[Congressional Record Volume 145, Number 147 (Tuesday, October 26, 1999)]
[Senate]
[Pages S13166-S13169]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BAUCUS (for himself, Mr. Campbell, and Mr. Daschile):
  S. 1787. A bill to amend the Federal Water Pollution Control Act to 
improve water quality on abandoned or inactive mined land; to the 
Committee on Environment and Public Works.


    good samaritan abandoned or inactive mine waste remediation act

  Mr. BAUCUS. Mr. President, I rise to introduce a bill, for myself, 
Senator Campbell, and Senator Daschle. This bill will address one of 
our nation's most overlooked environmental problems: the thousands of 
abandoned mines that pour pollution into rivers and streams throughout 
the west.
  Since 1972, when we enacted the Clean Water Act, our nation has made 
a lot of progress improving water quality. Generally speaking, our 
water is cleaner. The Potomac doesn't stink. The Cuyuhoga doesn't burst 
into flame. EPA estimates that about 1/3 more of our rivers are 
fishable and swimmable than 20 years ago.
  But we still face serious water pollution problems.
  One of the most serious, in the west, is pollution from abandoned 
mines.
  Let me provide some background.
  The settlement of the mountain west was driven, in large part, by 
mining. Take my home state of Montana. At the center of Helena is Last 
Chance Gulch, where gold was discovered in 1864. Butte was called the 
``Richest Hill on Earth, ``because of it's huge veins of copper. Our 
state's motto is ``Oro y Plata''--gold and silver. The ASARCO smelter 
in East Helena is one of the largest and most efficient in the world.
  Mining has long been critical to our development. It's created jobs. 
It's part of our culture. Of our community.
  But mining, like many other economic activities, can have severe 
environmental consequences. Especially the way it was conducted years 
ago, before the development of sophisticated environmental laws and 
regulations.
  I am reminded of the words of the Montana writer, A.B. Guthrie.

       Much of the exploitation, much of unthinking damage, was 
     done in . . . a spirit characteristic of pioneer America. 
     Growth was the way of life. It was the nature of things. . . 
     . The end was not yet. The end never would be. That's what we 
     thought. We know better now.

  One reason that we know better now is that we've seen the effect of 
the abandoned hardrock mines that dot the landscape of the mountain 
west. They once were active mines, in many cases, long ago. Now they're 
an abandoned collection of tailings, shafts, and adits.
  Even in generally arid areas, these mines release acid wastes. They 
leach mercury, arsenic, copper, and other heavy metals. They load 
sediments into nearby waters. They poison drinking water. They 
contaminate fish, making them unfit to eat. They threaten public health 
and destroy rivers and streams.
  According to the Western Governors Association:

       Abandoned and inactive mines are responsible for many of 
     the greatest threats and impairments to water quality 
     throughout the United States. Thousands of stream miles are 
     severely impacted by drainage and runoff from these mines, 
     often for which a responsible party is unidentifiable or not 
     economically viable. At least 400,000 abandoned or inactive 
     mine sites occur in the west.

  This map shows the scope of the problem.
  The small dots indicate individual sites. Light shading indicates 
that there are more than 100 sites. Orange, between 200 and 300. Red, 
more than 300 sites.
  As you can see, There are hundreds of sites in many western states--
Montana, Idaho, California, Utah. New Mexico, Arizona, Colorado, and 
South Dakota.
  And that's not all. Michigan. The Ohio Valley. The Appalachains. All 
across the country.
  In Montana, there are approximately 6,000 abandoned hardrock mines. 
State officials already have identified 245 that are within 100 feet of 
a stream. In many cases, these mines are known to be polluting 
downstream waters.
  Most of the sites are concentrated around Helena. But there are sites 
throughout western Montana, in 24 of our 56 counties. All the way from 
Lincoln County, in Northwest Montana, to Park County, in South Central 
Montana.
  Let me show you an example.
  This is an abandoned hardrock mine site near Rimini, about 15 miles 
west of Helena. It's in the Ten Mile Creek watershed, which serves as 
the Helena drinking supply. As you can see, the water is actually 
orange.
  Clearly, abandoned hardrock mines pose a big problem.
  So why isn't somebody doing something about it?
  As is often the case, this simple question requires a pretty 
complicated answer.
  In the first place, it may be impossible to track down the person who 
created the problem. The original mine operator may long gone.
  In other cases, the ownership patterns are a complex mix of federal, 
state, and private land; and of surface, mineral, and water rights. It 
is not uncommon for dozens of parties to have had some connection to a 
mining site over the years. So it's difficult to establish legal 
responsibility for a private party to clean up the site.

