[Senate Hearing 117-638]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 117-638
 
                 A LEGISLATIVE HEARING ON S. 3571_GOOD
                   SAMARITAN REMEDIATION OF ABANDONED
                       HARDROCK MINES ACT OF 2022

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

                             JOINT HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS

                                WITH THE

                    SUBCOMMITTEE ON CHEMICAL SAFETY,
                WASTE MANAGEMENT, ENVIRONMENTAL JUSTICE,
                        AND REGULATORY OVERSIGHT

                                AND THE

                      SUBCOMMITTEE ON FISHERIES, 
                          WATER, AND WILDLIFE

                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 29, 2022

                               __________

 Printed for the use of the Senate Committee on Environment and Public 
                                  Works
                                  
                                  
 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Available via the World Wide Web: http://www.govinfo.gov
        
        
                       ______

             U.S. GOVERNMENT PUBLISHING OFFICE 
 51-677PDF          WASHINGTON : 2023
 
  
        
        
        
        
        
        
        
        
               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                  THOMAS R. CARPER, Delaware, Chairman
BENJAMIN L. CARDIN, Maryland         SHELLEY MOORE CAPITO, West 
BERNARD SANDERS, Vermont                 Virginia, 
SHELDON WHITEHOUSE, Rhode Island         Ranking Member
JEFF MERKLEY, Oregon                 JAMES M. INHOFE, Oklahoma
EDWARD J. MARKEY, Massachusetts      KEVIN CRAMER, North Dakota
TAMMY DUCKWORTH, Illinois            CYNTHIA M. LUMMIS, Wyoming
DEBBIE STABENOW, Michigan            RICHARD SHELBY, Alabama
MARK KELLY, Arizona                  JOHN BOOZMAN, Arkansas
ALEX PADILLA, California             ROGER WICKER, Mississippi
                                     DAN SULLIVAN, Alaska
                                     JONI ERNST, Iowa
                                     LINDSEY O. GRAHAM, South Carolina

             Mary Frances Repko, Democratic Staff Director
               Adam Tomlinson, Republican Staff Director
                              ----------                              

          Subcommittee on Chemical Safety, Waste Management, 
            Environmental Justice, and Regulatory Oversight

                     JEFF MERKLEY, Oregon, Chairman
BERNARD SANDERS, Vermont             ROGER WICKER, Mississippi, 
EDWARD J. MARKEY, Massachusetts          Ranking Member
MARK KELLY, Arizona                  RICHARD SHELBY, Alabama
ALEX PADILLA, California             DAN SULLIVAN, Alaska
THOMAS R. CARPER, Delaware (ex       JONI ERNST, Iowa
    officio)                         LINDSEY O. GRAHAM, South Carolina
                                     SHELLEY MOORE CAPITO, West 
                                         Virginia (ex officio)
                              ----------                              

             Subcommittee on Fisheries, Water, and Wildlife

                  TAMMY DUCKWORTH, Illinois, Chairman
BENJAMIN L. CARDIN, Maryland         CYNTHIA M. LUMMIS, Wyoming, 
SHELDON WHITEHOUSE, Rhode Island         Ranking Member
EDWARD J. MARKEY, Massachusetts      JAMES M. INHOFE, Oklahoma
DEBBIE STABENOW, Michigan            KEVIN CRAMER, North Dakota
MARK KELLY, Arizona                  JOHN BOOZMAN, Arkansas
THOMAS R. CARPER, Delaware (ex       DAN SULLIVAN, Alaska
    officio)                         JONI ERNST, Iowa
                                     SHELLEY MOORE CAPITO, West 
                                         Virginia (ex officio)
                            C O N T E N T S

                              ----------                              
                                                                   Page

                           SEPTEMBER 29, 2022
                           OPENING STATEMENTS

Merkley, Hon. Jeff, U.S. Senator from the State of Oregon........     1
Lummis, Hon. Cynthia M., U.S. Senator from the State of Wyoming..     2

                               WITNESSES

Heinrich, Hon. Martin, U.S. Senator from the State of New Mexico.     3
    Prepared statement...........................................     5
Risch, Hon. James E., U.S. Senator from the State of Idaho.......     7
    Prepared statement...........................................     9
Kelly, Hon. Mark, U.S. Senator from the State of Arizona.........    10
Cabrera, Misael, P.E., Director, Arizona Department of 
  Environmental Quality..........................................    11
    Prepared statement...........................................    13
    Responses to additional questions from Senator Carper........    34
    Response to an additional question from Senator Kelly........    36
Pagel, Lauren, Policy Director, Earthworks.......................    76
    Prepared statement...........................................    78
    Responses to additional questions from Senator Carper........    84
Wood, Chris, President and CEO, Trout Unlimited..................    87
    Prepared statement...........................................    89
    Responses to additional questions from:
        Senator Carper...........................................    96
        Senator Sullivan.........................................    99
Ogsbury, Jim, Executive Director, Western Governors' Association.   101
    Prepared statement...........................................   103
    Response to an additional question from Senator Carper.......   109

                          ADDITIONAL MATERIAL

Letter to Senators Merkley and Wicker from Coeur Mining, 
  September 27, 2022.............................................   117
Letter to Senator Merkley et al. from the:
    American Exploration & Mining Association, September 29, 2022   120
    Environmental Council of the States, October 27, 2022........   122
    Mining and Metallurgical Society of America, September 27, 
      2022.......................................................   123
    Center for Biological Diversity, October 12, 2022............   125
Letter to Senator Duckworth et al. from the Women's Mining 
  Coalition, September 28, 2022..................................   139
Letter to Senator Lummis from the Wyoming Mining Association, 
  September 29, 2022.............................................   141
Letter to Senators Carper and Capito from:
    Senators Kelly and Lummis, May 11, 2022......................   142
    The American Water Works Association, September 29, 2022.....   144
    The Congressional Sportsmen's Foundation, September 28, 2022.   147
    ConservAmerica, September 29, 2022...........................   149
Letter to Senators Carper and Cardin from Trout Unlimited, 
  September 21, 2022.............................................   151
Letter to Senators Carper et al. from the American Association 
  for Justice, October 4, 2022...................................   153
Letter to Senator Kelly from the Arizona Mining Association, 
  September 29, 2022.............................................   155
Letter to Senator Michael F. Bennet et al. from the Board of 
  County Commissioners of La Plata County, Colorado, September 
  13, 2022.......................................................   157
Letter to Alicia Hawkins, Chief Clerk, Senate Committee on 
  Environment and Public Works from the Hinsdale County, 
  Colorado, Board of Commissioners, September 7, 2022............   159
Testimony for the Record, the National Mining Association, 
  September 29, 2022.............................................   160


    A LEGISLATIVE HEARING ON S. 3571--GOOD SAMARITAN REMEDIATION OF 
                  ABANDONED HARDROCK MINES ACT OF 2022

                              ----------                              


                      THURSDAY, SEPTEMBER 29, 2022

                               U.S. Senate,
         Committee on Environment and Public Works,
        Subcommittee on Chemical Safety, Waste Management, 
Environmental Justice, and Regulatory Oversight, joint with 
                                                        the
            Subcommittee on Fisheries, Water, and Wildlife,
                                                    Washington, DC.
    The Committee, met, pursuant to notice, at 10:01 a.m. in 
room 406, Dirksen Senate Office Building, Hon. Jeff Merkley 
(Chairman of the Subcommittee) presiding.
    Present: Senators Merkley, Capito, Whitehouse, Kelly, 
Lummis, Sullivan, and Ernst.

