[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]








  ABANDONED HARDROCK MINES AND THE ROLE OF NON-GOVERNMENTAL ENTITIES

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

                           OVERSIGHT HEARING

                               before the

                       SUBCOMMITTEE ON ENERGY AND
                           MINERAL RESOURCES

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                               __________

                        Thursday, March 15, 2018

                               __________

                           Serial No. 115-41

                               __________

       Printed for the use of the Committee on Natural Resources





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                     COMMITTEE ON NATURAL RESOURCES

                        ROB BISHOP, UT, Chairman
            RAUL M. GRIJALVA, AZ, Ranking Democratic Member

Don Young, AK                        Grace F. Napolitano, CA
  Chairman Emeritus                  Madeleine Z. Bordallo, GU
Louie Gohmert, TX                    Jim Costa, CA
  Vice Chairman                      Gregorio Kilili Camacho Sablan, 
Doug Lamborn, CO                         CNMI
Robert J. Wittman, VA                Niki Tsongas, MA
Tom McClintock, CA                   Jared Huffman, CA
Stevan Pearce, NM                      Vice Ranking Member
Glenn Thompson, PA                   Alan S. Lowenthal, CA
Paul A. Gosar, AZ                    Donald S. Beyer, Jr., VA
Raul R. Labrador, ID                 Norma J. Torres, CA
Scott R. Tipton, CO                  Ruben Gallego, AZ
Doug LaMalfa, CA                     Colleen Hanabusa, HI
Jeff Denham, CA                      Nanette Diaz Barragan, CA
Paul Cook, CA                        Darren Soto, FL
Bruce Westerman, AR                  A. Donald McEachin, VA
Garret Graves, LA                    Anthony G. Brown, MD
Jody B. Hice, GA                     Wm. Lacy Clay, MO
Aumua Amata Coleman Radewagen, AS    Jimmy Gomez, CA
Daniel Webster, FL
Jack Bergman, MI
Liz Cheney, WY
Mike Johnson, LA
Jenniffer Gonzalez-Colon, PR
Greg Gianforte, MT
John R. Curtis, UT

                      Cody Stewart, Chief of Staff
                      Lisa Pittman, Chief Counsel
                David Watkins, Democratic Staff Director
                                 ------                                

              SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES

                      PAUL A. GOSAR, AZ, Chairman
            ALAN S. LOWENTHAL, CA, Ranking Democratic Member

Louie Gohmert, TX                    Anthony G. Brown, MD
Doug Lamborn, CO                     Jim Costa, CA
Robert J. Wittman, VA                Niki Tsongas, MA
Stevan Pearce, NM                    Jared Huffman, CA
Glenn Thompson, PA                   Donald S. Beyer, Jr., VA
Scott R. Tipton, CO                  Darren Soto, FL
Paul Cook, CA                        Nanette Diaz Barragan, CA
  Vice Chairman                      Vacancy
Garret Graves, LA                    Vacancy
Jody B. Hice, GA                     Raul M. Grijalva, AZ, ex officio
Jack Bergman, MI
Liz Cheney, WY
John R. Curtis, UT
Rob Bishop, UT, ex officio
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                 
                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Thursday, March 15, 2018.........................     1

Statement of Members:

    Gosar, Hon. Paul A., a Representative in Congress from the 
      State of Arizona...........................................     1
        Prepared statement of....................................     3
    Lowenthal, Hon. Alan S., a Representative in Congress from 
      the State of California....................................     4
        Prepared statement of....................................     5

Statement of Witnesses:

    Coleman, Autumn, Vice President, National Association of 
      Abandoned Mine Lands Programs; Program Manager, Abandoned 
      Mine Lands Program, Montana Department of Environmental 
      Quality, Helena, Montana...................................     6
        Prepared statement of....................................     8
        Questions submitted for the record.......................    16
    Graves, Jeff, Director, Inactive Mine Reclamation Program, 
      Colorado Department of Natural Resources, Denver, Colorado.    29
        Prepared statement of....................................    30
    Strohmaier Hon. David, County Commissioner, Missoula County, 
      Montana....................................................    23
        Prepared statement of....................................    25
    Wood, Chris, President and CEO, Trout Unlimited, Arlington, 
      Virginia...................................................    17
        Prepared statement of....................................    18

Additional Materials Submitted for the Record:

    List of documents submitted for the record retained in the 
      Committee's official files.................................    50
 
   OVERSIGHT HEARING ON ABANDONED HARDROCK MINES AND THE ROLE OF NON-
                         GOVERNMENTAL ENTITIES

                              ----------                              


                        Thursday, March 15, 2018

                     U.S. House of Representatives

              Subcommittee on Energy and Mineral Resources

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to notice, at 2:09 p.m., in 
room 1324, Longworth House Office Building, Hon. Paul Gosar 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Gosar, Lamborn, Wittman, Tipton, 
Hice, Bergman; Lowenthal, Huffman, Beyer, and Soto.
    Also present: Representative Gianforte.
    Dr. Gosar. The Subcommittee on Energy and Mineral Resources 
will come to order. The Subcommittee is meeting today to hear 
testimony on abandoned hardrock mines and the role of non-
governmental entities.
    I ask unanimous consent that the gentleman from Montana, 
Mr. Gianforte, be allowed to sit with the Subcommittee and 
participate in the hearing.
    Without objection, so ordered.
    Under Committee Rule 4(f), any oral opening statements at 
hearings are limited to the Chairman, Ranking Minority Member, 
and the Vice Chair. This will allow us to hear from our 
witnesses sooner and help Members keep to their schedules.
    Therefore, I ask unanimous consent that all other Members' 
opening statements be made part of the hearing record if they 
are submitted to the Subcommittee Clerk by 5 p.m. today.
    Without objection, so ordered.

   STATEMENT OF THE HON. PAUL A. GOSAR, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF ARIZONA

    Dr. Gosar. Today, the Subcommittee will discuss the problem 
of abandoned hardrock mines and the role that non-government 
entities can play as a part of the solution. We have held 
several hearings in the Subcommittee on the value of domestic 
mining. Hardrock mines inject tangible value into the economy, 
provide employment opportunities, and contribute to the overall 
economic well-being of the United States.
    While mining projects today are subject to strict safety 
and environmental regulations, this was not always the case. 
Abandoned hardrock mines, also known as abandoned mine lands or 
AMLs, were mined and deserted before the era of modern 
regulations. These historic sites have no current responsible 
party, and when left unattended, they may pose health, safety, 
or environmental risks to the nearby communities.
    Furthermore, the task of reclaiming these sites presents an 
ongoing financial burden at the local, state, and Federal 
level. While exact numbers are not known, the scale of the AML 
problem is extensive and hundreds of thousands of sites may 
exist across the country. For instance, Federal agencies spend 
about $80 to $85 million every year on hardrock AML reclamation 
projects.
    However, the United States is lucky enough to have non-
government entities willing to lend their own resources and 
expertise to help reclaim abandoned hardrock mines. These NGOs, 
which include conservation organizations, watershed groups, and 
industry, are third-party actors with no responsibility for 
existing damage at AML sites. Unfortunately, liability and 
regulatory concerns have discouraged third-party participation 
in hardrock AML projects.
    In particular, the threat of liability under the 
Comprehensive Environmental Response, Compensation, and 
Liability Act, also known informally as ``Superfund,'' as well 
as the Clean Water Act, are of particular concern. Under 
existing law, any individual, corporation, or non-profit acting 
on an AML site may be held responsible for historic discharges 
at the site, as well as other existing environmental and safety 
issues.
    Water treatment as regulated by the Clean Water Act is an 
especially complicated aspect of AML reclamation. While water 
quality at AML sites may be drastically improved, Clean Water 
Act standards can be unfeasible and even impossible to meet, 
even with highly advanced treatment systems.
    At the risk of a potential lawsuit, third-party actors may 
avoid projects they might otherwise try to improve. To truly 
empower NGO participation in abandoned mine cleanups, they must 
have certain protections from undeserved liability.
    Let's not forget that these AML sites are already polluted, 
with the polluters long gone. Many of these sites are already 
in violation of the Clean Water Act requirements and have been 
for years. NGOs volunteering cleanup efforts today can help 
improve an already bad situation. While a so-called ``polluter 
pays'' policy is fair in principle, making groups who clean up 
pollution pay is not.
    Some states and local communities have begun to address 
this problem by establishing their own public-private 
partnerships. Pennsylvania has shown positive results from a 
1999 law which gives protections to third-party groups 
undertaking AML reclamation projects. Other states are 
interested in similar endeavors but the lack of a Federal 
framework and the high vulnerability to lawsuits makes that 
difficult.
    Another hurdle to effective AML remediation is a lack of 
one Federal agency with full authority over this issue. This 
role was once filled by the U.S. Bureau of Mines, but the 
Bureau was closed in 1996. Today, several agencies share AML 
reclamation responsibilities, causing confusion and hindering 
efforts for an accurate nationwide inventory.
    The problem of abandoned hardrock mines is a nationwide 
issue that may take decades, if not longer, to resolve. Non-
government entities can be a powerful force in reclamation 
efforts, and empowering them to act will benefit communities 
across the United States.
    I want to thank the witnesses for being here and look 
forward to hearing from them today.

    [The prepared statement of Dr. Gosar follows:]
Prepared Statement of the Hon. Paul A. Gosar, Chairman, Subcommittee on 
                      Energy and Mineral Resources
    Today, the Subcommittee will discuss the problem of abandoned 
hardrock mines, and the role that non-government entities can play as 
part of the solution.
    We have held several hearings in this Subcommittee on the value of 
domestic mining. Hardrock mines inject tangible value into the economy, 
provide employment opportunities, and contribute to the overall 
economic well-being of the United States.
    While mining projects today are subject to strict safety and 
environmental regulations, this was not always the case. Abandoned 
hardrock mines, also known as ``abandoned mine lands'' or AML, were 
mined and deserted before the era of modern regulations. These historic 
sites have no current responsible party, and when left unattended, they 
may pose health, safety, or environmental risks to the nearby 
communities.
    Furthermore, the task of reclaiming these sites presents an ongoing 
financial burden at the local, state, and Federal level. While exact 
numbers are not known, the scale of the AML problem is extensive, and 
hundreds of thousands of sites may exist across the country. For 
instance, Federal agencies spend about $80-$85 million every year on 
hardrock AML reclamation projects.
    However, the United States is lucky enough to have non-government 
entities willing to lend their own resources and expertise to help 
reclaim abandoned hardrock mines. These NGOs, which include 
conservation organizations, watershed groups, and industry, are third-
party actors with no responsibility for existing damage at AML sites. 
Unfortunately, liability and regulatory concerns have discouraged 
third-party participation in hardrock AML projects.
    In particular, the threat of liability under the Comprehensive 
Environmental Response, Compensation, and Liability Act, also known 
informally as ``Superfund,'' as well as the Clean Water Act are of 
particular concern. Under existing law, any individual, corporation, or 
non-profit acting on an AML site may be held responsible for historic 
discharges at the site, as well as other existing environmental and 
safety issues.
    Water treatment as regulated by the Clean Water Act is an 
especially complicated aspect of AML reclamation. While water quality 
at AML sites may be drastically improved, Clean Water Act standards can 
be unfeasible and even impossible to meet, even with highly advanced 
treatment systems. At the risk of a potential lawsuit, third-party 
actors may avoid projects they might have otherwise improved. To truly 
empower NGO participation in abandoned mines cleanup, they must have 
certain protections from undeserved liability.
    Let's not forget that these AML sites are already polluted, with 
the polluters long gone. Many of these sites are already in violation 
of Clean Water Act requirements, and have been for years. NGOs 
volunteering clean-up efforts today can help improve an already bad 
situation. While a so-called ``polluter pays'' policy is fair in 
principle, making groups who clean up pollution pay, is not.
    Some states and local communities have begun to address this 
problem by establishing their own public-private partnerships. 
Pennsylvania has shown positive results from a 1999 law, which gives 
protections to third-party groups undertaking AML reclamation projects. 
Other states are interested in similar endeavors, but the lack of a 
Federal framework and the high vulnerability to lawsuits makes that 
difficult.
    Another hurdle to effective AML remediation is the lack of one 
Federal agency with full authority over the issue. This role was once 
filled by the U.S. Bureau of Mines, but the Bureau was closed in 1996. 
Today, several agencies share AML reclamation responsibilities, causing 
confusion and hindering efforts for an accurate nationwide inventory.
    The problem of abandoned hardrock mines is a nationwide issue that 
may take decades to resolve. Non-government entities can be a powerful 
force in reclamation efforts, and empowering them to act will benefit 
communities across the United States.
    I want to thank the witnesses for being here and look forward to 
hearing from them today.

                                 ______
                                 

    Dr. Gosar. With that, I now recognize the gentleman from 
California, Ranking Member Mr. Lowenthal, for his 5 minutes.

 STATEMENT OF THE HON. ALAN S. LOWENTHAL, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Dr. Lowenthal. Thank you, Mr. Chairman. Thank you, Mr. 
Chairman. Thank you, Mr. Chairman. Three times, remember, three 
thank you's. And thank you for your continued focus on this 
issue that affects so many communities, particularly in the 
West. You have been a champion on this issue.
    As we have discussed in this Subcommittee many times over 
the past few years, the roughly one-half million abandoned 
hardrock mines that litter this country are a huge public 
safety and environmental problem. Yet, unlike coal, we have no 
dedicated source of funding for cleaning these sites up.
    The idea behind the coal abandoned mine land fee was that 
the coal industry had a responsibility to address its own 
historical legacy of pollution. The hardrock mining industry 
has no less of a responsibility than the coal industry.
    This does not mean, though, that I feel they should be the 
only source of funding for this effort. I certainly do support 
providing opportunities for Good Samaritans to volunteer their 
own time and their own money toward cleaning up abandoned 
mines, but that is no substitute for a robustly-funded program 
that makes the mining industry pay their fair share to help 
solve a problem they helped to create.
    The lack of coordination between agencies on cleaning up 
abandoned hardrock mines is another handicap in this effort, 
and an issue that I really appreciated being raised in the 
Majority's memo on this hearing.
    This also ties in with the issue of hardrock mine 
permitting, which we have also discussed numerous times in this 
Committee. For coal mines, there is a specific law, the Surface 
Mining Control and Reclamation Act, that deals with permitting 
and establishes, really, the coordinating agency that oversees 
that program as well as the abandoned coal mine cleanup.
    With hardrock mining, no such law exists. Instead, we are 
still working under the Mining Law of 1872, an obsolete, 
creaky, absolutely decrepit law that is as relevant to modern 
mining as the Pony Express is to smartphones.
    I think it was President Ulysses S. Grant who passed the 
Mining Law of 1872, very liberal and very progressive, not 
because he wanted to, it was because the West needed more 
development. Well, I have to tell President Grant, the West has 
developed. We don't need to continue to do that any longer.
    So, instead of having a coherent permitting system for 
hardrock mining, our land managers have to adapt other more 
general laws, such as the Federal Land Policy and Management 
Act, the Safe Drinking Water Act, the Clean Air Act, and more, 
in order to get the job done. It simply does not make any 
sense. It is long past time to comprehensively reform the 
Mining Law of 1872.
    Not only could we create a permitting system designed 
specifically for hardrock mining and establish a reclamation 
program for abandoned hardrock mines, we could also finally 
make it so that companies can no longer extract billions of 
dollars of gold, silver, copper, and other precious metals from 
public lands without paying a dime of royalties to the American 
taxpayers.
    We could provide more certainty for mining companies, 
particularly when it comes to identifying which of our public 
lands are simply too precious or vulnerable to be mined. And we 
could finally get rid of the idea that mining is always the 
best and highest use of our public lands.
    We do need mines. I am not saying we don't. We do need 
mines, there is no question about it. But we don't need to 
continue operating under a law that says mines are all we need.
    We need parks, wilderness, hunting grounds, rivers to canoe 
on, and breathtaking vistas. And we need to ensure that these 
things are still around for our children and our grandchildren 
to enjoy.
    That is why I am working with Ranking Member Grijalva on a 
new bill to reform the Mining Law of 1872. And I hope once we 
introduce that this spring, we will be able to start talking 
about comprehensive mining reform in this Committee.
    I thank the witnesses for being here, and I yield back the 
balance of my time.

    [The prepared statement of Mr. Lowenthal follows:]
   Prepared Statement of the Hon. Alan S. Lowenthal, Ranking Member, 
              Subcommittee on Energy and Mineral Resources
    Thank you, Mr. Chairman, and thank you for your continued focus on 
this issue that affects so many communities, particularly in the West.
    As we have discussed in this Subcommittee many times over the past 
few years, the roughly half-million abandoned hardrock mines that 
litter this country are a huge public safety and environmental problem. 
Yet, unlike coal, we have no dedicated source of funding for cleaning 
these sites up.
    The idea behind the coal abandoned mine land fee was that the coal 
industry had a responsibility to address its own historical legacy of 
pollution. The hardrock mining industry has no less of a responsibility 
than the coal industry.
    This does not mean I feel that they should be the only source of 
funding for this effort. I certainly support providing opportunities 
for Good Samaritans to volunteer their own time and their own money 
toward cleaning up abandoned mines. But that is no substitute for a 
robustly-funded program that makes the mining industry pay their fair 
share to help solve a problem they helped create.
    The lack of coordination between agencies on cleaning up abandoned 
hardrock mines is another handicap in this effort, and an issue that I 
appreciated being raised in the Majority's memo on this hearing.
    This also ties in with the issue of hardrock mine permitting, which 
we have also discussed numerous times in this Committee. For coal 
mines, there is a specific law--the Surface Mining Control and 
Reclamation Act--that deals with permitting and establishes the 
coordinating agency that oversees that program as well as abandoned 
coal mine cleanup.
    With hardrock mining, no such law exists. Instead, we are still 
working under the Mining Law of 1872, an obsolete, creaky, absolutely 
decrepit law that is as relevant to modern mining as the Pony Express 
is to smartphones.
    Permits aren't needed under the Mining Law of 1872. The whole law 
is designed to give land and minerals away for next to nothing, not 
ensure that mines are built and operated in a responsible manner.
    So, instead of having a coherent permitting system for hardrock 
mining, our land managers have to adapt other more general laws, such 
as the Federal Land Policy and Management Act, the Safe Drinking Water 
Act, the Clean Air Act, and more, in order to get the job done. It 
simply doesn't make sense. It is long past time to comprehensively 
reform the Mining Law of 1872.
    Not only could we create a permitting system designed specifically 
for hardrock mining, and establish a reclamation program for abandoned 
hardrock mines, we could also finally make it so that companies can no 
longer extract billions of dollars of gold, silver, copper, and other 
precious metals from public lands without paying a dime of royalties to 
the American taxpayers.
    We could provide more certainty for mining companies, particularly 
when it comes to identifying which of our public lands are simply too 
precious or vulnerable to be mined. And we could finally get rid of 
this idea that mining is always the best and highest use of our public 
lands.
    We need mines--there is no question about that. But we don't need 
to continue operating under a law that says mines are all we need.
    We need parks, wilderness, hunting grounds, rivers to canoe on, and 
breathtaking vistas, and we need to ensure that these things are still 
around for our children and grandchildren to enjoy.
    That's why I'm working with Ranking Member Grijalva on a new bill 
to reform the Mining Law of 1872, and I hope once we introduce that 
this spring, we'll be able to start talking about comprehensive mining 
reform in this Committee.
    I thank the witnesses for being here, and I yield back the balance 
of my time.

                                 ______
                                 

    Dr. Gosar. I thank the Ranking Member.
    I am now going to introduce Mr. Gianforte for two witness 
introductions.
    Mr. Gianforte. Thank you, Mr. Chairman. I am very pleased 
that two of my fellow Montanans are here today.
    I would first like to introduce Ms. Autumn Coleman, the 
Program Manager for the Abandoned Mines Lands Program at the 
Montana Department of Environmental Quality. In addition to her 
experience with abandoned mines in Montana, she is also Vice 
President of the National Association of Abandoned Mine Lands 
Programs and can offer a national perspective on this issue.
    Second, I would like to introduce another constituent of 
mine from Missoula, Missoula County Commissioner, David 
Strohmaier.
    Thank you both for being here today. I yield back.
    Dr. Gosar. I thank the gentleman. I would like to introduce 
our two other witnesses.
    First, a friend of mine, Mr. Chris Wood, President and 
Chief Executive Officer of Trout Unlimited. Thanks, Chris.
    And Mr. Jeff Graves, Director of the Inactive Mine 
Reclamation Program at the Colorado Department of Natural 
Resources.
    Let me remind the witnesses that under Committee Rules, 
they must limit their oral testimony to 5 minutes. Our lights 
are automatic. For the first 4 minutes, there is a green light. 
When it turns yellow, start summarizing. When you see it turn 
red, we are going to cut you off, OK? Just that quick. We want 
to make sure that everybody has some interaction with some 
questions for you.
    I would like to now recognize Ms. Coleman for your 5 
minutes. Thank you.

