[Senate Hearing 106-955]
[From the U.S. Government Publishing Office]
. S. Hrg. 106-955
GOOD SAMARITAN ABANDONED OR INACTIVE MINE WASTE REMEDIATION ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON FISHERIES, WILDLIFE,
AND WATER
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
JUNE 21, 2000
__________
ON
S. 1787
A BILL TO AMEND THE FEDERAL WATER POLLUTION CONTROL ACT TO IMPROVE
WATER QUALITY ON ABANDONED OR INACTIVE MINED LAND
Printed for the use of the Committee on Environment and Public Works
Available via the World Wide Web: http://www.access.gpo.gov/congress/
senate
U.S. GOVERNMENT PRINTING OFFICE
71-517 WASHINGTON : 2002
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED SIXTH CONGRESS
second session
ROBERT SMITH, New Hampshire, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
JAMES M. INHOFE, Oklahoma DANIEL PATRICK MOYNIHAN, New York
CRAIG THOMAS, Wyoming FRANK R. LAUTENBERG, New Jersey
CHRISTOPHER S. BOND, Missouri HARRY REID, Nevada
GEORGE V. VOINOVICH, Ohio BOB GRAHAM, Florida
MICHAEL D. CRAPO, Idaho JOSEPH I. LIEBERMAN, Connecticut
ROBERT F. BENNETT, Utah BARBARA BOXER, California
KAY BAILEY HUTCHISON, Texas RON WYDEN, Oregon
LINCOLN CHAFEE, Rhode Island
Dave Conover, Staff Director
Tom Sliter, Minority Staff Director
------
Subcommittee on Fisheries, Wildlife, and Water
MICHAEL D. CRAPO, Idaho, Chairman
CRAIG THOMAS, Wyoming HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri FRANK R. LAUTENBERG, New Jersey
JOHN W. WARNER, Virginia RON WYDEN, Oregon
ROBERT F. BENNETT, Utah BOB GRAHAM, Florida
KAY BAILEY HUTCHISON, Texas BARBARA BOXER, California
(ii)
C O N T E N T S
----------
Page
JUNE 21, 2000
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 3
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 1
WITNESSES
Fox, J. Charles, Assistant Administrator of Water, Environmental
Protection Agency; accompanied by Mike Cook, Director, Office
of Wastewater Management....................................... 12
Prepared statement........................................... 62
Gerard, David, research associate, Political Economy Research
Center, Bozeman, MT............................................ 36
Prepared statement........................................... 109
Responses to additional questions from Senator Crapo......... 114
Goodhard, William, Director of Reclamation and Environmental
Affairs, Echo Bay Mines, Englewood, CO, on behalf of the
National Mining Association.................................... 30
Executive summary, Reclaiming Inactive and Abandoned Mine
Lands--What Really is Happening, National Mining
Association................................................ 78
Prepared statement........................................... 68
Responses to additional questions from Senators Crapo and
Boxer...................................................... 81
Janklow, Hon. William J., Governor, Pierre, SD, on behalf of the
Western Governors' Association................................. 6
List, Examples of Abandoned Mines in Western States.......... 52
Letter, Western Governors' Association....................... 56
Prepared statement........................................... 49
Resolution, Abandoned Mines, Western Governors' Association.. 56
Responses to additional questions from Senators Crapo and
Boxer...................................................... 58
Kelly, Katherine, administrator, Waste Management and Remediation
Program, Idaho Division of Environmental Quality, Boise, ID.... 26
Prepared statement........................................... 65
Responses to additional questions from Senator Crapo......... 67
Kendall, Sara, Western Organization of Resource Councils,
Washington, DC................................................. 34
Prepared statement........................................... 108
Lyman, Jack, executive director, Idaho Mining Association, Boise,
ID............................................................. 32
Prepared statement........................................... 106
ADDITIONAL MATERIAL
Letters:
Association of Metropolitan Sewerage Agencies................ 117
Association of State and Water Pollution Control
Administrators (ASIWPCA)................................... 117
Colorado Mining Association.................................. 119
Montana Governor Marc Racicot................................ 118
Western States Water Council................................. 118
Report, Abandoned Mine Land Initiative, Debra Struhsacker........ 83
GOOD SAMARITAN ABANDONED OR INACTIVE MINE WASTE REMEDIATION ACT
----------
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Fisheries, Wildlife, and Water,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:05 a.m., in
room 406, Dirksen Senate Office Building, Hon. Mike Crapo,
(chairman of the subcommittee) presiding.
Present: Senators Crapo, Reid, and Baucus [ex officio].
OPENING STATEMENT OF HON. MICHAEL D. CRAPO,
U.S. SENATOR FROM THE STATE OF IDAHO
Senator Crapo. The subcommittee will come to order.
This is the Subcommittee on Fisheries, Wildlife, and
Water's hearing on S. 1787, the Good Samaritan Abandoned or
Inactive Mine Waste Remediation Act. I appreciate our witnesses
joining us here today to explore the issue of remediating and
reclaiming abandoned and inactive mine sites and to reflect on
S. 1787, introduced by Senator Baucus.
Throughout the United States, we have several hundred
thousand mine sites that lie undisturbed as a legacy of another
time when mining practices were less sophisticated than our
current industry standards and when today's rigorous
environmental stewardship laws were not yet a glimmer on the
horizon. In other areas, the Federal Government directed mining
companies to extract resources quickly and without regard for
ecological consequences to support war efforts and economic
growth. Although operated in full compliance with governing
laws at the time, many abandoned and inactive mines pose
environmental threats to surrounding watersheds and downstream
interests.
However, because of the economic uncertainties of the
mining industry, the vast majority of these abandoned mine
lands lack a viable owner with the resources to remediate them.
Others lie on public lands where State and Federal agencies
lack the incentives and funds to adopt and remediate them. And
still others are truly abandoned with no identifiable owner in
sight.
As such, Federal policy should encourage Federal agencies,
States, and private parties to volunteer themselves to clean up
the abandoned mine lands that would otherwise remain
unremediated. In other words, we should help them to become
good Samaritan and promote voluntary stewards of the
environment. If uncon-
nected parties step forward to address these sites, everyone
wins.
I believe there is little disagreement that this is a
policy to which we should all aspire. But how do we achieve
this policy?
Clearly, a combination of two factors must be addressed.
First, the current legal and economic disincentives for
identifying good Samaritans need to be eliminated. Today's
witnesses are expected to highlight the multitude of legal
barriers, including the Clean Water Act and Superfund
liability, that discourage parties from taking actions. The
existence of unnecessary regulatory burdens may also dissuade
potential good Samaritans because of the time, cost, and hassle
of the bureaucratic process.
Second, it should be the Federal policy to invite as many
good Samaritans as financially viable to contribute to the
repair of our environment. Neither a needy charity nor a
worthwhile environmental cause would reject the contribution or
assistance from a willing donor. Is our environment any less
worthy a cause?
To do so, we should err on the side of establishing as many
incentives as possible to identify good Samaritans. Federal,
State, and local agencies could be parties, as well as private
companies and not just mining sources. Any combination of the
following would be created for this purpose: Federal or State
funding, tax incentives, permission to offset costs for
undertaking voluntary remediation, a trust fund, just to name a
few.
For so many years now, we have heard that we can spare
little expense when it comes to healing Mother Nature. Is it
fair to shortchange her now when many are willing to
voluntarily help?
It is also appropriate to spend a few moments addressing
matters that would play an important part in whatever policy is
created. First, creating limitations on States' rights and
prerogatives in the managing of the environment, in my opinion,
is counterproductive. In other words, States should retain full
authority to set water quality guidelines, issue permits, and
act as cleanup agents to ensure the environment is served.
Moreover, the current record of the EPA in reviewing and
issuing NPDES permits seems to be lacking.
Second, the overly complicated rules proposed under the
bill seem to preclude certain actors from cleaning up sites on
particular stretches of the property. This may, in fact, scare
potential good Samaritans away from volunteering themselves for
cleanups on properties of mixed ownership involving Federal,
State, and private parties.
Third, if certain sites are a particular threat to the
environment, even to the level of warranting Superfund Program
attention, those areas should not be excluded from cleanup by
volunteers. If by nature these sites represent the highest
caliber of threat to human health and the environment,
shouldn't these sites be the ones that are open to cleanup by
willing parties? Especially if the State or the Federal
Government identifies them as priority sites. Unless the search
for liable parties finds in the preponderance of cases
identifiable parties who will actually clean up the site,
shouldn't a volunteer source be welcomed instead of
discouraged?
Fourth, with what external activities should a potential
volunteer be saddled? In other words, Is it good policy to
expect a good Samaritan to expend their limited resources to
undertake ownership searches rather than cleanups? Is that the
responsibility of the good Samaritan?
Fifth, is it appropriate to treat good Samaritans as
untrust- worthy in their willingness to remediate discharges
not of their fault by insisting on a lengthy and potentially
expensive permit application process? Given that the good
Samaritan is volunteering itself where others will not step
forward, what should the Federal policy be with regard to
reviewing permits?
Sixth, what is the appropriate level of cleanup to hold the
good Samaritans to? If a party lacks the resources to restore a
site to pristine conditions, should it be precluded from
contributing to a lesser cleanup that will benefit the
environment but is as much as it can afford?
Finally, if we establish a policy that calls for only
rigorous cleanups to be pursued and excludes marginal
improvement, should we allow good Samaritans to offset their
costs in the process of remediation activities?
These are a number of the issues I would like to explore
today and I am sure the witnesses will bring up others. I look
forward to an educational and enlightening hearing and one that
will explore the multitude of issues that involve the
remediation of abandoned mine land.
I welcome our witnesses here today. We will discuss with
you the procedure of the hearing after the opening statements
have all been given.
Senator Crapo. Senator Baucus.
OPENING STATEMENT OF HON. MAX BAUCUS,
U.S. SENATOR FROM THE STATE OF MONTANA
Senator Baucus. Thank you very much, Mr. Chairman.
First of all, I thank you very much for holding this
hearing. This is a much needed bill. I also very much
appreciate the list of questions that you just mentioned
because I think they are good ones. They are questions that we
obviously have to consider.
At the outset, I want to say that this bill is a good bill,
but it is, by definition, not perfect. No bill is perfect.
Certainly this bill can be improved. By saying that I don't
mean to be defensive. I think it is a very good way to
encourage cleanups of abandoned mine sites. I very much welcome
new ideas and any other ideas people have to improve upon it.
I think it will only happen, too, Mr. Chairman, if we have
a bipartisan consensus. And I do think that that is entirely
achievable.
Let me back up for a minute and just try to fit a couple of
things in context, particularly with an example. An example I
will use is the Alta Mine in Corbin, MT. It is about 15 miles
south of our capital city of Helena.
The Alta Mine was mined heavily from 1883 to 1886 and
intermittently until the late 1950's when it was abandoned. I
might say, as a little bit of Montana history, it is the reason
for our railroad. It was such a big mine and the mine had such
prospects that the Great Northern was going to build a line
from Great Falls, MT all the way down to Helena. The primary
reason for the line was this mine. As I said, in the 1950's, it
was abandoned.
So there it sits, an open shaft collecting ground water,
which then discharges heavy metals into the ground water and
also into the surface water.
I might say that there are elevated levels of arsenic,
cadmium, lead, mercury, and other heavy metals. The pollution
runs down Corbin Creek into another creek called Spring Creek
and then into Prickly Pear Creek, which runs into East Helena,
MT. It is downhill into the valley and then eventually into the
Missouri River.
For at least 7 miles downstream, there is very serious
environmental harm. I visited the mine just last year with a
fellow named Vic Anderson, who runs the Abandoned Mine Cleanup
Program in the State of Montana. The waters are very colored.
This stuff is nasty stuff. It is full of all the metals I
mentioned. It also stinks and it has contaminated the drinking
water system in Corbin, MT. Corbin is not a big metropolis.
There are about 11 homes in Corbin. But our State had to spend
about $300,000 to replace the drinking water supply simply
because this stuff is coming down the creek.
Why isn't somebody doing something about this? In fact,
Montana is doing a lot. Vic Anderson and his crew are removing
structures. They are closing adits, capping contaminated soil.
But it would also like to do something about the water. For
example, they could construct wetlands for filtration, or they
could use limestone to neutralize acid wastes. They have a lot
of ideas. But the trouble is that there are some problems.
Here are all the ideas Montana has. The engineers say that
it will work. But the lawyers say that it won't. The lawyers
say that by diverting the water the State will become liable
under the Clean Water Act. We will have to get a full NPDES
permit, and the permit would require permanent treatment. As we
all know, under the Clean Water Act, it is prohibitively
expensive. So as we speak at this very moment, acid mine
drainage continues to flow directly into the Prickly Pear.
This is not an isolated example. This is just an example of
the Alta Mine. You can see the adit there and the water is
coming out. It is a huge operation there to reclaim the area
around the mine, but the State can't touch the water because to
do so they would have to clean it up to Clean Water Act
standards and they can't do it, so the water just continues to
come out of the mine site.
As I said, this is not an isolated example. There are more
than 400,000 abandoned mines across our country--400,000
abandoned mines across the United States of America. In
Montana, there are 6,000. By the map up there, the red dots
indicate where the abandoned mines are. There are at least 245
in our State that are within 100 feet of a stream.
Now, according to the Western Governors' Association and
many other people, that same problem that is occurring at the
Alta Mine is occurring at other abandoned mines all across the
West. States and other good Samaritans are prevented from
cleaning sites up to reduce water pollution.
This is a map of the country where a lot of these sites
occur, and you can tell they are all over. The more dense the
red, the greater the concentration of mines.
The bipartisan that I and Senator Campbell have introduced
is designed to address this problem. The title of the bill is
the Good Samaritan Abandoned or Inactive Mine Waste Remediation
Act, which tells a lot about the bill's objectives. In a
nutshell, the bill will allow States and some others, who did
nothing to cause the water pollution problem, to clean up an
abandoned mine under a special permit tailored to the
conditions of the site.
Under the bill, a State can apply for a permit from EPA by
submitting a plan describing how the State would improve water
quality. EPA reviews the plan to determine whether the plan
will improve water quality to the maximum extent practical,
given the resources and cleanup technologies available to the
good Samaritan, a standard that is much lower than under the
Clean Water Act, but not too low to be sure that there is some
significant improvement in the water quality.
The goal here is to improve the water quality. That is the
goal here. And to significantly improve the water quality and
draw the line so that there the water quality can be improved
to a good high standard, but not so high--as is today in the
case--so that no States, municipalities, counties, nobody does
anything about it.
That is the basic framework. Obviously we will get the
details later, Mr. Chairman, but one final point--I think this
is a good bill. It is not perfect and can be improved. I think
our witnesses will have good suggestions. But let us not allow
the perfect to be the enemy of the good. Let us not insist that
the bill address every single issue on our wish list because
that would be a recipe for a stale mate. I think we can do a
lot better in working together with the States, industry, and
environmentalists to solve the narrow, but important problem.
Senator Crapo. Thank you very much, Senator. All of us do
share that common goal. Hopefully, we can work forward to
achieve that objective. I think you have stated the objective
very well.
We will now begin with the witness panel, so let me
indicate to those here that the hearing will consist of four
panels. The first three panels will be one witness per panel,
and our first panel will be Hon. William J. Janklow, the
Governor of the State of South Dakota.
We welcome you here with us, Governor.
He will be testifying on behalf of the Western Governors'
Association.
The second panel will be Mr. Chuck Fox, the Assistant
Administrator of Water for the Environmental Protection Agency.
Welcome, Mr. Fox.
Our third panel will be Ms. Katherine Kelly, the
administrator of the Waste Management and Remediation Program
of the Idaho Division of Environmental Quality.
Then our fourth panel will have four witnesses: Mr. William
Goodhard, the director of Reclamation and Environmental Affairs
of Echo Bay Mines, from Englewood, CO, testifying on behalf of
the National Mining Association; Mr. Jack Lyman, the executive
director of the Idaho Mining Association; Ms. Sara Kendall, of
the Western Organization of Resource Councils; and Mr. David
Gerard, a research associate with the Political Economy
Research Center from Bozeman, MT.
I would like to remind all the witnesses that we want to
have as much opportunity to have a give-and-take discussion
with you and questions, so we encourage you to remember the
rule of trying to keep your oral presentation to 5 minutes. To
assist you in that regard, we have a system of lights here. The
green light will be on for 4 minutes, the yellow light will
come on when there is 1 minute remaining, and when the red
light comes on, we ask you to try to summarize what you have to
say.
If your experience is like that of most of the witnesses we
have, the yellow and the red light will come on long before you
are finished with what you have to say. I just assure you that
you will have an opportunity to elaborate with us as we ask
questions and so forth. So we ask you to wrap up so that we can
have the time for the give-and-take with the panel.
With that, we will begin with Governor Janklow.
Senator Baucus. Mr. Chairman, if I might just also welcome
the Governor----
Senator Crapo. Sure. Go ahead.
Senator Baucus. First of all, we claim him as a westerner.
Second, I know from Senator Daschle what a good job you have
done, Governor, and know that the two of you have a good, solid
relationship. He wanted me to make sure that you are welcomed.
Senator Crapo. We do very much welcome you here, Governor.
We know of your busy schedule.
STATEMENT OF HON. WILLIAM J. JANKLOW, GOVERNOR, PIERRE, SD, ON
BEHALF OF THE WESTERN GOVERNORS' ASSOCIATION
Governor Janklow. Thank you very much, Senator Crapo and
Senator Baucus.
If you look at Senator Baucus' map up there, Idaho,
Montana, and South Dakota--there is a lot of red in those maps
and there is a lot of very dark, dark red in those maps--three
States that are vitally affected by the mining issue question.
My State, frankly, is not unlike your two States. South
Dakota, combined as a State, has less people than Greater
Kansas City, MO. We have 88,000 square miles or 88-million
square acres in our State. We are a State that really doesn't
have a great deal of wealth.
Like a lot of Western States, we were developed as a
resource State, and as those things have changed dramatically,
it has had a huge impact on the economics in our State.
I am here today for two purposes. One is to submit the
testimony on behalf of the Western Governors' Association--
which I do at this point in time, Senators--and I would like to
make just a couple of brief comments with respect to South
Dakota and this bill.
We found ourselves in the position the last couple of years
dealing with a mine called the Brohm Mining Company, a mining
company that when the price of gold got to a couple of dollars
an ounce went bankrupt. It left a huge open pit mine when they
went bankrupt. The State was able to get a cash bond for
several years. When I came back into office and became aware
that there could be a problem, we put them on a cash bond. But
unfortunately, they went bankrupt before we got enough cash in
the bond fund.
The point is that we now have 130 million gallons of acidic
water in the pits out there that we are treating at a cost of
about--they were paying $200,000 a month and it is costing us
about $100,000 a month. When I went to Home State Gold Mine,
which is a neighbor less than a mile away, when I went to Wharf
Resources, a neighboring mining company within 2 miles of this
mine, both of them refused to help me because of CERCLA and
other Federal laws because of the perpetual liability.
I invoked powers that we have in our State that a Governor
has to deal with an emergency situation. They got to the point
where they would have conversations with me and they actually
made cash donations to the State where they gave us cash
donations and suggested how we ought to spend it to start some
of the remediation process. But they refused to become
intricately involved, even though they are absolute experts at
how to deal with this particular rock and geology of this
particular location, because of the perpetual liability that
currently exists under existing Federal laws.
This bill, S. 1787, is really a very good start in its
attempt to try to deal with the questions of liability. Some
people have suggested to me that they want definitive standards
written and they don't want any flexibility in terms of issuing
permits. That to me is like saying that unless a cancer
treatment is guaranteed to reach a certain level, people won't
take it. The reality is that people will take cancer treatment
at any level to try to remediate the situation they have.
So the point I am trying to make is that we need the help
of industry. We need the resources that could be made available
to clean up our water. Frankly, I would just as soon clean it
up 25 percent rather than 0 percent if that is all I can get
done under current economics and current resources. But it is
stupid to suggest that we ought to leave it 100 percent bad
because no one wants to get involved with having liability
forever with respect to these situations.
That is where we are with respect to these bills. We were
unable to get industry to help us. EPA Region 8 has been very
good in providing assistance to us, but it is nonsense that all
those resources sitting right there within 4 square miles of
the location have been unable to really step forward and help
us because of the liability issues.
The State of South Dakota doesn't have the resources to do
this. We frankly don't have the expertise to do it. We don't
have the economics to do it.
As briefly as I can, that is the situation in which we find
ourselves. Senators, I will be glad to answer questions.
Senator Crapo. Thank you very much, Governor.
I just have a couple of questions with regard to your
testimony.
What was the name of the mine again?
Governor Janklow. Brohm Mining Company.
Senator Crapo. As I understood your testimony, you actually
highlighted a couple of concerns that I have and I just want to
pursue that with you.
You indicated that one of your difficulties--in fact, as I
understood you, the main difficulty you had in getting the
industry experts involved--was their fear of CERCLA liability.
Governor Janklow. That is correct, sir. They would not get
involved for that reason, other than as giving us cash
donations and then suggesting how we do it. They even cut that
off because they didn't want to leave their fingerprints on it.
Senator Crapo. I assume from that, then, that you would
agree that the legislation should provide exemption from CERCLA
liability for a volunteer.
Governor Janklow. I would suggest that it be done if it is
mandated by governmental action, which could be State action
pursuant to the bill. As long as government steps forward and
authorizes it or demands it--they wouldn't even do it if we
demanded it under our laws, sir. So I think there ought to be
something to protect them.
Senator Crapo. My reading of the bill is that it does not
at this time--unless we amend it--provide any protection from
CERCLA liability for volunteers.
Governor Janklow. That is correct, sir. I like this bill,
but I think it ought to go farther. But recognizing what
democracy is and compromise, the first step is a terribly
important step.
Senator Crapo. But that is a pretty big issue. If I
understand it correctly, if we pass the bill as is, it wouldn't
solve your problem with the Brohm Mine. You still would not be
able to get industry----
Governor Janklow. Some would argue that if a contractor is
operating under State action, there would be protections. I
don't personally think it is all that clear. I would like to
see it made clear because I just want to--and I don't want to
sound editorial. I am getting to be an old man and I have
grandchildren who drink this water, bathe in it, and their mom
cooks in it. I want it to be better than it is. Montana puts
that water he is talking about from that mine into the Missouri
River, which goes right through the middle of my State. I would
just as soon they cleaned it up and made it a little better in
Montana before they send it down.
Senator Crapo. Can you see any reason not to have an
exemption from CERCLA liability?
Governor Janklow. I do not, sir. I am not practical by
Washington standards, but I do not see any down side to it at
all. The alternative is that it is going to continue to be a
100 percent problem. I would just as soon make it a 70 percent
problem and then we can deal with it from there.
Senator Crapo. Well, that gets me to the next issue that I
wanted to visit with you.
You used the example of a person seeking a cancer treatment
and if they couldn't get a 100 percent solution, they would
still want to have whatever help they could get.
Governor Janklow. Yes, sir.
Senator Crapo. The standard in the bill--and I don't have
the exact language in front of me, but I believe it is that the
permit applicant seeking to be a good Samaritan must clean up
the site to the maximum extent practicable. If a volunteer came
forward and said that they didn't have the resources to do
that, but they have the resources to give 10 or 20 percent
improvement and they are willing to do it, shouldn't we
encourage that?
Governor Janklow. Yes, sir. I would support that.
I support anything that makes water quality better. I was
an absolutist when I was younger. The older I get the less
absolute I become. Now I just want to start to fix problems
instead of fix the whole world. I just want to fix a little
drinking water and half dirty water is better than 100 percent
dirty water.
Senator Crapo. I appreciate your approach. I think it
represents some of the common sense we find out among our
constituencies and I think that is a good, healthy approach.
You may not know the answer to this, but----
Governor Janklow. That never prevented me from being an
expert on it.
[Laughter.]
Senator Crapo. The Western Governors' Association prepared
a discussion draft for this type of legislation when it was
looking at the issue. I don't know how involved you were with
that, but in that process, the discussion draft did not include
a Federal enforcement mechanism. The bill before us today does
have a Federal enforcement mechanism. I was just curious if you
knew why the Western Governors did not believe that mechanism
should be in the bill.
Governor Janklow. Sir, I have been told that as a result of
concern on whether or not a bill would have a chance of being
passed, it was compromised and changed over time. That is the
reason that something like that is not in there. It really was
as a result of compromise and trying to find a consensus to
move forward.
Senator Crapo. And then just one other question.
In this whole process, should it be the responsibility of
the potential good Samaritan, or should it be the
responsibility of the regulatory agency, to evaluate the chain
of ownership to make a search for possible responsible parties?
