[Senate Report 109-351]
[From the U.S. Government Publishing Office]
Calendar No. 645
109th Congress Report
SENATE
2d Session 109-351
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TO PROMOTE REMEDIATION OF INACTIVE AND ABANDONED MINES, AND FOR OTHER
PURPOSES
_______
September 27, 2006.--Ordered to be printed
_______
Mr. Inhofe, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 1848]
The Committee on Environment and Public Works, to which was
referred a bill (S. 1848) to promote remediation of inactive
and abandoned mines, and for other purposes, having considered
the same, reports favorably thereon and recommends that the
bill, as amended, do pass.
GENERAL STATEMENT AND BACKGROUND
It is estimated that there are as many as 500,000 abandoned
hardrock mines throughout the United States. While the Western
Governors Association estimates that 80 percent of these sites
do not pose any environmental or safety concerns,\1\ thousands
of them have acid mine drainage (AMD) which contains pollutants
like mercury and lead that have polluted waters in the affected
states, or are otherwise polluting air, soils and/or
groundwater. Cleaning-up pollution stemming from abandoned
mines should be a priority. The EPA estimates that thousands of
stream miles have been impacted by acid mine drainage which may
include heavy metals such as lead, copper, zinc, arsenic,
mercury, and cadmium.\2\ The former U.S. Bureau of Mines
estimated that 12,000 stream miles and 180,000 acres of lakes
in the West have been impacted by acid mine drainage.\3\
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\1\ Western Governors' Association and National Mining Association,
Cleaning Up Abandoned Mines; A Western Partnership; page 6. 1998.
\2\ EPA letter responding to questions at June 14, 2006 EPW hearing
``Oversight Hearing to Consider Whether Potential Liability Deters
Abandoned Hard Rock Mine Clean-Up.'' July 14, 2006.
\3\ Ibid.
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Senator Ken Salazar said on the floor of the Senate when he
introduced the bill, ``The Western United States is pockmarked
with old mines and mining residues, and many of these sites
continuously pollute the water, the land, and the air. Our
rivers and streams suffer particularly from this type of
pollution. In many cases, no one alive is legally responsible
for cleaning these sites. In other cases, those who are legally
responsible lack the money or other resources necessary to
clean them up, and the pollution continues.'' \4\
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\4\ Floor Statement (Sen. Salazar) upon introduction of S. 1848
(October 6, 2005).
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The Center for the American West in its report, ``Cleaning
Up Abandoned Hardrock Mines in the West,'' described one aspect
of the problem:
The vegetation along the stream or river thins out or even
disappears altogether. Part of the streambed displays unnatural
shades of red and orange that defy the ideal of a clear-
running, sparkling Western stream. You may have a vague notion
that those gaudy colors come from some kind of iron deposit.
But what you are seeing is a symptom of a grave environmental
disease: the toxic and acidic discharges from long-abandoned
hardrock mines, a witch's brew that destroys aquatic life and
pollutes waterways wherever it flows. This environmental
ailment goes by the name of ``acid mine drainage.'' \5\
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\5\ ``Cleaning Up Abandoned Hardrock Mines in the West, Prospecting
for a Better Future,'' Center for the American West, page 1. 2005.
These mines are for the most part legacy mines, abandoned
long ago before modern environmental laws were enacted. As
Senator Wayne Allard explained at an Environment and Public
Works Committee hearing, ``A [typical] mining claim in Colorado
* * * is a relatively small parcel of land, 600 feet by 1,500
feet long. This dates back to the early silver and gold days of
Colorado when silver and gold was very profitable in the State,
and we had many prospectors come to Colorado and file claims.
They would * * * start a mine, they would hit a small vein, and
then maybe it wasn't financially practical to continue with
it.'' According to Senator Allard, these claims would then be
abandoned and have been left untouched ever since.\6\
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\6\ Testimony of Senator Wayne Allard. Senate Committee on
Environment and Public Works; Oversight Hearing to Consider Whether
Potential Liability Deters Abandoned Hard Rock Mine Clean-Up. June 14,
2006.
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Because these sites do not have an identifiable and
financially viable owner or operator, their cleanup most likely
falls to the government--or the pollution continues unabated
because state and federal resources are limited. Sometimes,
though, ``Good Samaritans,'' volunteers who have no connection
to the mining activity and no liability for the cleanup are
interested in voluntarily restoring the body of water affected
by pollution from the site.
Good Samaritans may be nonprofit groups, municipalities,
States, Tribes, or private corporations interested in restoring
these sites. However, concern about liability under the
nation's environmental laws has prevented these potential Good
Samaritans from moving forward to remediate these legacy mines.
The nation's environmental laws have provided benefits to our
society that one cannot begin tocalculate. But in this instance
they also have had an unforeseen consequence that may be having the
opposite effect on the environment.
Senator Salazar said during testimony in support of his
bill, ``[I]ronically, the draconian liability schemes under
CERCLA and the Clean Water Act deter would-be volunteers, or
``Good Samaritans,'' from getting near those sites for fear of
unlimited liability. Even with a solid, sensible plan to clean
up a mine site, Good Samaritans assume massive liabilities
under the Clean Water Act and CERCLA, in addition to state and
local laws. These liabilities dissuade efforts to erase the
environmental legacy of hard rock mining.''
John Whitaker, President Nixon's Undersecretary for the
Environment noted, ``We did not envision at the time that the
day would come when the zero discharge provision [of the Clean
Water Act] would prevent Good Samaritans from cleaning up acid
mine drainage or when the onerous and costly federal permit
requirements would snuff out any economic incentive to curb the
acid mine drainage problem associated with abandoned mines.''
\7\
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\7\ Center for the American West, page 23.
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The National Association of Clean Water Agencies stated in
a letter to the Committee that ``[Good Samaritan legislation]
is important to interested stakeholders, including publicly
owned treatment works (POTWs) who want to prevent further
degradation of and help to improve the quality of waters
impaired by runoff from abandoned mines.'' \8\ Further, at the
June 14, 2006 hearing, John Gioa, the County Supervisor of
Costa Contra County explained that the County had received a
grant to remediate an abandoned mine that is leaching mercury
into a reservoir owned by the County. However, concern about
liability from both Superfund and the Clean Water Act forced
the County to turn down the grant and postpone any plans to
remediate the mine.\9\
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\8\ Letter to Senator James M. Inhofe from the National Association
of Clean Water Agencies. June 19, 2006.
\9\ Statement of John Gioa, Committee on Environment and Public
Works. June 12, 2006.
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In a letter to the Committee on Environment and Public
Works, Trout Unlimited, a conservation group involved in the
cleanup of several abandoned mines, stated ``[an] impediment to
making progress on the ground is the lack of a clear permitting
process that allows for would-be Good Samaritans to initiate
cleanups. The [Superfund law] and the Clean Water Act are
outstanding tools for holding polluters and other potentially
responsible parties accountable for their actions and for
preventing water pollution. But on many of the sites where we
work, there is not potentially responsible party, or the area
is not high enough of a priority to warrant federal funding or
enforcement actions. On these sites, there is often no party
available as a target for an enforcement action, and the simple
fact is that there is absolutely no prospect of any future
enforcement action to drive clean-up.'' \10\
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\10\ Letter to Senator James M. Inhofe from Chris Wood of Trout
Unlimited. June 13, 2006.
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The Committee believes that to incentivize voluntary
cleanups of such sites, it is necessary to establish a new
permit program pursuant to which EPA (or a delegated State or
Tribe) may issue a permit to a Good Samaritan that may, on a
case by case basis, waive or relax the regulatory, permitting
and/or liability provisions that might otherwise be triggered
under CERCLA, the Clean Water Act and several other laws and
that would dissuade a Good Samaritan from taking steps to
improve that environment at and in the vicinity of the mine
site.
An example of a case where EPA has undertaken a clean-up of
this type with a non-responsible party is the clean up of four
sites located on the North Fork of the American Fork River, in
American Fork Canyon, Utah County, Utah. Trout Unlimited (TU)
entered into an Administrative Order on Consent (AOC) under
CERCLA in order to accomplish a conduct a short-term removal
action at an abandoned mine site in Utah. An AOC is an
enforcement tool used by EPA to bring those who violate the
nation's environmental laws into compliance. This innovative
agreement required TU to enter into the AOC even though it was
acting as a volunteer with no liability whatsoever for cleanup
of the abandoned mine.
The AOC provided TU with protection against CERCLA
liability to the federal government as well as provided TU with
protection from any future liability to potentially responsible
parties for contributions under CERCLA. The AOC included
protection from future EPA action based on unknown releases
because the project was relatively small in comparison to
typical violations being addressed by an AOC.
While some have argued that Trout Unlimited's experience
shows that EPA already has the administrative power under
CERCLA to address the liability concerns of potential Good
Samaritans, the TU AOC involved circumstances that will not
necessarily be applicable to the vast majority of inactive and
abandoned mine sites that are polluting the environment.
Importantly, the site in Utah that Trout Unlimited has
remediated did not involve discharges into a navigable
waterway.
Many mine sites that a Good Samaritan would seek to
remediate will involve a discharge into a navigable water. An
AOC under CERCLA, such as TU's, would not eliminate the
requirements for such sites under the Clean Water Act to meet
stringent water quality standards or any applicable
requirements under RCRA or TSCA. Because TU AOC addressed only
liability under CERCLA, it may not be an effective model for
sites with water quality concerns. Moreover, the TU AOC
requires TU to comply with the many procedural and substantive
requirements contained in the CERCLA National Contingency
Plan--which is required in any AOC negotiated pursuant to
CERCLA. While compliance with these requirements may not be
unduly burdensome in the case of a short-term removal action
(such as that undertaken by TU at the Utah site in question),
this would not necessarily be the case with the many
requirements that would apply with a GoodSamaritan remediation
of a complex site. Although Section 113 of CERCLA provides protection
for a party that ``has resolved its liability to the United States or a
State in an administrative or judicially approved settlement'' from
``claims for contribution regarding matters addressed in the
settlement,'' it is unclear that such ``contribution protection'' would
protect a future Good Samaritan that negotiates an AOC--from suits by
States, Tribes, and other non-PRPs (such as innocent purchasers or bona
fide prospective purchasers of the site) under Section 107 of CERCLA.
