Just to reiterate, what the county then 
really needs is some kind of liability relief. If you had the 
liability relief, would you have accepted the grant?
    Mr. Gioia. If we had the liability relief, we would have 
accepted the grant. I mean this is clearly a case where we are 
the true Good Samaritan. We are a public agency. We are not a 
responsible party. We are working with the local community, 
with environmental groups, so we all are on the same page. We 
were just concerned about future liability.
    Senator Inhofe. Mr. Ellis, based on the sites in Colorado, 
would providing more money but not addressing the liability 
concerns resolve your problem?
    Mr. Ellis. Thank you, Mr. Chairman. I still believe 
liability is clearly the largest hurdle in addressing these 
mine sites. I would like to believe that we could get a check 
for a billion dollars to clean up everything in Colorado, from 
the Federal Government, but I am also a pragmatist and a 
realist, and I know that is not going to happen. There is more 
and more pressure on Federal funding all the time, and it is 
reflected in the EPA's budgets and other areas. I see this 
initiative or this legislation as a new, innovative way to try 
to provide additional infusion of public and private capital to 
try to replace those Federal dollars that aren't there.
    I certainly think it would be foolish to not look into that 
area and see if we can't pass a bill that will probably have a 
zero cost from CBO. That is an amazing thing for an 
environmental bill. I believe there is no authorization of any 
appropriation. To me, that means a higher chance of passage. If 
it can result in environmental cleanup, that is a great thing.
    Senator Inhofe. You heard Ms. Smith say she believes there 
are people out there who would, under the current law, be 
willing to come in and cleanup these sites. What is your 
response to that, without any kind of liability protection?
    Mr. Ellis. That certainly may be the case. I don't know of 
every site in Colorado. She did mention Representative 
Salazar's bill, and I think that is an innovative way to try to 
tackle the problem as well. I wish them the best of luck in 
that effort. But anybody who has ever done even Federal land 
exchanges of 10 acres, understands the difficulty of passing 
Federal legislation. If we were to do that for every single 
watershed, I don't know that that is a great thing to hang your 
hat on to solve the problem Westwide. It takes an act of 
Congress.
    Senator Inhofe. Ms. Smith, you are shifting around there. 
Did you want to respond? Did I mischaracterize your statement?
    Ms. Smith. Well, Mr. Chairman, I think it is not a question 
of liability relief by waiving the law and changing the law or 
no liability relief. You have a tool. You can do an 
administrative order on consent. The EPA spent a year, and 
perhaps that was far too long to spend on the Trout Unlimited 
project, but now they have a model. They have other models. 
They have done consent agreements in a whole variety of places, 
some much more complicated than the Trout Unlimited project. 
They can use that to offer protections.
    I think part of the unsaid piece of this is there are dry 
cleanups and there are going to be discharging cleanups. Those 
cleanups where there will be a continuing discharge, and 
because many mines will have perpetual pollution, acid mine 
drainage that will last for thousands of years, there is going 
to be a continuing discharge. So, if somebody comes in, makes 
the discharge better, and then walks away, somebody has to be 
responsible for overseeing what happens in the future. 
Hopefully, the States or the counties would step up to the 
plate if they had the funds for helping them.
    Senator Inhofe. I appreciate that. I do appreciate that.
    Mr. Gioia, first of all, what is your title with this 
county?
    Mr. Gioia. I am the Chair of the Board of Supervisors.
    Senator Inhofe. You are the boss.
    Mr. Gioia. There are five of us who were elected throughout 
the county, and I just happen to be the Chair this year.
    Senator Inhofe. It is your turn. I have been there; I 
understand.
    They kind of implied that perhaps the county wouldn't have 
the ability or the resources or be able to take care of one of 
these remediations. How would you do this? Would you have 
mining engineers advise you? How would you go about doing it? 
How would you answer that?
    Mr. Gioia. What we would do in this situation is clearly we 
would be hiring experts to consult and to affect this 
remediation. These grants that we would obtain require a fair 
amount of oversight and require clearly a process that would 
need to be followed to insure the integrity of the cleanup.
    Now, there have been some issues raised about what is the 
best way to do this. For us, ultimately, it is about protecting 
liability because, as all of you know, local governments spend 
a fair amount of money on health and social services and public 
works and planning. For us, how much we may have in terms of 
liability for something that we are voluntarily taking upon 
ourselves to do is a concern. We would rather be spending our 
money handling health and social services which is one of our 
major responsibilities.
    So, if we can get the money and we are confident we can, we 
don't want to have a blank check out there where we start the 
cleanup and run into a ``touch it, you own it'' kind of 
philosophy and we then have the potential for payments over a 
period of years. We don't want that. We need certainty. That is 
why we just want to have liability capped if we do cleanup 
responsibly and safely. We know that we have that 
responsibility. We would hire the experts to do that. We 
wouldn't be doing all that ourselves, and we would be doing it 
in a very public way, working with the community.
    Senator Inhofe. Thank you, Mr. Gioia.
    Senator Boxer, I am just insisting you take more than the 5 
minutes you normally have, more than 10 minutes, a full 12 
minutes with one proviso.
    Senator Boxer. What?
    Senator Inhofe. That would be when Senator Thune arrives, 
between your questions, you would allow him to make an opening 
statement, all right?
    Senator Boxer. Absolutely.
    Senator Inhofe. All right.
    Senator Boxer. Thank you very much.
    First of all, welcome to Washington, I say to my 
constituent, Supervisor Gioia. As you know I started out as a 
Marin County Supervisor.
    Mr. Gioia. I remember. I worked on the staff of a 
Supervisor across the Bay when you were the Supervisor at 
Marin.
    Senator Boxer. You young thing.
    The point is I hear you so well because we were facing a 
lot of things like that. For example, our beautiful Frank Lloyd 
Wright Civic Center had to be earthquake-proofed. I remember 
being faced with this because at that time it was millions of 
dollars that we didn't know where to get. It was scary.
    I think you did the right thing. Unless you were certain 
that you didn't have this open-ended problem at the end, you 
did the right thing. However, knowing Contra Costa County and 
listening to you very carefully, I am assuming--and tell me if 
I wrong or right here--while you want liability protection, 
that is your main thing, you are not asking us to lower the 
cleanup standards, are you?
    Mr. Gioia. No. We do not want you to lower environmental 
protections.
    Senator Boxer. Fine.
    Mr. Gioia. We are very careful. We are very concerned about 
that.
    Senator Boxer. That is important to me because if I told 
you, as Ms. Smith tried to do and I am going to try to do too, 
that there are a couple of other ways you could proceed without 
this particular law and in fact, as Mr. Harwood has pointed out 
and Ms. Smith pointed out, that weakens the bottom line 
protections for the public in terms of the water quality 
because it is so vaguely drafted. All you have to do is read 
the EPA staff comments that were deep-sixed in this deal to see 
that. Then I assume you would be content with that.
    Mr. Gioia. We would.
    Senator Boxer. In other words, you don't have a dog in our 
fight.
    Mr. Gioia. Our issue is to protect the true Good Samaritan 
which we believe we are.
    Senator Boxer. Yes, I hear you. I hear you, OK.
    Now, I just want to go forward with this little dialog that 
was started between our good chairman, and he is my really good 
friend, and Ms. Smith. That is there already is a way to do all 
this through the EPA, through the consent order which, by the 
way, is done outside the court. It says consent, so it sounds 
like a court, but it is not a court. It is an administrative 
decision. Mr. Harwood referred to it. The EPA is kind of 
throwing up its hands as if it is too difficult for them, but 
they can do this. They can provide for liability protection 
right in that order and keep the same standards, and we all go 
away happy.
    The other way is through a piece of legislation that I so 
supported and helped write, which is the brownfields law which 
unfortunately is not funded the way it should be funded. It 
still could be able to afford a $2 to $3 million grant. 
Specifically in brownfields, it allows for mine cleanups, and 
it goes along with Good Samaritan capabilities because it 
essentially gives the money to the county. The county makes 
decisions on how it acts. My view is both of those things could 
work.
    Now, I would be glad to pause here for Senator Thune.
    Senator Inhofe. That would be good. Why don't we stop the 
clock and recognize Senator Thune.
    Senator Thune, this was worked out before your appearance. 
If you would like to make an opening statement, you may do so 
at this time. Then we will go back to Senator Boxer's question 
and then ask if you have questions.

  OPENING STATEMENT OF HON. JOHN THUNE, U.S. SENATOR FROM THE 
                     STATE OF SOUTH DAKOTA

    Senator Thune. Thank you, Mr. Chairman. I appreciate that. 
I am just coming over from an Indian Affairs Committee hearing. 
I appreciate joining you and others for this hearing today as 
we learn more about how liability concerns may be impacted in 
cleanup of abandoned hard rock mines across the country.
    There is no doubt that the 500,000 abandoned hardrock mines 
pose varying degrees of risk to the public, including 
watersheds. As chairman of the Subcommittee on Superfund Waste 
Management, I can tell you I have learned a great deal since 
joining this committee, including some of the pitfalls 
associated with our environmental laws such as Superfund which 
is a stringent liability scheme that can impede clean ups by 
innocent parties.
    As a Senator who hails from a Western State that 
experienced a gold rush in the 1870's, I can certainly 
understand the concerns raised by Senators Allard and Salazar 
as they work to address a major issue that continues to impact 
residents of their home State. I applaud the President and 
Administrator Johnson for joining us today to better explain 
why a Good Samaritan provision is needed to help address the 
impact of abandoned mines and the discharge of pollutants that 
continue to this day.
    Last, I understand that some on this committee oppose 
efforts to establish a Good Samaritan provision for hardrock 
mine cleanup because they feel the Superfund program should pay 
for the cost of cleanup. I would like to point out, Mr. 
Chairman, the Superfund program has limited resources, and not 
all abandoned mines qualify for such funding. While emergency 
removal funding can be used to protect human health regardless 
if the site is listed on the National Priority List, removal 
funding is limited to a 1-year effort totaling not more than $2 
million. Also, long term remediation costs can only pay for out 
of the Superfund program if the site is listed on the NPL. I 
believe this distinction is important to keep in mind due to 
the larger Superfund cleanup needs that exist throughout the 
country.
    Seeing the proposals to provide Good Samaritan protection 
are in no way a solution for the cleanup of all abandoned hard 
rock mines, I do believe that if Congress can provide some 
ability for interested parties to clean up pollution from 
abandoned mines, then that is something we should all support.
    I appreciate the opportunity to come here, Mr. Chairman, 
and to make that statement, and I appreciate very much the 
testimony that has been offered today. I would also like to 
acknowledge that our subcommittee will beholding a hearing on 
the Superfund program tomorrow, and we will look forward to 
taking testimony at that as well.
    I will allow you to go back to the Senator from California, 
so that she can continue her line of questioning.
    [The prepared statement of Senator Thune follows:]

  Statement of Hon. John Thune, Senator from the State of South Dakota

    Mr. Chairman, I appreciate joining you and others for today's 
hearing as we learn more about how liability concerns may be impacting 
the clean up of abandoned hardrock mines across the country.
    There is no doubt that the 500,000 abandoned hardrock mines poses 
varying degrees of risk to the public--including watersheds.
    As the Chairman of the Subcommittee on Superfund and Waste 
Management, I can tell you that I have learned a great deal since 
joining this committee--including some of the pitfalls associated with 
the our environmental laws--such as Superfund which has a stringent 
liability scheme that can impede clean-ups by innocent parties.
    As a Senator who hails from a western State that experienced a gold 
rush in the 1870's, I can certainly understand the concerns raised by 
Senators Allard and Salazar as they work to address a major issue that 
continues to impact residents of their home State.
    I applaud the President and Administrator Johnson for joining us 
today to better explain why a Good Samaritan provision is needed to 
help address the impact of abandoned mines and the discharge of 
pollutants that continue to this day.
    Lastly, I understand that some on this committee oppose any effort 
to establish Good Samaritan protections for hardrock mine cleanup 
because they feel the Superfund program should pay for the cost of 
cleanup. I would like to point out that the Superfund Program has 
limited resources and not all abandoned mine sites quality for such 
spending.
    While, emergency removal funding can be used to protect human 
health, regardless if a site is listed on the National Priority List 
(NPL), removal funding is limited to a 1-year effort totaling not more 
than $2 million. Also, long term remediation costs can only be paid for 
out of the Superfund program if a site is listed on the NPL.
    I believe this distinction is important to keep in mind due to the 
larger Superfund clean-up needs that exist throughout the country.
    Seeing that proposals to provide Good Samaritan protection are in 
no way a solution for the cleanup of all abandoned hardrock mines, I do 
believe that if Congress can provide some ability for interested 
parties to clean up pollution from abandoned mines then that's 
something we should all support.