[[Page S13167]]

  There's another alternative. A state, tribe, or local government 
agency may want to step in and clean the site up themselves. As the 
Western Governors Association has put it:

       The western states have found that there would be a high 
     degree of interest and willingness on the part of federal, 
     state and local agencies . . . to work together toward 
     solutions to the multi-faceted problems commonly found on 
     inactive mined lands.

  But there's a hitch. A few years ago, a federal court of appeals held 
that, under the Clean Water Act, one of these ``good samaritans'' is 
treated exactly the same as the operator of an working mine. That is, 
someone who has no responsibility for a site, but nevertheless wants to 
step in and make progress in cleaning up the site, must get a permit 
that complies with all of the effluent guidelines and other 
requirements of the Clean Water Act.
  Many states, tribes, and local government good samaritans simply 
can't afford to clean up a site to full Clean Water Act standards.
  So, facing the legal consequences if they fall short, potential good 
samaritans refrain from attempting to address water pollution problems 
at all.
  Let me tell you about the Alta mine, outside Corbin, Montana. That's 
about 15 miles South of Helena.
  The mine is an important part of Montana's heritage. Ore was 
discovered in there 1869.
  During the late 1800s, 450 miners were extracting more than 150 tons 
of ore each day, generating a total of $32 million worth of gold, 
silver, lead, and zinc. That's the equivalent of about $1 billion in 
today's dollars.
  The main portion of the mine closed in 1896. This century, mining and 
remining continued sporadically, under a variety of different 
operators. The mine was completely abandoned in the late 1950s.
  I visited the site a few weeks ago, with my friend Vick Anderson, who 
runs the Montana mine cleanup program.
  This is a photograph of the mine shaft. It cuts down to the old 
underground workings, 650 feet below. The shaft serves as a collection 
point for groundwater.
  In the picture, you can see the toxic, acid water that seeps from the 
shaft and eventually drains into Corbin Creek.
  Up until this point, Corbin Creek runs clear and clean. It's a high-
quality trout stream. But, after the runoff from the Alta mine, the 
water is contaminated with arsenic, antimony, cadmium, copper, iron, 
lead, mercury, and zinc.
  There's a distinct sulphuric odor. In some places, the water looks 
orange, like the picture I showed of the mine near Rimini.
  This contamination affects not only Corbin Creek, but also Spring 
Creek and Prickly Pear Creek. That's about 7 miles of contamination. In 
the town of Corbin itself, the pollution is so bad that the State of 
Montana was forced to close groundwater wells and contstruct a $300,000 
water supply project to serve 11 homes.
  Now let me tell you what you can't see in the picture of the Alta 
mine.
  All around the mine shaft, the State of Montana is conducting 
reclamation work. Removing structures. Closing adits. Removing or 
covering contaminated soil.
  The state would also like to do something about the water pollution.
  For example, they could divert runoff through a channel, and then 
construct wetlands to filter the arsenic, iron, lead, mercury, and 
other pollutants. This would clean the water up, significantly.
  The engineers say that it will work.
  But the lawyers say it won't.
  They say that, by diverting the water, the state would become liable 
under the Clean Water Act. It would have to get a permit. And the 
permit would require permanent treatment that is prohibitively 
expensive.
  Faced with that possibility, there is only one practical thing for 
the state to do. Nothing. Leave the water pollution alone.
  And that's exactly what is happening. As we speak, the toxic water 
continues to flow directly into Corbin Creek.
  This is not an isolated example. According to the Western Governors 
Association and others, the same thing is happening all across the 