Potential Good Samaritans should have certainty from liability under
applicable federal statutes.
The AOC negotiated with Trout Unlimited, which involved
only short-term removal action, took over fourteen months to
negotiate. In response to questions concerning the time
required to negotiate an AOC posed to the EPA at the
Committee's hearing on this topic, the Agency stated, ``* * *
The TU AOC is one of the first times that an administrative
order on consent has been used with a non-liable party that is
not also a bona fide prospective purchaser. Therefore, a number
of legal and policy issues of first impression had to be fully
considered and decided.'' Moreover, the federal government made
clear in the AOC that because of the NGO status of TU and the
limited nature of the response action, the AOC ``is not
intended to serve as a model for any other administrative order
or agreement''.\11\ Thus, while the CERCLA AOC is certainly an
option to be pursued, as EPA Administrator Johnson explained
during the June 2006 Committee on Environment and Public Works
(EPW) hearing, ``The value of legislation is that it provides
legal certainty; it provides a streamlined permitting process;
and it also ensures inclusive stakeholder involvement.''
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\11\ Administrative Order on Consent for Removal Action between EPA
and Trout Unlimited, page 3. September 2005.
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Senator Salazar stated in testimony before the June 2006
EPW hearing that ``most people would be afraid to touch these
sites because of CERCLA liability that comes attached to [the
cleanup].''
Other Good Samaritans in addition to municipalities and
nonprofit organizations include mining companies. Mining
companies know mines better than any other entity. A successful
Good Samaritan program relies upon capturing their knowledge
and resources. There are simply too many abandoned mines to
discount any nonliable, willing Good Samaritan. In its 1999
report, ``Hardrock Mining on Federal Lands,'' the National
Research Council of the National Academy of Sciences
recommended ``Existing environmental laws and regulations
should be modified to allow and promote the cleanup of
abandoned mine sites in or adjacent to new mine areas without
causing the mine operators to incur additional environmental
liabilities.'' \12\
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\12\ National Academy of Sciences; ``Hardrock Mining on Federal
Lands.'' 1999. page 104.
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Further, the NAS report explains the situation many mining
companies encounter today in which they have to mine around
existing abandoned mines to avoid liability rather than reusing
and remediating those older mine sites:
Concern over legal liabilities or the ability to meet
regulatory standards leads mine operators to design around
older mined areas and pre-existing discharges. In many cases,
however, reclamation of previously mined areas would be a
reasonable approach for combining construction of the new mine
with improvement of environmental problems caused by earlier
mining. For example, existing pits might be appropriate places
for waste rock disposal; construction of tailings facilities
might present opportunities to stabilize or reclaim previous
disposal sites; or replacement wetlands sties might be located
to provide some treatment for existing poor-quality discharges.
Incentives might be needed to assure that appropriate
opportunities for reclamation and improvement of environmental
impacts are not missed.\13\
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\13\ Ibid., 105.
It further follows that mining companies may seek to remove
tailings and abandoned mined ores to extract from them whatever
marketable ore may remain and then dispose of the wastes from
such activities in an environmentally-sound manner. As noted by
the Center of the American West's report, ``Some kind of profit
incentive could dramatically accelerate the process of cleaning
up abandoned mines. Private enterprise has an energy and drive
that could have a very positive effect. Mining companies, after
all, know how to work the sites * * * Why exclude this
expertise from the effort?'' \14\
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\14\ ``Cleaning Up Abandoned Hardrock Mines in the West,'' page 25.
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Different versions of Good Samaritan legislation has been
introduced in three of the past four Congresses and both the
current and previous Administrations noted the need for it. As
Charles Fox, President Clinton's Assistant Administrator for
Water testified in 2000 on Senator Max Baucus' Good Samaritan
legislation: ``Unfortunately, there are limitations under the
CWA that often hamper remediation and restoration activities at
abandoned mine sites. In particular, the permitting
requirements under Section 402 of the CWA require that the
permittee meet all of the requirements and effluent discharge
limits set out in their discharge permit. These discharge
limits include water quality standards that have been
established for the body of water into which the treated
effluent is discharged. In addition, these requirements mean
anyone conducting reclamation or remediation at an abandoned
mine site may become liable for any continuing discharges from
that site.'' \15\
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\15\ Testimony of Charles Fox, Senate Subcommittee on Fisheries,
Wildlife and Water. ``Hearing to examine S. 1787, the Good Samaritan
Abandoned or Inactive Mine Waste Remediation Act''.
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Liability concerns have proven to be a detriment to the
cleanup of abandoned and inactive hardrock mines. The National
Academy of Sciences summed up the objectives of Good Samaritan
legislation in its 1999 report: ``The objective of changes in
laws and regulations would be to recognize that environmental
improvement is worth pursuing at abandoned sites and to limit
the liability incurred by the cleanup entity.'' \16\
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\16\ National Academy of Sciences, page 106.
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SECTION-BY-SECTION ANALYSIS
Sec. 1. Short title
``The Cleanup of Inactive and Abandoned Mines Act.''
Sec. 2. Findings and purposes
Sec. 3. Remediation of inactive or abandoned mines by Good Samaritans
Summary
Section (3)(a) defines several terms used throughout the
bill: Administrator, Cooperating Agency, Environmental Law,
Good Samaritan (Good Sam), Historic Mine Residue, Inactive or
Abandoned Mine Site, Indian Tribe, Permitting Authority and
Person.
Discussion
This section defines the Administrator as the Administrator
of the Environmental Protection Agency and a Cooperating Agency
as a Federal, State, tribal or local agency or other person
that is authorized to participate in the issuing of a permit
under this section and chooses to participate. The term
Cooperating Agency does not include the Administrator.
The term environmental law encompasses Toxic Substances
Control Act (TSCA), the Federal Water Pollution Control Act
(the Clean Water Act), the Solid Waste Disposal Act (RCRA),
Comprehensive Environmental Response, Compensation, and
Liability Act (Superfund), applicable environmental laws of a
State or Indian Tribe and applicable environmental ordinances
of a political subdivision of State or Indian Tribe. Pursuant
to Section 3(f) of the Act, the permit issuer (either EPA or a
delegated State or Tribe) is authorized to issue a permit
allowing a Good Samaritan to remediate, in whole or in part, an
inactive or abandoned mine site that is polluting the
environment. Pursuant to Section 3(g), the permit issuer can
(on a case-by-case basis) waive or relax the regulatory,
permitting, and/or liability provisions that would otherwise
apply under one or more provisions of any of the above-listed
environmental laws. However, pursuant to Section 3(g), the
permit issuer is not authorized to relieve the permittee of the
obligation to comply with TSCA or RCRA with respect to the off-
site disposal of any waste or material removed from the
inactive or abandoned mine site.
The four laws listed as environmental laws under the Act
are laws which potential Good Samaritans have raised as
containing regulatory, permitting, and/or liability provisions
that, if applicable to all Good Samaritan projects would
dissuade Good Samaritans from acting. Under the Clean Water Act
(CWA), for instance, a Good Samaritan who begins to clean up a
mine site would need a National Pollutant Discharge Elimination
System (NPDES) permit under Section 402(a) of the Act for any
discharges from the site to a water of the United States. Such
a permit also would require that the discharge be treated, or
otherwise managed in perpetuity, so that it will meet all
applicable technology based standards and so that the discharge
does not result in an exceedence of applicable water quality
standards. Given resource constraints, many of those seeking to
reduce harmful discharges from one of these abandoned sites may
not be able to, or may not be willing to expend the resources
needed to, fully restore the waterbody to meet all CWA
standards or to perpetually treat all discharges from the site,
although a Good Samaritan may be willing to undertake certain
activities that could positively affect the quality of the
water. Once NPDES permit requirements are triggered, the Good
Samaritan assumes liability under the statute for all existing
and future discharges.\17\
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\17\ Center for American West. Page 20.
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Superfund has also been raised as a statute about which
potential Good Samaritans are equally concerned.\18\ In
testimony before the Environment and Public Works Committee,
John Goia, County Supervisor for Costra Contra County in
California stated, ``There is also liability exposure to the
County under the Federal Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA). This law imposes
liability for response costs upon owners and operators for the
release of hazardous materials from a facility.'' \19\
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\18\ Congressional Research Service. ``Superfund Overview and
Selected Issues,'' page 2. May 17, 2006. RL33426
\19\ Ibid, Gioa.
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Under existing case law, a Good Samaritan who enters upon a
site with which it was not previously associated and begins to
conduct remediation activities may be held an ``operator'' of
the site under section 107(a) of CERCLA, and be potentially
liable to cleanup the entire site.\20\ In addition, under the
case law, such a Good Samaritan, by moving about any
``hazardous substance'' (such as heavy metals) already located
on the site, could be liable as a ``transporter'' or an
``arranger'' under Section 107(a) of CERCLA.\21\ Further, to
the extent that a Good Samaritan acquires a possessory or
ownership interest in the property in order to conduct the
cleanup, it could be deemed an ``owner'' liable under CERCLA
for releases from the site. If held liable, the Good Samaritan
may not only be liable for the costs of cleaning up releases of
hazardous substances it caused, but also for the clean-up of
releases, or threatened releases, of any hazardous substances
from the entire site--including those caused by the activities
of historic mine owners or operators.
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\20\ See, e.g., Kaiser Aluminum & Chemical Corp. v. Catellus
Development Corp., 976 F.2d 1338, 1342 (9th Cir. 1992).
\21\ See, e.g., Redwing Carriers, Inc. v. Saraland Apartments, 94
F.3d 1489, 1511-1512 (11th Cir. 1996); Kaiser Aluminum & Chemical Corp.
v. Catellus Development Corp., 976 F.2d at 1343.