    Senator Inhofe. Thank you, Senator Thune.
    Senator Thune. Thank you, Mr. Chairman.
    Senator Inhofe. Senator Boxer.
    Senator Boxer. Thank you both.
    As I was saying, Supervisor, what I get from you is your 
problem is you want assurances that you are not going to be 
sued for doing a very good faith, not only good faith but well 
designed, cleanup.
    Mr. Gioia. Yes.
    Senator Boxer. I am with you on that, and I want to help 
you on that. We will be working with you because we believe we 
can accommodate this under current law. So, we will be working 
with you on that.
    Mr. Gioia. Great.
    Senator Boxer. Now, I want to shift the remainder of my 
time to Mr. Harwood who I consider to be a real expert witness. 
How many years have you worked in this mine cleanup area?
    Mr. Harwood. I have worked in the mine cleanup area since 
1983, totaling 37 years of Federal service, and I am still 
working in mine cleanup.
    Senator Boxer. OK. Well, let me ask you this. The New York 
Times did a very deep analysis about these cleanups, and I want 
to read some of the words they say and see if you agree with 
them.
    In October, the New York Times reported that mines usually 
need to dig up 30 tons of rock to create one ounce of gold, and 
they often use cyanide to capture the gold. The paper stated, 
``Before they are through, miners in some of the largest mines 
move a half million tons of earth a day, pile it in mounds that 
can rival the Great Pyramids, and drizzle the ore with a 
poisonous solution for years.'' That is one quote.
    Another quote is ``Some metal mines, including gold mines, 
have become the near equivalent of nuclear waste dumps that 
must be tended in perpetuity.''
    Do you think those are overstatements, or do you think they 
capture some of it?
    Mr. Harwood. The outline or definition of the heap leach 
operation is fairly accurate because the folks who are in the 
mining business now are working on ore bodies that have very 
small amounts of what they are hunting, so they have to move a 
horrendous amount of material, and one of the processes they 
use is a cyanide heap leach process. That has been a problem on 
active mining sites, and it has also been a problem on sites 
where the mining company, for whatever reason, has gone 
bankrupt, and the Federal Government or the State or whomever 
is left with this heap leach pile to try to neutralize.
    The other point I think was made that some of these sites 
will go on in perpetuity. I worked on a site in Central Idaho 
that has a water treatment plant on it which is treating the 
adit discharge from the mine works, and that water treatment 
plant, to meet water standards, will have to run forever, for 
eternity. Somebody has to maintain that water treatment for 
eternity. So, there are sites like this that I am talking about 
that will need to have maintenance and quality maintenance, 
somebody who knows what they are doing, forever to keep it 
clean.
    Senator Boxer. We are not talking about a bunch of 
volunteers. They keep saying volunteers. Administrator Johnson 
talks about volunteers as if it is some kind of a beach cleanup 
where we all meet and we cleanup the beach. We are talking 
about some serious cleanup here.
    Mr. Harwood. Some of the sites that I am working on have 
repositories where you put the contaminated mill tailings and 
waste, and one of these repositories holds over 22 million 
cubic yards of material. That is 2.2 million dumptruck loads of 
waste we had to dispose of. That is just one site.
    Now, not every site is like that. These are mega sites. At 
small sites I worked on with the Forest Service, where they 
built their own repository onsite, we are looking at 135,000 to 
200,000 cubic yards of material to dispose of. It is not some 
small project.
    Senator Boxer. Do you agree with me and some of the others 
on the panel that there already are ways we can handle the Good 
Samaritans through these consent orders? You alluded to that in 
your testimony.
    Mr. Harwood. I alluded to that. We talk about American Fork 
Canyon. I started the American Fork Canyon project off just 
before I retired. Of course, now I am finding out what finally 
happened there.
    One of the things I found out in all the years of Federal 
service I had was there was always somebody going to say you 
can't do that or you can't do this. There was a roadblock, and 
I usually drove a truck through the roadblock. The idea that we 
can't deal with this from an administrative standpoint, I think 
is not correct. We can. It is just that everybody who is 
involved needs to put their minds to getting this done in a 
reasonable manner.
    Again, I don't want to miss emphasizing the fact that the 
Federal Land Management Agencies have CERCLA authority on the 
public lands, and they have just as good a staff of people to 
work with the EPA on drawing up these administrative orders as 
anybody does.
    Senator Boxer. After listening to you and just listening to 
my staff explain to me the nuances of what we already have to 
work with here, the Administration could do these orders. We 
have brownfields legislation.
    At the end of the day, I am asking why do we have this 
legislation? The only answer I come up with is to weaken 
environmental laws because you described how some of these 
sites will have to be monitored essentially forever. I 
understand from the mining industry's perspective they are not 
happy about that because if they are one of the parties 
involved with it, then they have to live up to standards.
    It seems to me, unless I am missing something and I could 
be, but my environmental gut says I am not, I think the whole 
point of this is to weaken standards at the end of the day. 
That is my sense of it. Do you think that is a possibility 
here? I don't know why we need to create legislation if we 
already have the means to get Good Samaritans the help they 
need.
    Mr. Harwood. I think that is the key. That is what 
concerned me, and that is why I came here to testify. Both of 
these pieces of legislation are such a tremendous 
oversimplification of what the problem is, and I am concerned 
that, as we get into a rush to issue permits or whatever, we 
will disregard some really important environmental 
requirements. The thing about it is if we don't do that, then 
the EPA has to establish a whole new program and regulations on 
how to write these permits and manage these permits. So you are 
starting a whole new program within the Agency.
    Senator Boxer. Right. It occurred to me it is a whole new 
bureaucracy for something that we have already addressed 
through administrative consents and through brownfields.
    Ms. Smith, my final question will be to you. I think I just 
expanded on your position. Did I, pretty much?
    But there was one thing that you brought to the table that 
I am not aware of. Could you explain Congressman Salazar's bill 
just a little bit more? Does it take this concept of model 
sites? Is that what it does? Tell me about it.
    Ms. Smith. Congressman Salazar's bill is a demonstration 
project for a particular area. Quite a number of years ago, the 
EPA and the Federal Land Management Agencies along with some of 
the States began looking at a watershed-based approach. A 
group, a stakeholders group was created, and they have worked 
through looking at the whole watershed, identifying priorities, 
and doing monitoring. They are doing this in the context of the 
TMDL.
    Senator Boxer. What does his bill do?
    Ms. Smith. His bill creates a demonstration project and 
provides funding for allowing cleanup projects within the upper 
Animas River basin in Colorado.
    Senator Boxer. And the hope is if this works for Colorado, 
it could be adopted for the rest of us.
    Ms. Smith. Right, it includes a report. It is a 10-year 
sunset. There are reporting requirements. There are monitoring 
requirements.
    Senator Boxer. But it is just limited to that geographic 
area.
    Ms. Smith. Yes.
    Senator Boxer. In general, do you think, again just because 
now my time is really running out, that what we have been 
saying is accurate, that there already are ways to give 
liability protection through the administrative order and 
through the brownfields law?
    Ms. Smith. Absolutely, the tools are out there, and I think 
it is a shame not to use the tools that have been developed. I 
am thinking of my 15 year old son. When he has homework he 
doesn't want to do, he comes out and he looks for one pencil 
and then he looks for a different pen and then he wants a 
different pad of paper. I am like, just get on with it and get 
it done.
    I just would like the Agency to use the tools they have and 
get on with it.
    Senator Boxer. That is why I like women on panels because 
you tend to cut through everything.
    [Laughter.]
    Senator Boxer. Can I say one last word about the panel? I 
think this has been really helpful because I think what you had 
is you had your best spokespersons for all the different 
varieties and shapes for where we may come out.
    Thank you.
    Senator Inhofe. I was thinking the same thing, Senator 
Boxer.
    Senator Thune, each one of us took 12 minutes for 
questions. You may have a full 12 minutes if you want, and you 
are recognized for your questions.
    Senator Thune. Thank you, Mr. Chairman. I understand you 
are probably trying to wrap this up, and it sounds like all the 
ground has been adequately covered. I do appreciate the 
perspectives presented by the panelists here today, and all 
bring great insights to this issue.
    Again, I would just echo what I said earlier in my 
statement about wanting to work with you and the committee as 
we move the legislation forward. I think it looks like it has 
very broad bipartisan support in the U.S. Senate, and hopefully 
we will be able to do something that is meaningful in terms of 
addressing this problem.
    Thank you.
    Senator Inhofe. All right, thank you, Senator Thune.
    Let me thank the panelists. Nobody got in a fight with 
anyone. You were all very respectful. We appreciate the 
knowledge and the ability and the message that you brought 
forward today. Thank you so much.
    We are adjourned.
    [Whereupon, at 11:19 a.m., the committee was adjourned.]
    [Additional statements submitted for the record follow.]

         Statement of Hon. Wayne Allard, U.S. Senator from the 
                           State of Colorado

    Mr. Chairman, thank you for holding a hearing on this important 
issue. Last year the EPA's Inspector General released a report stating 
that hardrock mine sites would soon become the biggest drain on an 
already strained Superfund program. That report identified 156 hardrock 
mining sites, including copper, gold, iron ore, lead and silver mines, 
which could cost anywhere from $7 to $24 billion to clean-up. That 
figure is 5 to 12 times EPA's average annual Superfund budget. While 
this legislation exempts sites eligible under Superfund, I think that 
these estimates can help us to realize the potential clean-up costs.
    These estimates are made all the more frightening by the fact that, 
in 1993, the Mineral Policy Center estimated that, nationwide, there 
are over one-half million abandoned hardrock mine sites in the United 
States. The same organization estimated that it would cost between $32 
billion and $72 billion to reclaim about 363,000 sites--the ones it 
classified as contributing the most contamination. If there is a way to 
clean-up some of these sites, without placing such a heavy burden on 
the taxpayer, Congress should be jumping at the opportunity to make it 
happen.
    Anyone who has driven westward up the I-70 corridor in Colorado 
from Denver, or on many other mountain roads throughout the Rocky 
Mountain West, has seen the impact of abandoned mines on the landscape. 
These sites, which dot the landscape, are called ``abandoned mines'' 
because there is no longer anyone who is legally responsible for their 
clean-up due to the fact that the owners have died or mining firms have 
long gone bankrupt. When responsible parties can still be located, they 
often do not have the resources to properly remediate these sites. In 
the meantime, these abandoned mines continue to pollute the surrounding 
land and water with toxic surface runoff and tailings.
    Allowing outside parties to contribute to the clean up of abandoned 
mines in Colorado and across the West is a common sense approach to 
dealing with what is a continuing environmental problem. The 
legislation that Senator Salazar and I have introduced, S. 1848 ``The 
Cleanup of Inactive and Abandoned Mines Act,'' would shield Good 
Samaritans from legal liability for environmental damage they did not 
generate. A Good Samaritan is a company, individual, or any group made 
of entities not responsible for the mine waste that is willing to 
clean-up historic mine residue at no cost to the taxpayers. Good 
Samaritans should be rewarded for doing the right thing, not put at 
legal risk. This legislation has been years in the making and I am 
pleased that we are here before the committee today with a bi-partisan 
solution.
    The legislation will provide legal protections for mining firms, 
communities, non-profit organizations or individuals that step in to 
clean up these abandoned mines from liability under Federal and State 
laws, but it also contains stringent requirements to prevent abuse.
    A Good Samaritan permit would only be issued if the interested 
party submits a concrete action plan that identifies problems that need 
to be fixed and includes a clear plan for completion. The permit 
application and work plan would also have to be approved by the 
relevant State agencies in order to be valid. After the permit is 
approved the sites would be subject to ongoing monitoring to ensure 
that the remediation is completed as the permit states it will be; 
permitees would be subject to heavy fines for non-compliance with their 
permit.
    Before I close, I would like to take a moment to extend a special 
welcome to Dennis Ellis, executive director of the Colorado Department 
of Public Health and the Environment, and Scott Lewis with Anglo-Gold. 
Both of these gentlemen are Coloradans, I thank them for making the 
trip out to DC to share their perspectives on this important issue.
    Thank you again for holding this hearing, Mr. Chairman. We have a 
window of opportunity to accomplish a ``win-win'' solution for the 
environment and the taxpayers. I intend to continue working with you, 
Senator Salazar, and our colleagues in the Senate and the House in 
developing legislation this session to allow for deliberate and 
conscientious abandoned mine land clean-ups.

         Statement of Hon. Ken Salazar, U.S. Senator from the 
                           State of Colorado