            OPENING STATEMENT OF HON. JEFF MERKLEY, 
             U.S. SENATOR FROM THE STATE OF OREGON

    Senator Merkley. Good morning, everyone. Welcome to this 
joint hearing of the Chemical Safety, Waste Management, 
Environmental Justice, and Regulatory Oversight and the 
Fisheries, Water, and Wildlife Subcommittees.
    We are here to receive testimony from several witnesses 
about Senate Bill 3571, the Good Samaritan Remediation of 
Abandoned Hardrock Mines Act of 2022. The history of the West 
is a history of mining, mining for gold, for silver, for 
copper, and for nickel and more.
    In my State of Oregon, mining of these minerals gave birth 
to whole towns after the first nuggets or veins were discovered 
in the 1850s and prospectors and fortune seekers from 
California and other far reaches of the world came searching 
for these metals. In the century between the 1860s and 1960s, 
Oregon mines produced somewhere in the range of $130 million to 
$150 million, which in the currency of the time was a lot. But 
over time, most of these mines dried up or ran out, and when 
they did, they were abandoned, and the towns that they created 
died.
    But the mines that gave birth to them live on, leeching 
various chemicals into the watersheds and nearby streams, 
impacting many, many different tributaries and many different 
tribal and environmental justice communities. And there is no 
one taking responsibility to clear them up.
    There are some estimated 140,000 abandoned hardrock mining 
features throughout the United States. Federal agencies have 
found that six in ten are known to pose dangers to physical 
safety or are environmentally hazardous. This means thousands 
of miles of streams are impaired by heavy metals or acidity 
from these abandoned mines.
    The Environmental Protection Agency also estimates that 
abandoned hardrock mines are impairing water quality in 40 
percent of the headwater streams over the western United 
States, 52 percent of which are also drinking water sources.
    There is a critical need for us to address these abandoned 
mines, to clean them up, to stop them from polluting our 
waters, and in some cases, reutilizing the very areas they are 
in in some way to benefit communities, such as utilizing them 
for fields of solar panels. The question is, how do we do that 
when those who were responsible for the mines initially are 
long gone?
    The task is so daunting that the Bureau of Land Management 
estimates it could take up to 500 years just to confirm the 
presence of physical or environmental hazards at the abandoned 
mines they already know of. And that is why last year we sought 
and authorized $3 billion in investments for cleaning up and 
reclaiming abandoned mine lands as part of the Bipartisan 
Infrastructure Law. But more clearly needs to be done, and we 
need to work with those Good Samaritans, State agencies, 
businesses, non-profits, environmental groups, and others 
willing to take on this task.
    As things stand now, however, it is not easy to do so. Any 
group that works on a particular mine takes on potential 
liability for the preexisting pollution. That is a challenge, a 
challenge that this hearing will seek to address.
    The Good Samaritan legislation we are looking at, and the 
pilot program it creates, will seek to limit that liability for 
projects with low environmental risk which will improve water 
and soil quality and otherwise protect human health. So this 
hearing is an opportunity to explore, to understand the merits 
of this strategy, to understand better how it will correct a 
multi-generational environmental hazard, and to consider 
suggestions for improving the legislation, and to ensure there 
is appropriate oversight and input from States, Tribes, and 
other stakeholders.
    I want to thank all of our witnesses for being here as well 
as the interest and engagement of both Subcommittees. And with 
that, I am going to turn things over to Senator Lummis, Ranking 
Member of the second Subcommittee, for any opening remarks she 
would like to share.

         OPENING STATEMENT OF HON. CYNTHIA M. LUMMIS, 
             U.S. SENATOR FROM THE STATE OF WYOMING

    Senator Lummis. Thank you, Chairman Merkley. It is great to 
be here with you and join with your Committee, the CSWMEJRO 
Committee. That is quite an alphabet soup.
    [Laughter.]
    Senator Lummis. It is lovely to be with Senator Heinrich, 
who is one of the sponsors of this legislation, as well as Jim 
Ogsbury, from the Western Governors' Association.
    It is nice to see you again.
    This legislation and hearing are the culmination of efforts 
by a lot of members and outside support groups, including some 
of those represented here today by our witnesses.
    Again, Senator Heinrich, it is great to see you here today.
    Senator Risch is also cosponsoring this important 
bipartisan legislation. It is a pragmatic solution to the 
challenge of approximately 550,000 abandoned mines across the 
U.S., costing an estimated $54 billion to remediate. And it is 
just amazing how long this has been going on. It is time to get 
after some of these.
    While most of the sites don't pose environmental problems, 
drainage and runoff from some of these may pose a threat to 
surface or groundwater. So this bill creates a 7 year pilot 
permitting program to allow for 15 Good Samaritan remediation 
projects on Federal, State, tribal, and private lands.
    By resolving the liability issues that Senator Merkley 
mentioned that come under CERCLA and the Clean Water Act, we 
can expect additional help from new partners that will both 
protect human health and improve water and soil quality. We 
want to make sure that ``no good deed goes unpunished'' doesn't 
apply here. Legislation like CERCLA and the Clean Water Act 
that are intended to protect the environment shouldn't be the 
very reason that we can't protect the environment.
    Mining has been happening in our Nation for around 150 
years. But most of that occurred before serious environmental 
regulation was in place. And while we have to address some of 
that legacy mining that lacked the incredible safety and 
environmental standards we use today, we also must recognize 
that mining is absolutely necessary to our way of life. From 
materials used in life saving medical devices like CAT scans to 
defensive armor plates for our men and women serving in the 
military. Mining impacts every single one of us for good.
    I look forward to hearing from our witnesses today how this 
bill helps solve some of these legacy remediation issues in a 
common sense way that also respects federalism and utilizes 
willing partners who are eager to help.
    In closing, legislation to authorize Good Samaritan 
remediation has been around since 1999. That is a long time; we 
are going back into the last millennium. Something as 
bipartisan as this needs to be made a reality. I am hopeful 
that just perhaps the alphabet soup combination of our 
Subcommittees will be just the magic recipe to do so.
    Thanks again, Mr. Chairman. I yield back.
    Senator Merkley. Taking leadership on this long standing 
potential solution has been the lead sponsor, Senator Heinrich.
    I know when you sponsor a bill, you also become an expert 
in it. So we are looking forward to your testimony. You will be 
followed by Senator Risch.