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CERCLA provides for some limitations on liability for
owners of sites. First, the Small Business Liability Relief and
Brownfields Revitalization Act of 2002 (Pub. L. No. 107-118)
amended CERCLA to exempt ``bona fide prospective purchasers''
from liability as an owner or operator of the site, if it
satisfies several conditions, including, but not limited to (1)
conducting all appropriate inquiries into the previous
ownership and uses of the property in accordance with generally
accepted good commercial and customary standards and practices,
and (2) purchasing the property after the Brownfields statute
was enacted on January 11, 2002. However, this limitation on
CERCLA liability does not protect a bona fide prospective
purchaser from liability under other environmental statutes
(e.g., the Clean Water Act), nor would the bona fide
prospective purchaser be summarily protected from the
substantive regulatory requirements that apply under such other
federal laws. Most importantly, the Good Samaritan would have
to purchase the property in order to qualify as a bona fide
prospective purchaser and receive protection from CERCLA
liability. However, most Good Samaritans wish only to clean up
the mines, not own the property. For instance, TU did not
purchase the property on which were the mines it remediated
under its AOC. Indeed, in the case of sites located on public
lands, the Good Samaritan would not be able to purchase the
site, even if it wished to do so.
Section 107(b) of CERCLA contains the ``innocent
landowner'' defense, which provides protection for purchasers
of sites who did not know or had no reason to know that
hazardous substances had been disposed on, in or at the site
(see section 101(35)(A)(i) of CERCLA). Good Samaritans would be
taking cleanup actions at sites precisely because they are
aware of the presence of hazardous substances there that need
to be cleaned up. As such, they could not claim that they were
unaware of the presence of hazardous substances at the time
they undertook the remediation activities. Moreover, as in the
case of the bona fide prospective purchaser, to satisfy the
``innocent land owner'' defense, the Good Samaritan would
actually have to own the land--which will not occur in the vast
majority of Good Samaritan projects. The innocent landowner
defense is a defense to CERCLA liability only, not the Clean
Water Act.
Some argue that one need not pass legislation including the
Clean Water Act because the Administrator or On-Scene
Coordinator can provide relief from CWA standards through
Superfund in the case of a CERCLA remedial action. However, the
Administrator or the OSC under the National Contingency Plan
must generally ensure that the actions being taken under
Superfund provide equivalent protections as those under
Environmental statutes, for instance the Clean Water Act (See
Section 121(d) of CERCLA). As such, the actual substantive
standards imposed by the Clean Water Act could not generally be
relaxed or waived. While the statute also allows EPA or the OSC
to allow compliance with an equivalent standard of performance,
this is a case-by-case determination that does not provide any
certainty to a potential Good Samaritan considering taking on
the remediation of an abandoned mine site. This person would
have to commit time and resources into the process in the hopes
that the Administrator or OSC makes the subjective
determination that equivalent protection will be provided.
Nonetheless, one goal of the Good Samaritan legislation is to
provide EPA with the ability to relax the requirements of the
Clean Water Act where this is deemed appropriate in order to
allow an environmentally beneficial Good Samaritan project to
go forward, even though the project might not result in
compliance with all Clean Water Act substantive requirements or
even ``equivalent'' protection. In many Good Samaritan
projects, ``equivalent'' protection cannot, or will not given
available resources, be obtained, but a lesser clean-up would
still be desirable.
Conversely, some argue that one does not need to address
Superfund as long as liability under the Clean Water Act has
been addressed, due to the federally permitted release
exception in CERCLA Section 107(j). This exception applies to
NDPES permitted point source discharges to surface waters.
However, an inactive or abandoned mine site may have releases,
or threatened releases, to several environmental media in
addition to surface waters (including to groundwater, soils,
and air). Moreover, it will likely have non-point source
discharges to surface waters which are not covered by an NPDES
permit. The ``federally permitted release'' exception in CERCLA
Section 107(j) may not cover the costs of cleaning up releases
to other environmental media or non-point discharges not
covered by the NPDES permit. The Good Samaritan could be liable
for all such costs should someone choose to sue the Good
Samaritan. Even to obtain relief with respect to the permitted
releases, the Good Samaritan would have to prove in Court that
the costs of cleaning up the permitted releases are divisible
from the costs of cleaning up the non-permitted releases. \22\
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\22\ See, e.g., Lincoln Properties, Ltd. v. Higgins, 1993 U.S.
Dist. LEXIS 1251, at * 76 (E.D. Cal. 1992); United States v. Shell Oil
Co., 1992 U.S. Dist. LEXIS 3947, at * 18 (C.D. Cal. 1992); United
States v. Iron Mountain Mines, 812 F. Supp. 1528, 1541 (E.D. Cal.
1992); In re Acushnet River & New Bedford Harbor, 722 F. Supp. 893,
896-97 (D. Mass. 1989).
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Moreover, the ``federally permitted release'' exception
would only apply to releases that occur after a Clean Water Act
permit has been issued. The person could be sued and would have
to mount a vigorous defense against liability for pre-existing
releases. Thus, liability for costs and damages due to pre-
permit discharges to surface waters--which would have been
caused by historic owners and operators of the mine site--will
remain. See Iron Mountain Mines, 812 F.Supp. at 1541. This
individual would have certainty against liability if Good
Samaritan legislation were enacted.
Further, pursuant to longstanding EPA interpretation, if
any effluent limit in an NPDES permit is exceeded, the
``federally permitted release'' exception would cease to apply,
because the discharge would not be in ``compliance with'' the
permit, as required by the literal language of Section 101(10)
of CERCLA.
Finally, and most importantly, despite these protections
that may exist under current law as indicated above, there is
uncertainty for the Good Samaritan under existing processes and
he may still be subject to legal actions. If the current
processes provided the Administrator with sufficient ability to
protect Good Samaritans and if those protections were certain,
far more Good Samaritan projects would be currently ongoing.
Given the lack of progress in restoring the nearly 100,000
waters being affected by AMD under current authorities,
legislation is clearly needed
Concerns have also been expressed by potential Good
Samaritans about the Toxic Substances Control Act (TSCA) and
the Solid Waste Disposal Act (also known as RCRA).\23\ S. 1848
allows a Good Sam to ask the permit-issuing authority to waive
or relax some or all of the RCRA or TSCA permitting,
regulatory, and liability provisions that might otherwise apply
to a Good Samaritan project. During restoration and remediation
of the site, a Good Samaritan might encounter materials that,
if disturbed in any way, could constitute ``hazardous wastes''
under RCRA, principally because these materials may contain
metals that were impurities in the ore that was historically
mined at the Good Sam site. By disturbing these materials, the
Good Sam could be considered the ``generator'' of a hazardous
waste, subject to RCRA regulatory requirements. Moreover, by
moving these materials from one location to another on the site
(for instance, either to move them away from drainage paths so
that they do not continue to be a source of pollution to
surface water, or by otherwise placing them in a manner that is
less potentially harmful to the environment), the Good
Samaritan could be considered to be operating a ``storage'' or
``disposal'' facility under RCRA, which would require the Good
Samaritan to obtain a RCRA permit and to comply with many
substantive design and operating standards that would be very
onerous to a potential Good Samaritan and might dissuade the
Good Samaritan from acting. Some abandoned sites may also have
PCBs in soils and other materials situated on site due to
spills from transformers that occurred in the past or possibly
from transformers buried in old tailings piles. Pursuant to
TSCA, if the PCB concentrations exceed 50 parts per million,
the Good Sam might be required to comply with numerous
substantive standards in order to take any action in connection
with remediation of these soils, including merely moving them
from one place on site to a different place on site where they
are less likely to be impacted by surface water drainage.
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\23\ Testimony of Scott Lewis, Senate Committee on Environment and
Public Works. ``A Hearing to Consider Whether Potential Liability
Deters Abandoned Hard Rock Mine Clean-Up'', June 14, 2006.
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This bill would allow the permitting authority to relax or
waive some or all of the requirements or potential liabilities
under the Clean Water Act, CERCLA, TSCA and/or RCRA that would
otherwise apply, in order to incentivize Good Samaritans to
undertake partial remediations at such sites that will result
in significant improvements to the environment.
This section also includes in the definition of
environmental statute certain state, local and tribal laws. As
noted below, since State and relevant Tribes must sign off on
any Good Sam permit that is issued (whether or not EPA has
delegated administration of the Good Sam program to a State or
Tribe), States or Tribes will in effect have veto authority
over the issuance of any permits that would waive or relax the
requirements of State or tribal law. Similarly, to the extent
that any Good Sam permit would relax the requirements of local
laws, the political jurisdiction in question would have to
consent to the issuance of the permit (subparagraph (f)(1)(C)).
Section (3)(a) defines a Good Samaritan as a person that
had no role in the creation of the historic mine residue, had
no role in creating the environmental pollution caused by the
historic mine residue and is not liable under any Federal,
State, tribal or local law for the remediation of the historic
mine residue. This section ensures that a person who is liable
under any Federal, state or local law for the historic mine
residue cannot be a Good Samaritan. Therefore, anyone who is a
potentially responsible person or otherwise liable under
Superfund cannot be a Good Samaritan. Further, a person who may
not be liable under a statute but had a role in creating the
mine residue or the pollution caused by it cannot be a Good
Samaritan. If a person had previously attempted to cleanup a
site and perhaps made it worse, thus contributing to the
environmental pollution, that person cannot be a Good
Samaritan.
This section defines Historic Mine Residue as mine residue
or conditions at an inactive or abandoned mine site that
pollute the environment. It includes, among other materials,
previously mined ores and minerals that directly contribute to
acid mine drainage or other pollution; equipment (or materials
in equipment); wastes or materials from extractions,
beneficiation, or other processing; and acidic or otherwise
polluted flows in surface water or groundwater. Thus, the term
would include, among other things, previously mined ores and
minerals that are intermixed with on-site soils, or that are
not protected from storm water run-on or potential dispersal by
wind or the elements, or that are otherwise in the path of
drainage flows.
The term inactive or abandoned mine site/mine site means
the site of a mine and associated facilities that were used for
the production of mineral other than coal, have historic mine
residue and are abandoned or inactive as of the date on which
an application is submitted for a permit under this section.