    Thank you, Mr. Chairman and Ranking Member Jeffords. Thank you for 
agreeing to hold this hearing. I appreciate the opportunity to testify 
in support of S. 1848, the Good Samaritan ``Cleanup of Inactive and 
Abandoned Mines Act,'' which I introduced with my colleague from 
Colorado, Senator Allard. And I look forward to working with both of 
you and with all of the members of this committee to pass this 
important legislation during this session. I am particularly grateful 
to Senator Baucus for his prior work in this area and for his support 
for my bill.
    For almost 25 years, first as a natural resources lawyer, then as 
Executive Director of the Colorado Department of Natural Resources, and 
then as Colorado's Attorney General, I have been working to help clean 
up the many contaminated mine sites in my State. As I'm sure Mr. Ellis 
could affirm, I, as a regulator and as the State's chief legal counsel, 
had ample tools in my toolbox and--most of the time--ample resources at 
my disposal to force polluters to clean up contaminated mine sites that 
were large enough and that posed a sufficient risk to public health and 
the environment to warrant the attention of the EPA or the State Health 
Department. Usually that was the case when a site like Leadville and 
Summitville was listed on the National Priorities List under CERCLA or 
when the Health Department identified an unpermitted discharge of acid 
mine drainage or other contaminants into the waters of the State.
    But there are some 22,000 inactive and abandoned mine sites in my 
State that are beyond the reach of EPA and the State, not because our 
pollution laws do not apply to them, but because there is no 
identifiable owner or operator who is responsible for performing the 
cleanup and because neither the State nor the Federal Government has 
the resources to step in and conduct its own cleanup.
    And ironically, the draconian liability schemes under CERCLA and 
the Clean Water Act deter would-be volunteers, or ``Good Samaritans,'' 
from getting near those sites for fear of unlimited liability. Even 
with a solid, sensible plan to clean up a mine site, Good Samaritans 
assume massive liabilities under the Clean Water Act and CERCLA, in 
addition to State and local laws. These liabilities dissuade efforts to 
erase the environmental legacy of hardrock mining.
    And so, year after year, over half a million mine sites across the 
country stand idle, awaiting cleanup as lead, cadmium, mercury, copper, 
arsenic and zinc seep into our watersheds; as mine tailings blow in the 
wind and taint our air and soil; as acidic compounds leach into the 
water, killing fish and aquatic life and polluting our drinking water.
    The continued pollution from these sites and the barriers 
discouraging Good Samaritans from helping with cleanups is one of the 
most frustrating realities I have faced as a natural resources lawyer.
    When I was the head of the Colorado Department of Natural Resources 
and Colorado's Attorney General, I was anxious for State and Federal 
legislators to pass laws that would allow Good Samaritans to conduct 
these mine cleanups. Over the past several years, Congress has 
considered a number of Good Samaritan proposals--some to amend the 
Clean Water Act and CERCLA, some to create financial incentives for 
mining companies to act as Good Samaritans, some with extensive 
liability protection, and some with more limited liability protection. 
I was disappointed that Congress didn't pass a comprehensive Good Sam 
bill at that time, because many of these proposals, including bills of 
Senator Baucus, Representative Udall from Colorado, and Senator 
Campbell from Colorado would have yielded good results. But I also 
thought there should be a more straightforward way of providing Good 
Samaritans the liability protection they need to conduct these 
cleanups.
    The goal of Good Samaritan legislation is simple: we want to make 
it easier for Good Samaritans to clean up inactive and abandoned mine 
sites when a cleanup by the liable party is otherwise very unlikely. 
This is a pragmatic objective, which recognizes that making the 
environment cleaner, especially when a Superfund-quality remediation is 
not possible and not necessary, is better than doing nothing. As is 
often said, the perfect should not be the enemy of the good.
    Because the goal of Good Sam legislation is simple and pragmatic, 
the means to achieve that goal should be simple and pragmatic, not 
legalistic or bureaucratic.
    So how do we do this? How do we create a permitting process for 
Good Samaritan mine cleanups that is straightforward yet thorough, 
simple yet rigorous?
    In my experience with water deals, public lands issues, and 
disputes over natural resources, I have found that the best results are 
achieved when all stakeholders agree on the scope of a project before 
the project begins. This consensus-based approach reduces bureaucracy, 
limits the potential for conflict, and ensures transparency.
    I have written this bill based on my experiences with consensus-
building. Under my bill, a Good Samaritan applies for a permit from the 
EPA. It is a technically-based permit application that depends on a 
sound work plan and achievable results. In order to receive the permit 
for the project, local, State, and Federal authorities must all agree 
that the overall environmental improvement will be significant, that 
there is no environmental degradation--at the project or anywhere 
else--and that the project is technically sound.
    If the State or the local communities whose laws are affected do 
not agree with the proposed cleanup plan, they simply refuse to sign 
the permit and the project does not go forward. But if they think the 
cleanup plan is sound, they determine the scope of liability protection 
afforded under the permit.
    While some bills offer blanket liability protection from 
environmental laws for all Good Samaritans, my bill provides that the 
liability protections should be crafted on a case-by-case basis. The 
local and State Governments can create liability protections from their 
laws, and the EPA can offer limited or extensive liability protection 
under the Clean Water Act and CERCLA or other relevant statutes. 
Presumably, each project is unique, so the liability protections 
afforded under each permit should be designed to fit the project.
    The permit process is entirely open to the public at every step of 
the way. The EPA must give public notice of the permit application, 
hold a hearing, consider public comment, and make public all records in 
the permit process.
    Only after the public has weighed in and the stakeholders have 
agreed that the project will result in an overall improvement to the 
environment, the EPA issues the permit. In the permit, the applicant 
lays out a clear, concrete list of liability protections as well as the 
terms and conditions of cleanup that must be satisfied in order to 
benefit from those protections. That's it--one permit, issued after 
extensive public input and the consensus of all stakeholders.
    This pragmatic, simple approach not only reduces bureaucracy, but 
it strikes a careful balance that protects Good Samaritans from 
liability without creating an end-run around environmental laws.
    Let me emphasize that last point: My bill, like the administration 
bill, makes clear that a party that is liable for the cleanup under any 
applicable Federal, State or local law is not eligible for a Good 
Samaritan permit. Furthermore, my bill makes clear that only the 
activities necessary for the cleanup are authorized under a Good 
Samaritan permit. Any new mining activities at the site would require a 
mining permit and must be performed in accordance with otherwise 
applicable environmental laws. It is certainly not my intention or the 
intention of the co-sponsors of my legislation to enable polluters to 
escape liability through a Good Samaritan permit, directly or 
indirectly, nor is it our intention to authorize mining or ``remining'' 
operations without the necessary mining permit and in compliance with 
all applicable laws. My bill recognizes those distinctions and draws 
those lines clearly.
    Just as we should facilitate Good Samaritan cleanups where there is 
no identifiable liable party, we should enable volunteers to clean up 
abandoned mine sites where the person who may be responsible for the 
mine residue does not have the financial resources to pay for the 
cleanup. In that case, it is more important to clean up the site than 
it is to point fingers.
    Based on my experience, we should also allow a range of 
stakeholders to apply for permits. Given the safeguards in the bill, 
there is no good policy reason to limit Good Samaritan permits to local 
or State Governments when so many capable non-profit organizations, 
individuals, and businesses are willing and able to make significant 
improvements at these sites.
    Importantly, my bill would not disqualify a company or individual 
from capturing and retaining whatever ore values may exist in abandoned 
tailings piles or other mine residue. If the technologies available 
today enable a company to reprocess mine tailings and recover valuable 
minerals that could not be recovered more than 100 years ago--when many 
of these mines sites were last active--then it should be permitted to 
retain those mineral values as a modest incentive for performing the 
cleanup and to offset its costs.
    Mr. Chairman, my bill reflects a balanced and pragmatic approach to 
solving a vexing problem. It creates an open and straightforward 
process that is neither bureaucratic nor unduly legalistic, but that is 
based on consensus and a sound, technically-based work plan. As I said 
earlier, in my experience the best solutions come not through subpoenas 
or paperwork, but at a conference table, with people of good will in 
open discussion, finding common ground.
    Passing this bill would be a great step forward for Colorado and 
Western States. For too long we in the West have been frustrated by the 
legacy of mining, stymied by liability schemes that focus primarily on 
who is responsible for what, rather than on developing a practical 
solution to the problem. The truth is that because we have all 
benefited, and continue to benefit, from resource extraction, we share 
a responsibility for cleaning up our land and our water. In the end, we 
will be judged not by who we find liable to clean these sites, but by 
whether we get them cleaned up for our children and our grandchildren.
    Mr. Chairman, I want to thank you again for holding this hearing 
today and for inviting me to testify. I very much look forward to 
working with you and the Committee to pass this Good Samaritan 
legislation, which is of such importance to the land, water, and people 
of Colorado and the Nation.
    Thank you.
                               __________
 Statement of Dennis E. Ellis, Executive Director, Colorado Department 
                    of Public Health and Environment

    Mr. Chairman, and members of the committee, thank you for the 
opportunity to appear before you today to discuss an issue of great 
importance to the State of Colorado--abandoned or inactive mines and 
the liability 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 in Colorado and 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, Colorado is 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 legal disincentive.
    To date, Environmental Protection Agency (EPA) policy and some case 
law have viewed abandoned or inactive mined land drainage and runoff as 
problems that must be addressed under the section 402 National 
Pollutant Discharge Elimination system (NPDES) permit program. However, 
there is currently no provision in the Clean Water Act that protects a 
``Good Samaritan'' that 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. In addition, 
the potential for creating liability under the Comprehensive 
Environmental Response, Compensation and Liability Act (CERCLA) has 
been a disincentive for parties interested in undertaking remediation 
efforts. These potential liabilities create an overwhelming 
disincentive to voluntary remedial activities to address the serious 
problems associated with inactive or abandoned mined lands.
    Colorado has 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 Colorado has participated in and 
encouraged--in cooperation with other States, Congressional Offices, 
the environmental community, the mining industry, EPA, and other 
interested parties--efforts to develop appropriate Good Samaritan 
legislation. Colorado's Minerals, Energy and Geology Policy Advisory 
Board supported the concept of Good Samaritan legislation in 1996.
    Colorado believes strongly that only a legislative solution can 
effectively address liability concerns, particularly for sites with 
draining adits, and therefore strongly encourages Congress to move 
forward on this issue.

                COMPONENTS OF A GOOD SAMARITAN PROPOSAL

Scope of ``Remediating Party'' Definition
    Colorado believes 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 statutory provisions should do the following:

     broadly exclude those with prior involvement at the 
abandoned or inactive mine site;
     broadly exclude those with current or prior legal 
responsibility for discharges at a site;
     assure that any non-remediation-related development at a 
site is subject to the normal NPDES rules, rather than the Good 
Samaritan provision; and
     be narrowly enough constructed to minimize fears over 
potential abuses of this liability protection.

                        CITIZEN SUIT ENFORCEMENT

    The citizen suit enforcement tool 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, Colorado has believed that a different set of 
enforcement tools is warranted for Good Samaritan permittees. Other 
permittees are required to get 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 attempts 
to step in and 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 citizen suit action is 
currently a major disincentive for such efforts.

                          STANDARD FOR CLEANUP

    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, e.g., meeting specific numerical effluent limits.

                    SCOPE OF MINING SITES ADDRESSED

    Colorado supports the adoption of a Good Samaritan bill that 
addresses abandoned or inactive hardrock mines. Colorado is concerned 
that any efforts to include coal mines in Good Samaritan legislation 
would bring into play additional issues that would make adoption of 
legislation more challenging and likely lead to further delays.

                                REMINING

    Colorado has actively encouraged remining as a form of 
environmental clean up since the Colorado Mining Summit in 1987. 
Governor Owens supports remining as an option that presents the 
potential for achieving further clean-up of historic mining impacts. 
Options for promoting responsible remining that can result in 
additional remediation of historic mining impacts should be explored.

                        FUNDING FOR REMEDIATION

    Historically, Clean Water Act section 319 funds have been utilized 
for a number of projects remediating inactive and abandoned mined 
lands. To assure that section 319 funds will continue to be available 
for such cleanup projects, any Good Samaritan proposal should include a 
provision clarifying that such funds may be used for projects subject 
to Good Samaritan permits. Such a 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.

Conclusion
    Governor Owens is on record in support of S.1848, the Cleanup of 
Inactive and Abandoned Mines Act, introduced by Senators Allard and 
Salazar. We believe that this bill provides a thoughtful and balanced 
approach to the range of issues and options that have been discussed.
    For us, this is not an academic debate about appropriate 
legislative language. If a Good Samaritan bill is enacted, water 
quality in Colorado will improve during the next available construction 
season. Our State Division of Minerals and Geology has several projects 
that it has put on hold due to liability concerns. These projects will 
be revived if legislation is passed. In addition, there are numerous 
public, private, governmental and non-profit groups and entities in 
Colorado anxious to pursue remediation projects in several of our river 
basins as soon as the Good Samaritan liability issue is resolved. The 
attached Appendix provides a list of several current or potential mine 
remediation projects in Colorado that are affected by the need for Good 
Samaritan legislation.
    The State of Colorado urges Congress to move forward with S. 1848 
as the basis for Good Samaritan legislation.
                                 ______
                                 
    Response by Dennis Ellis to an Additional Question from Senator 
                                Jeffords

    Question. What are the basic capabilities that you believe a State 
would need to demonstrate prior to receiving authority to issue a Good 
Samaritan permit addressing Clean Water Act and CERLA?
    Response. Basis capabilities a State would need to demonstrate for 
Clean Water Act (CWA) delegations would be similar to other showings 
for CQA delegations that currently exist, such as the ability and 
resources to effectively issue and enforce permits to the same level 
the Federal Government would provide.
    In order for a State to demonstrate the capability to receive 
delegation from a CERCLA perspective, the State should have:

     Statutory Authority to participate in the CERCLA program;
     A Memorandum of Agreement with EPA defining the roles and 
responsibilities of the agencies;
     Experience in site characterization, review of site date, 
and formulation of appropriate response actions based on that data; and
     Experience in response action construction oversight.
                               __________
 Statement of John Gioia, Chair, Board of Supervisors of Contra Costa 
  County and Contra Costa County Flood Control and Water Conservation

    Mr. Chairman, and members of the committee, thank you for the 
opportunity to appear before you today to discuss an issue of great 
importance for the water quality of our County, the State of 
California, and other States of the Union--the cleanup of abandoned or 
inactive mines. I appear before you as Chair of the Board of 
Supervisors of Contra Costa County and the Contra Costa County Flood 
Control and Water Conservation District. I am pleased to provide you 
with our experiences and recommendations related to abandoned mine 
cleanups and the liability associated with a county agency involved in 
the clean up work.
    I would like to describe to the Committee an example of a project 
in Contra Costa County that would greatly benefit water quality in the 
region, yet has not been able to be completed due to the lack of ``Good 
Samaritan'' legislation.

                               BACKGROUND

    Contra Costa County is located in the San Francisco Bay Area of 
California. The west portion of the County fronts on the Bay, while the 
northern portion fronts along the Sacramento River, and the east 
portion drains into the Sacramento-San Joaquin Delta. Mount Diablo, the 
most prominent and tallest mountain in the area, presides in the center 
of the County. Marsh Creek drains from its headwaters at the top of Mt. 
Diablo to the west towards the Delta and discharges into the Sacramento 
River. An abandoned mercury mine is located in the upper slopes of Mt. 
Diablo, near the headwaters of Marsh Creek. Rain water washing over the 
mine tailings transports mercury down into Marsh Creek and ultimately 
out into the San Francisco Bay. Marsh Creek also flows through the 
communities of Brentwood and Oakley with a total population of 60,000 
residents.
    In the early 1960's, our Flood Control District built flood 
protection improvements in the Marsh Creek watershed, channelizing the 
downstream reaches of Marsh Creek through the flat alluvial area near 
the City's of Brentwood and Oakley.
    In 1963 the Flood Control District built a dam across Marsh Creek 
approximately five miles upstream of the City of Brentwood for flood 
control purposes. The resulting Marsh Creek Reservoir impounds water 
year round, and has extensive riparian, marsh and aquatic growth along 
the shoreline, providing habitat for a variety of wild life including 
resident populations of fish. The Flood Control District owns the Marsh 
Creek Reservoir and most of the downstream channel.

                              HEALTH ISSUE

    In 1980 the California Department of Fish and Game analyzed fish 
from the reservoir and found mercury levels in the fish flesh were 
above existing health standards. The reservoir has since been fenced 
off and noticed for no trespassing or fishing due to the mercury 
contamination. Mercury is a health problem in the San Francisco Bay 
Area and advisory notices are posted for adults to not eat fish from 
the Bay more than twice every month (only once a month for children and 
pregnant women) due to elevated levels of mercury in the flesh of the 
fish.

                            THE MERCURY MINE

    Mercury was first mined in this area in 1875 and continued on and 
off until 1971. In 1974, the current property owner purchased the 
abandoned mine and surrounding property. The property totaled 109 acres 
and is bordered on three sides by Mount Diablo State Park. The current 
owners were not looking to develop the property, but looked at the 
property as a beautiful spot to raise their children and retire. The 
owner and his wife intended to build their retirement home on the 
property, they had no plans nor any desire to mine the property, or 
contract with others to mine the property.
    The State's Regional Water Quality Control Board (RWQCB) first 
issued waste discharge requirements (WDR) to prior mine operators in 
1952 and recommended corrective action be taken. Although waste 
discharge requirements were issued to the mine operators, contaminated 
discharges continued after the mine was abandoned. In 1978 the RWQCB 
issued the property owner a Cleanup and Abatement Order because of 
mercury discharging from the mine site, even though the property owner 
was not a mining operator and did not create the problem. In response, 
the property owner has taken efforts to clean up the property as best 
he can, but does not have the resources to complete a full scale mine 
remediation project. The property owner recently said, ``So far we have 
spent over $300,000 of our retirement money, in 1975 dollars, and the 
``well'' is nearly dry.''