              STATEMENT OF HON. MARTIN HEINRICH, 
           U.S. SENATOR FROM THE STATE OF NEW MEXICO

    Senator Heinrich. Chairman Merkley, Ranking Member Lummis, 
thank you for holding this hearing today on the Good Samaritan 
Remediation of Abandoned Hardrock Mines Act. I want to very 
much thank Senator Risch for your partnership and leadership on 
this critical issue.
    Across the country, old, abandoned hardrock mines leak 
heavy metals and other pollutants into waterways every day. We 
have certainly seen this with the Animas River and its travails 
in New Mexico. These mines, which produced metals like lead and 
gold, iron and silver, contributed vital materials to the 
industrial development of our Nation over the last century. In 
fact, both my father and grandfather worked in this industry.
    But in some cases, the companies that operated these mines 
shut down, went bankrupt, or just disappeared, leaving behind 
mine sites that pollute our lands and waters. We should hold 
responsible parties accountable for pollution. In fact, any 
company that has a historical legal or financial relationship 
to a closed mine is required by law today to clean up that 
site. And that is appropriate.
    But there are literally tens of thousands of abandoned 
hardrock mine sites that are truly abandoned. No person, no 
company that was involved in the operation or the ownership of 
the mine still exists and can be held accountable for that 
site. These mines are just there, year after year, in some 
cases polluting our water and destroying habitat for fish and 
wildlife.
    One factor that keeps unrelated third parties from 
voluntarily cleaning up these sites is that under Federal law, 
liability for pollution cleanup attaches to any person or any 
entity that touches a pollution site for any purpose, even if 
that purpose is simply to clean it up. This means that 
organizations like Trout Unlimited, who you will hear from 
later this morning, are unwilling to tackle mine site cleanup 
even when it is a major cause of fish habitat decline. Because 
doing so could mean huge liability for pollution that they had 
no role in causing in the first place. Even State environmental 
departments often avoid cleaning up certain sites of abandoned 
mines because the liability risk is simply too great.
    So we need a new approach. The Good Samaritan Remediation 
of Abandoned Hardrock Mines Act would create a pilot program to 
allow the EPA to issue no more than 15 Good Samaritan mine 
cleanup permits. These permits could only be issued to third 
parties unrelated to the mine, and the EPA would have the 
authority to approve or deny the applicant's cleanup plan.
    The permits would be subject to NEPA and other 
environmental laws, but would relieve the permit applicants 
from being legally liable for the pollution that they did not 
cause. This legislation has broad support, including State 
environment departments, Tribes, mining companies, hunting and 
fishing groups, conservation groups, local elected officials, 
and many more. We now have 18 bipartisan cosponsors, including 
several members of this Committee.
    This broad support comes from the fact that our communities 
simply can't wait any longer to start cleaning up this 
pollution. So I hope we can pass this legislation soon and let 
these Good Samaritans get to work cleaning up our lands and 
waters.
    [The prepared statement of Senator Heinrich follows:]
    
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    Senator Merkley. Thank you very much, Senator. I know you 
have a lot of mines in New Mexico, as we do in Oregon, as we do 
in Wyoming, as we do in State after State in the West.
    That includes Idaho, and we are delighted to have Senator 
Risch joining us today.

               STATEMENT OF HON. JAMES E. RISCH, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Risch. Thank you very much. I appreciate the 
opportunity to talk about this important piece of legislation, 
and for you setting the hearing today.
    In my home State, mining has a long and rich history. And 
that history is still being written today. Idaho, aptly named 
the Gem State, has produced world class supplies of gold and 
silver from before its statehood. It still does so today. And 
it has produced minerals critical for defense needs from World 
War II through today.
    As we work to further advance security and clean energy 
capabilities and shore up supply chains, Idaho's supply of 
critical and strategic minerals will without a doubt play a 
central role. Today, mining companies are held to rigorous 
environmental and reclamation standards throughout the mining 
process and are able to safely and sustainably extract 
important mineral resources.
    However, this was not always so. Many long abandoned mines, 
while once a major boon to communities across the West, now 
pose serious environmental risks, without having a party 
clearly responsible for them. I am honored to partner with 
Senator Heinrich sponsoring Senate Bill 3571, the Good 
Samaritan Remediation of Hardrock Mines Act, along with, as 
Senator Heinrich noted, an impressive and growing coalition of 
bipartisan sponsors.
    This bill is a reflection of years of collaboration among 
interested parties or Good Samaritans with genuine will to 
clean up these abandoned mines.
    My undergraduate studies were in natural resources. I have 
spent my entire adult life as a State Senator, Lieutenant 
Governor, Governor, and now here in the U.S. Senate, working to 
solve natural resource problems. I can tell you from 
experience, it is rare to have industry, conservation, and 
recreation groups rally around a singular, uniting issue the 
way they have with this legislation.
    It is not unprecedented. In Idaho, when I was Governor, we 
undertook the invitation from President Bush at the time to 
write a Roadless Rule applicable to our State. As you know, the 
Roadless Rule issue has been a vexing problem and continues to 
be a vexing problem all over America, except in Idaho.
    We wrote a Roadless Rule, when I say we, I mean Idahoans, 
in collaboration with the various stakeholders. We wrote a 
Roadless Rule that survived the test in the Ninth Circuit Court 
of Appeals, believe it or not, and is the law today applicable 
in Idaho.
    I have to thank all of the parties that helped develop that 
Roadless Rule. The type of support I had there and on this bill 
is a testament to how important and timely this bill is.
    We have good faith actors, and good faith actors are always 
a necessary ingredient when you are trying to do this. These 
good faith actors are ready and invested in remediating these 
legacy sites.
    I would be remiss if I didn't acknowledge my good friend, 
Chris Wood, who is here today. Chris heads Trout Unlimited, and 
was an incredibly valuable partner as we developed the Roadless 
Rule for Idaho, and then went through the courts sustaining it. 
Chris purports to be an environmentalist. But a little known 
fact is that he makes a pilgrimage every fall to one of our 
western States to try to help decimate our elk herds. 
Fortunately, he is a much better trout fisherman than he is elk 
hunter.
    [Laughter.]
    Senator Risch. We owe it to our western communities and to 
all Americans who hold dear our vast public lands to empower 
and encourage them to do what is allowed under this bill. I 
appreciate the step this Committee is taking to do this by 
discussing this legislation. I hope it will be the first step 
in its swift advancement, which as both of you have noted, is 
long, long overdue.
    Again, I appreciate this opportunity to speak on this 
topic. I appreciate the partnership of Senator Heinrich. This 
is critical for communities across Idaho and across the West.
    Thank you so much for your time.
    [The prepared statement of Senator Risch follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
     
    
    Senator Merkley. Thank you very much, both Senators, and 
your presence, representing both northern and southern sections 
of the western United States, and representing both Blue and 
Red communities and States. It shows how much of a range of 
support there is for this effort. Thank you.
    We will now ask the second panel to be seated.
    Welcome to all the members of our second panel.
    We are going to turn first to Senator Kelly of Arizona, who 
has been deeply engaged in this issue, and I know is fighting 
to find a solution that will help in his home State.
    Senator Kelly.