The term Indian Tribe has the meaning given the term in
Section 4 of the Indian Self-Determination and Education
Assistance Act.
The term permitting authority means the Administrator or a
State or Indian Tribe with a Good Samaritan program approved
under subsection (d).
The term person includes an individual, a firm, a
corporation, an association, a partnership, a consortium, a
joint venture, a commercial entity, a nonprofit organization,
the Federal Government, a State, a political subdivision of a
State, an interstate entity, a commission and an Indian Tribe.
(b) Permits
Summary
This section authorizes the permitting authority to issue
permits to Good Samaritans.
Discussion
This section creates the permitting authority's power to
issue permits to Good Samaritans.
(c)(1) Eligibility for Permits
Summary
This section outlines eligibility for permits. The
principal purpose of the project must be the reduction of
pollution caused by historic mine residue. The abandoned site
may not be on CERCLA's National Priorities List. Further, the
person obtaining the permit must be a Good Sam and the relevant
State or Tribe must have in place a remediation program.
Finally, the permit does not authorize any other activity than
the remediation of the mine site, including without limitation,
any mining or processing in addition to that required for the
remediation of historic mine residue for the public good.
Discussion
This section lays out the requirements for a Good Samaritan
project. It specifically states that any site on Superfund's
National Priorities List cannot bethe subject of a Good
Samaritan permit under the bill. Further, it requires the person
receiving the permit to be Good Samaritan as that term is defined in
the Act. It also authorizes only those activities that are directly
required for the remediation of the mine site. A Good Samaritan cannot
use the permit to extract new ores from a site for the sole purpose of
mining those ores and recouping their value. The Good Samaritan may
remove under a permit only those materials, including previously mined
ores and minerals that are contributing to pollution at the site. To be
eligible for a permit, the principal purpose of a proposed Good
Samaritan project must be the reduction of pollution caused by historic
mine residue at the inactive or abandoned mine site in question. The
bill recognizes that inactive and abandoned hardrock mine sites can
vary in the types of environmental problems that are posed, and that
appropriate remediation measures to reduce pollution at such sites will
vary from site to site. At some sites, or portions of sites, the permit
issuer may authorize the physical removal of wastes and other mine
residue and their disposal off-site. At other sites, it may be
appropriate for the permit issuing authority to issue a permit that
allows the Good Samaritan to divert stormwater or mine drainage away
from wastes and other materials (including previously mined ores) that
are highly mineralized. In this respect, inactive and abandoned mine
lands tend to be located in highly mineralized areas--that is why
mining occurred at those sites in the first place. Often, wastes and
previously mined ores and minerals (such as ore stockpiles) abandoned
by historic mining operations have quantities of a desired metal (such
as gold, silver, zinc or copper) that can be recovered with modern
mining technology. Allowing a Good Samaritan--particularly a mining
company with operations nearby to the site--to process such materials
and wastes as part of a Good Samaritan project that results in
reduction of pollution will provide a financial incentive for mining
companies to remediate such sites.
(d) State or Tribal Program
(d)(1) Program
Summary
Requires the state to have a program in place before the
issuance of any Good Samaritan permits. This section further
outlines the process by which a State or Tribe may seek
delegation of the Good Samaritan program. The State or Tribe
must submit an application that includes a complete and
detailed description of the permit program as well as a
statement from the appropriate state or tribal official that
the laws of the State or Tribe provide adequate authority to
carry out the proposed program. The Administrator must approve
the application within 120 days of its receipt unless the
Administrator determines that the application does not meet all
necessary requirements outlined in (d)(2).
Discussion
Section (d)(1) defines the process by which a State or
tribal government would seek delegation of the Good Samaritan
program. Paul Frohardt, Administrator of the Colorado Water
Quality Control Commission, testified on behalf of the Western
Governors' Association, in support of delegating the program to
the States. Forty-five states already manage the Clean Water
Act (CWA) permitting requirements. The bill requires that
states and Tribes prove their ability to both legally and
capably administer the program. It lays out the application
process. The application must contain a complete and detailed
description of the proposed permitting program and a statement
by the State Attorney General or an equivalent tribal official
that the laws of the State or Indian Tribe provide adequate
authority to carry out the program. The Administrator must
approve the application no later than 120 days after it is
received unless the Administrator determines that the State or
Tribe did not meet the requirements of the program.
(d)(2) Requirements
Summary
The bill outlines several criteria a state or Tribe must
meet in order to be delegated a Good Samaritan program. A State
or Tribe must agree to participate in each project as a permit
signatory, designate a lead State or Tribal agency to carry out
permitting responsibilities, provide an opportunity for
judicial review in State Court or by the appropriate tribal
body of the final decision to approve or deny a permit
application, possess the legal authority to implement a Good
Sam program, agree to carry out the program in accordance with
the Act except that the State or Tribe may be more protective
of the environment, and provide for and encourage public
participation in the permitting process. Further, the State or
Tribe must agree that a Good Sam shall comply with the terms
and conditions of the permit.
Discussion
This section requires a State prove that it not only has
the capability of running such a program but that it will also
fully meet the program's goals. By requiring the State to have
the legal authority to carryout the program, the Act ensures
States have the ability to perform the necessary tasks.
(d)(3) States and Indian Tribes Without Good Samaritan Programs
Summary
This section describes the actions a state or Tribe that is
not seeking delegation must take in order for EPA to issue Good
Samaritan permits in the State. The State must have in place a
Good Samaritan program in order for EPA to issue Good Sam
permits within the state or with respect to tribal lands.
Through the program, a State, or Tribe must agree to
participate as a permit signatory, in each project for which a
permit for remediation in the State or on that tribal land
isissued under this section, agree that a permittee shall comply all
the terms and conditions of the permit, in lieu of compliance with any
environmental laws, or provisions of environmental laws, that the
permit issuer determines need not be complied with by the Good
Samaritan, authorize State or Tribal agencies to participate in the
permit process and designate a lead State or Tribal agency to be
responsible for carrying out permitting responsibilities.
Discussion
This section is designed to protect the rights of states
and Tribes who choose to leave the authority to issue Good
Samaritan permits with the EPA. States or Tribes must have in
place a program that facilitates their participation in the
permitting process. Further, if a Good Samaritan chooses to
seek liability relief from a state or Tribal environmental law,
this section ensures state or Tribal participation in the
permit approval process. Subsection (f) requires the State or
Tribe concur with, and sign, the permit.
(e) Application for Permits
Summary
To obtain a permit to remediate an inactive or abandoned
mine, the application must include the following: a description
of the site, identification of any owner/operator or person
with a legal right to exclude others from the mine site, a
description of the relationship between the applicant and all
persons that may be legally responsible, a certification that
the applicant knows of no other person who is responsible for
the clean up and has the resources to complete the remediation,
a detailed description of the historic mine residue to be
remediated, a description of the baseline conditions of the
site; a description of the nature and scope of the remediation
and engineering plans for the project, a description of the
manner the remediation will assist the mine site in meeting, to
the maximum extent reasonable and practical under the
circumstances, water quality standards, an identification,
based on an inquiry that is reasonable under the circumstances,
of any significant adverse effects on the environment that
could reasonably likely occur as a result of the Good Samaritan
project if the permittee fails to properly implement the
proposed remediation, a schedule, budget, financial assurances,
a monitoring program following remediation, a plan for
operation and maintenance of remediation, and a list of all
environmental laws for which the applicant seeks protection.
Discussion
Section 3(e) of the bill sets forth the items that must be
addressed in an application for a Good Samaritan permit. These
items, to the extent applicable, must also be addressed in any
application to the permitting authority for modification of an
existing Good Samaritan permit. In some cases, the potential
Good Samaritan may not, at the time of initial permit
application, have complete knowledge of many of these matters,
including, for instance, a detailed description of the mine
residue to be remediated or a description of the baseline
conditions at the site, and as a result may not be able to
provide detailed engineering plans or detailed plans for
remediating the site. Section 3(h)(3) of the bill takes account
of this possibility by allowing the potential Good Samaritan to
apply for a permit allowing a program of investigative
sampling, so that the potential Good Samaritan can better
characterize the site and develop an appropriate remediation
plan, or, alternatively, decide not to pursue further
remediation. Such a permit application, if it involves
activities that do not pose risks to the environment, may be a
candidate for a review under the more simple and rapid review
process authorized in Section 3(f)(5) of the bill.
Section 3(e)(10) would require the Good Samaritan to
identify, based on an inquiry that is reasonable under the
circumstances, any significant adverse effects on the
environment that are reasonably likely to occur if the
permittee fails to implement the proposed remediation in
accordance with the engineering plans. This subsection
presupposes a violation of the permit and as such requires the
permit applicant to identify significant adverse risks of
environmental harm that are reasonably likely to occur as a
result of the Good Samaritan project itself, and then only if
the Good Samaritan fails properly to perform the remediation in
accordance with an approved work plan. It does not require the
Good Samaritan to identify adverse effects on the environment
that might occur if the Good Samaritan project were not
undertaken there. Likewise, the permit applicant need not
demonstrate (under Section 3(f)(1)(A)(iv)) that it has the
financial resources to address adverse effects on the
environment that might occur if no Good Samaritan project is
undertaken at the site.
(f) Permit Issuance
Summary
Permits may be issued only if the Permitting Authority
determines that the project will improve the environment to a
significant degree, the project will meet applicable water
quality standards to the maximum extent reasonable and
practicable under the circumstances, the Good Samaritan has the
financial resources to complete the work, the project meets the
requirements of this bill, and for those states or tribes
without delegation, the State or Tribe concurs with and signs
the permit. Further, the permittee must have the financial and
other resources to address any contingencies identified in the
permit application pursuant to paragraph (3)(e)(0), except that
the permitting authority may waive this requirement for
projects with a budget of less than $300,000. The permit must
also provide protection for the Good Samaritan under any
environmental law listed in the permit and, if the project is
to occur on Federal land, each State or Tribe within which the
Federal land is located concurs with the permit.