     STATEMENT OF AUTUMN COLEMAN, VICE PRESIDENT, NATIONAL 
ASSOCIATION OF ABANDONED MINE LANDS PROGRAMS; PROGRAM MANAGER, 
      ABANDONED MINE LANDS PROGRAM, MONTANA DEPARTMENT OF 
             ENVIRONMENTAL QUALITY, HELENA, MONTANA

    Ms. Coleman. Thank you. Good afternoon, Mr. Chairman and 
members of the Committee. My name is Autumn Coleman and I am 
the Montana Abandoned Mine Lands Program Manager, as well as 
the Vice President of the National Association of Abandoned 
Mine Lands Programs. I am honored to appear here today on 
behalf of the state of Montana and the AML Association.
    Throughout the country, state and tribal AML programs are 
working hard to return lands and waters impacted by legacy 
hardrock mining to productive use. But available resources are 
very limited in comparison to the scale of the problem. Every 
source of help is needed to contend with that problem, but 
current circumstances constrain AML programs' efforts and deter 
motivated volunteers from assisting in that work. A Good 
Samaritan policy holds the potential to unbind the AML 
programs' hands and allow our volunteer partners to lend 
theirs.
    While it is difficult, as you said, to put an exact number 
on the total hardrock AML costs or produce a perfectly accurate 
inventory, there is no question that the problem is massive and 
pervasive.
    To give an example of my home state, Montana has thousands 
of abandoned hardrock mines, with over 200 discharging adits. 
Between mine waste left in creeks and rivers and acid mine 
drainage coming from those mines, Montana also has 2,500 miles 
of rivers and streams polluted by abandoned mines.
    For other examples, government sources report that Arizona 
has an estimated 50,000 and California has 47,000 abandoned 
mines. Various sources, as you pointed out, cite over half a 
million abandoned hardrock mines nationwide. The price tag on 
these public safety and environmental liabilities could be in 
the tens of billions of dollars.
    Recognizing the economic environmental and social benefits 
of addressing public safety and restoring lands and rivers 
impaired by abandoned hardrock mines, AML programs, 
municipalities, Federal agencies, volunteer citizen groups, and 
private parties have come together across the West to try to 
clean up some of these sites. Unfortunately, the existing state 
and Federal grants do not provide consistent or adequate 
funding.
    To address the hardrock abandoned mine land problem, there 
is no question that the greatest need is funding. That is where 
our Good Samaritan volunteers come in to try to help fill that 
gap. To empower our Good Samaritans, the first step is to solve 
a thorny legal problem that is keeping our resources on the 
sidelines.
    In Montana, I have had the privilege of working with 
several Good Samaritans including Trout Unlimited and local 
government agencies. These groups extend the reach of limited 
government funds by providing matching funding from outside 
resources.
    The Montana AML program in its successful partnership with 
Powell County Conservation District and Trout Unlimited was 
successful in raising funds to reclaim the Lilly Orphan Boy 
Mine. Together, we have removed toxic mine waste from the banks 
and flood plain to restore Telegraph Creek, we stabilized a 
dangerous mine waste embankment, closed a hazardous mine 
opening, and protected a historic headframe.
    While the project speaks to a success in partnership 
between the state and Good Samaritans, the work of the Lilly 
Orphan Boy Mine is not done. In the middle of the beautifully 
restored flood plain, there still flows acid mine drainage from 
an adit. The water quality below the mine has seen significant 
improvement following the mine waste removal, but there are 
still impacts from the drainage. Both our Good Samaritans and 
the Montana AML Program have no choice but to walk away from 
these straining mines because of liability concerns.
    Perpetual treatment of acid mine drainage can be a multi-
million-dollar commitment, which is difficult for the states 
and Good Samaritans to afford. Affordable acid mine drainage 
treatment options could make a significant difference in water 
quality, but they would likely never meet all the water quality 
standards, therefore Good Samaritans and the state could be 
liable under the Clean Water Act.
    The key to resolving this issue is to bring clarity and 
practicality to any Clean Water Act requirements borne by the 
states and Good Samaritans. Rather than focus on achieving the 
impossibility, which is perfection, the basic goals for 
eligible Good Samaritan projects should be simple: achieving 
improvements in the environment.
    In this way, states and Good Samaritans would uphold the 
essential purpose of the Clean Water Act, which would be to 
improve water quality. Good Samaritan groups should also be 
responsible for their own work on the site and whatever pre-
existing pollution remains should not be considered a Good 
Samaritan's responsibility.
    The mechanism in both Pennsylvania's Good Samaritan law and 
the excellent Community Reclamation Partnerships Act offers an 
example of how a hardrock Good Samaritan program could be 
structured, by partnering Good Samaritans with the state or 
travel programs and legitimizing their good work in the eyes of 
the Clean Water Act.
    In a time where we are seeing cuts in Federal AML funding, 
help from Good Samaritans is needed now more than ever. The AML 
association would welcome the opportunity to work with the 
Committee to enable Good Samaritans to help conquer the 
monumental task of reclaiming our abandoned mine lands and 
impaired waters.

    Thank you for the opportunity to submit this statement.

    If the Committee would accept it, I would like to submit 
for the record the Policy Resolution from the Western 
Governors' Association on the issue of Good Samaritan.
    Dr. Gosar. Without objection, so ordered.

    [The prepared statement of Ms. Coleman follows:]

 Prepared Statement of Autumn Coleman, Program Manager, Abandoned Mine 
Lands Program, Montana Department of Environmental Quality on Behalf of 
   the National Association of Abandoned Mine Land Programs and the 
                  Interstate Mining Compact Commission

                              introduction
    Good afternoon Chairman Gosar, Ranking Member Lowenthal, and 
members of the Committee. My name is Autumn Coleman and I am Program 
Manager of the Abandoned Mine Lands (AML) Program within the Montana 
Department of Environmental Quality. I also serve as Vice President of 
the National Association of Abandoned Mine Land Programs (NAAMLP). 
Thank you for the opportunity to provide the state of Montana's 
perspective as well as NAAMLP's position on the role of non-
governmental entities in hardrock AML work.
    NAAMLP represents 31 state and tribal AML programs across the 
Nation. Many of these programs have earned delegations of authority 
from the Federal Government to implement national environmental laws 
such as the Surface Mining Control and Reclamation Act (SMCRA) and 
Federal Water Pollution Control Act (otherwise known as the Clean Water 
Act or CWA).
    The topic of the hearing today is of great interest and importance 
to the states and tribes represented by NAAMLP. Throughout the country 
our AML programs are working diligently to restore lands and waters 
impacted by legacy hardrock mining, but available resources are very 
limited in comparison to the scale of the problem before us. Every 
source of help is needed to contend with that problem, but current 
circumstances constrain the states' efforts and deter motivated, well-
intentioned volunteers from assisting in that work. ``Good Samaritan'' 
policy holds the potential to unbind the state AML programs' hands and 
allow our potential volunteer partners to lend theirs.
    We commend the Committee for its continuing efforts to establish an 
effective way for both state and tribal programs and Good Samaritans to 
work toward restoring water resources impacted by historic mine 
pollution. We appreciate the opportunity to share our perspective on 
how this can be accomplished. My testimony today will address the 
current status of hardrock abandoned mine lands, the efforts underway 
to reclaim these sites and remediate their impacts, and the potential 
for a Good Samaritan program to encourage and enhance those efforts.
                the hardrock abandoned mine land problem
Background
    The United States has a rich history of hardrock mineral mining. 
The role that gold, silver, and copper mining played in the settling of 
the American West and the rise of a fledgling industrial nation are the 
stuff of legend. Hardrock mining continues to this day to be a mainstay 
of vibrant economies throughout the country and especially in the West, 
but today's mining is conducted very differently than it was in the 
past. Today's mines are required to be fully reclaimed and impacts are 
carefully monitored, but in a time prior to modern day controls and 
understanding of environmental impacts, mines were often abandoned in 
disrepair. Many of those historic mining sites have enduring impacts 
today, which has resulted in a massive environmental and economic 
problem.
    Following the passage of comprehensive national environmental laws 
in the 1970s, the states and tribes have largely taken the lead in 
fashioning and implementing effective programs for the regulation of 
mining and its impacts, including reclaiming and restoring lands and 
waters impacted by historic abandoned mines. Every year our AML 
programs are working to reclaim open mine pits, stabilize cave-ins and 
landslides, close mine shafts, remove left behind equipment and mining 
waste, and restore rivers and streams impacted by acid mine drainage 
(AMD). The safety hazards associated with these sites result in 
injuries and even deaths each year, and environmental impacts like AMD 
are incredibly damaging in their own right. While most will recall 
visions of orange rivers following the blow out of a mine pool at the 
Gold King AML site, few realize that there are thousands of similar 
sites scattered throughout the West. In fact, many times the amount of 
impaired water released during the Gold King event drain out of 
abandoned mines throughout the country every day. These water 
impairments degrade ecosystems and have widespread adverse economic 
impacts, including the loss of recreational fisheries and contamination 
of water and irrigation supplies.
    While it is difficult to put an exact number on total hardrock AML 
costs or to produce a perfectly accurate inventory of remaining sites, 
there is no question that the hardrock AML problem is massive and 
pervasive, and would be counted in tens of billions of dollars. Today's 
environmental laws are meant to hold polluters to account, but because 
the historic mining in question happened so long ago, there are no 
potentially responsible parties available to pay for their cleanup; 
these sites are an unfunded public cost. Abandoned mines are everyone's 
problem but no one's responsibility.
Hardrock AML Inventory
    Over the years, several studies have been undertaken in an attempt 
to quantify the total hardrock AML cleanup need. Despite these efforts, 
there is currently no comprehensive, fully accurate national inventory 
of the hardrock AML problem. Although inventory efforts are helpful in 
attempting to put numbers on the problem, in almost every case, the 
states and tribes are intimately familiar with the highest priority 
problems within their borders. The AML programs are therefore generally 
well positioned to direct limited reclamation dollars to best protect 
public health and safety and the environment without the need for 
significant enhancements to AML inventories. To the extent that the 
Committee finds additional inventorying efforts expedient for policy 
making, separate funding would ideally be provided for those efforts. 
Otherwise, the states and tribes generally find that the best use of 
limited hardrock AML funding is to accomplish as much reclamation and 
restoration work as possible.
    The state of Montana's hardrock AML inventorying efforts provide a 
good case study. In the early 1990s Montana conducted a comprehensive 
inventory of abandoned hard rock mines and began work in earnest to 
close hazardous mine openings. Of the 3,500 abandoned hard rock mines 
in the inventory, over 300 of those were designated as high priority 
sites due to the risk to human health and the environment from heavy 
metals and arsenic. As part of the inventory, Montana tallied 217 
discharging adits. Between the mine waste left in creeks and rivers in 
Montana and the acid mine drainage coming from those adits, Montana has 
almost 2,500 miles of rivers and streams impacted by metals and arsenic 
from abandoned mines. New abandoned mines are being discovered as 
people move further into the wildland-urban interface and as forest 
fires move through and expose new abandoned mine hazards previously 
unknown.
Funding for Hardrock AML
    Current state and tribal agencies work on hardrock abandoned mine 
problems through a variety of state and Federal funding sources. 
Various Federal agencies, including the U.S. Environmental Protection 
Agency, the Bureau of Land Management, the National Park Service, the 
U.S. Forest Service, and the U.S. Army Corps of Engineers have provided 
some funding for hardrock mine remediation projects over the years. 
These state/Federal partnerships have been instrumental in assisting 
the states and tribes with their hardrock AML work. As states and 
tribes take on a larger role in hardrock AML cleanups in the future, 
they will continue to rely on their Federal partners. Unfortunately, 
most of these existing Federal and state grants are project specific 
and do not provide consistent funding.
    For states and tribes with coal mining, the most consistent source 
of AML funding has been the Title IV grants authorized under SMCRA. 
While the vast majority of this funding is used to address coal AML and 
AMD problems, Section 409 of SMCRA allows states and tribes to use 
these grants at high priority non-coal AML sites. The funding is 
generally limited to safeguarding hazards to public safety (e.g., 
closing mine openings) at hardrock sites. The small amount of money 
that SMCRA states have been able to spend on physical safety hazards at 
hardrock sites is making a difference.
    To make more progress with hardrock AML there is no question that 
the greatest need is funding. Recognizing the potential economic, 
environmental and social benefits of remediating lands and streams 
impaired by abandoned hardrock mines, states, tribes, municipalities, 
Federal agencies, volunteer citizen groups and private parties have 
come together across the West to try to clean up some of these sites. 
In Montana, our local governments and Good Samaritan partners have the 
capacity to raise funds inaccessible to the state. Leveraging outside 
grant funds with state and Federal funds is the only way we can afford 
these cleanups. However, due to questions of liability, many Good 
Samaritan efforts, as well as the states' and tribes' own efforts, have 
been stymied. To encourage public-private partnerships and empower 
state and tribal AML programs, first we need to solve the thorny legal 
problem that is keeping private resources on the sideline, increasing 
the burden on public funds, and prolonging harm to our citizens and 
environment.
                 the need for a good samaritan program
    The Clean Water Act (CWA) was designed to clean up our waterways 
and safeguard the health of our citizens and environment, and the 
country is undoubtedly a better place as a result. It is therefore a 
great irony that this law, which was meant to facilitate water quality, 
now stands in the way of water quality improvements at AMD sites. As a 
cornerstone of Federal Environmental Law, the CWA is intentionally very 
strict in the restrictions and penalties directed at those who impact 
our Nation's water resources. As an unintended consequence of that 
strict design, in particular its purposefully stringent and inflexible 
standards for water treatment, CWA requirements do not comport well 
with the realities of AMD treatment. With regard to this issue, John 
Whitaker, a White House staffer who played an integral role in the 
passage of the Clean Water Act, recalls the following:

        ``When I and other White House staffers responsible for 
        environmental initiatives during the Nixon administration 
        recommended to the President new water pollution control 
        strategies for congressional consideration, our focus was 
        primarily on sewage treatment and industrial effluent, not the 
        acid mine drainage problems from abandoned mines. We should 
        have had more foresight . . . We did not envision at the time 
        that the day would come when the zero discharge provision would 
        prevent Good Samaritans from cleaning up acid mine drainage . . 
        .'' \1\
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    \1\ ``Cleaning Up Abandoned Hardrock Mines In The West: Prospecting 
for a Better Future''--Limerick, Ryan, Brown, and Comp, Center for the 
American West.

    This dilemma has been confirmed by the Environmental Protection 
Agency on many occasions, and is summarized well by the following quote 
---------------------------------------------------------------------------
from an EPA Administrator's testimony before Congress in 2006:

        ``Under the CWA, a party may be obligated to obtain a discharge 
        permit which requires compliance with water quality standards 
        in streams that are already in violation of these standards. . 
        . . Yet, in many cases, the impacted water bodies may never 
        fully meet water quality standards, regardless of how much 
        cleanup or remediation is done. By holding Good Samaritans 
        accountable to the same cleanup standards as polluters or 
        requiring strict compliance with the highest water quality 
        standards, we have created a strong disincentive to voluntary 
        cleanups. Unfortunately, this has resulted in the perfect being 
        the enemy of the good.'' \2\
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    \2\ Benjamin H. Grumbles, Assistant Administrator for Water, U.S. 
Environmental Protection Agency, Testimony before the Subcommittee on 
Water Resources and Environment, Committee on Transportation and 
Infrastructure, U.S. House of Representatives, March 30, 2006, pp. 2-3.