Governor Janklow. Sir, I don't mind the governmental entity
making a search for owners and liable parties. I don't honestly
think that is an onerous burden. It is not difficult to look
back and find out who messed with the place, who owned it, or
who had a deed, and things of that nature. So that is not a
provision, sir, that really bothers me because we have done
that with respect to the Brohm Mine. We have gone back and to
the extent we can, we are going after people. But no one ever
has the pockets that are deep enough to deal with it unless
they have major corporate wealth.
Senator Crapo. So if I understand correctly, you are saying
that you don't think that is a burden we should put on the good
Samaritan. That is something the government can handle?
Governor Janklow. I think the government should handle it.
If the government is demanding the action, so the government
ought to do those types of things. We should only use the good
Samaritan to the extent they have the resources and the
expertise. I don't want these companies to go in and figure out
who the former owners were and start suing them. I want them to
give us the expertise to clean up the water. That is what I am
looking to them for. I will go to someone else for the chain of
title problem.
Senator Crapo. Thank you very much.
Governor Janklow. Thank you, sir.
Senator Crapo. Senator.
Senator Baucus. Thank you, Mr. Chairman.
The question just now raised about whether there is
continued Federal liability or not--the chairman was asking you
several questions, Governor, about whether the bill should make
more clear that that is not the case, that is, that there is no
Federal liability for South Dakota or for a city in South
Dakota to pursue a cleanup under this bill.
Frankly, this issue is a little murky because under current
law, basically, I believe that Superfund liability does not
apply, and let me say why. Under current law, under section
107(j), Superfund liability does not apply to someone whose
only activity at the site is part of a federally permitted
lease. A federally permitted lease is defined in another part
of the Act as including permits issued under section 402. The
good Samaritan bill we are talking about here would issue
permits under section 402.
So a reading of the statute would indicate that this is a
federally permitted lease. Under another section of CERCLA,
when one's only activity is part of a federally permitted
lease, Superfund does not apply. It requires going to a couple
sections in the law. I am not going to sit here and say that it
is iron-clad clear, but it is pretty clear that under the
current law, a permittee under this good Samaritan bill would
not have Superfund liability. But that is something we could
clear up a little bit later.
There are going to be some witnesses later, Governor, who
are going to say that this bill doesn't make any difference and
won't help at all. It won't help your problem in South Dakota
and it won't help my problem in Montana. I don't agree with
them, but that is what they are going to say. I am just curious
what you would say to them.
Governor Janklow. Sir, there were people that told Columbus
not to head West on the water because the earth was flat. There
are people who also tell you that you can't try certain things
because they will never work without having tried them.
Let me make a suggestion. Let's pass a bill like this and
then if it doesn't work we don't have to worry about it because
it will just join the reams of other laws that have been passed
in America that nobody listens to.
On the other hand, this may be a law that works. It may be
a law that brings about some remedy and makes things a little
bit better. We don't know until we try it.
One of the great things about a democracy is that you can
try something and if it doesn't work you can go back to where
you were at. We all know where we are. It is where we are going
that is always the debate and the argument. But we have to take
the trip. We have to get the bus moving. If we take a wrong
turn, we can always turn around and go back. Or we can sit and
debate all year long where we are going to take our trip and
then never take it.
Senator Baucus. I totally agree with you. It reminds me of
a book I read, a biography of President Truman, and that became
very clear in that biography. Let's try something. If it
doesn't work, try something else.
Governor Janklow. Senator Daschle always quotes Harry
Truman and he says that Harry Truman said one time ``My mom
told me a jackass can kick a barn down, but it takes a
carpenter to build one. We just have a lot of jackasses in our
world today.''
[Laughter.]
Senator Baucus. Well, I can tell you are a good carpenter,
Governor.
Governor Janklow. Well, I don't know that, but I want to
try. I may not make a good building, but I want to try.
Senator Baucus. A third point is that some suggest that--
and this gets pretty much to the basic question here--that
maybe mining companies ought to be able to mine these sites
while they are cleaning up. This is something that a lot of
people considered quite thoroughly, as I know the Western
Governors did. It is my personal view, as much as I would like
to be able to help mining companies continue to mine, it is
going to get awfully complicated in trying to separate the two.
I would like your reactions to that.
Governor Janklow. Senator, I am not personally opposed to
that. However, that is a good issue. It is not this issue. This
issue is a cleaner water issue and what we ought to do is
confine ourselves to making it a cleaner water issue. I
personally would be in favor of confining the discussion here
to what we can do with respect to good Samaritans to help make
water quality better and leave for another day or another forum
the question of remining.
I don't mind the remining issue, but it doesn't belong in
here and I think it needlessly complicates the issue.
Senator Baucus. You just want to get on with it?
Governor Janklow. I just want to get on with it because as
a practical matter I have run into this problem. I have 130
million gallons of acidic water that we are spending a lot of
money just to neutralize every month. I am not getting rid of
the problem and South Dakota doesn't have the wealth to get rid
of it. The people I can call on that do have the expertise
cannot be good Samaritans even under an emergency declaration
in our State because they said that they don't want to clean up
the whole problem. They would help us if they could, but they
can't without becoming a miner of the property. They would get
to clean up the mine, but not the benefit of the mining. They
are not interested in that.
Senator Baucus. Thank you very much. I appreciate it.
Thank you, Chairman.
Senator Crapo. Thank you very much.
Governor, we appreciate your attendance here.
Governor Janklow. You have been very courteous. Thank you.
Senator Crapo. I do have to say that we appreciate your
kind comments. I think also Senator Baucus would agree with me
that your good, down-home common sense is very refreshing. I
can see why your constituents elected you.
Governor Janklow. You are very nice. Thank you.
Let me just say this as I close. This is not a Republican
or Democrat issue, and you all know that. This is a real issue
for real people. We get criticized in the States all the time
about these water policies. We are the ones that are drinking
the water in our States every day. We are the ones that bathe
in it. We are the ones that cook in it. We are the ones that
have to live in it. We have a real interest in making sure that
it doesn't get degraded. We have a real interest in cleaning it
up and making it better.
We need to start the process. That is all I ask you. We
don't have the tools now. Federal law prohibits us from being
able to clean up some of the water. That is wrong.
The last thing I will say--a guy told me the day I took
office years ago, ``Janklow, every day you will deal with what
is urgent and what is important. Don't waste all your time on
what is urgent. You will never get to what is important. What
you do that is important is what will make a difference in
people's lives in the future.''
Gentlemen, this is important. Thank you.
Senator Baucus. Thank you very much.
Senator Crapo. Thank you, Governor.
We would now like to call our second panel, Mr. Chuck Fox,
Assistant Administrator of Water for the Environmental
Protection Agency. I understand Mr. Mike Cook is going to sit
with you, the Director of the Office of Wastewater Management.
Mr. Fox, welcome. It has been a couple of weeks since we
have had you up here.
Mr. Fox. And as you can imagine, I have been busy before
other committees on our favorite subject.
[Laughter.]
Senator Crapo. We welcome you here, please proceed.
STATEMENT OF J. CHARLES FOX, ASSISTANT ADMINISTRATOR OF WATER,
ENVIRONMENTAL PROTECTION AGENCY; ACCOMPANIED BY MIKE COOK,
DIRECTOR, OFFICE OF WASTEWATER MANAGEMENT
Mr. Fox. Thank you. And thank you for this opportunity to
present our testimony today.
I would like to start with a special thanks to Senator
Baucus and to the Western Governors' Association for their
leadership on this issue. As we heard from the previous witness
and in your opening statement, this is a very significant
challenge confronting water quality in this country. The
Administration is supportive of this legislation. I will talk
in some detail about that, respecting your 5-minute rule.
We have made, as you know, great progress in improving
water quality in this country, but serious water quality
problems remain. The States indicate that over 20,000 water
bodies are polluted and need focused attention to clean up. In
fact, 180 million Americans live within 10 miles of a polluted
water body.
In the Western States, one of the most serious threats to
water quality is the pollution contributed by thousands of
abandoned or inactive mines. Mining has a significant economic
benefit to the West, but many of these former mine sites have
left an unfortunate legacy of water pollution or threat of
water pollution.
Exact figures are not available due to the magnitude of
historical small-scale mining activities and the age of many of
these abandoned mines, but estimates place the total number of
abandoned mines at 200,000 to 500,000 for the entire country.
An independent assessment by the Western Governors' Association
places the total at more than 400,000 in the West alone. Most
of these sites are classified as hard-rock mines that were
developed to extract a wide variety of metal-bearing ores.
Estimates of the magnitude of the environmental impacts
occurring as a result of hard-rock mining also varies
significantly. Not all of these mine sites pose serious threats
to human health and the environment. The Western Governors'
Association estimates that as many as 80 percent of the sites
may not pose environmental or immediate public health safety
concerns. However, many mine sites do create significant
environmental and public health hazards, anywhere from 40,000
to 100,000 sites based on previous figures cited.
While my testimony today in this hearing focuses on
inactive and abandoned mines, it is at least worth noting that
active mines also pose significant threats to the environment
and water quality. In fact, more than half of all mine and
processing ore sites on the National Priority List under the
Superfund in fact were active at some point since 1985. It
gives you a flavor that this is in fact an ongoing and current
problem as well.
As was previously mentioned, EPA uses a number of statutory
authorities, which I won't get into, to help protect the public
and the environment from these activities. But I do want to
quickly turn to the Clean Water Act. There are a number of
sections in the Clean Water Act that have direct bearing on
regulating both active and inactive mines. Unfortunately, as we
have heard, there are limitations under the Clean Water Act
that often hamper remediation and restoration activities at
abandoned mine sites.
In particular, the permitting requirements under section
402 of the Clean Water Act require that the permittee meet all
the requirements in effluent discharge limits set out in the
discharge permit. These discharge limits include water quality
standards that have been established for the body of water into
which the effluent is discharged. In addition, these
requirements mean anyone conducting reclamation or remediation
at an abandoned mine site may become liable for continuing
discharges from that site.
The legislation being considered today directly addresses
these problems. As I said, the Administration is happy to
support this legislation. My written testimony includes a
number of specific comments that we would offer to the sponsors
and to the committee. I would simply like to mention a couple
of points that we think are particularly important.
No. 1, the good Samaritan, acting as the remediating party,
cannot have a historical or existing responsibility for the
mine site. No. 2, sites are only subject to the bill's coverage
if there is not an identifiable owner or operator of the mine
that can clean up the site. Third, the permitting authority
rests exclusively with EPA, ensuring consistency in application
of this innovative approach to the environment under the Act. I
suspect we might talk more about that.
Fourth, a permit may only be issued when it is demonstrated
with reasonable certainty that improvement in water quality
will take place to the maximum extent practicable, taking into
consideration the resources available to the remediating party.
And finally, we think it is very important that public
participation in permit issuance and modification is included
in the bill.
In closing, Mr. Chairman, as we have heard, this
legislation raises many very important policy questions in how
it interfaces with other Federal laws. We stand 100 percent
behind the goals of this legislation and stand ready to work
with the committee to come to a quick solution on these.
Thank you very much.
Senator Crapo. Thank you very much, Mr. Fox.
Let me start out with regard to the issue of CERCLA
liability.
As you saw from the previous panel, there is a question as
to whether a good Samaritan acting under the statute as
proposed would fall subject to CERCLA liability. Do you agree
with the analysis Senator Baucus gave of the law? Do you agree
that CERCLA liability would not be imposed on a good Samaritan
under this bill?
Mr. Fox. We do agree with the analysis of Senator Baucus. I
think the point that might have been lost in the last
discussion was that currently that liability is there. But if
you pass this bill and it becomes law, you now have created a
permitting structure under section 402, which would in fact
give the protection that Senator Baucus identified in the
existing CERCLA law.
Senator Crapo. I appreciate the fact that you said that and
that you said it on the record because if this bill does become
law that may become evidence in a court case some day. But
wouldn't it be better for us--I have talked to lawyers who
don't agree with that analysis--wouldn't it be better for us
just to make it crystal clear in the law that there is no
CERCLA liability? Would you object to that?
Mr. Fox. I would be happy to spend some time working with
the committee on this very question. The only issue that has
been raised to me that has some validity is what happens when
the permit expires. Do the protections from liability still go
to the remediating party after the permit has in fact expired.
That is the kind of thing I think we could certainly work with
the committee in trying to address.
Senator Crapo. I am not sure I understood your answer.
Are you saying that they would have immunity from CERCLA
liability as long as the permit existed?
Mr. Fox. I think that is a very clear and 100 percent
agreeable interpretation. I would be surprised to find a lawyer
who didn't agree with that. To me the only question comes as to
what happens when the permit in fact expires. Are they still
shielded from liability? That is something----
Senator Crapo. It seems to me that is a pretty big
question.
Mr. Fox. Indeed. That would be something we would be
willing to sit down and discuss.
Senator Baucus. We can solve that one pretty easily.
Senator Crapo. Would you object to solving that and making
it crystal clear that there would be no CERCLA liability after
the permit expired or during the permit's existence?
Mr. Fox. I don't think that would be a significant issue.
But again, I am not the Assistant Administrator confirmed by
you all to manage the CERCLA law and I would like to at least
check with him on that.
Senator Crapo. Let me go over a couple of points that you
identified as critical pieces of the legislation.
Your second point was that the sites should only be subject
to the bill's coverage if there is not an identifiable owner or
operator of the mine that can clean up the site. Obviously, if
there is an identifiable owner or operator who has the
resources to clean up the site, then under current law we have
the ability to achieve a cleanup. It is not really an abandoned
site. But if there is an identifiable owner that doesn't have
the resources to clean up the site--say, a bankrupt owner
exists--should a volunteer or good Samaritan be allowed to step
in and clean up the site?
Mr. Fox. The short answer is that the intent of this bill
is to focus on the true good Samaritans and what I consider the
true orphan sites, places where all of us can come to common
agreement that some action is better than no action, just as
the Governor said. This is one area where the slope starts to
get slippery and things start to get complicated. Frankly, in
the spirit of trying to really get some action going on out
there, my recommendation would be to focus this on good
Samaritan actions for truly orphan sites so that we can in fact
get some action going.
I think the Governor's comments about having a different
forum and different opportunities to talk about some of these
related problems--we would be happy to do that. But at this
point, my recommendation would be to focus just on these
narrower questions.
Senator Crapo. I don't think the Governor meant to say--of
course, he is not here to clarify himself--but I don't think he
meant to say that just basic common sense problems that we
identify shouldn't be solved as we move forward with the
legislation.
My question is, Why is it a slippery slope? What becomes
slippery about this issue? If we have a site where there is an
existing owner who is incapable of cleaning it up, why is that
a problem just to let a volunteer to step in and help clean it
up?
Mr. Fox. I think in the case you described it is probably
not as slippery simply because you have made a determination
that this owner or previous owner is incapable of providing the
financial support necessary to do it. We have a longstanding
principle, as you know, in our environmental laws,
fundamentally called the
polluter-pays principle, that parties that in fact create some
of these problems should in fact be responsible for cleaning
them up. It is that principle that I think we need to be
careful and respect.
Senator Crapo. But in our efforts to pursue this polluter,
do we want to let the water stay dirty?
Mr. Fox. Absolutely not. That is obviously the overall goal
of this legislation, which is why we support it.
Senator Crapo. Let me go to your third point. I skipped
your first point, which I also have a problem with, but I am
going to let that one go for now.
The third point is that the permitting authority must rest
exclusively with the EPA. I assume that is because you want to
ensure consistency.
Mr. Fox. The legislation, as laid out, includes a report to
Congress and an assessment--I don't remember the exact time
period--in a few years as to how the program is operating and
at that point, frankly, the next Administration might have a
different view on this. But what I can tell you right now is
our experience with similar variances suggests that having a
national consistency is very important.
The model that immediately comes to mind is the variance
procedure under the Clean Water Act for sewage treatment
requirements, what is called a 301(h) waiver. It is a process
whereby
certain communities can bypass the basic secondary treatment
requirements of the Clean Water Act. This is a national
determination, if you will, made by the EPA. It is not made by
the States. It helps level the playing field around the
country.
States--I have all the confidence in the world that they
can ultimately implement this program, but I think for the
beginning of this program, so that we can get some
understanding of how this is ultimately going to roll out--What
are some of the key questions in our regulations? What are the
key decisions we are going to have to make? It is probably
appropriate to start out having it be an EPA decisionmaking
role.
Senator Crapo. I have some more questions on this and some
other questions, but my time is up, so I will wait for another
round and we will have a round of questions for Senator Baucus.
Senator Baucus. Thank you very much, Mr. Chairman.
First, I want to tell the Administration I appreciate your
support.
This isn't business as usual. We are kind of plowing new
ground here. This is innovative. We are taking some risks here
and doing something a little different. I appreciate the
Administration for bending a little bit and trying to do
something a little different. This is creative, new, and
something we have to do generally and specifically. This is
quite helpful.
Second, on the discussion with respect to whether there is
continued liability, you gave your interpretation of law. I
think that is very helpful. Regardless, I think that is
something we can work out quite easily, Mr. Chairman, to nail
down that a good Samaritan is not liable if he or she gets a
permit under the structure. That should no longer be an issue.
With respect to your good question, Mr. Chairman, about
somebody who can't clean up--we know who it is and they can't
clean it up--maybe we are going a little far here, but the bill
actually takes care of that problem. Under the bill that is
introduced, on page 4, essentially it says under subparagraph
two that a person that is financially capable of compliance
with the requirements of the Act is one----
Mr. Fox. I think you have hit it exactly right, Senator.
Senator Baucus. If they are not financially capable, then
they qualify. If they are financially capable, they don't
qualify.
Senator Crapo. I thought you had to not have an
identifiable owner or operator.
Senator Baucus. I am addressing the question of whether the
responsible person is financially capable or not. Under our
writing of the bill, if the person is financially capable, then
they do not qualify as a volunteer.
The State delegation question I think is a very good one to
discuss. I would like to see as a general principle States have
more environmental authority. They are doing a very good job. I
mentioned Vic Anderson earlier and I am very impressed with him
and his operation with respect to the Alta Mine and the cleanup
they are conducting out there. They are good.
But there are concerns here. One is substantive, as you
addressed, Mr. Fox. We are starting something new here, and we
do have a standard, which is a new standard environmental law,
to the maximum extent practicable, considering the available
resources. It is a little unclear exactly what that means. One
could make the argument that it might make sense for the sake
of consistency to let the EPA determine what that means. We
have EPA's backing of this approach in the first place, so
clearly they will try to make this work.
Politically, I don't know if there were State delegation if
this legislation would fly. I think a lot of environmental
groups would be very upset with pure State delegation. I might
add, too, that the Governors themselves did not include a
delegation in their proposal. My guess is that it is probably
for the same reason.
It is a good thought and a good question. But we have to
exercise a little bit of discretion here. As Governor Janklow
says, we need to use a little common sense and do what works as
opposed to what doesn't work. My view is that since we are
starting something new, let's take the first step. If we need
to improve upon it in 2 or 3 years, then we will, whether it is
State delegation or allowing mining companies to further mine
in conjunction with the good Samaritan, or whatever it might
be.
The main point is that there is such a need. There are
400,000 abandoned mines in this country. It is incredible. I
mentioned that there are 6,000 in my State and they are all
over the West. All over the country, according to the map
there. And nothing is being done about it.
I think this bill is a good start to make some progress. It
is clear from the testimony we received that this bill would do
that.
I thank you again.
Thank you, Mr. Chairman.
Senator Crapo. Senator Reid, I know you just barely got
here. Did you want to ask some questions?
Senator Reid. I have been here the whole time.
Senator Crapo. I appreciate that, and we do appreciate it.
Senator Reid. I have no questions.
Senator Crapo. I am going to continue with my line of
questioning, Mr. Fox.
Back to the question of State delegation, if we didn't
authorize State delegation, wouldn't this be the first time
under the NPDES system--and basically a precedent-setting step
under the Clean Water Act--to not allow State delegation?
Mr. Fox. As I mentioned previously, there are other
examples I am aware of under the NPDES permitting program where
when you are talking about a waiver from Federal standards
where the EPA has to make that determination. The example I
gave of 301(h) was precisely one of those. I am not sure about
others, but that is certainly one.
Senator Crapo. What is the big fear about States having
authority?
Mr. Fox. I think there is no fear of the States having
authority. As a former State official, I couldn't agree more
with Senator Baucus' characterization about their capacities
and their ability to solve problems. It really gets to a new
program that is going to raise a lot of questions. The set of
criteria by which we will be making these determinations, as
the Senator said, is a new one. Some will argue that it will be
open to a lot of different interpretations. We have never
before, to my knowledge, set a standard that said to the
maximum extent practicable, to the extent resources allow.
The 301(h) standard I mentioned before--just to give you a
flavor--the standard in the statute says that we need to issue
a permit that will ``maintain a balanced, indigenous,
population at the end of the zone of initial dilution''. This
was a criteria that is, frankly, a little more precise than
this one, but also raised a lot of questions about how this
would be interpreted in California versus Puerto Rico and the
like.
My recommendation is that this is something innovative. It
is something that is generally going in the right direction.
The current reporting requirements here are 9 years after the
enactment of the bill, I think, as I read this. If you wanted
to add language that would have us reporting back to you in a
shorter period of time on this very point, that might be
appropriate. It is really uncertainty that is driving me to my
position.
Senator Crapo. I sense in your answer a lack of trust of
the States.
Mr. Fox. I don't mean to imply that. What I am trying to
suggest is that the criteria is going to be open to a lot of
different interpretations and that some national guidance for
an emerging program--for example, somebody argued that they
only had $5 in their bank account, so they are only going to do
$5 work of cleanup. They think it will be $5 better than zero
dollars. Does this warrant a permit that will protect from
liability?
That is the kind of question we are going to be facing.
Senator Crapo. I recognize that. In fact, let's get to the
standard because maybe our differences of opinion on the
standard are reflecting our differences of opinion on who
should administer the standard.
The standard would be the maximum extent practicable. Why?
Let me give you a clarification of my question.
Let's say that a good Samaritan with substantial resources
comes forward--a multi-billion dollar good Samaritan--but this
good Samaritan says that they are not willing to use their
entire assets to clean up this mine. They are willing to put
$100,000 into it, or maybe $500,000 into it. Why in the world
would we want to say that since they are not willing to do the
maximum extent that you can with your resources, we don't want
you to help us at all? Why would we have such a standard?
Mr. Fox. I think you raise precisely the kinds of questions
we are going to have to deal with in the development of
regulations on this. I am not going to say it is going to be
easy to define this. But to me, the practical, common sense
answer to the question you pose is that of course we don't want
to break the bank and have all the resources go to this. Our
goal here is to get some level of cleanup going on and
ultimately the judgment is going to be what is practicable and
it wouldn't be practicable to have a $1-billion asset
corporation spend all its money on mine reclamation. It might
be practicable that they spend $100,000 or $200,000 on it.
Senator Crapo. What if the EPA decided that it was
practicable for this entity to spend $1 million of their $2
billion, and the entity said, ``We don't care what you think is
practicable. We have had a meeting and we are willing to
contribute $500,000 to this''? Why should we even get ourselves
into this discussion of whether we have squeezed the last
possible ounce out of a good Samaritan who is willing to come
forward and contribute some resources?
Mr. Fox. First, just a point of clarification. The way the
bill is structured, the good Samaritan basically must be a
governmental entity. So we are talking----
Senator Crapo. That is another issue I have, but go ahead.
Mr. Fox. So the resource determination is a little bit
different than the example we have been talking back and forth
of ABC Corporation.
Senator Crapo. Let me change it to that example. What if
the State Legislature of Idaho--which has budget problems like
every other State--their Appropriations Committee says that
they are willing to take $500,000 out of their budget this year
and put it toward this issue. The EPA looks at their budget and
thinks that they could probably squeeze a little more out of
it.
Why do we get into this discussion? Why don't we let the
States Legislature--if it is going to be a State, or whoever it
is that is appropriating the dollars or has the dollars in
their fund to do it--why don't we let them decide what they
believe is the right step they will take? If we don't, we don't
have the ability to force them to do this, so the question is
zero or what they are willing to do.
Mr. Fox. I think that is precisely the intent of the
legislation. I have to believe that my successor is going to
interpret that as the intent and is going to take that $500,000
from the Iowa State Legislature and say let's apply this to
that problem, that is practicable, let's get on with the next
one.
Senator Crapo. Why not make it so that your successor
doesn't have any discretion not to accept the $500,000? Why
should a bureaucrat--whether it is a State or Federal
bureaucrat deciding the issue--even get into that issue? Why is
it a relevant issue?
Mr. Fox. I think it is a relevant issue because, as Senator
Baucus said in describing this legislation, we are trying to
craft some environmental outcome that is somewhere between the
pristine, the perfect, the existing water quality standard and
do nothing. The reality is that we are trying to do what we can
to improve water quality and get it as close to the national
environmental standards that we have established. We want this
to have a good environmental outcome.
This is the challenge: defining this place somewhere above
the standards and at the same time saying that we are going to
do something. If we simply said that all you have to do is move
the bar a little bit, I am not sure that is solving many
problems throughout the country.