Moreover, if the permit provides protection for the
permittee under a law of a political subdivision of a State or
Tribe, the political subdivision must also concur with the
issuance of, and sign, the permit.
Further, this section provides that the issuance of a
permit and the concurrence of the State, or Tribe shall be
discretionary actions taken in the public interest and that no
action of the administrator or any other person shall be
required to comply with section 102 of the National
Environmental Policy Act (NEPA) of 1969. It also establishes
deadlines by which the permit must be issued or denied. If the
Administrator fails to issue or deny a permit, it shall be
considered denied. The permitting authority may use expedited
procedures to approve a project that is less complex and poses
less risk than other projects.
Discussion
In order to approve a permit application, the Permitting
Authority must determine that the project will improve the
environment. The project also must, to the maximum extent
reasonable and practicable, meet existing water quality
standands. The Good Samaritan is not required to meet otherwise
applicable water quality standards, however, if, for example,
to do so would require disproportionately more resources than a
particular project warrants. The intent of the program is to
improve the environment to a significant degree, taking into
account all of the relevant circumstances. For instance, a Good
Samaritan may take on only the task of moving a tailings pile
out of the path of stormwater flow. This will result in an
immediate and long-term improvement to the water body, even
though it alone may not be enough to bring the water body into
compliance with all applicable water quality standards. Without
the actions of the Good Samaritan, the stormwater would
continue to flow over the mine tailings, causing the discharge
of heavy metals and other contaminants.
For State or Tribes with delegated authority, the State or
Tribe would necessarily approve of the inclusion of any State
or Tribe statutes in the permit by issuing the permit. For non-
delegated State or Tribes, the relevant State or Tribe must
sign the permit in order for the Administrator to issue it,
thereby approving the inclusion of any State or Tribe statute
in the permit.
The Act also provides that Section 102 of the National
Environmental Policy Act (NEPA), from which the requirement for
both environmental assessments and environmental impact
statements is derived, does not apply to the issuance of a Good
Samaritan mine cleanup permit under the Act. NEPA's purpose is
to inform a Federal decision-maker of the environmental
consequences of the decision that he or she is about to make
and to ensure that the public is involved in that process. The
NEPA process is particularly useful where the underlying
Federal action proposed is not environmental remediation.
S. 1848 is an environmental remediation bill. Rather than
seeking to alter the natural environment, it seeks to restore
it. Further, the bill requires an extensive public process,
including public notice on the receipt of the permit
application, public comment on the draft permit and a public
hearing in the vicinity of the mine site. The bill fulfills the
underlying objective of NEPA, an environmental review with
public input, without subjecting a volunteer to potential
liability for cleanup and the expensive and time-consuming NEPA
process.\24\ Finally, this section allows the permitting
authority to develop an expedited process for projects that the
permitting authority determines are less complex, or pose less
risk. The expedited process can include a public hearing if an
interested party requests one.
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\24\ Written Testimony of Michael Caskey. Senate Committee on
Environmental and Public Works, ``Environmental Impacts of U.S. Natural
Gas Production.'' March 24, 2004.
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(g) Effect of Permits
Summary
A permit issued under this Act shall authorize a Good
Samaritan to carry out activities described in the permit,
authorize enforcement under this section, and provide liability
protection for the activities authorized under the permit. The
Good Samaritan is required to comply with the terms and
conditions of a permit in lieu of compliance with the
environmental laws, or portions of environmental laws, that are
listed by the permit issuer in the permit as environmental laws
with which the permittee need not comply. In addition, to the
extent specified in the permit, the permit relieves the
permittee from liability under the environmental laws. However,
a permit issued pursuant to this Act can not relieve a
permittee from any obligation to comply with applicable
provisions of the Toxic Substances Control Act or the Solid
Waste Disposal Act relating to off-site disposal of any waste
or material removed from the applicable inactive or abandoned
mine site.
Discussion
This section clarifies the protections given to the Good
Samaritan under a permit issued pursuant to this Act. Whether,
and the extent to which, the permittee will be relieved of the
obligation to comply with, or will be subject to liability
under, the environmental laws will be determined by the
permitting authority on a case-by-case basis. The permittee
must comply with the terms and conditions of the permit instead
of the specific environmental statutes listed in the permit as
being waived, and the permittee shall be relieved of any
obligations and liabilities arising from those laws for actions
taken under the permit. The permit, however, cannot relieve a
Good Samaritan from compliance with the off-site disposal
requirements of TSCA or RCRA. It is the Committee's intent that
any hazardous materials located at an abandoned or inactive
mine site that are removed from that site shall be disposed of
in accordance with all applicable TSCA and RCRA
requirements.Nothing in this Act shall be construed as providing
liability relief from these off-site requirements.
(h) Content of Permits
Summary
(h)(1) In General.--A permit must contain a detailed
description of the proposed work plan, a specific list of the
environmental laws under which liability protection is provided
and which need not be complied with by the permittee, a
provision stating that the Good Sam is responsible for securing
all authorizations, licenses and permits required under
applicable law other than those that would otherwise be
required under the laws whose provisions are waived in the Good
Samaritan permit, and any other terms determined appropriate by
the permitting authority.
(h)(2) Force Majeure.--The permit may include, at the
request of the Good Sam, a provision outlining responsibilities
of the Good Sam in the event of an Act of God or other
unforeseen circumstance.
(h)(3) Investigative Sampling.--A permit may identify an
appropriate program of investigative sampling to be completed
prior to remediation. In the event that investigative sampling
is authorized, the permit may allow the Good Sam to decline
further remediation to proceed based upon sampling results and
authorizes the permit to be modified after the sampling is
conducted.
(h)(4) Timing.--Requires that work shall commence no later
than 18 months after the date of issuance and continue until
completed. If work is not begun within 18 months, the permit is
terminated.
Subsection (h) further requires the signature of the Good
Sam and authorizes the transfer of a permit to a person that
qualifies as a Good Sam and signs the permit. Finally, the
Administrator may include additional requirements in a
transferred permit.
Discussion
The permit must clearly state the obligations of the Good
Samaritan and the terms for completing the project. It must
include a technical work plan for the proposed remediation, a
description of the engineering work and it must enumerate the
specific environmental laws from which the Good Samaritan seeks
liability protection. Further, it must include a statement that
the permittee is responsible for complying with all other
applicable environmental statutes and for securing all
necessary licenses, permits and authorizations. It may include
other terms and conditions as determined by the permitting
authority.
The permit may include, at the request of a Good Samaritan,
a force majeure provision. For example, the AOC between EPA and
Trout Unlimited contains a force majeure provision which
outlines the obligations of Trout Unlimited should an
unforeseen event occur, such as a major flood or other natural
disaster. The exact terms of force majeure provision will be
negotiated between the applicant and the permitting authority
and may include time extensions as well as a definition of what
types of unforeseen events would be covered by the provision.
The permit may also identify an investigative sampling
regime for the Good Samaritan. This provision allows the
potential Good Samaritan to apply for a permit allowing a
program of investigative sampling, so that the putative Good
Samaritan can determine better the characteristics of the site
and can develop an appropriate remediation plan or,
alternatively, decide not to pursue further remediation. Such a
permit application, if it involves activities that do not pose
risks to the environment, could be a candidate for review under
the more simple and rapid review process authorized in Section
3(f)(5) of the bill. This would enable the Good Samaritan to do
more intensive sampling than it may have done prior to
submitting the permit application. If the Good Samaritan should
find unexpected conditions that are beyond the Good Samaritan's
ability or resources to address, the permit may be voided and
the liability protections maintained, so that the Good
Samaritan is not held liable for the sampling work.
Work must begin within 18 months from the date of permit
issuance but can be extended during adverse weather or other
conditions specified in the permit. The permittee has legally
acknowledged its obligations under the permit by signing it.
The permit can be transferred to another person, but only if
such person qualifies as a Good Samaritan, signs and agrees to
be bound by the permit, and agrees to comply with any
additional terms and conditions necessary to meet the goals of
the Act.
(i) Role of the Permitting Authority
Summary
The Permitting Authority shall consult with prospective
applicants, accept permit applications, coordinate and lead a
review process, maintain records, provide an opportunity for
cooperating agencies and the public to participate, issue
permits, and enforce and carry out this section.
Discussion
The section identifies actions the permitting authority
must carry out. In addition to accepting applications and
leading the application review process, the permitting
authority must maintain all records related to the permit and
provide an opportunity for cooperating agencies and the public
to participate in the permit process. A detailed public notice
and comment requirement is explained in subsections (j), (k)
and (l). The permitting authority is also responsible for
issuing and enforcing permits.
(j) Cooperating Agencies
Summary
Notice of an application for a permit will be provided to
the lead State or Tribal agency, local government, each federal
and State or Tribal Agency that may have interest.
Discussion
If the permitting authority knows an application will be
submitted, it must alert the lead State or tribal agency
designated by the State, or Tribe, each local government
located within radius of 75 miles of the mine site and each
Federal, State, and tribal agency that may have an interest in
the application. This section ensures that all governmental
entities near the mine site will be given ample notice of a
pending application, if possible. Because a Good Samaritan
could seek liability protection from State, tribal and local
ordinances, this advance notification is critical for these
levels of government to have full participation in, and input
into, the Good Samaritan program.
(k) State, Local and Tribal Communities
Summary
If the permitting authority receives an application for a
Good Samaritan permit, the permitting authority shall, as soon
as practicable, provide notice of the application to the lead
State and tribal agencies, each local government located within
75 miles of the project site and each Federal, State, and
tribal agency that the permitting authority determines may have
an interest in the application.
Discussion
If the permitting authority receives a permit application,
it must alert notify the relevant state and tribal agencies,
each local government located within radius of 75 miles of the
mine site and each Federal, State, and tribal agency that may
have an interest in the application. This section ensures that
all governmental entities near the mine site will be given
amble notice of a pending application. Because a Good Samaritan
could seek liability protection from state, tribal and local
ordinances, this advance notification is critical for these
levels of government to have full participation in, and input
into, the Good Samaritan program.