                         ATTEMPTED REMEDIATION

    In 1995 Contra Costa County contracted with a team from the 
University of California at Davis, lead by Dr. Darryl G. Slotten, to 
study and provide an assessment of mercury in the Marsh Creek 
watershed. The study showed that approximately 90 percent of the 
mercury in the watershed originates from the piles of tailings at the 
abandoned mercury mine. Based on the study, Contra Costa County applied 
for a Calfed grant in 1997 to remediate the mercury mine and reduce the 
mercury transported from the mine to the downstream watershed and into 
the Bay/Delta system. Our County Counsel and Risk Manager reviewed the 
grant in light of the lawsuit that the East Bay Municipal Utility 
District was facing with the remediation work they had done at the Penn 
Mine site and concluded that our county would be exposed to liability 
if the project was built. As a result, we withdrew the grant. Our 
sentiment was summed up in a staff memo that said, ``It is sad that we 
can't try to help this problem, but we cannot risk getting into a 
situation that costs the county $5 million plus huge attorney bills 
like it did the East Bay Municipal Utility District''.
    The Flood Control District is still interested in remediating the 
mine and we are confident we can get the grant funds to do so. The 
local watershed council in the Marsh Creek watershed is a stakeholder 
group that includes several local environmental groups and is very 
supportive of our efforts to remediate the mine. The property owner is 
also very supportive of our efforts. The barrier to us implementing the 
project is liability.

                       GOOD SAMARITAN INITIATIVE

    Understanding that liability exposure was the fundamental issue 
preventing us from participating in remediating the mine, Contra Costa 
County partnered with the Natural Heritage Institute and the cities of 
Oakley and Brentwood for a grant in 2000 that sought to solve the 
liability problem. This grant application was unsuccessful. Still 
interested in pursuing the remediation of the mercury mine, last year 
we partnered with Sustainable Conservation, a non-profit organization 
with experience in the arena of liability exposure with environmental 
projects. This has lead to discussions with EPA on their Good Samaritan 
Initiative and the prospect of emulating the Trout Unlimited cleanup 
project in the American Fork River watershed in Utah.
    The Good Samaritan Initiative is based on EPA's administrative 
authority to issue an Administrative Order and Consent. This is 
intended to be used in enforcement actions for liable parties. The 
difference is we are not a liable party. We are interested and willing 
to help clean up the mine site, but we don't legally have to. Since the 
Administrative Order and Consent is an enforcement tool, it would take 
an inordinate amount of our staff time and resources to modify it to be 
used for voluntary work. The other concern we have is that throughout 
the negotiation process to draft the Administrative Order and Consent 
there is no public input. In our experience, projects that have no 
public input end up creating huge problems later on. When the public 
ultimately finds out about the project, we have to spend an inordinate 
amount of staff time and resources to change the project design based 
upon subsequent public input. As a result, we will not sponsor a 
project development process without public input.
    We support legislation specifically tailored to agencies cleaning 
up mines on a voluntary basis. This would be much better than the 
current attempt to modify an existing enforcement tool to achieve the 
same purpose.

                            LIABILITY ISSUE

    Our liability exposure occurs in at least two ways. One is under 
the Clean Water Act. This would be similar to the situation the East 
Bay Municipal Utility District (EBMUD) found themselves in after 
working on improving the Penn Mine drainage. EBMUD worked with the 
State's Regional Water Quality Control Board (RWQCB) in developing a 
remediation plan for the mine site. The remediation work, which was 
completed in 1978, reduced the pre-project copper discharge from an 
average of 64,000 pounds per year to an average of 13 pounds per year. 
An environmental group sued claiming that EBMUD should have taken out a 
National Pollutant Discharge Elimination System (NPDES) permit. The 
courts agreed and found that in performing the remediation work EBMUD 
should have obtained a NPDES permit, then followed the NPDES 
requirements to improve the discharge to current water quality 
standards. After the court case, EBMUD and the RWQCB worked on a 
follow-up remediation plan that brought the site back to pre-mining 
conditions at a cost of approximately $10 million.
    There is also liability exposure to the county under the Federal 
Comprehensive Environmental Response, Compensation and Liability Act 
(CERCLA). This law imposes liability for response costs upon owners and 
operators for the release of hazardous materials from a facility.

                                SUMMARY

    California's State Water Resources Control Board has identified the 
entire length of Marsh Creek, from the mine site to the Sacramento-San 
Joaquin Delta, as an impaired water body for mercury and heavy metals 
under Section 303(d) of the Clean Water Act. The San Francisco Bay 
Regional Water Quality Control Board is currently developing a total 
maximum daily load (TMDL) for mercury in the Bay Area. The TMDL will 
provide a long range plan and goals for reducing mercury in the 
watersheds that drain into San Francisco Bay. With the Mt. Diablo 
mercury mine being one of the important sources of mercury into the 
bay, it will be imperative to remediate the mine tailings and prevent 
further discharge of mercury from the abandoned mine site.
    Contra Costa County and the Contra Costa County Flood Control and 
Water Conservation District have been interested in remediating the 
mercury mine in our county for the last fifteen years. We are confident 
that we will be able to obtain the grant funding necessary to remediate 
the mercury mine. Every granting entity we have talked to is extremely 
excited about the prospects of the Flood Control District remediating 
the mercury mine. We are ready, willing and able to fix a source of 
pollution in our county once the issue of liability exposure is 
addressed. We strongly support the efforts of EPA and Congress to adopt 
legislation that would eliminate our liability exposure and allow us to 
improve the water quality for the residents of Contra Costa County and 
downstream San Francisco Bay Area.
                               __________
  Statement of Terry A. Harwood, Former Executive Director, Hazardous 
 Materials Policy Council, USDA; Former Chief Environmental Engineer, 
                                  USFS

    Good morning Mr. Chairman and members of the committee. I thank the 
Committee for this opportunity to testify on the issue of cleanup of 
abandoned mines and mining related contamination. This issue is and has 
been a major focal point of my professional life for over twenty years. 
I managed the abandoned mine cleanup programs in USDA and the
    Forest Service at the national and regional level. This experience 
included managing the programs as well as on-the-ground cleanup 
activities at hundreds of sites. I continue to be professionally 
involved in cleanup of mining related contamination and natural 
resource damage restoration after retirement from Federal service.
    The intent of this hearing is to consider whether potential 
liability deters abandoned hard rock mine cleanup. Our attention is 
focused on the potential for ``Good Samaritans'' to assist in the 
cleanup process. This is not the right focus. This approach runs the 
risk of us ignoring the monster in the room which is the lack of 
sufficient commitment and funding by State and Federal Governments and 
industry to adequately address the task of cleanup. During the years 
that I managed the abandoned mine programs in USDA, funding levels were 
never increased from Fiscal Year 1995 to the day I retired in 2002 and 
those funding levels have subsequently been cut. There are thousands of 
abandoned sites to deal with and at current funding levels the program 
will take hundreds of years. The potential for good intentioned, 
technically qualified Good Samaritans to make a discernable impact on 
this huge problem is highly questionable. There seems to be an attitude 
that volunteerism will offset real commitment by Government and 
industry to deal with mining related environmental problems.
    I could spend a great deal of time relating all of the abandoned 
mine problems and challenges to cleaning them up and how the problems 
run from rather small environmental issues on remote public lands to 
massive complexes in Idaho and Montana affecting human health and large 
eco-systems. Others testifying today may outline those issues and 
numbers more thoroughly.
    One of my major concerns is while attempting to deal with alleged 
impediments to voluntary action we hide from public discussion and 
consideration the really important issue, the lack of adequate funding 
and commitment by Government and industry
    But this is not my greatest concern. The proposed legislation may 
be an attempt to hide the true nature of cleanup challenges with a 
gross simplification or disregard for the science and engineering 
needed to insure that we end up with environmental improvement. 
Effective cleanup actions require a professional honest intentioned 
approach to the problem, often times a high level of expertise and 
substantial resources. Improperly regulated Good Samaritans will not 
get the job done. After review of S. 1848 and S. 2780, I see an attempt 
to remove most environmental regulation from potential Good Samaritan 
operations as an answer to the fear of liability issue. This can lead 
to degraded environmental conditions after the volunteer action is 
undertaken. The schemes outlined in the proposed legislation do not 
protect us from things getting substantially worse.
    For example, with S. 1848, we would regress to a time when there 
was little control over environmental disturbance activities, only the 
good intent of the party taking the action. This is the reason we find 
ourselves with the current environmental mess. The bill is 
appropriately numbered, because 1848 was a time in history when we did 
not give much credence to the effect our activities had on the 
environment.
    Let us also discuss the type of Good Samaritan we may be talking 
about. For example, they could be a conservation group whose only 
intent is to assist the governments with no profit in mind, they could 
be a developer concerned about the impact of contaminated abandoned 
mine sites on a project they are involved in, or they could be a mining 
company that believes they can reprocess mine wastes in a profitable 
manner. As metals prices escalate, there is more potential for 
speculation and remining proposals. Under both bills you could have a 
situation in a mining district where a mining company operating a new 
or existing facility would be required to meet all of the appropriate 
environmental regulations while another company operating at a 
previously abandoned site would be shielded from critical environmental 
regulation. The remining operations can have the same potential for 
environmental impact as new mining operations where hazardous chemicals 
such as cyanide are used in leaching operations. There can be 
activities where there is no difference between a new operation and a 
remining operation.
    Both bills are rife with other problems, for example:

     No adequate provision for the development of regulations 
for permitting;
     No environmental accountability. The legislation says that 
projects have to result in improvement to the environment. The 
improvements are not defined and normal standards are waved by the 
legislation;
     Weak or non-existent language to prevent collusion between 
parties liable for cleanup and so called Good Samaritans exempted from 
environmental regulation;
     No recognition of the mature abandoned mine cleanup 
programs in the Federal land management agencies. Enabling EPA to issue 
permits on Federal public lands in conflict with the authorities 
granted under CERCLA in EO 12580;
     Creation of an unnecessary new Federal program within EPA 
for permitting voluntary actions; and
     The potential for States to permit activities on Federal 
public lands without fully accounting for Federal resource issues, to 
name a few.

    The supposed intent of this discussion and the proposed legislation 
is to deal with disincentives to voluntary cleanups because of 
potential liability. What the proposed legislation does is eliminate 
most if not all environmental regulation and safeguards from volunteer 
activities.
    There is a better solution. There seems to be the idea that under 
current environmental regulation we must hold potential Good Samaritans 
accountable to the same remedial cleanup standards as those who caused 
the contamination and that this creates a strong disincentive to 
voluntary cleanup. Experience tells me that we can use incremental 
removal actions as defined under CERCLA to work toward final cleanup 
standards and that each removal action does not need to result in the 
final standard. It just needs to be done in a manner that insures that 
the removal action does not affect our ability to meet final standards 
in the future and that it has positive results.
    This can be done under current CERCLA regulations through the use 
of a Good Samaritan Administrative Order on Consent (AOC). With this 
process we could insure that appropriate environmental regulations were 
considered, we could address the liability question for the Good 
Samaritan, protect the environment from the activities of an 
unscrupulous or highly speculative party acting as a volunteer, and not 
need to create an entirely new program in EPA. This would also 
recognize the authority and ability of the States and Federal land 
management agencies to use this tool as well.
    This would require that the EPA and Federal land managers with 
CERCLA authority develop a model Good Samaritan AOC working with 
potential volunteers and that there be a commitment by these agencies 
to not allow the process to bog down in a bureaucratic swamp. It could 
result in a volunteer program that assists in working toward a final 
cleanup standard while relieving Good Samaritans from the fear of 
liability.
    Thank you for the opportunity to discuss my concerns and 
recommendations with you. My hope is that the nation is not misled into 
thinking that a solution to the Good Samaritan liability issue through 
currently proposed legislation is a meaningful solution to the 
abandoned mine problem. It is not. Far from it, with the legislation 
proposed, we run the risk of substantially adding to our environmental 
problems by creating a program where necessary scientific investigation 
of site conditions is not performed; development of regulations and 
cleanup standards is non-existent or weak; parties looking to make a 
buck can tear into these sites with little or no regulatory consequence 
to their behavior; and, even with the best of intentions, the States, 
Federal land managers and the EPA will end up with a larger mess to 
deal with.
                                 ______
                                 
Response by Terry A. Harwood to Additional Questions for Senator Inhofe

    Question 1. You speak a great deal about the AOC reached with Trout 
Unlimited as the possible solution to the issue of liability deterring 
the cleanup of abandoned hardrock mine sites. However, the AOC 
addresses only Superfund Liability and the site at the American Fork 
Canyon did not involve any discharges into a navigable waterway. Are 
you aware of a means to address Clean Water Act liability, an issue at 
the center of proposals introduced by Senator Baucus (107th Congress), 
Co-sponsored by Senator Minority Leader Reid in each of the past three 
Congresses and sponsored this Congress by Senator John Salazar, and 
separately by Congressman Ken Salazar?
    Response. I did not speak extensively in either my written or oral 
testimony concerning an AOC reached with Trout Unlimited in American 
Fork Canyon, Utah, nor did I ever mention Trout Unlimited. I am fully 
aware of the conditions and circumstances involved in American Fork 
Canyon Mining District because that site was placed on the USDA and 
Forest Service CERCLA program of work by my staff long before EPA and 
Trout Unlimited were ever involved. The project is a cooperative effort 
by EPA and the Forest Service because they were required to work 
together at this mixed ownership site containing both private and 
Federal lands. What I did speak about and recommend was that EPA and 
the Federal Land Management Agencies with CERCLA authority develop a 
Good Samaritan AOC process using a model AOC that would address all 
liability issues for legitimate volunteers while insuring that 
appropriate environmental regulations were considered and human health 
and the environment were protected. CERCLA and the National Contingency 
Plan allow for certain provisions that can mitigate Clean Water Act 
liability under a CERCLA AOC.
    Incremental CERCLA Removal actions or interim Remedial actions are 
used at many sites to work toward final cleanup standards and the 
actions of a Good Samaritan can be treated as one of these steps, not 
making the volunteer necessarily liable for final standards. Most 
abandoned/inactive mine cleanup actions are not Superfund listed sites 
and the process I recommend and used successfully for years in the USDA 
and Forest Service results in incremental environmental cleanup 
accomplishment while working toward the goal for achieving final 
standards.
    My testimony addressed the language in S.1848 and S.2780 and 
testimony by others given during the hearing, not other legislation 
proposed by Senators Baucus and Reid or Congressman John Salazar. If 
those proposals allow for the elimination of environmental regulations 
concerning the cleanup of abandoned mines or some open ended permitting 
process, my comments on them would be similar.