                 STATEMENT OF HON. MARK KELLY, 
             U.S. SENATOR FROM THE STATE OF ARIZONA

    Senator Kelly. Thank you, Mr. Chairman, Ranking Member 
Lummis, and Chairman Carper, and Ranking Member Capito; thank 
you for holding this hearing today on the Good Samaritan 
Remediation of Abandoned Hardrock Mines Act.
    Estimates from the Arizona State Mine Inspector indicate 
that Arizona could have as many as 100,000 abandoned hardrock 
mines. Not all of these pose a risk to public health and the 
environment. But there are hundreds that do, including many on 
tribal land.
    Most of these sites predate any Federal or State mining 
regulation. In fact, most predate Arizona becoming a State.
    There are real risks involved here. For example, abandoned 
uranium mines, including those on the Navajo Nation, pose an 
acute health risk to those living nearby. And throughout 
Arizona, abandoned zinc, copper, and lead mines pose a risk to 
surface water and groundwater quality.
    At the same time, as we have this historic drought, these 
threats are threats to potential sources of drinking water, and 
they need to be taken seriously. Fortunately, the State of 
Arizona, particularly our Department of Environmental Quality, 
has risen to the challenge, which is why I am excited to 
welcome virtually the Director of the Arizona Department of 
Environmental Quality, Misael Cabrera, to join us today.
    Director Cabrera has spent his entire professional career 
cleaning up and protecting the environment. He is an 
environmental engineer who, before this career in State 
government, worked on environmental quality projects as a 
contractor with EPA, DOD, and State and local governments.
    For the past 11 years, he has worked at ADEQ first as the 
Deputy Director before he was appointed to serve as the 
agency's director in 2015. Under his leadership, the ADEQ team 
has finished twice as many cleanups of hazardous waste sites 
than in the agency's previous 27 year history.
    He has doubled the number of leaking underground storage 
tank closures per year. And he has spearheaded efforts to clean 
up hardrock mine land sites. Of particular interest to today's 
hearing, Director Cabrera and his team have developed a new 
prospective purchaser agreement process which allows the State 
to take control of abandoned mine sites that pose a critical 
threat, a threat to public health and the environment, in 
exchange for providing narrow liability protections to parties 
not responsible for the initial contamination.
    I want to thank Director Cabrera for getting up early this 
morning. I know it is early in Arizona.
    Thank you again, Mr. Chairman, for leading this important 
hearing.
    Senator Merkley. We are now turning virtually to hear Mr. 
Cabrera.

         STATEMENT OF MISAEL CABRERA, P.E., DIRECTOR, 
          ARIZONA DEPARTMENT OF ENVIRONMENTAL QUALITY

    Mr. Cabrera. Senators Merkley and Duckworth, Ranking 
Members Wicker and Lummis, Senators Risch, Heinrich, and Kelly, 
and members of the Committee, thank you for this opportunity to 
express my support for Senate Bill 3571.
    Most abandoned mines in Arizona ceased operations by the 
1920s. These pre-regulation hardrock mines scatter the 
landscape, leaving behind mine waste, tailings, discharging 
adits, and open shafts.
    I would be remiss if I did not mention that the risks and 
impacts of these abandoned pre-regulation mines are very 
different from modern, heavily regulated mines. This common 
sense distinction was recently affirmed by both the U.S. EPA 
and the D.C. Circuit Court of Appeals.
    But there is no doubt that pre-regulation abandoned mine 
lands pose a risk to public safety and health and continue to 
degrade the natural environment. Over 120 Arizona stream miles 
are listed as impaired under the Clean Water Act for heavy 
metals frequently associated with abandoned mines. These 
streams feed larger watersheds that people depend on for 
recreation, irrigation, ranching, and are home to more than 150 
endangered or threatened species.
    One of these impaired streams is Pinto Creek in Gila 
County, Arizona. The Former Gibson Mine Site, which had been 
gifted to the Franciscan Friars in 1969, and whose previous 
owners and operators no longer exist, was the single largest 
copper source to the Pinto Creek watershed. Since 2006, 
significant reclamation activities have been carried out 
through public-private partnerships, including ADEQ grants.
    Despite significant efforts, including a 75 percent 
reduction in the copper loading to Pinto Creek, the former 
Gibson Mine continues to be a source of copper concentrations 
to Pinto Creek, and at every turn, the specter of liability 
slows down the work.
    ADEQ has worked with public and private partners to address 
nine legacy mine sites since 2015, and I can assure you that 
liability concerns are a frequent obstacle. In two of the nine 
sites, ADEQ signed a Prospective Purchaser Agreement with the 
new owners before the purchase. Arizona is one of a growing 
number of States with statutes that address liability issues 
associated with buying, selling, or developing property that 
has been contaminated.
    However, these State agreements do not protect partners who 
are not purchasers, and in any case do not limit Federal 
actions and therefore liability associated with the 
Comprehensive Environmental Response, Compensation, and 
Liability Act, or the Clean Water Act. Providing meaningful 
incentives and protections to our partners that are 
implementing work on the ground will allow ADEQ and others to 
continue to do and expand the work.
    CERCLA and the Clean Water Act contain joint and several 
liability as well as other provisions that are helpful to 
holding responsible parties liable in the today. These same 
provisions only serve as obstacles and barriers to addressing 
pre-regulation abandoned mine lands where the responsible party 
no longer exists. And given that the U.S. General Accounting 
Office reports that about 22,500 abandoned mine features across 
the U.S. pose or may pose environmental hazards, we need 
solutions, not barriers.
    Addressing Good Samaritans' exposure to liability via the 
pilot program proposed in Senate Bill 3571 is a critical first 
step in allowing States, Tribes, new owners, non-profits, and 
volunteers to accelerate cleanups at abandoned mine lands. The 
Environmental Council of States, the national organization of 
the States' top environmental leaders, is encouraged by and 
enthused about this bipartisan proposal to spur environmental 
remediation and source water protection.
    There are others who have opposed Good Samaritan 
protections since 1999 when the first Good Samaritan bill was 
introduced in Congress. These voices focus on the possibility 
of abuse rather than the progress through real projects. This 
bill, if passed into law, will result in beneficial uses 
instead of hoping for blame and in reclamation that replaces 
resignation.
    If coupled with funding of Section 40704 of the 
Infrastructure Investment and Jobs Act for abandoned hardrock 
mine reclamation, Congress will create a turning point in 
abandoned mine land reclamation that will make a significant 
and lasting difference in our precious surface waters and 
environment.
    Thank you, and I am happy to answer any questions you may 
have.
    [The prepared statement of Mr. Cabrera follows:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
     
    
    
    Senator Merkley. Thank you very much, Director Cabrera.
    We are now going to turn to Lauren Pagel, Policy Director 
of Earthworks. She is an expert on mining, oil, and gas policy, 
and has worked to protect communities from impacts of 
extraction for several decades. She has led the Earthworks team 
for over a decade and served as co-chair of the Methane 
Partners campaign since 2019.
    Welcome.