(l) Public Notice of Receipt of Applications
Summary
On receipt of a completed application, the permitting
authority shall, no later than 30 days after receipt of the
application, provide to the public a notice that describes the
location of the mine site, the scope and nature of the proposed
remediation and the name of the Good Samaritan applying for a
permit to carry out the proposed remediation. The notice must
also provide the public with a means of viewing or obtaining
the application.
Before the permit is issued, the permitting authority shall
hold a public hearing in the vicinity of the mine site to be
remediated. Not later than 30 days before the date of the
hearing, the permitting authority shall provide the public with
notice of the hearing and a draft permit. Finally, the
permitting authority shall provide the applicant and the public
with the opportunity to comment on the draft permit at the
hearing and submit written comments to the permitting authority
during the 30-day period following the hearing.
Discussion
Full public participation in the permitting process is
critical to a successful Good Samaritan program. This section
outlines the process by which the public is to be notified of
an application, including the opportunity to view the
application and related materials. Further, the public,
including every municipality and tribal government within 75
miles of the mine site, may participate in a public hearing on
the draft permit. Finally, the public shall be given the
opportunity to comment on the permit. The public will have the
opportunity to comment on the assumptions used by the Good
Samaritan in developing its proposal, the potential Good
Samaritan's engineering and work plans, the need for the
liability protections being sought by the Good Samaritan, and
the appropriateness of any recovery of ores and minerals from
the site. Further, local governments are given a prominent role
in the permitting process and will be given advance notice of
pending applications as soon as the permitting authority is
made aware of one. The participation of the public and
interested governments is an important element in the
consensus-based permitting decisions contemplated by the bill.
(m) Monitoring
Summary
The permittee shall take such actions as determined by the
Permitting Authority are necessary to ensure baseline
monitoring, monitoring during the remediation and post-
remediation monitoring.
Discussion
This section allows the permitting authority to require
monitoring during and after the remediation. A description of
baseline conditions is a required element of the application
process outlined in subsection (3(e)); however the permitting
authority may require additional baseline monitoring. The
Administrator may weigh the size and scope of the project, the
risk to down gradient communities, and theoverall cost of the
project against the need for additional information and make case-by-
case decisions on the degree of monitoring, if any, that is needed.
(n) Enforcement
Summary
Section 3(n) specifies the enforcement authorities under
the bill. The permitting authority may bring a civil action
(for injunctive relief or civil money penalties) for violation
of a permit. Any person who violates a permit is subject to
civil penalty of up to $10,000 a day for each day of the
violation. Alternatively, EPA or a state may, on its own, issue
administrative orders or impose administrative penalties.
Discussion
This section outlines the various enforcement tools
available to the permitting authority to address permit
violations by Good Samaritans. A person who violates a
provision of the Good Samaritan permit is subject to these
enforcement authorities, in lieu of enforcement authorities
under environmental laws that have been specified in the permit
pursuant to Section 3(g)(1)-(2) and (h)(1)(B). The Good
Samaritan may be fined up to $10,000 per day for a violation of
a Good Samaritan permit. Further, the permitting authority may
use its existing administrative authorities or seek a judicial
remedy. Courts are granted authority to issue injunctions, if a
permit violation has occurred, to force compliance with the
permit, to prevent violation of a permit or to force a work
stoppage under the permit. The Court may, at a minimum, require
that the permittee repair any damage to the environment caused
by the permit violation and that the environment be restored to
its condition prior to the violation of the permit. This
section provides the permitting authority with full authority
to use all of its available enforcement options to remedy a
permit violation and restore the environment.
(o) Grant Eligibility
Summary
A remediation project conducted pursuant to this section
shall be eligible for funding under section 319 of the Clean
Water Act.
Discussion
This section would clarify federal policy that Section 319
funds can be used to fund the cleanup of abandoned hardrock
mines. The program has already funded projects in almost half
of the States in the U.S. The projects include cleanups at
Mosquito Creek, CO \25\ and Georges Creek, MD.\26\
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\25\ http://www.epa.gov/nps/success/state/co_mos.htm
\26\ http://www.epa.gov/nps/success/state/md.htm
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EPA's policy on the use of Section 319 is set forth in the
Nonpoint Source Program and Grants Guidelines for States and
Territories, 68 FR 60653, 60665 (Oct. 23, 2003). This language
first appeared in EPA's guidelines published in May 1996,
entitled ``Nonpoint Source Program and Grants Guidance for FY
1996 and Future Years''. The Guidelines state, ``Abandoned mine
land reclamation projects that are designed to restore water
quality are eligible for Section 319 funding except where funds
are used to implement specific requirements in a draft or final
NPDES permit. For example, Section 319 funds cannot be used to
build treatment systems required by an NDPES permit for an
inactive mine, but they may be used to fund a variety of other
remediation activities at the mine site.''
Currently, EPA and the States do not issue permits for
abandoned mine cleanups and therefore there is not a conflict
with the guidance allowing Section 319 funding. However,
projects permitted pursuant to this Act would now have a permit
that could create some uncertainty as to whether they could
continue to receive Section 319 funds. Subsection (o) ensures
their continued eligibility.
As noted by Dennis Ellis, Executive Director of Colorado's
Department of Public Health and the Environment, ``To assure
that Section 319 funds will continue to be available for such
cleanup projects, any Good Samaritan proposal should include a
provision clarifying that such funds may be used for projects
subject to Good Samaritan permits.''
(p) Judicial review
Summary
A court may set aside or modify action of the Administrator
issuing a permit only on clear and convincing evidence of abuse
of discretion.
Discussion
Before a Good Samaritan permit may be issued, a true
consensus must develop that the project is a good one. The
Administrator and the State or Tribe involved both must be
convinced that the project is in the public interest and that
that project will improve the environment to a significant
degree. These are discretionary conclusions. Both governments
must sign the permit, signifying their agreement, or the permit
does not issue. If the permittee is to receive protection from
local environmental laws, as well, the local government must
also sign the permit, signifying its agreement.
Further, the bill encourages early public input in the
project by requiring prompt notice of a permit application and
an opportunity for public comment. The permitting authority is
required to hold a public hearing in the vicinity of the mine
site prior to issuance of the permit. At least 30 days before
the hearing, the permitting authority must provide notice of
the hearing and a draft permit.
Given these rigorous public notice, comment and hearing
provisions and the need for consensus-based permitting
decisions, third-party litigation challenging the issuance of a
Good Samaritan permit should be unnecessary. Moreover, the
permitting authority has broad discretion to grant or deny a
permit application and to specify the terms and conditions of
the permit. The standard of judicial review contained in the
bill, therefore, imposes a high burden of proof on the party
challenging the issuance of a permit and is appropriately
deferential to the exercise of agency discretion. Both elements
of the standard of review are designed to discourage
unnecessary and frivolous litigation. Such litigation, even if
unmeritorious, is costly to defend, which itself would be a
deterrent to expeditious cleanup of inactive and abandoned mine
sites.
As noted by Dennis Ellis, Executive Director of Colorado's
Department of Public Health and the Environment, ``A Good
Samaritan is a not a polluter. Rather, they are an entity that
voluntarily attempts to step in and remediate pollution caused
by others * * * In this case, sound public policy needs to be
focused on creating incentives for Good Samaritans' actions,
not on aggressive enforcement that creates risks to those that
might otherwise undertake such projects.''
(q) Transfer of Permitting Authority
Summary
Not later than 120 days after the date on which a State or
Indian Tribe has submitted an application to administer a Good
Sam program, the Administrator shall suspend the issuance of
Good Sam permits in the State or tribal area unless the
Administrator determines that the application for permitting
authority does not satisfy the requirements of this Act. The
120 days can be extended by mutual agreement.
Discussion
This section requires the Administrator to cease issuing
permits within a State or tribal area 120 days after a State or
Tribe has submitted an application for delegation of the
program. This is to ensure there is no overlap of
responsibilities and that the State or Tribe has ample time to
take over the permitting authorities from the Administrator.
(r) Notification of Administrator
Summary
Each State or Indian Tribe authorized to administer a Good
Sam program shall submit to the Administrator a copy of each
permit application and provide notice to the Administrator of
each permit proposed to be issued by the State or Indian Tribe.
The Administrator may object to a permit up to 90 days after
being notified of the proposed permit by the State or Indian
Tribe. The Administrator must provide an explanation for the
objection.
Discussion
Subsection (r) provides the Administrator with a veto over
permits issued by a State or Tribe. The State or Tribe must
provide the Administrator with a copy of each permit
application as well as each permit proposed to be issued,
including modifications, transfers or terminations. No permit
can be issued if the Administrator, no later than 90 days after
receiving the proposed permit notification, objects in writing
to the State or Tribe. The Administrator must determine that
the permit would not be in accordance with the Act and provide
reasons for the objection. The Administrator may waive his
ability to veto the permit thus enabling the State or Tribe to
issue the permit before the 90-day deadline afforded the
Administrator for objecting to the permit.
If the Administrator objects to a permit, the State or
Tribe may request a public hearing on the objection. If no
hearing is requested and if the State or Tribe fails to revise
the permit within 90 days of receiving the Administrator's
objection, or fails to resubmit the permit applications within
30 days of a public hearing, the Administrator shall determine
if the permit should be issued or denied. This section ensures
a firm timeline for the permit issuance or denial to ensure
that there is a date certain for the Good Sam.
(s) Withdrawal of Approval of State or Tribal Program and Return of
State or Tribal Program to Administrator
Summary
In General, each State or Tribal Good Samaritan program
shall be administered in accordance with the Act. If the
Administrator determines, after a public hearing, that a State
or Indian Tribe is not administering the program in accordance
with this Act, the Administrator shall notify the State or
Tribe of its finding and failing appropriate corrective action
within 90 days, withdraw the program. The Administrator shall
not withdraw a program until the Administrator has notified the
State or Tribe and makes available to the public, in writing,
the reasons for the withdrawal.
Discussion
This section provides the Administrator with the authority
to withdraw a State or Tribe's delegation if the Administrator
finds that the program is not being administered pursuant to
this Act.