    The crux of the problem is that the Federal statutory paradigm for 
treating AMD-impacted water is not well-suited to the unique 
characteristics of these sites. The fundamental issue with AMD 
treatment is that impacted waterways are by definition already 
impaired, and in the case of abandoned mines, the originators of the 
pollution have long since gone out of business. Even so, due to joint 
and several liability under the CWA, any party who re-affects an AMD-
impacted site risks being held permanently responsible for fully 
eliminating the existing discharge, even where the pollution is the 
result of legacy mining, the project is significantly improving water 
quality, the party in question has no connection to the pollution, and 
no recklessness or negligence is exhibited.
    The EPA has acknowledged and attempted to mediate the conflict 
between AMD treatment and the CWA in the past, but the Agency's efforts 
have not meaningfully facilitated progress. The EPA's guidance 
memoranda of 2007 \3\ and 2012 \4\ regarding Good Samaritan involvement 
in such projects, and the ``comfort letters'' issued by the Agency 
pursuant to that approach, unfortunately led to very few additional 
projects being undertaken. The primary remaining obstacle is that these 
projects are still potentially subject to citizen suit liability under 
the CWA. This means that even where these projects are conducted under 
established procedures, condoned by the EPA and/or the state NPDES 
authority, and are improving water quality by reducing pollution 
loading, they could still be sued by a third party and be assessed 
immense, perpetual liability. State and tribal AML programs could 
similarly still be assessed liability and compelled to take immediately 
required, expensive, tax-funded action to return a given site to an 
impracticable condition, which already strained state budgets must 
avoid.
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    \3\ ``Interim Guiding Principles for Good Samaritan Projects at 
Orphan Mine Sites and Transmittal of CERCLA Administrative Tools for 
Good Samaritans,'' June 6, 2007.
    \4\ Clean Water Act Sec. 402 National Pollutant Discharge 
Elimination System (NPDES) Permit requirements for `` Good Samaritans'' 
at Orphan Mine Sites,'' Dec 12, 2012.
---------------------------------------------------------------------------
    There can be little question that obstacles posed by the CWA to the 
treatment of AMD-impacted water have significantly slowed progress with 
such projects throughout the country. State and tribal AML programs 
must choose between forgoing these projects or proceeding and exposing 
themselves to significant liability risks. While the need for 
resolution of these issues has been widely agreed upon for some time, 
the specifics of the ideal solution have long been debated--and it is 
clear that debate is stalling desperately needed water treatment.
     examples of the need for good samaritan protections in montana
    The Montana AML Program in partnership with the Powell County 
Conservation District and Trout Unlimited was successful in raising the 
funds to reclaim an abandoned lead and silver mine in the mountains 
near the state capital. This project had been shelved by the Montana 
AML Program due to insufficient funding for hardrock abandoned mines, 
but our Good Samaritan partners were able to secure the funding needed 
to resurrect it. In 2016, the Montana AML Program and TU completed the 
Lilly Orphan Boy Mine Reclamation Project. We removed toxic mine waste 
from the banks and floodplain to restore Telegraph Creek, we stabilized 
a dangerous mine waste embankment, closed a hazardous mine opening and 
protected a historic headframe. While this project speaks to a 
successful partnership between the state and Good Samaritans, the work 
at the Lilly Orphan Boy Mine is still not done. In the middle of the 
beautifully restored floodplain flows acid mine drainage from an adit. 
The water quality below the mine has seen significant improvement 
following the removal of the mine waste in the creek, but there are 
still impacts from acid mine drainage. Both TU and the Montana AML 
Program have walked away from addressing these draining adits because 
of the concerns over the Clean Water Act liability.
    Treatment of acid mine drainage is a multi-million dollar 
commitment which neither the state nor their partners can raise on a 
consistent or predictable basis. Less expensive options, such as 
passive wetland treatment cells and automatic lime dosers, will 
generally not meet all in-stream water quality standards or discharge 
permit parameters. The other mechanism for eliminating acid mine 
drainage is to plug mine openings, but those strategies are also costly 
and may present safety concerns. The result is that adits continue to 
drain into rivers and streams impacting fisheries and hampering 
economic development.
    Montana continues to address abandoned mine lands as best it can 
given funding limitations and potential liability for discharge 
exceedances. In instances where state and tribal AML programs are able 
to proceed despite liability concerns, some success has been found in 
source removal actions to address water quality. For example, Montana 
recently recommended de-listing Soda Butte Creek, a tributary to the 
Lamar River in Yellowstone National Park, for metals following a 
tailings impoundment (dam) removal project. This de-listing of an 
impaired waterbody for metals following abandoned mine reclamation is 
the first of its kind in Montana and is critical for fisheries in 
Yellowstone National Park. Much more of this type of progress could be 
made if the states, tribes, and their Good Samaritan partners could be 
provided consistent, reasonable relief from unnecessary liability.
 pennsylvania example of successful state-level good samaritan program
    We have seen the positive results from an effective approach to AMD 
treatment in Pennsylvania, which enacted its own Good Samaritan law to 
provide protections related to state clean water requirements for 
groups and individuals who were not legally responsible but who 
voluntarily undertook AML reclamation or AMD treatment projects. 
Pennsylvania recognized long ago that with the availability of these 
volunteer efforts and advances made in our understanding of mine 
drainage, many of the state's abandoned coal mine AMD discharges could 
be eliminated or improved at little or no cost to the Pennsylvania tax-
payer if only the potential for undeserved liability could be 
addressed.
    To that end, Pennsylvania enacted its Environmental Good Samaritan 
Act (EGSA) of 1999,\5\ under which 79 AMD treatment projects have been 
undertaken in various partnerships between the Commonwealth, local 
governments and municipal authorities, individual community supporters, 
corporations, watershed associations, and conservancies. Much like 
previous Federal Good Samaritan proposals, projects eligible under the 
EGSA must abate water pollution resulting from abandoned mine lands and 
eligible participants must meet certain conditions demonstrating that 
they and the project are worthy of liability protections offered by the 
program. These projects are spread among 20 counties and 53 distinct 
groups, and the majority are active today. State-level liability 
protections have enabled these projects to occur without risk of undue 
liability under state law, but risks remain for the Commonwealth and 
their partners under Federal law, and still more projects could have 
been pursued if not for the remaining specter of liability.
---------------------------------------------------------------------------
    \5\ Title 27 Pennsylvania Consolidated Statutes Annotated Sections 
8101-811.
---------------------------------------------------------------------------
    Pennsylvania's experience in the almost 20 years since the passage 
of the EGSA demonstrates that there are countless opportunities for 
Good Samaritans to assist the AML programs, especially in the treatment 
of AMD-impacted water. The Commonwealth and its partners' work under 
the EGSA provides a proof of concept for the beneficial, responsible 
participation of such groups in the AML programs' work.
         considerations in crafting good samaritan legislation
    Over the course of the past 15 years, several Good Samaritan bills 
have been introduced in the U.S. Congress, each of which offered a 
unique approach. From the states' and tribes' perspective, we have 
several recommendations that we believe should be considered in any 
Good Samaritan legislative effort. We offer the following 
considerations based on our AML programs' decades of firsthand 
experience contending with hardrock AML issues, our long-time 
participation in the Good Samaritan policy debate, the lessons learned 
through Pennsylvania's successful state-level Good Samaritan program, 
and the recent success of the Community Reclamation Partnerships Act.
    To summarize the preceding section: the specter of undeserved 
liability is constraining much needed hardrock AML work. At the center 
of concern is the simple fact that, as noted above, NPDES permits are 
not well-suited for treating AMD-impacted water. The key to resolving 
this issue is bringing clarity and practicality to any Clean Water Act 
compliance responsibilities borne by the states and potential Good 
Samaritan partners as they conduct AMD water treatment work. The 
states' tribes' experience demonstrates that this can be accomplished 
while maintaining uncompromising care in how these projects are 
conducted. Through commitment to that goal and cooperation among 
stakeholders, a process can be designed that finds the necessary 
balance between the accountability that must be maintained and the 
flexibility that must be provided to allow AMD work to move forward.
The Need for Reasonableness
    To achieve sensible, effective Good Samaritan policy, the focus 
must be on designing a system that is immanently reasonable. We must 
recognize that the potential Good Samaritan AMD projects in question 
are fundamentally different from other classes of projects and 
therefore should not require the same level or type of regulatory 
requirements. The waters in question are already impaired and the 
responsible parties are long gone, meaning that certain aspects of the 
CWA are inordinately strict in the context of these projects; most 
notably the zero discharge standard and the application of perpetual 
responsibility. Rather than focus on achieving impossible perfection or 
holding no-longer-existent originators of the pollution to account, the 
basic standards for eligible Good Samaritan projects should be simple: 
achieving improvements in the environment. In this way, Good Samaritan 
legislation would uphold the purposes of the CWA and further its 
effectiveness by helping to fulfill its essential goal of improving 
water quality.
    Toward the goal of reasonable Good Samaritan policy, perhaps the 
most important recognition needed is that partial remediation is 
acceptable. Some abandoned mine problems are so intractable that it is 
not possible to achieve ``total cleanup'' even with today's advanced 
technologies, but a ``limited'' cleanup can result in very significant 
environmental improvement. We also know that, in some circumstances, 
even where total cleanup is technically possible, at some juncture the 
cleanup effort reaches a point of diminishing returns and the money 
would be better spent on addressing other sites.
    These realities of AMD treatment have led many state AML programs, 
particularly in the East, to adopt an approach that attempts to 
maximize the number of discharges that receive treatment to the highest 
standard practicable, with particular focus on supporting biological 
and other functions of the water resource. Decisions regarding water 
treatment are based on practical limitations such as available space, 
technology options, landowner cooperation, and cost. While these 
projects often do not strictly adhere to NPDES water quality based 
effluent requirements, they nevertheless significantly improve water 
quality in the receiving streams, the aggregate effect of which 
produces drastic improvements in overall health of the greater 
watershed at a comparatively low cost. This approach has led to great 
strides in restoring AMD-impacted watersheds, as well as for the 
community health and livelihoods that depend on those watersheds. Mine 
drainage at these sites is being treated, pollution is substantially 
reduced, and noticeable water quality improvements are being made, and 
yet these efforts are still being constrained. It would be shortsighted 
policy to continue to disallow this type of partial treatment strategy 
when so much good can come as a result.
    Another key recognition that must be made is that groups conducting 
volunteer cleanups should not be held as permanently responsible for 
the sites at which they conduct their work. The courts have created an 
expectation that states and volunteer groups affecting an existing 
source of water pollution may be held as ``operators'' under the Clean 
Water Act and compelled to comply with full requirements of and 
indefinite liability associated with an NPDES 
discharge,\6\,\7\ even where those requirements are clearly 
unreasonable and the liability clearly undeserved with respect to the 
parties in question. Under these circumstances, states, tribes and 
potential volunteers are heavily disincentivized from taking on cleanup 
projects, especially where the expectation is that full NPDES 
requirements cannot be met. Rather, Good Samaritan groups should only 
be responsible for their own work on the site. As long as that work is 
positively affecting the environment and no negligence is committed, 
whatever pre-existing pollution remains should not be considered the 
Good Samaritan's responsibility. The Clean Water Act policy that anyone 
who affects an impaired site is held responsible for the entirety of 
the pollution in perpetuity is meant to hold polluters to account, but 
in the case of Good Samaritan projects the groups in question are 
decidedly not polluters. Ensuring that only worthy groups receive 
designation as Good Samaritans is certainly a key consideration in Good 
Samaritan policy, and it is the states' and tribes' experience that our 
AML programs are well-equipped to make this distinction appropriately. 
Once a Good Samaritan group's innocence with respect to the site can be 
established, it should be understood that holding them to account for 
past pollution is unhelpful--rather than encouraging higher water 
quality it precludes any improvement at all.
---------------------------------------------------------------------------
    \6\ Pursuant to the Fourth Circuit Court of Appeals decision in 
West Virginia Highlands Conservancy v. Huffman to designate water 
treatment facilities as point-source discharges, West Virginia must now 
obtain CWA permits for bond forfeiture sites. There have been concerns 
that this ruling could be extended to AML projects being undertaken by 
the states and tribes under SMCRA.
    \7\ It is important to note that AML reclamation is handled 
separately and distinctly from bond forfeiture sites, and that these 
sites, and any companies experiencing bond forfeiture would not 
expectedly be eligible for participation under a Good Samaritan 
Program.
---------------------------------------------------------------------------
    Furthermore, if the protections provided to Good Samaritan groups 
would have end dates, meaning that protections would only apply during 
the time frame of the work on the project, many potential Good 
Samaritans will be reluctant to engage in activities for which they 
might incur liability beyond the termination date of work, as would be 
the case with water treatment projects. Good Samaritans must be 
supplied with liability protection in perpetuity in order to ensure 
that they can afford to undertake the project. Similarly, an 
expectation that the applicant has sufficient financial resources to 
carry out all operation and maintenance activities related to the 
project may be prohibitive. Most potential Good Samaritan groups, 
including state and local governments, will not have the type of 
financial resources available to fulfill or guarantee this requirement.
    A third important recognition is that onerous, complex requirements 
for achieving status as a Good Samaritan and securing project approval 
will at some point be counterproductive to encouraging more work. There 
has been a tendency in past Good Samaritan proposals for the 
requirements to become very similar if not nearly identical to that of 
standard NPDES permits, which would ultimately mean little if any 
effective difference from the status quo would be achieved.
    Potential Good Samaritans, in particular non-governmental 
organizations (NGOs), tend to have limited funding, often in the form 
of discrete grants. They often acquire funding for watershed 
restoration projects in small incremental amounts over long periods of 
time. Overly burdensome permitting requirements will therefore be cost-
prohibitive, as many NGOs will not be able to afford compliance with 
overly elaborate permitting requirements. Much of this permitting 
activity would have to be completed before the project is approved and 
many NGOs will be reluctant to expend a substantial amount of their 
limited grant funding to develop a project that may never be 
implemented. States similarly must be very careful in how they proceed 
with their limited hardrock AML funding. For these reasons it must be 
acknowledged that for Good Samaritan policy to be effective, there must 
be careful attention paid to constructing a system that is not unduly 
burdensome on states or their potential volunteer partners. A 
reasonable balance must be struck between ensuring the project will 
proceed properly and that it will be possible to do the project at 
all--and the states' experience demonstrates that this balance is 
achievable.
    As an alternative to the stand-alone permitting system often 
proposed by past legislation, we suggest consideration of a procedure 
similar to that utilized by the Commonwealth of Pennsylvania's 
successful Good Samaritan program. The EGSA utilizes letters of 
approval that apply to a specific AML or AMD project rather than 
permits, and is generally more workable and less cost-prohibitive to 
the efforts of potential Good Samaritans. For example, grant 
applications include descriptions of the proposed projects, but are not 
required to submit detailed engineering plans until the basic aspects 
of the project have been approved, thereby preventing the potential 
Good Samaritan group from wasting limited resources. Additionally, EGSA 
approval provides Good Samaritan projects involving treatment systems 
that require long-term operation and maintenance perpetual protection 
from liability, rather than only during the duration of a permit, which 
quells concerns with long-term liability.
A State-lead Partnership Model; Working within Existing Frameworks
    There are many state and tribal agencies throughout the country 
whose mission is to reclaim hardrock AML sites and restore AMD-impacted 
water. While the focus of Good Samaritan policy discussions is 
generally on protecting volunteer groups, providing protection for 
these state and tribal agencies is an equally critical, if not more 
fundamentally needed step in encouraging this type of work. The 
agencies that have been ordained for this specific purpose, and the 
environmental law frameworks they work within, are not being allowed to 
fulfill the mission they were designed to do. The circumstances 
described above continue to discourage if not totally preclude many 
state's and tribe's ability to treat water under their dedicated AML 
programs; and even in states that have been able to proceed with some 
amount of water treatment work, these circumstances have been a 
severely complicating factor. Recognizing this, we recommend that Good 
Samaritan policy first seek to establish a means for the states and 
tribes to fulfill their missions and conduct this work free from the 
unhelpful aspects of the CWA. Building on that notion, working through 
existing state and tribal regulatory frameworks to the extent possible 
and emphasizing a state-lead partnership approach will lead to optimal 
results for potential Good Samaritan legislation.
    In accordance with the principles of state primacy contained in 
laws such as SMCRA and the Clean Water Act, it is essential that Good 
Samaritan programs be administered by state and tribal agencies. The 
states and tribes best understand the specific complexities associated 
with abandoned mine lands within their borders and tend to have better 
working relationships with potential Good Samaritans. Our experience 
indicates that reliance on the state and tribal AML programs is crucial 
to achieving workable Good Samaritan policy. For example, one of the 
key components of the Pennsylvania EGSA program's success is its 
reliance on the state AML program's long-standing expertise in their 
field. Under the EGSA, all activities related to a given project 
proceed under the guidance and approval of the PADEP, which utilizes 
its expertise and long resume of successful water treatment projects to 
appropriately adjust requirements to match the scale and complexity of 
the proposed project and to ensure that only well-conceived projects 
move forward. PADEP works very closely with Good Samaritan volunteers 
to assist them in the process of assessing circumstances, receiving 
necessary approvals, designing a project, and conducting and overseeing 
work on the project.
    Optimal Federal Good Samaritan legislation will seek to emulate 
this type of partnership approach, which was also utilized in the 
Committee's recent Community Reclamation Partnerships Act (H.R. 2937). 
Partnership between state agencies and Good Samaritan groups is of 
great mutual benefit--Good Samaritan groups can be guided through the 
process of pursuing a project with the unique experience of the AML 
programs, and the program is able to harness the passion and financial 
resources available in these groups toward their mutual goals of 
improving water quality.
The Scope of Eligibility
    The scope of liability protection is another key consideration for 
Good Samaritan policy. The states and tribes have several 
recommendations related to the necessary scope of protection intended 
to ensure that Good Samaritan policy has its intended effect of 
meaningfully facilitating AMD treatment work.
    For example, Good Samaritan project eligibility should be extended 
to projects undertaken on state, tribal, and private lands in addition 
to Federal lands. Pollution problems know no such boundaries and must 
be addressed wherever they occur.
    Further to that point, it has been the states' experience, in 
particular through Pennsylvania's EGSA, that the extension of 
protections to innocent landowners is critical to a viable Good 
Samaritan program. Many landowners will not cooperate if they are not 
distinctly protected, because if not, they risk being held permanently 
responsible for untenable water treatment requirements simply by 
allowing a project to take place on their property. The inclusion of 
language speaking directly to the potential liabilities of landowners 
will help ensure the success of Good Samaritan legislation.
    Many previous Good Samaritan legislative efforts have focused only 
on liability with regard to the Clean Water Act. While this is 
certainly the most pronounced issue, it should be noted that Good 
Samaritan remediation efforts may also be stifled by the prospect of 
incurring liability under a variety of other Federal environmental laws 
such as the Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA), depending on the situation. The key here is 
that if potential Good Samaritans do not feel completely assured of 
liability protection related to these additional laws, many potential 
Good Samaritan groups will have little choice but to forego working at 
sites where the risk is simply too great a threat to their 
organization's financial health. A system that allows liability 
coverage to be tailored to the situation and the treatment strategy at 
hand would greatly help to alleviate these concerns.
    The considerations recommended above will result in more prevalent 
and effective AMD water treatment work and mine waste removal actions 
by the state and tribal AML programs, additional engagement of private 
funding resources in Good Samaritan groups, and a more effective 
overall implementation of Federal Environmental Law with respect to 
these sites. Without such improvements, the difficulties in CWA's 
application to abandoned AMD pollution will continue to constrain and 
delay much-needed progress.
                               conclusion
    The legacy of abandoned mine lands still looms large in many of our 
Nation's communities. In the pursuit of eliminating the lingering 
effects of abandoned mines, and in particular the impairment of water 
resources, every source of help is needed. To that end, the enactment 
of reasonable CWA (and other Federal environmental law) liability 
protection for prospective Good Samaritan groups and state and tribal 
AML programs holds immense potential benefit. The states' experience 
demonstrates that the Good Samaritan idea works, but the Federal-level 
obstacles to further enfranchisement of these groups must be removed. 
In a time when funding available from SMCRA is approaching expiration, 
and Federal Budget proposals are continuing to scale back on our 
Federal partners' hardrock AML funding, help from Good Samaritans is 
more needed than ever. As Congress continues to consider how to contend 
with the multi-billion dollar public cost represented by remaining 
hardrock AML problems, it is clear that every source of help is needed. 
NAAMLP would welcome the opportunity to work with the Committee in 
designing balanced, sensible, effective Good Samaritan legislation.
    Thank you for the opportunity to submit this statement. Should you 
have any questions or require additional information, please contact 
us.

                                 ______
                                 

Questions Submitted for the Record by Rep. Gosar to Ms. Autumn Coleman, 
 Vice President of NAAMLP and Abandoned Mine Lands Programs Manager at 
                              Montana DEQ

    Question 1. At many reclaimed sites, long-term water treatment is 
often necessary to prevent future acid mine drainage from occurring. 
However, many third-party actors do not have the means to manage 
treatment facilities in-perpetuity.

     In your view, what is the best approach for handling the 
            long-term maintenance of water treatment systems?

    Answer. Acid Mine Drainage (AMD) treatment is often prohibitively 
expensive for potential Good Samaritans. Most of the Good Samaritan 
discussion focuses on the need to incentivize these actors to make 
water quality better without the fear of becoming liable for not making 
it perfect. This question points out another dimension of the Good 
Samaritan's dilemma. Their potential exposure extends not just to 
liability for treatment to ``perfect'' quality, but also for such 
treatment over an unlimited length of time. Liability for long-term 
operation and maintenance (O&M) requirements must also be addressed. If 
steps can be taken to design a practicable system for long-term O&M at 
Good Samaritan projects, it may be possible to improve these groups' 
ability to participate.
    For example, while decades-long O&M plans will be too onerous for 
the vast majority of potential Good Samaritans to bear, a more 
reasonable 5-10 year plan may be tenable. The key is for these plans to 
be flexible and provide a distinct end point to a Good Samaritans 
responsibility at a site. The abandoned mine lands program's ability to 
review project plans and assess their feasibility before approving a 
Good Samaritan project will ensure that O&M requirements are well 
designed for their purpose.
    Good Samaritans cannot be expected to sign up for an indefinite and 
unpredictably expensive responsibility at treatment site, but that 
extreme extent of responsibility and planning is unnecessary. 
Circumstances at these sites change over time and updated decisions 
must be made about treatment as time goes on, for example where 
technology advances and improvements can be made. It is also possible 
that new funding and personnel resources become available as time goes 
on, especially after a system begins to demonstrate water improvements 
and its value becomes more obvious. To accommodate those circumstances 
and allow the use of more practical, short-term O&M plans, it is 
critical that O&M responsibilities can be split or shared among 
multiple parties.
    The level and types of O&M anticipated for Good Samaritan projects 
should be flexible and based on specific circumstances and goals at a 
given site. The overall goal should be accomplishing the most 
efficient, effective improvements in water quality given the resources 
available, and O&M requirements should be scaled to meet those more 
modest goals. Finding the correct balance for O&M requirements at a 
given site is important to ensure that enough funding and personnel 
resources are available to address other sites in the region, in order 
to maximize the restorative effect a network of AMD treatment projects 
can have.

    In Montana, when we evaluate the best approach for AMD treatment we 
consider the following items. Plans for O&M at AMD treatment projects 
should address the same basic components whether it is a large-scale 
active AMD treatment system or a smaller passive AMD treatment system 
such as a doser or wetland cell.

  1.  The scale of the existing problem and our water quality goals;

  2.  Feasibility of treatment technology given the site conditions and 
            selection of the best available option given the resources;

  3.  Monitoring plan to demonstrate water quality improvements;

  4.  Funding source and annual budget for operations and maintenance 
            (O&M);

  5.  Anticipated life cycle;

  6.  O&M plan and responsibilities; and

  7.  Plan for decommissioning the treatment system at the sunset of 
            funding.

                                 ______
                                 

    Dr. Gosar. Thank you, Ms. Coleman.
    I now recognize Mr. Wood for his conversation for 5 
minutes.

