[Congressional Record Volume 149, Number 133 (Thursday, September 25, 2003)]
[Senate]
[Pages S12000-S12002]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CAMPBELL (for himself, Mr. Domenici, Mr. Allard, and Mr. 
        Reid):
  S. 1660. A bill to improve water quality on abandoned and inactive 
mine land, and for other purposes; to the Committee on Environment and 
Public Works.
  Mr. CAMPBELL. Mr. President, I rise today to introduce the Good 
Samaritan Abandoned and Inactive Mine Reclamation Act of 2003.
  I have been involved with efforts to clean up abandoned hardrock 
mines for a long time. In fact, I was an original cosponsor of a bill 
in the 106th Congress. The Western Governors Association regarded that 
the bill as a first step in the right direction, and I am proud to 
build and improve upon that experience in crafting my own legislation.
  Abandoned hardrock mines pose significant environmental and safety 
hazards to communities across the Western United States. In fact, the 
Western Governor's Association concluded that there are at least 
400,000 such sites across the West, many of which cover our public 
lands.
  The history of abandoned hardrock mines is linked to government 
policies promoting the westward expansion of our Nation, and Federal 
policies during times of war. Due to the historic nature of these 
sites, the party responsible for the environmental problem is not 
always identifiable or not economically viable to be compelled to clean 
up the site.
  Abandoned mine lands (AMLs) are areas adjacent to or affected by 
abandoned mines. They often contain unmined mineral deposits, mine 
dumps, and tailings that contaminate the surrounding watershed and 
ecosystem. Streams near AML sites--including many in Colorado--may 
contain metals or be so acidic that fish and aquatic insects cannot 
live in them. Water too polluted for fish and insects is also water too 
polluted for people. Further, abandoned mine sites pose very real 
safety hazards for folks enjoying the West's wild lands.
  Although abandoned hardrock mining in the West goes back a hundred 
years, the Clean Water Act has only been in existence for thirty. The 
Clean

[[Page S12001]]

Water Act was an important and historic piece of legislation that did a 
lot of good, but it failed to promote the reclamation of abandoned 
hardrock mine sites. In fact, if an environmental group or county or 
interested party wanted to clean an abandoned mine site, they would 
incur liability under the Act.
  The Western Governors Association has repeatedly called on Congress 
to amend the Clean Water Act's National Pollutant Discharge Elimination 
System permit program. The WGA stated that the NPDES program ``has 
become an overwhelming disincentive for any voluntary cleanup efforts 
of AMLs 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.''
  My bill recognizes that there are a lot of good, responsible folks 
across our Western communities who recognize the environmental harm 
that AMLs pose and finally gives them the tools to do something about 
it. My bill establishes a ``Good Samaritan'' permit program under the 
Clean Water Act, administered by the EPA or a State-approved agency 
allowing an applicant to develop a strategy to remediate an affected 
area, and be granted a permit to do the work without penalizing them 
for their good deed.
  In order to be granted a Good Samaritan permit, my bill requires an 
applicant to meet comprehensive standards ensuring that they have the 
financial and technical resources to get the job done. An applicant 
must establish remediation and monitoring schedules for the clean up 
project and identify funding sources to carry out the plan.
  My bill's goal is to promote the clean-up of abandoned hardrock 
mines. Therefore, it allows communities, interest stakeholder groups, 
and corporations, as coalitions or individually to be ``Good 
Samaritans.'' The transparent and publicly open permit application 
process helps to ensure that permit holders are acting in good faith 
and have the technical and financial wherewithal to get the job done.
  Further, if a permit holder is found to have violated the terms of 
the permit, he or she could lose their liability protection and subject 
to an enforcement action.
  The West's States, communities, and interested parties have been 
prevented from cleaning up their own communities for far too long. My 
bill provides a transparent, flexible, and enforceable permit system 
that removes the unintentional liability associated with abandoned 
hardrock mine cleanup.
  I look forward to working with my colleagues on speedy passage of 
this important legislation.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1660

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Good Samaritan Abandoned and 
     Inactive Mine Remediation Act''.

     SEC. 2. FINDINGS AND PURPOSE.