    Question 2. Mr. Harwood, you agreed with Senator Boxer's claim that 
S1848 and S. 2780 rollback our environmental protections. The cleanup 
standards in these bills are similar to that proposed by Congressman 
Ken Salazar in his legislation praised by your fellow panelist Ms. 
Smith. It is also similar to that proposed by Senator Baucus in 107th 
Congress. Further, the Clinton Administration's Assistant Administrator 
for Water supported the cleanup standard in Senator Baucus' bill, 
stating ``a permit may only be issued where it is demonstrated, with 
reasonable certainty, that improvement in water quality will take place 
to the maximum extent practicable taking into consideration the 
resources available to the remediating party.'' Are you suggesting then 
that Senators Baucus and Reid as well as Congressman Salazar and the 
Clinton Administration supported rolling back environmental laws?
    Response. My testimony concerned the language in S. 1848 and S. 
2780 and testimony by others at the hearing and the removal of 
environmental control over the acts of potential Good Samaritans 
working at abandoned mine sites. I am very concerned as to how the EPA 
would implement such an open ended permitting process where so called 
good intent would trump compliance with environmental regulations. I am 
also concerned that the permit issuing process would require more time 
than the use of a properly written model Good Samaritan AOC. Other 
concerns and comments I have are included in my testimony.
    As far as the intent of the testimony of Velma Smith concerning 
Congressman John Salazar's proposed legislation involving the Upper 
Animas River in Colorado, I am not in a position to comment on her 
intent and questions about her testimony could best be answered by Ms. 
Smith.
                                 ______
                                 
      Response by Terry A. Harwood to an Additional Question from 
                            Senator Jeffords

    Question. Can you give a few examples of successful abandoned mine 
clean-ups conducted within the scope of the existing authority under 
CERCLA?
    Response. Following is a partial list of successful abandoned mine 
cleanup actions involving the USDA and Forest Service. The majority of 
the sites were not listed on the Superfund list and a most were cleaned 
up under USDA and Forest Service CERCLA authority or were joint EPA/
USDA actions on mixed ownership sites containing private and Federal 
lands. Some were performed by the Potentially Responsible Parties 
(PRP), some using Federal and State funding, and some work performed by 
the agencies utilizing reclamation bond funds and CERCLA settlement 
funds from the PRPs.
                               __________
  Statement of Stephen L. Johnson, Administrator, U.S. Environmental 
                           Protection Agency

    Good morning Mr. Chairman and members of the committee. 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 the Good Samaritan legislation before 
the committee today is the embodiment of this cooperative conservation 
philosophy.
    First, I want to thank you, Mr. Chairman, for introducing, by 
request, S. 2780--the ``Good Samaritan Clean Watershed Act.'' S. 2780 
is the Administration's legislative proposal to encourage voluntary 
cleanup of abandoned mines. I also want to commend Senator Allard and 
Senator Salazar and their colleagues for their legislative efforts to 
date. Finally, I would be remiss if I failed to acknowledge the long-
term efforts of the Western Governors Association to address this issue 
as well. We hope that this Committee reports out, that Congress passes, 
and that the President signs into law S. 2780, or similar legislation, 
this year. We pledge to work with you to make that happen.

                       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, 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. 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

    Mine drainage and runoff problems can be extremely complex and 
solutions are often highly site specific. 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 clean up 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.
    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 non-Government entities 
and individuals. Last August, as part of the President's Cooperative 
Conservation conference, I announced our Good Samaritan Initiative as a 
means to encourage more effective voluntary efforts to remediate damage 
from abandoned mines.
    This Good Samaritan Initiative accomplishes the objectives of 
cooperative conservation by clearing legal roadblocks and empowering 
communities and grass-roots organizations to confront environmental 
challenges. The initiative equips America's eager army of citizen 
conservationists with important tools to protect our watersheds.
    The first project under the Agency's Good Samaritan Initiative is 
the cleanup of an abandoned mine in Utah's American Fork Canyon. We are 
working with the volunteer group Trout Unlimited (TU) and the private 
landowner who did not cause the pollution. 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. 
Restoration of the American Fork is part of an ambitious multi-year 
effort by TU to draw attention to the problem of abandoned mines in the 
western United States while also identifying solutions. EPA has learned 
from the experience of the TU project and is putting those lessons to 
good use. This is a win-win situation for the environment and all 
involved and shows how cooperative conservation--placing a premium on 
collaboration and cooperation over confrontation and litigation--can 
accelerate environmental protection.

                   GOOD SAMARITAN CLEAN WATERSHED ACT

    The purpose of the Administration's ``Good Samaritan Clean 
Watershed Act'' bill is 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. 
This bill is one of several cooperative conservation legislative 
proposals that will be submitted by the Administration this year.
    This bill 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 address the 
issue, 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.

      Responses by Stephen L. Johnson to Additional Questions by 
                             Senator Inhofe

    Question 1. Can you please describe the types of discharges 
occuring at the American Fork Canyon abandoned mine site? Does the site 
involve any water quality discharges or is a ``dry site''?
    Response. While the abandoned mine does contain a small draining 
adit, the clean-up activities by Trout Unlimited (TU) at the site 
covered by the Administrative Order on Consent (AOC phases 1 and 2) 
invole only the removal and disposal of contaminated mine tailings, 
which are contributing to the leaching of heavy metals. The clean up 
activities do not include the adit, consequently, TU is not required to 
obtain a Clean Water act.

    Question 2. Two witnesses have argued that the AOC the Agency 
reached with Trout Unlimited can be used as a model to clean up the 
roughly 100,000 abandoned hardrock mine sites that the Western 
Governors Association has estimated are causing water quality 
degradation. However, the AOC only addressed Superfund liability. Can 
as AOC be written to address Clean Water Act liability?
    Response. While an AOC can be written in some cases to mitigate 
Clean Water Act liability, an AOC does not automatically provide a 
blanket waiver of liability. For all Superfund responses actions, the 
EPA must consider all applicable or relevent and appropriate 
requirements (ARARs) that may apply to a particular site. The potential 
applicability of Clean Water Act requirements must be decided on a 
case-by-case basis. EPA has the authority and may decide to waive such 
requirements. In such case, the AOC would mitigate Clean Water Act 
liability consistent with the extent of the Water.
                                 ______
                                 
      Responses by Stephen L. Johnson to Additional Questions by 
                            Senator Jeffords

    Question 1. Under the EPA legislation, you limit the statutes that 
may be waived under the permit scheme envisioned for Good Samaritan 
mine clean-ups to Clean Water Act and Superfund. Why did you exclude 
the statutes that were included in S. 1848
    Response. The Administration's legislation is narrowly targeted to 
remove the most significant disincentives to voluntary clean ups. EPA 
believes that the Clean Water Act and Superfund pose the greatest 
disincentive to voluntary actions. EPA does not believe that other 
Federal, State or local laws, as reflected in S. 1848, create legal 
road blocks to voluntary clean ups.

    Question 2. The EPA IG reported recently that there were 200,000 
abandoned mines nationwide. You are testifying today that there are 
about 500,000 such mines. Can you identify what assessments EPA has 
conducted and what information the Agency is using to develop the 
500,000 estimate? How many of those mines impact water quality, and 
what are the primary contaminants at issue?
    Response. While a complete and accurate inventory of abandoned 
mines has never been prepared, the Mineral Policy Center concluded in 
1995, based on a survey of State and Federal Agency database, that 
there are over 557,000 abandoned hardrock mines nationwide. The Bureau 
of Land Management (BLM) in 1996 estimated that there are approximately 
70,000 abandoned hardrock mines sites (AMLs), encompassing over 300,000 
features, on BLM-administered lands. The Western Governors Association 
has also estimated that at least 400.000 abandoned mine sites exist in 
the West. EPA estimates thousands of stream miles have been impacted by 
acid mine drainage (AMD) which, depending upon the site, may include 
heavy metals such as lead, copper, zinc, arsenic, mercury, and cadmium. 
The former U.S. Bureau of Mines estimated that 12,000 stream miles and 
180,000 acres of lakes in the West have been impacted by AMD.

    Question 3. Response. Recently, the GAO recommended that EPA issue 
rules under CERCLA section 108(b) requiring mining companies to 
establish financial assurances in advance of developing a site that 
would ensure that funds were available when required for clean-ups. 
Please explain why EPA has not previously issued this statutorily 
required rulemaking, and what your plans are with regard to completing 
this rulemaking in the future. If the Agency does not plan to complete 
a rulemaking, please provide your justification.
    Response. Congress did not establish a date for promulgation of a 
rule under CERCLA section 108(b). EPA has not yet made a decision on 
when to commence rulemaking under CERCLA section 108(b). EPA currently 
has underway analysis of data that lead to a decision on the timing of 
such a rulemaking. EPA anticipates that the first part of this 
analytical effort will be available later this year.

    Question 4. How many abandoned mines does EPA estimate are 
affecting water quality and upon what does the Agency base that 
assessment?
    Response. The Western Governors Association has estimated that 
approximately 20 percent of abandoned hardrock mines are contributing 
to water quality impacts. This information was based on two intensive 
priority watershed evaluations by Federal land managers. EPA, in its 
May, 2000 report entitled, ``Liquid Assets 2000: American's Water 
Resources at a Turning Point,'' estimated that about 40 percent of 
headwaters in the West have been impacted by discharges from abandoned 
mines. The former U.S. Bureau of Mines has estimated that 12,000 stream 
miles and 180,000 acres of lakes and reservoirs in the West have been 
impacted by abandoned mines.

    Question 5. Why did the EPA propose a stand-alone permit scheme for 
Good Samaritan clean-ups rather than incorporate permitting into the 
Clean Water Act or other statute?
    Response. Good Samaritan legislation is intended to provide 
volunteers with targeted relief from liability that may arise from one 
or more statutes, such as the Clean Water Act and Superfund. Offering 
this protection would require either amending these existing statutes 
or, alternatively, providing stand-alone legislation that would provide 
liability protection through a streamlined permitting program.

    Question 6. Why did the EPA propose a permitting scheme executed by 
the States rather than by EPA?
    Response. The permitting structure in the legislation is modeled 
after and builds upon the success of the National Pollutant Discharge 
elimination System (NPDES) permitting program under the Clean Water 
Act. Forty-five States currently have the authority to administer the 
Federal NPDES permitting program. Similarly, the Good Samaritan 
legislation provides for a Federally administered permitting program 
for the clean up of abandoned hardrock mines that States may obtain 
authorization under the legislation.

    Question 7. During the hearing, Mr. Scott Lewis from AngloGold 
Ashanti testified that it would be a good idea to require that States 
have ``robust'' programs before they received authority to issue good 
samaritan permits. Does the EPA believe that a State should demonstrate 
some minimum basic proficiencies, such as having a State-run NPDES 
program under the Clean Water Act, before receiving the authority to 
issue good samaritan permits?
    Response. Similar to the process for authorizing States to 
administer an NPDES permitting program, the Administration's Good 
Samaritan legislation establishes threshold requirements before a State 
or tribe would be authorized by EPA to administer the permitting 
program. Threshold requirements include demonstrating that the State or 
tribal program (1) is at least as stringent as the Federal program, (2) 
provides for judicial review of permits that would safeguard public 
participation in the permitting process; and (3) would ensure that the 
State and tribes requirements are met before EPA will approve a State 
or tribe to administer the permitting program. The capacity of States 
and tribes to properly administer a Good Samaritan permitting program 
is essential to the effective and efficient clean up of these abandoned 
mines.

    Question 8. What were the major time constraints in executing the 
AOC for Trout Unlimited in the American Fork clean-up?
    Response. Substantial time and resources were devoted by EPA Region 
8 and Headquarters, DOJ, and TU to negotiate the terms and conditions 
of the administrative order on consent related to, among other items, 
payment of response costs, site access, reservations of rights, 
covenants not to sue, indemnification, and contribution protection. The 
AOC required a little over a year to complete, although the majority of 
the work occurred during the last 6 months. The TU AOC is one of the 
first times that an administrative order on consent has been used with 
a nonliable party that is not also a bona fide prospective purchaser. 
Therefore, a number of legal and policy issues of first impression had 
to be fully considered and decided.

    Question 9. In 2000, the EPA issued a report on abandoned mine 
sites. This report noted that there are thousands of inactive and/or 
abandoned mine sites. Many of these sites create significant 
environmental problems, such as acid drainage, metals contamination of 
ground and surface water and sediments, sedimentation and cyanide 
releases. In 2000, 70 of these sites were listed on the National 
Priorities List. The EPA has determined conclusively that these 
abandoned mine sites pose significant environmental impacts. Why then 
is the EPA proposing that the cleanup of these sites be subject to 
broad regulatory flexibility? The environmental risk posed by these 
facilities remains the same.
    Response. The purpose of the regulatory flexibility under Good 
Samaritan legislation is to encourage non-liable parties to accelerate 
the mitigation of the environmental risks posed by these abandoned 
mines. The overwhelming majority of abandoned hardrock mines are small 
to medium size sites. The Administration's Good Samaritan legislation 
is aimed principally toward these small and medium sites. Of the 
estimated hundreds of thousands of abandoned and inactive hardrock 
mines sites, only 83 are currently on the NPL. Mines sites on the NPL 
are not eligible for a Good Samaritan permit except where the 
permitting authority determines, on a case-by-case basis, that the 
remediation project is not inconsistent with any other planned clean up 
at the site and will accelerate environmental improvements.

    Question 10. Does the EPA believe that receiving waters from a good 
samaritan clean-up involving water contamination should be used for 
drinking water if the SDWA does not apply to such clean-ups?
    Response. Drinking water that is provided to consumers by public 
water systems must meet the requirements of the Safe Drinking Water 
Act, regardless of the source of drinking water. The Administration's 
Good Samaritan legislation would not affect any SDWA requirements and 
would thus have no adverse effect on drinking water. Furthermore, 
because the legislation will accelerate the clean up of discharges from 
abandoned mines, we expect any effects on drinking water sources would 
be positive.