 STATEMENT OF CHRIS WOOD, PRESIDENT AND CEO, TROUT UNLIMITED, 
                      ARLINGTON, VIRGINIA

    Mr. Wood. Chairman Gosar, Ranking Member Lowenthal, and 
other members of the Subcommittee, my name is Chris Wood and I 
have the privilege of serving as the President and CEO of Trout 
Unlimited.
    I want to thank everyone here for their leadership on this 
issue of cleaning up abandoned mines. This Committee and then 
the entire House of Representatives played a really vital role 
in passage of the Community's Reclaimers Act, which was very 
significant earlier this year. Hopefully, today will be a step 
toward applying similar common-sense protections for would-be 
Good Samaritans who wish to clean up abandoned hardrock mines 
as opposed to coal mines, which the Community's Reclaimers Act 
implicates.
    My testimony today is on behalf of 300,000 members and 
supporters nationwide. Abandoned hardrock mines are ticking 
time bombs that dot the western landscape. The EPA estimates 
that 40 percent of western headwater streams are negatively 
affected by abandoned mines.
    The reason that we care so much about this issue is because 
those headwater streams are exactly where all of our native 
trout are holed up these days, not to mention that they are 
also the sources of drinking water of tens of thousands of 
downstream communities.
    The challenges for organizations such as mine who are 
dedicated to protecting and restoring trout and salmon and the 
rivers in which they live, is that in some cases if we touch 
abandoned mine waste, we become part of that chain of liability 
that Autumn mentioned.
    If, for example, we were to improve water quality by 95 
percent by spending $200,000, but do not have either the 
technical capacity or perhaps the additional $1 million or $2 
dollars that we might need to get to 100 percent of water 
quality standards, we may be liable under the Clean Water Act. 
That is a bit of simplification of the scenario on the ground, 
but it is also a reality.
    Good Samaritans like Trout Unlimited have no legal 
obligation to take on abandoned mine cleanup. We do so simply 
based on a desire to improve water quality and watershed 
health.
    This is a proposal without critics. There is no 
constituency for acid mine drainage. Everyone, from our 
partners such as Tiffany & Company, to mining companies such as 
Newmont, Freeport-McMoran, Kinross, and a host of state and 
Federal agencies, everyone wants clean water and fishable water 
for their communities and their children.
    Despite a general lack of opposition, Good Samaritan 
legislation has been a challenge, so we wanted to recommend an 
approach that we think might work. Specifically, we urge the 
Committee to consider legislating a pilot program, whereby EPA 
in coordination with the states could authorize 5 to 10 
projects or so in the western states to allow us to prove that 
the Good Sam concept can be turned into reality.
    In pursuit of our mission, Trout Unlimited has restored 
streams and rivers damaged by abandoned mines from the 
Appalachian Coal Fields to the hardrock mining areas of the 
Rocky Mountain states.
    Theodore Roosevelt once defined conservation as the 
application of common sense to common problems for the common 
good, and no definition could better describe the need for Good 
Samaritan legislation.
    Thank you, Chairman.

    [The prepared statement of Mr. Wood follows:]
   Prepared Statement of Chris Wood, President & CEO, Trout Unlimited
    Chairman Gosar, Ranking Member Lowenthal, and Subcommittee members, 
my name is Chris Wood. I am the President and CEO of Trout Unlimited. 
Thank you for the opportunity to testify today on abandoned hardrock 
mines and the role of non-governmental entities in helping to clean up 
pollution from them.
    I offer the following testimony on behalf of Trout Unlimited and 
its nearly 300,000 members and supporters nationwide. My testimony will 
focus on the need for legislation and funding to facilitate the cleanup 
of abandoned hardrock mine lands and water, and specifically the need 
to facilitate abandoned hardrock mine cleanups by ``Good Samaritans''--
those individuals or entities who have no legal obligation to take on 
an abandoned mine cleanup, but who wish to improve water quality and 
watershed health.
    We deeply appreciate the Subcommittee's focus on this issue, and we 
urge the Subcommittee to continue to work with us, the states, the 
Interior Department, the EPA, and other stakeholders to fashion a bill 
to help provide an important tool to facilitate cleanups. Last year's 
successful passage of the Subcommittee's ``Community Reclaimers'' bill 
to facilitate cleanup of abandoned coal mines was a great step forward.
    But we need both the coal and hardrock Good Sam bills to cross the 
finish line and get enacted into law. Looking back, I was very involved 
in the effort to develop a hardrock Good Sam bill that passed the 
Senate Environment and Public Works Committee--but got no further--all 
the way back in 2006. We are 12 years down the road and past due for 
passage of Good Sam legislation.
    In the vein of making it more, rather than less, likely that a bill 
could pass Congress this year, there are several legislative approaches 
that could work well for Good Samaritans that might reduce potential 
opposition to the Good Sam concept. Specifically, we urge your 
attention to the idea of legislating a pilot program whereby EPA, in 
coordination with the states, could authorize 5-10 projects in the 
western states to allow us and others to prove that the Good Sam 
concept can be turned into reality. Last Congress' Gardner, Bennet, 
Tipton Draft measure could be used as the permit mechanism for the 
pilot programs. Title III, of Representative Lamborn's H.R. 3843 of the 
previous Congress, could also work as the pilot project permit 
mechanism.
    Whatever the legislative solution might be, TU is ready to go to 
work to clean up abandoned mine pollution. TU's mission is to conserve, 
protect and restore North America's trout and salmon fisheries and the 
watersheds they depend on. In pursuit of this mission TU has worked to 
restore streams and rivers damaged by pollution from abandoned mines 
from the Appalachian coalfields in Pennsylvania to the hardrock mining 
areas of the Rocky Mountain states, and my testimony is based upon 
these experiences. We need such legislation and additional funding to 
expand the pace and scale of work to clean up abandoned mines. We seek 
a bipartisan Good Sam bill to address what is clearly a bipartisan, 
multi-state, problem.
    Allow me to take a few moments to describe one of the Nation's 
worst remaining pollution problems--the scourge of acidic and toxic 
orange colored abandoned mine pollution coming down into the headwaters 
of the West's great rivers.
  abandoned mine pollution is a widespread problem but much of it is 
                                fixable
    Americans want clean water. Americans do not want orange water 
running through their backyards and into their rivers.
    Trout Unlimited members and staff are passionate about cleaning up 
abandoned mine pollution. Even a cursory look at the damages to our 
streams, rivers and groundwater caused by pollution from abandoned coal 
and hardrock mines show that we have a long way to go to achieve clean 
water for all. There is no better time than right now, as the Trump 
administration and the 115th Congress discuss including water clean-up 
work as part of an infrastructure package, to address cleanup of 
pollution from abandoned coal mine.
    Sadly, much of abandoned mine pollution is ``out of sight, out of 
mind.'' But in August 2015, we received a vivid view of the mess. The 3 
million gallons spill of polluted water from the Gold King mine near 
Silverton, Colorado showed the world what TU members and staff who live 
in mining country see every day: orange, polluted water leaking out 
from abandoned mines.
    Cleaning up abandoned mines is challenging and expensive. That does 
not make it any less important. The legacy of historical mining 
practices--thousands of abandoned coal and hardrock mines with an 
estimated cleanup cost in the billions of dollars--has persisted for 
the better part of a century with insufficient progress toward a 
solution.
    Abandoned coal mines dot the Rocky Mountain and Appalachian 
landscape. Pollution from abandoned hardrock mines impairs as much as 
40 percent of the headwater streams in the region, and abandoned coal 
mines continue to damage thousands of miles of streams and rivers--over 
10,000 miles just within Pennsylvania and West Virginia. While much has 
been accomplished through the Surface Mining Control and Reclamation 
Act's (SMCRA) extremely valuable Abandoned Mine Lands Fund (AML Fund) 
for abandoned coal mine cleanup, no analogue exists for hard rock 
mines. Coming up with dedicated funding is essential to cleaning up 
abandoned hard rock mines in the western United States.
    We have developed several model projects that can be replicated and 
taken to scale. In Pennsylvania, aided by state-based Good Samaritan 
policy, watershed groups, including Trout Unlimited, are working with 
state agencies, communities, and other partners to conduct more than 
250 abandoned coal mine pollution projects throughout the state. We can 
do a lot more if the problem is fixed in the East, and we can develop 
similar model projects in the West if the right policies and adequate 
funding are in place. I will speak to the barriers, and then I will 
turn to the solutions.
 parts of our best environmental laws, the clean water act and cercla 
      (superfund), can be barriers to abandoned coal mine cleanup
    TU and other prospective Good Samaritans are interested in cleaning 
up smaller, lower risk abandoned mine sites. We are not interested in 
larger, higher risk, sites where ownership and reclamation 
responsibility is clear.
    Smaller sites generally are not a high enough priority to get 
funding under the ``Superfund'' provisions of CERCLA. For these sites, 
where the parties responsible for the mining pollution are long gone, 
and with current owners having little to no incentive to do any of the 
cleanup because of liability risks, projects to reduce pollution can 
become a legal quagmire. A partnership between TU, western states, and 
EPA resulted in EPA policy that provides useful protection to Good 
Samaritans from CERCLA liability in 2007,\1\ but CWA liability has 
remained a significant obstacle.
---------------------------------------------------------------------------
    \1\ http://water.epa.gov/action/goodsamaritan/.

    CERCLA: When TU first started working on abandoned hardrock mines 
in the West, we had liability concerns under CERCLA and the Clean Water 
Act that prevented many Good Samaritan projects from moving forward. 
CERCLA presented a significant barrier to Good Samaritan projects, both 
because the statute presents real risks for any party helping to clean 
up toxic wastes, but also because the statute's complexities and 
perceived risks are incredibly daunting for many watershed groups, 
local communities and NGOs. If any liability concerns were raised, even 
the legal cost of sorting through it would financially strain a non-
profit such as TU.
    In 2006, TU completed a pioneering Good Samaritan cleanup in Utah's 
American Fork Canyon that overcame CERCLA liability concerns with the 
help of EPA, the Forest Service and the state of Utah. The liability 
protection document (an Administrative Order on Consent, or ``AOC'') 
negotiated with the EPA for the American Fork work led to the issuance 
of EPA guidance and model documents for dealing with CERCLA liability 
protection for future Good Samaritans to use in similar projects.
    TU has now negotiated three separate AOCs with the EPA covering two 
different projects--one project on the American Fork in Utah (two AOC's 
for different phases of the project) and another on Kerber Creek in 
Colorado. These AOCs have allowed TU to undertake cleanup projects with 
significant local benefits while eliminating the risks of additional 
cleanup expenses or future liability under CERCLA. We greatly 
appreciate the work that EPA has put into their model AOC for Good 
Samaritan cleanups, and the work that EPA staff have put into 
negotiating the specific AOCs for TU. Though there remains the need for 
legislation, the AOCs have helped to reduce one of the major 
impediments that have prevented communities, watershed groups, 
conservation organizations, TU chapters and others from undertaking 
abandoned mine cleanup projects.

    Clean Water Act: There are many projects where water quality could 
be improved by collecting run-off, or taking an existing discrete 
discharge, and running the polluted water through a treatment system. 
However, for would-be Good Samaritans, Clean Water Act (CWA) compliance 
and liability issues remain a barrier to such projects. Several courts 
have held that discharges from systems that treat wastewater from 
abandoned mines are point source discharges that require a National 
Pollutant Discharge Elimination System (NPDES) permit under section 402 
of the CWA. Although EPA and some eastern states have not considered 
such projects to be point sources requiring NPDES permits, the Fourth 
Circuit's 2010 decision in West Virginia Highlands Conservancy, Inc. v. 
Huffman creates uncertainty around that approach.
    Stakeholders in projects involving treatment of mine drainage have 
been held back because of CWA liability for two reasons. First, NGOs, 
including TU, are not well suited to apply for and hold permits for 
such projects. TU does not have an adequate funding mechanism to 
legally bind itself to pay for the perpetual costs associated with 
operating a water-treatment facility and permit compliance.
    Second, for many projects it may be impossible to obtain a permit, 
because the treatment systems, even if they will greatly improve 
conditions, may not be able to treat abandoned mine wastewater to a 
level that meets all applicable water quality standards or other 
applicable criteria. It should be noted that while these treatment 
systems are certainly capable of producing water that will support a 
healthy fishery, the resulting water quality might not meet CWA 
standards for some pollutants that are particularly difficult to remove 
from mine waste. For example, passive wetland systems that effectively 
treat highly polluted water often leave levels of manganese that do not 
comply with CWA standards.
    This is not to say that CWA standards should be weakened; just the 
opposite, in fact. But there should be incentives for would-be Good 
Samaritans to make water cleaner even if water quality is still short 
of full CWA standards. Put another way, Federal law should provide 
incentives for would be Good Samaritans to make our water cleaner and 
communities safer, one project at a time. The rationale for this is 
simple--Good Samaritans can deliver outstanding projects with our 
local, state and Federal partners, which cumulatively can make a huge 
improvement in a particular watershed.
    TU has worked with the EPA to try to address these challenges, and 
we appreciate the efforts the agency has made to help us and other 
would-be Good Samaritans. For example, in December of 2012 the EPA 
issued a guidance memo designed to clarify how the Clean Water Act 
applies to Good Samaritan abandoned mine cleanup projects. The guidance 
memo requires potential Good Samaritans to fully comply with the 2007 
Superfund Good Sam policy, but allows eligible Good Samaritans to avoid 
CWA requirements under certain circumstances.
    Several years of experience now indicate that the restrictions in 
the guidance memo may not be a good fit for the type of work, such as 
passive treatment facilities, that is needed. Indeed, the details of 
the policies application remain quite unclear, in part because no one 
has yet opted to use it for a project because, among other questions, 
the policy leaves open the liability and compliance obligations of 
owners of land where projects take place. While the EPA's guidance memo 
is a good start, a legislative solution is necessary.
    As we explain in more detail below, TU is working with our partners 
and allied watershed groups to restore miles of stream in places like 
Pennsylvania, Colorado, Montana, and Washington right now under the 
constraints of current law. With Good Sam policy and increased funding 
in place, the sky is the limit on fighting back against pervasive 
abandoned mine pollution.
  good projects could be expanded and replicated with effective good 
                       samaritan policy for coal
Western Projects
    By using the CERCLA liability protection and avoiding projects that 
trigger Clean Water Act liability, and with the support of the Tiffany 
& Co. Foundation, Freeport-McMoRan Copper & Gold, Inc., and other 
partners and supporters, TU has made substantial progress in cleaning 
up abandoned mine impacts in several watersheds in the West. These 
projects not only improve the environment, but also put local 
contractors to work, providing both clean water and jobs.

    American Fork, Utah. The Pacific Mine cleanup in the American Fork 
Canyon was the first voluntary, non-profit-led abandoned hardrock mine 
restoration project in the West. TU and its partners received awards 
from the Utah Board of Oil, Gas and Mining and the EPA for work on the 
American Fork. Anglers can now catch Bonneville cutthroat trout 
immediately downstream of the area where pollution used to run off mine 
tailings piles.

    Mores Creek, Idaho. To date, over 14,000 cubic yards of mine 
tailings have been removed from the banks of Mores Creek to create a 
more natural floodplain area, and trees planted along the stream will 
provide critically needed shade for coldwater fish. Hundreds of 
schoolchildren from the area have participated in tree plantings and 
other restoration work. Migratory fish are now seen using instream 
habitat structures installed as part of the restoration effort.

    Kerber Creek Watershed, Colorado. In total, TU and its partners 
restored over 80 acres of mine tailings, improved 8 miles of stream, 
and installed more than 340 instream structures that are now home to a 
reproducing brook trout population. Volunteers logged over 13,000 hours 
of work in the watershed over the past 3 years. The restoration project 
has received four prestigious awards: the BLM's Hardrock Mineral 
Environmental Award, the Colorado Riparian Association's Excellence in 
Riparian Area Management Award, the Rocky Mountain Region of the USFS's 
Forest and Grassland Health Partner of the Year, and the Public Lands 
Foundation's Landscape Stewardship Award.

    Leavenworth Creek Watershed, Colorado. In 2015, TU and Federal 
partners removed and capped 5,400 cubic yards of mill tailings 
containing high levels of zinc and lead, while constructing 2,500 feet 
of hardened channel through a dispersed tailings area adjacent to the 
Waldorf Mine. Removing the mill tailings, creating a vegetated 
floodplain, and establishing a hardened channel will allow for the 
conveyance of clean surface water runoff to Leavenworth Creek. This is 
an important step in improving water quality to downstream South Clear 
Creek, which acts as the drinking water source for the town of 
Georgetown, Colorado.

    Clark Fork River Basin, Montana. TU and partners have reclaimed 
four mine sites in the Middle Clark Fork River and have six ongoing 
mine reclamation projects in the planning and design phases. For 
example, on Mattie V Creek, TU and its partners removed 12,000 cubic 
yards of dredge tailings and reclaimed 500 feet of stream channel 
reclamation project. Fish are now swimming up Mattie V Creek from 
Ninemile Creek for the first time in 80 years. Because of these and 
other accomplishments, the TU project manager in Montana was awarded 
with the American Fisheries Society's Individual Achievement Award and 
the U.S. Forest Service's Rise to the Future Award in 2010.
Eastern Projects
    In Pennsylvania, abandoned coal mine pollution is being 
successfully treated and streams and rivers are being brought back to 
life because the Commonwealth has provided Good Samaritans with 
dedicated funding. We believe that we can export the Pennsylvania model 
across the rest of the country if liability concerns are eased and 
funding is increased.

    Kettle Creek, Pennsylvania. Our experiences in Pennsylvania are 
illustrative of the positive effect of Good Samaritan cleanups. Over 
the past 20 years, Pennsylvania has seen an increase in abandoned mine 
reclamation projects by watershed groups, including TU. This boom has 
been fueled by funding from the state's Growing Greener grant program 
and the Federal Abandoned Mine Land (AML) reclamation fund. Most of 
these projects involve treatment of acid mine drainage using passive 
treatment systems, which run the polluted mine drainage through a 
series of limestone basins and wetlands that increase the water's pH 
and cause heavy metals to precipitate out. These projects have 
significantly improved water quality and restored fish populations in 
numerous Pennsylvania streams.
    The Pennsylvania Department of Environmental Protection estimates 
that public funding sources have paid for the construction of nearly 
250 passive treatment systems in the state, the majority of which have 
been constructed by private watershed groups, conservation districts or 
other local groups.
    Beginning in 1998, the work of TU and its partners in the lower 
Kettle Creek watershed has resulted in the reclamation of approximately 
160 acres of scarred abandoned mine lands and installation of nine 
treatment systems that successfully improved mine water polluted with 
high levels of acidity and metals. The results to date have been 
tremendous, with water quality restored to 3 miles of previously dead 
streams and 6 miles of a fully reconnected and thriving native brook 
trout population.
    This story of recovery plays out again and again in individual 
streams and watersheds. Several years ago, the Babb Creek Watershed 
Association accomplished de-listing 14 miles of Babb Creek, now a wild 
trout fishery, from EPA's impaired streams list. Another 14 miles in 
the Tangascootack Creek watershed is pending removal from the impaired 
streams list as a result of passive treatment systems constructed by 
the Clinton County Conservation District.
    On a much larger scale, the West Branch Susquehanna River watershed 
has made tremendous strides over the past few decades. A comparison of 
conditions in the West Branch Susquehanna in 1972 with those in 2009 
indicated that fish species increased 3,000 percent, and pH increased 
from 3.8 to 6.6.
    These improvements result in economic benefits. In Pennsylvania, 
almost $4 billion was spent on fishing, hunting, and wildlife viewing 
in 2006. A 2008 study found that full remediation of the West Branch 
Susquehanna River watershed would result in ``an additional $22.3 
million in sport fishing revenues could be expected to be generated 
each year. Additional recreation spending--over and above that for 
fishing--would be expected after remediation is completed.'' 
[1]

    Regardless of the overall scope of the abandoned mine problem, each 
of these projects restored a significant water body and represents a 
big win for the local community.
              what we would like to see in a good sam bill
    Good Samaritan projects need an appropriate mechanism that requires 
the project to produce significant improvements in water quality, 
implement best-design and management practices, and conduct appropriate 
monitoring, but that does not expose the Good Samaritan to liability if 
the project at some point fails to achieve a required criterion for a 
given pollutant.
Positive Features of a Draft Bill

     Authorizes EPA, in coordination with the appropriate state 
            agencies, to approve 5-10 qualified Good Sam pilot 
            projects.

     The Clean Water Act liability protection mechanism should 
            be narrowly tailored and ensures that water pollution 
            clean-up results in a significant improvement to the 
            environment.

     The bill should supply adequate public notice and comment 
            for each project.

     The bill should clarify that private landowners who are 
            not responsible for abandoned mine cleanup on their lands, 
            but who are willing to work cooperatively with the Good 
            Sams and the state to clean up pollution from abandoned 
            mines on their land, should also receive liability 
            protection from the bill over the life of the project.

     Projects must meet applicable water quality standards to 
            the maximum extent practicable ``under the circumstances.'' 
            We will need to make sure that implementing agencies 
            understand that ``under the circumstances'' will mean 
            performing cleanup activities that are cost-effective at 
            high elevations and in remote locales.

     Projects are eligible for Clean Water Act Section 319 
            funding. Abandoned mine cleanup activities sometimes fall 
            into a gray area of the law between non-point and point 
            source control. Greater application of 319 funds to this 
            work will be very helpful.

     The bill should provide protection from future liability 
            from the Clean Water Act and CERCLA once Good Samaritans 
            have successfully completed their permitted work 
            activities. This provision is much appreciated and is in 
            fact, essential for any Good Samaritan projects.