(t) Federal Land Management Agencies
Summary
A Federal land management agency that provides
authorization for, or participates in, a Good Sam project shall
not be liable under environmental laws for the conduct or
actions of a Good Sam.
Discussion
This section protects the Federal land management agency
from liability if a Good Samaritan project occurs on Federal
lands.
(u) Emergency Authority and Liability
Summary
Nothing in this section affects the authority of Federal,
State, tribal or local agency to carry out any emergency
authority, including an emergency authority provided under any
environmental law listed in a permit. Further, except to the
extent that a permit provides protection under an environmental
law specified in the permit, nothing in this section or a
permit issued under this section limits the liability of any
person under any other provision of law.
Discussion
This section provides a savings clause which protects the
authority of Federal, State, tribal or local agencies to use
any emergency authorities, including but not limited to any
emergency authority provided under any environmental law listed
in the permit. It further limits the protections afforded to
the Good Samaritan to only those laws specifically addressed in
the permit issued pursuant to this Act.
(v) State and Tribal Reclamation Programs
Summary
No State, Indian Tribe or Other Good Samaritan shall be
required to obtain a Good Sam permit to remediate an abandoned
or inactive mine site for the conduct of reclamation work under
a SMCRA approved State or tribal abandoned mine reclamation
plan.
Discussion
The Surface Mining Control and Reclamation Act of 1977
provides states with resources and authority to remediate
coalmines. Once a state has remediated abandoned coalmines, the
State may use funds under SMCRA to remediate abandoned hardrock
mine sites consistent with an approved reclamation plan (33
U.S.C. 1240(a)). States are afforded liability protection for
mine sites remediated in accordance with their SMCRA approved
plan. The Western Governors Association testified before the
House of Representatives Committee on Transportation in support
of clarifying the law such that nothing in S. 1848 is intended
to preclude a State from addressing these sites under an
approved SMCR program.\27\ States are concerned that they could
be required to do these cleanups under Good Samaritan permits
instead of under their already successful SMCRA program permit.
This subsection clarifies that States can continue to remediate
abandoned hardrock mining sites through their approved SMCRA
programs without needing a Good Samaritan permit.
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\27\ Ibid, Frohardt.
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(w) Termination of Authority
Summary
The Act shall terminate on September 30, 2016. However, the
permitting authority may issue permits after September 30,
2016, if the application for the permit was submitted not later
than 180 days before that date; and was completed in accordance
with subsection (e) no later than September 30, 2016. Any
permit issued pursuant to this Act that is in effect after
September 30, 2016, shall remain in effect after that date in
accordance with the terms and conditions of the permit and this
Act except that all work must be completed the later of 10
years after the date of enactment or four years after the
issuance of the permit.
Discussion
This section establishes a sunset for both the Act and work
authorized by a Good Samaritan permit. The Act's authorization
ends on September 30, 2016. Projects must be completed the
later of ten years from the date of enactment or four years
after the permit has been issued. Finally, this section
provides an exception for those permit applications received
180 days before September 30, 2016. The permits may still be
issued and work may continue under those permits for up to four
years after the date of issuance.
(x) Report to Congress
Summary
Not later than January 1, 2016, the Administrator shall
submit a Report to the Committee on Environment and Public
Works of the Senate and the Committeeson Transportation and
Infrastructure, Energy and Commerce, and Resources of the House of
Representatives. The report shall include a description of the number,
types and objectives of permits issued pursuant to this Act and each
site remediation project authorized by those permits. The report shall
also include qualitative and quantitative data on the results achieved
under the permits, a description of any problems encountered in
administering the act and whether the problems can be addressed through
administrative action. Finally, the report shall include a description
of progress made in achieving the purposes of the Act and
recommendations on whether the permit program should be continued
including any suggested statutory modifications.
Discussion
This section requires the Administrator to submit a report
to the various Congressional authorizing committees describing
the projects that were permitted pursuant to this Act as well
as recommendations for improvements to the program.
(y) Regulations
Summary
Provides the Administrator with the Authority to issue
regulations to implement the Act and allows permits to be
issued and projects to begin regardless of when or whether
regulations are promulgated.
Discussion
This section requires the Administrator to issue
regulations as the Administrator determines are necessary
describing how to implement the Act. It authorizes the issuance
of permits prior to the issuance of regulations.
LEGISLATIVE HISTORY
On October 6, 2005, Senator Salazar and Senator Allard
introduced S. 1848, ``The Cleanup of Inactive and Abandoned
Mines Act.'' On June 14, 2006, the Committee held an oversight
hearing to consider whether potential liability deters
abandoned hard rock mine clean up.
ROLLCALL VOTES
Senator Inhofe offered a complete substitute that was
accepted. Senator Carper offered an amendment to modify a
provision relating to injunctions. The amendment was accepted.
Senator Carper offered an amendment to require completion of
Good Sam projects within a certain timeframe. Senator Carper
offered a second-degree amendment to modify the timeframe. The
second degree and the underlying amendment were accepted.
Senator Carper offered a third amendment to amend the bill's
monitoring provisions. The amendment was accepted. Senator
Carper offered a fourth amendment to require that certain
applicants provide financial assurances. Senator Carper offered
a second-degree amendment to his fourth amendment. Both the
base amendment and the second degree were accepted. Senator
Boxer offered a complete substitute amendment as modified that
was defeated 7 to 11 with Senators Boxer, Jeffords, Lautenberg,
Clinton, Lieberman, Obama and Chafee voting aye and Senators
Inhofe, Warner, Bond, Voinovich, Thune, Murkowski, DeMint,
Vitter, Isakson, Carper and Baucus voting nay.
S. 1848 was then passed by voice vote.
REGULATORY IMPACT
In compliance with Section 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact of the bill. The bill does
not create any additional regulatory burdens.
MANDATES ASSESSMENT
In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), the committee makes the following
evaluation of the Federal mandates contained in the reported
bill. S. 1848 imposes no Federal intergovernmental mandates on
State, local or tribal governments.
COST OF LEGISLATION
Due to time constraints the Congressional Budget Office
estimate was not included in the report when received by the
committee, it will appear in the Congressional Record at a
later time.
ADDITIONAL VIEWS OF SENATOR JEFFORDS
During my time in the Senate, I have been concerned about
modernizing mining statutes to improve health and safety, and
reduce the environmental impact of mining. As a result of
several studies that reported abuse of current mining laws and
the lack of modern environmental standards in the law, efforts
to reform the General Mining Law of 1872 gained some momentum
in the late 1980s and early 1990s. I was one of several
cosponsors of S. 257, the Mineral Exploration and Development
Act of 1993, introduced by Senator Dale Bumpers (D-AK), in the
103rd Congress. The proposed legislation would have provided
comprehensive reform of the General Mining Law of 1872.
Included in the bill were provisions to impose a royalty on
mineral production on federal lands, reclamation and bonding
requirements, and an abandoned hardrock mine reclamation fund
to reclaim abandoned hardrock mines. The House and Senate
versions of the bill became deadlocked in conference and did
not emerge as public law. Since that time, I have supported the
passage of a provision in the annual Interior appropriations
bill that imposed a moratorium on patents \1\--a practice that
would give the mineral claimant title to the land and minerals.
---------------------------------------------------------------------------
\1\ This effort began in FY 1995 with the Bumpers/Jeffords
amendment number 2400 to H.R. 4602.
---------------------------------------------------------------------------
In subsequent years, I have cosponsored legislative efforts
that would have addressed the General Mining Law of 1872, such
as the Elimination of Double Subsidies for the Hardrock Mining
Industry Act in 1999 (S. 590) and 2001 (S. 115). Among other
things, the bill would have established an Abandoned Mine
Reclamation Trust Fund. As I said on June 14, 2006 in my
statement for the Environment and Public Works Committee
Oversight Hearing on Abandoned Hardrock Mine Cleanup, ``First,
we need to fully fund the Superfund program so that the EPA has
the ability to do its job and cleanup the contaminated toxic
mining sites around the nation.''
There is no question that cleaning up pollution stemming
from abandoned mines should be a priority. It is estimated that
there are as many as 500,000 abandoned hardrock mines
throughout the United States.\2\ The EPA estimates that
thousands of stream miles have been impacted by acid mine
drainage which may include heavy metals such as lead, copper,
zinc, arsenic, mercury, and cadmium.\3\ The former U.S. Bureau
of Mines estimated that 12,000 stream miles and 180,000 acres
of lakes in the West have been impacted by acid mine
drainage.\4\ Currently, there are more than 80 abandoned mining
sites on the National Priorities List. Many of these sites are
categorized as mega-NPL sites,\5\ which are large, complex, and
costly sites in which total cleanup costs are expected to equal
or exceed $50 million.\6\ In fiscal year (FY) 2005,
approximately half of the Superfund obligations for long-term,
ongoing cleanup work were committed to just eleven of these
sites.\7\ The EPA expects the situation to be the same this
fiscal year.\8\ EPA funded mega-sites cleanup of abandoned
mines has languished. In Vermont, there are three copper mines
that have been on the NPL for years while little cleanup action
has been taken. In 2004, the EPA's Office of Inspector General
estimated that the potential cleanup costs nationwide could be
as much as $24 billion.
---------------------------------------------------------------------------
\2\ Mineral Policy Center, ``The Last American Dinosaur * * *. The
1872 Mining Law,'' finds 557,000 abandoned hardrock mines nationwide,
1995.
\3\ EPA letter responding to questions at June 14, 2006 EPW hearing
on Good Samaritan legislation, July 14, 2006.
\4\ Ibid.
\5\ Environmental Protection Agency/Department of Energy Mine Waste
Technology Program 2005 Annual Report, page 3.
\6\ Superfund and Mining Megasites, National Research Council of
the National Academies, December 2005, page 412.
\7\ Statement of Susan Parker Bodine, Assistant Administrator,
Office of Solid Waste and Emergency Response, U.S. EPA, before the
Senate Subcommittee on Superfund and Waste Management, June 15, 2006.
\8\ Ibid.