west.
  As you can see, the current system creates a disincentive. It 
prevents well-intentioned state and local governments from stepping in 
and conducting voluntary cleanups.
  As a result, the cleanups don't occur and the pollution keeps 
flowing.
  That's the problem that our bill will fix.
  The title of this bill, the ``Good Samaritan Mine Remediation Waste 
bill'' says it all.
  The state, tribal, and local government agencies that we refer to as 
``good samaritans'' are not trying to make money. They're not trying to 
skirt the law. They're trying to do good--in this case, to improve 
water quality.
  The basic objective of this bill is to allow that. To allow states, 
tribes and local governments to be good samaritans.
  In a nutshell, the bill will allow state, local, and tribal 
governments to clean up an abandoned mines under a special permit, 
tailored to the conditions of the site.
  They apply for a good samaritan permit from EPA. The application must 
include a detailed plan describing the cleanup actions that will be 
taken to improve water quality.
  EPA reviews the plan and takes comments from the local community. EPA 
can approve the application if it determines that the plan will result 
in an improvement in water quality to the greatest extent practical, 
given the resources and cleanup technologies available to the Good 
Samaritan.
  Once a permit is approved, the good samaritan can proceed with the 
cleanup. EPA will monitor progress and conduct periodic reviews. When 
the cleanup is finished, the permit is terminated and the Good 
Samaritan is not held responsible for any future discharges from the 
site.
  That's the basic framework.
  Let me also mention several additional safeguards, that are described 
in detail in a summary that I ask be included in the Record after this 
statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  [See exhibit 1.]
  First, before applying for a permit, the good samaritan must conduct 
a search, to try to find parties who are responsible for the pollution 
problem at the mine site and have the resources to clean it up 
themselves. If so, those parties should be held to the ordinary 
standards of the Clean Water Act. And they will be.
  Second, a good samaritan permit can only be used for cleanup. It 
can't be used for remining. In fact, if the cleanup generates materials 
that can be sold commercially, the proceeds have to be used to help 
further clean up the river or stream. As a result, good samaritan 
permits cannot become a loophole for someone to get around the 
application of the Clean Water Act to active mining operations.
  This bill is not a remining bill, and will not become one.
  Third, a good samaritan permit is fully enforceable, by either EPA or 
a citizen suit. As I've explained, there are very good arguments for 
applying different standards to good samaritan cleanups.
  But, once those standards are written into a permit, they must be 
complied with to the same extent as the standards of an ordinary 
permit. The law is the law.
  Mr. President, this bill reflects years of hard work, by the Western 
Governors Association, environmentalists, industry representatives, and 
others.
  It's not perfect. It does not reflect a complete consensus. There are 
further issues to work through.
  But my hope is that we can proceed quickly, through a hearing and 
markup, so that, before long, this important bill can be enacted into 
law.
  If so, we soon will see success stories, all across the west. At 
places like the Alta Mine, we'll be taking sensible steps to make our 
rivers a lot cleaner and our lives a little bit better.
  Let me return to the words of A.B. Guthrie. He described the 
exploitation of natural resources in the past. Then he said that ``we 
know better now.''
  We do. We know better. And that knowledge gives us a responsibility. 
We must put our knowledge to constructive use. In this case, by 
cleaning up abandoned mine sites and other sources of pollution.

[[Page S13168]]

  If we solve the problem, our grandchildren won't have to.