                         more funding is needed
    Cleanup of abandoned coal mine pollution is a long-term job, and 
long-term funding is needed to get the job done.
    We urge Congress to consider establishing a fair royalty from any 
minerals taken from public lands, a portion of which could be invested 
in an abandoned hardrock mine cleanup fund. Almost every commodity 
developed on our public lands--coal, wood fiber, oil, gas, and 
livestock forage--has dedicated funding for mitigation of impacts and 
restoration. The only commodity that lacks such a dedicated fund is 
hardrock minerals.
                               conclusion
    Improving water quality around the Nation is a fundamental goal of 
the work of this Subcommittee, and thus we are pleased that the 
Subcommittee is looking at one of the most vexing water problems 
remaining in coal country. We stand ready to work with you so that 
affected communities around the Nation will again have clean, fishable 
waters. Thank you for considering our views, and thank you for working 
with us on these important matters.

                                 ______
                                 

    Dr. Gosar. I thank the gentleman.
    I now recognize Mr. Strohmaier for his 5 minutes.

   STATEMENT OF HON. DAVID STROHMAIER, COUNTY COMMISSIONER, 
                    MISSOULA COUNTY, MONTANA

    Mr. Strohmaier. Chairman Gosar, Ranking Member Lowenthal, 
and members of the Subcommittee, thank you for the opportunity 
to testify today on the problems and potential solutions to 
cleaning up abandoned hardrock mines.
    My name is David Strohmaier and I am a county commissioner 
from Missoula County, Montana. Speaking as a fellow elected 
official, I want to thank all of you for your service, which I 
am sure you do not hear often enough.
    With the Chair's permission, Austin has agreed to project a 
graphic that goes along with the presentation.
    [Slide.]
    Missoula County is home to blue ribbon trout streams such 
as the Blackfoot, Bitterroot, Clearwater, and Clark Fork. 
Outdoor recreation is intrinsic to our way of life. It is also 
crucial to our economy. In fact, recreation is now the largest 
sector of Montana's economy.
    When entrepreneurs come before our Commission seeking 
economic development assistance, I frequently ask them why they 
want to invest in Missoula County, and almost without 
exception, the first response they give is quality of life, 
which has everything to do with water.
    Clean, cold water not only supports our recreation economy 
and attracts business, our waters have sustained indigenous 
peoples from time immemorial and are at the core of modern 
treaty rights. Moreover, since the settlement era, our rivers 
and streams have watered crops and livestock on farms and 
ranches in western Montana.
    Montana also has a long and rich history of mining, yet 
thousands of abandoned hardrock mines in our state have left 
behind a legacy of water pollution, harming fish, wildlife, and 
their habitat, contaminating drinking water and degrading our 
iconic trout streams. I agree that Good Samaritan initiatives 
will provide important opportunities for abandoned mine cleanup 
by NGOs, but we must not lose sight of the sheer scale of the 
problem faced by western communities due to abandoned mine 
pollution. Missoula County alone contains 186 abandoned and 
inactive mines.
    The Surface Mining Control and Reclamation Act, or 
otherwise known as SMCRA, for nearly two generations has 
required the coal industry to pay a fee for abandoned mine 
reclamation. An independent, dedicated funding source for 
hardrock abandoned mine cleanup similar to the SMCRA program is 
long overdue.
    Missoula County in partnership with Trout Unlimited and the 
Lolo National Forest have secured over $3 million to clean up 
abandoned placer mining and associated dredging. Nine Mile 
Creek located 20 miles west of Missoula is one of the most 
important native trout tributaries of the Middle Clark Fork and 
one of the most affected by mining impacts. Many of the 
tributaries of Nine Mile Creek nearly empty into dredge ponds 
rather than the creek itself.
    Today, we have completed several mine reclamation projects 
in Nine Mile watershed yielding reduced sediment loading and 
enhanced fish passage. Bull trout now freely move between Nine 
Mile Creek and tributaries for the first time in 70 years.
    But there is more work to do. Another $4.5 to $5 million 
are needed to fully restore Nine Mile Creek and adjoining 
tributaries.
    In conclusion, Good Samaritan liability waivers, charitable 
giving, and charitable cleanup are only a small part of the 
abandoned mine solution. We, in Missoula County, Montana, hope 
that policy makers will find a path forward for Good Samaritans 
to help clean up some abandoned mines across the West. However, 
creating a dedicated, meaningful funding stream is essential to 
fully address the problem. Short of this, state, local, and 
tribal governments and citizen groups can only help clean up a 
small number of projects and our Nation's waters, public 
health, and economy will suffer.
    As Norman Maclean said in his novella, A River Runs Through 
It, Missoula lies ``at the junction of great trout rivers in 
western Montana.'' For future generations of Montanans and 
visitors alike, we need to ensure that it remains that way, 
that water continues to run clean, and where it is degraded, we 
take steps to solve the problem. To do less is to squander the 
birthright of future generations in our state and across the 
Nation.
    Thank you again for the opportunity to testify, and I would 
be happy to answer any questions.

    [The prepared statement of Mr. Strohmaier follows:]
 Prepared Statement of David Strohmaier, County Commissioner, Missoula 
                            County, Montana
    Chairman Gosar, Ranking Member Lowenthal, and members of the 
Subcommittee, thank you for the opportunity to testify before you today 
on the problems and solutions to cleaning up abandoned hardrock mines. 
My name is David Strohmaier and I am a county commissioner from 
Missoula County, Montana.
    Outdoor recreation is intrinsic to our way of life, but it is also 
crucial to our economy. In fact, recreation is now the largest sector 
of Montana's economy, garnering over $7 billion in annual consumer 
spending.\1\ People come to Montana and Missoula County for our world 
class trout streams, abundant public lands, and quality of life. In 
Montana, counties are charged with the responsibility of reviewing 
applications for Big Sky Trust Fund job creation grants. When 
entrepreneurs come before us, I frequently ask them why they want to 
invest in Missoula or Missoula County. Almost without exception, the 
first response they give is quality of life. According to Jeff Fee, 
interim director of the Missoula Economic Partnership, ``Missoula's 
natural scenery and opportunities for outdoor recreation contribute to 
our growing economy and enhance our ability to attract new businesses 
and skilled workers to our region. A clean, safe environment is 
inextricably linked to quality of life for Missoulians who choose to 
start new businesses and raise their families here.'' \2\
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    \1\ Outdoor Industry Association, ``Montana Outdoor Recreation 
Economic Report,'' July 26, 2017. Available at: https: / / 
outdoorindustry.org/resource/montana-outdoor-recreation-economy-
report/.
    \2\ Jeff Fee, Interim Director, Missoula Economic Partnership, 
personal communication, March 12, 2018.
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    Clean, cold water not only supports our recreation economy and 
attracts business, it has also sustained generation upon generation of 
indigenous peoples in the northern Rockies and is at the core of the 
Confederated Salish and Kootenai Tribes' treaty rights. Moreover, since 
the settlement era, our rivers and streams have watered crops and 
livestock on farms and ranches in western Montana.
    Montana also has a long and rich history of mining. While mining in 
Montana helped build the state and the Nation, it also left behind a 
legacy of thousands of abandoned mines. These abandoned mines are a 
significant source of water pollution, harming fish and wildlife and 
their habitat, contaminating drinking water aquifers, degrading the 
trout streams that Montana is renowned for, and jeopardizing our 
agricultural heritage. Abandoned placer and dredge mines can also have 
significant adverse effects, including dewatering, obstructing fish 
passage, and excessive sedimentation.
               the problem of abandoned mine lands (aml)
    My main concern with abandoned hardrock mines is their potential to 
generate long-term water pollution, including the release of harmful 
metals and acid mine drainage (AMD). AMD can lower the pH of 
surrounding surface water, making it acidic and unable to support many 
forms of aquatic life. The Environmental Protection Agency (EPA) 
estimates that mining activity has contaminated the headwaters of more 
than 40 percent of watersheds in the West.\3\ The Government 
Accountability Office (GAO) estimates that 33,000 abandoned mine sites 
have degraded the environment by contaminating waters or leaving 
``arsenic-contaminated'' waste piles.\4\
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    \3\ U.S. Environmental Protection Agency, ``Liquid Assets 2000: 
Americans Pay for Dirty Water,'' Available at: http://water.epa.gov/
lawsregs/lawsguidance/cwa/economics/liquidassets/dirtywater.cfm.
    \4\ U.S. Government Accountability Office, ``Abandoned Mines: 
Information on the Number of Hardrock Mines; Cost of Cleanup and Value 
of Financial Assurances,'' July 14, 2011, https://www.gao.gov/products/
GAO-11-834T.
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    To solve the problem of perpetual pollution from inactive and 
abandoned hardrock mines, we must reform the 1872 Mining Law and 
institute a source of revenue similar to the one paid by the coal 
industry for cleaning up abandoned coal mines. Unlike the coal 
industry, the hardrock mining industry pays no royalties for the 
minerals that are extracted from Federal public lands. I agree that 
Good Samaritan initiatives will provide important opportunities for 
abandoned mine clean-up by NGOs, but we must not lose sight of the 
sheer scale of the problem faced by western communities and water 
resources due to abandoned mine pollution.
    The Surface Mining Control and Reclamation Act (SMCRA) has for 
nearly two generations required the coal industry to pay a fee for 
abandoned mine reclamation.\5\ This fee has successfully funded coal 
mine cleanups across the country. In fact, in some states like Montana, 
the coal industry's funds have been used to clean up the messes of 
their hardrock brethren. This important funding source, however, is set 
to expire in 2021.
---------------------------------------------------------------------------
    \5\ See 30 U.S.C. 25 Subchapter IV Sec. 1231 et seq.
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                             aml in montana
    Montana's Department of Environmental Quality (DEQ) estimates that 
our state has approximately 3,700 hardrock abandoned mines.\6\ Missoula 
County alone, which covers approximately 2,600 square miles, contains 
an estimated 186 abandoned and inactive mines, and others are located 
in the county's watershed that encompasses adjoining counties.\7\ All 
together, these mines impair roughly 2,000 miles of Montana's rivers 
and streams--often from acid mine drainage, metals, or other 
pollutants.\8\
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    \6\ Bozeman Daily Chronicle, ``Scars of the past: Cleaning up 
abandoned mines and the fight of the funding to do it,'' December 10, 
2017. Available at: https://www.bozemandailychronicle. com/news/
environment/scars-of-the-past-cleaning-up-abandoned-mines-and-the/
article_6d014843-4d63-512b-bbbd-ffbf454fe07d.html.
    \7\ Montana Bureau of Mines and Geology, abandoned and inactive 
mine database, available at: http://data.mbmg.mtech.edu/3D/
DataViewer.asp?Database=2&focus=Menu&getby=CNT&.
    \8\ Montana Department of Environmental Quality, Montana Final 2016 
Water Quality Integrated Report, Appendix A, January 6, 2017, Available 
at: http://deq.mt.gov/Portals/112/Water/wqpb/CWAIC/Reports/IRs/2016/
App_A.pdf.
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Ninemile Watershed
    Missoula County is involved in a collaborative effort with the Lolo 
National Forest and Trout Unlimited to clean up placer mining and 
large-scale dredging operations causing significant damage to 
tributaries of the middle Clark Fork River watershed. Ninemile Creek, 
located 20 miles west of Missoula, is one of the most important native 
trout tributaries in the middle Clark Fork River watershed and one of 
the most affected by mining impacts. Many of the streams that used to 
feed Ninemile Creek no longer reach it, emptying instead into mine 
dredge ponds that line the floodplain.\9\
---------------------------------------------------------------------------
    \9\ Missoula County Community and Planning Services--Parks, Trails 
and Open Lands Program.
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    Several mine reclamation projects on tributaries in Ninemile Creek 
have been successfully completed since an environmental analysis was 
conducted in 2012 by the U.S. Forest Service. Working in collaboration, 
the Lolo National Forest, Trout Unlimited, Missoula County, and others 
have brought in over $3,000,000 to the local community (with $900,000 
garnered in 2018 and 2019 alone), restoring almost 3 miles of the main 
stem of Ninemile Creek, and connecting eight major tributaries.\10\ Due 
to the completed and ongoing work, sediment loads have been reduced, 
fish can now move to colder waters or to spawning grounds, and fish 
populations are increasing. Bull trout now freely move between Ninemile 
Creek and other tributaries for the first time in 70 years. The 
collaborative cleanup project illustrates that, with a proper funding 
source, we can make progress.\11\
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    \10\ Ninemile Ranger District Staff, Lolo National Forest, personal 
communication, March 12, 2018.
    \11\ Missoula County Community and Planning Services--Parks, Trails 
and Open Lands Program.
---------------------------------------------------------------------------
    There's more work to do, though. Another 3 miles of placer mine 
damaged streams must be remediated to complete the mainstem of Ninemile 
Creek, at an estimated cost of $3,500,000, and another $1 million is 
needed for two significantly damaged tributary streams. All total, 
another $4.5 to 5 million are needed to complete Abandoned Mine Land 
(AML) work in the Ninemile.\12\
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    \12\ Paul Parson, P.E., Trout Unlimited, personal communication via 
e-mail, March 12, 2018.
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Flint and Fred Burr Creeks
    Another example is Flint Creek, a major tributary to the Clark Fork 
River of western Montana and part of the greater Clark Fork watershed 
upstream from Missoula County. From its headwaters at Georgetown Lake, 
Flint Creek travels through some of the region's most prized 
agricultural lands before joining the Clark near Drummond, Montana.\13\
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    \13\ John DeArment, Staff Scientist, Clark Fork Coalition, personal 
communication via e-mail, March 12, 2018.
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    The Flint Creek Watershed was actively mined throughout the 19th 
and early 20th centuries, and the Montana Bureau of Mines and Geology 
has catalogued 411 abandoned mining sites in the area.\14\ One of these 
sites, the Rumsey Mill, located on Fred Burr Creek, a tributary to 
Flint Creek near Phillipsburg, Montana, is an exceptionally significant 
problem, even for a region riddled with so many legacy mining issues. 
The mill became operational in 1889 and used mercury to recover gold 
and silver from ore until 1893, leaving a dispersed deposit of mercury-
laden tailings along the creek downstream of the mill.\15\ Today, 
concentrations of mercury in surface water and sediments routinely 
exceed aquatic life and human health standards, and Fred Burr Creek is 
the source of an estimated 80 percent of the mercury to Flint Creek, 
which is in turn the largest source of mercury to the Clark Fork River. 
The mercury has clearly made its way into the regions' wildlife, with 
elevated concentrations having been detected in macroinvertebrates and 
fish, as well as in osprey, a fish-eater raptor common to the 
region.\16\ Montana officials have had to issue fish consumption 
advisories on Fred Burr Creek, Flint Creek, and the Clark Fork River 
due to the mercury released by the Rumsey Mill.\17\
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    \14\ Seagull Environmental Services, ``Data Assessment Report 
Regarding Historical Analytical Date for the Flint Creek Watershed in 
Granite County, Montana,'' 2014.
    \15\ Granite Conservation District, ``Flint Creek Watershed Metals 
Remediation--Proposal for Fred Burr Creek Rumsey Mill Tailings,'' 
submitted to the Montana Department of Natural Resource Conservation, 
2016.
    \16\ Kindra McQuillan, Disturbed Waters--A Montana Chemist Searches 
for the Source of a Persistent Poison, 2014, Graduate Student Theses, 
Dissertations, and Professional Papers, 4365, available at: https://
scholarworks.umt.edu/etd/4365.
    \17\ State of Montana, Montana Sport Fish Consumption Guidelines, 
January 5, 2015, version.
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    Fortunately, a grassroots effort is underway to address the 
problem. The Granite Headwaters Watershed Group, based in Phillipsburg, 
has secured funding to determine the extent of the contaminated 
tailings and develop a preliminary remediation design. However, 
complete removal of the tailings and restoration of the creek and mine 
site are well beyond the financial means of the group. The initial 
estimate for cleanup was $1 million, with the group securing 
approximately half of that from state sources. As the group has learned 
more about the extent of contamination, project costs have grown to 
several times the initial estimate and will likely rise even 
further.\18\ State and Federal AML hardrock funds could provide 
critical support to the long-term success of this project, helping to 
protect human health and the environment in Fred Burr and Flint Creeks 
and beyond.
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    \18\ Autumn Coleman, Abandoned Mine Program Supervisor, Montana 
Department of Environmental Quality, Personal Communication with John 
DeArment, March 2018.
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    Many of the abandoned mine cleanup projects are complex and costly, 
with multiple government agencies involved in trying to cobble funding 
together for a single cleanup effort that often spans multiple years. 
An independent, dedicated funding source for hardrock abandoned mine 
cleanup, similar to the SMCRA program, is long overdue. This is the 
only type of reclamation program that can truly solve our Nation's 
abandoned and inactive mine problem. Since 1980, Montana's AML program 
has reclaimed 408 coal mines and 38 hardrock mines in 17 counties.\19\
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    \19\ Montana DEQ, Abandoned Mines website, available at: http://
deq.mt.gov/Land/AbandonedMines/accomplishments.
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                        benefits of aml cleanup
    Abandoned mine cleanup offers substantial economic benefits as 
well. Although it's been more than a decade since economic data has 
been collected for Montana AML projects, but earlier reports 
demonstrate their significant economic value. The Federal Office of 
Surface Mining Reclamation and Enforcement (OSMRE) calculated the 
economic benefits of various construction-ready projects in its annual 
evaluation reports of Montana's AML program. According to a 2005 
report, if $22.49 million in funding were available to complete the 20 
construction-ready projects identified that year, that investment would 
generate $53.38 million in economic benefits and support 1,831 
jobs.\20\
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    \20\ Office of Surface Mining and Reclamation and Enforcement, 
``Annual Evaluation Summary Report for the Abandoned Mine Lands Program 
Montana,'' 2005.
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    In the case of Missoula County's Ninemile watershed mine 
reclamation projects, an average of 95 percent of project funds--
estimated at over $3 million--have been spent in the private sector on 
contracted services, and contracts have been awarded largely to local 
or regional contractors.\21\ This figure does not include other local 
industries that benefit from the projects, such as hotels, restaurants, 
gas stations, or other services used by the contractors.
---------------------------------------------------------------------------
    \21\ Missoula County Community and Planning Services--Parks, Trails 
and Open Lands Program.
---------------------------------------------------------------------------
    Montana's abandoned mine lands program is an effective program with 
demonstrated on-the-ground successes. Yet, the limited funding 
available to the state allows the program to remediate only a few sites 
each year, and usually in phases.
    The indirect economic benefits come from public use of the restored 
resource for a variety of purposes. Recreationally, people can use the 
clean water for fishing, swimming, rafting, and, in some cases, even 
drinking. Restored areas can also be utilized for livestock grazing, 
camping, and other activities that were previously restricted because 
of risk from either air contaminants, direct contact with materials or 
adversely impacted ground and surface water. Recreational dollars go 
into the local economy. A recent study found that outdoor recreation 
contributed $373.7 billion to the Nation's Gross Domestic Product in 
2016, comprising 2 percent of gross domestic product (GDP).\22\ And, 
again, a clean and healthy environment is one of the primary attractors 
to entrepreneurial activity and investment in our region.
---------------------------------------------------------------------------
    \22\ U.S. Bureau of Economic Analysis, Economic data by industry, 
Available at: https://www.bea.gov/iTable/
iTable.cfm?ReqID=51&step=1#reqid=51&step=51&isuri=1&5114=a&5102=5.
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                    success of the coal aml program
    A robust AML program with a significant, dedicated funding source 
can act as an economic driver. Across the country, SMCRA's AML program 
has reclaimed over $5.7 billion worth of mine pollution and nearly 
800,000 acres of damaged land and water.\23\ The program delivered a 
total impact of $778 million to the U.S. economy in FY 2013, and 
supported 4,761 jobs across the country.\24\ The Congressional Budget 
Office (CBO) estimates that every $1 million invested in mine cleanup 
creates 14 to 33 new jobs.\25\
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    \23\ Appalachian Law Center, ``Abandoned Mine Program: A Policy 
Analysis for Central Appalachia and the Nation,'' July 8, 2015. 
Available at: https://appalachianlawcenter.org/abandoned-mine-land-
policy/.
    \24\ Id.
    \25\ https://www.gpo.gov/fdsys/pkg/CHRG-110shrg43266/html/CHRG-
110shrg43266.htm.
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                               conclusion
    Good Samaritan liability waivers, charitable giving, and charitable 
cleanup are only a small part of the AML solution. We, in Missoula 
County, hope that policy makers will find a path forward for Good 
Samaritans to help clean up some abandoned mines across the West. 
However, creating a dedicated, significant stream of funding is 
essential to fully address the pollution problem from half a million 
abandoned hardrock mines. Given this crushing need, without this 
funding source, state, local and tribal governments, and citizen 
groups, can only help clean up a small number of projects, and our 
Nation's waters, public health, and economy will suffer. As Norman 
Maclean said in his novella, A River Runs Through It, Missoula lies 
``at the junction of great trout rivers in western Montana.'' For 
future generations of Montanans and visitors alike, we need to ensure 
that it remains that way--that water continues to run clean, and where 
it is degraded, we take steps to improve water quality and stream 
flow.\26\ To do less is to squander the birthright of future 
generations in our state and across the Nation.
---------------------------------------------------------------------------
    \26\ Norman Maclean, A River Runs Through It (Chicago and London: 
The University of Chicago Press, 1976), 1.