Senator Crapo. It does move the bar a little bit, though.
Mr. Fox. Again, I would respectfully suggest that we have
built a pretty solid and successful foundation of environmental
laws in this country. We need to be mindful that when we are
making significant changes like this and allowing fairly
significant waivers from the program, we need to do that with
the respect of a pretty strong environmental outcome.
Senator Crapo. I understand what you are saying, but there
is a very big difference I don't think you are focusing on, and
that is that the environmental laws we have that you have just
described are virtually--if I recall correctly--all focused on
an enforcement mechanism where the Government is stepping in
and requiring a standard to be met, requiring conduct on behalf
of the person subject to the statute.
We are now talking about a creative approach to trying to
encourage people to volunteer. If you try to impose the
mandatory aspects of current environmental law on a volunteer,
I think you have missed the point of what we are trying to do.
We are trying to encourage volunteerism, not bring volunteers
into a system and then mandate that they use their resources in
ways that they never had an obligation to do to start with.
Mr. Fox. As you know, and in the course of defining the
rules under which the volunteer will volunteer, we are now in
effect exempting future action consistent with other Federal
standards. I am simply suggesting that we need to do so
prudently and carefully.
Senator Crapo. I still have more questions, but I will go
to another round for Senator Baucus.
Senator Baucus. Thank you, Mr. Chairman.
I think we should focus here on what is really going on.
What is really going on is we are trying to make it possible
for people who want to clean up to do so. That is what we are
really trying to do here. I think most people want to clean up
to a pretty good standard. They don't want to do it just one
milligram. They want to do what they can to the maximum extent
practicable, given the resources. I think that is where most
people are when they are trying to clean up. But they can't
clean up now because of the provisions of the Clean Water Act.
It is just too high a standard. The fishable, swimmable
standards of the Clean Water Act result in standards that are
much, much higher than the standard contained in this bill.
I think it is important to focus on that we are trying to
help States and municipalities do what they want to do. They
have the resources and they are going to do it. They want to do
it, as Governor Janklow said, very strongly. He just wants to
get on with it. He just wants to be able to clean up.
I think, Mr. Chairman, it is important to ask in what
detail will the EPA be looking. But I think the central
question is, Is the standard in the ballpark and is it about
right--again, not letting perfection be the enemy of the good--
and recognizing that there is a middle ground between zero and
the standards of the Clean Water Act?
The environmental community would like a much higher
standard than is contained in this bill. In fact, they want
purity. We would like to have purity, but we can't have it. It
doesn't exist. So we are trying to be practical and exercise a
little common sense here.
In addition, there was some question about whether States
would be working in conjunction with the EPA. I might just
refer to section 4 of the bill, ``The Administrator, with the
concurrence of the applicable State or Indian tribe''--et
cetera--``may issue''. So obviously the EPA is working in
concurrence. If the State doesn't want to do it, there is no
permit. It is just not going to happen. It is contrary to the
way the law is written right now.
The State delegation questions are good questions. But this
is not the Clean Water Act here. This is something entirely
different. I think it is good to take it a step at a time. I
might say, too, that there is a little bit of a difference
between State delegation here and State delegation of the Clean
Water Act. State delegation here is delegation to the entity
that would be applying for the permit. It is a little different
in the Clean Water Act where it is generally a company that is
applying for a permit because EPA has delegated to the States
and the State sets up its own program. Obviously there are
still ties with the EPA.
So in the Clean Water Act, generally a company would be
applying for a permit. In the good Samaritan legislation, it
would be a State applying for a permit under a program that is
delegated to it.
I think off the top of a quilt work, a patchwork of
different States doing lots of different things. Mr. Chairman,
many, many times companies come to us and say that they need
uniformity. State X is requiring this and State Y is requiring
that. That is so expensive and there is so much red tape. On
the other hand, we have a Federal system and we are very
interested in State primacy. There is no bright line test here,
just common sense. Sometimes it is one side of the line and
sometimes it is the other side. Sometimes it is federally
centralized and sometimes it is delegated. You just have to
call them as you see them.
One program doesn't necessarily dictate the result in the
other because they are different. Sometimes significantly
different to require different results.
I think that discretion is the better part of valor here
and at this point, in order to get a bill passed that does
allow States to take the first steps, this is in the ballpark.
Mr. Fox, I would like to ask you the same question I asked
Governor Janklow. There are going to be other witnesses coming
up saying that this thing doesn't work, won't help at all, and
will not do anything. It is a waste of time, a ``losery''. I
think that is one of the words that is in the testimony of one
of the next witnesses.
Do you think this is a ``losery''? What do you think?
Mr. Fox. I do not. I think this is a very meaningful, solid
step forward that will likely have very positive impacts. The
example that you gave from Montana and the example that the
Governor gave from South Dakota in my mind are both precise
kinds of examples that would benefit from this legislation
where under your bill there would be protections for good
Samaritan actions by State governments. I think those are
precisely the kinds of problems this bill will solve.
I think it is uncertain as to how much will happen. My
instincts tell me that there will probably be dozens and
dozens, if not hundreds, of permits that we are going to be
issuing under this, just knowing what I know about the program.
But that is the kind of more detailed information we might want
to look at in a report a couple years from now and get back to
Congress to see how we are doing.
Senator Baucus. Thank you.
Senator Crapo. I will go back to some of the questions I
was pursuing, but before I do so, let me ask a question along
the same line you were just discussing, the question of a
``losery''.
Governor Janklow's testimony was that he couldn't get the
private sector involved in this cleanup. Can the private sector
get involved in cleanup under this bill?
Mr. Fox. My understanding of the bill is that the lead
sponsor has to be a government entity, but the government
entity is allowed to have cooperating parties. There is an
allowance in the bill for cooperating parties.
Senator Crapo. And you don't have any objection to those
cooperating parties being private contractors or the private
sector?
Mr. Fox. No.
Senator Crapo. Do you have any objection to the good
Samaritan itself being a private sector entity?
Why can it only be a government?
Mr. Fox. Again, I think this is something that I would be
happy to look at, to review more data and perhaps get back to
you with a more informed answer. To me, the focus of this bill
was trying to solve a problem for governmental interests that
want to solve these problems. Where it gets really complicated
sometimes is on the remining issue that you raised in the
question to the Governor.
The way this bill is written right now, it basically
suggests that the good Samaritan--there could be some mining
activities that happen on the site, but the revenues generated
from them really have to be directed toward remediation. It was
a real attempt to create a fire wall in this bill from the
remining issue that creates a lot of complications on the
overall environmental standards question.
My fear is that if we start dealing with private entities
that we start going down this path. Again, I am happy to go
down this path and I am happy to continue to have these
discussions with you, but the intent of the sponsor seemed to
be to really focus this on government entities desiring to do
this kind of cleanup, and that seemed appropriate.
Senator Crapo. I understand you to be saying, then, that
you don't have any objection to private parties being included,
it is just that you think that should be a later step?
Senator Baucus. Maybe I can clarify, Mr. Chairman. I don't
mean to speak out of turn here, but the point here is that the
governmental entity can contract with a mining company to clean
it up.
Senator Crapo. What I am referring to, though, is if we
don't have a situation where it is a government entity starting
it. What is wrong with letting a private sector entity be the
volunteer itself?
Senator Baucus. Right now, under current law, they don't
want to because of the liability.
Senator Crapo. That is the point I want to get at. Why
can't we simply eliminate the liability and allow an incentive
to be created?
Senator Baucus. Well, it raises lots of questions and I
don't think we have time to go into it in this hearing. It is
very complicated. When is a company cleaning up and when is it
remining? The point of this bill is cleanup.
This is a question we asked Governor Janklow and he said
that is a separate issue that should be dealt with later. Right
now, let's just clean up. If you want to have mining or
remining in conjunction with the cleanup, then maybe in a year
or two. But he just wants to get on with the cleanup and I
think that is very reasonable.
Senator Crapo. The Governor also indicated he was having a
whale of a time getting the private sector interested in
getting involved. That is the question I raised.
Senator Baucus. That is because of the current law, which
creates liability.
Mr. Fox. I think most of the States I am familiar with,
particularly in the West, have very active programs. You will
hear from some of them today. I fully expect that they will be
able to build some partnerships and cooperative agreements with
the private sector and we will be able to make progress.
Senator Crapo. Mr. Fox, I have a lot more questions, but I
am not going to ask them all of you.
I do have one for you, and I bet you know what it is on.
Mr. Fox. I am happy to spend as much time as you like on
this one, Mr. Chairman.
Senator Crapo. I am not going to make this a hearing on
TMDLs, but I can't resist this question.
I note in your testimony that you state that if the good
Samaritan legislation were passed, the EPA would need not less
than 3 years to finalize appropriate regulations after the bill
becomes law. Yet on TMDLs, you proposed the rules last August
and you are going to finish them, if you stay on the course you
have described, in about a week or two. How is it that on TMDLs
you can do it in 9 months or so and on this bill it is going to
take you 3 years?
Mr. Fox. In fact, on TMDLs, we spent more than 4 years on
it. That is the short answer. There was an enormous amount of
work that went into the proposal beforehand. We had a Federal
advisory committee for the better part of 2 years. We had a lot
of dialog with the States beforehand. So we really did use more
than the time allotted in this bill for TMDLs.
Senator Crapo. Let's get back to the 3-year timeframe. Why
does it take 3 years? To most people across the country, that
is mind-boggling, why it takes an agency 3 years to promulgate
rules and regulations on an issue that is of such importance as
this.
Mr. Fox. I would be happy to work with the committee on
trying to shorten that timeframe and I can spend more time with
my staff and then see what we can come up with here. It really
fundamentally comes down to budget issues. I can tell you
personally I have felt that this issue of mining has been
unaddressed by EPA for some time. I have had one heck of a time
trying to find the resources in a declining budget to try and
invest in these kinds of problem.
Again, I am happy to have that discussion. I think at a
minimum we are probably looking--between notice and comment and
the way we want to do these things--at closer to 2 years. If we
can bring that down simply because we would want to spend some
time figuring out what the regulations should be, put them out
in draft form, take public comment on that, and then ultimately
finalize them. It could be done in maybe a little under 2
years, but that is pretty standard for the regulatory process.
Senator Crapo. I may submit the other questions I have in
writing and would ask you to respond to those in writing.
Mr. Fox. Certainly.
Senator Crapo. I have no further questions.
Senator Baucus.
Senator Baucus. Just to clarify an earlier issue.
The original Western Governors' Association draft, and the
early draft of my bill, along with Senator Campbell, did
include mining companies as qualifying private parties. It was
in the bill. It was in my bill and it was in the Governor's
bill. But as the Western Governors and I and others began to
discuss this issue with the mining industry and others, it
became very murky and very unclear. In fact, it would require
safeguards to assure that a company that is already responsible
for a site and should clean up the site under current law
doesn't establish an affiliated company in order to use this
bill as a loophole. Everyone agrees that is a concern.
So we built safeguards, fire walls, into our bill and the
Western Governors' draft also built safeguards and fire walls
into their bill. Essentially, the language was taken from the
Surface Mine Reclamation Act, which it turns out has been quite
controversial. It got to the point where the mining industry
itself suggested to us that it might be simpler to drop the
provision in the bill and limit the bill to States, tribes, and
local governments.
So we took it out at the request of the mining industry
because it got awfully complicated. Now it appears that the
industry has changed its mind. The simple question is, Can one
establish safeguards and fire walls in a way that is not
unnecessarily complicated but doesn't prevent the goals that we
are trying to pursue here while at the same time allow a
private company to proceed to mine?
It is very difficult. I am going to just mention an example
of an earlier draft of the Western Governors' bill. There is a
clause that indicates whether or not a person is a remediating
party. Anybody who met that definition would not be a
remediating party.
It just gets awfully complicated to build that fire wall, a
fire wall everybody agrees should be there. As I said, that was
in an earlier draft of my bill and an earlier draft of the
Western Governors' bill. But both of us decided that it just
isn't worth it. It is too complicated. We need to just get on
with the cleanup with the good Samaritan.
As Governor Janklow said, maybe at a later time someone
might think of a good way to deal with this issue. But so far,
the majority have not found a clean enough way to deal with
this issue that would allow both objectives.
Senator Reid. Mr. Chairman.
Senator Crapo. Yes, Senator.
Senator Reid. I think that this is a perfect example of not
letting the perfect stand in the way of the good. I think this
is good legislation. It is imperfect, but it is good
legislation and it is badly needed. We need to be able to have
entities--there are court cases on bad things that have
happened when people have tried to step forward and do the
right thing. This legislation would correct that and I think
that we can in the future look to bringing in mining companies
and others. I think presently we need to move forward as
quickly as we can.
I would hope that we could have this subcommittee move on
this, the full committee, and really try to do something. The
only way we can do with legislation like this is to do it
unanimously. Send something to the House right away.
We talk about drawing regulations. We know it will take a
long time, and each month that goes by is more degradation of
our environment. While this legislation is not going to correct
all of it, it will lead to a lot of corrections, even in the
State of Nevada. In the State of Nevada, we don't have a lot of
water. So even though we have thousands and thousands of
abandoned mines, we are not troubled like you in Idaho and you
in Montana because you have a lot more water than we have. With
the growth taking place in Reno and Las Vegas, we are now
coming into contact with these abandoned mines. We need to be
able to have government do something about it.
I would hope that we would follow the leadership of our
ranking member. I have joined with him in sponsoring this
legislation. We should move this as quickly and as
expeditiously as we can.
Senator Crapo. Senator Reid and Senator Baucus, I
appreciate your comments. I don't disagree that we should not
let the perfect get in the way of the good.
In that context, though, it seems to me that--going back to
Governor Janklow's testimony--we should not let the argument
that we shouldn't let the perfect get in the way of the good
stop us from making good fixes to a bill as we move the process
forward. To simply use that argument to say that there is no
room for improvement of the legislation--and I know that is not
what you are saying because Senator Baucus has already said
that he is willing to work on making improvements to the bill.
I am suggesting that we identify areas where there is no
reason that we can't make improvements right now as we move
something good better. There is no reason not to make something
good much better if we can identify those ways and pass
forward.
The example that Governor Janklow gave was being a builder
or a carpenter. If someone were constructing a home and a very
good idea was brought forward to improve the structure of the
home, it would seem to me that they would incorporate that into
their plans. That is all that I am asking that we consider
here.
Any other questions for Mr. Fox?
[No response.]
Senator Crapo. Thank you very much, Mr. Fox.
Mr. Fox. I would like to offer one apology on the TMDL
front. I made a decision on Monday to publish the TMDL rule in
our docket so that it was available for public comment. It is
my understanding that the appropriate notifications to your
committee and staff did not take place. I apologize for that.
Senator Crapo. I hadn't even been made aware of that, but
we accept that apology. I am sure it was just an oversight.
Thank you.
Senator Crapo. Our third panel will be Ms. Katherine Kelly,
the administrator of Waste Management and Remediation Program
of the Idaho Division of Environmental Quality.
Ms. Kelly, we appreciate you being with us today. You have
heard already the instructions with regard to watching the
lights, but again, we have your written testimony and have
reviewed it and appreciate your being here with us. You may
proceed.
STATEMENT OF KATHERINE KELLY, ADMINISTRATOR, WASTE MANAGEMENT
AND REMEDIATION PROGRAM, IDAHO DIVISION OF ENVIRONMENTAL
QUALITY, BOISE, ID
Ms. Kelly. Thank you. I appreciate being invited here.
My name is Kate Kelly. I am the administrator of the Waste
Management and Remediation Program at the Idaho Division of
Environmental Quality. Included in the scope of my
responsibilities is the remediation of contaminated sites in
Idaho. A big chunk of that includes old mine sites. Those would
be the ones that were inactive.
We have worked very well with other State agencies and
Federal agencies to work toward addressing some of the worst
inactive mine problems in Idaho. Two examples of that would be
the Triumph Mine and the Blackbird Mine, which have had
successful cleanups, if not completed at least good steps made
toward those cleanups. We are real pleased about that.
We are also working toward putting in place enough plans
for several other major mining areas that would include the
Coeur d'Alene Basin and the phosphate mining district down in
southeastern Idaho. But the mining issues are very significant
to DEQ and to the State of Idaho in general. We are encouraged
by any step that can be taken on the Federal level to
facilitate these mine cleanups and to attempt to maximize
incentives and minimize disincentives for these kind of
cleanups. In that sense, I think that the State of Idaho is
supportive of the principle behind the good Samaritan
proposals, and this bill in particular.
On the other hand, we see some pretty serious flaws in the
bill, as currently written. Understanding that perfectionism is
something we are not going to achieve with this legislation or
with any legislation necessarily, there are perhaps a couple of
areas that are deserving of attention before this would move
forward. Certainly from the States' perspective these need to
be addressed. These have been touched on, but I will just cover
them very quickly.
This legislation as written creates a precedent of giving
EPA the authority to issue these permits. Admittedly, it does
say in the statute that there will be State concurrence in this
process, but we have found that this bill fails to acknowledge
the existing State authorities that are in place in the Clean
Water Act in terms of setting water quality standards and
issuing NPDES permits. Somehow this legislation needs to cross-
reference that and acknowledge that the States retain a major
say in what water quality requirements are going to be put in
place in any given permit.
To give EPA the authority to issue these permits in that
area without qualification just throws a wrench into a system
that already exists that has the State included in the process,
if not out in the front of the process. I don't think that that
is providing an inconsistency that isn't already inherent in
the system by giving States as much authority as they have
right now. But that authority needs to be recognized in the
bill.
The other major issue, which has also been touched on, is
the failure to reference CERCLA liabilities and failure to
coordinate it all with that process that exists there and the
liabilities that are created under CERCLA. In terms of making a
useful bill, it really is necessary to directly cross-reference
those and try to mimic, hopefully, some of the liabilities and
processes that are already existing in CERCLA.
As someone who works daily trying to achieve mine cleanups
and get in place systems that address mining issues, the
process and procedure that we need to go through in working
with other agencies and within our own agency to get in place a
cleanup--not to mention when you throw in responsible parties
and are negotiating with mining companies and so on--the
process needs to be streamlined as much as possible. So the
extent to which we can make sure that we are cross-referencing
CERCLA and existing authorities and that kind of thing and
hopefully not creating too many new standards would make this
bill something useful to us.
There are other issues with it that may go more toward a
fine-tuning, such as funding and the fact that it doesn't
really address the issue of Federal lands, which is a major
issue in Idaho. But given its narrow scope, it is acknowledged
that it cannot be all things to all people.
I would stress that we would hope that some of the major
flaws could be fixed before it moves forward.
Senator Crapo. Thank you very much, Ms. Kelly.
The first question I have is with regard to the question of
delegation to the States. Right now, under the Clean Water Act,
isn't the standard that the States have delegation generally in
that they operate the system?
Ms. Kelly. Depending on the State, yes. There is definitely
an ability for the State to have NPDES authorization. The State
also certifies under section 401 to ensure that State water
quality standards are met when any permit is issued. The State
plays a very big part of that process. It is more than just a
concurrence role. It is important.
Senator Crapo. Does the State in that process get involved
in issuing permits to itself or to lands operated by the State
or clean water permits relating to State operations?
Ms. Kelly. Yes.
Senator Crapo. Has anybody at any time ever raised the
question that that was inappropriate for the State to be
permitting itself in this situation?
Ms. Kelly. The State, as does a Federal agency, gets into
situations where it is both the regulated party and the
regulator. There are systems in place within the bureaucracy
that allow for that.
Senator Crapo. It is commonplace today under the Clean
Water Act, isn't it?
Ms. Kelly. Yes.
Senator Crapo. The reason I ask is that some concern has
been raised here in the hearing today that it would be
inappropriate for the States to be allowed to issue permits on
issues that they were involved in. To me, that seems to be a
very new direction, contrary to the precedent that we have
under the Clean Water Act. That is why I raised that issue with
you.
You also raised the question of whether the statute applies
to Federal lands. I know you were running out of time, so you
didn't get into that very much, but could you elaborate on
that?
Ms. Kelly. The statute is directed at governmental entities
doing cleanups and seems to be particularly focusing on State
cleanups, which is something we would obviously encourage and
that we are interested in.
One of the issues we face in Idaho--and I know other
Western States face it as well--is that many, many inactive
mine sites are on Federal land. Ironically, you run into the
situation where the EPA as the regulator is again regulating a
sister Federal agency as a Federal land management agency.
But because a lot of these--either the mine sites or
releases coming off the mine sites--are on Federal land, it
becomes a very big complex issue of negotiating with Federal
agencies in trying to get the Federal agency--both as the
responsible party and as the regulator in the case of EPA--to
agree to how to clean up things and what the process is going
to be and what standards are going to apply.
The legislation, as we have read it, eliminates the
possibility of applying this incentive to Federal cleanups on
Federal lands as well as State cleanups on State lands.
Senator Crapo. Isn't part of the reason because the Federal
Government cannot qualify as a good Samaritan on land that it
owns?
Ms. Kelly. That is correct because under CERCLA they would
be a responsible party.
Senator Crapo. So in Idaho, at least, two-thirds of the
land would be subject to--this statute would not be a source of
assistance.
Ms. Kelly. Yes.
Senator Crapo. And to follow the line of argument that was
brought up earlier, if we don't want the same agency issuing
the permits under this statute as is the agency which is the
good Samaritan, if somehow a Federal agency managing land in
Idaho were to be able to qualify somehow as a good Samaritan,
then the EPA would be the one issuing the permit to it and you
would have the Federal Government supervising the Federal
Government. Is that correct?
Ms. Kelly. That is correct.
Senator Crapo. I have no further questions.
Senator Baucus.
Senator Baucus. Mr. Chairman, I think this line of thought
is an interesting one. In fact, I think it is something we
should explore. I think it is a good point. Again, being
realistic, if we want to get this passed, the farther we go
down that road the more opposition we are going to have from
other groups around the country.
Ms. Kelly, I understand your other points. I think we
cleared up the liability reference--we will, anyway, when we
pick up this bill later. Your earlier point is basically one of
complexity and red tape and all those kinds of things that are
involved in the Clean Water Act and potentially under this
statute as well. But as I hear you and listen to the music as
well as the words, I don't hear a significant problem. Maybe to
state it differently, if these issues can be dealt with
reasonably, do you think this could help clean up some
abandoned mines in Idaho?
Ms. Kelly. Potentially. If we could get these
clarifications. But the caution with that response is that if
some of these clarifications aren't made, the bill and the
ensuing regulations and the ensuing EPA permits that could
potentially be issued and have to go into a concurrence process
could potentially detract a large amount of agency--both
Federal and State--time on more process rather than cleanup.
That is a big----
Senator Baucus. Right. Recognizing this is all voluntary--
that is, you don't have to comply if you don't want to--it is
up to the State to decide whether or not it wants to
participate.
Ms. Kelly. But I am just talking about implementing the
bill, just putting in place regulations and if someone applies
for one of these permits and the State needs to get involved
with EPA in doing that, there is the potential for----
Senator Baucus. But it is the State that applies for the
permit under the bill.
Ms. Kelly. Or a municipality.
Senator Baucus. Right, but it is their choice if they want
to get into this or not.
Ms. Kelly. Right.
Senator Baucus. You are saying that with some suggestions
maybe they would more likely get into it?
Ms. Kelly. Yes.
Senator Baucus. And that would help in Idaho?
Ms. Kelly. Potentially.
Senator Baucus. Well, why wouldn't it?
Ms. Kelly. Well, whether or not we decide to go down this
route, I guess.
Senator Baucus. But if Idaho were to decide to go down this
route, it would help clean up some abandoned sites?
Ms. Kelly. It could potentially.
Senator Baucus. And that would be good for Idaho?
Ms. Kelly. Absolutely.
Senator Baucus. Thank you.
Senator Crapo. We thank you very much for your
participation. Please relay my personal thanks, as the Senator
from Idaho, to the Idaho Division of Environmental Quality for
their concern on this bill and the issues they have raised. I
think they are very helpful. Thank you.
Ms. Kelly. Thank you.
Senator Crapo. We will now move to our fourth panel. And we
do have the name tags up there. First will be Mr. William
Goodhard, the Director of Reclamation and Environmental Affairs
of Echo Bay Mines. We welcome you here.
Second is Mr. Jack Lyman, executive director of the Idaho
Mining Association; Ms. Sara Kendall, from the Western
Organization of Resources Councils; and Mr. David Gerard of the
Political Economy Research Center.
To each of the witnesses, we will go in the order I have
just identified and will also remind you of the instructions.
Try to keep your eye on the lights up here.
Thank you very much.