    Question 11. Under the permit scheme envisioned by the EPA, it 
appears that the determination of whether or not there is a responsible 
party for an abandoned mine is dependent solely on the applicant. Why 
does the EPA believe that potential good samaritans, some with limited 
resources, will have the ability to conduct this investigation with any 
degree of confidence that it is thorough and accurate? Does the EPA 
envision any type of State or Federal investigation or validation of 
this investigation occurring as part of the regular permitting process? 
If so, what could actually be accomplished within the 120 day permit 
review period prescribed by the Agency's legislation?
    Response. The availability of information regarding potentially 
liable parties will vary depending upon the site. A Good Samaritan 
applicant will be required to describe, based upon a reasonable 
inquiry, all persons that may be legally responsible for remediation at 
the site and certify that the applicant knows of no person who is 
potentially legally responsible for the remediation of the mine site 
person who is potentially legally responsible for the remediation of 
the mine site (excluding the owner of the mine site who did not cause 
or contribute to the historic mine residue). Information regarding 
historic property use may be obtained,for example through conducting 
interviews and obtaining chain of title searches, tax records, and city 
or regional directory abstracts that would reveal site and operational 
histories. Much of this data is now automated and can be cost-
effectively obtained through third party vendors specializing in 
providing site historic research data. Any potentially responsible 
party not identified by this inquiry is, as a practical matter, 
unlikely to take responsibility for cleanup of the site in the 
foreseeable future. Thus, even if such a potentially responsible party 
exists, clean up by the Good Samaritan will accelerate environmental 
progress. Nonetheless, regardless of the protection afforded the Good 
Samaritan, all parties responsible for the contamination will remain 
liable.

    Question 12. Does the EPA believe that any improvement in water 
quality, no matter how small, would justify the issuance of a good 
samaritan permit?
    Response. The EPA believes that improvements to water quality, even 
if incremental in nature, help move us one step closer to achieving 
water quality standards and, as such, are preferred over no 
improvements at all.

    Question 13. In your proposal, the EPA provides for cases where a 
permittee's actions exacerbate the pollution from historic residue as a 
result of gross negligence or intentional misconduct. Can you identify 
the baseline conditions that the Agency envisions would be used for 
such a determination, who measures those conditions, at what point such 
measurements would be taken in the permit process, where such data 
would be maintained, and who would conduct follow-up monitoring to 
determine if historic residue was in fact exacerbated? Can you give an 
example of what you believe ``gross negligence or intentional 
misconduct'' would be under a good samaritan clean-up?
    Response. The baseline condition would be the condition of the site 
at the time the Good Samaritan commences clean up. What constitutes the 
baseline and the amount of data needed to determine the baseline will 
vary from site to site and will depend largely upon such site specific 
factors as the location and size of the mine, its proximity to 
sensitive receptors, the nature and extent of contamination, and the 
scope and complexity of the clean up. The permitting authority would be 
expected to consider these factors, among others, in determining how 
much baseline and monitoring data is appropriate. Whether a particular 
action does or does not meet the standard of care (e.g., gross 
negligence, intentional misconduct) is a determination that a court 
will act in good faith to clean up sites in accordance with the Good 
Samaritans will act in good faith to clean up sites in accordance with 
the terms of their permits. However, we have included the provision you 
reference as a ``safety valve'' to address exceptional circumstances 
where this does not occur.

    Question 14. Does the EPA envision that the life of a permit would 
include any long-term groundwater monitoring, and if so, would remining 
be permitted on the permitted site outside the protections of 
environmental laws for the duration of the life of the permit?
    Response. Good Samaritan projects that propose recycling of 
tailings of waste piles would generally be expected to include baseline 
and monitoring data as part of the proposed remediation work plan to 
ensure that site conditions improve. Only those activities identified 
in a permit application and undertaken pursuant to the approved permit 
are eligible to receive liability protection; any activities beyond 
this are subject to all applicable environmental laws. The precondition 
for issuance of a Good Samaritan permit is environmental improvement 
relative to the status quo.

    Question 15. The EPA's proposal would allow ``temporary 
suspensions'' of work under a good samaritan permit. How long does the 
EPA envision these lasting, would all work, including remining, be 
required to stop during this period, and why didn't the Agency apply a 
finite time limit for such temporary suspensions.
    Response. The legislation allows the permitting authority to 
approve temporary suspensions of site work due to ``adverse weather and 
other circumstances.'' The purpose of this provision is to recognize 
and allow for acts of God or other circumstances (e.g., labor disputes, 
work stoppage) that may cause a delay in the project schedule and may 
merit allowing a delay in clean up. The duration of the temporary 
suspension would be appropriate to the circumstances, as determined by 
the permitting authority.
                               __________
 Statement of Scott A. Lewis, Director, Environmental and Governmental 
              Affairs AngloGold Ashanti North America Inc.

                              INTRODUCTION

    My name is Scott Lewis. I am the Director, Environmental and 
Governmental Affairs for AngloGold Ashanti North America Inc. Our U.S. 
offices are located in Denver. One of our subsidiaries operates a large 
surface mine and processing facility that recovers gold and silver 
within a 115-year old mining district approximately an hour southwest 
of Colorado Springs, Colorado. AngloGold Ashanti Ltd., our parent 
company, presently has a total 21 operations on four continents.
    I have been an environmental professional for AngloGold Ashanti and 
the predecessor companies for over 15 years, with over 23 years of 
environmental experience in the mining industry and almost six years of 
formal college training in the environmental sciences. In these 
capacities I have had an opportunity to examine and evaluate a number 
of orphaned sites in the west that were created decades before modern 
environmental laws were enacted. Today, mines of all types are required 
to comply with strict environmental and reclamation requirements. While 
many of the orphaned sites are primarily safety hazards, others 
represent varying degrees of environmental impairment. Some of these 
sites would be amendable to relatively straight forward reclamation, 
while others are considerably more complicated and expensive to fix. 
The sad reality is that most of these sites will likely remain as is 
without thoughtful Good Samaritan legislation. Orphaned sites that are 
cleaned-up in the absence of Good Samaritan legislation will probably 
be limited to those on land owned by and in close proximity to active 
mining operations. We have received awards for such work in the 
vicinity of our Colorado operations. Another interesting opportunity 
that we have discovered with respect to orphaned sites that represent a 
low risk to human health and the environment is the attractiveness of 
these areas for historic tourism. For instance, we have supported 
efforts of a local economic development group to build trails on our 
land within the historic mining district to enable both tourists and 
local residents to gain access to view a number of historic buildings, 
foundations, and headframes. Similar opportunities may arise with 
certain Good Samaritan projects.
    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 and incentives for a broad 
array of persons or parties, ranging from local, State, and Federal 
agencies to citizen's groups, non-Governmental Organizations, and 
private landowners, extending all the way to corporations, 
partnerships, joint ventures and the like to voluntarily remediate the 
environmental problems caused by others at such abandoned hardrock mine 
lands (``AMLs'').
    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.\1\
---------------------------------------------------------------------------
    \1\ See Western Governors' Association & National Mining 
Association, Cleaning Up Abandoned Mines: A Western Partnership at 8, 
available at www.westgov.org/wga/publicat/miningre.pdf; National 
Research Counsel, Hardrock Mining on Federal Lands (1999) at 72, 
reproduced at http://www.nap.edu/html/hardrock--fed--land/index.html; 
Center of American West, Cleaning Up Abandoned hardrock 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 present 
at an AML and to remediate those 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, should specify the scope and details of the Good 
Samaritan project that will be undertaken. Governmental authorization 
of such projects will ensure that a mining company or other person 
cannot misuse the Good Samaritan permit in order to engage in other 
activities that are not necessary to remediate the site.
    3.Perfection or significant improvement should not always be the 
cleanup 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 will 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.EPA must be given 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 could otherwise be applicable and 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 on its Good Samaritan operations. 
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 mining 
company could potentially make a profit on such activities would 
provide an added free market incentive for companies to clean up AMLs, 
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 
would 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 AMLs 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 AMLs 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 AMLs do not pose 
any environmental or safety problems.\2\ The Center of the American 
West recently concluded that ``only a small fraction'' of the abandoned 
mines are causing significant problems for water quality.\3\ 
Nonetheless, the Federal land management agencies and the States are 
generally agreed that at least some percentage of these AMLs are 
causing or contributing to the impairment of rivers and streams, and 
potential contamination of air and groundwater resources.
---------------------------------------------------------------------------
    \2\ Western Governors' Association & National Mining Association, 
Cleaning Up Abandoned Mines: A Western Partnership at 5, available at 
www.westgov.org/wga/publicat/miningre.pdf.
    \3\ Center of the American West, Cleaning Up Abandoned Hardrock 
Mines in the West (2005) at 31.
---------------------------------------------------------------------------
    At the vast majority of AMLs, 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 AMLs 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 319 
grants or grants under the Brownfields Revitalization Act. Effective 
Good Samaritan legislation can, we believe, provide incentives for a 
diverse assemblage of persons or parties, ranging from local, State, 
and Federal Agencies to citizen's groups, non-Governmental 
Organizations, and private landowners, extending all the way to 
corporations, partnerships, and joint ventures, to partially fill this 
gap and help remediate some AMLs 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 liable or somehow responsible for 
creating the orphaned site from being a Good Samaritan, simply because 
it is a mining company.
    To the contrary, there are good reasons why mining companies should 
be allowed to qualify as Good Samaritans. 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 AMLs are located near active 
mining operations, a mining company would be 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 for which it never had been responsible.
    In fact, the mining industry has been front and center in trying to 
deal responsibly with AMLs. The National Mining Association, in 
cooperation with the Western Governors' Association, initiated the 
Abandoned Mine Land 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 AMLs. 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. Industry has also already spent tens of millions 
of dollars to clean up numerous AMLs throughout the West. Some of these 
efforts are documented in a study published in 1998 by the National 
Mining Association entitled ``Reclaiming Inactive and Abandoned Mine 
Lands--What Really is Happening''.\4\ The NMA study presents compelling 
evidence that given the right opportunity, the mining industry can play 
a significant role in improving the environment at abandoned and 
inactive mines.
---------------------------------------------------------------------------
    \4\ Reclaiming Inactive and Abandoned Mine Lands--What Really is 
Happening, Struhsacker, D.W., and Todd, J.W., prepared for the National 
Mining Association, 1998.
---------------------------------------------------------------------------
    Unfortunately, some Good Samaritan bills introduced over the past 
several years have proposed to exclude mining companies from 
participation as Good Samaritans. There seems to be a view among some 
that, merely by having engaged in mining at other sites, the mining 
industry is somehow ``morally culpable'' for the pollution caused at 
the AML by someone else. That simply makes no sense.
    2. EPA Must Authorize Good Samaritan Projects. Good Samaritan 
projects should be approved by EPA, after prior notice to and comment 
from the public. Such approval should be given only if EPA concludes 
that the project will result in environmental benefits. EPA should also 
be allowed to impose conditions (such as monitoring requirements and 
financial assurance requirements) on the Good Samaritan as a condition 
of its going forward with its project. Approval of the project should 
be embodied in a Good Samaritan permit.
    EPA must be given discretion, on a case by case basis, to relax the 
regulatory and/or liability provisions of Federal and State 
environmental law that might otherwise apply to the Good Samaritan. The 
main obstacle to mining companies and others to conduct voluntary 
clean-ups at AMLs 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 AMLs that are posing significant environmental 
problems. AngloGold Ashanti has, for instance, in the past considered 
taking actions to voluntarily address pollution at a certain inactive 
site near its operation in Colorado, 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.
    Many have argued that the EPA's discretion to relax regulatory 
requirements should be limited to the Clean Water Act and CERCLA. A 
Good Samaritan could easily find itself acquiring liability under other 
environmental acts as well. While NGO's 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 
frivolous suits after the fact for having done exactly what was 
permitted by the EPA.
    To provide an incentive for mining companies and others to 
undertake Good Samaritan efforts, 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 of 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.
    3. 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 at yet still 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.
    AMLs 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 
environmental laws and regulations to legitimate mining projects. Nor 
could they. Under our proposal, a Good Samaritan could not proceed 
without a permit from EPA. Prior to issuing a permit, EPA 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 even absent Good 
Samaritan protections. The permit-issuer will also know whether the 
mining company's proposed project is an operation that will be 
remediating existing pollution, as opposed to merely a for-profit 
operation that is not cleaning up any existing environmental dangers.
    4. 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 otherwise potentially targeted to going to its 
shareholders (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 as well 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 AMLs, 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 
S. 2780 the Good Samaritan Clean Watershed Act introduced by Chairman 
Jim Inhofe (R-Okla.) 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 mining 
companies and others from undertaking investigations and remediation of 
AMLs. 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 would be happy to answer any questions that members of this 
committee may have.

                               __________
Responses by Scott A. Lewis to Additional Questions from Senator Inhofe

    Question 1. Can you please describe your background and current 
position?
    Response. I have been an environmental professional for AngloGold 
Ashanti and the predecessor companies for over 15 years, with more than 
23 years of environmental experience in the mining industry and almost 
6 years of formal college training in the environmental sciences. Mined 
land reclamation planning, design and evaluation have been an important 
part of my responsibilities as well as being an area of great interest 
to me throughout my professional career as well as during college. It 
is those skills combined with my extensive experience in environmental 
permitting, compliance, and monitoring that have provided the insights 
and background required to recognize important elements ofany Good 
Samaritan legislation.

    Question 2. Further, can you respond to Mr. Harwood's description 
of current mining practices, specifically, were those same practices 
used in the hardrock mines abandoned before modem environmental laws 
and are all sites as complicated as those described by Mr. Harwood?
    Response. Contemporary mining involves sophisticated technologies 
to identify, excavate, process and extract metals from ore that did not 
exist at mines abandoned before modem environmental laws were enacted. 
Global Position System (GPS) technologies, automatic laser leveling 
devices, dispatch systems, communications networks, sophisticated 
containment systems, remote monitoring and control instrumentation, and 
other modem technologies are extensively utilized in the hardrock 
mining industry today to assure compliance with applicable 
environmental permits, regulations, and laws. As indicated in 
mytestimony, there is a full spectrum ofcomplexities associated with 
remediation ofabandoned sites. Some are safety hazards or aesthetic 
impairments that can be rectified with relatively simple methods. 
Others are dry sites requiring contouring, covering with soil, 
revegetation, and perhaps other straight forward stabilization 
techniques. Abandoned sites involving water discharges or encroaching 
upon streams tend to be the most difficult and complex to remediate. 
These are the sites that often require a higher level ofengineering 
design and planning to successfully ameliorate.