                  STATEMENT OF LAUREN PAGEL, 
                  POLICY DIRECTOR, EARTHWORKS

    Ms. Pagel. Thank you.
    Thank you for the invitation to testify on S. 3571, the 
Good Samaritan Remediation of Abandoned Hardrock Mines Act of 
2022.
    My name is Lauren Pagel. I am the Policy Director at 
Earthworks. I really appreciate the opportunity to discuss ways 
Congress can help address the cleanup of abandoned hardrock 
mines and improve Good Samaritan policies.
    Earthworks is a non-profit organization dedicated to 
protecting frontline communities and the environment from the 
impacts of mineral and energy development while supporting a 
rapid, just, equitable, and fair transition to renewable energy 
built from responsibly sourced materials. Earthworks supports 
S. 3571's goal of cleaning up abandoned hardrock mines that 
pollute ancestral, public, and private lands.
    Good Samaritan policies can assist in addressing the 
problem of abandoned mines. But Good Samaritans alone are not 
the solution to cleaning up the hundreds of thousands of old 
mines in the West.
    In addition to Good Samaritan policies, Earthworks supports 
the Biden administration's fundamental principles for domestic 
mining reform, as well as S. 4083, the Clean Energy and 
Minerals Reform Act of 2022. A fully funded hardrock mining 
reclamation program, paid for via a reclamation fee similar to 
what the coal mining industry pays, is an essential part of 
getting abandoned mines cleaned up.
    Financial assurance provisions that reduce the risks and 
consequences of legacy pollution are also key, including EPA 
financial assurance requirements for the hardrock mining 
industry under Section 108(b) of CERCLA.
    Some important improvements to S. 3571 would ensure 
communities and western waters are protected while also giving 
appropriate Good Samaritans limited liability relief for low 
risk cleanup projects. To ensure waters of the U.S. are 
adequately protected, Earthworks recommends to limit the Good 
Samaritan liability waiver under the Clean Water Act. A limited 
liability waiver should include only certain point source 
discharges under Section 402, and this 402 waiver should be 
non-transferrable and terminate if water quality conditions 
worsen or when the Good Samaritan cleanup process ends.
    Good Samaritan projects should not include dredge and fill 
activities under Section 404, nor reopening of old adits on 
public lands, such as what happened at the Gold King Mine 
disaster in 2015.
    On public lands, investigative sampling permits should be 
limited by scope and number and subject to public review. EPA 
can coordinate with the land management agency to protect 
against pollution from mineral reprocessing and ancillary uses.
    Earthworks also recommends that the longstanding Clean 
Water Act citizen supervision for affected individuals and 
communities be retained in any Good Samaritan policy. These 
provisions help hold our government accountable and allow 
affected persons to seek judicial review to protect the 
environment when permitting agencies fail to do so.
    Earthworks also supports Good Samaritan projects' 
compliance with NEPA, which S. 3571 currently requires. NEPA 
waivers and categorical exclusions prevent Americans from 
having their voice heard on projects, and we are glad to see 
full compliance with NEPA in this bill.
    We also urge compliance with the National Historic 
Preservation Act, which is very important to Tribes in the 
West.
    Earthworks is eager to work with the Subcommittees and the 
bill's sponsors to create Good Samaritan policy that is 
carefully crafted to safeguard against potential inadvertent 
misuse or abuse, and ensure that downstream communities, 
Tribes, and watersheds do not end up further polluted. This is 
especially important since most hardrock mining occurs under 
the 150 year old general mining law, a permissive statute 
whereby the mining industry claims public land as their own, 
almost entirely for free, and at great expense to public, 
especially indigenous, communities.
    Good Samaritan policies are a small slice of a larger 
challenge of crafting more responsible mining policies in the 
United States. Swift action is needed to prevent future mining 
pollution and adequately address the larger scope of abandoned 
mine reclamation.
    Meaningful reform of our Nation's mining laws and 
regulations will create jobs and protect water in western 
communities from mine waste.
    Thank you so much for this opportunity to present 
Earthworks' views on these important issues.
    [The prepared statement of Ms. Pagel follows:]
    
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    Senator Merkley. Thank you very much for bringing your 
expertise to bear.
    We are going to turn now to Chris Wood, the President and 
CEO of Trout Unlimited. Trout Unlimited is a national non-
profit organization with 300,000 members and supporters 
dedicated to conserving, protecting, and restoring North 
American cold water fisheries and their watersheds.
    Chris Wood had previously served as a senior policy and 
communications advisor to the Chief of the U.S. Forest Service.
    Welcome.

                   STATEMENT OF CHRIS WOOD, 
               PRESIDENT AND CEO, TROUT UNLIMITED

    Mr. Wood. Chairman Merkley, Ranking Member Lummis, and 
members of the Subcommittees, thank you for inviting me to 
testify on S. 3571. TU strongly supports this bill, and 
appreciates the excellent leadership of Senators Risch and 
Heinrich, although perhaps not Senator Risch's criticism of my 
hunting, as well as the 16 other bipartisan cosponsors.
    [Laughter.]
    Mr. Wood. For decades, TU has worked to restore abandoned 
mines, from the coal fields of Appalachia to the Rocky Mountain 
States. And we stand ready to work alongside our State and 
Federal agency partners, landowners, the mining industry, and 
other environmental groups, to implement low risk pilot 
projects that S. 3571 would authorize.
    I am often described to you as the patron saint of 
neglected environmental causes, and no issue is more neglected 
than the damage caused by abandoned mines. The EPA estimates 
that 40 percent of all western headwaters are polluted by 
abandoned mines. These headwater systems are the sources of our 
coldest and cleanest water. They provide refuge for many 
species of native trout and salmon. More than half of these 
polluted streams are important sources of drinking water.
    Two primary challenges limit abandoned mine restoration 
today. The first is a lack of funding. Unlike every other 
commodity that is developed off of our public lands, mining 
companies do not pay a royalty on the production of minerals. 
Coal mining companies, by contrast, have contributed over $11.5 
billion into the Abandoned Mine Reclamation Fund, which fund 
has been used to great efficacy to clean up legacy coal mines 
across Appalachia and the western States.
    The second major challenge to abandoned mine cleanups are 
liability issues. Good Samaritans, organizations like mine that 
had nothing to do with the creation of pollution, could spend a 
few hundred thousand dollars making waters more swimmable and 
fishable, and get to perhaps 95 percent of Clean Water Act 
standards. But it may cost a few million dollars more to 
achieve that extra increment of 5 percent.
    So the organization that materially improved water quality 
could then be labeled by the government as a potentially 
responsible party. Or it could be subject to a citizen suit and 
compelled to get to 100 percent of Clean Water Act standards.
    Abandoned mines are a pervasive problem. But the solutions 
for fixing them are usually straightforward. Over the past few 
decades, TU has completed more than 40 separate abandoned mine 
cleanups across the West, using the limited legal tools that 
are available to us for dealing with waste rock piles through 
CERCLA and non-point source provisions of the Clean Water Act. 
But there is so much more that we could accomplish.
    TU members love the positive impact these projects have on 
trout populations. But it is important to remember that gravity 
works cheap, and it never takes a day off. When we reduce 
toxins from entering our waterways, we provide significant 
water filtration benefits for downstream communities. We know 
how to implement low risk mine cleanups to improve watershed 
and community health.
    The problem is that two of our Nation's most important 
environmental laws, the Clean Water Act and CERCLA, treat those 
who want to clean up pollution as if they are polluters 
themselves. Unless restoration results in discharges meeting 
100 percent of Clean Water Act standards, Good Samaritans could 
be held liable for the remaining pollution.
    Today the perfect stands as the enemy of the good. S. 3571 
would establish a new 7 year pilot program administered by the 
EPA to permit up to 15 Good Samaritan cleanup projects. These 
low risk projects must produce measurable improvements in 
environmental conditions.
    The bill expressly prohibits mining activities from Good 
Samaritan protection. There are no mining loopholes in this 
bill.
    Last, only sites that are truly abandoned are eligible. No 
one who caused the pollution will get off the hook.
    Taken together, these pilot projects will allow for Good 
Samaritans to make our water more drinkable, fishable, and 
swimmable. There is no constituency for orange rivers. We 
should be able to work together to pass this carefully crafted, 
tailored pilot program, learn from it, and then get to work at 
scale to recover the lands and waters upon which we all depend.
    Thanks for the opportunity to testify today.
    [The prepared statement of Mr. Wood follows:]
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    Senator Merkley. Thank you very much.
    We will now turn to Jim Ogsbury.
    Are you introducing Mr. Ogsbury?
    Senator Lummis. I am not, but I can.
    Senator Merkley. You would be most welcome to.
    Senator Lummis. Thank you.
    Jim Ogsbury is the head of the Western Governors' 
Association. It is the 17 western States, as I recall, and the 
island governments. The good work of the Western Governors is 
very bipartisan. They alternate between Democrat and Republican 
Governors in terms of the leadership of the group. And they 
address issues that are typical problems that are common within 
those western States.
    They also have fellows from a lot of Federal agencies that 
can contribute expertise. So you get a very balanced set of 
recommendations coming out of the Western Governors' 
Association.
    I used to be on the staff counsel of the Western Governors' 
Association when I was a general counsel to my Governor, Jim 
Geringer, of Wyoming, and found the work of the Western 
Governors to be especially pragmatic, common sense, helpful, 
bipartisan, and very targeted to address common issues of 
concern to the western States.
    Jim Ogsbury does a wonderful job leading that organization.
    Welcome, Jim, to the Senate Committee.
    Senator Merkley. We are delighted to have you, and that 
type of bipartisan record on issues in western States is so 
appropriate on this particular issue.