STATEMENT OF WILLIAM GOODHARD, DIRECTOR OF RECLAMATION AND
ENVIRONMENTAL AFFAIRS, ECHO BAY MINES, ENGLEWOOD, CO, ON BEHALF
OF THE NATIONAL MINING ASSOCIATION
Mr. Goodhard. Chairman Crapo, Senator Baucus, my name is
Bill Goodhard and I appear here today on behalf of Echo Bay
Mines and the National Mining Association. My comments are
based on my 24 years of experience in the minerals industry.
For the last 12 years my responsibilities have included mine
reclamation and mine closure. The work has included negotiating
and working with local, State, and Federal agencies as well as
with watershed and stakeholder groups.
I have been personally involved in discussions along with
the Western Governors Association, which led to the
introduction of this bill. I appreciate the opportunity to
share my thoughts on the Abandoned and Inactive Mine Waste
Remediation Act, S. 1787.
First, I want to thank Senator Crapo for today's hearing
and providing an opportunity to hear from the mining industry
on an issue that the industry considers very important. I want
to thank Senator Baucus and his colleagues and cosponsors--
Senators Daschle, Campbell, and Reid--for advancing the debate
on good Samaritan issues with the introduction of the bill.
Although the introduction of the bill presents an
opportunity to open dialog, I must emphasize that the bill is a
good starting point and with a few key changes you can
accomplish the goal of facilitating AML cleanup and improving
water quality at more sites. It is my belief that the bill will
need to provide more meaningful liability relief to both
private and public sectors who might otherwise be in a position
to improve the environment in an inactive or abandoned mine to
accomplish the cleanups. Therefore, I do not believe the bill
in its current form will do much, if anything, to encourage
cleanup.
I say this from the ground level working up, not the policy
level working down.
My written comments provide a comprehensive list of areas I
believe need to be addressed in order to provide a more
meaningful piece of legislation. In the remainder of my time
today I will focus on the following areas: provide protection
to contractors and agents of remediating parties so that they
will be able to do the work on the sites without incurring
liability; allow the Federal, State, Indian tribes, and
municipalities protection for cleanup at the sites for which
they are not responsible; accept the concept of net
environmental gain in lieu of maximum extent practicable and
use existing site conditions to define baseline against which
net environmental gain will be measure; and provide liability
protection from Clean Water Act citizen lawsuits at sites where
cleanup activities resulted in incremental water quality
improvement where the activities may not meet the water quality
standards.
I believe these simple but critical changes can be made
while preserving the intent of the Clean Water Act. The good
Samaritan approach is a good tool that fosters voluntary
cleanups of abandoned and inactive mines resulting in positive
environmental gains and improved water quality. But the overall
goal of any good Samaritan legislation should be to address as
many of the sites as possible and provide equal opportunity for
all parties who wish to participate.
The assertion that significant progress can be made toward
solving the AML problem if the private sector were granted good
Samaritan liability relief is not conjectural. The private
sector has already helped to clean up numerous abandoned and
inactive mines throughout the West. Some of these private
sector efforts are documented in a study published in 1998 by
the National Mining Association entitled ``Reclaiming Inactive
and Abandoned Mine Lands: What Really is Happening?''
I would like to request that this study be placed in the
hearing record.
Senator Crapo. Without objection, that study will appear in
the record.
Mr. Goodhard. The NMA study presents compelling evidence
that given the right opportunity the private sector can play a
significant role in improving the environment at abandoned and
inactive mines. The NMA also documents that the State and
Federal agencies have claimed AML cleanups.
The definition of remediating parties must be expanded. The
first step in developing a good Samaritan liability relief
proposal must be founded on the clear understanding of the
universe of parties who may potentially undertake an AML
cleanup effort. The private sector, State regulatory agencies,
and Federal land management agencies have all performed AML
cleanup projects in the past.
It seems logical that under the proper circumstances, these
three stakeholder groups are likely to be the remediating
parties of the future. For example, State and Federal
Governments will contract with third parties to perform the
actual engineering and site construction work. Therefore, it is
important that liability relief extend to these entities in
addition to those already included in the bill, if we are
actually to achieve cleanup of sites.
The bill can be expanded to clarify that liability
protections that apply either to the State or Federal agency
also extend to the private sector contractors charged with
executing the on-the-ground work. These State and Federal
agencies will be able to keep cleanup costs down and cleanup
results optimized.
The focus to identify PRPs is inconsistent with the good
Samaritan concept. Most historic mining districts are comprised
of a complex mixture of private and public land.
I appreciate the opportunity to present to this committee
my views and the views of the National Mining Association. I
believe the bill serves to further the discussion regarding the
good Samaritan concept. However, as currently written, I
believe the bill will fall short of achieving its intended
goal: that of increasing voluntary cooperative efforts toward
cleaning up AMLs.
I wish to encourage this committee to work together to
revise the bill accordingly to provide a workable and
meaningful bill. It is my personal opinion that with a few
significant changes this could be a good bill for Federal and
State governments, Indian tribes, and municipalities. And with
more changes--such as less limitations on liability
protections--the class of remediating parties could be
broadened, which would allow for a much greater number of
voluntary water quality improvement projects.
Senator Crapo. Thank you very much, Mr. Goodhard. This
clock seems to work faster than in regular life.
Mr. Lyman, we appreciate you being here. Since you are from
Idaho, I will give you a special welcome. I appreciate you
coming.
STATEMENT OF JACK LYMAN, EXECUTIVE DIRECTOR, IDAHO MINING
ASSOCIATION, BOISE, ID
Mr. Lyman. Thank you, Mr. Chairman.
As a point of personal privilege, I would appreciate it if
the record would reflect that I appear here today on the eve of
my upcoming wedding.
[Laughter.]
Mr. Lyman. When I am done with this committee, I will be
returning to Idaho and traveling to Sun Valley, with the woman
I love, to be married on Saturday.
Senator Crapo. Congratulations.
Mr. Lyman. While this is a very important event in my life
today----
[Laughter.]
Mr. Lyman [continuing]. It isn't the most important in my
life this week.
Senator Crapo. And you would rather that we keep the
questions brief so you can catch a plane, right?
Mr. Lyman. Well, I am going to spend the afternoon here.
The Idaho Mining Association supports the remediation of
abandoned mines through a good Samaritan program. S. 1787,
however, is seriously flawed and will not achieve the desired
objective of remediating such areas. Idaho has a long history
of mining, and as a result the State has a large number of
abandoned mines. Our industry is aware of the challenges
presented by these abandoned mines and has worked closely with
the State of Idaho to address these challenges.
Good Samaritan legislation at the Federal level could be a
powerful and effective tool for addressing abandoned mines.
Legislation should be crafted that provides significant
incentives for parties to be engaged in remediation and that
removes existing obstacles. Unfortunately, S. 1787 doesn't
either.
We have numerous concerns with this bill. Today I will only
be able to highlight three.
First, the program is far too limited with respect to the
areas that qualify and the entities that may engage in
remediation. Second, the bill establishes a standard for water
quality that is so stringent as to be in and of itself a
disincentive to cleanup. Third, the bill contains other
disincentives, particularly the potential exposure to liability
under CERCLA.
The bill has an overly restrictive definition of abandoned
or inactive mine land. It excludes areas that are on CERCLA's
national priority list, areas that are proposed for the NPL,
and areas that are the subject of planned or ongoing response
or natural resource damage action. For example, the Coeur
d'Alene Basin in Idaho, where there is a heavy concentration of
abandoned mines, would be excluded from eligibility. This is an
area that would benefit from a good Good Samaritan program.
The bill also unduly restricts the parties that are
eligible to participate. In addition, the bill provides that a
remediating party cannot apply for a permit if the abandoned
mine is owned by that party. The legislation needs to be less
restrictive and the definition of remediating parties should
include private entities as well as governments, governmental
agents, and contractors.
Second, a remediation plan must demonstrate under the
proposed bill with reasonable certainty that it will result in
an improvement in water quality to the maximum extent
practicable, taking into consideration the resources available.
This is an overly stringent standard. We believe the standard
should instead be an improvement in net surface water quality.
Third, the bill contains other disincentives to
participation. It allows the party to remediate abandoned mines
without incurring liability under the Clean Water Act; the bill
fails to provide similar protection under CERCLA. I know there
was a discussion earlier today. We believe that a more explicit
release from liability under CERCLA would clarify that problem
instead of having everybody lawyer-up as they try to figure out
whether a section 402 permit provides that release from
liability. But as currently written, we are afraid that a
number of remediating parties will be fearful of the draconian
liability system and the fact that liability could attach to
any person who owned, operated, or otherwise controlled
activities at the sites.
Also, while CERCLA sites are not eligible for remediation,
there is no guarantee that today's non-CERCLA site won't be a
CERCLA site tomorrow. We see examples of that all the time in
Idaho. The ultimate disincentive to remediation under the bill
is that every remediating party could face the prospect of
being subject to CERCLA.
In closing, let me reiterate that we support the
remediation of abandoned mines through a good Samaritan
program. We believe that such legislation should apply to a
maximum number of areas, should have a broad definition of
remediating parties. It should provide clear and reasonable
remediation standards and it should provide incentives to
participation. S. 1787 fails on all three of these counts.
Thank you for the opportunity to testify today, Mr.
Chairman. We look forward to working with you and Senator
Baucus to craft legislation that will create meaningful and
effective good Samaritan programs.
Senator Crapo. Thank you very much, Mr. Lyman.
Ms. Kendall.
Senator Baucus. Mr. Chairman, I apologize to you and to the
witnesses, I have to leave.
Senator Crapo. I will ask your questions for you.
[Laughter.]
Senator Baucus. Here are the questions I want you to ask. I
want you to place in the record a letter from the Colorado
Mining Association in favor of the bill, a letter from the
Governor of Montana--a good man--in favor of the bill, a letter
from the Western States Water Council in favor of the bill, the
Association of Water Administrators in favor of the bill, the
Association of Metropolitan Sewage Agencies in favor, and the
Western Regional Council in favor of the bill. If you could put
those in the record, I would sure appreciate it.
Senator Crapo. Without objection, the referenced letters
will appear in the record.
Senator Baucus. I might also say, Mr. Chairman, that the
whole goal here is to reach consensus. I appreciate, Mr. Lyman,
some of the concerns you have, as well as the concerns of
others. I believe we have already addressed the Federal
liability issue. The chairman and I both said we can write an
amendment to deal with that one.
The other points you made, again, get down to the basic
question that Senator Reid said, ``Either we are going to reach
consensus on this or we are not.'' There are a lot of abandoned
mines out there waiting to be cleaned up. This water is still
flowing at this moment. I don't know at how many hundred
thousand sites in this country this is happening.
I just urge us to find that consensus, to work together.
Just the tone of witnesses in this hearing is that people want
to find a solution to this thing and want us to begin to
cleanup. I very much hope that we achieve that consensus so we
can get a bill passed. If there is no consensus, it is a
gridlock. It isn't going to happen.
Mr. Lyman. Senator Baucus, I hope you will include the
Idaho Mining Association among those witnesses who are looking
to reach consensus so that we can effectively get a program.
Senator Baucus. I do. That is why I was looking at you. I
urge you to be a part of that and I know you will.
Thank you again, Mr. Chairman. I deeply regret I have to
leave.
I want to also apologize for Mr. Gerard, who will be
speaking later, that I will not be able to hear his testimony.
But thanks, David, for coming.
Senator Crapo. I have read it and it is very good. You will
have that opportunity with the written testimony.
Senator Baucus. Thank you.
Senator Crapo. We are sorry that you are not able to be
here for the remainder of the hearing, but we will leave the
record open so you will be able to submit written questions as
well.
Ms. Kendall.
STATEMENT OF SARA KENDALL, WESTERN ORGANIZATION OF RESOURCE
COUNCILS, WASHINGTON, DC
Ms. Kendall. Thank you.
Good morning. My name is Sara Kendall and I am the
Washington, DC representative for the Western Organization of
Resource Councils, WORC.
WORC is an association of grassroots, community-based
organizations in six Western States, including Idaho and
Montana. We work primarily on environmental and family farm
agriculture issues and many of our members live and work in
communities impacted by mining and abandoned mine lands. We
would have preferred to have one of them here today, except for
the short notice of the hearing, because they probably know
more about these issues than I do.
Senator Crapo. I am sure you will represent them very well.
Ms. Kendall. Thank you.
I would like to start by commending Senator Baucus, Senator
Crapo, and the subcommittee for your interest in addressing the
persistent problem of pollution from abandoned mines, which are
one of the major sources of water pollution in Western States.
WORC believes that the primary obstacles that must be addressed
if abandoned mine sites are to be cleaned up are the lack of
sufficient funds for remediation and the minimal efforts
currently being made to track down responsible parties.
But that said, we also acknowledge that it is important for
States to have the authority to stretch the limited cleanup
funds they do have as far as possible. In addition, we
recognize that at some abandoned mine sites it would be
difficult to restore streams to the applicable water quality
standards due to technology constraints and other constraints.
For these reasons, we support the concept at the core of
Senator Baucus' legislation, which is reducing water quality
standards and liability for third parties who want to clean up
abandoned sites.
I would like to express WORC's appreciation for the changes
that Senator Baucus and the Western Governors' Association made
from earlier drafts of the legislation to address concerns
raised by our organization and others. Let me just list a few
of them: eliminating loopholes that would have potentially
allowed a responsible party to qualify as a good Samaritan,
requiring that revenue generated through the sale of minerals
be used for additional remediation, the 10-year sunset
provision, the more detailed requirements for an analysis of
baseline conditions, and limiting the bill to non-coal sites.
We view all these changes as positive developments that
will enhance abandoned mine remediation while protecting the
interests of communities and taxpayers. We continue to have
concerns, however, with a couple of the provisions in S. 1787.
First of all and primarily, we remain concerned that the best
efforts of good Samaritans will not always succeed in improving
water quality and in some cases may actually result in
increased pollution.
S. 1787 would not hold good Samaritans responsible for
leaving sites no worse off than they found them as long as they
stick to their remediation plan. We believe that if a good
Samaritan increases the pollution from a mine site they should
be held liable for returning the site to the condition in which
they found it.
Second, while we recognize that it would be difficult to
restore streams at some abandoned sites to applicable water
quality standards, and even though we support the good
Samaritan approach because it does allow States to maximize
their limited resources, there is a lot of concern among our
members that reducing water quality standards means that we are
writing these standards off with no realistic hope that they
will ever actually be met at these sites, particularly, I might
add, when proposals that would generate significant funding to
cleanup up abandoned hard rock sites are not going anywhere in
the Congress right now.
This concern is addressed to some extent by S. 1787's
requirement that EPA determine that the remediation plan will
result in improvement to water quality standards to the maximum
extent practicable.
I would like to read the rest of this section from the
bill. It does say that this must take into consideration the
resources available to the remediating party, but the end of
the sentence, which no one has stated this morning, is that it
says the resources available to the remediating party for the
proposed remediation activity. We don't see this as an
opportunity for the permitting agency to insist that more funds
be spent on the cleanup. But we do see it as an opportunity
with existing funds to look for ways to achieve a higher water
quality standard.
But we do think this concern could be better addressed
through the creation of an interactive process that involves
input from people in the impacted communities in order to
establish a cleanup goal. There are some mechanisms in place
under the Clean Water Act. We think perhaps a modified version
of the use attainability assessment might be one way to address
this concern.
In closing, we ask that you consider in addition to this
good Samaritan legislation a more comprehensive approach to the
problems associated with abandoned hard rock mines in the West.
Many States still need to inventory their abandoned mine sites
and set priorities for cleanup. Strategies need to be developed
to remediate the high priority sites. Funds are needed to
pursue responsible parties and, when necessary, to remediate
pollution problems.
As you and Senator Baucus said earlier, there are hundreds
of thousands of abandoned mine sites in the United States that
will cost billions of dollars to clean up. Without an adequate
funding source, no waiver of liability will even begin to
address this problem. Although S. 1787 has the potential to
facilitate the cleanup of a number of these sites, this
potential is very limited because the good Samaritan approach
is really just a stop gap measure.
We hope that the subcommittee will address the concerns we
have raised and move forward with S. 1787, but we urge you to
make it part of a more comprehensive approach to the abandoned
mine problem.
Thank you for the opportunity to testify.
Senator Crapo. Thank you very much.
Mr. Gerard.
STATEMENT OF DAVID GERARD, RESEARCH ASSOCIATE, POLITICAL
ECONOMY RESEARCH CENTER, BOZEMAN, MT
Mr. Gerard. Thank you.
My name is David Gerard and I am a research associate with
the Political Economy Research Center in Bozeman, MT. I am also
an adjunct professor in the Department of Agricultural
Economics and Economics at Montana State University.
I would like to commend Senator Baucus and his staff for
introducing the bill. The Clean Water Act liability has been an
impediment to abandoned mine cleanups for as long as I have
studied the mining industry.
With respect to the bill, I have two primary observations.
First, I am fairly optimistic about the help that this bill
will give to State abandoned mine lands programs. These
programs are very active in cleanup. In fact, oftentimes they
are the principal agents cleaning up abandoned mine sites. The
bill has the potential to harness tremendous environmental
gains at a very low cost.
Just on the types of sites Senator Baucus described, it is
clear that the State agencies would like more latitude on what
they can do with respect to the discharge. They don't want to
touch it now--they can't.
However, the second point is that this bill is not likely
to bring on any new non-governmental organizations as good
Samaritans. When you think of a good Samaritan, you don't think
of someone whose job it is, you think of someone you would
bring in to do it as a third party.
Firms and non-profits are not likely to become sources
primarily because there is a lot of uncertainty. I think CERCLA
liability has been plowed over and it is worth saying that
States simply aren't concerned about CERCLA liability. They are
immune, so it is not a concern to them and doesn't affect them.
Second, the owner-operator search I think is a source of
both cost and uncertainty. For instance, Superfund searches
have been very problematic. The Forest Service's Abandoned Mine
Lands Program has seen that the owner-operator search has
really been a confounding element in cleanup. As a result, it
is my contention that the search process is counter to the
spirit of the good Samaritan idea and it is just a pure waste
of resources to boot.
The third thing that hasn't been mentioned is the citizen
suit provision. I think that is a source of uncertainty. I
doubt I am the expert on the effect of the citizen suit. I am
not certain that this will affect State abandoned mine lands
programs, but it is undoubtedly a disincentive for any private
party to step forward as a good Samaritan.
And of course the uncertainty about whether Federal lands
is included is central. Abandoned mines are typically located
on either Federal or private lands. If Federal lands aren't
included, and private lands are all subject to owner-operator
searches and solvency requirements, then just getting the
program started will be a task in and of itself. In addition,
the EPA expects a 3-year lead time to develop the regulations.
So my basic conclusion is that as it stands I think the
bill is unlikely to substantially increase the number of sites
addressed. I think the sites that are being addressed will be
cleaned up to a greater extent. In Montana, we have a priority
list of about 380 sites and I think those sites are going to
get addressed right down the line. They have been prioritized,
they have a number on them, they will be able to clean them up,
and they will be able to clean them up to a greater extent
because of this legislation. So those sites are being addressed
and will be cleaned up, but it is unlikely that we will see new
parties step forward to do it.
But if the goal is to provide a fire wall for the State
abandoned mine land programs--which I think is a goal of the
bill--then I think this legislation can be simplified greatly
just by delegating that authority to the States. Then you
wouldn't have to deal with this permit process.
The final thing is that if it is the goal to induce new
participants, the legislation should address the many forms of
uncertainty I have described before. I think ultimately this
bill would have some substantial impacts and the water would be
cleaned up at some sites. If we want to address the problem on
the map where we have a lot of abandoned mine sites that need
to be cleaned up, then I think the bill needs to be amended to
address the forms of uncertainties to bring in new parties,
bring in new financing, bring in new sources of expertise.
Senator Crapo. Thank you very much, Mr. Gerard.
Let me start off first with you, Mr. Goodhard.
In your testimony, you indicated concern about the citizen
suits provisions in the legislation. Could you expand on that a
little bit?
Mr. Goodhard. The feeling is that if you don't clean up to
a recognized standard there could be an action brought by a
third party requiring the remediating party to go back and
improve that.
Senator Crapo. Ms. Kendall suggested that if a good
Samaritan actually caused a reduction in the water quality that
they should be subject to liability. Do you agree with that?
And could you address that concern?
Mr. Goodhard. I think that is addressed by the plan that is
used for remediation. It needs to be examined. There are
mechanisms for review and comments. A lot of the Clean Water
Act type of cleanups that can be done are removal of tailings
from a stream, rerouting of a stream across the tops of them,
instillation of a wetlands-type of remediation coming out of a
portal--all those just based on their merits have to have an
improvement.
Senator Crapo. So you can get a reasonable level of
certainty if you have decent permit requirements or if the
permit covers----
Mr. Goodhard. If it is covered in the remediating plan. If
the plan doesn't have sound science behind it, it needs to be
examined. By sound science, that includes that new and
advancing technologies that should be considered. But you have
to look at what the plan says. You just don't give a
remediating permit and let them go dig it up and see what they
have. Someone must investigate what they intend to do.
Senator Crapo. Ms. Kendall, in the context of your concern
that you raised, I want to be sure that I understand it
exactly.
Were you referring to a situation in which the remediating
party--in this case, the good Samaritan--followed the permit
requirements but somehow it didn't work out? Or were you
referring to a situation where the good Samaritan deviated from
the permit and did something inappropriate?
Ms. Kendall. Our understanding is that probably if the good
Samaritan follows the permit requirements, they are released
from liability, including citizen suit liabilities. So as long
as they stick to their plan, they should be released from
liability.
Senator Crapo. From all liability?
Ms. Kendall. Right.
The concern is that things don't always go according to
plan. But even if they do go according to plan, the outcomes
are not necessarily what was planned. Even with the best
engineering, sometimes that is the case. It would seem logical
that if you are just taking tailings out of a stream that that
is going to result in water quality improvements.
But for example--I am not going to pretend to be an expert
on the Penn Mine case in California, but that is one of the
cases where there were governmental agencies involved in the
cleanup and ended up being hauled into court and required to
get an NPDES permit.
What I do know about that case is limited, but what it
tells me is that these are not always clear-cut cases where you
can point to the evidence and say that this has definitely made
a positive improvement in the site. That, incidentally, is one
of the reasons why we think it is important that there be a
good baseline analysis done before the permit is granted so
that if a responsible party ever did come back on the scene and
someone was attempting to get them to clean up the site that
they wouldn't be able to say that they didn't cause the
problem, it was the good Samaritan.
In that case, who is liable and who is ever going to clean
that site up? I am no lawyer, but if I were the responsible
party, I think I could go to court and make a good case, that I
should not be required to do the cleanup.
Senator Crapo. You raise a good point.
Did your statement earlier about the fact that if they
followed the permit that they would be exempt from citizen
suits and liability----
Ms. Kendall. Right.
Senator Crapo. Is that your understanding of how the
proposed statute is written today? Or is that how you think it
should be?
Ms. Kendall. That is how it is written. We are saying that
we think that even if they do follow their plan, if the water
quality conditions at the site are made worse because of the
cleanup, we think the good Samaritan should be liable for at
least trying to return them to the original----
Senator Crapo. So you believe the proposed statute should
be amended in that context?
Ms. Kendall. Right.
Senator Crapo. Don't you think that is going to create a
significant disincentive for a good Samaritan? If they
volunteer to try to help, and they follow the permit that the
Government said was appropriate to the tee, and it didn't work,
why should they then be liable for trying to help by doing
something that the Government agreed was a good idea?
Ms. Kendall. That is definitely a concern, and we want
these cleanups to happen. I think part of our analysis in this
is that if you have a governmental entity that is cleaning up
the site it is because for one reason or another they believe
there needs to be a water quality improvement on that body of
water.
Hopefully they are looking for the maximum extent
practicable. They want higher standards and there would be a
commitment to at least leaving it as they found it, or no worse
off. Even if that does mean added liability.
Senator Crapo. Back to you Mr. Goodhard, you indicated that
you believe that the PRP search is problematic. I agree with
you on that.
Do you think that--particularly as we try to expand this,
if we do, to include private parties--that it is the
responsibility of a good Samaritan to have to do a PRP search?
Mr. Goodhard. No, I disagree with having to do that.
Basically there is nothing in the good Samaritan provision that
precludes any of the agencies from enforcing other elements of
the Clean Water Act. If there is a potential responsible party
out there, they are the ones best to identify and go after that
party.
Senator Crapo. Thank you.
Mr. Lyman, I want to talk with you about the standard of
liability.
You have indicated that the standard is so high that it
could be a deterrent to those who want to get involved. We
discussed this a little earlier. I think in Governor Janklow's
testimony, he indicated that even if you couldn't get 100
percent cure, he would like to get some cure. EPA has testified
that they just want to be sure that that is the maximum extent
practicable.
I just want to get your thoughts on what you think the
impact would be to prospective good Samaritans if the standard
they have to meet is to the maximum extent practicable.