                               Exhibit 1

                                Summary

       The legislation is designed to eliminate the disincentives 
     that currently exist in the Clean Water Act to the 
     restoration of water quality through Good Samaritan cleanups 
     of abandoned or inactive hardrock mines. To accomplish this, 
     the legislation allows the federal government, states, 
     tribes, and local governments that want to clean up an 
     abandoned or inactive mining site to apply for a ``mine waste 
     remediation'' permit instead of the typical Clean Water Act 
     permit. The key to the mine waste remediation permit is that 
     it allows Good Samaritans to improve water quality to the 
     best of their ability rather than necessarily to achieve full 
     compliance with water quality standards.
       An application for a permit must be submitted to the 
     Environmental Protection Agency and include a detailed plan 
     describing the cleanup actions that the Good Samaritan will 
     take to improve water quality. Applicants for a permit must 
     make a reasonable search for parties who are responsible for 
     the mine waste and therefore, are subject to full compliance 
     with the Clean Water Act. Based on a review of the plan and 
     obtaining public input, EPA can approve an application if no 
     companies responsible for the mine waste are found and if the 
     application ``demonstrates with reasonable certainty that the 
     implementation of the plan will result in an improvement in 
     water quality to the degree practicable, taking into 
     consideration the resources available to the remediating 
     party for the proposed remediation activity.'' EPA will 
     develop and issue regulations that detail the specific 
     contents of applications for mine waste remediation permits 
     and may, on a case-by-case basis, issue regulations that 
     impose ``more specific requirements that the Administrator 
     determines'' are appropriate for individual mine sites.
       Upon approval of a permit, the Good Samaritan proceeds with 
     the planned cleanup. EPA plays a continuing role in 
     monitoring the cleanup's progress, conducting periodic 
     reviews to assure permit compliance. As with an ordinary 
     Clean Water Act permit, both EPA and citizens can take legal 
     action if a Good Samaritan fails to comply with the terms of 
     a mine waste remediation permit. When the cleanup is 
     completed, the permit is terminated and the Good Samaritan is 
     not held responsible for any future discharges from the site.
       The legislation is based on a proposal by the Western 
     Governors Association (WGA), which worked extensively with 
     the environmental community, mining industry, and the 
     Administration in developing it. The staff of Senator Max 
     Baucus has also worked with these groups and WGA in crafting 
     the legislation. The Western Governors support this 
     legislation and urge that it be enacted in this Congress.

  Mr. BAUCUS. Mr. President, I ask unanimous consent that a letter of 
support from the Western Governors Association be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               Western Governors' Association,

                                     Denver, CO, October 19, 1999.
     Hon. Max Baucus,
     Senator of Montana, Hart Senate Office Building, Washington, 
         DC.
       Dear Senator Baucus: The Western Governors commend you for 
     introducing the ``Good Samaritan Abandoned or Inactive Mine 
     Waste Remediation Act.'' As stated in WGA Resolution 98-004 
     (attached), the Western Governors believe that there is a 
     need to eliminate current disincentives in the Clean Water 
     Act for voluntary, cooperative efforts aimed at improving and 
     protecting water quality impacted by abandoned or inactive 
     mines. We believe your bill could effectively and fairly 
     eliminate such disincentives, and we therefore urge its 
     passage this Congress.
       Inactive or abandoned mines are responsible for threats and 
     impairments to water quality throughout the western United 
     States. Many also pose safety hazards from open adits and 
     shafts. These historic mines pre-date modern federal and 
     state environmental regulations which were enacted in the 
     1970s. Often a responsible party for these mines is not 
     identifiable or not economically viable enough to be 
     compelled to clean up the site. Many stream miles are 
     impacted by drainage and runoff from such mines, creating 
     significant adverse water quality impacts in several western 
     states.
       Recognizing the potential for economic, environmental and 
     social benefits to downstream users of impaired streams, 
     western states, municipalities, federal agencies, volunteer 
     citizen groups and private parties have come together across 
     the West to try to clean up some of these sites. However, due 
     to questions of liability; many of these Good Samaritan 
     efforts have been stymied.
       To date, EPA policy and some case law have viewed inactive 
     or abandoned mine drainage and runoff as problems that must 
     be addressed under Section 402 of the CWA--the National 
     Pollutant Discharge Elimination System (NPDES) permit 
     program. This, however, has become an overwhelming 
     disincentive for any voluntary cleanup efforts because of the 
     liability that can be inherited for any discharges from an 
     abandoned mine site remaining after cleanup, even though the 
     volunteering remediating party had no previous responsibility 
     or liability for the site, and has reduced the water quality 
     impacts from the site by completing a cleanup project.
       The ``Good Samaritan Abandoned or Inactive Mine Waste 
     Remediation Act'' would amend the Clean Water Act to protect 
     a remediating agency from becoming legally responsible for 
     any continuing discharges from the abandoned mine site after 
     completion of a cleanup project, provided that the 
     remediating agency--or ``Good Samaritan''--does not otherwise 
     have liability for that abandoned or inactive mine site and 
     implements a cleanup project approved by EPA. The Western 
     Governors support this bill, and urge that it be enacted this 
     Congress.
           Sincerely,
                                                     Marc Racicot,
                           Governor of Montana, WGA Lead Governor.
                                                       Bill Owens,
                          Governor of Colorado, WGA Lead Governor.
                                               Michael O. Leavitt,
     Governor of Utah.
                                  ____