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                                 ______
                                 

    Dr. Gosar. Thank you, Mr. Strohmaier.
    I now recognize Mr. Graves for his 5 minutes.

 STATEMENT OF JEFF GRAVES, DIRECTOR, INACTIVE MINE RECLAMATION 
  PROGRAM, COLORADO DEPARTMENT OF NATURAL RESOURCES, DENVER, 
                            COLORADO

    Mr. Graves. Good afternoon, Mr. Chairman, Ranking Member, 
members of the Committee. My name is Jeff Graves and I am the 
director of the Inactive Mine Reclamation Program within the 
Colorado Department of Natural Resources.
    I am appearing on behalf of the state of Colorado to 
provide testimony on the need for Good Samaritan provisions to 
facilitate cleanup of abandoned hardrock mines. I appreciate 
the opportunity to appear today and share our views on this 
issue that impacts Colorado and many other hardrock states so 
directly.
    By many counts, Colorado has more than 23,000 abandoned or 
legacy mine sites across the state. Regardless of the actual 
number, the sheer magnitude of the problem drives the need for 
partnerships and innovative solutions, and most importantly, 
the potential liability relief provided by Good Samaritan 
legislation.
    One of the largest and thorniest problems associated with 
legacy mines is the effects of acid mine drainage from many of 
our hardrock sites. Over 1,300 miles of Colorado streams are 
impacted by metals connected to acid mine drainage from 
historic mining activity. Recently, the state sampled and 
characterized over 170 draining mines and is currently working 
with our Federal and NGO partners to evaluate those sites for 
potential cleanup.
    The challenge and frustration is that the discharge from 
few, if any, of those sites will be addressed absent liability 
protection. One example of how environmental liabilities have 
stalled and even prevented cleanup of abandoned hardrock mines 
is the Pennsylvania Mine located in Summit County. That mine is 
the single largest man-made source of metals to Peru Creek, a 
tributary to the Snake River. The mine was operated at the turn 
of the last century, producing silver, gold, and base metals.
    There is currently no viable responsible party that can be 
held accountable for cleanup of the site. Recognizing that, the 
state began investigating ways to address contaminated 
discharge from the site, since it was obvious that both Peru 
Creek and portions of the Snake River were so contaminated by 
metals that the streams were devoid of any aquatic life.
    At the time, many states considered discharge from mine 
sites to be non-point sources of pollution under the Clean 
Water Act, and a specific discharge permit was therefore not 
needed to facilitate work to improve the quality of discharged 
water. Additionally, states and NGOs assumed that since they 
did not create the problem and were merely acting to improve 
conditions, they would not be held responsible into the future 
for not meeting existing standards.
    With that paradigm in mind, the state designed a passive 
water treatment facility at the Penn Mine to provide partial 
treatment of the discharge during critical times of loading to 
the creek. The state worked with volunteers for Alter Colorado, 
a local NGO, to assist with construction of the treatment 
facility, following construction of the facility.
    Following construction of the facility, but prior to its 
operation, EPA clarified that all discharges from mines would 
be considered point sources under the Clean Water Act, thus 
requiring a specific discharge permit. At that point, all 
activities at the sites ceased for fear of the liability 
associated with operating a plant not intended to meet 
stringent discharge standards year round.
    That treatment plant sat idle for more than 20 years 
without treating any discharge from the mine. During that time, 
a local stakeholders group was formed, consisting of downstream 
users, NGOs, Federal, state, and local governments, to explore 
alternative legal work-arounds that might facilitate operation 
of the treatment system, but every avenue was stymied by the 
potential for long-term liability.
    The stakeholder group was able to facilitate cleanup of 
non-point source issues within the watershed where long-term 
liability and risk could be minimized and marginal improvements 
to water quality could be realized, but all members recognized 
that without addressing the point sources, larger improvement 
goals could not be met. Eventually, the stakeholder group 
convinced EPA to exercise its CERCLA authority under Removal 
Action to facilitate cleanup of the site, but that avenue was 
not an option at most sites in Colorado.
    The common thread hampering cleanup at most hardrock mines 
is the risk associated with incurring long-term liability as a 
result of the Clean Water Act and CERCLA. In some cases, 
funding is available to complete projects that could result in 
a net improvement to downstream water quality, but liability 
concerns prevent additional work from taking place or even from 
operating treatment systems already constructed. In many 
instances, there are willing partners, either state agencies, 
NGOs, or private entities that, if afforded Good Samaritan 
protections, could accomplish water quality improvements at 
many abandoned hardrock sites.
    The universe of abandoned mine lands is so large and the 
existing governmental resources are so limited that it will be 
impossible to clean up all these sites without the assistance 
of Good Samaritan volunteers along with liability protection. 
Moving forward, any viable Good Samaritan measures must move us 
away from the current environment of ``you touch it, you own 
all of it,'' and toward the phrase borrowed from a different 
profession of ``at least do no harm.''
    Thank you for the opportunity to address the Committee on 
the potential for Good Samaritan protections to facilitate 
hardrock clean ups.

    [The prepared statement of Mr. Graves follows:]
     Prepared Statement of Jeff T. Graves, Director, Inactive Mine 
   Reclamation Program, on Behalf of Colorado Department of Natural 
          Resources, Division of Reclamation Mining and Safety
    Good afternoon. My name is Jeff Graves and I am the Director of the 
Inactive Mine Reclamation Program within the Colorado Department of 
Natural Resources. I am a geological engineer by training and have been 
responsible for the design and implementation of abandoned mine 
reclamation projects throughout Colorado for the last 17 years. I am 
appearing on behalf of the state of Colorado to provide testimony on 
the need for Good Sam provisions to facilitate cleanup of abandoned 
hardrock mines. I appreciate the opportunity to appear today and share 
our views on this issue that impacts Colorado and many other hardrock 
states so directly.
    Colorado has enjoyed a rich mining heritage beginning with the 
discovery of placer gold along Cherry Creek south of Denver in 1858. 
What followed over the next 50 years was a rush to develop the vast 
mineral resources throughout the state. During that time little 
forethought was given to the consequences associated with unregulated 
extraction, leaving us with a unique legacy of environmental 
challenges.
    By many counts, Colorado has more than 23,000 abandoned or legacy 
mine sites across the state. That number is likely a conservative 
estimate because many of these legacy sites are located in inaccessibly 
rugged terrain or shrouded in heavily timbered areas of the 
backcountry. Regardless of the actual number, the sheer magnitude of 
the problem drives the need for partnerships and innovative solutions, 
and most importantly the potential liability relief provided by Good 
Samaritan legislation.
    The problems associated with so many abandoned mines vary 
considerably. Some sites pose direct physical safety hazards, as 
unprotected shafts, adits and other mine features put the unsuspecting 
public at risk. Other sites can result in personal injury or property 
damage from subsidence of unseen underground mines. Over 30 underground 
coal mine fires across our state create a heightened risk of wildfire 
ignition.
    Colorado has been actively addressing these legacy mine issues over 
the last 40 years through its Inactive or Abandoned Mine Reclamation 
Program in partnership with other state and Federal agencies, non-
governmental organizations, and private entities. To date, the program 
has been responsible for safeguarding over 10,400 hazardous features, 
reclaiming over 4,000 acres of mining-disturbed lands, improving water 
quality at more than 220 sites, and investigating and managing 33 
underground coal mine fires. The Program was recently recognized by the 
Association of Environmental and Engineering Geologists as Outstanding 
for its work to address legacy mine issues in Colorado, but much work 
remains to be done.
    One of the largest and thorniest problems associated with legacy 
mines is the effects of acid mine drainage from many of our hardrock 
sites. Over 1,300 miles of Colorado streams are impacted by metals 
connected to acid mine drainage from historic mining activity, 
resulting from varying causes. Often, direct snowmelt and rainfall on 
mine waste piles and tailings leach metals from exposed waste and are 
then transported to adjacent streams and rivers. At other sites, 
horizontal mine entries or adits directly discharge acidic, metal laden 
water directly to surface water creating immediate downstream impacts.
    In 2015, Colorado Governor John Hickenlooper championed an effort 
to identify and collect information on draining mine sites across the 
state, recognizing that draining mines and the impacts from them were a 
serious concern. Approximately 230 sites were identified as discharging 
and potentially resulting in stream water impacts. Of those 230 sites, 
some were already being addressed by the EPA Superfund program, but 
many sites had little to no data available to assist in understanding 
the scope of the problem. During 2016, over 170 of those sites were 
visited and characterized. The state is currently working with our 
Federal and NGO partners to prioritize those sites for cleanup, based 
on site specific discharge criteria, and threats to the environment and 
downstream users. The challenge and frustration is that acid discharges 
into surface waters from few, if any, of those sites will be addressed 
absent liability protection.
    Environmental laws of the 1970s, including the Clean Water Act and 
the Comprehensive Environmental Response and Cost Recovery Act, or 
CERCLA, were designed to help clean up our Nation's waterways and 
reduce environmental problems. Provisions in those laws, however, have 
had the unintended consequence of preventing many states, NGOs and 
private entities from conducting reclamation work at mine sites for 
fear of incurring long-term responsibility and liability. Any Good 
Samaritan, including states, that attempts to improve water quality at 
mine sites through reclamation activities like capping and burying mine 
waste or passively treating mine discharge can be held liable for any 
remaining discharge that doesn't meet stringent water quality 
standards. Additionally, the Good Samaritan could be considered an 
``operator'' under CERCLA and held responsible for any future off-site 
damages that result from work performed.
    In an effort to illustrate how the aforementioned concerns have 
hampered, stalled or even resulted in cleanup abandonment, I would like 
to provide three specific examples in Colorado. Those examples are the 
Pennsylvania Mine, the Solomon Mine and the Perigo Mine.
    The Pennsylvania Mine, located in Summit County within the Snake 
River watershed, is the single largest man-made source of metals to 
Peru Creek, a tributary to the Snake River. The mine was operated from 
the late 1800s through the early 1900s and produced silver, gold and 
base metals. There is no viable Potentially Responsible Party that can 
be held responsible for cleanup of the site, since the operator long 
since passed away. In the 1980s, the state began investigating ways to 
address contaminated discharge from the site since it was apparent that 
both Peru Creek and portions of the Snake River were so contaminated by 
metals that the streams were devoid of any aquatic life.
    At the time, many states considered discharge from mines sites to 
be non-point sources of pollution under the Clean Water Act, and a 
specific discharge permit was therefore not needed to facilitate work 
to improve the quality of the discharged water. Additionally, states 
and NGOs assumed that since they did not create the problem and were 
merely acting to improve conditions, they would not be held responsible 
into the future for not meeting existing standards. With that paradigm 
in mind, in 1993 the state designed a passive water treatment plant at 
the Pennsylvania Mine to provide partial treatment of the discharge 
during critical times of loading to the creek. The state worked with 
Volunteers for Outdoor Colorado, a local NGO, to assist with 
construction of the treatment facility. Following construction of the 
facility, but prior to its operation, the state of Colorado received a 
letter from EPA clarifying that all discharges from mines, including 
seeps, would be considered point sources under the Clean Water Act, 
thus requiring a specific National Pollutant Discharge Elimination 
System (NPDES) permit. Upon receipt of that letter, all activities at 
the site ceased for fear of the liability associated with operating a 
plant not intended to meet discharge standards year round.
    That treatment plant sat idle for more than 20 years without 
treating any discharge from the mine, and all the while discharge from 
the Pennsylvania Mine continued to contaminate Peru Creek and the Snake 
River. During those 20 years, a local stakeholders group was formed to 
explore alternative options or legal work-arounds that might facilitate 
operation of the treatment system, but every avenue was stymied by the 
potential for long-term liability. The stakeholder group was able to 
facilitate cleanup of non-point sources within the watershed where 
long-term liability and risk could be minimized and marginal 
improvements to water quality could be attained, but all members 
recognized that without addressing the point sources, larger 
improvement goals could not be met.
    Eventually, the stakeholder group convinced EPA to exercise its 
CERCLA authority under a removal action to facilitate installation of 
bulkhead seals to reduce discharge from the Pennsylvania Mine, but that 
avenue is not an option at most sites in Colorado. Even after bulkhead 
installation at the Pennsylvania Mine, some discharge remains that 
could likely be addressed using passive treatment technology if 
liability was not a concern.
    Another site, the Perigo Mine in Gilpin County within the Boulder 
Creek watershed, has historically discharged metal-laden water into 
Gamble Gulch and has seen periodic surge events resulting in the creek 
running orange. Much like the Pennsylvania Mine, the state recognized 
the need to reduce metal loading from the Perigo Mine to help improve 
downstream water quality. An attempt was made during the 1980s to 
install a long-term passive treatment system that would reduce metal 
concentrations in runoff, but would not be capable of meeting discharge 
standards. At the time, it seemed like a viable alternative to the 
installation of a full-scale active treatment plant costing millions of 
dollars to construct and potentially operating forever.
    The passive treatment system at the Perigo Mine was marginally 
successful in reducing metal loading, but it was abandoned in part due 
to the potential long-term liability and cost associated with 
maintaining the system. More recently, the state received funding to 
conduct additional investigations at the site to explore other 
alternatives such as construction of a hydraulic seal bulkhead. The 
state partnered with EPA and the United States Forest Service to 
conduct a detailed site investigation, and determined that installation 
of a bulkhead to reduce surge events was feasible, but the potential 
for incurring liability associated with construction was too great a 
risk. At the time, EPA was reluctant to initiate action under its 
CERCLA removal authority. The money dedicated to installation of the 
bulkhead was subsequently returned, and now the site sits unattended, 
continuing to discharge metals into Gamble Gulch.
    The final site is the Solomon Mine located in Mineral County within 
the Rio Grande watershed. The Solomon Mine is just like the 
Pennsylvania and Perigo mines in that mining was conducted during the 
turn of the last century, and no responsible party exists. In 1991, the 
state, in cooperation with the local watershed group, the Willow Creek 
Reclamation Committee, completed a non-point source project that 
cleaned up mine waste in East Willow Creek and constructed a passive 
treatment system for the Solomon Mine discharge. The passive treatment 
system operated successfully for a period of time, but was not 
maintained due in part to concerns regarding long-term liability.
    The common thread to all these examples is the risk associated with 
incurring long-term liability as a result of the Clean Water Act or 
CERCLA. In each instance, funding was available to complete projects 
that would have resulted in a net improvement to downstream water 
quality, but liability concerns prevented additional work from taking 
place or even from operating treatment systems already constructed. 
These projects highlight the adage, ``perfect is the enemy of the 
good.'' There were willing partners, either state agencies, NGOs or 
private entities that, if afforded Good Samaritan protections, could 
have accomplished water quality improvements at each site.
    These liabilities deter motivated, well-intentioned volunteers from 
undertaking projects to clean up or improve abandoned sites, thereby 
prolonging the harm to the environment and to the health and welfare of 
our citizens. These impacts to water quality also have economic impacts 
that are felt nationwide. In addition, the universe of abandoned mine 
lands is so large and the existing governmental resources are so 
limited, that it will be impossible to clean up all of these sites 
without the assistance of Good Samaritan volunteers.
    Colorado believes the pursuit of Good Samaritan protections will be 
immensely helpful in our efforts to remediate the vast quantities of 
abandoned mine sites in our state. We have seen the results from this 
type of approach in other states such as Pennsylvania, which enacted 
its own Good Samaritan law to provide protections and immunities 
related to state clean water requirements. Even Pennsylvania Good 
Samaritans, however, are still exposed to potential liability under the 
Federal Clean Water Act for their good deeds, which imposes a chilling 
effect on watershed cleanup efforts.
    Thank you for the opportunity to submit this testimony. Should you 
have any questions or require additional information, please contact 
me.