       (a) Findings.--Congress finds that--
       (1) the Federal Government has encouraged, through various 
     laws and policies, the development of gold, silver, and other 
     minerals, especially in the West;
       (2) development of the resources referred to in paragraph 
     (1) has--
       (A) helped create a strong economy; and
       (B) provided strategic materials to achieve maximum 
     production of the metals that were essential to victory in 
     World War I and World War II;
       (3) during World War I and World War II, the Federal 
     Government actively encouraged mining and milling operations, 
     including the design and placement of mine tailings and waste 
     rock piles, practices--
       (A) that were not governed by any Federal or State 
     environmental laws during that period;
       (B) the impact of which on the environment and public 
     health were unknown; and
       (C) that since that period, have been--
       (i) found to be harmful to the environment; and
       (ii) made illegal;
       (4) the result of the practices is a legacy of abandoned 
     and inactive mine sites, many of which are on Federal land, 
     that--
       (A) have been unreclaimed or, based on existing 
     environmental standards, inadequately reclaimed; and
       (B) continue to pose environmental and safety hazards;
       (5) the cleanup of the abandoned and inactive mine sites is 
     hampered primarily by concerns about the potential liability 
     associated with the cleanup.
       (b) Purpose.--The purpose of this Act is to facilitate the 
     cleanup of abandoned and inactive mine sites by limiting the 
     potential liability of persons cleaning up the sites.

     SEC. 3. ABANDONED AND INACTIVE MINE REMEDIATION PERMITS.

       Section 402 of the Federal Water Pollution Control Act (33 
     U.S.C. 1342) is amended by adding at the end the following:
       ``(r) Abandoned and Inactive Mine Remediation Permits.--
       ``(1) Definitions.--In this subsection:
       ``(A) Abandoned or inactive mine land.--
       ``(i) In general.--The term `abandoned or inactive mine 
     land' means land--

       ``(I) that was actively mined for noncoal resources;
       ``(II) that is not--

       ``(aa) being actively mined for noncoal resources; or
       ``(bb) subject to a temporary shutdown; and

       ``(III) with respect to which there is no identifiable or 
     economically viable owner or operator of record for the mine 
     or mine facilities.

       ``(ii) Exclusions.--The term `abandoned or inactive mine 
     land' does not include--

       ``(I) a site listed on the National Priorities List under 
     the Comprehensive Environmental Response, Compensation, and 
     Liability Act of 1980 (42 U.S.C. 9601 et seq.); or
       ``(II) a brownfield site (as defined in section 101 of that 
     Act (42 U.S.C. 9601).

       ``(B) Permit.--The term `permit' means an abandoned or 
     inactive mine remediation permit described in paragraph (2).
       ``(C) Permitting agent.--The term `permitting agent' 
     means--
       ``(i) the Administrator; or
       ``(ii) the head of a State program that is authorized by 
     the Administrator to issue and administer permits under this 
     subsection.
       ``(D) Remediating party.--
       ``(i) In general.--The term `remediating party' means any 
     of the following persons or entities that carries out the 
     remediation of an abandoned or inactive mine land:

       ``(I)(aa) The United States, a State, a political 
     subdivision of a State, or an Indian tribe; or
       ``(bb) any officer, employee, or contractor of the United 
     States, a State, a political subdivision of a State, or an 
     Indian tribe.
       ``(II) A corporation.
       ``(III) Any person or entity acting in cooperation with the 
     permittee with respect to the abandoned or inactive mine 
     land.

       ``(ii) Exclusions.--The term `remediating party' does not 
     include a person or entity described in clause (i) that, with 
     respect to the abandoned or inactive mine land that is being 
     remediated, has been determined to be legally responsible or 
     in material noncompliance with section 301(a).
       ``(E) Unanticipated event or condition.--The term 
     `unanticipated event or condition' means an event or 
     condition that was not contemplated by the permit.
       ``(2) In general.--The permitting agent may issue an 
     abandoned or inactive mine remediation permit for the conduct 
     of remediation activities on abandoned or inactive mine land 
     from which there is or may be a discharge of pollutants to 
     bodies of water of the United States.
       ``(3) Application for permit.--
       ``(A) Components.--
       ``(i) In general.--To be eligible to receive a permit under 
     this subsection, the remediating party shall submit to the 
     permitting agent an application that includes a remediation 
     plan that--

       ``(I) identifies--

       ``(aa) the remediating party;
       ``(bb) any agents or contractors of the remediating party; 
     and
       ``(cc) any persons cooperating with the remediating party 
     with respect to the remediation plan;

       ``(II) describes the reasonable efforts of the remediating 
     party to identify current owners, lessees, and claimants of 
     the abandoned or inactive mine land addressed by the 
     remediation plan;
       ``(III) certifies that the remediating party qualifies as a 
     remediating party under paragraph (1)(D);
       ``(IV) identifies that the site addressed by the plan is--

       ``(aa) abandoned or inactive mine land; and
       ``(bb) eligible for a permit under this Act;