         Policy Resolution 98-004, Cleaning Up Abandoned Mines

               [Adopted June 29, 1998, Girdwood, Alaska]


                             A. Background

       1. Inactive or abandoned mines are responsible for threats 
     and impairments to water quality throughout the western 
     United States. Many also pose safety hazards from open adits 
     and shafts. These historic mines pre-date modern federal and 
     state environmental regulations which were enacted in the 
     1970s. Often a responsible party for these mines is not 
     identifiable or not economically viable enough to be 
     compelled to clean up the site. Thousands of stream miles are 
     impacted by drainage and runoff from such mines, one of the 
     largest sources of adverse water quality impacts in several 
     western states.
       2. Mine drainage and runoff problems are extremely complex 
     and solutions are often highly site-specific. Although cost-
     effective management practices likely to reduce water quality 
     impacts from such sites can be formulated, the specific 
     improvement attainable through implementation of these 
     practices cannot be predicted in advance. Moreover, such 
     practices generally cannot eliminate all impacts and may not 
     result in the attainment of water quality standards.
       3. Cleanup of these abandoned mines and securing of open 
     adits and shafts has not been a high funding priority for 
     most state and federal agencies. Most of these sites are 
     located in remote and rugged terrain and the risks they pose 
     to human health and safety have been relatively small. That 
     is changing, however, as the West has gained in population 
     and increased tourism. Both of these factors are bringing 
     people into closer contact with abandoned mines and their 
     impacts.
       4. Cleanup of abandoned mines is hampered by two issues--
     lack of funding and concerns about liability. Both of these 
     issues are compounded by the land and mineral ownership 
     patterns in mining districts. It is not uncommon to have 
     private, federal, and state owned land side by side or 
     intermingled. Sometimes the minerals under the ground are not 
     owned by the same person or agency who owns the property. As 
     a result, it is not uncommon for there to be dozens of 
     parties with partial ownership or operational histories 
     associated with a given site.
       5. Recognizing the potential for economic, environmental 
     and social benefits to downstream users of impaired streams, 
     western states, municipalities, federal agencies, volunteer 
     citizen groups and private parties have come together across 
     the West to try to clean up some of these sites. However, due 
     to questions of liability, many of these Good Samaritan 
     efforts have been stymied.
       a. To date, EPA policy and some case law have viewed 
     inactive or abandoned mine drainage and runoff as problems 
     that must be addressed under the Clean Water Act's (CWA) 
     Section 402 National Pollutant Discharge Elimination System 
     (NPDES) permit program. This, however, has become an 
     overwhelming disincentive for any voluntary cleanup efforts 
     because of the liability that can be inherited for any 
     discharges from an abandoned mine site remaining after 
     cleanup, even though the volunteering remediating party had 
     no previous responsibility or liability for the site, and has 
     reduced the water quality impacts from the site by completing 
     a cleanup project.
       b. The western states have developed a package of 
     legislative language in the form of a proposed amendment to 
     the Clean Water Act. The effect of the proposed amendment 
     would be to eliminate the current disincentives in the Act 
     for Good Samaritan cleanups of abandoned mines. Over the 
     three years that the proposal was drafted, the states 
     received extensive input from EPA, environmental groups, and 
     the mining industry.
       6. Liability concerns also prevent mining companies from 
     going back into historic mining districts and remining old 
     abandoned mine sites or doing volunteer cleanup work. While 
     this could result in an improved environment, companies which 
     are interested are justifiably hesitant to incur liability 
     for cleaning up the entire abandoned mine site.