    Question 3. Mr. Lewis, can you explain to the Committee how a 
prohibition on a landowner from being a Good Samaritan will affect the 
willingness ofmining companies, and other potential Good Samaritans, to 
clean up abandoned hardrock mines?
    Response. Aprohibition on landowners from being a Good Samaritan 
could actually preclude mining companies and other Good Samaritans from 
cleaning up abandoned sites. Mining companies and other potential Good 
Samaritans are commonly ``passive'' landowners that have purchased, 
acquired, or held onto a property with an abandoned site. Oftentimes, 
the mining company or other potential Good Samaritan never caused or 
contributed to conditions at, or otherwise affected, the abandoned site 
and under these circumstances should not be prohibited from remediating 
that site. Moreover, to ensure control ofa remediation site and to meet 
permit conditions, Good Samaritan mining companies may feel the 
necessity to acquire ownership interest in abandoned sites even if they 
have not previously owned them.

    Question 4. Mr. Lewis, do you have any graphics or pictures showing 
some mine sites that have been or could be remediated?
    Response. Attached as Figure 1 is an example of the types of sites 
that are being voluntarily cleaned up in cooperation with State 
agencies in the absence of Good Samaritan legislation. Figure 2 shows 
the same area after the building, carbon columns, and associated debris 
were removed. Another example of a recently completed voluntary effort 
is provided in Figure 3, where additional backfilling of a surface mine 
was conducted. As shown in Figure 4, this enabled the area to be 
contoured and blended into the surrounding terrain. Voluntary cleanup 
efforts of this nature arc typically relatively straightforward with a 
low risk of future exposure to liability issues. Many of these low risk 
sites are simply visual impairments on the landscape. Larger sites, as 
shown in Figure 5 and Figure 6, with a greater potential for 
environmental damage and possible liability implications will likely be 
avoided by the mining industry and other non-governmental Good 
Samaritans in the absence of meaningful legislation.

    Question 5. You mentioned in your testimony that you believe a 
State must have a ``robust'' program prior to receiving any authority 
to issue a Good Samaritan permit. Can you elaborate on what you believe 
are the basic capabilities a State should be able to demonstrate prior 
to receiving authority to execute a Good Samaritan permit program?
    Response. States with delegated Clean Water Act and solid waste 
management programs that are functioning effectively would be good 
candidates for receiving authority to execute a Good Samaritan permit 
program. The existence of an effective Voluntary Cleanup Program like 
the one that exists within the Colorado Department of Public Health and 
Environment would be another good indicator that a Slate is capable of 
administering a Good Samaritan program.
    Please let me know if you have additional questions or comments. 
Again, I appreciate the opportunity to support legislation that will 
enable the cleanup of abandoned sites that blemish the environment.

[GRAPHIC] [TIFF OMITTED] T2281.026

[GRAPHIC] [TIFF OMITTED] T2281.027

[GRAPHIC] [TIFF OMITTED] T2281.028

[GRAPHIC] [TIFF OMITTED] T2281.029

    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.
    The notice of this hearing is poses the question before the 
Committee as ``whether potential liability deters abandoned hard rock 
mine cleanup,'' and I know that the committee will hear testimony about 
the role of environmental laws in discouraging mine cleanups. I would 
begin, however, by asking you not to be too quick to narrow your focus 
to perceptions of liability as the primary culprit behind lingering 
problems. Rather, we urge you to consider other factors--factors that 
loom even larger in the challenge to clean up abandoned mining sites.
    Consider, first, the sheer size of the universe of abandoned mine 
sites and the diversity of that universe--from relatively modest areas 
of waste rock or small scale tailings piles to vast mining complexes. 
Consider also that the vast universe of abandoned mine sites keeps 
growing larger, even as we sit here today.
    In addition, though I realize you may tell me that I'm in the wrong 
hearing room, we would argue that the single most compelling barrier is 
not regulatory but financial: 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 remind you 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 consider 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 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 
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.
    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.

                             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 
dollars.
---------------------------------------------------------------------------
    \2\ Western Governors' Association, Abandoned Hardrock & Noncoal 
Mines in the West: A Partnership Report, 1998 available online at 
http://www.westgov.org/wga/publicat/minigre.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 2,500.
---------------------------------------------------------------------------
    \3\ U.S. EPA, Office of Solid Waste and Emergency Response, 
Cleaning Up the Nation's 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 
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 Magnitude and Scope of the Issue on 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, 
AZ.

    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. Frequently they 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 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 
Montana 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.''
     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\ U.S. Government Accountability Office, ``Environmental 
Liabilities: EPA Should Do More to Ensure that Liable Parties Meet 
Their Cleanup Obligations,'' August 2005.
---------------------------------------------------------------------------
    Only 2 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\ U.S. Government Accountability Office, ``Hardrock Mining:BLM 
Needs to Better Manage Financial Assurances to Guarantee Coverage of 
Reclamation Costs'', June 2005.
---------------------------------------------------------------------------
               A MATTER OF MONEY, LOTS AND LOTS OF MONEY

    Because abandoned mine inventories have not been completed--and 
indeed may never be--it is difficult, if not impossible, to offer any 
certainty about the likely costs of addressing these problems. Some 
sobering numbers have been put forward, however.
    Earthworks, working with experienced mining engineers, has 
predicted that approximately 15,000 mines would require cleanup of 
water-related problems. The cleanup tab for the full universe of 
abandoned mine sites, according to the group, may run as high as $72 
billion.
    In January 2003, the EPA Inspector General reported that 87 sites 
classified as abandoned hardrock mines or mine-related sites had been 
placed on the Superfund National Priorities List (NPL).\8\ At the time 
of the IG's report, EPA's rough estimate of cleanup costs for these 
specific sites was about $2 billion. Since then, more mine-related 
sites have been added to the list--and many more are possible 
candidates.
---------------------------------------------------------------------------
    \8\ Office of the Inspector General, U.S. EPA, Nationwide 
Identification of Hardrock Mining Sites, March 31, 2004, Report 2004-P-
00005.
---------------------------------------------------------------------------
    Looking beyond these few sites, EPA's Superfund office has 
predicted that somewhere between 7,700 and 31,000 mines will require 
cleanup--either under Superfund or under another program.\9\ An EPA 
report on the cleanup technologies, notes that the need for cleanup 
grows as the public looks increasingly toward rural areas for 
recreation and as some old mining areas are developed for primary 
housing or second homes. Data from several sources cited in this report 
indicate a range of cleanup cost running from $20 to $54 billion, with 
about $3.5 billion of that related to Superfund designated sites.
---------------------------------------------------------------------------
    \9\ U.S. EPA, Office of Solid Waste and Emergency Response, 
Cleaning Up the Nation's Waste Sites: Markets and Technology Trends, 
September 2004.
---------------------------------------------------------------------------
    The Bureau of Land Management estimates that cleanup of abandoned 
mine sites in its jurisdiction may cost as much as $35 billion.\10\ 
Damage on U.S. Forest Service land alone would cost $4.7 billion to 
fix.\11\
---------------------------------------------------------------------------
    \10\ Ibid.
    \11\ Robert McClure and Andrew Schneider, ``More than a century of 
mining has left the West deeply scarred,'' The Seattle Post-
Intelligencer, June 12, 2001.
---------------------------------------------------------------------------
    How do expenditures match up against these figures? According to 
EPA\12\, the total Federal, State and private party outlays for mining 
site remediation have been averaging about $100 million to $150 million 
per year.
---------------------------------------------------------------------------
    \12\ U.S. EPA, Office of Solid Waste and Emergency Response, 
Cleaning Up the Nation's Waste Site: 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 Mokelumne River 
watershed, the same 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 downstream fish and its water source. The Utility 
constructed a small dam, diversion facilities and retention ponds. 
Unfortunately, however, the results fell short.
    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 ``Good Samaritan'' 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\ U.S. 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.
     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.
    In other words, mining problems can be a bear to solve.
    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.\14\ 
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.
---------------------------------------------------------------------------
    \14\ See, for example, ``The Earth's Open Wounds: Abandoned and 
Orphaned Mines,'' Environmental Health Perspectives, Volume 111, Number 
3, March 2003.
---------------------------------------------------------------------------
    These examples are offered, not to suggest that nothing can be done 
to abate the problems of mining, but only to caution against a 
``solution'' that tries to fast-track decisions that should not be 
fast-tracked, that skims over the need for critical baseline data, that 
imposes unreasonable deadlines on those reviewing cleanup plans, or 
that skimps on oversight.
    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.\15\ Many other mine sites 
will require long-term maintenance and vigilance in similar time 
frames.
---------------------------------------------------------------------------
    \15\ Ibid.
---------------------------------------------------------------------------
    These examples also make it clear that a directive to ``do no 
harm'' may be difficult to follow. 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. Financial assurance would add an upfront cost 
to cleanup projects, but that cost would be a small fraction of a 
project's overall cost. It could be subsidized by a bond pool or 
special trust, 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.

                     LIABILITY PLAYS A USEFUL ROLE

    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, in many instances, is driving cleanups.
    In Nevada, a 3,500-acre copper mine has long been known to have 
unreclaimed tailings and other problems, but only in the last few years 
has the surrounding community learned that the old mine site has 
serious problems of radioactive contamination. The course has been 
difficult and it will take many years to clean the site, but progress 
on the site is being made, because the property owner is compelled by 
Superfund liability to proceed.
    In Utah, the Kennecott case is 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 
and in dozens of other cases, cleanup and stabilization happens, not in 
spite of liability, but because of it.

                            CONGRESS CAN ACT

    The problems of abandoned mines are large and difficult, and 
Congress should be wary of simple solutions. Any effort to 
``encourage'' cleanups with exemptions from Clean Water Act 
obligations, or worse still, from Superfund liability, is fraught with 
difficulty.
    If a ``Good Samaritan'' is relieved of achieving Clean Water Act 
standards, what standards must they achieve? Over what time frame? If a 
remedy fails, who bears responsibility? Who can be called upon for 
additional work or for maintaining treatment systems and reclamation 
work? Should there be a size or ``class'' limit on exempted projects--
should the line be drawn at revegetating or removing waste piles? 
Should ``Good Samaritans'' tackle major mining complexes? What data 
should they have in hand to assure that they understand critical 
aspects of water flow and geochemistry?
    It would be nice to think that there's a responsible way to answer 
these questions and make these distinctions in law or by rule, but 
there may not be at this time. Useful generalities are hard to come by, 
and the wrong generalities could take us backwards rather than forwards 
in the quest for cleanup.
    So what to do instead? We have a few recommendations.
    1. Endorse EPA's efforts to use a model consent agreement to 
promote ``Good Samaritan'' projects, and draw on important experience 
in mining cleanups to craft, not a broad exemption, but a major 
demonstration project. Engage one or more States along with all the 
relevant Federal agencies, allowing interested States to look on a 
watershed basis for those areas where they believe that modest, 
voluntary efforts could bring lasting improvements in water quality. 
One option would be to do this in the context of TMDL or Total Maximum 
Daily Load reviews for particular watersheds. A watershed focus can 
assure that the broader context is kept in mind and 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. Within this context, and only 
within this context, allow for alternatives to the traditional National 
Pollutant Discharge Elimination System permits. Provide funding to get 
the demonstration program going, including funds to support a team of 
mining reclamation experts that will act in an advisory capacity to all 
chosen projects and to underwrite financial assurances for dealing with 
unforeseen problems. 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. At that 
point, renew the effort to answer some of the questions I have just 
posed and, if necessary, amend the Clean Water Act to allow for new 
mining cleanup best practices by ``Good Samaritans.''
    2. At the same time, 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.
    3. In addition, boost Federal funding for cleanups and provide for 
coordination and sharing of funds among States, BLM, Forest Service, 
EPA and other appropriate agencies. 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.
    6. Don't tolerate the continued creation of abandoned mine messes. 
Stop the 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.
    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.
    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.
    Again, Mr. Chairman, I appreciate this opportunity to testify, and 
I hope that Committee members find this information and these 
recommendations of help. I look forward to your questions and to 
working with your staff on these important issues.
                                 ______
                                 
Responses by Velma M. Smith to Additional Questions from Senator Inhofe
    Question 1. During questioning from Senator Boxer, you argued that 
there is not a need for legislation to address liability concerns and 
that fear of liability is not really a factor in the cleanup of 
abandoned mines. However, you indicated your full support for 
legislation introduced by Congressman John Salazar which provides a 
legislative solution to fear of liability which is deterring the 
cleanup of a site in Colorado. Just to clarify, is there a need for 
legislation and is the concern about potential liability a legitimate 
concern or not?
    Response. We recognize that some parties who are interested in mine 
cleanup fear entanglement with environmental liability. We do not 
believe that fear of liability, however, is an insurmountable barrier 
to cleanup.
    On the contrary, fear of liability and possible enforcement action, 
in many instances, prompts landowners and other responsible parties to 
clean up abandoned mine problems--under consent agreements worked under 
Superfund, RCRA, or other corrective action authorities. Parties that 
are not currently liable but wish to avoid possible future liability 
also have an incentive to undertake cleanups, and many have done so, 
using prospective purchaser and prospective operator agreements and, in 
some cases, simply taking prudent action on their own to mitigate or 
prevent problems.
    Important work has been done under existing law, for example,

     by OXY Oil and Gas USA at the Copper Basin Mining District 
in Tennessee,
     by Honeywell at the Burlington Mine in Colorado,
     with the help of the Taconite Economic Development Fund in 
Minnesota,
     by Atlantic Richfield, successor to Anaconda, at mines 
like Leviathan and Yerington,
     by the Montana Department of Environmental at the Wickes 
Smelter site and elsewhere,
     under the auspices of the State of Colorado's Voluntary 
Cleanup Program,
     through collaborative efforts of groups such as the 
Dubuque County Conservation Board, the Iowa Natural Heritage 
Foundation, and the Iowa Department of Natural Resources, to deal with 
old lead mining areas, and
     by Rhodia chemical company, an owner of old mine problems 
that worked with the U.S. Fish and Wildlife Service, the San Francisco 
Bay Regional Water Quality Control Board and others to clean up Peyton 
Slough.