                   STATEMENT OF JIM OGSBURY, 
       EXECUTIVE DIRECTOR, WESTERN GOVERNORS' ASSOCIATION

    Mr. Ogsbury. Thank you very much.
    Chair Merkley, Ranking Member Lummis, my name is Jim 
Ogsbury. I am the Executive Director of the Western Governors' 
Association, a fiercely bipartisan organization representing 
the Governors of the 22 westernmost States and territories.
    WGA is an instrument of the Governors for bipartisan policy 
development and information sharing, and collective action on 
issues of critical importance to the western United States. It 
is an honor to join you today.
    Thank you for your attention to the important issue of 
abandoned hardrock mines, and considering S. 3571, the Good 
Samaritan Remediation of Abandoned Hardrock Mines Act of 2022. 
I would like to acknowledge Senators Heinrich and Risch for 
their bipartisan leadership on this issue, and the strong 
bipartisan support that the legislation has attracted from 
other western Senators.
    Western Governors have had formal policy on this issue and 
liability protections for Good Samaritans since 1995. Their 
current policy is articulated in WGA Policy Resolution 21-09, 
Cleaning Up Abandoned Hardrock Mines in the West. That 
resolution, included with my written testimony, states, 
``Western Governors call on Congress to legally protect Good 
Samaritans who clean up abandoned mines, including local and 
State governments, from becoming legally responsible for any 
continuing discharges from the abandoned mine.''
    The resolution also specifically supports the kind of pilot 
program authorized by S. 3571. Again, quoting from the 
resolution, ``Governors would support legislation establishing 
pilot projects, including pilot projects under State led 
programs to address liability issues for Good Samaritans at 
individual sites to help pave the way for comprehensive 
legislation, if comprehensive legislation addressing these 
issues is not possible in the short term.''
    The issue of abandoned hardrock mines has concerned Western 
Governors for decades, and they encourage congressional action 
now. The number of problematic mines is unknown, but the 
Government Accountability Office reports that tens of thousands 
of mines present confirmed environmental or physical hazards. 
To repeat the astonishing statistic already cited by Chair 
Merkley and Chris Wood, the Environmental Protection Agency 
estimates that 40 percent of western headwaters have been 
affected by abandoned hardrock mining discharges.
    Discharges of acidic mine drainage degrade water supplies 
for working lands and communities. They harm aquatic species. 
They lead to losses for recreation economies. The scope of this 
problem is massive. Federal agencies estimate that the total 
cost of addressing these hazards is on the scale of tens of 
billions of dollars.
    Cleanup of abandoned hardrock mines is impeded by 
insufficient funding, incomplete data establishing the scope of 
the problem, and a lack of common agreement concerning 
remediation needs and priorities. Another significant 
impediment is the potential legal liability of Good Samaritans 
who are willing to undertake remediation projects, but cannot 
bear the risks of being sued for their actions. Such parties 
who otherwise would have no responsibility for the pollution at 
abandoned hardrock mine sites can significantly increase the 
Nation's capacity to access and remediate these mines.
    Good Samaritans can be a powerful engine of abandoned mine 
cleanup, but only with funding and liability protection of the 
kind offered by S. 3571.
    Under the bill, EPA is responsible for determining Good 
Samaritan eligibility. Western Governors submit that States are 
more than qualified to assist in making that determination. 
Many States have agencies that administer the Clean Water Act, 
regulate and require financial assurance for reclamation of 
hardrock mines, remediate affected waters, and implement 
abandoned mine programs. These States are suited to help 
determine which entities should be eligible for Good Samaritan 
status, and to review and determine the adequacy of Good 
Samaritan reclamation plans.
    States are equipped to address the complexities associated 
with checkerboard land ownership in the West, and they can 
facilitate the kind of collaboration that is essential to 
address cross-boundary, cross-jurisdictional resource 
management issues. Good Samaritan issue legislation should 
recognize State authority and the expertise that States can 
bring to bear with respect to the pilot program's 
implementation.
    Thank you again for providing the opportunity to submit 
testimony on behalf of Western Governors.
    [The prepared statement of Mr. Ogsbury follows:]
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    Senator Merkley. Thank you all for your expertise. We are 
going to turn to questions now, and I will jump right in, 
followed by Senator Lummis, followed by Senator Capito. Great 
to have you.
    I am familiar with a site in Washington State called Holden 
Village. It is a former copper mining, primarily copper mining 
camp, and is now a Lutheran retreat center. And when I was 
there more than a decade ago, I noticed bulldozers at work and 
asked what was going on. They said, well, they are trying to 
figure out how to cap the tailings, specifically the challenge 
of cyanide trickling out from the tailings.
    Cyanide was used to dissolve the metals in a lot of 
hardrock mining. How big of an issue is cyanide leaching into 
our streams and affecting the health of streams? Chris Wood, I 
thought you might have an answer for that.
    Mr. Wood. Cyanide is pretty bad for fish. It is not alone 
in terms of the toxins that are caused by abandoned mines. It 
is zinc, lead, cadmium; it is the alphabet soup that you 
described, Senator Lummis, earlier for this Committee, it is 
applicable to how many negative effects can happen when 
minerals oxidize, they are exposed to oxygen, and they leach 
acid mine drainage into rivers.
    It is not just bad for fish, it is bad for people, too. As 
I mentioned, half of the abandoned mines in the West, it is 
estimated, negatively affect drinking water supplies. So it is 
not just harming fish, it is harming people as well.
    Senator Merkley. The stream that ran through that village 
was completely dead, no fish, nothing lived in it. So it 
remains in my mind how important it is to be able to do 
cleanups.
    I want to be clear, and I will ask you this, Lauren Pagel, 
under this legislation, this would not allow people to go in 
and kind of reprocess tailings for further extraction, reapply 
any sort of additional chemicals to dissolve metals. In other 
words, this is not protection for kind of going in and re-
mining, but this is truly about cleanup.
    Ms. Pagel. It is. That is a really important distinction 
between mining and Good Samaritan cleanup that this bill makes.
    Senator Merkley. Great.
    I am going to turn this over to Senator Lummis.
    Senator Lummis. Thank you, Mr. Chairman.
    Mr. Wood, congratulations on the good work of Trout 
Unlimited to advocate for our clean waters and our fisheries. I 
note that in August, Trout Unlimited, with six other 
conservation organizations, submitted joint comments with 
recommendations for the interagency working group regarding 
meaningful Good Samaritan proposals to remediate historic AML 
sites, and reprocessing mine tailings and waste.
    The comments did highlight the Clean Water Act and CERCLA 
as two primary barriers to making progress on AML reclamation. 
Can you describe how targeted conditional liability protections 
in reclamation efforts can help speed up the progress on 
cleanup of legacy abandoned mine lands?
    Mr. Wood. Yes, ma'am. Thank you for the kind words about 
Trout Unlimited. We appreciate that.
    As I mentioned in my testimony, one of the challenges, and 
this puts me in a very difficult situation, because there is 
not a stronger advocate for the Clean Water Act than Trout 
Unlimited, fishing need cold, clean water every day. Trout do, 
anyway. The challenge, though, is that as vital as that law is, 
it is meant to stop people from polluting. It doesn't enable 
people to clean up the effects of pollution.
    As I mentioned, we have the ability to go in, with a lot of 
these tailings, for example, the solutions are fairly 
straightforward. They are minor engineering problems in some of 