       ``(V) identifies the bodies of water of the United States 
     affected by the abandoned or inactive mine land;
       ``(VI) describes the baseline condition of the bodies of 
     water identified under subclause (V), in accordance with 
     requirements established by the permitting authority, as of 
     the date of the permit application (including any conditions 
     that make numeric monitoring of a baseline preexisting 
     discharge physically or economically infeasible);
       ``(VII) describes the physical conditions at the site that 
     are causing or believed to be causing adverse water quality 
     impacts;
       ``(VIII) describes the goals and objectives of remediation, 
     including the pollutant or pollutants to be addressed by the 
     remediation plan;
       ``(IX)(aa) describes the practices that are proposed to 
     reduce, control, mitigate, or eliminate the impacts of 
     adverse water quality, including the preliminary system 
     design

[[Page S12002]]

     and construction, operation, and maintenance plans; and
       ``(bb) includes a schedule and estimated completion date of 
     the practices;
       ``(X) applies site-specific best available technology, 
     using best professional judgment, to explain how the 
     practices described in subclause (IX) are expected to improve 
     the quality of the bodies of water identified under subclause 
     (V);
       ``(XI) describes--

       ``(aa) site-specific monitoring or other forms of 
     assessment to be used to evaluate the success of the 
     practices during and after implementation of the remediation 
     plan in improving the quality of the water identified under 
     subclause (V); and
       ``(bb) the duration of the monitoring or assessment;

       ``(XII)(aa) describes any extraction, processing, or 
     removal of minerals for remediation or commercial sale; and
       ``(bb) states that 100 percent of the net profits generated 
     through the use or commercial sale of minerals under item 
     (aa) that will be--

       ``(AA) used for future remediation; or
       ``(BB) deposited in a designated remediation fund;

       ``(XIII) provides a schedule for periodic reporting on 
     progress in implementing the remediation plan; and
       ``(XIV)(aa) provides a budget for the remediation plan; and
       ``(bb) identifies any potential funding sources for 
     carrying out the remediation plan.

       ``(ii) Certification by corporation.--

       ``(I) In general.--In addition to the requirements under 
     clause (i), an application submitted by a corporation shall 
     include a certification in accordance with paragraph 
     (1)(D)(ii) that, based on the knowledge and belief of the 
     officers and directors of the corporation, neither the 
     corporation nor any wholly owned subsidiary of the 
     corporation is legally responsible for or in material 
     noncompliance with section 301(a) or an equivalent State law 
     for the site proposed to be remediated.
       ``(II) Limitation.--If at any time the permitting agent 
     determines that the certification under subclause (I) is 
     incorrect, the corporation--

       ``(aa) shall not be entitled to the protection under this 
     subsection; and
       ``(bb) shall be subject to liability under this section or 
     section 301, 302, or 402.
       ``(B) Approval or disapproval of application.--
       ``(i) In general.--Not later than 120 days after the date 
     of receipt of an application under subparagraph (A), the 
     permitting agent shall approve or disapprove the application.
       ``(ii) Public participation.--Before approving or 
     disapproving an application under clause (i), the permitting 
     agent shall provide to the public--

       ``(I) notice of the application; and
       ``(II) an opportunity for public comment on the 
     application.

       ``(iii) Approval.--The permitting agent shall approve an 
     application under clause (i) and issue a permit to the 
     remediating party if the permitting agent determines that--

       ``(I) the remediating party has made a reasonable effort 
     (relative to the resources available to the remediating party 
     for the proposed remediation activity) to identify persons 
     under subparagraph (A)(i)(II);
       ``(II) the implementation of the remediation plan would 
     improve the quality of the water identified under 
     subparagraph (A)(i)(V); and
       ``(III) any Indian tribe with jurisdiction over the 
     abandoned or inactive mine land subject to the permit 
     consents to the issuance of the permit.

       ``(iv) Action following disapproval.--

       ``(I) Revision.--If the permitting agent disapproves an 
     application under clause (i), the permitting agent shall--

       ``(aa) notify the applicant of the reasons for disapproval; 
     and
       ``(bb) allow the applicant 30 days in which to submit a 
     revised application.

       ``(II) Deadline for revision.--Not later than 30 days after 
     the date on which a revision is submitted under subclause 
     (I)(bb), the permitting agent shall approve or disapprove the 
     revision.