Mr. Lyman. I think it acts as a disincentive. I continue to
go back and think--let's return to the title of this bill, the
Good Samaritan. What if the traveler from Samaria, when he came
upon the beaten and robbed man, had worried about whether or
not a section 402 permit released him from liability, whether
or not he had to do a search of potentially responsible
parties, and then had to worry about whether the care he gave
this poor beaten and robbed man was the maximum extent
practicable given the resources he had available to him?
What we are trying to do, it seems to me, is to encourage
organizations--be they State, municipal, or private--to go in
and make environmental improvements. Why do we continue to look
for ways to throw road blocks in their way? Why do we say that
if there is 100 of something coming out of this and you can
reduce it to 50, that is not good enough unless you drop it to
10?
I will tell you, Senator Crapo--and we have been involved
in this before--I will go before the Joint Finance and
Appropriation Committee before the Idaho Legislature and tell
them to stay away from these kinds of programs when they are
looking to appropriating $100,000, $200,000, or $300,000 out of
an abandoned mine land fund that we helped create if, in fact,
those are the kinds of standards and this CERCLA thing isn't
resolved. I don't think they have any business putting their
money into it.
I think part of that problem is that standard--the maximum
extent practicable for the resources that have been identified
for that project.
Senator Crapo. Let me shift to Ms. Kendall for just a
minute because she gave a clarification on this I want to
pursue and then come back and see if there is a solution here.
If I understood you, Ms. Kendall, you indicated reading the
entire sentence that your interpretation of this provision was
that the permitting agency did not get to make the decision
about what the maximum extent practicable was with regard to
all the resources of the party, but only with regard to those
resources the party was willing to commit. Let me give an
example and see if I am understanding this right.
If a fund, such as that which Mr. Lyman identified here,
were created to help remediate mines, and the decision of the
manager of the fund was that we were going to use $100,000 out
of this fund to remediate as much as we can at a certain
abandoned mine site, that the agency supervising this would not
be able to say that they should have allocated more of that
fund to this? They would be able only to say that given the
fact that we have the $100,000 from this source, let's see what
the best bang for the buck is for that $100,000.
Is that what you are saying you believe this says?
Ms. Kendall. I am assuming that they are fully expending
the resources from the fund on remediation in general, if not
on one site. Yes, we do see this as an opportunity for the
permitting agency, with input from the public and others, to
try to leverage a higher standard with the funds that are
available and not leverage more funds for the specific cleanup.
Senator Crapo. I didn't understand Mr. Fox when he
testified for the EPA to be reading it that way. Would you
disagree if we clarified this in the statute so that it was
very clear so that the decision of the amount of funds that
would be made available for a particular cleanup project is a
decision left to the good Samaritan that is willing to step
forward and that the EPA--or the States if we have delegation,
or whatever--would not be able to go behind that decision and
say that they made the wrong decision about how many dollars
provided and not authorize the permit?
Ms. Kendall. I think the language is very clear, but I
don't think our organization would have an objection to that.
Senator Crapo. Mr. Lyman, if that were the way we defined
it so that this fund that you have helped create in the State
of Idaho would not be asked whether they could or would submit
more, but whoever manages that fund gets to decide how much of
that fund is put forward in a good Samaritan effort in a given
project, would that then clear up the problem of whether we
should try to use those dollars to the maximum extent
practicable in terms of cleanup?
I guess what I am asking is, Would the standard then be
problematic, or would we still need to review the standard?
Mr. Lyman. It certainly helps. As the language reads today,
it says the resources available to the party for the activity.
I don't know who is going to define what resources are
available.
Senator Crapo. I never read it that way, either. But I can
see how Ms. Kendall reads it that way. But if we clarify that
so that----
Mr. Lyman. If we clarify that, then I get a concern because
I envision a circumstance--for example under the abandoned mine
fund that we have in Idaho--it now has about $300,000 in it.
What possible incentive is there that DEQ isn't going to go out
on this cleanup and do the best job they can? They are not
looking for a way to spend $100,000 and get just a marginal
improvement if they could get more.
But when we impose this kind of language--maximum extent
practicable--then all of a sudden we have all kinds of
problems. You end up with public hearings, you end up with
citizen suits, you end up with Federal agencies saying that you
can do better with the money that you have, and nothing
happens.
I understand why if you are going to provide this kind of
opportunity that you want to have some kind of standard to make
sure it is used appropriately, but that kind of standard raises
the bar so high that I am not sure that anybody can with
confidence develop a plan that they feel comfortable they can
accomplish with the money they have set aside. Once they take a
step down that road--I now have this group over here which
wants to make sure I did a really good job because if I don't
improve the water quality, they are going to come in and create
more problems.
What is the reason to take the first step?
Senator Crapo. I see your point.
I want to shift to another issue, and in laying the
groundwork for that, If some of the corrections we have talked
about today were made--the liability concerns and the issues
you have raised were resolved--and private parties were
authorized to come forward as good Samaritans, do you believe
that in the mining industry there would be good Samaritans who
would step forward and try to help remediate mines?
Mr. Lyman. There is no question in my mind. As I mentioned
in my testimony, we have numerous concerns about the bill and I
would be glad to provide those in writing back to the committee
as you go through this process.
I had an example where a company went bankrupt in the
Stidnight Region. I ended up with a CEO who called two other
CEOs who suggested getting some trucks and equipment down there
to haul some of those barrels out because winter was about
ready to set and they didn't want that stuff to go in. They all
three checked with their attorneys and nobody sent a truck in.
They didn't are.
I have companies that want to do this. They may want to do
it for good community relations. They may want to do it to
assist in meeting a TMDL for a current operation they have. A
lot of today's mining in Idaho is taking place where mining
took place 100 years ago.
There are a lot of opportunities. Yes, I think they would
step up to the plate.
Senator Crapo. Mr. Goodhard, do you agree that in the
mining community good Samaritans would step forward if these
issues were resolved?
Mr. Goodhard. I agree with that statement. But I also feel
that you have all the way from a bill that is somewhat limited
now--and by limited, it doesn't give liability protection to
contractors or agents, the people that actually do the work. If
you take that step, you will broaden the people that will use
it. If you address the CERCLA issues, you will broaden it more.
As you broaden the scope of the stakeholders that can
participate, you have more likelihood that those people are
going to find sites and react to those sites as good
Samaritans. I firmly believe that the more you broaden the
language the more encouragement there is and something can
happen.
Senator Crapo. The reason I ask these questions is that--as
a number of groups have pointed out--part of the problem is
that we don't have enough resources made available. It seems to
me that this issue of trying to broaden the availability of
opportunity for good Samaritans to step forward is a tremendous
source of resources from the private sector to address this
issue.
Ms. Kendall, I would like to indicate to you that your plea
for more funding is not falling on deaf ears up here. We have
legislation in another arena on the TMDLs where we have put
$500 million, I think, into section 319 and $250 million into
section 106. It is my understanding that those resources could
be used for abandoned mine cleanup or other cleanup as
necessary. It wouldn't all be that way.
That is just one area we are looking, but we do recognize
that need.
I don't remember your testimony exactly, but did you
testify or does your association take a position against
expansion of opportunity in this legislation for private
parties to be good Samaritans?
Ms. Kendall. As Senator Baucus mentioned earlier, it was
actually the National Mining Association that had advocated
removing private parties from the scope of the bill. We do have
three concerns--and we don't have any problem with the idea of
private parties, industry, or other private companies being a
good Samaritan--but we think there are three things, and two of
them have been mentioned.
One is that responsible parties should not be allowed to be
good Samaritans. This does get into some very dicey issues of
ownership and control language and that sort of thing, which
was one of the things that led Senator Baucus to take it out of
the bill. So that does have to be addressed. Whether that can
be addressed in the timeframe that you want to move a bill to
the satisfaction of both sides here is----
Senator Crapo. Let me ask you a question in that context,
the context of whether a responsible party should be allowed to
be a good Samaritan.
I can understand the concern that a responsible party
should not get exemption from liability by qualifying as a good
Samaritan. No argument there. But if the statute were written
properly so that a responsible party who is, I assume,
litigating--which is what happens now under Superfund and other
statutes--or negotiating or working with the State to try to
deal with their liabilities--if that responsibility party were
willing to start putting some money toward improving the water
quality as a volunteer, why not? Why not, assuming they don't
get exempted from liability, let them step up and start
cleaning up the water?
Ms. Kendall. Couldn't they do that in the context of an
NPDES permit?
Senator Crapo. I don't know. I am not enough of an expert
on this to know.
Ms. Kendall. I am not sure that I am, either. I am not sure
that I see the benefit to the responsible party.
Senator Crapo. In other words, they may already be able to
do so?
Ms. Kendall. It seems to me that the reason they would want
to get a good Samaritan permit is to qualify for a reduced
standard and waiver of liability. If you are not going to
reduce the standard or waive the liability----
Senator Crapo. Right. I see your point.
So they could get an NPDES permit, but in that process of
getting one, not every PRP agrees that they are liable for
everything.
Ms. Kendall. So maybe they are arguing that they are not
fully liable?
Senator Crapo. There may be a PRP who is saying that they
have a portion of this liability and I am not agreeing with the
EPA or whoever else it is that I have all of this or that, but
while we are fighting over that and you are not giving me the
permit, can I be a volunteer and start helping things out?
Ms. Kendall. When we actually starting talking about this
issue, one of the ideas we proposed to the Western Governors'
Association was to keep the current cleanup standard but allow
a longer period of time or phase-in or that sort of thing. I
think we would be willing to talk about these ideas, but I hope
you appreciate how they get really messy really fast.
Senator Crapo. Yes, I do.
Ms. Kendall. Let me mention the two other points we are
concerned about with allowing private parties.
The second is this remining issue. We have no problem with
the idea that minerals or other resources from a good Samaritan
site would be developed, but we think this is a voluntary
program for ``good Samaritans'' and they shouldn't profit from
the development of one of these sites. Therefore, the proceeds
from those sites should be redirected back into remediation
either of this site to a higher standard or to another site.
And the third issue, which actually just jumped out at me
as I was looking at the bill before this hearing--there is a
provision in the bill that says that you can qualify for a good
Samaritan permit for a site that you own if you bought it for
the purposes of remediating the site. I think when we start to
get into allowing private parties to be good Samaritans and
permitees that it raises lots of issues as to whether they
would be allowed to own the site.
If you are going to be a good Samaritan on a site you own,
I think it is very questionable that you are ever really going
to try to meet Clean Water Act standards. When would that ever
really happen if you are exempting the owner of the property?
Senator Crapo. When would somebody buy property in order to be
a good Samaritan?
Ms. Kendall. I was looking over the list of examples that
the Western Governors' Association put together of some
prospective good Samaritan sites, and I noted that one of them
in California--I think it was the State--the State was
proposing to purchase a site from Alta Gold and they would do
some remediation and turn it into an off-road vehicle park. So
they wouldn't be reaching Clean Water Act standards, but they
wanted to purchase the site for that use.
Senator Crapo. So it seems to me that if the objective is
to clean the water up--you are saying that you don't want to
create a system in which we achieve a lower standard and say
that is good enough?
Ms. Kendall. Well, I think with this specific case--yes,
that is definitely true. With the case of the land purchase, we
would be concerned. Why would a mining company purchase a site
for cleanup only and not with the intention of mining it
someday to profit?
Senator Crapo. If they had good lawyers, I don't think they
would.
[Laughter.]
Ms. Kendall. Not under current law.
Senator Crapo. You have peaked my interest on remining, so
I want to ask you another question. I am going to get to you,
Mr. Gerard, so don't worry.
You indicated--and I think correctly so--it doesn't really
sound like a good Samaritan if somebody wants to profit from
the operation. I understand that and agree with the point you
are making.
On the other hand, if our objective is to clean the water,
and an incentive can be provided to someone--so maybe they are
not a good Samaritan, they are a businessperson--and we can say
to this businessperson that they can make some money cleaning
up the site and they will achieve a higher standard of water
quality where we have a lower standard and we will let them
benefit from it.
What is the harm in allowing that? If our objective is to
have water cleanup and we are not going to have any otherwise,
what is the harm in allowing someone to profit from cleaning up
the site if they are willing to put their resources into it as
a business enterprise?
Ms. Kendall. We think they should meet Clean Water Act
water quality standards and get an NPDES permit. I will also
add--I am speaking a little beyond the balance of my expertise
here--there is a provision called the use attainability
assessment process in the Clean Water Act that allows for
variances from water quality standards. This process has been
criticized as expensive and very time-consuming and
frustrating, so we are not holding it out there as an ideal.
But perhaps in the case that you are talking about might
have some merit in our view is that the good Samaritan could
claim credibly that the site could not be cleaned up for some
technological reason, that they could not meet Clean Water Act
standards. If they can not meet the standard, we think there
shouldn't be a profit. The money should go back into meeting
that standard. If they can meet the standard, then they can get
an NPDES permit and they mine at a profit, and that is great.
Senator Crapo. Mr. Gerard, let me ask you the same
question.
I know you may not profess to be an expert on this issue,
but let's assume a hypothetical. Let's assume an abandoned mine
site on Federal land--which is a very common thing in Idaho--
and let's assume that there are no other statutory barriers,
that we fixed the statute so that Federal land qualifies and
that a private party could remediate, but nobody is stepping up
to the bar to volunteer.
But one entity--let's say it is a mining company--comes
forward and says that they don't have resources just to
volunteer, but this site could be operated as a mineral-
producing site and that if they are allowed to use the profits
of that to clean up the mine as well as have a profit margin,
they would be willing to step in as a business enterprise and
clean up the water quality.
Let's assume that they can't clean it up to Clean Water Act
standards, but they can get a significant improvement. Wouldn't
that be a proper way to get resources put toward cleaning up
that water?
Mr. Gerard. I think that is correct. As an economist, you
ask what is really happening here. Someone is making a profit.
Is that bad? Maybe. Is the environmental quality higher? Maybe.
But there is a whole laundry list of concerns. I think the
reason this got struck is that it just brought in such a host
of other issues that remining got dropped. But in principle, if
you are concerned about environmental quality, then I don't
understand why you should be concerned that someone is making a
profit along the way.
Senator Crapo. If I understand your testimony correctly,
the thrust of it is that this bill, as written, will provide
some relief for States. But as to Federal or private entities,
there really isn't much likely that it will result in any
activity in terms of volunteerism to improve the water quality.
Is that a fair statement?
Mr. Gerard. I think that is precisely correct. The types of
sites that Senator Baucus identified--Alta Mine--you talk to
those guys about what they are doing and they are doing
something, but they can't do everything that they should be
able to do.
Senator Crapo. With regard to property they own?
Mr. Gerard. With regard to the State abandoned mines
cleanup. They are already working on these sites. Why can't
they affect a discharge that will result in a higher water
quality? The answer is that they don't affect it because they
don't want to be subject to meeting the full standards of the
Clean Water Act. So just by loosening that liability there, the
State will make marked improvements in the sites that they are
addressing.
But concerns have been brought up today with respect to
CERCLA liability, with respect to the ownership search, with
respect to the maximum extent practicable, with respect to
citizen suits. These things act as a disincentive, whether
attorneys say that it is clear that CERCLA is--``if you just
read this line here, it is clear that CERCLA is not applicable
here.'' If you are a mining company, maybe you don't believe
that. As long as it is the perception of the people who may
step up as good Samaritans that there are these disincentives
built in, there is a possibility of CERCLA liability, there is
a possibility of citizen suit, you are not going to see these
people step up.
If you are a non-profit and you want to apply for a
$100,000 grant to improve water quality in a municipality, what
is the likelihood that that grant will be approved if there is
uncertainty as to whether the permit will be issued in the
first place? If it is the case that 20 to 30 percent of it will
go to an ownership search, or you have to budget 10 percent of
it to determine solvency of the operator--these are the kinds
of things that will confound true good Samaritan cleanups.
Again, however, State abandoned mine lands programs will truly
benefit under this, in my opinion.
Senator Crapo. You mentioned the owner-operator search
again. I think I recall that in your written testimony you had
some statistics about just how that works and what kind of cost
it imposes. Could you review that?
Mr. Gerard. I don't have the statistics right in front of
me, but basically the idea was that the Forest Service, on
their properties--and this bill doesn't apply to the Forest
Service as it stands now--but they are looking for properties
to clean up and they have a budget for that. What happened was
that they concentrated on properties where there was no owner,
so they had about 335 sites identified as sites where there
were water quality problems and basically needed remediation.
The Inspector General reviewed that in 1996. The Department
of Agriculture Inspector General basically said that because
they were concentrating onsites where there is no identifiable
owner-
operator and the Forest Service is the only responsible party,
they have only been able to clean up 16 over the course of the
7 or 8 years. So the Forest Service has this list of 335
priority sites and they cleaned up 16.
They also went out and conducted PRP searches to try to
find people. They did indeed find people and they found people
and billed them $42 million for cleanup efforts. What in fact
happened was that no one paid up so they got about $2 million,
most of it from one party.
So the question you have to ask with respect to the good
Samaritan legislation is, Why put barriers in place with this
owner-
operator search when we can have cleanup today? If I am a
private organization and I want to clean up today, that does
not exonerate the owner-operator from liability under the Clean
Water Act. They are still responsible. But we can clean up the
Alta Mine today as opposed to getting the owner-operator to pay
up someday.
Senator Crapo. There is a principle called ``polluter
pays'' which we hear a lot about. I don't think there is a lot
of disagreement in society in the United States with the
principle that if there is an identifiable polluter that caused
the pollution that, all other things being equal, they are
liable under current Federal law for the cleanup.
Sometimes, it seems to me, though, that we spend so much
time focusing on making sure we find that polluter that we
spend undue resources seeking out the polluter when we have
somebody standing ready to help remediate the problem with the
environment.
From an economic perspective, I recognize that we will need
to have resources put in to identifying responsible parties.
But is there any reason that you can see--in principle or
economics--that would justify putting the burden of trying to
identify the responsible parties on a person or entity that
would be willing to step up as a good Samaritan?
Mr. Gerard. As a good Samaritan, no, because the whole
concept is that they want it cleaned up and they are willing to
put their finances down to do it. If I am a private party,
maybe I can put a lien on the property, I am not certain. But
if I am a State, certainly, and I start doing this--and I think
there might be a responsible party here--why can't the State
later sue to recover to those damages? We start down the path
of cleaning it up now and it gets cleaned up today as opposed
to maybe getting cleaned up later.
I think there are concerns that people will try to duck out
of their responsibility, but the bill as written clearly states
that nothing absolves responsible parties from their existing
liability in the Clean Water Act. I don't see why a good
Samaritan who wants to put their resources toward cleanup
should have to spend one penny trying to identify an owner-
operator or trying to determine the solvency of that owner-
operator.
Senator Crapo. My last question I want to ask of both Mr.
Lyman and Mr. Goodhard. I realize it is possible that neither
of you will be able to answer this, but it relates to the issue
raised earlier that it has been stated here that the National
Mining Association requested that private parties be taken out
of this legislation.
You are here representing the National Mining Association,
Mr. Goodhard, although I realize you may not have been a part
of whatever took place in previous negotiations on the bill.
Mr. Lyman, the Idaho Mining Association is at least an
affiliate of the National Mining Association.
I am going to ask both of you if have any knowledge of
whether that is in fact what took place. If so, why?
Mr. Lyman. Mr. Chairman, I was notified of that yesterday
at the NMA offices. While we have followed this issue in Idaho
over the last several years as this effort with the Western
Governors and the other groups proceeded, it wasn't one of our
priority issues. So while I followed it, I wasn't deeply
involved in it.
As I was told yesterday of the issue Senator Baucus
mentioned to create all these fire walls and come up with all
this owner-
operator affiliate language, it got to be quite a morass. I
believe that our association could support the development of
that kind of language to allow private parties to be good
Samaritans under this bill, or would at least be willing to
participate in another effort to try to come up with that
language.
But again, as we have heard from David, at some point we
become bogged down in process and in an attempt to write page
after page after page of owner-affiliate and all kinds of other
language on the off-chance that some potentially responsible
party might try and find a loophole to skip through, then we
lose a tremendous opportunity.
In addition, I don't believe that that effort by the
Western Governors and other groups ever included a more
explicit release from CERCLA liability so that there was
perhaps less incentive from the industry, given the fact that
even if we could jump through all these hoops on the owner-
operator-affiliate kind of process, if we still don't have
explicit CERCLA release, then what does it matter? Go ahead and
pull us out of the bill and go to the States.
Maybe merging those two together might resolve that in a
way where you will be able to have the industry come up with
language on that owner-operator-affiliate kind of thing if we
had explicit release from CERCLA.
Senator Crapo. Mr. Goodhard.
Mr. Goodhard. I was involved in parts of the discussions at
that time. The concept, as initially proposed by the Western
Governors' Association is the ownership and control language
that was so incredibly one-sided that the industry took great
exception to that. We spent a lot of time and effort to bring
the bill up to the point that that could be left out. At that
point, we still wanted to be participating parties, but it was
still a very contentious issue, very hard to resolve.
In the interest of trying to move the concept forward, we
withdrew at that time with the understanding that there would
be further discussions later on. That has never happened.
Senator Crapo. Let me ask the two of you--in fact, anyone
on the panel who would like to pitch in on this is free to do
so--if we were to expand--I am referring to issue of this
complication of trying to close every loophole if we allow
private parties to be good Samaritans.
Why couldn't we simply have a very straightforward phrase--
maybe even one sentence--that said that if a PRP or responsible
party is identified that anything they may have done as a good
Samaritan does not exempt them from a liability for the
cleanup? In other words----
Mr. Goodhard. We actually proposed language similar to that
where it would be a self-certification that the company and its
subsidiaries that is acting as a private party certifies that
they have not had an interest in the abandoned or inactive
property. Recognizing the other provisions of the Clean Water
Act that if it comes to light not only have you fraudulently
entered into the good Samaritan program, you also still have
your preexisting Clean Water Act responsibilities.
There is nothing in the bill that precludes any of the
other portions of the Clean Water Act.
Senator Crapo. And that proposal was rejected?
Mr. Goodhard. I am not sure how far along that went. But I
did see language and I know it was submitted. I was not
involved at that time.
Senator Crapo. Any other comments from the panel on that?
[No response.]
Senator Crapo. I know it has gone way past the time we had
allocated for the hearing, but I feel that the information
brought forward has been very helpful. I want to again extend
my thanks to each of you.
We are going to leave the record open for 10 days to
receive written testimony from any groups that are interested
in submitting testimony on this issue. We will be trying to
find a way to move forward some good legislation. I didn't say
perfect legislation, but some good legislation. We may have
some disagreements on that as we move along, but I think we
have identified a lot of areas where we will be able to find
consensus.
With that, and again with my thanks to all of you for the
effort you have put into this, this hearing is adjourned.
[Whereupon, at 12:42 p.m., the subcommittee was adjourned
to reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Governor William J. Janklow, State of South Dakota
Mr. Chairman, and members of the committee, thank you for the
opportunity to appear before you today to discuss an issue of great
importance to Western States--the cleanup of abandoned or inactive
mines. Abandoned or inactive mines are responsible for many of the
greatest threats and impairments to water quality throughout the
Western United States. Thousands of stream miles are severely impacted
by drainage and runoff from these mines, often for which a responsible
party is unidentifiable or not economically viable. At least 400,000
abandoned or inactive mine sites occur in the West.
Regulatory approaches to address the environmental impacts of
abandoned or inactive mines are often fraught with difficulties,
starting with the challenge of identifying legally responsible and
financially viable parties for particular impacted sites. Mine
operators responsible for conditions at a site may be long gone. The
land and mineral ownership patterns in mining districts are extremely
complex and highly differentiated. The surface and mineral estates at
mine sites are often severed, and water rights may exist for mine
drainage. It is not uncommon for there to be dozens of parties with
partial ownership or operational histories associated with a given
site.
In view of the impacts on water quality caused by these abandoned
mines and the difficulties in identifying responsible parties to
remediate the sites, states are very interested in undertaking and
encouraging voluntary ``Good Samaritan'' remediation initiatives, i.e.,
cleanup efforts by states or other third parties who are not legally
responsible for the existing conditions at a site. However, states
currently are dissuaded from taking measures to clean up the mines due
to an overwhelming disincentive in the Clean Water Act. The bill before
you would amend the Act in effort to reduce those disincentives.
I would like to offer you an analogy to the situation states are
experiencing with our attempts to clean up the runoff from these
abandoned mines. Imagine, if you will, a neighborhood, perhaps your own
neighborhood, with houses and yards, trees lining the street, kids and
dogs playing, families barbequing. Now imagine a house, perhaps next
door to your own house, that has been abandoned. The paint on the
outside walls has long worn off. The windows are all broken out. The
front door flops open and shut in the wind. The yard has not been mowed
or kept, and has years of debris collected in its high weeds. Add an
old refrigerator to the broken down front porch and a beat up old car
in the side yard. It is an old house that has been abandoned, and it is
in your neighborhood.