                     b. governors' policy statement

                             Good Samaritan

       1. The Western Governors believe that there is a need to 
     eliminate disincentives to voluntary, cooperative efforts 
     aimed at improving and protecting water quality impacted by 
     abandoned or inactive mines.

[[Page S13169]]

       2. The Western Governors believe the Clean Water Act should 
     be anended to protect a remediating agency from becoming 
     legally responsible under section 301(a) and section 402 of 
     the CWA for any continuing discharges from the abandoned mine 
     site after completion of a cleanup project, provided that 
     their mediating agency--or ``Good Samaritan''--does not 
     otherwise have liability for that abandoned or inactive mine 
     site and attempts to improve the conditions at the site.
       3. The Western Governors believe that Congress, as a 
     priority, should amend the Clean Water Act in a manner that 
     accomplishes the goals embodied in the WGA legislative 
     package on Good Samaritan cleanups.

                          Cleanup and Funding

       4. The governors support efforts to accelerate responsible 
     and effective abandoned mine waste cleanup including the 
     siting of joint waste repositories for cleanup wastes from 
     abandoned mines on private, federal, and state lands. 
     Liability concerns have hampered the siting of joint waste 
     repositories leading to the more expensive and less 
     environmentally responsible siting of multiple repositories. 
     The governors urge the Bureau of Land Management and the U.S. 
     Forest Service to develop policy encouraging the siting of 
     joint waste repositories whenever they make economic and 
     environmental sense.
       5. The governors encourage federal land management agencies 
     such as the Bureau of Land Management, Forest Service, and 
     Park Service, as well as support agencies like the U.S. 
     Environmental Protection Agency and the U.S. Geological 
     Survey to coordinate their abandoned mine efforts with state 
     efforts to avoid redundancy and unnecessary duplication. 
     Federal and State tax dollars should be focused on working 
     cooperatively to secure and clean up abandoned mine sites, 
     not working separately to conduct expensive and time 
     consuming inventories, research, and mapping efforts.
       6. Other responsible approaches to accelerate abandoned 
     mine cleanup should be investigated, including remining.
       7. Reliable sources of funds should be made available for 
     the cleanup of abandoned mines in the West.


                   c. governors' management directive

       1. WGA staff shall transmit a copy of this resolution and 
     the proposed WGA legislative package on Good Samaritan 
     cleanups to the President, the Secretary of the Interior, 
     Secretary of Agriculture, Administrator of the Environmental 
     Protection Agency, and Chairmen of the appropriate House and 
     Senate Committees.
       2. WGA staff shall work with the mining industry, 
     environmental interests, and federal agency representatives 
     to explore options to accelerate abandoned mine cleanup 
     through remining and report back to the Governors at the 1999 
     WGA Annual Meeting.
       3. WGA shall continue to work cooperatively with the 
     National Mining Association, federal agencies, and other 
     interested stakeholders to examine other mechanisms to 
     accelerate responsible cleanup and securing of abandoned 
     mines.
       Approval of a WGA resolution requires an affirmative vote 
     of two-thirds of the Board of the Directors present at the 
     meeting. Dissenting votes, if any, are indicated in the 
     resolution. The Board of Directors is comprised of the 
     governors of Alaska, American Samoa, Arizona, California, 
     Colorado, Guam, Hawaii, Idaho, Kansas, Montana, Nebraska, 
     Nevada, New Mexico, North Dakota, Northern Mariana Islands, 
     Oregon, South Dakota, Texas, Utah, Washington and Wyoming.
                                 ______