[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
U.S. GOVERNMENT PRINTING OFFICE
43-526 PDF WASHINGTON DC: 2009
---------------------------------------------------------------------
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092104 Mail: Stop IDCC, Washington, DC 20402�090001
__________
?
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.
[GRAPHIC] [TIFF OMITTED] T2281.001
[GRAPHIC] [TIFF OMITTED] T2281.002
[GRAPHIC] [TIFF OMITTED] T2281.003
[GRAPHIC] [TIFF OMITTED] T2281.004
[GRAPHIC] [TIFF OMITTED] T2281.005
[GRAPHIC] [TIFF OMITTED] T2281.006
[GRAPHIC] [TIFF OMITTED] T2281.007
[GRAPHIC] [TIFF OMITTED] T2281.008
[GRAPHIC] [TIFF OMITTED] T2281.009
[GRAPHIC] [TIFF OMITTED] T2281.010
[GRAPHIC] [TIFF OMITTED] T2281.011
[GRAPHIC] [TIFF OMITTED] T2281.012
[GRAPHIC] [TIFF OMITTED] T2281.013
[GRAPHIC] [TIFF OMITTED] T2281.014
[GRAPHIC] [TIFF OMITTED] T2281.015
[GRAPHIC] [TIFF OMITTED] T2281.016
[GRAPHIC] [TIFF OMITTED] T2281.017
[GRAPHIC] [TIFF OMITTED] T2281.018
[GRAPHIC] [TIFF OMITTED] T2281.019
[GRAPHIC] [TIFF OMITTED] T2281.020
[GRAPHIC] [TIFF OMITTED] T2281.021
[GRAPHIC] [TIFF OMITTED] T2281.022
[GRAPHIC] [TIFF OMITTED] T2281.023
[GRAPHIC] [TIFF OMITTED] T2281.024
[GRAPHIC] [TIFF OMITTED] T2281.025