Now, let's just say you have had enough of the eyesore. It is
impacting the value of your home; it is a safety and health hazard for
the kids in the neighborhood curious to explore it; and it is a
constant source of debris blowing into your yard. You decide to take
some actions to clean up the house--to mow the lawn and pick up the
trash. Move the fridge inside. Nail the door shut and board the
windows. Actions that do not cost you much, but that result in
significant improvements.
Now, imagine that after you have completed these modest
improvements someone in your community takes you to court claiming that
the actions you have taken make you liable to bring the house up to
code and up to the covenants of the neighborhood, and make you
responsible for maintaining the condition of the property indefinitely
into the future. And they win! You had nothing to do with the disrepair
that the abandoned house had fallen into, and yet, because you made an
effort to clean up some of the mess, you are now legally obligated for
very costly renovation and maintenance of the house.
This is the situation states find themselves in with regard to
their efforts to clean up abandoned or inactive mines. To date,
Environmental Protection Agency (EPA) policy and some case law have
viewed abandoned or inactive mined land drainage and runoff as problems
that must be addressed under the section 402 National Pollutant
Discharge Elimination System (NPDES) permit program. One such example
involves the Penn Mine in California, an abandoned copper and zinc
mine. A portion of the Penn Mine property was acquired by the East Bay
Municipal Utility District to construct a reservoir. Subsequently, the
utility and a California Regional Water Quality Control Board
constructed a facility to contain toxic runoff from the site and
minimize its impact on downstream waters. Neither the municipal utility
nor the Regional Board had any previous involvement in the mining
operation but were at the site for the purpose of cleaning it up.
Because the new facility did not eliminate all discharge to downstream
waters, the municipal utility and the regional board were later sued by
an environmental group alleging that the facility was discharging
pollutants without an NPDES permit. This position was upheld through
the 9th Circuit Court of Appeals, with the result that costly further
cleanup requirements were imposed on the municipal utility and the
regional board. This particular example has had a severe chilling
effect on the interest of other ``Good Samaritans'' in pursuing similar
cleanup efforts in several Western states.
States have found that there are many instances where a reasonable
investment in a cleanup project at an abandoned mine site will result
in substantial improvement in water quality, even though all impacts
from the site will not be eliminated. However, there is currently no
provision in the Clean Water Act which protects a remediating agency--
or ``Good Samaritan'' who does not otherwise have liability for
abandoned or inactive mine sites, and that attempts to improve the
conditions at these sites, from becoming legally responsible, under
section 301(a) and section 402 of the Clean Water Act, for any
continuing discharges from the mined land after completion of a cleanup
project. This potential liability is an overwhelming disincentive to
voluntary remedial activities financed or conducted by public entities
to address the serious problems associated with abandoned or inactive
mined lands.
The Western states have found a high degree of interest and
willingness on the part of Federal, State and local agencies, volunteer
organizations and private parties to work together toward solutions to
the multi-faceted problems commonly found on inactive mined lands if an
effective Good Samaritan provision were adopted. Consequently, since
1994 Western states have endeavored to develop a proposal for amending
the Clean Water Act, to eliminate the current disincentives that exist
in the Act to restore and protect water quality within watersheds
through Good Samaritan cleanups of abandoned or inactive mines. From
the outset, this has been a truly bipartisan effort, and an effort in
which the states have sought to involve the full spectrum of
stakeholders, including EPA, the environmental community, the mining
industry, and other interested parties. Each of these groups has
brought important perspectives and considerations to the discussions.
Over several years, the proposal evolved substantially as it was
refined in response to issues and concerns raised. S. 1787 uses the WGA
proposal as its starting point, while including further refinements
crafted by the bill's sponsors.
This bill offers a starting point from which to work to resolve the
liability disincentive problem that is currently preventing many
potential Good Samaritan cleanup projects from going forward. The key
provisions of the bill are consistent with WGA policy resolution 98-
004, ``Cleaning Up Abandoned Mines,'' a copy of which is attached.
It provides a process to assure that proposed projects
make sense from an environmental standpoint and that they will not be
authorized unless there is a sound basis to conclude that they will
result in water quality improvements at a site.
It provides assurances that a remediating party will carry
out a project as approved, in an environmentally sound manner, without
imposing unnecessary and infeasible standard NPDES permit requirements.
It provides that after a remediation project is completed
a remediating party can terminate its permit without open-ended,
continuing responsibility for remaining discharges at a site.
At the same time, it assures that the existing legal
liability of those properly responsible for discharges at an abandoned
or inactive mine site, prior to a Good Samaritan project, is not
affected in any way.
The Western Governors' Association has expressed its support for S.
1787 in the attached letter dated October 19, 1999, although we believe
two issues need further consideration: (1) CERCLA liability; and (2)
contractor liability.
The current proposal has been criticized both as too narrow and as
too broad. Some who see the proposal as too narrow would like the
provisions regarding who can be a remediating party to be expanded, so
that more entities can pursue Good Samaritan projects. Some who see the
proposal as too broad believe that all remediation efforts should be
subject to a specific cleanup standard, or that no exceptions should be
allowed to the usual Clean Water Act requirements.
What is important is that some variation on the current proposal be
adopted soon. Few, if any, other revisions to the Clean Water Act would
result in such immediate or certain improvements to water quality as
the prompt adoption of an effective Good Samaritan provision. Projects
in various stages of planning and design are ready to move forward in
several Western states if the current disincentives to such remediation
projects can be eliminated. A list of several examples of such projects
is attached as an addendum to this testimony. On the other hand, if
action on this bill is delayed by those that feel it does not give them
100 percent of what they want, no projects will go forward and our
Western streams will remain polluted.
It is important to note that this bill would not be and has not
been represented as a comprehensive solution to the environmental
problems created by abandoned or inactive mines. In particular, it does
not provide any new resources, which is another major constraint to
further progress in obtaining cleanup. However, there are some
resources currently available and meaningful cleanup projects will go
forward if the current liability cloud is removed. For example, section
319 of the Clean Water Act provides one source of project funding that
was used by states to help undertake these projects until the liability
issue was recognized. The provision in S. 1787 that would assure that
this funding source remains available for these projects in the future
is a critical element of the proposal. Additional funding sources will
be needed in the future. However, until the liability issue is
resolved, there is very little incentive for states or others to
initiate major efforts to identify potential additional resources for
abandoned or inactive mine remediation.
The Western Governors commend the sponsors for introducing the
``Good Samaritan Abandoned or Inactive Mine Waste Remediation Act'' in
an effort to eliminate current disincentives to voluntary, cooperative
efforts aimed at reducing water quality impacts from abandoned or
inactive mines. WGA remains willing to work with those that seek to
improve this concept.
Adoption of a Good Samaritan bill will result in immediate and
significant improvement in the water quality of some of our country's
most polluted streams. Inaction will result in continued degradation
for the foreseeable future of many Western streams impacted by
historical mining activity. On behalf of the Western Governors'
Association, I therefore urge passage of Good Samaritan legislation by
this Congress, so that states may once again get on with the business
of cleaning up our proverbial neighborhoods.
______
attachment
Examples of Abandoned or Inactive Mines Which Have Been Assessed for
Remediation in Western States
The following cleanups have been postponed due to potential NPDES
liability.
california
Penn Mine Copper Mine, Calaveras County
Because of a lawsuit in the 1990's, the Central Valley Board was
compelled to do major remediation because the court found the Board was
an NPDES discharger based on remedial work it did in the 1970's.
Remediation is nearly complete, but the Board risks liability for
residual seeps and other discharges.
Walker Mine Copper Mine, Plumas County
Regional Board spent over 30 years unsuccessfully suing the mine
owner to cleanup acid mine drainage discharge that sterilized a creek.
Finally, the Board plugged mine shaft and accepted settlement from mine
owner's estate. The Board remains liable for any point source discharge
that may occur from the plug.
Buena Vista/Klau Mine Mercury Mine, San Luis Obispo County
Central Coast Board has unsuccessfully tried to secure cleanup from
mine owner for over 20 years. These mines are the source of 80 percent
of mercury pollution in Nacimiento Reservoir, which is under a fishing
advisory. US EPA is willing to do cleanup on condition California takes
over the long-term operation and maintenance. The State is unwilling to
accept liability for NPDES discharges at site and so relieve the
recalcitrant mine owner of responsibility. Cleanup may be delayed until
potential State liability is resolved.
Mt. Diablo Mine Mercury Mine, Contra Costa County
Owner discovered mine after spending entire savings to buy land for
a residence. Mine pollution has sterilized a creek and caused a fishing
advisory in a nearby reservoir. With liability protection, a government
agency could do partial remediation to significantly reduce pollutant
discharges from the site. Without liability protection it is likely no
remediation will occur.
Stowell Mine, Keystone Mine, and Mammoth Mine, Shasta County
In 1991, the Board secured $1 million from the State Cleanup
Account to hire consultants to perform remedial work at those three
mines. Although a responsible party eventually came forward to take
remedial action, the Board decided to return the funds rather than
apply them to mine cleanup because of liability concerns (brought on by
the Penn Mine case.)
Balaklala and Shasta King Mines, Shasta County
These mines discharge abandoned mine drainage to West Squaw Creek,
a tributary to Shasta Lake. Impacts include elimination of aquatic life
in the stream below the mines, frequent fish kills where the stream
enters Shasta Lake and degradation of recreational/aesthetic uses in
this part of the National Recreation Area. The owner, Alta Gold
Company, has performed some remedial work but final site restoration is
probably beyond their capability. There is a unique opportunity here
for Alta Gold to sell the property to the public resource agencies for
development of an off-road vehicle park with funds from the sale to be
used for mine drainage control. This arrangement could provide
substantial funds for problem solution but is presently not being
actively pursued due to the liability issue.
Mammoth Mine, Shasta County
This large abandoned copper mine discharges abandoned mine drainage
to Little Backbone Creek and Shasta Lake. Impacts are similar to those
previously described for the West Squaw Creek mines. The owner, Mining
Remedial Recovery Company, has implemented a comprehensive mine sealing
program but the results to date have been disappointing. Substantial
modification of the sealing program or a new control strategy, such as
collection and treatment, will be required to address the problem. The
issue is further complicated by a lawsuit filed by the California Sport
Fishing Protection Alliance. We believe that a cooperative effort at
Mammoth Mine between the owners, resource protection groups, and the
agencies would be more effective than lawsuits and enforcement orders.
Greenhorn Mine, Shasta County
This acid mine west of Redding discharges abandoned mine drainage
to Willow Creek which is a tributary to the Wiskeytown Lake National
Recreation Area. The discharge impacts aquatic life and recreational
uses in the area. There is no responsible owner capable of implementing
a control program. A reclamation feasibility study has been prepared by
the Department of Water Resources (under contract to Regional Board),
but no work has been done. Water quality and beneficial use
improvements could be achieved through a combination of surface
drainage control and mine sealing.
Corona Mine and Abbott Mine, Lake County
These two mercury mines would each benefit from actions to contain
tailings and solid wastes and to divert surface waters. Staff estimates
a cost of $1-2 million per mine.
Afterthought Mine, Shasta County
Proposed actions at this mine include sealing the multiple portals,
removing and covering the tailings pond, and rehabilitating the access
road.
Bully Hill Mine, Shasta County
Staff proposes solid waste containment and portal scaling at this
site.
S. 1787 would also support watershed cleanups. US EPA is
working on regulations to permit publicly owned sewage treatment works
(POTWS) to cleanup pollution within a watershed as an alternative to
removing pollutants that exist at very low levels in the POTWS'
discharge. This will provide much greater removal of pollutants from
watersheds and will help California comply with its mandate to
implement Total Maximum Daily Load allocations. However, POTWS are not
likely to cleanup abandoned mines under a watershed program unless they
get some liability protection.
colorado
St. Kevin Gulch, Lake County
The St. Kevin Gulch project is located northwest of Leadville in
the small perennial drainage known as St. Kevin Gulch. Mine drainage
from the lower Griffin Tunnel flows as a series of springs from the
waste rock pile approximately two miles above the confluence of St.
Kevin Gulch and Tennessee Creek. The mine drainage has a pH of 2.6 to
2.9 and has rendered St. Kevin Gulch virtually devoid on any aquatic
life below the drainage, and has an adverse effect on trout
reproduction in Tennessee Creek. The mine drainage is to be treated
using a combination of an anoxic limestone drain and a sulfate reducing
bioreactor (wetland). An interceptor trench has been completed to help
site the treatment system. The project is in the final design state.
Commitments for materials, labor, services, and cash were obtained from
local individuals, Lake County, and the USGS. These commitments have at
least partially been withdrawn and the project postponed because of
concerns about assumption of liability. The estimated construction cost
is $122,300.
McClelland Tunnel, Clear Creek County
The McClelland Tunnel project is located along Interstate 70, one-
half mile southeast of the town of Dumont. The McClelland Tunnel drains
approximately 15 gallons per minute of metal laden water into Clear
Creek. The site also contains mine and mill waste along Clear Creek, a
county road, and a State Highway. The Colorado School of Mines,
Department of Transportation, Department of Public Health and
Environment, Clear Creek County, and Coors have been collaborating with
DMG on this project. The DMG's part of the project is to construct a
small sulfate reducing bioreactor and a small aerobic wetland to treat
the mine drainage. Final designs for the water treatment aspects of the
project have been prepared and are ready to be bid. The project portion
has been halted because of the concern of the State for incurring
perpetual liability for maintaining the treatment system. The estimated
cost of this project is $26,800.
Perigo, Gilpin County
The Perigo project is located approximately 6 miles north of
Central City in a small perennial steam known as Gamble Gulch. The
Perigo mine drains a average of 70 gallons per minute of pH2.9-3.9
metal laden water. Gamble Gulch below the mine drainage is virtually
devoid of aquatic life for six miles before its confluence with South
Boulder Creek. In 1989 and 1990, a small project was completed in this
drainage to remove mine waste rock and mill tailings from the steam bed
in two locations and construct a test treatment system at the Perigo
mine. The proposed treatment techniques for this site include an
aqueous lime injection system, settling pond and sulfate reducing
bioreactor, which will be capable of treating all the mine drainage.
The design for the project is completed but will not be bid out for
construction until additional baseline information of the watershed is
collected. If liability issues are not resolved at that time, the
project will not proceed. These estimated cost for this project is
$114,640.
Pennsylvania Mine, Summit County
The Pennsylvania Mine project is located just east of Keystone ski
area on Peru Creek. Acidic metal laden water drains from caved mine
workings making the creek biologically dead. Though a 319 grant from
EPA, DMG has installed an innovative hydro-powered water treatment
mechanism and a settling pond. The drainage water is diverted from the
mine adit into a hydropower turbine, thus generating the power to drive
a feeder that doses limestone to buffer the water. Once in the pond,
metal precipitate can settle out and the effluent progresses through
three wetland cells. Here, sulfate reducing bacteria and low oxygen
waters remove much of the remaining acid and metal. The project is 80
percent complete with only a redesigned feeder mechanism necessary. The
project is on hold pending resolution of NPDES liability issues.
Animas River Mine Sites, San Juan County
The Division of Minerals and Geology in conjunction with the Animas
River Stakeholders Group has investigated hundreds of mine sites in the
vicinity of Silverton. The resulting feasibility reports for Mineral
Creek, Cement Creek, and the Animas River have identified at least two
dozen sites having a significant impact on the Animas River water
quality. Treatment recommendations have been made but project work can
not proceed until the NPDES issue is resolved.
montana
The State of Montana has inventoried its abandoned non-coal mine
sites. Thus far, Montana has found 245 abandoned mines which have the
potential to impact surface waters because they are within 100 feet of
a stream. Of these, 71 sites have discharging adits (mine entrances
emitting acid mine drainage into the environment). 89 of 245 sites are
already known to be degrading water quality. These 89 sites have caused
downstream water quality samples to exceed at least one Clean Water Act
parameter--either the Maximum Contaminant Limits or Aquatic Life
Standards.
Given recent developments in Federal case law, Montana officials
are gravely concerned that cleanup projects addressing abandoned mines
which are known to be seriously degrading the state's water quality
will be halted due to Clean Water Act liability concerns.
nevada
Tybo Tailings Site, Nye County, Nevada
The Tybo Tailings Site is located in the Tybo mining district in
Nye County, Nevada. It is approximately 58 miles east of Tonopah on
U.S. Highway 6 and thence 6.5 miles northwest on the Central Nevada
Test Sites Base Camp access road. The site is located in the Hot Creek
hydrographic basin. Tybo Creek flows from Tybo Canyon in the Hot Creek
Range and then easterly into the Hot Creek Valley. The tailings are the
result of mining activity, which began around 1866. Silver, lead, zinc,
copper, mercury, and small amounts of gold were recovered. By 1877,
Tybo was the second largest lead producing area in the United States
after Eureka, Nevada. Production continued on an intermittent basis
until around 1940. Some very minor production occurred in the 1950's
and early 1960's. Total recorded production from the district is valued
at over $9 million.
The tailings impoundment is located just downstream from the mouth
of Tybo Canyon. The actual impoundment is located in an ephemeral wash
and is about 1,000 feet long and up to 600 feet wide (approximately 12
acres total). The dam has been breached, allowing tailings to migrate
down the creek for at least 6 miles. The tailings appear to be about 20
feet thick at the dam. The tailings are highly acidic (surface water on
the tailings has a pH of 1-3), have a strong sulfur smell, and are
stained brown-orange to purple, red and black. Surface water has eroded
channels into the tailings. All vegetation along the migration path
from the impoundment is stressed or dead for at least 3 miles
downstream.
Preliminary studies have detected arsenic and lead range up to
10,000 ppm, zinc up to 7,500 ppm, and copper up to 233 ppm. At this
time, the State of Nevada has recommended evaluating groundwater use
and the habitat of threatened and endangered species. Additional
recommendations include measures to prevent wildlife from drinking
surface water, and restricting site access by fencing and gating. NDOW
has expressed concern about the effects on plants and wildlife and
groundwater.
Rip Van Winkle Mine, Elko County, Nevada
The Rip Van Winkle Mine site is located in the Merrimac mining
district, Elko County, Nevada. The site is located at approximately
7,000 feet above mean sea level on Lone Mountain in the Independence
Mountains, and is situated in the Maggie Creek Area hydrographic basin,
which flows into the Humboldt River near Elko, Nevada. The Rip Van
Winkle Mine recorded first production in 1918. It was the only active
producer in the district after 1949 with limited production of lead,
zinc and silver through 1966.
The mine site consists of shafts and underground workings, a mill,
building foundations and several cabins, waste dumps and tailing
impoundments. The tailings impoundments cover approximately 3 acres and
contain acid-generating materials. Vegetation on the site is sparse and
in the vicinity of the tailings, plants show signs of stress. Impacts
to Humboldt River flows are unknown at present, but may be impacting
endangered species.
Norse-Windfall Mill Site, Eureka County, Nevada
The Norse-Windfall Mill Site is located 5 miles south of Eureka,
Nevada. It is located in the Diamond Valley hydrographic basin in which
perennial springs are prolific in the mountainous regions south of
Eureka, with many flowing springs existing at the mill site. The
Windfall Mine was discovered in 1908, and was operated intermittently
for about 30 years as an underground operation with a cyanide vat leach
facility. Around 1968, Idaho Mining Corp. acquired the property and
mined the same ore body via open pit methods. Between 1975 and 1978 the
Windfall Pit, and associated cyanide heap-leach piles, waste dumps,
mill process building, office and laboratory were constructed. The last
operator of the site was Norse Windfall Mines, Inc. The site has been
abandoned since 1989 and little or no reclamation has occurred. In July
1994, the Nevada Division of Environmental Protection conducted a
compliance inspection of the site and noted that unmaintained process
components and materials left scattered about the property may have the
potential to cause environmental damage by degrading the waters of the
state.
Springs located within the site exceed the Nevada Water Quality
Standards for arsenic, mercury, nickel, and cyanide. Within a 4-mile
radius of the site, six municipal springs and one domestic well provide
drinking water for Eureka. Water from the nearby springs are blended
and pumped into 2 water tanks located just outside of Eureka. This
water serves as the main water supply for the entire town.
south dakota
South Dakota has been working on reclaiming two small hardrock
mines that occur in the Black Hills with EPA and the Federal agencies
that administer the land upon which the mines are located. They are the
Minnesota Ridge mine (Forest Service and private land) and the Belle
Eldridge mine (BLM land).
South Dakota also recently completed an inventory of abandoned
hardrock mines occurring in the Black Hills of western South Dakota in
conjunction with the South Dakota School of Mines and Technology.
Approximately 900 mines were identified in a four-county area (about
700 on private land and about 200 on Federal land). The inventory
purpose was primarily to identify abandoned mine locations, so little
or no assessment work was completed for many of the mines identified.
Many of these historic mines pose significant safety hazards, and some
pose environmental problems, including impacts to water quality. The
Good Samaritan bill would certainly be an incentive for getting some of
these mines cleaned up.
______
October 19, 1999.
Hon. Max Baucus,
U.S. State,
Washington, DC.
Dear Senator Baucus: The Western Governors commend you for
introducing the ``Good Samaritan Abandoned or Inactive Mine Waste
Remediation Act.'' As stated in WGA Resolution 98-004 (attached), the
Western Governors believe that there is a need to eliminate current
disincentives in the Clean Water Act for voluntary, cooperative efforts
aimed at improving and protecting water quality impacted by abandoned
or inactive mines. We believe your bill would effectively and fairly
eliminate such disincentives, and we therefore urge its passage this
Congress.
Inactive or abandoned mines are responsible for threats and
impairments to water quality throughout the western United States. Many
also pose safety hazards from open adits and shafts. These historic
mines pre-date modern Federal and State environmental regulations which
were enacted in the 1970's. Often a responsible party for these mines
is not identifiable or not economically viable enough to be compelled
to clean up the site. Many stream miles are impacted by drainage and
runoff from such mines, creating significant adverse water quality
impacts in several western states.
Recognizing the potential for economic, environmental and social
benefits to downstream users of impaired streams, western states,
municipalities, Federal agencies, volunteer citizen groups and private
parties have come together across the West to try to clean up some of
these sites. However, due to questions of liability, many of these Good
Samaritan efforts have been stymied.
To date, EPA policy and some case law have viewed inactive or
abandoned mine drainage and runoff as problems that must be addressed
under Section 402 of the CWA--the National Pollutant Discharge
Elimination System (NPDES) permit program. This, however, has become an
overwhelming disincentive for any voluntary cleanup efforts because of
the liability that can be inherited for any discharges from an
abandoned mine site remaining after cleanup, even though the
volunteering remediating party had no previous responsibility or
liability for the site, and has reduced the water quality impacts from
the site by completing a cleanup project.
The ``Good Samaritan Abandoned or Inactive Mine Waste Remediation
Act'' would amend the Clean Water Act to protect a remediating agency
from becoming legally responsible for any continuing discharges from
the abandoned mine site after completion of a cleanup project, provided
that the remediating agency--or ``Good Samaritan''--does not otherwise
have liability for that abandoned or inactive mine site and implements
a cleanup project approved by EPA. The Western Governors support this
bill, and urge that it be enacted this Congress.
Sincerely,
Marc Racicot,
Governor of Montana,
WGA Lead Governor.
Bill Owens,
Governor of Colorado,
WGA Lead Governor.
Michael O. Leavitt,
Governor of Utah.
______
Policy Resolution 98-004--Cleaning Up Abandoned Mines
(Sponsor: Governor Roy Romer)
a. background
1. Inactive or abandoned mines are responsible for threats and
impairments to water quality throughout the western United States. Many
also pose safety hazards from open adits and shafts. These historic
mines pre-date modern Federal and State environmental regulations which
were enacted in the 1970's. Often a responsible party for these mines
is not identifiable or not economically viable enough to be compelled
to clean up the site. Thousands of stream miles are impacted by
drainage and runoff from such mines, one of the largest sources of
adverse water quality impacts in several western states.
2. Mine drainage and runoff problems are extremely complex and
solutions are often highly site-specific. Although cost-effective
management practices likely to reduce water quality impacts from such
sites can be formulated, the specific improvement attainable through
implementation of these practices cannot be predicted in advance.
Moreover, such practices generally cannot eliminate all impacts and may
not result in the attainment of water quality standards.
3. Cleanup of these abandoned mines and securing of open adits and
shafts has not been a high funding priority for most State and Federal
agencies. Most of these sites are located in remote and rugged terrain
and the risks they pose to human health and safety have been relatively
small. That is changing, however, as the West has gained in population
and increased tourism. Both of these factors are bringing people into
closer contact with abandoned mines and their impacts.
4. Cleanup of abandoned mines is hampered by two issues--lack of
funding and concerns about liability. Both of these issues are
compounded by the land and mineral ownership patterns in mining
districts. It is not uncommon to have private-, Federal-, and State-
owned land side by side or intermingled. Sometimes the minerals under
the ground are not owned by the same person or agency who owns the
property. As a result, it is not uncommon for there to be dozens of
parties with partial ownership or operational histories associated with
a given site.