    Given these and many other cleanup stories, the variety of options 
for addressing abandoned mine sites, and the host of determined and 
creative individuals and organizations that are making things happen on 
the ground, we do not believe that a legislative ``fix'' is required.
    However, we do agree that additional cleanup funds are sorely 
needed, and Congressman John Salazar's bill, H.R. 5071, provides 
funding for a well-thought out, comprehensive cleanup program in a 
particular watershed in Colorado. This project could serve as a model 
in two respects: one, for careful and comprehensive planning on a 
watershed basis and, two, for a collaborative approach that engages a 
cross-section of the community in long-term cleanup. The Animas River 
Stakeholders Group has already done impressive work in the area over 
the last decade. They have sampled and prioritized 175 draining mines 
and about 160 mine waste piles and determined those areas where 
targeted remediation would provide the most bang for the buck in 
reducing metals loadings to streams.
    The legislation would provide needed funds for the project on a 
cost-share basis. It also includes some carefully drawn leeway with 
regard to meeting particular provisions of Clean Water Act permitting 
requirements. It does not waive the Clean Water Act in its entirety but 
adjusts the requirements of the NPDES permitting section to address 
concerns of the group that they would have to continue to hold a 
discharge permit far into the future. It includes requirements for 
careful assessment, for monitoring and reporting, and for enforcement. 
It allows for sale of materials recovered in the cleanup but requires 
the proceeds of such sales to be returned to cleanup efforts. It does 
not alter the rights of citizens to participate in permit decision-
making, and it doesn't alter Superfund liability or waive any other 
environmental law.
    For these reasons, we think that members of Congress should look to 
this bill as the underpinning of any legislative vehicle on this topic.

    Question 2. Ms. Smith, You indicated that with the AOC model and a 
few pilots abandoned mines could be cleaned up without legislation. 
However, the AOC used in trout unlimited only waived liability under 
Superfund. If the Western Governor's Association is correct and there 
are approximately 100,000 abandoned hardrock mine sites that are 
affecting water quality in thousands of streams and rivers throughout 
the country, will a few pilots and an AOC that doesn't address water 
quality solve the problem?
    Response. While the AOC with Trout Unlimited did not address a 
water pollution discharge directly, it did address water quality. In 
fact, that was the entire rationale for the project: to improve water 
quality and return fish to the impacted stream. In this particular 
case, the water quality improvement was made without creating or 
affecting a direct discharge of pollutants other than that associated 
with non-point runoff, so the order did not need to speak directly to 
Clean Water Act permitting. Many other cases may be similar--where a 
``dry'' cleanup involving removal of debris, regrading or capping of 
contaminated areas or revegetation can bring about water quality 
improvements.
    In other cases, remediation projects will involve surface water 
flows directly, but these may still be handled with orders or 
agreements based on existing Superfund, RCRA or other existing 
authorities. For example, the Yak Tunnel treatment plant at the 
California Gulch mine site operates without a Clean Water Act discharge 
permit but under an agreement worked out through Superfund cleanup 
authorities. The same is true for the treatment plant used for the 
Berkley Pit in Montana.
    On the issue of the extent of the problem, I return to my earlier 
point. Additional resources are needed--not just to ``deputize'' 
thousands of would-be Good Samaritans to do the best they can manage, 
but to help States and communities make and implement strategic 
decisions about cleanup priorities on a watershed basis. There is also 
a pressing need to assure that the mining industry does not continue to 
add to the enormous universe of unreclaimed and polluting sites.

    Question 3. You speak a great deal about the AOC reached with Trout 
Unlimited as the possible solution to the issue of liability deterring 
the cleanup of abandoned hardrock mine sites. However, the AOC 
addresses only Superfund Liability and the site at the American Fork 
Canyon did not involve any discharges into a navigable waterway. Are 
you aware of a means to address Clean Water Act liability, an issue at 
the center of proposals introduced by Senator Baucus (107th Congress), 
Co-sponsored by Senator Minority Leader Reid in each of the past three 
Congresses and sponsored this Congress by Senator Ken Salazar, and 
separately by Congressman John Salazar?
    Response. I understand fully that the discussion of ``Good 
Samaritan'' relief began with the Clean Water Act. Indeed, many of the 
long-time backers of ``Good Samaritan'' legislation have urged Congress 
to limit any liability waivers to the Clean Water Act alone.
    We have heard two primary issues with regard to the Clean Water 
Act.
    One, that a ``Good Samaritan'' may be able to take action to 
improve the quality of an existing discharge but not to the degree that 
the discharge would meet water quality standards.
    Second, that a ``Good Samaritan'' who is truly an innocent 
bystander and with no existing obligation to maintain a permit for the 
discharge does not want to create an obligation to hold an NPDES permit 
far into the future. Since many cases of acid mine drainage will 
continue for decades--if not forever--watershed groups and other third 
parties fear how long they would be tied to an NPDES permit.
    On the first point, I believe--based on my own experience on the 
Virginia State Water Control Board and on a review of much of the 
literature on mine cleanups--that the Clean Water Act allows for 
standards to be adjusted. Regulatory bodies frequently exercise 
enforcement discretion, providing extended compliance time lines and 
interim limits, and, if a strong case can be made, they may grant 
economic variances or waivers. They may make adjustments to use 
designations of affected streams, and create site-specific stream 
standards, where necessary.
    In Colorado, in fact, this discretion has been used so frequently 
and so widely that it has drawn criticism. A Denver Post investigative 
report from 2004 pointed out one mine where ``temporary modification'' 
of standards had been allowed for nearly 20 years.
    The second point is a difficult one, because so much mining 
pollution will remain as a perpetual problem. This point is why we 
believe that the States, local Governments and the Federal land 
management agencies must take a leadership role in cleanup. Where 
perpetual acid discharges are anticipated on land that does not have a 
viable owner, we believe that those agencies must assume responsibility 
for continuing discharges. They must either hold NPDES permits or work 
out agreements with EPA under Superfund authorities to otherwise 
provide for ongoing treatment and discharge. Undeniably, this is a 
burden, but given the existence of the pollution, it is necessary.
    Again, this argues for new funding to assist with these efforts and 
for new regulation to assure that mining activities do not continue to 
create these problems.
                                 ______
                                 
   Responses by Velma M. Smith to Additional Questions from Senator 
                                Jeffords

    Question 1. Am I correct that Good Samaritans, including 
corporations, are already shielded from potential Superfund liability 
from voluntary cleanup efforts as long as they follow existing 
standards under under CERCLA section 107(d)?
    Response. Yes. Potential Good Samaritans--be they State or local 
governments, non-profit organizations or corporations--may avail 
themselves of protections in the law, working with EPA to plan and 
carry out efforts to clean up and restore abandoned mine sites. 
Agreements may be crafted to assure that the Good Samaritan is 
protected--not only from action by the Federal Government but also by 
contribution actions brought by other parties.
    Under such agreements and other approaches, including use 
attainability assessments and site-specific water quality standards 
under the authorities of the Clean Water Act, cleanups can and have 
been undertaken. Such cleanups have involved volunteers, Government 
agencies, non-profits and for-profit businesses. For example:

     In Colorado, 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.
     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.
     In California, 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 
Federal environmental law but because of it.

    Question 2. Can you elaborate on the points you and others raised 
regarding the importance of preventing the creation of abandoned mines 
and how you would modify current policies to achieve this goal.
    Response. As I and many others have pointed out, there are enormous 
numbers of abandoned mine sites across the country. A portion of these 
date back 50 to 100 years.
    But a substantial number of these mines are of much more recent 
vintage. Some have argued that modern mines are subject to exceedingly 
strict regulation, but ``modern'' mines--including mines that date from 
the 1980s and 1990s--have been abandoned without adequate reclamation 
and sometimes with dire acid drainage problems that will last for 
decades if not centuries.
    The Zortman Landusky mine in Montana is just one example. Billed as 
a model for environmental management when it began operations in 1979, 
Zortman Landusky was one of the first large-scale, open-pit cyanide 
operations in the United States. Mining continued until 1996; the 
company declared bankruptcy in 1998; but the pollution is expected to 
continue in perpetuity. Though reclamation bonding was required for the 
mine, that bonding didn't come close to covering the true costs of 
cleanup, and the State of Montana has had to set aside nearly $20 
million to supplement the company's bond for the long term care of just 
this single site.
    Unfortunately, though Zortman Landusky is a very bad case, it is 
not totally unique.
    In fact, according to EPA's Office of Inspector General, nearly 60 
percent of the mining sites listed on the NPL are expected to require 
from 40 years to ``perpetuity'' for cleanup operations. Some of these 
cleanups will be extraordinarily expensive--not to take the property 
back to pristine or pre-mining conditions, but simply to remove the 
threats to local communities, water supplies and the environment.
    There are several factors behind such problems.
    Most importantly, there is no comprehensive environmental statute 
governing hardrock mining--no parallel to the Federal Surface Mining 
Control and Reclamation Act that governs coal mining. Instead, we 
continue to rely on the grossly outdated General Mining Law of 1872 and 
a patchwork of State laws that, in many instances, have not been up to 
the job.
    In addition, the mining industry has fought for and won exemptions 
and loopholes in coverage of other major environmental laws. For 
example, gold ore roasters emit airborne mercury but those facilities 
are not currently regulated under the Clean Air Act. Mine operations 
can also be significant contributors when it comes to particulates and 
other air pollutants, but recent rules give mining a pass when it comes 
to cleaning up such air pollution.
    Hardrock mining produces enormous volumes of waste which would meet 
the definition of hazardous under the Resource Conservation and 
Recovery Act--save for the Bevill amendment, which has stymied any 
rational control over these hazards. And though hardrock mining 
releases enormous amounts of toxic materials, such as lead, into the 
environment, the industry prevailed in its effort to have significant 
portions of those releases absolved from reporting requirements under 
the Toxics Release Inventory.
    Just recently, EPA, the U.S. Army Corps of Engineers and the State 
of Alaska have interpreted a newly devised loophole in the Clean Water 
Act to allow a mining company to put nearly 3 million cubic yards of 
processed mine wastes into a 23-acre alpine lake.
    In the face of these regulatory failures, there is much to be done, 
and my written testimony includes several recommendations. High on this 
list is reform of the outdated 1872 Mining Law and override of the 
Bevill amendment that keeps EPA from regulating mining waste. Clearly, 
these are large and controversial steps, and we understand they won't 
happen overnight. In the meantime, however, there is one thing that 
Congress could do quickly that would have a major impact.
    Congress could insist that EPA implement the existing provisions of 
Superfund that authorize financial assurance rules for polluting 
businesses. It should do this, not only for mining communities, but 
also for other communities who suffer from mining problems, because 
abandoned mines are becoming increasingly serious drains on Federal 
cleanup resources.
    An August 2003 EPA Inspector General report touched on the problem 
of inadequate financial assurances for mine operations, and even 
suggested that some States may be motivated to set bonds for mining 
operations at low levels in order to hold operations in within their 
States. Nearly three years later, the U.S. Government Accountability 
Office looked at some of the same issues and found, once again, 
dramatic failings. ``Environmental Liabilities: Hardrock Mining Cleanup 
Obligations'' documents the burden that mining companies impose upon 
the American taxpayer, and it notes that EPA inaction on financial 
assurance exposes ``the Superfund program, and ultimately the U.S. 
taxpayers, to potentially billions of dollars in cleanup costs.''
    Thus, we agree with the EPA presentation on abandoned mines that 
States flatly: ``The best immediate way to reduce CERCLA liabilities at 
mine sites is to aggressively improve reclamation and closure bonding 
at State and Federal level.'' We urge this Committee to address this 
problem now by moving Senator Cantwell's important legislation, the 
Cleanup Assurance and Polluter Accountability.

    Question 3. Should a good Samaritan permitting scheme ever be 
adopted, would it be important to ensure that such a scheme make all 
information available to the public prior to granting a permit, and 
that there be opportunity for notice and comment on the permit 
application?
    Response. Absolutely. Speaking from my own direct experience 
serving on the State of Virginia's Water Pollution Control Board, I can 
say--without question--that informed public input is invaluable to 
those making decisions about the environmental management of 
potentially-polluting operations. The public, in many instances, has 
proven to be a critical source of important information about local 
conditions, impacts and concerns, a valuable ``fact-checker,'' and a 
source of useful perspective and common sense.
    In fact, a recent EPA report, ``Integrating Water and Waste 
Programs to Restore Watersheds,'' stresses that cleanup of abandoned 
mines is often most effective when regulators and mining companies work 
with the public, engaging a broad cross-section of a community in 
setting priorities and laying out cleanup plans. This cannot happen 
without disclosure and ample opportunities for meaningful input.

    Question 4. How would the proposed waiver(s) of NEPA in both S. 
1848 and S. 2780 affect the public's ability to participate in the 
permitting process envisioned in both bills?
    Response. In the absence of a Federal law that deals with 
environmental impacts of hardrock mining on a comprehensive basis, NEPA 
serves a critical role as the sole forum for looking at the overall 
impacts of mining-related activities. Broad waivers from would 
eviscerate the opportunities for real public participation.

    Question 5. One of the issues surrounding abandoned mine clean-ups 
and Good Samaritan permitting is whether and how any enforcement action 
could be taken should a clean-up action actually worsen water quality 
or other environmental conditions. In order to make such a 
determination, one would need to first conduct baseline monitoring and 
then long-term monitoring. Can you comment on your views regarding the 
optimum monitoring that should occur on any mine clean-up, regardless 
of whether it is conducted by a Good Samaritan or a responsible party?
    Response. Many stories in the history of mining and mining cleanup 
make it clear that lack of information can result in big problems. The 
old Anaconda copper near Yerington, Nevada is a case in point. 
Information about the co-occurrence of uranium with the copper ores has 
come to light only recently as has the extent of groundwater 
contamination at the site. The impact of lack of information in this 
case could be cleanup price tag closing in on half a billion dollars 
compared with earlier estimates of $10 million.
    Yerington and other cases make us extremely wary of the 
restrictions in S. 1848 and S. 2780 regarding the collection of 
baseline data. Data needs remain--despite costs--and questions about 
underlying conditions should be answered up front--not only to ensure 
that the right cleanup decisions are made but also to ensure that 
actions taken do not complicate or even worsen conditions.
    Where cleanups may encounter water, permit reviewers must, at a 
minimum, ensure that actions are taken with a solid understanding of 
hydrological conditions--water flow conditions and interconnections, 
including flow under different weather conditions and other scenarios, 
groundwater interaction, water quality levels, co-occurrence of 
pollutants and possibilities for acid-generation.
    Such an understanding cannot be developed without site-specific 
data. Generalized information must be verified with on-site testing, 
and a record of site-specific testing must be sufficiently dense and 
span the seasonal variations that will be encountered. Monitoring for a 
full-year period is essential, but if that monitoring occurs in periods 
that are unusually dry or wet, then testing must continue beyond those 
periods.
    The lesson of a robust record is brought home by the case of the 
Sulphur Bank mine--an old mercury mine in California. There initial 
cleanup efforts were guided by 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 essential.
    Mine cleanups directed by new legislation should not repeat 
problems brought on by lack of information.

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