these places. We are not talking about Superfund sites. You dig 
a hole, you line the hole, you bulldoze the tailings into the 
hole, put an impermeable liner over it, put parent material 
over it, dig a French drain, and then you can walk away from a 
lot of these sites.
    But we can spend a couple hundred thousand dollars to do 
that kind of work on a site, and to bury these tailings. And we 
might be able to get to 95 percent, 98 percent of Clean Water 
Act standards. But it might be another $2 million, you might 
need to do a constructed wetland to get to 100 percent. Once 
you implicate, once you start dealing with moving water, 
running water, it implicates the Clean Water Act. And you are 
required by law to get 100 percent, or we would become a 
potentially responsible party in the Government's eyes, and 
liable to citizen suit from anyone.
    So it is a wonderful law; we don't want to change the Clean 
Water Act in any way, shape, or form. We just want to 
demonstrate the prowess of communities, of Good Samaritans to 
clean up these abandoned mines and to do so in a manner that 
makes the environment materially better, and then hopefully we 
can work with Congress to take this idea to scale.
    Senator Lummis. Thanks for your willingness to participate 
and put your financial wherewithal behind these projects.
    Mr. Ogsbury, how applicable are pilot projects for low risk 
AML sites like those in my home State of Wyoming? And is there 
room to implement Good Samaritan remediation more broadly?
    Mr. Ogsbury. Absolutely. Thank you, Senator Lummis. Again, 
there are tens of thousands of hazardous abandoned mine sites 
across the Nation. We are looking, under this legislation, at 
just 15 pilot projects. And we think that would be a great 
start. We want to learn from these projects and maintain 
momentum.
    The best way to build upon these pioneering projects is to 
ensure that we apply lessons from the projects to future Good 
Samaritan comprehensive legislation. Western States are an 
excellent laboratory for testing this system. Rather than 
contemplating an extension of the pilot projects, we would hope 
and prefer that the lessons learned from the pilot program be 
used to inform comprehensive legislation.
    In the meantime, these pilot projects will help us further 
understand how to best design projects to make them both 
attractive to Good Samaritans while ensuring that environmental 
cleanup quality is maintained. We will also be able, hopefully, 
to make sure that western States have a leadership role in the 
design and implementation of the program.
    Senator Lummis. Thank you.
    My last question is for Director Cabrera. Can these permits 
be designed in a way so they are limited in scope to make sure 
that no one can mine, explore, conduct other activities outside 
the scope of the permit under this legislation?
    Mr. Cabrera. Senator Lummis, absolutely, the EPA will have 
the ability to set forth specific permit conditions to a 
particular pilot project. And as far as I read the legislation, 
EPA is going to have broad authority to write permit 
conditions. As long as the applicant agrees to those permit 
conditions, the permit may limit many of the activities that 
occur on the site in terms of scope and ability.
    The law itself is very narrow and only allows for very 
narrow reprocessing of materials without additional mining. So, 
the answer to your question is yes.
    Senator Lummis. Thank you all.
    Mr. Chairman, I yield back.
    Senator Merkley. Thank you.
    Director Pagel, in your testimony you were mentioning 
several specific things that you would like to see in the bill. 
It wasn't clear to me if you were commenting on points that 
have already been incorporated or points that you think still 
need to be incorporated.
    Ms. Pagel. These are points that we think still need to be 
incorporated. We are looking forward to working with the 
sponsors, you all on the Committee, and Chris and others, to 
make sure that any Good Samaritan legislation is really 
protective. We are working directly with communities on the 
ground who have been impacted by mine waste or mining. We just 
want to make sure that downstream communities, especially 
indigenous communities, are adequately protected and that there 
is not some unintended consequences.
    Earthworks, Chris was reminding me, that the first time we 
testified together on this issue supporting Good Samaritan 
liability relief was 2006. Not that much has changed except 
maybe now I wear these reading glasses.
    The liability relief that Good Samaritans want is something 
that we support and want to work to make sure that any bill 
that passes gives that liability relief but also really 
protects water and communities on the ground.
    Senator Merkley. Thank you.
    Director Wood, it has been mentioned that you have been 
engaged in this conversation for a long time. The earlier 
testimony said this was first looked at in the early 1990s.
    What has been the primary concern that has prevented this 
from becoming law previously?
    Mr. Wood. Senator, I think it goes back to something I 
suggested earlier. The Clean Water Act and CERCLA are two of 
our most important environmental laws. I think people have been 
concerned that we would somehow use this effort to weaken those 
bedrock environmental laws.
    Another issue is that people were concerned about the scope 
and the scale of permitting a Good Samaritan program writ 
large. And while I agree with Jim that we do need to do that, 
ultimately the beauty of this bill is that it is 15 pilots over 
7 years. So we can actually learn from the work over the next 
15 years, then take those lessons learned and apply it more 
broadly.
    Senator Merkley. I am trying to remember the details, and I 
am not remembering them, of a previous environmental accident. 
And I wasn't sure if it happened during attempted remediation, 
but I think it was a mine that was full of water that was 
contaminated that was released into a stream and caused some 
devastation. Can you remind us of that? How do we avoid 
something like that happening again?
    Mr. Wood. That was the Animas, I mean, it happens every 
day, to be clear. It is happening on tens of thousands of 
abandoned mines. But on that one, there was a cleanup, and the 
contractor to the EPA that was cleaning up some big adits that 
were plugged, and they gave. It is important that that kind of 
a cleanup, we are talking about lower risk projects, not 
projects that would qualify for Superfund cleanup. These are 
mostly tailings, piles, or draining adits, which are much 
smaller in scope and scale.
    Senator Merkley. Ms. Pagel, is that the kind of thing that 
is in your mind when you are concerned about potential 
downstream impacts?
    Ms. Pagel. Yes. There is always, I think the focus on low 
risk projects and pilot projects is great, and will hopefully 
mitigate anything like the Gold King Mine disaster in Colorado 
happening. But things do go wrong. And just making sure that 
there is adequate protection if water quality is made 
significantly worse than it was previously is something that we 
remain concerned about, and we want to make sure that there are 
adequate protections to ensure that doesn't happen.
    Senator Merkley. Director Wood, you mentioned that that 
particular disaster involved unplugging something. I didn't 
catch what it was you were talking about.
    Mr. Wood. Adits, holes, they were doing some drilling to 
relieve pressure from these adits. I don't exactly know the 
details of what happened there. But it was a much more larger 
scale engineering project than the 15 pilots that are 
contemplated in this bill.
    Senator Merkley. Director Ogsbury, if we do nothing, if we 
don't have this bill, is it fair to say that very few 
remediation projects will take place?
    Mr. Ogsbury. I believe that is so. As Chris has mentioned, 
we have two big impediments, which are funding and liability 
protection. Congress has started to address the funding issue. 
That can really be unlocked with the Good Samaritan protections 
anticipated by S. 3571.
    I would add, we were talking about the Gold King mining 
disaster. Although that wasn't the kind of site that would be 
subject to this legislation, it did demonstrate to the public 
the dangers that these mines present, and the acute economic 
impacts. Fisheries were closed, recreational, the Animas came 