                                 ______
                                 

    Dr. Gosar. I thank the panel for their testimony, reminding 
the members of the Committee that Committee Rule 3(d) imposes a 
5-minute limit on the questions.
    I will now recognize myself for questions.
    I understand that treating acid mine drainage is one of the 
most challenging aspects of abandoned mine land reclamation. 
States face not only technical challenges in completing these 
projects, but also compliance challenges under the law.
    Mr. Woods, Mr. Graves, Ms. Coleman--first, with Mr. Woods. 
In your experience with water treatment projects, why can't 
some of the sites meet clean water standards even though some 
of the best water treatment systems are in place?
    Mr. Wood. Why can't they meet clean water standards?
    Dr. Gosar. Yes.
    Mr. Wood. Well, we know how to treat these systems both 
actively and passively, and I referred to this in my testimony. 
Often you can accomplish a great deal with a relatively small 
amount of resources by doing things like passive treatments 
where you would run abandoned mine waste, acid mine drainage, 
rather, through lime ponds and that is a relatively low-cost 
venture. But to get that extra increment to get you to 100 
percent might be technically beyond our capacity or just vastly 
more expensive.
    Dr. Gosar. Ms. Coleman?
    Ms. Coleman. Thank you, Chairman. In Montana, we are 
actually exploring building a water treatment plant in Belt, 
Montana for abandoned coal mines. And what we found for low-
cost passive systems that had been built in the past is that we 
will make substantial improvement in water quality, but due to 
practical limitations and financial limitations, we were not 
able to afford the level of treatment that we would need to 
meet the Clean Water Act standards. So, in order to meet those, 
you have to build a substantial water treatment plant, a multi-
million dollar water treatment plant, and then find money to 
afford to run that plant in perpetuity, and that is where the 
real limitations come in.
    Dr. Gosar. Would you agree with that, Mr. Graves?
    Mr. Graves. Yes, I would. That is a similar experience to 
what we have had in our state, where it is possible to build 
low-cost passive treatment systems that address some portion of 
the discharge at the site, but the ability to construct a full-
scale active water treatment plant to address that remaining 
component becomes cost-prohibitive at most sites.
    Dr. Gosar. I am going to start with you this time. If clean 
water standards are not feasible for the Good Samaritan 
projects, how would we go about establishing a better standard 
that is achievable nationwide?
    Mr. Graves. I think beginning with, kind of like I echoed 
in my testimony, at least not doing harm but establishing 
incremental improvements. And how that looks, I am not exactly 
sure in terms of what standards you do set but recognizing that 
the improvement on site is what we are after and not 
necessarily one particular standard but in overall improvement 
to downstream water quality.
    Dr. Gosar. Mr. Woods?
    Mr. Wood. I agree with that. I think the standard ought to 
be trying to make things better. Early on, we negotiated an 
agreement with EPA under the Bush administration, and at one 
point during the negotiation one of the EPA attorneys said to 
us, ``This is the best deal we have ever given a PRP.'' And our 
response was, ``But we're not a PRP, we are not a potentially 
responsible party. We are just a Good Samaritan who wants to do 
the right thing.'' We shouldn't be held to the same standard 
that people who actually caused the pollution are.
    Dr. Gosar. Do you have any idea how we could actually build 
legislation for that flexibility, Mr. Wood?
    Mr. Wood. There have been good efforts in the past. I think 
Congressman Tipton was involved in those last Congress, and 
others have been as well. I don't think we are that far from 
having that language right now.
    Dr. Gosar. Perfect. Mr. Wood, do sites need to meet clean 
water standards in order to support wildlife, habitats, and 
healthy overall environment? Is there some mediation in there, 
some flexibility?
    Mr. Wood. Well, we are pretty much full-throated advocates 
for the Clean Water Act at Trout Unlimited--big fans of cold, 
clean, fishable water. But I think when you are talking about 
these seriously impacted sites where things are so bad, the 
streams are orange, where you have lead, zinc, cadmium, 
arsenic, and all kinds of bad stuff, do we prefer to get to 100 
percent of Clean Water Act standards? Absolutely. But the scope 
and the magnitude of the problem is so great that any increment 
of improvement should be allowable.
    Dr. Gosar. So, we could find a mediation in which improving 
the water quality would actually support wildlife and habitats?
    Mr. Wood. Without question.
    Dr. Gosar. Gotcha. Mr. Graves, in your written testimony, 
you discuss various treatment plans to mitigate acid mine 
drainage. Could you elaborate on the difference between passive 
and active treatment systems, and the associated cost of 
installation and long-term maintenance?
    Mr. Graves. OK. An active treatment system typically has a 
large infrastructure associated with it. It has personnel that 
operate that treatment system to ensure that the discharged 
water meets Clean Water Act standards on a consistent basis, so 
it typically has quite a bit of manpower associated with it. 
Those plants often cost in excess of $20 million dollars to 
construct, and on occasion cost up to $1 million dollars a year 
to operate.
    A passive treatment system relies on biological processes 
to mitigate the contaminants and the discharge. Those systems 
can be constructed and may only require limited or occasional 
maintenance to maintain discharge, but the discharge may or may 
not meet Clean Water Act standards on a consistent basis. So, 
it is an incremental improvement at a much lower cost than 
construction of a full-scale facility that would meet those 
standards.
    Dr. Gosar. Could you imagine a potential to have a 
flexibility of standards to use passive as a first step and 
then the active later on for cost savings?
    Mr. Graves. Certainly. I think that would be a good option, 
attempting to get something done on site to see how achievable 
meeting those standards might be with some type of passive 
system.
    Dr. Gosar. So, let me ask you a question. Are mining and 
clean water mutually exclusive?
    Mr. Graves. Absolutely not.
    Dr. Gosar. Mr. Wood?
    Mr. Wood. They don't need to be.
    Dr. Gosar. Yes. Ms. Coleman?
    Ms. Coleman. I would agree with both Jeff and Chris.
    Dr. Gosar. How about you Mr. Strohmaier, are they mutually 
exclusive?
    Mr. Strohmaier. They do not need to be mutually exclusive 
in all cases.
    Dr. Gosar. The gentleman behind you, I hope he took 
inventory of that answer because that was not your answer last 
time here in front of the Committee.
    The gentleman from California is recognized for his 5 
minutes.
    Dr. Lowenthal. Mr. Strohmaier, in the Majority's memo for 
this hearing, it says that it must also be emphasized that 
modern mining activities do not create the kinds of hazards 
present at some historic AML sites. And it also says, ``Modern 
instruments enable today's hardrock industry to comply with all 
appropriate environmental regulations, laws, and permits.'' Do 
you agree with these statements?
    Mr. Strohmaier. Yes and no. Without a doubt, today's 
regulatory environment technological capabilities are very 
different than the late 19th century, early 20th century when 
it comes to mining, but I think there are some counter-examples 
in my home state that lend some credence to the view that even 
in those conditions with better technology, with better 
regulation, things can go very much awry.
    In the late 1980s, at the Butte Mountain Mine near 
Anaconda, Montana, cyanide heap-leach mining was permitted. It 
ceased operation about a decade later, and shortly thereafter 
in the late 1990s, Pegasus Gold declared bankruptcy. In 2004, 
the U.S. Forest Service took over management of the reclamation 
of the site.
    This is a site where it has created significant ground 
water, surface water contamination. It is an example of a 
modern era mine that has gone bad, and there might be many 
reasons for that, but clearly it is not a clear-cut case that 
all mining today is environmentally sensitive or sound.
    Dr. Lowenthal. Thank you. Mr. Wood, do you have anything to 
add to that or any take on take?
    Mr. Wood. Well, we are very much in the business of 
repairing damage from the past and trying to avoid damage in 
the future. So, there is absolutely no question that modern 
engineering and mining practices are vastly superior 200 years 
ago, but that doesn't mean that every landscape is appropriate 
for mining. There are some places that the natural resources 
that are present are just so rich and so important that they 
should be left intact and left alone. One landscape that we 
care very deeply about is a place called Bristol Bay, Alaska, 
where a very large mine has been proposed in the headwaters of 
that system, and we think that would be a travesty to build 
that mine. But generally, around the West, most modern mines 
are permitted much more effectively than they were in the past.
    Dr. Lowenthal. Thank you. It seems like there are two 
issues that we are dealing with here, the lack of Clean Water 
Act liability protection and the lack of funding to complete a 
lot of projects with or without the liability waiver. I would 
like to ask each witness to tell me which they think is the 
more pressing need. Is the lack of funding the primary problem 
and the Clean Water liability secondary, or is it the other way 
around, and does this depend on whether you are a potential 
Good Samaritan, a state, a country, and so forth?
    Mr. Strohmaier, let us start with you. Of those two, where 
do you see the critical issue, if there is a critical issue of 
the two?
    Mr. Strohmaier. Thank you, Mr. Lowenthal, Mr. Chairman. 
While neither are mutually exclusive, I would say without a 
doubt from my local government standpoint, funding. In our 
county, Missoula County, 53 percent of our county is public 
land, Federal land, and U.S. Forest Service Bureau of Land 
Management. We have, as I mentioned, 186 abandoned mines in our 
county. Even if we have NGOs, and we certainly do have great 
partnerships with organizations such as Trout Unlimited, the 
bandwidth is only so large for that.
    Dr. Lowenthal. I am going to cut you off, thank you, to see 
where the others--Ms. Coleman, do you have any thoughts about 
it?
    Ms. Coleman. Thank you, Congressman Lowenthal. I think 
everyone on this panel acknowledges that the gap between the 
funds needed and what we need to do to clean up is almost an 
impossible divide. In Montana, we do have some limited funds 
for abandoned hardrock reclamations, so even with additional 
funding, we are still going to need our Good Samaritans to help 
extend that.
    Dr. Lowenthal. OK, so you say the funding. Mr. Wood?
    Mr. Wood. I think the politics of getting Good Samaritan 
done are so much easier than the funding issues. I would say 
tackle that one first.
    Dr. Lowenthal. You tackle the funds?
    Mr. Wood. We need both.
    Dr. Lowenthal. Mr. Graves?
    Mr. Graves. We do need both, and I do think that the 
liability concerns related to CERCLA and the Clean Water Act 
are the more pressing need.
    Dr. Lowenthal. All right. So, three funding, one liability 
act. Thank you, and I yield back.
    Dr. Gosar. Well, I intercede because it has always been a 
proven aspect that good process builds good policy builds good 
politics, and you can't throw money at the situation when you 
don't have a process. That is what I was trying to get to.
    Dr. Lowenthal. That is why I said we need to reform the 
1872----
    Dr. Gosar. I think we need to do something else besides 
that.
    Dr. Lowenthal. Thank you.
    Dr. Gosar. The gentleman from Colorado, Mr. Lamborn, is 
recognized for 5 minutes.
    Mr. Lamborn. Thank you, and thanks for this important 
hearing. There are a lot of issues here. One thing that seems 
to be coming out from your testimony is that it is possible to 
let the perfect be the enemy of the good. In Summit County, 
Colorado, for instance, we could have been doing something for 
20 years. Even though it wasn't perfect, it would have been a 
big advance over the status quo.
    So, I have had Good Samaritan legislation pass, not a 
global solution, a more modest step that would take us part way 
down the road, and I am hoping we can still at least make that 
kind of advance here soon until that day comes when we have a 
global solution.
    Mr. Wood, modern mining operations invest significant 
resources to meet the strict requirements of the Clean Water 
Act. Because of those efforts, I believe modern mining 
companies have the expertise and technology necessary to 
improve water quality at abandoned mine land sites. Do you 
believe that Good Samaritan legislation should allow modern 
mining companies that did not create the environmental problems 
at the identified legacy site to qualify as Good Samaritans?
    Mr. Wood. As long as they don't have a legal interest in 
the abandoned mine, in other words, if they have not acquired 
it as part of a broader acquisition, I do. I feel very 
strongly. The mining industry has a tremendous amount to 
contribute in terms of knowledge, machinery, and technology to 
cleaning up abandoned mines. I wouldn't want to give them a get 
out of jail free card if they have acquired a property that has 
historic mining waste that they are legally obliged to clean 
up, but if they are just working next door to abandoned mines 
and they have no legal interest in those mines and they want to 
help clean them up, I think they should be Good Samaritans.
    Mr. Lamborn. OK. Excellent. And in light of their expertise 
and their ability to improve water quality, do you think that 
the incentives should be allowed so as to encourage mining 
companies to be good Americans, like removing and processing 
valuable minerals contained in the waste prior to the 
environmentally sound disposal of those wastes?
    Mr. Wood. I am not sure I understand the question, sir.
    Mr. Lamborn. Should a Good Samaritan be allowed to process 
the tailings for mineral content while they are disposing of 
the tailings?
    Mr. Wood. I see what you are saying. Well, the original 
Good Samaritan, there was no profit motive involved in helping 
him on the road to Samaria. But I think that by all means they 
should make a profit and they should plow that profit back into 
an AML fund that we can reinvest in cleaning up additional 
abandoned mines.
    Mr. Lamborn. OK. But whatever happens to that money, you 
are not opposed to extracting the minerals at some point along 
the way?
    Mr. Wood. I would not be if the proceeds went into an AML 
fund.
    Mr. Lamborn. OK. You would want them to be earmarked 
somehow. And I am glad you know your Bible, that is a good 
thing.
    [Laughter.]
    All of the witnesses today have identified Clean Water Act 
liability as a significant hurdle to Good Samaritan efforts. In 
particular, both meeting stringent CWA water quality standards 
and having perpetual eternal liability under the CWA for point 
source discharges are issues that have discouraged Good 
Samaritan efforts in the past.
    So, for Mr. Graves or Ms. Coleman, do you think that 
providing state and Federal regulators with the flexibility to 
adjust CWA requirements and standards for Good Samaritan 
projects is necessary to achieve successful nationwide Good 
Samaritan programs? Either one of you.
    Mr. Graves. Absolutely, I would agree with that. I think it 
is critical to provide states with that type of liability 
protection to implement projects where the end result may not 
be meeting Clean Water Act standards but is an improvement to 
water quality downstream.
    Mr. Lamborn. OK. Since you have taken that question, I will 
ask you the next question.
    Ms. Coleman. OK.
    Mr. Lamborn. While significant improvements to water 
quality are obviously one of the goals of Good Samaritan work, 
do you think flexibility is needed with respect to water 
quality improvement requirements so as not to discourage 
efforts that while improving water quality may not be able to 
achieve the ``significant'' water quality improvements?
    Ms. Coleman. Congressman Lamborn, I want to make sure I 
have your question correct. Are you asking, do I agree that 
Clean Water Act standards should be allowed flexibility to 
allow improvements?
    Mr. Lamborn. Yes, even if they can't get up to the 
significant category.
    Ms. Coleman. Yes, absolutely. I think that the purpose of a 
Good Samaritan law would be to allow that flexibility. And I 
would also like to add that the AML programs in states acting 
as Good Samaritans would like to be afforded that opportunity 
as well to clean up abandoned mines, to improve water quality, 
but not achieve perfection.
    Mr. Lamborn. Thank you all for being here today. Thank you, 
Mr. Chairman, for having this hearing. I yield back.
    Dr. Gosar. I thank the gentleman.
    The gentleman from Florida, Mr. Soto, is recognized for 5 
minutes.
    Mr. Soto. Thank you, Mr. Chairman. There was a premise that 
the polluters are long gone, so I wanted to sort of confirm 
this first. We will start out with you, Mr. Graves. Are the 
polluters, a.k.a. the owners of the abandoned rock mines, long 
gone in Colorado? And if so, how did your state allow that to 
happen?
    Mr. Graves. What we typically term as a legacy site or an 
abandoned site in Colorado is that mining took place prior to 
environmental laws being enacted in Colorado. At the time, 
there was no regulatory authority requiring operators to post a 
bond or to complete reclamation prior to that point in time. 
So, for the most part, on the abandoned mine sites that we work 
at, there is no operator that was under regulation by the state 
at the time that they stopped operation.
    Mr. Soto. And has your state implemented an abandoned rock 
mine fee going forward?
    Mr. Graves. We don't have a specific fee associated with 
abandoned hardrock mines, but we do receive state severance tax 
dollars from the production of oil and gas, coal, and hardrock 
that does go back into the Department of Natural Resources to 
be used on natural resource issues, which abandoned mines are 
one of those.
    Mr. Soto. Ms. Coleman, same question. Are the polluters 
long gone in Montana? And if so, how did that happen?
    Ms. Coleman. Thank you, Congressman Soto. Yes, they are. In 
fact, the Abandoned Mine Lands Program is restricted to only 
work on true abandoned mines and that is where no potentially 
liable parties still exist, so a lot of our mines were 
abandoned around the 1950s, prior to environmental regulations.
    Mr. Soto. And does your state now have an abandoned 
hardrock mine fee?
    Ms. Coleman. Thank you, Congressman Soto. Yes, they do. It 
is a fee on mineral production in Montana, and I guess we will 
be expecting that revenue to come in in 2018.
    Mr. Soto. Commissioner Strohmaier, what would the uses be 
in some of these abandoned mines? Would it be predominantly 
fishing, or would there be swimming or other activities?
    Mr. Strohmaier. Thank you, Mr. Soto. All of the above. As I 
mentioned in my testimony, we have now over $7 billion in 
consumer spending going on in Montana related to recreation. It 
is our largest economic driver in the state, and that runs the 
gamut of folks who recreate in our waters, related to fishing, 
boating, but also simply clean water. Folks come to Montana, 
actually, Missoula, Montana, to set up business because of the 
quality of life, because we do have clean water across the 
board.
    Mr. Soto. Thank you, Commissioner. Mr. Wood, if we allowed 
fishing and swimming, do we know what safe increments are of 
all these various leftover minerals and toxins?
    Mr. Wood. I think the states do know those things.
    Mr. Soto. Already?
    Mr. Wood. Yes, I think so.
    Mr. Soto. And do we know what the health effects would be 
for fishing or swimming? I mean, would you recommend swimming 
in some of these places?
    Mr. Wood. You mean places pre-cleanup?
    Mr. Soto. No, post-cleanup.
    Mr. Wood. I would, yes. We have participated in a number of 
those projects, and I can tell you, the fish response is 
astonishing.
    Mr. Soto. So, for the liability protection, going back to 
Mr. Graves and Ms. Coleman, would this extend just to 
liabilities related to water pollutants, or are you asking that 
we extend it to dangerous conditions such as old equipment that 
may have never been picked up or unstable rock foundations? Is 
this just going to be a water liability thing, or are you 
asking for a blanket liability for everything? We can start out 
with you, Ms. Coleman.
    Ms. Coleman. Thank you, Congressman Soto. I think, Number 
one, more important would be the Clean Water Act liability 
protection and also CERCLA liability protection. But, I think, 
in order to engage our Good Samaritans and allow states to be 
Good Samaritans as well, they need to be assured of 
comprehensive liability protection, but I think it would be on 
case-by-case basis to be determined.
    Mr. Soto. Mr. Graves?
    Mr. Graves. I would agree with Ms. Coleman that, really, 
the bigger issue is the Clean Water Act and CERCLA liability 
protection.
    Mr. Soto. It seems that if we are talking about extending 
liability protections because you cannot make the water perfect 
under the Clean Water Act, there may be some wiggle room there, 
but extending it to conditions that should be fixed up before 
the public goes in--I could imagine some old rusty equipment 
that was never pulled out or rock formations that are unstable 
that could collapse on people. Those seem to be things that I 
don't personally think the liability should extend to, but 
there are always arguments about the water issue knowing that 
we cannot get the full clean water attainment. I yield back.
    Dr. Gosar. I thank the gentleman.
    The gentleman from Virginia, Mr. Wittman, is recognized for 
5 minutes.
    Dr. Wittman. Thank you, Mr. Chairman. Mr. Wood, I wanted to 
ask you a specific question. From Trout Unlimited's standpoint 
as you pursue these reclamation projects, first of all, how do 
you do that? Do you use subcontractors to do that, or do you 
have folks within there that are project managers--give me a 
little idea about how that comes about?
    Mr. Wood. We do both. One of the first things we did was in 
a place called American Fork Canyon in Utah. In that case, this 
was a true Good Sam project. There was a landowner, Snowbird 
Ski and Summer Resort, that didn't have any historic interest 
in the mine waste, but they also didn't want to touch it. And 
it wasn't a high-enough priority for EPA to go after them, so 
it just sat there leeching out, these tailings piles. So, it 
was largely a CERCLA issue.
    And, in that case, we hired an engineer who effectuated the 
cleanup. It took 2 years for us to work with EPA to get a Good 
Sam agreement which fixed the CERCLA problem, from our 
perspective anyway, and we still maintain that position. So, we 
are really mostly concerned about the Clean Water Act. And it 
took about 8 days to do the actual restoration, it was a very 
straightforward restoration.
    Dr. Wittman. That is great. Let me ask you about, again, 
extending from the idea of liability, if you are a project 
manager versus just subcontracting with somebody, does the 
liability extend to the subcontractor if you subcontract with 
them versus if you are the project manager yourself?
    Mr. Wood. I am not an attorney, so I don't want to get out 
over my skis here, but in the case of that project I just 
mentioned, the American Fork, the solution was we came up with 
an AOC, an administrative order of consent, from the EPA. And 
basically, they said, ``We will hold you harmless if you do 
everything that is stated in this contract.'' So, our engineer 
had subs come in, and we assume the liability for the subs, and 
they have their own liability protection obviously as a 
professional engineering company.
    Dr. Wittman. Gotcha, so it is kind of a tiered liability; 
you have overall liability for the projects, they have 
liability for their actions on the job?
    Mr. Wood. Exactly.
    Dr. Wittman. OK. Very good. Thank you, Mr. Chairman. I 
yield the balance of my time to Mr. Tipton.
    Mr. Tipton. Thank you, Mr. Wittman. And I thank the panel 
for being here. Mr. Chairman, thank you for holding this 
hearing. I think it is incredibly important.
    Mr. Wood, I do want to be able to compliment you on your 
site that you just put up, something on the Animas River, 
obviously critically important, the 3rd Congressional District 
of Colorado, and something we are proud to be able to play a 
role with our Hermosa Creek legislation which went through this 
Committee and through the Full House as well.
    As you know, in the past, we have had some discussions with 
Trout Unlimited in regards to pilot projects, to be able to 
prove that something can actually work, and the liability has 
always been the sticking point. And I am really gratified to be 
able to hear with our colleagues on both sides of the aisle, 
the recognition that it is important to really actually start 
addressing this.
    And would you say from Trout Unlimited's standpoint, if we 
do make some incremental gains, is that a positive for the 
river?
    Mr. Wood. Without question, yes. And I think it is not just 
a positive for the river, but for those people who are afraid 
of making any changes to the Clean Water Act. If we can model 
the kind of behavior that we are all talking about in this room 
over a 5- or a 10-year period and people can see that, wow, you 
actually can see a response in the aquatic vegetation, you can 