5. Recognizing the potential for economic, environmental and social
benefits to downstream users of impaired streams, western states,
municipalities, Federal agencies, volunteer citizen groups and private
parties have come together across the West to try to clean up some of
these sites. However, due to questions of liability, many of these Good
Samaritan efforts have been stymied.
(a) To date, EPA policy and some case law have viewed inactive or
abandoned mine drainage and runoff as problems that must be addressed
under the Clean Water Act's (CWA) Section 402 National Pollutant
Discharge Elimination System (NPDES) permit program. This, however, has
become an overwhelming disincentive for any voluntary cleanup efforts
because of the liability that can be inherited for any discharges from
an abandoned mine site remaining after cleanup, even though the
volunteering remediating party had no previous responsibility or
liability for the site, and has reduced the water quality impacts from
the site by completing a cleanup project.
(b) The western states have developed a package of legislative
language in the form of a proposed amendment to the Clean Water Act.
The effect of the proposed amendment would be to eliminate the current
disincentives in the Act for Good Samaritan cleanups of abandoned
mines. Over the 3 years that the proposal was drafted, the states
received extensive input from EPA, environmental groups, and the mining
industry.
6. Liability concerns also prevent mining companies from going back
into historic mining districts and remining old abandoned mine sites or
doing volunteer cleanup work. While this could result in an improved
environment, companies which are interested are justifiably hesitant to
incur liability for cleaning up the entire abandoned mine site.
b. governors' policy statement
Good Samaritan
1. The Western Governors believe that there is a need to eliminate
disincentives to voluntary, cooperative efforts aimed at improving and
protecting water quality impacted by abandoned or inactive mines.
2. The Western Governors believe the Clean Water Act should be
amended to protect a remediating agency from becoming legally
responsible under section 301(a) and section 402 of the CWA for any
continuing discharges from the abandoned mine site after completion of
a cleanup project, provided that there mediating agency--or ``Good
Samaritan''--does not otherwise have liability for that abandoned or
inactive mine site and attempts to improve the conditions at the site.
3. The Western Governors believe that Congress, as a priority,
should amend the Clean Water Act in a manner that accomplishes the
goals embodied in the WGA legislative package on Good Samaritan
cleanups.
Cleanup and Funding
4. The governors support efforts to accelerate responsible and
effective abandoned mine waste cleanup including the siting of joint
waste repositories for cleanup wastes from abandoned mines on private,
Federal, and State lands. Liability concerns have hampered the siting
of joint waste repositories leading to the more expensive and less
environmentally responsible siting of multiple repositories. The
Governors urge the Bureau of Land Management and the U.S. Forest
Service to develop policy encouraging the siting of joint waste
repositories whenever they make economic and environmental sense.
5. The governors encourage Federal land management agencies such as
the Bureau of Land Management, Forest Service, and Park Service, as
well as support agencies like the U.S. Environmental Protection Agency
and the U.S. Geological Survey to coordinate their abandoned mine
efforts with State efforts to avoid redundancy and unnecessary
duplication. Federal and State tax dollars should be focused on working
cooperatively to secure and clean up abandoned mine sites, not working
separately to conduct expensive and time consuming inventories,
research, and mapping efforts.
6. Other responsible approaches to accelerate abandoned mine
cleanup should be investigated, including remining.
7. Reliable sources of funds should be made available for the
cleanup of abandoned mines in the West.
governors' management directive
1. WGA staff shall transmit a copy of this resolution and the
proposed WGA legislative package on Good Samaritan cleanups to the
President, the Secretary of the Interior, Secretary of Agriculture,
Administrator of the Environmental Protection Agency, and Chairmen of
the appropriate House and Senate committees.
2. WGA staff shall work with the mining industry, environmental
interests, and Federal agency representatives to explore options to
accelerate abandoned mine cleanup through remining and report back to
the Governors at the 1999 WGA Annual Meeting.
3. WGA shall continue to work cooperatively with the National
Mining Association, Federal agencies, and other interested stakeholders
to examine other mechanisms to accelerate responsible cleanup and
securing of abandoned mines.
The Board of Directors is comprised of the Governors of Alaska,
American Samoa, Arizona, California, Colorado, Guam, Hawaii, Idaho,
Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Northern
Mariana Islands, Oregon, South Dakota, Texas, Utah, Washington and
Wyoming.
All policy resolutions are posted on the WGA Web site
(www.westgov.org) or you may request a copy by writing or calling:
Western Governors' Association, 600 17th St. Suite 1705 South, Denver,
CO 80202-5452; Ph: (303) 623-9378; Fax: (303) 534-7309.
______
Responses by William J. Janklow to Additional Questions from
Senators Crapo and Boxer
Question. Are the regulatory and administrative review processes in
S. 1787 similar to those of the State of South Dakota under its
abandoned mine cleanup program?
Response. The State of South Dakota does not have an abandoned mine
cleanup program in the formal sense. That is, there are no specific
regulatory and administrative review processes applicable to abandoned
mines at the State level that would allow a comparison to be made.
A number of abandoned mines in the Black Hills have, however, been
reclaimed. The State has worked with several of our active mine
operators such as Homestake, Wharf Resources, and others to reclaim
abandoned mines on lands they control or own. In addition, the state,
in cooperation with the U.S. Forest Service, the Bureau of Land
Management, and EPA, are in the process of reclaiming several abandoned
mine sites on lands managed by the Federal government. Two recent
examples include the Minnesota Ridge mine near Rochford and the Belle
Eldridge mine near Deadwood.
Question 2. The current bill precludes sites from eligibility if
they would be subject to consideration under the Superfund program.
Given that many areas are as yet not surveyed, do you believe many
unsurveyed areas will be viewed as so clearly not a future
consideration for NPL consideration that the potential Good Samaritan
will want to step in and take action? Or do you think that the
considerable uncertainty out there will dissuade potential volunteers
in all but the least environmentally hazardous sites?
Response. Under S. 1787 only sites already on or proposed for
listing on the Superfund National Priorities List (NPL) or sites
subject to a response under Comprehensive Emergency Response,
Compensation and Liability Act (CERCLA) are precluded from eligibility
for cleanup under the bill. Therefore, a Good Samaritan could clean up
a site under the bill that, at some point in the future, might
otherwise have been determined to be subject to CERCLA.
Some Western states concluded that CERCLA was not a barrier to Good
Samaritan cleanups. Colorado, for example, employed CERCLA's ``on-scene
coordinator'' provision to get around potential CERCLA liability
Additionally, the permit authorized by S. 1787 would be considered a
``federally permitted release'' pursuant to CERCLA's Sec. 107(j), and
would, therefore, provide liability relief under CERCLA, with one
potential exception. As pointed out by Chuck Fox of the Environmental
Protection Agency (EPA) during his testimony, there is a question of
whether this protection would still exist once the Good Samaritan
permit is terminated. I support the proposed remedy to this potential
exception that Senator Crapo and Senator Baucus discussed during the
interchange with Chuck Fox.
Additionally, the current language in S. 1787 may be too broad an
exclusion with regard to CERCLA. The definition of Abandoned or
Inactive Mined Land, (1)(A)(ii) states ``. . . and that is not the
subject of a planned or ongoing response or natural resource damages
action under that Act.'' Thus, ``planned or ongoing'' should be
deleted.
Question 3. In establishing a site's eligibility for permits, the
WGA discussion draft proposal uses the phrase ``having no private owner
of record at the time the permit plan is submitted and the permit is
issued,'' whereas S. 1787 makes eligible sites so long as there is no
identifiable owner or operator. Clearly, this is a different standard.
How would you interpret this dichotomy?
Response. The Western Governors' Association's (WGA) proposal did
not use the phrase ``having no private owner of record . . .''.
Instead, the WGA proposal included the following relevant definitions:
(5) Definitions.--In this subsection the following definitions
apply:
(A) Remediating party--
(i) The term ``remediating party'' means--
(I) the United States (on non-Federal lands),
a State or an Indian tribe or officers,
employees, or contractors thereof; and
(II) any person acting in cooperation with a
State or Indian tribe. ``Person'' includes a
local government that owns abandoned or
inactive mined lands for the purpose of
conducting remediation of the mined lands or
that is engaging in remediation activities
incidental to the ownership of the lands.
(ii) The term ``remediating party'' does not include
(I) a Federal agency on Federal lands,
(II) any person who prior to issuance of a
permit under this subsection directly benefited
from or directly or indirectly participated in
any mining operation (including exploration)
associated with the abandoned or inactive mined
lands provided that persons shall not be
excluded from participation as a remediating
party if their participation in any mining
operation was solely as (a) a county government
that collected taxes based on the mining
operation, (b) a non-managerial employee of the
mining operation, (c) an independent supplier
who provided goods or services to the mining
operation, or (d) a consultant, such as an
engineering or earthworks firm, whose
participation at a site was limited to
performing professional services for a fee,
(III) any person who is, or at any time has
been legally responsible pursuant to Sec. 301
(a) for any discharge of pollutants from the
abandoned or inactive mined lands (except where
any such person's legal responsibility results
solely from conducting remediation activities
that would otherwise qualify for a permit under
this subsection),
(IV) any person who owned or controlled a
person identified in clause (II) or (III)
above, is owned or controlled by such person,
or is under common ownership or control with
such person, or,
(V) a predecessor or successor in interest to
any person identified in (II), (III), or (IV)
above.
(B) Abandoned or inactive mined lands.--The term ``abandoned or
inactive mined lands'' means either lands that were formerly mined for
non-coal resources and are neither actively mined nor in temporary
shutdown at the time of submission of the remediation plan and issuance
of a permit under this subsection, or lands that were formerly mined
for coal resources and are eligible for reclamation or drainage
abatement expenditures under Title IV, Section 404, of the Surface
Mining Control and Reclamation Act, 30 U.S.C. Sec. 1231 et seq.''
As is apparent from these definitions, the WGA proposal is
different than S. 1787. The WGA approach to determining eligibility for
coverage under the Act focuses on whether the prospective remediating
party has some responsibility for the site.
S. 1787 addresses eligibility for coverage under the Act based on the
site itself and whether there is an identifiable operator or owner of
the site. Both approaches appear to arrive at the same result.
Question 4. The WGA discussion draft did not include a Federal
enforcement mechanism. S. 1787 states that issued permits are still
liable to Section 309 enforcement authority. Why did the governors
exclude this provision from their proposal?
Response. The WGA draft amendment did include Sec. 309 enforcement
under (4)(A) of the proposal:
``(iii) require that if, at any time after notice to the
remediating party and opportunity for comment by the
remediating party, the Administrator determines that the
remediating party is not implementing the approved remediation
plan in substantial compliance with its terms, the
Administrator shall notify the remediating party of the
determination together with a list specifying the concerns of
the Administrator;
(iv) provide that, if the identified concerns are not
resolved or a compliance plan submitted within 90 days of the
date of the notification, the Administrator may take action
under section 309 of this Act;
(v) provide that clauses (iii) and (iv) not apply in the case
of any action under section 309 to address violations involving
gross negligence (including reckless, willful, or wanton
misconduct) or intentional misconduct by the remediating party
or any other person;''
Question 4a. The WGA discussion draft did not include a limitation
under the permit process that exists in S. 1787. Do you think this will
reduce the number of abandoned mine sites that will be cleaned up under
the legislation?
Response. Assuming the limitation you refer to is that the Act only
allows ``remediating parties'' to be governmental agencies, the states
concluded in drafting their proposal that ``remediating parties''
should not be limited solely to governmental entities. There are many
other persons likely willing to contribute to Good Samaritan cleanup
initiatives. However, the WGA proposed definition was broadly intended
to exclude both (1) those with prior involvement at the abandoned or
inactive mine site and (2) those with current or prior legal
responsibility for discharges at a site. The proposal also assured that
any non-remediation-related development at a site be subject to the
normal National Pollutant Discharge Elimination System (NPDES) rules,
rather than the Good Samaritan provision.
The National Mining Association opposed the language in the WGA
proposal based primarily on the use of the concepts of ``ownership and
control.'' At their request, and with WGA concurrence, Senator Baucus
limited S. 1787 to governmental entities. At the time, representatives
of the National Mining Association argued that they would still be able
to participate under the bill as contractors to the ``remediating
parties.'' The states believe that it is fundamentally important that
mining companies be able to act as third party contractors and agree
that language should be added to S. 1787 to ensure that third party
contractors are exempt from liability. The following amendment to that
end is suggested:
Revise (6)(B) to read: ``If a permit is terminated under
subparagraph (A), the remediating party, INCLUDING ITS AGENTS
AND CONTRACTORS FOR IMPLEMENTATION OF THE REMEDIATION PLAN,
EXCEPT AS PROVIDED IN PARAGRAPH (7), shall not be subject to
enforcement . . .''
Question 4b. Furthermore, the limitation limits remediating
parties-owners to those who have purchased the land ``for the express
purpose of remediating pollutant discharges related to past mining
activities at the land to improve water quality.'' Are there any other
legitimate reason for a potential Good Samaritan to acquire an
abandoned mine site on which that party intends to remediate?
Response. There are cases in California in which the State
purchased abandoned mines with the express purpose of cleaning up the
mine. The State had no responsibility in creating the discharges on
those lands. S. 1787 would allow California to act as a Good Samaritan
on those lands. There are other reasons why a potential Good Samaritan
might have acquired an abandoned mine site where it intends to
remediate but the reasons are too diverse to specify in the bill. An
example might include land acquired for a purpose that was specific to
the site but unrelated to the presence or absence of the mine. For
example, a municipal entity might purchase a site containing an
abandoned mine for a park due to its unique location.
Question 5. How many states have completed surveys of abandoned or
inactive mine sites within their borders? Until such activities are
completed, how will states be able to determine the water quality
impacts, ownership, and priority needs of sites?
Response. All of the states and reservations in which coal is mined
(and are therefore eligible for Federal funds under Surface Mining
Control and Reclamation Act (SMCRA) to develop inventories of and clean
up abandoned coal mines) have completed inventories of all abandoned
mines (coal and hard-rock). Major hard-rock mining states not eligible
for SMCRA funds include Arizona, California, Idaho, Nevada, and South
Dakota. However, all of these non-SMCRA states have, or are currently
developing, inventories of abandoned mines which are funded by other
sources.
For example, South Dakota recently completed an inventory of
abandoned hard-rock mines in the Black Hills of western South Dakota in
conjunction with the South Dakota School of Mines and Technology.
Approximately 900 mines were identified in a four-county area (about
700 on private land and about 200 on Federal land). The inventory
purpose was primarily to identify abandoned mine locations, so little
or no site- specific assessment work was completed for many of the
mines identified. Many of these historic mines pose significant safety
hazards, and some pose environmental problems, including impacts to
water quality.
However, each State knows where the abandoned mine sites are in its
State that are causing significant water quality impairment. That is
because they collect water quality data under the Clean Water Act. It
is this data, supplemented by site surveys and onsite water quality
sampling, that would identify the priority sites for cleanup.
The Bureau of Land Management, U.S. Forest Service, and the Park
Service maintain separate inventories of abandoned mine sites on lands
they manage. In 1990, WGA published the first comprehensive nationwide
assessment of the hard-rock abandoned mine problem in the United States
The report included Federal, State, and private lands. WGA published a
follow up to that report in 1998, which documented the number of sites
reclaimed in each State in addition to updated data from the earlier
report on the number of sites in each state. Both of those reports
called for a Good Samaritan exemption to the Clean Water Act to help
stimulate cleanup.
Question 6. Should it be the responsibility of the potential Good
Samaritan or the regulatory agency to undertake extensive chain-of-
ownership searches for particular sites as called for in the bill?
Response. During development of the WGA proposal, concern was
raised that a Good Samaritan cleanup could commence without first
trying to identify whether parties with liability for the site still
exist. Consequently, states added a provision that the Good Samaritan
``remediation plan'' include a summary of the results of a ``reasonable
effort'' to identify parties whose past activities have affected
discharges at the site. The language in S. 1787 is consistent with the
WGA proposal.
States do not support requiring the Good Samaritan to conduct
``extensive'' searches such as those that are conducted under CERCLA to
identify potentially responsible parties, and it may be important to
clarify what is intended by ``reasonable effort.''
Question 7. Given that most states are still undertaking surveys of
abandoned and inactive mines, is the requirement that potential Good
Samaritans undertake title searches and assessments of environmental
impacts of sites actually an unfunded mandate on others?
Response. As ``reasonable effort'' is defined, S. 1787 should not
place an overly onerous burden on Good Samaritans such that an unfunded
mandate is created. Additionally, it is important to realize that Good
Samaritan cleanups are entirely voluntary. The concern raised in your
question is appreciated, and I would like to work with you to ensure
that no such unfunded mandate is indeed inadvertently created.
Question 8. The testimony of David Gerard highlights a U.S. Forest
Service Inspector General Report that observes that all Federal lands
would be excluded from Good Samaritan remediation. Is this situation a
problem for downstream interests?
Response. There may be some disagreement over Mr. Gerard's
testimony that indicated all Federal lands would be excluded. The
exclusion applies to cleanups by Federal agencies on Federal land,
which recognizes the commitment by those agencies to do complete
cleanups of sites on lands they manage. There may be cases where a Good
Samaritan is willing to conduct cleanups on Federal land, for example
at mixed ownership sites.
Question 9. What would you anticipate the impact to be of creating
a public notice and public hearing option for modifications of every
application?
Response. Requirements for public notice and public hearings for
permit modifications should be appropriate to the permit modifications,
i.e., minor modifications should require minimal notification. There
needs to be sufficient flexibility to change or modify a plan in a
timely manner so that cleanup can continue expeditiously.
Question 10. Is it appropriate for Good Samaritans to be subject to
citizen suits under this legislation since they are not, in fact,
responsible for the pollution?
Response. Citizen suit authority under S. 1787 is limited to
enforcement of the terms of the permit and is not available after
termination of the permit. This is consistent with the WGA proposal and
is also consistent with other Sec. 402 NPDES permits. An earlier
version of the WGA proposal excluded the permits from the citizen
suits, but environmental groups expressed strong objection. WGA would
probably not be averse to excluding citizen suit provisions from the
Act.
Question 11. If a State determines that it will want to become a
Good Samaritan for a site situated on land it does not own, do you
envision that it will need to expend resources or time to identify
another government agency to work through? Is this the most efficient
use of money or time?
Response. It is very possible that states will want to clean up
lands that they do not own. In such cases, coordination with other
appropriate entities would be necessary and warranted. This does not
appear to be a waste of resources and is consistent with WGA's Enlibra
principles.
Question 12. Because so many sites in western states are found in
areas of mixed ownership-sites where ownership by Federal, state, and
private lands intermingle--do you believe that the preclusion in this
bill for cleaning up one's own property would require separate permits
for each element of a mixed ownership site? Or do you believe that the
regulatory requirements in S. 1787 would discourage potential Good
Samaritans from approaching such confusing mixed ownership sites?
Response. If S. 1787 is amended to allow private entities to become
Good Samaritans, the regulatory requirements in the bill may very well
discourage potential Good Samaritans who own portions of a mixed site
from becoming a Good Samaritan for that particular site.
Question 13. Your written testimony suggests that ``some variation
on the current proposal (S. 1787)'' needs to be adopted soon. Would the
WGA support modifications to the bill to expand the definition of
remediating parties and to eliminate more of the disincentives that
exist under current law?
Response. WGA's proposal allowed for private entities to be Good
Samaritans with the conditions discussed in my answer to question 4a.
WGA has maintained its support for broad inclusiveness given that those
conditions are met. At the same time, WGA's priority is for legislation
to be enacted as soon as possible that will allow states to begin
cleanups. WGA attempted for a number of years to find a compromise
between the mining interests, EPA, and the environmental interests
regarding the scope of the definition of ``remediating party,'' but was
ultimately unsuccessful.
__________
Statement of J. Charles Fox, Assistant Administrator for Water,
U.S. Environmental Protection Agency
introduction
Good morning Mr. Chairman and members of the committee. I am Chuck
Fox, Assistant Administrator for Water at the U.S. Environmental
Protection Agency (EPA).
I look forward to talking with you this morning about the Nation's
clean water program and, more specifically, to support the ``Good
Samaritan Abandoned or Inactive Mine Waste Remediation Act'' (S. 1787)
introduced by Senator Baucus and others. This legislation will promote
efforts to mitigate the effects of pollutants discharged from abandoned
or inactive mines into the Nation's streams, rivers and lakes.
background
Despite the great progress that has been made in improving the
Nation's water quality since the passage of the Federal Water Pollution
Control Act in 1972, serious water quality problems persist.
States reported in 1998 that 35 percent of the rivers and streams
they assessed do not meet clean water goals and another 10 percent of
waters are threatened. In the case of lakes and ponds, 45 percent of
these waters do not meet water quality goals and 9 percent are
threatened. And, 44 percent of the coastal and estuarine waters that
States assessed do not meet their clean water goals and 9 percent are
threatened. In the Great Lakes, fully 96 percent of the shoreline miles
assessed do not meet clean water goals. Based on this data, the States
indicate that over 20,000 waterbodies are polluted and need the focused
attention in order to recover.
In the western States, one of the more serious threats to this
Nation's water quality is pollution contributed by thousands of
abandoned or inactive mines. Mining has a significant economic benefit
to the west, but many of these former mine sites left an unfortunate
legacy of water pollution or the threat of water pollution.
Exact figures are not available due to the magnitude of historical,
small-scale mining activities and the age of many of these abandoned
mines, but estimates place the total number of abandoned mine sites at
200,000 to 500,000 for the entire country. An independent assessment by
the Western Governor's Association places the total at more than
400,000 in the west alone. Most of these sites are classified as
``hardrock'' mines that were developed to extract a wide variety of
metal-bearing ores. Further complicating the problem is the fact that
the majority of these sites were mined and abandoned prior to the
enactment of modern environmental regulations in the 1970's.
Estimates of the magnitude of the environmental impacts occurring
as a result of historical hardrock mining activities in the western
States vary significantly. Not all of these mine sites pose serious
threats to human health and the environment. The Western Governors
Association estimates that as many as 80 percent of the sites may not
pose environmental or immediate public safety concerns. However, many
mine sites do create significant environmental and public health
hazards--anywhere from 40,000 to 100,000 sites, based upon the previous
figures cited.
regulatory authority--abandoned/inactive mines
EPA has no single, comprehensive statutory authority to regulate
mining and oversee development of environmental performance standards
and financial assurances at individual mines. EPA does, however, have
statutory authorities to help reduce potential environmental problems
at individual mines and has used these authorities to prevent and
remediate pollution at a number of mine sites. EPA also has used
administrative statutes, such as the National Environmental Policy Act
(NEPA), to try to introduce pollution prevention measures during the
mine site selection and evaluation phase for new mines.
EPA uses a number of statutory authorities including the Clean Air
Act (CAA), Clean Water Act (CWA), the Resources Conservation and
Recovery Act (RCRA), and the Comprehensive Environmental Response,
Compensation and Recovery Act (CERCLA)--more commonly referred to as
the ``Superfund''--to regulate and remediate hardrock mining
activities.
RCRA and CERCLA authorities have only been used for the highest
priority sites posing the greatest threats to public health and safety.
A number of sections in the CWA have a direct bearing on regulating
both active and remediation activities at abandoned mines. Section 301
prohibits discharges of any pollutant without a permit. Section 402,
which authorizes the National Pollution Discharge Elimination System
(NPDES) that requires permits for all discharges into waters of the
United States, is the most comprehensive and commonly used authority to
regulate all types of mining-related activities. The majority of active
mines have CWA discharge permits and many of these permits implement
national technology-based effluent limitations developed under section
301 and 304 of the CWA. Section 309 provides very broad enforcement
authority that includes issuing administrative penalty orders and
assessing penalties.
Closely related to provisions in Section 402 are certain provisions
in Section 303(d) that require States to identify water bodies that
exceed the prescribed water quality criteria and that the State develop
a total maximum daily load (TMDL) limitation on pollutants being
discharged into these water quality-limited bodies of water.
Section 504 of the Act, which provides the Administrator with
emergency powers to correct all activities that constitute an
``imminent and substantial endangerment to public health and welfare,''
and Section 505, which permits citizen suits against polluters, also
come into play in the overall regulatory scheme.
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.
proposed good samaritan legislation
S. 1787 would encourage remediation activities for abandoned mine
sites where no action would be taken otherwise because of potential
liability and costs under the CWA. The Administration generally
supports the bill and would like the opportunity to work with the
sponsors of the bill and members of this committee to improve the bill
in several respects.