to a standstill. It is a very river dependent economy in that 
area. I know fishermen were loathe to get back because of the 
contamination.
    But more typically, acid mine drainage has diffuse economic 
impacts over long periods of time. Contaminated water is more 
expensive for municipalities to clean up, to treat to drinkable 
water standards. Agriculture producers suffer reduced crop 
yields when they are irrigating with contaminated water. And it 
also harms the aquatic ecosystems essential to good fishing and 
hunting and birding.
    So I would hope that inaction is not an option.
    Senator Merkley. Director Ogsbury, just to be absolutely 
clear, these are abandoned mines. This is not a situation where 
a company that has been involved in a mine still has liability, 
still is reachable, could transfer a mine to a non-profit and 
avoid being responsible for the challenges they may have 
created?
    Mr. Ogsbury. That is my understanding of the legislation, 
yes, sir.
    Senator Merkley. Is that everyone's understanding of the 
legislation?
    Mr. Wood. Yes.
    Mr. Ogsbury. Yes.
    Senator Merkley. Senator Kelly.
    Senator Kelly. Thank you, Mr. Chairman.
    Before I begin, I ask unanimous consent to enter into the 
record 12 letters of support for this legislation from States, 
NGOs, and advocacy groups.
    Senator Merkley. Without objection.
    [The referenced information is provided at the end of Mr. 
Cabrera's answers to questions for the record.]
    Senator Kelly. Director Cabrera, thanks again for joining 
us today. I want to ask you to expand upon your testimony. You 
mention that 120 stream miles are considered impaired under the 
Clean Water Act due to abandoned mine sites.
    How many of these streams are tributaries of the watersheds 
that provide most of Arizona's drinking water, like the 
Colorado River, the Salt River, the Verde River, and the Gila 
River?
    Mr. Cabrera. Senator Kelly, thank you for the question.
    Of the 120 impaired stream miles, 93 of those miles are in 
watersheds of these major Arizona rivers. While none of these 
stream miles are directly used for drinking water, they are all 
in the watershed. And as the drought continues, and the 
assimilative capacity of our rivers and streams is reduced, in 
other words, the flow is reduced so its ability to accept 
pollution contamination is also reduced, it becomes a much, 
much larger problem for all of our limited drinking water 
sources.
    That is why the Arizona legislature a number of years ago 
produced a joint resolution led by Representative Griffin to 
recommend to Congress that we pass abandoned mine legislation.
    Senator Kelly. So, 93 out of 120 of these streams go into 
these rivers where drinking water comes from. That is about 78 
percent of those. That is significant.
    Can you briefly discuss the risks posed by abandoned mine 
sites to our groundwater aquifers? Are there any sites which 
pose a particular acute risk to groundwater which is used for 
drinking water?
    Mr. Cabrera. Thank you, Senator.
    One thing to understand about the State of Arizona is that 
every drop of aquifer is considered a drinking water source. 
That is actually very rare in the United States. But we are a 
desert region, and water is very precious. So for the most part 
for us, groundwater equals drinking water.
    One example in the State of Arizona is a site that was 
studied by the Arizona Department of Health Services because it 
had high levels of metals in groundwater in a rural location 
where lots of private individuals were using that groundwater 
as a primary drinking water source. That particular site we are 
working with, and we are trying to address the surface water 
contamination that seeps into the groundwater sources.
    So, it is a very real risk to our aquifers and groundwater. 
Again in the State of Arizona, all of our groundwater for the 
most part is considered a drinking water source.
    Senator Kelly. It sounds like a serious risk to our 
drinking water. And as I had talked about previously, this is 
going on at a time when we are preparing to do more with less 
water from the Colorado River. So we need to ensure that other 
sources of drinking water, our groundwater, are protected.
    Director Cabrera, I understand that ADEQ has identified 
some of the most at risk orphan mine sites and is working with 
the landowners on remediation. Can you explain how CERCLA and 
the Clean Water Act pose challenges when working with 
landowners to address these abandoned sites?
    Mr. Cabrera. Yes, Senator. For many abandoned mine sites 
there are no existing responsible parties for the 
contamination. Instead, there are often private landowners 
without means or knowledge to address the issue, or the sites 
are on public lands. Private landowners in particular often 
bought without knowledge, a legacy site, and they never created 
the problems that were created a century ago.
    Why that is problematic is because under the Superfund law, 
CERCLA, which we have mentioned, there are four types of 
potentially responsible parties. There are current owners and 
operators, there are past owners and operators, there are 
generators and parties that arrange for the disposal or 
transport of the hazardous substances, and then there are 
transporters of hazardous waste that selected the site where 
the hazardous substances were brought.
    In a 2015 report on cleanup of abandoned mine lands, the 
Congressional Research Service states that at least two, in my 
opinion more likely three, of those categories might apply to 
Good Samaritans or innocent landowners who attempt to clean up 
an inactive or abandoned mine. CERCLA liability, in particular, 
we have to understand that it is retroactive.
    So parties, any of those four potential responsible party 
categories, are held liable for acts that happened before the 
laws even existed. The liability is joint and several, which 
means that any one potentially responsible party can be held 
liable for an entire cleanup, and it is strict. A responsible 
party cannot simply say that they were not negligent or that it 
was not their doing.
    So, this poses a heavy burden. These laws do a really good 
job of holding people accountable in the today, but what they 
do is that they form barriers and obstacles where responsible 
parties who actually did the contamination are no longer 
available.
    So this set of liability provisions poses an asymmetric 
risk for an innocent landowner or a private party or an NGO or 
a volunteer or a State when the land in question is worth a 
fraction of the cost of the cleanup. And so the risk/reward 
becomes very difficult, and most parties simply choose to do 
nothing.
    Senator Kelly. Thank you. Thank you for your testimony.
    Mr. Chairman, I have some more questions I want to submit 
for the record.
    Senator Merkley. Absolutely, without objection.
    Senator Kelly. Also, I want to thank everybody for being 
here today.
    Chris, nice to see you again.
    I appreciate everybody showing up to have this issue 
addressed. It is important we get these cleaned up. The water 
situation we have in the State is challenging, to say the 
least. We have to protect our groundwater from the runoff from 
these hardrock mines.
    Thank you, Mr. Chairman.
    Senator Merkley. Thank you very much, Senator Kelly. Thank 
you for your hard work to address this really critical 
challenge. I know in Arizona, as you mentioned, every drop 
counts. And it is an issue throughout our set of western 
States, as demonstrated by all the Senators who have been 
engaged in this conversation. I appreciate your contributions 
and efforts.
    Thank you to all of our witnesses for being here today and 
for bringing your expertise to bear.
    I would like to ask unanimous consent to submit for the 
record materials that relate to today's hearing.
    Hearing no objection, so ordered.
    [The referenced information follows:]
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    Senator Merkley. Senators will be allowed to submit written 
questions for the record through the close of business on 
Wednesday, October 13th, 2022. The team will compile those 
questions, send them to our witnesses, and ask our witnesses to 
respond by Wednesday, October 27th. That will be very helpful 
to us in taking this process forward.
    With that, this hearing is adjourned.
    [Whereupon, at 11:10 a.m., the hearing was adjourned.]