---------------------------------------------------------------------------
If we had enacted the proposals for a trust fund in 1999 or
2001, I believe that we would have already had 5 years of
progress on cleaning up abandoned mines. We need to fully fund
the Superfund program so that the EPA has the ability to do its
job to cleanup the contaminated toxic mining sites around the
nation. The Superfund program has successfully removed PCBs,
arsenic, lead and other toxic wastes from almost 900
communities. Yet, this Administration refuses to reauthorize
the expired Superfund polluter-pays fees that were supported by
Presidents Reagan, Bush and Clinton. As a result, the Superfund
Trust Fund that once contained a surplus of $3.8 billion when
the fees expired in 1995 is now essentially bankrupt and the
burden on taxpayers to support it has increased by 300
percent.\9\ Due to this Administration's failure to seek
reinstatement of the Superfund fees, the Superfund program is
limping along with about 40 percent fewer dollars in real terms
than in 1987.\10\ Since 1987, annual Superfund appropriations
have varied from a low of $1.1 billion in FY 1988 to a high of
$1.6 billion in FYs 1991 and 1992.\11\ The program's FY 2005
appropriations of $1.2 billion are the equivalent of $820
million in constant 1987 dollars--a 40 percent decrease in
purchasing power when compared with actual FY 1987
appropriations of $1.4 billion.\12\
---------------------------------------------------------------------------
\9\ Center for Health, Environment and Justice, ``25th Anniversary
of Superfund, America's Safety Net in Crisis'' (2005).
\10\ Statement of Katherine Probst, Senior Fellow, Resources for
the Future, before the Senate Subcommittee on Superfund and Waste
Management, June 15, 2006.
\11\ Ibid.
\12\ Ibid.
---------------------------------------------------------------------------
The President's budget requests only $1.26 billion for
Superfund cleanups in FY 2007. This level of funding would
cleanup only 40 sites, down from an average of 87 sites a year
cleaned up during the Clinton Administration. This funding
level is grossly inadequate to protect human health and the
environment and it will continue to shift the costs of these
cleanups onto the taxpayers. Abandoned mines pose significant
public safety and environmental hazards and are in desperate
need of cleanup. Acid drainage from these mines damages
watersheds and degrades water quality. Leaching of metals from
relic tailings and other mine waste piles damages surrounding
soil, ground water and surface water (creeks, streams, rivers).
I strongly believe that Americans deserve clean soil and water.
Nothing would be more effective in spurring cleanup and
environmental improvement than a dedicated and reliable source
of funding.
Jim Jeffords.
ADDITIONAL VIEWS OF SENATORS BOXER, LIEBERMAN, LAUTENBERG, OBAMA AND
CLINTON
S. 1848, the Clean-Up of Inactive and Abandoned Mines Act,
unnecessarily waives environmental protection statutes, putting
human health and the environment at further risk from threats
from abandoned mines. The answer to the environmental threat
posed by abandoned mines is not to undermine the environmental
standards that apply to the clean-ups. It is instead to fully
utilize existing authority to relieve innocent parties from
potential liability where appropriate and fully fund existing
programs that support abandoned mine cleanups, including
Superfund.
Existing Authorities Can Expedite Clean-up and Ensure That the
Environment Is Protected
In 1980, when Congress enacted the Comprehensive
Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601 et seq., (CERCLA), it provided agencies
with broad authorities to limit liability and ensure
flexibility when parties, including innocent parties, agree to
undertake clean-up actions. In 2001, Congress expanded some of
these authorities when it enacted the Small Business Relief and
Brownfields Revitalization Act. In addition, the United States
through the Department of Justice, has long been recognized to
have broad settlement authorities which can be utilized to
protect innocent parties from liability, when they agree to
perform a clean-up. A brief summary of key existing authorities
will highlight just how extensive the available liability
protection is under current law. Every such authority is not
listed here. The protections are far broader than suggested in
the Majority views. These cleanup agreements can be
memorialized in an Administrative Order on Consent. EPA should
create a model order to expedite the process.
Section 107(d) of CERCLA provides `` * * * no person shall
be liable under this subchapter for costs or damages as a
result of actions taken or omitted in the course of rendering
care, assistance, or advice in accordance with the National
Contingency Plan (``NCP'') or at the direction of an onscene
coordinator appointed under such plan * * * '' This umbrella
liability protection is one of the strongest available in
statute. It can be applied to innocent parties who wish to
perform a cleanup.
It is worth noting that the NCP allows substantial
flexibility when a party performs the kind of interim clean-up
measures that an innocent party would most likely perform at an
abandoned mine. When a party seeks to undertake an interim
measure, rather than the final cleanup, it could be
accomplished as a removal action under the NCP. Removal actions
at a site can involve in some cases multi-million dollar,
multi-year clean-ups. Removal actions may attain the applicable
or relevant and appropriate requirements to the extent
practicable considering the exigencies of the situation. 40 CFR
415.
It is also worth noting that pursuant to Section 121(e) of
CERCLA, ``No Federal, State, or local permit shall be required
for the portion of any removal or remedial action conducted
entirely on-site * * * '' Accordingly, if an innocent party
enters into an agreement with the United States to perform an
interim clean-up at an abandoned mine, permitting requirements,
including Clean Water Act permitting requirements are limited.
This protection allows a party to reach agreement with EPA on a
scope of work that includes flexible application of relevant
standards, while at the same time receiving protection from
permitting requirements and liability to the United States.
The Brownfields law specifically provides additional
liability protections for bonafide prospective purchasers and
contemplates that mine scarred lands will be addressed under
the Brownfields provisions. See CERCLA Section 101(39) and
CERCLA Section 107(r). EPA may enter bonafide prospective
operator agreements as well.
The United States, as noted above has broad inherent or
plenary settlement authorities, in addition to those provided
in the CERCLA statute. Even the Section 122 settlement
authorities in CERCLA allow discretion regarding compliance
with the NCP. See Section 122(a). Section 113 also allows the
United States to grant contribution protection, but clearly, it
is not the sole basis for granting liability relief.
Courts have repeatedly recognized the plenary authority of
the United Sates to settle claims involving the United States.
See e.g., Swift v. United States, 276 U.S. 311, 331-332. This
plenary authority has been relied upon by the United States to
provide liability protections and settle matters, such as the
Good Samaritan Administrative Order on Consent reached with
Trout Unlimited in December of 2005.
Clearly, the tools exist in the law to formulate
settlements that are protective of innocent parties who wish to
clean-up an abandoned mine site. At the same time,
environmental standards are clear but flexible, ensuring that
the sites are not made worse despite a party's good intentions.
The notion that the environmental laws stand in the way of
environmental protection is a fallacy. The large number of
organizations across the country who have raised serious
concerns about the broad waivers of environmental laws and lack
of standards, among other concerns, in S. 1848 makes clear that
the notion that this bill is a step forward for environmental
protection is unfounded. In fact, it presents a serious threat
of taking environmental conditions backwards. It is worth
noting that Mr. Goia of Contra Costa County, who testified at
the hearing in the Environment and Public Works Committee on
June 14, 2006 on this issue, indicated a strong interest in
pursuing the administrative approach to addressing abandoned
mines.
Groups raising concerns about S. 1848 include, Sierra Club,
Natural Resources Defense Council, Earthjustice, National
Environmental Trust, National Wildlife Federation, EARTHWORKS,
National Catholic Rural Life Conference, Clean Water Action,
Friends of the Clearwater, Western Environmental Law Center,
Silver Valley Community Resource Center, Northern Alaska
Environmental Center, Siskiyou Project, Allied Fishing Groups,
California Sportfishing Protection Alliance, California Striped
Bass Association, California Water Impact Network, Coastkeeper
Alliance, Committee to Save the Mokelumne, Butte Environmental
Council, Deltakeeper Chapter of Baykeeper, Environmental Water
Caucus, Friends of the River, Friends of the Trinity River, NCC
Federation of Fly Fishers, Pacific Coast Federation of
Fisherman's Association, Planning and Conservation League, San
Joaquin Audubon, Southern California Watershed Alliance,
Winnemem Wintu Tribe, Idaho Conservation League, Citizens for
Victor, The Lands Council, Mining Impact Coalition of
Wisconsin, Western Organization of Resource Councils, Earth
Island Institute, Southeast Alaska Conservation Council,
Alabama Rivers Alliance, Arroyo Seco Foundation, Coast Action
Group, Environmental Law Society, Boalt Hall, Planning and
Conservation League, Sierra Club, Rocky Mountain Chapter,
Grassroots Coalition of Connecticut, Clean Water Network of
Florida, Environment Florida, Florida Federation of Garden
Clubs, Inc., American Bottom Conservancy, National Catholic
Rural Life Conference, Kentucky Resources Council, Inc.,
Kentucky Waterways Alliance, Inc., Gulf Restoration Network,
National Lawyers Guild Environmental Committee, Conservation
VP, St. Louis Audubon Society, Fishing Outfitters Association
of Montana, Western Nebraska Resources Council, New Hampshire
Rivers Council, U.S. Environmental Watch, Amigos Bravos,
Friends of the Wild Rivers, Bronx Greens, Citizens Campaign for
the Environment, Great Lakes United, League of Women Voters of
Westchester, Waterkeeper Alliance, Clean Water for North
Carolina, Neuse River Foundation, Ohio Environmental Council,
Ohio River Foundation, Rivers Unlimited Save the Illinois
River, Inc., Northwest Environmental Defense Center, Tualatin
Riverkeepers, Western Environmental Law Center, Clean Water
Action, South Dakota Tennessee Clean Water Network, Lake
Champlain Committee, Friends of the North Fork of the
Shenandoah River, Friends of Milwaukee's Rivers, West Virginia
Environmental Council, Wyoming Outdoor Council.
Barbara Boxer.
Frank R. Lautenberg.
Barack Obama.
Hillary Rodham Clinton.
Joe Lieberman.
CHANGES IN EXISTING LAW
Section 12 of rule XXVI of the Standing Rules of the Senate
requires the committee to publish changes in existing law made
by the bill as reported. Passage of this bill will make no
changes to existing law.