       ``(4) Contents of permit.--
       ``(A) In general.--A permit shall--
       ``(i) provide for compliance with and implementation of the 
     remediation plan; and
       ``(ii) establish a schedule for review by the permitting 
     agent of compliance with and implementation of the 
     remediation plan.
       ``(B) Limitation.--A permit shall not--
       ``(i) require the remediating party to comply with any 
     other subsection or section 301, 302, or 402; or
       ``(ii) except in a case in which the net profits (as stated 
     under paragraph (3)(A)(i)(XII)(bb)) generated through such 
     use or sale of minerals are used for present or future 
     remediation activities, authorize any discharge associated 
     with the extraction, processing, or removal of minerals for 
     commercial use or sale.
       ``(5) Modification of permit.--
       ``(A) In general.--Not later than 90 days after the date of 
     receipt of a written request by a permittee to modify a 
     permit, the permitting agent shall approve or disapprove a 
     modification to the permit.
       ``(B) Approval.--A modification to a permit approved by the 
     permitting agent under this subsection shall--
       ``(i) be made by agreement of the permittee and the 
     permitting agent and with the concurrence of any applicable 
     State or Indian tribe with jurisdiction over the abandoned or 
     inactive mine land subject to the permit;
       ``(ii) be made in accordance with subparagraphs (2)(B) and 
     (3); and
       ``(iii) take effect on approval.
       ``(6) Failure to comply.--If a remediating party fails to 
     comply with any term or condition of a permit under this 
     subsection, the failure shall be considered to be a violation 
     subject to enforcement under sections 309 and 505, except in 
     a case in which--
       ``(A)(i) based on information submitted to the permitting 
     agent by the permittee, the permitting agent determines that 
     the noncompliance was the result of an unanticipated event or 
     condition; and
       ``(ii) not later than 30 days after the date on which a 
     determination is made under clause (i), the permittee 
     establishes, to the satisfaction of the permitting agent, 
     that the permittee is in compliance with the permit; or
       ``(B)(i) the permitting agent determines that compliance 
     with the permit is infeasible because of reasons not 
     contemplated at the time at which the permit was issued; and
       ``(ii) the permitting agent and the permittee modify the 
     permit in accordance with paragraph (5).
       ``(7) Termination of permit.--
       ``(A) In general.--The permitting agent shall terminate a 
     permit if--
       ``(i) the remediating party completes the implementation of 
     the remediation plan;
       ``(ii) the discharges covered by the permit become subject 
     to a permit that is issued--

       ``(I) under another subsection; and
       ``(II) for the extraction, processing, or removal of 
     minerals for commercial sale, the net profits of which shall 
     be used for purposes other than the purposes described in 
     paragraph (3)(A)(i)(XII)(bb)--

       ``(aa) that is not part of the implementation of the 
     remediation plan; and
       ``(bb) with respect to which the remediating party is not a 
     participant;
       ``(iii) an unanticipated event or condition is encountered 
     that is beyond the control of the remediating party; or
       ``(iv) the permitting agent determines that remediation 
     activities conducted under the permit have resulted in 
     surface water quality conditions that are equal to or better 
     than the baseline condition of the water as of the date of 
     the permit application.
       ``(B) No enforcement liability.--If a permit is terminated 
     under subparagraph (A), the remediating party shall not be 
     subject to enforcement under section 309 or 505 for any 
     subsequent discharges from the abandoned or inactive mine 
     land subject to the permit.
       ``(8) Limitations.--
       ``(A) In general.--A remediating party issued a permit 
     under this subsection and, for purposes of conducting a 
     preliminary investigation of a site to determine whether to 
     pursue a permit application, a potential applicant for a 
     permit, for a period of not more than 120 days unless 
     otherwise stated by the permitting authority, shall not be 
     considered to be an owner or operator for purposes of--
       ``(i) this Act;
       ``(ii) the Comprehensive Environmental Response, 
     Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et 
     seq.); or
       ``(iii) the Solid Waste Disposal Act (42 U.S.C. 6901 et 
     seq.).
       ``(B) Prior violations.--With respect to violations of this 
     section, or sections 301, 302, and 402 that occur before the 
     date on which a permit is issued under this subsection, 
     nothing in this subsection--
       ``(i) precludes an action under section 309 or 505 for such 
     violations; or
       ``(ii) affects the relief available under section 309 or 
     505.
       ``(9) Regulations.--Not later than 1 year after the date of 
     enactment of this subsection, the Administrator, in 
     consultation with State, tribal, and local officials and 
     after notice and opportunity for public comment, shall 
     promulgate regulations that--
       ``(A) establish requirements for remediation plans under 
     this subsection; and
       ``(B) provide guidance for the development of State 
     programs for the issuance and administration of permits under 
     this subsection.
       ``(10) Funding.--A remediating party that implements a 
     remediation plan under a permit issued under this subsection 
     shall be eligible for grants under section 319(h).
       ``(11) Effect.--Nothing in this subsection--
       ``(A) limits the liability associated with any mining or 
     processing activities in existence before, on, or after the 
     date of enactment of this subsection; or
       ``(B) affects any obligation of a State or Indian tribe 
     under section 303.''.
                                 ______