see a response in the water quality, you can see better 
fishing, there will be more of these projects that will pop up 
around the country.
    Mr. Tipton. Right. And I think we are all in agreement, 
nobody is talking about a wholesale change on the Clean Water 
Act, but to be able to make sure that it is flexible enough to 
be able to address the challenges that we are finding 
particularly in the Mountain West as it pertains to hardrock 
mining from abandoned mines. Would that be accurate?
    Mr. Wood. From our perspective.
    Mr. Tipton. Great. Would you concur with that, Mr. Graves?
    Mr. Graves. Absolutely.
    Mr. Tipton. Great. I think we have some great ideas. And 
some, as my colleague from Colorado, Mr. Lamborn, had pointed 
out, through our delegation we have made several stabs at 
trying to get Good Samaritan legislation to be able to move 
through. But, specifically, to what you were targeting, the 
liability issue has always been the sticking point. How long, 
and to whom is it going to be applied? When we are looking at 
that actual liability, when we are going to have that tailored 
a little bit, perhaps to Mr. Soto's point, would you see that 
as something that would be acceptable to the broader 
environmental community as well?
    Mr. Wood. Is that for me, sir?
    Mr. Tipton. Yes, sir.
    Mr. Wood. Could you just repeat the question for me?
    Mr. Tipton. Yes. When we are saying liability from falling 
rocks or rusting equipment, we will make this targeted?
    Mr. Wood. Yes, I think that is right. I think people would 
be afraid of an over-reach. And if there are physical hazards 
on site that need to be taken care of, they should be taken 
care of.
    Mr. Tipton. Great. Mr. Wittman's time has expired. I hope I 
am next.
    Dr. Gosar. You will be after Mr. Beyer.
    Mr. Tipton. Great. Thanks.
    Dr. Gosar. Mr. Beyer.
    Mr. Beyer. Thank you, Mr. Chairman. And thanks for coming. 
This Committee is usually so bipartisan and we get along so 
well, it is really fun to have this--so thank you for coming to 
have something we can agree on.
    [Laughter.]
    I just want to associate myself with the idea that Good 
Samaritan legislation is good, especially if carefully written. 
I think Ms. Coleman, your line here where it says, ``This means 
that even where these projects are conducted under established 
procedures, condoned by the EPA and/or the state NPDES 
authority, and are improving water quality by reducing 
pollution loading, they could still be sued by a third party 
and be assessed immense, perpetual liability.''
    And Mr. Chairman, I just want to point out that my father-
in-law retired from medicine at age 65 and moved to Florida as 
he had always dreamed to play golf every day. He lasted 3 
weeks. He was bored out of his mind, and came back to Virginia 
and began practicing medicine in clinics all over the state 
where they had essentially Good Samaritan laws, where he didn't 
have to carry this huge burden of liability insurance and was 
able to help thousands of people over that 5-year period 
because he had something like this in place. Many people, it 
was only their first or second time they had seen a physician 
in their life, so I associate myself with this in the balancing 
of rights.
    But moving on, I am concerned that there are 500,000 
abandoned hardrock mine sites, and I suspect that a Good 
Samaritan will address only a fraction of those. I think about 
my experience as an automobile dealer where we pay a fee for 
every tire we buy and dispose of, a fee for all of our Freon 
titling fees for every car we sell. I have personally had to 
supervise the digging up of at least 12 underground gasoline 
tanks that I had inherited rather than that I installed.
    And I wonder, is there anyone on the panel who thinks it 
would be unfair, or a bad idea, or counterproductive, to have a 
fee on hardrock mining that mirrors what we do on coal mining?
    I am hoping this is someplace we can be bipartisan also. 
This might help us do the rest of those 500,000. No, I am not 
going to ask you. Thank you.
    [Laughter.]
    I will note for the record that our panel thinks that they 
have no strong objections to that.
    And finally, Mr. Graves, you talked about 30 underground 
coal mine fires, or later managing 33 underground coal mine 
fires. Are these ongoing?
    Mr. Graves. They are ongoing, and they change. We have had 
new ones crop up this year based on wildfires that ignited some 
surface coal waste.
    Mr. Beyer. So, they come and they go. Well, let me ask you 
a harder question here. There seems to be a fundamental 
disconnect in a lot of the testimonies about the Good Samaritan 
projects. You have listed all the tremendous work that has 
already been done by Good Samaritans, but then talk about all 
the Good Samaritan projects that you cannot do because of 
CERCLA and the Clean Water Act. What is the difference between 
one and the other?
    Mr. Graves. I think in my testimony the sites that I did 
list that have been done typically are SMCRA sites who are 
working on physical hazards, fewer of the environmental hazards 
where the CERCLA liability or Clean Water Act liability comes 
into play. There are some sites where we have partnered with 
Federal agencies when they have exercised their CERCLA 
authority, thereby providing protection for all those people 
that participate in those projects. So, there is some work that 
has been done under the guise of Federal actions, removal 
actions by various entities, including the Forest Service, BLM, 
and the EPA, where we have had multiple partners together to 
implement projects.
    Mr. Beyer. One last question for Ms. Coleman and/or Mr. 
Graves. You both talked about the 3,800 miles of streams just 
in those two states impacted by acid mine drainage or metal 
contamination from abandoned mines. Do you have any idea what 
the volume is of acid mine drainage entering the waterways 
every year, in thousands of gallons, billions of gallons?
    Ms. Coleman. I am sorry I don't know that number, but I 
could try to look into it and get you an answer.
    Mr. Beyer. And Mr. Graves?
    Mr. Graves. I don't have that number. I could look into it, 
but that would be relatively difficult to establish because it 
does vary seasonally.
    Mr. Beyer. If you could try at least. One of the things we 
are trying to do is, we had a lot of hearings last year about 
the Gold King Mine spill, which was 3 million gallons, and it 
was a big deal and is incredibly ugly. It makes for great 
video. I am trying to sense how big was that relative to what 
is going on in your states year after year after year, perhaps 
not in a course of a couple of hours, but over the course of a 
year. It would be nice to get that in perspective. And with 
that, Mr. Chairman, I yield back.
    Dr. Gosar. I thank the gentleman. I thank the gentleman for 
his analogy with health care because I think that was a very 
good example. Thank you.
    The gentleman from Colorado is acknowledged.
    Mr. Tipton. I thank you again, Mr. Chairman. And I am glad 
Mr. Beyer, my colleague, brought up the Gold King Mine. When 
the adit was breached in 2015 with the EPA breach, we did see 
the 3 million gallons go in. And I would concur over the long 
haul, you will see gallons that are flowing in, that massive 
impact at that one time, flowing in and making the river flow 
gold was dramatic literally to our local communities. In the 
state of Colorado, we have a pretty good track record of trying 
to be able to move forward on this.
    Mr. Graves, I had a couple of questions, maybe they are a 
little specific to our state. Would you maybe go through a 
little bit of the process that is required for projects under 
Colorado law for the Inactive Mine Reclamation Program? What is 
the approval process that you have to be able to go through?
    Mr. Graves. For our process for inactive mine work that we 
do, it kind of falls into various categories.
    For the physical safety closure work that we do throughout 
the state, that is sealing shafts and adits and other physical 
safety features where the public can get injured, the process 
we go through is we receive grants from the Office of Surface 
Mining, and then we propose projects throughout the state to 
address the highest priority physical safety hazards, and then 
we have an advisory council where we bring those projects to 
them, and they then approve it for presentation to our Mine 
Land Reclamation Board where it gets final approval for those 
projects to proceed.
    With respect to the environmental side of the work that we 
do, that is typically organized through what we call our mixed 
ownership group, which is coordination between Federal, local, 
and state agencies that meet together and propose projects 
based on each individual agency's funding levels and their 
specific authorities that they could use to implement projects, 
like the Forest Service or the EPA. So, it varies depending on 
the types of projects.
    Mr. Tipton. OK. Great. And are there any sort of 
qualifications necessary for the third-party participation in 
the cleanups, any criteria by the state?
    Mr. Graves. There is no specific criteria.
    Mr. Tipton. No specific criteria. Pretty much the same 
circumstances in Montana, Ms. Coleman?
    Ms. Coleman. Yes, the same. Most of our Good Samaritan 
partners are partners in funding. So, they bring funding to us, 
and we do the work with them and incorporate their designs and 
our designs at the same time.
    Mr. Tipton. And for the both of you, is the third-party 
eligibility as Mr. Wood had described, where they were the 
principal, are they the ones who determine who can be the third 
party? Is that to the principal of person, say in this case 
Trout Unlimited as an example, who is going to determine 
eligibility for third parties or is that left strictly up to 
the principal who is going to clean up?
    Mr. Graves. Usually, it is a function of the principal that 
is doing the cleanup, but a lot of times it is driven by who is 
receiving the funding and who has the funding to actually do 
the work.
    Mr. Tipton. OK. The same thing in Montana?
    Ms. Coleman. I am not sure I quite understood the question 
that you are asking.
    Mr. Tipton. You will have a third party, as Mr. Wood had 
described, it was not necessarily Trout Unlimited, with the 
equipment on the ground to be able to start the cleanup. Some 
third-party people came in, they were the over-arching. Are 
there any eligibility requirements in Montana or is that just 
left up to the principal for the third party?
    Ms. Coleman. Not that I know of.
    Mr. Tipton. OK. Again, I appreciate the panel so much and I 
am pleased to hear some good common ground on a critical 
important issue for the West. And for our state of Colorado, 
Mr. Graves, I appreciate you taking the time to be here. I will 
yield the balance of my time to the Chairman.
    Dr. Gosar. Thank you. I thank the gentleman. I am going to 
save that time until the end of the discussion, because I think 
there are some important summaries that we need to get.
    The gentleman from Georgia, Mr. Hice, is recognized for 5 
minutes.
    Dr. Hice. Thank you, Mr. Chairman. And thank each of you 
for being here today.
    Mr. Graves, I would like to begin with you. So far as it 
relates to public/private partnerships, there has been great 
success in Colorado and Montana, other examples that are very, 
very encouraging regarding the abandoned hardrock mines. With 
that in mind, what kind of guidance or assistance would you 
need from us, from the Federal Government, to help enable 
reclamation projects at the state level?
    Mr. Graves. I guess it is less guidance, it is more 
protection. We have been talking about Good Sams as a whole and 
I think what sometimes gets lost in that broader discussion is 
that states really are a Good Sam in most of these cases. And, 
also, because we are acting as a Good Sam, we need those same 
kind of liability protections. Just because we are a state 
doing a cleanup doesn't mean that we are free from long-term 
liability associated with the cleanup.
    Dr. Hice. So, that would apply to states whether they 
already have programs, that type of thing, or not?
    Mr. Graves. Correct.
    Dr. Hice. The Number one issue would be protection?
    Mr. Graves. Correct.
    Dr. Hice. OK. Assuming that is kind of across the board, 
would most of you agree with that?
    OK. One other question for you. What factors do you think 
should be taken into account when delegating responsibilities 
of program oversight to the states?
    Mr. Graves. That is an excellent question. I think it needs 
to be a well thought out program, in terms of oversight and 
recognizing that the work that is being conducted obviously 
comes with certain risks associated with it. So, sufficient 
review of projects by appropriate people, I am sure there are 
other things I can think of in the future, but----
    Dr. Hice. All right. Would anyone else like to address 
that?
    Ms. Coleman. Thank you, Congressman Hice. I think in 
Montana, we feel that because we have primacy on the Clean 
Water Act in Montana and also we have other regulations that 
would be over these Good Samaritan projects that the Federal 
guidance that comes down, we would also like primacy on that in 
Montana to determine who is and who is not a Good Samaritan.
    And we really like the process in the Pennsylvania example 
of community reclaimers where these Good Samaritans come to the 
state, form a partnership with the state, and then in that, the 
liability protections would be extended.
    Dr. Hice. OK. Good.
    Mr. Wood, let me ask you this because your organization has 
certainly been a part of these reclamation projects in states 
across the country. With what you all have done, what elements 
of the state program make public/private partnerships 
effective? What do we need to know that makes this whole thing 
work?
    Mr. Wood. We were commenting earlier before the hearing 
that the relationships that we have in the two states that are 
represented here are phenomenal. There is no daylight between 
the work that we are doing with our partners in Colorado or in 
Montana. I think that sort of partnership needs to be a really 
strong and maintained.
    And I think, as was just said, leaving as much discretion 
to the state to set the kind of standards they want to set I 
think is appropriate.
    Mr. Tipton. All right. Do you think the states need to have 
a more powerful voice than the Federal Government?
    Mr. Wood. In places where the Clean Water Act authority has 
been delegated to the state, it is probably appropriate that 
they would set the standards.
    Dr. Hice. Which makes sense. They are closer to the 
problem, so their interest is--and one size doesn't fit all. 
This can't just be a cookie cutter thing. Is that more or less 
what you are saying?
    Mr. Wood. More or less.
    Dr. Hice. OK. Anyone else on that? Anybody want to add to 
it?
    Mr. Strohmaier. Yes. One of the impediments that we found 
with working with the Federal Government in particular is from 
a contracting standpoint it has been much easier working 
contractually with an NGO like Trout Unlimited than it has been 
with the U.S. Forest Service. Our local government entity 
receives grant monies from Montana DEQ, Department of Natural 
Resources in Montana, and then enters into--at least on some of 
our CERCLA projects with the U.S. Forest Service--contracts 
with them and they administer the actual work. But the 
contracting for those projects is a significant burden and 
impediment, so I would say engaging local government in the 
discussion would be important.
    Dr. Hice. Excellent. And, again, I want to say thank you to 
each of you. This has been very insightful and informative, and 
I appreciate it. I yield back, Mr. Chairman.
    Dr. Gosar. I thank the gentleman. They just called votes, 
but we will have time.
    Mr. Gianforte, you are recognized for 5 minutes.
    Mr. Gianforte. OK. Thank you, Mr. Chairman. And thank you 
all for your testimony today.
    Ms. Coleman, in your testimony, you highlighted the great 
work that Trout Unlimited did with Montana AML, specifically on 
the Lilly Orphan Boy project on Telegraph Creek. And I commend 
your work there getting it cleaned up, but was disappointed to 
hear that you were not able to complete the project, that there 
was a section that you couldn't touch, and you point out the 
irony. But Ms. Coleman, could you elaborate on why you had to 
step away from the project and not actually complete it?
    Ms. Coleman. Thank you, Congressman Gianforte. We jokingly 
refer to that as Phase 2 of Lilly Orphan Boy. We did this 
cleanup and we have significant water quality, but there is 
still a draining adit in the middle of that site. We have 
talked about exploring options, but with so little funds 
between not only our program but our Good Samaritan partners, 
our hands are kind of tied. And then on top of that, we are 
both adverse to accepting that liability from the Clean Water 
Act, so----
    Mr. Gianforte. So, suffice to say, you cleaned up the whole 
site except where it drained out of the adit into the stream?
    Ms. Coleman. Exactly. The conversations around the design 
were, ``Leave the adit alone, don't touch it,'' because, again, 
we are concerned about the ``you touch it, you bought it,'' so 
it stays where it is.
    Mr. Gianforte. Are there things you could have done to 
improve the water quality coming out of the adit and into the 
stream?
    Ms. Coleman. I think so. We have not done an extensive 
geochemical investigation there, but I think so. I think we 
could have done a series of ponds to slow that water down and 
let the chemistry equilibrate. We could have redirected flow. 
We could have done a few things. We didn't do an extensive 
study, but I believe we could do more.
    Mr. Gianforte. And based on your experience working on 
projects like this, if you had done those ponds or some other 
passive approach, would that have improved the water quality?
    Ms. Coleman. Again, without extensive geochemistry and 
modeling, I do think so based on what we have seen.
    Mr. Gianforte. OK. And just to put a sharp point on it, 
what was it about the adit that caused the working group to not 
want to touch it?
    Ms. Coleman. Again, it would be that liability risk that 
either us or our partners in Trout Unlimited would accept or 
would not accept, I guess.
    Mr. Gianforte. OK. Just as a follow-on, is there anything 
else we should do in this legislation beyond curbing liability 
that would allow us to preserve this goal of cleaning up these 
mines?
    Ms. Coleman. I think it is important to recognize that 
Water Quality Act liability is huge, but also CERCLA liability 
is significant for the states and Good Samaritans, so that 
would be a good place to start. Good Samaritan could get very 
big very fast, so I think starting with those two would be a 
very good place.
    Mr. Gianforte. OK. And then for Mr. Wood. You recommended a 
series of pilots, and I am just curious, what would the 
qualifications for these projects be? How should they be 
chosen? How would you measure success?
    Mr. Wood. Well, I would frankly leave that up to the states 
working with the EPA to choose where the pilot should be. And 
the measures of success--again, I am not a biologist--but I 
think improvements in water quality, certainly in trout waters, 
improvements in trout populations. I think they are fairly 
measurements that we could take.
    Mr. Gianforte. OK. Thank you to the panel again for your 
testimony. This was very informative. Mr. Chairman, I yield 
back.
    Dr. Gosar. I thank the gentleman. I have just a couple of 
summaries here.
    Mr. Wood, you have been involved with some of these 
demonstrations or some of these projects. In these projects, 
what do you consider kind of that threshold of change? Is it a 
simple project, is it a complex process pilot? Where is the 
first problem in the pilot?
    Mr. Wood. Where is the first problem, sir?
    Dr. Gosar. Yes. I mean, some of the simple mitigations are 
pretty simple. I get that. Where is that next threshold for our 
pilot?
    Mr. Wood. To get to the more----
    Dr. Gosar. I am trying to define where we need to go as a 
solution. Where do we need to pick the fight so that we can 
emulate--once again, one of the things I am going to tell you 
is trust is a series of promises kept. There is not a lot of 
trust, not only from your side, but from this side to this 
side, this side to that side. I think you replicate function by 
replicating success.
    Mr. Wood. I think that is right. And for that very reason, 
my recommendation would be that we keep it simple initially, 
and pick high-visibility sites that are in big population areas 
where we can ballyhoo and hold up to success so a lot of people 
can see it, and then begin to do more of them.
    Dr. Gosar. And would you oversee that with a coordination 
director, how would you go about that? Would there be one 
entity? Because what you are trying to build is trust between 
the Federal, state, local NGOs, all the way across the board. 
So, how would you put that, who would head that?
    Mr. Wood. I think the way it works right now is good and I 
wouldn't mess with it. I wouldn't create any over-arching 
bureaucracy or apparatus. I think the trust issue is probably 
more prevalent with people who are concerned that we are going 
to create too many get out of jail free cards and we are going 
to start exempting people from various environmental laws. I 
think that once we demonstrate that that is not at all our 
intent and we see improvements in the environment, that fear 
will go away, that trust will be gained, and we can take it to 
the next level.
    Dr. Gosar. How many pilots do you think we should initiate 
so that we can build that trust? What do you think it would 
take?
    Mr. Wood. Ten is a good number.
    Dr. Gosar. Ten? Describe the 10.
    Mr. Wood. Well, half of them come through Trout Unlimited. 
They are all in watersheds that we pick.
    [Laughter.]
    I mean, I was in jest, but I am actually partly serious. I 
would look for projects where you have a diverse array of 
stakeholders and partners because it is going to help to build 
that trust that you are talking about. And I would look for 
where you are going to see the highest return on investment, 
whether it is from a trout response which is what I care about, 
or helping endangered species, or reducing downstream water 
filtration costs for the local community. I would build an ROI 
into the selection of the pilots.
    Dr. Gosar. Mr. Graves, do you agree with that?
    Mr. Graves. Completely. Yes, I think it is taking advantage 
of projects where you have lots of potential partners and 
parties. That way, you can show off the work that you have done 
and demonstrate the fact that we can all work together to 
achieve a common good, which is cleanup on these sites. I think 
selecting sites that are relatively simple gives you the best 
possibility of achieving that success in a pretty short period 
of time.
    Dr. Gosar. And coming from Colorado, you could identify a 
site within Colorado that you think that----
    Mr. Graves. I think we could identify a couple of sites in 
Colorado that would provide a good opportunity to demonstrate a 
pilot program.
    Dr. Gosar. Ms. Coleman?
    Ms. Coleman. Thank you. I think it would be important to 
work in a watershed where there is other abandoned mine land 
work going on, so that you would see substantial improvements 
to the whole watershed or the whole drainage. So, I think a 
pilot program where there is adjacent work going on would be 
really key.
    Dr. Gosar. I like the idea, in particular, of leveraging 
active mine sites within the geographic area. Because they may 
not own the mine site, but when you have a mine presence there, 
you actually have a bunch of the infrastructure there that will 
facilitate some of the mediation. Would you agree?
    Ms. Coleman. I think that could be possible within the 
constraints of the pilot.
    Dr. Gosar. Yes. I am referencing some areas that are 
happening in Arizona.
    Mr. Strohmaier, would you agree?
    Mr. Strohmaier. I would agree entirely. And I am positive 
we could come up with a site in Missoula County, Montana to 
participate in the pilot.
    Dr. Gosar. The reason I am going there is because you are 
going to see some questions from me to you to try to outline 
how do we build a pilot program. Because I think we can't go 
forward without building some trust through some types of 
pilots, and we want a vast array of them so that we can show 
from the very easy to the very complicated and how do we 
mitigate that.
    I see you agreeing, Mr. Minces. Would you agree? Would your 
group be behind something like that?
    Voice. In consultation with our friends at Trout Unlimited, 
of course.
    Dr. Gosar. Perfect. I thank the folks, I thank the 
witnesses for their valuable testimony, and the Members for 
their questions.
    The members of the Committee may have some additional 
questions for the witnesses, and we ask that you respond to 
those in writing.
    Under Committee Rule 3(o), members of the Committee must 
submit witness questions within 3 business days following the 
hearing by 5 p.m., and the hearing record will be held open for 
10 business days for these responses.
    If there is no further business, without objection, the 
Committee is adjourned.

    [Whereupon, at 3:31 p.m., the Subcommittee was adjourned.]

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S 
                            OFFICIAL FILES]

Rep. Gosar Submissions

    --Policy Resolution 2016-07, Cleaning Up Abandoned Mines in 
            the West, submitted by Western Governors' 
            Association.

    --Policy Resolution 2017-06, Financial Assurance 
            Regulation, submitted by Western Governors' 
            Association.

                                 [all]