EPA supports the major provisions of the bill including the
following critical elements:
(1) the ``Good Samaritan'' acting as the remediating party can not
have a historical or existing responsibility for the mine site; (2)
sites are only subject to the bill's coverage if there is not an
identifiable owner or operator of the mine that can clean up the site;
(3) the permitting authority rests exclusively with EPA, ensuring
consistency in application of this innovative approach to environmental
regulation under the Act (4) a permit may only be issued where it is
demonstrated, with reasonable certainty, that improvement in water
quality will take place to the maximum extent practicable taking into
consideration the resources available to the remediating party; (5)
public participation in the permit issuance and modification process is
ensured; (6) the permit is in force until either the site clean up is
completed, the discharges are subject to a separate development permit,
or the site is left in a condition that at least meets the baseline
conditions prior to remediation efforts; (7) the bill provides for
Federal enforcement of permit conditions, and preserves existing
authorities over violations that occurred prior to issuance of the
remediation permit; and (8) the use or sale associated with any mining
conducted as part of the project is restricted to supporting
remediation activities.
EPA would like to work with the committee to address several
issues.
The first issue concerns the provision in the bill under section
(2)(C) that ``The Administrator shall not delegate the authority under
subparagraph (A) . . .'' to issue a permit. This prescriptive language
would require that the Administrator personally be the authorizing
official for each ``Good Samaritan'' permit. This provision should be
amended to enable delegation of permit issuance authority to the
Assistant Administrator for Water or Regional Administrators as the
Administrator determines appropriate.
The second issue concerns the timeframe for issuing amended
regulations to address the provisions of the new section 402(q) created
by the bill. Section (9)(A) of the bill language states that EPA shall
have ``. . . not later than 1 year after the date of enactment of this
subsection . . .'' to issue appropriate regulations. The language goes
on further to State that these regulations should be developed ``. . .
in consultation with State, tribal and local officials and after
providing for public notice.'' Given the requirements for consultation
with such a large number of potentially interested parties, EPA will
need not less than 3 years to finalize appropriate regulations after
the bill becomes law.
Third, the Administration questions the provision of the bill that
would make State grant funds for reducing nonpoint pollution under
section 319 of the CWA available to pay for implementing controls over
point source discharges of pollution from abandoned mine sites.
Fourth, the current bill language does not consider providing
``Good Samaritans'' with relief from ocean discharge criteria
established under section 403(c) of the Clean Water Act. In the
proposed legislation, S 1787 allows the Administrator to issue a permit
to a ``Good Samaritan'' . . . [all the substantive and procedural
safeguards] . . ., without compliance with other provisions of section
301, 302 and 402. As you are aware, NPDES permits for discharges to the
territorial seas also require compliance with the provisions of section
403(c) of the CWA. To improve the usefulness of this provision, it may
be necessary to add language allowing the ``Good Samaritan'' to also be
exempted from provisions of 403(c).
Finally, the bill provides that the permittee may request a
modification of a permit. EPA suggests that the Administrator should be
allowed to initiate a modification of the permit as needed. The bill
should also provide authority for the Administrator to terminate the
permit where appropriate. The Administration may provide additional
comments.
conclusion
In closing, I do want to take a minute to commend the Western
Governor's Association (WGA) for the work that it has done over the
past 5 years in both identifying issues and developing much of the
background data that provided the foundation for the bill. WGA worked
closely with a variety of stakeholders, such as industry, EPA and other
Federal agencies and the States, to develop a strong foundation for
this bill and to try to include as many perspectives on the proposed
approach to remediation of abandoned mines.
The ``Good Samaritan'' bill has much to offer in addressing and
correcting the environmental insults arising from abandoned mine sites.
The Administration is ready and willing to work with the committee, the
States, other Federal agencies, the WGA and any other interested
parties to help assure the environmental remediation of abandoned mine
sites.
Thank you, Mr. Chairman. I will be happy to answer any questions
from the committee members.
__________
Statement of Kate Kelly, Administrator, Waste Management and
Remediation Division, Idaho Department of Environmental Quality
introduction
Inactive mine sites pose a significant threat to public safety and
water quality in the western states and in the State of Idaho in
particular. The ability to respond to these threats is severely
restricted in cases where a mine is ``abandoned'' because there is no
identifiable or economically viable operator responsible for cleanup.
Where a government agency chooses to step in and take actions to
respond to threats from such abandoned mines, the requirements of the
Clean Water Act and the Superfund process pose a disincentive.
The State of Idaho commends Congress for considering legislation to
encourage Good Samaritan cleanups of abandoned and inactive mines. At
the same time, it is our view that S. 1787 contains a number of serious
problems and subtle but significant flaws. Most important to the State
of Idaho, the Bill undermines the authority of States to control mine
site remediations and water quality within their borders. Further, the
usefulness of the Clean Water Act waiver created by this Bill is
significantly undermined by its conditioned treatment of landowners,
its failure to acknowledge the scope of potential CERCLA and RCRA
liability which exists with regard to the owners of inactive mining
sites, and its inexplicable exclusion of federal lands. The exclusion
of sites subject to CERCLA actions is also unnecessarily broad. For
these reasons, we are doubtful that this ``incentive'' would ever be
used in Idaho to conduct an abandoned mine cleanup. The problems we
have identified are described in detail below.
the permit program has no provision for state delegation
S.1787 amends the Clean Water Act to allow the U.S. Environmental
Protection Agency (EPA) the discretion to issue a permit for
remediation activities at abandoned mine sites. Although there is
language requiring ``concurrence'' of the applicable State or Tribe, 33
U.S.C. 1342 Sec. (q)(2)(A), the discretion to issue a permit and
determine the terms and conditions of the permit, rests solely with EPA
and is expressly forbidden from being delegated to the States. 33
U.S.C. 1342 Sec. (q)(2)(C). Enforcement of the permit is also placed
within EPA's authority. 33 U.S.C. 1342 Sec. (q)(2)(B), as is the
promulgation of regulations to implement the legislation. 33 U.S.C.
1342 Sec. (q)(9).
The vesting of permitting authority in EPA is additionally
problematic for the State of Idaho given that the Bill is vague about
the standard to be used by EPA in issuing the permits. S. 1787 requires
the remediation plan to ``reduce, control, mitigate, or eliminate the
adverse water quality impacts'' of the mine, 33 U.S.C. 1342
Sec. (q)(3)(B)(viii), and ``result in a water quality improvement for
the identified waters.'' 33 U.S.C. 1342 Sec. (q)(3)(B)(ix). There is no
definition for these terms in the Bill or elsewhere in the existing
Clean Water Act language. It is clear, however, that by waiving
compliance with section 301 of the statute, EPA can allow a discharge
that does not meet State Water Quality Standards and that such decision
is vested solely in the discretion of EPA. 33 U.S.C. 1342
Sec. (q)(4)(C). At the same time, however, the Bill provides that
nothing in its language ``limits any obligation of a State or Indian
Tribe under section 303'' of the Clean Water Act which sets out the
States' authorities and obligations to adopt water quality standards
and do Total Daily Maximum Loads. Similarly, the Bill is silent as to
whether States retain the right to certify the discharge under section
401 of the Clean Water Act.
The State of Idaho has concerns about S. 1787's vesting of broad
permitting authority in the federal EPA. The Bill fails to acknowledge
the significant State authorities and obligations created elsewhere in
the Clean Water Act. The precedent of unilateral federal authority in
this area is not only untenable, it is inconsistent with sound public
policy favoring local control.
the incentive provided by the bill does not acknowledge land ownership
patterns in mining areas
Land ownership patterns in mining areas in the West create
tremendous problems in conducting the remediation of inactive mine
sites. The areas impacted by a single mine operation can frequently
include a complex mixture of state, federal and private land ownership
and interests. Ownership issues are compounded by severed mineral and
surface ownership, participation of governmental land management
agencies in approving and sometimes encouraging certain practices, and
questions about tribal reservations. Under CERCLA, passive landowners
may be liable for cleanup even if they had nothing actively to do with
causing the problem. This, of course, has significant implications for
federal and state land management agencies as well as local governments
which own property.
The incentives created by S. 1787 are expressly limited to sites
``for which there is no identifiable owner or operator for the mine or
mine facilities.'' 33 U.S.C. 1342 Sec. (q)(1)(A)(iii). Yet
``identifiable owner or operator'' is limited to a person ``that is
responsible for the activities . . . that created conditions that cause
or contribute to the discharge of pollutants from the'' land. 33 U.S.C.
1342 Sec. (q)(1)(B)(I). In this way, the Bill appears to be considering
``abandoned'' to be a site with no viable operator to conduct the
cleanup regardless of landownership or the potential liabilities of the
landowner created in other applicable authorities. Yet the
``remediating parties'' eligible to obtain the permits allowed by the
Bill exclude the United States where the ``abandoned mined land is
located on Federal land,'' 33 U.S.C. 1342 Sec. (q)(1)(D).
The usefulness of the Clean Water Act waiver created by this Bill
is significantly undermined by its conditioned treatment of landowners,
its failure to acknowledge the broad (and well litigated) scope of
potential CERCLA liability which exists with regard to the owners of
inactive mining sites, and its exclusion of federal agencies acting on
federal lands. The last thing that will encourage the cleanup of
contaminated sites in this country is another system of identifying
responsible parties; confusion and litigation over that very issue has
held up more cleanups in this country than any Clean Water Act
requirements.
the bill adds process on top of process, bureaucracy on top of
bureaucracy
Whether implemented by government or private interests, remedial
programs designed to respond to the impacts of inactive mines must
overcome significant financial and technical hurdles. But the
regulatory and procedural hurdles facing such projects are onerous as
well. The process and regulations--at times--have no connection to a
beneficial health or ecological outcome. This Bill inserts a totally
new permitting application and review process into a scenario that is
already crowded with such processes. While the Bill may provide some
incentive in waiving certain Clean Water Act requirements (but see
discussion above), the detailed content it requires for a remediation
permit application creates a whole new layer of process and burdens.
Equally problematic is the fact that nowhere does the Bill reference or
acknowledge--or provide any protection or relief from--existing CERCLA
and RCRA authorities and liabilities which potentially apply to the
remediation projects envisioned by the Bill. It is well known that
those statutes establish procedural systems comprehensible only to the
experts. Do we really need to add more procedures without adding any
relief from those that already exist? Combined with the seemingly
unconditioned authority vested in the EPA, this omission greatly
detracts from any appeal the Bill might have for States or other
agencies considering cleanups of abandoned mine lands. Further, the
requirement that to be eligible for a permit sites be the subject of a
``planned or ongoing'' CERCLA action, 33 U.S.C. 1342 Sec. (q)(1)(A)(ii)
eliminates many, many sites from consideration based on procedure
rather than environmental good sense, erodes the State voice in the
process, and vests tremendous discretion in EPA superfund programs
based on whether they choose to ``plan'' a response action at a site.
absence of funding
In addition to liability, another major hurdle to abandoned mine
cleanups is money. Unlike abandoned coal mines, however, there is no
single dedicated source of federal funds to cleanup abandoned hardrock
sites. At all levels, limited financial resources severely limit the
amount of environmental and safety work that can be accomplished. State
land management agencies have access to only small or irregular funding
from legislative appropriations or funds dedicated to mine cleanups,
making comprehensive programmatic cleanups difficult. On the federal
level things are not much better, although in recent years, the Bureau
of Land Management and Forest Service have received significant
increases in their appropriations for abandoned mine work. Where
possible, the mining industry as a whole has contributed money to help
solve the problem. In the absence of viable operators or owners,
cleanup funding must be pieced together. The funds available have been
spent on some high priority work. S. 1787 states that cleanups
conducted under its provisions are eligible for section 319 grants. 33
U.S.C. 1342 Sec. (q)(10). That option already exists, and has not
proved to be a dramatic incentive to cleanups. If Congress' goal is to
provide incentives for abandoned mine cleanup, the funding question
needs to be addressed, and a Good Samaritan statute would be an
appropriate mechanism to do so.
conclusion
The State of Idaho is supportive of the intent behind Good
Samaritan proposals in attempting to eliminate disincentives for
abandoned mine cleanups. Where a government agency chooses to step in
and take actions to respond to threats from such abandoned mines, S.
1787 correctly identifies that the requirements of the Clean Water Act
pose a disincentive. At the same time, we have grave concerns about the
fact that the Bill fails to acknowledge the significant State
authorities and obligations created elsewhere in the Clean Water Act
and other environmental laws. There is simply no precedent or
justification for unilateral federal authority in this area. Further,
the usefulness of the Clean Water Act waiver created by this Bill is
significantly undermined by its conditioned treatment of landowners,
its failure to acknowledge the scope of potential CERCLA and RCRA
liability which exists with regard to the owners of inactive mining
sites, its failure to identify funding, and its inexplicable exclusion
of federal lands. Also, the exclusion of sites subject to CERCLA
actions is unnecessarily broad. In sum, while supportive of the intent
of this legislation, the State of Idaho is doubtful that in its current
form S. 1787 would ever be used by the State of Idaho or any other
agency in Idaho to facilitate the cleanup of an abandoned mine site.
______
Responses by Kate Kelly to Additional Questions from Senator Crapo
Question 1. Should states or the EPA primarily establish water
quality goals for waters within their borders? Is this bill consistent
with that principle?
Response. Water quality is and should remain primarily a State
issue. Many states have primacy under the Clean Water Act and/or have
State laws establishing water quality standards. States establish
numeric and narrative standards for many contaminants such as fine
sediment and metals, and certify that operating permits such as
National Pollution Discharge Elimination System and Dredge and Fill
permits are consistent with and protective of the state's standards. It
is inconsistent to allow the potential for EPA to establish another set
of criteria for water quality in a permit issued under this bill.
Question 2. Do you believe that the water quality cleanup standards
called for in this measure are clear or measurable?
Response. No. S. 1787 provides EPA with discretionary authorities
to establish cleanup standards which will result in ``improvement in
water quality to the maximum extent practical.'' This term is not
defined in the bill, and is impracticably vague. S. 1787 does not
contain clear provisions for water quality cleanup standards that Idaho
can compare with our own water quality standards.
Question 3. Do you believe that any new good samaritans will
undertake cleanups at sites under this proposal? Or do you believe that
only already-acting parties will be interested in pursuing further
liability protections afforded under S. 1787?
Response. There is no question that State and Federal agencies will
continue to try to find creative ways to clean up inactive and
abandoned mine sites. It is doubtful, however, that the provisions of
the bill will see much use by good samaritans who would not already act
under the existing structure. The reasons for this are simple. S. 1787
creates a complex process for navigating through already complex issues
at inactive and abandoned mine sites. Also, S. 1787 does not address
liabilities associated with CERCLA which, along with Clean Water Act
requirements, are a major deterrent to good samaritan clean ups.
Question 4. Do you believe that the eligibility for Section 319
grants incentive provided by S. 1787 would be enough incentive for new
potential good Samaritans?
Response. No. States have many more projects proposed for 319
grants than can ever be awarded. In Idaho, as in many states, those
projects are focused on implementation plans for Total Maximum Daily
Loads (TMDLs). These plans will take 10 to 20 years to implement
statewide. A judicial ruling dictates that the TMDLs and their
respective implementation plans must proceed. It is unlikely that
``Good Samaritan'' cleanup activities would rank against the TMDLs for
grant awards even if states wanted to divert the limited 319 funds
available.
Question 5. What problems do you envision would be created by this
bill's lack of RCRA and Superfund liability waivers?
Response. This omission will greatly detract from the usefulness of
the bill and will leave in place another major deterrent to good
samaritan cleanups.
Question 6. If a State wants to effect a cleanup on its own lands,
under this bill, that State would have to contract through another
level of government for the permit. Do you consider this bureaucratic
regulatory burden to be a significant disincentive for potential good
samaritians? Is this the most efficient use of limited State resources?
Response. States like Idaho will continue to develop comprehensive
strategies and plans for systematically cleaning up inactive and
abandoned mine sites. This bill replaces one burdensome permitting
process (Clean Water Act) with another (Remediation Permit), without
any apparent additional incentive. Moreover, the permit program created
under the bill is administered solely by EPA; this fact creates a
significant disincentive, and would delay cleanup plan development and
implementation. The permitting structure created by the statute would
not be a prudent place to dedicate the limited resources available to
states.
Question 7. Do you believe the conditions under which a permit
could be terminated under this bill are correct?
Response. The termination clause of S. 1787 invests considerable
discretion in EPA to potentially terminate permits that would otherwise
be relied on by the remediating party. This is another disincentive to
using the provisions of the bill. Not only should the bill more
narrowly restrict the conditions under which a permit can be
terminated, S. 1787 should also conditionally provide for release of
``Good Samaritans'' from liabilities under the Clean Water Act, RCRA
and CERCLA.
Question 8. Does S. 1787's threshold of cleanups to the ``maximum
extent practicable'' provide appropriate standards or would it preclude
marginal, but significant environmental improvements? Should potential
good samaritans be excluded from consideration because they would not
be able to accomplish small improvements to the environment?
Response. The ``maximum extent practicable'' terminology is far too
vague for interpretation or practical application. This language should
be replaced by more familiar discussion of cleanup performance goals
and measures established for each site by stakeholder groups (including
but not limited to State and Federal land management agencies, and the
public). Partial cleanups or closures would be much more likely to
occur under this type of standard. So long as their activities improve
the situation, potential good samaritans should not be discouraged from
performing partial cleanups.
Question 9. How many additional site cleanups do you expect the
State of Idaho to undertake as a result of the enactment of this
legislation?
Response. None. The narrow application, disincentives and legal
implications inherent in this bill effectively eliminate its potential
usefulness to the State of Idaho.
__________
Statement of William B. Goodhard, Director, Reclamation & Environmental
Affairs, on Behalf of Echo Bay Mines and the National Mining
Association
introduction
Chairman Crapo, Senator Baucus my name is Bill Goodhard and I
appear here today on behalf of Echo Bay Mines where I am the Director
of Reclamation and Environmental Affairs. I also appear at the request
of the National Mining Association. My comments today are based upon my
24 years experience in the minerals industry.
During my career in the industry I have worked as an exploration
geologist, mine geologist, technical assistant to milling, mill
superintendent, chief geologist, mine superintendent, superintendent of
technical services, resident manager, project manager and director of
reclamation and environmental affairs. For the last 12 years
responsibilities have included mine reclamation and mine closure. I
have designed or supervised reclamation and mine closure budgeting,
negotiation and work. The work has been at four underground mines, two
open pit mines and one developmental project located in the western
United States and Canada. The work has included negotiating and working
with local, State and Federal agencies as well as with a watershed
stakeholder group. I appreciate the opportunity to share my thoughts on
the ``abandoned and Inactive Mine Waste Remediation Act,'' S. 1787.
general comments
First I would like to thank Senator Baucus, his colleagues and co-
sponsors, Senators Daschle, Campbell, and Reid for advancing the debate
on Good Samaritan issues with the introduction of the ``Abandoned and
Inactive Mine Waste Remediation Act, S. 1787. I also thank Senator
Crapo for today's hearing, and for providing an opportunity to hear
from the mining industry on an issue that the industry considers very
important. The very fact that we are here today at this hearing speaks
to the high level of importance that the U.S. Senate and numerous
stakeholders have placed in solving this problem.
Unfortunately, as currently drafted, the liability relief in S.
1787 is illusory because it does not include the two groups of
remediating parties that must play a significant role if we are to
solve the abandoned mine cleanup problem. The two parties I am
referring to are the Federal land management agencies (e.g., the U.S.
Bureau of Land Management, the U.S. Forest Service, and the National
Park Service) on whose land most abandoned mines are located, and the
private sector who has demonstrated both the willingness and the
capability to reclaim abandoned mine land (AML) sites.
Like the Senators here today, the National Academy of Sciences/
National Research Council (NAS/NRC) also recognizes the need to enact
Good Samaritan liability relief if we are to solve the AML cleanup
problem. A recently published NAS/NRC study on hardrock mining entitled
``Hardrock Mining on Federal Lands \1\
discusses the existing legal and regulatory impediments thwarting
private-sector cleanup of AMLs and stresses the importance of enacting
legislation to facilitate and promote AML cleanup. The NAS/NRC prepared
this 249-page study'' (the Study) in response to a Congressional
directive to review existing rules for mining and to determine how well
these rules protect the environment. The Study findings regarding AML
cleanup include the following:
\1\ Hardrock Mining on Federal Lands, National Research Council/
National Academy of Sciences, 1999.
Recommendation 7: 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 mine operators to incur additional environmental
liabilities. \2\
---------------------------------------------------------------------------
\2\ NRC/NAS Study, page 104.
---------------------------------------------------------------------------
Implementation: To promote voluntary cleanup programs at
abandoned mine sites, Congress needs to approve changes to the
Clean Water Act and the CERCLA legislation to minimize company
liabilities. \3\
\3\ NRC/NAS Study, page 106.
These NAS/NRC findings are particularly noteworthy given the fact
that Congress did not specifically ask the NAS/NRC to examine the AML
issue. However, the evidence gathered during the course of the NAS/
NRC's research efforts was so compelling, that this recommendation was
included in the Study. The NAS/NRC comments on the AML issue underscore
the importance of our discussion here today and point to the need to
enact meaningful liability relief as quickly as possible. I would like
to devote the rest of my testimony to describing how the current bill
will not achieve the goal of solving the liability problem and offer
suggestions to address the shortcomings in S. 1787.
The assertion that significant progress could be made toward
solving the AML problem if the private sector were granted Good
Samaritan liability relief is not conjectural. The private sector has
already helped to clean up numerous abandoned and inactive mines
throughout the West. Some of these private sector efforts are
documented in a study published in 1998 by the National Mining
Association entitled Reclaiming Inactive and Abandoned Mine Lands--What
Really is Happening'' \4\. I would like to request that this study be
placed in the hearing record.
---------------------------------------------------------------------------
\4\ Reclaiming Inactive and Abandoned Mine Lands--What Really is
Happening, Struhsacker, D.W., and Todd, J.W., prepared for the National
Mining Association, 1998.
---------------------------------------------------------------------------
The NMA study presents compelling evidence that given the right
opportunity, the private sector can play a significant role in
improving the environment at abandoned and inactive mines. The NMA
study also documents that State and Federal agencies have accomplished
AML cleanups.
The NMA study presents data from industry sources and State
abandoned mine programs on successfully reclaimed AML sites in a number
of western states and includes detailed information on nearly 80
successfully reclaimed AML sites. Like the NAS/NRC study, the NMA study
also concludes that there are a number of legal, regulatory, and
institutional barriers that are impeding progress on solving the AML
problem. The NMA study findings are based on the characteristics of the
80 reclaimed AML sites described in the report and comments made by
State AML program personnel and mining industry sources contacted
during the study. The study findings relevant to this discussion are
summarized as follows:
Private Funding, Equipment, and Labor from the Mining
Industry Have Been Responsible for Reclaiming and Remediating Many AML
Sites.--Industry has spent tens of millions of dollars in voluntary on-
the-ground cleanups and abatements of AML sites throughout the West.
The progress made to date and the lessons learned by both the mining
industry and State and Federal regulators in addressing these sites is
often overlooked in policy discussions on the AML issue.
AML Reclamation, Remediation, and Abatement Solutions Must
be Site Specific.--Just as no two mines are identical, each AML has
unique characteristics based upon site-specific physical conditions and
ownership patterns and history. Therefore, appropriate solutions to
problems at an AML must be determined on a site-by-site basis.
The Term ``Remining'' Has Been Used Too Broadly.--AML
stakeholders (e.g., industry, regulators, industry critics, and the
public) have indiscriminately used the term ``remining'' to mean any
project involving active mining and concurrent AML reclamation and
cleanup. Remining should be used to describe projects that process or
reprocess previously mined materials. Concurrent mining and
reclamation/remediation of an adjacent or nearby AML is more
appropriately called ``reclamation-mining''.
Industry Reclamation-Mining Projects Have Contributed
Significantly to AML Cleanups.--The numerous examples of reclamation-
mining examined in this survey document that significant synergism can
be achieved when active mining operations reclaim and remediate
problems at adjacent or nearby AML sites. There are a number of
reclamation-mining sites at which industry-funded reclamation/
remediation activities have achieved significant environmental
improvements. Most of these reclamation-mining projects occurred at
sites acquired prior to the mid- to late 1980's. It appears that
liability concerns have inhibited industry acquisition of previously
mined areas since then, probably corresponding to the enactment of
CERCLA and the Superfund Amendments and Reauthorization Act (SARA) in
the 1980's. Reclamation-mining could be a significant partial solution
to the AML problem if CERCLA, CWA and other liability barriers were
removed.
Remining Has Occurred on a Very Limited Basis and May Not
be Profitable at Most Sites.--Only six examples of remining, in which
previously mined materials were processed or reprocessed, were
identified in this survey. Just one of the six produced a net economic
gain which occurred during a period of extraordinarily high gold prices
in 1981. Based on this limited data, remining may not be financially
rewarding at many sites but may help off-set AML remediation and
reclamation costs.
Widespread Misconceptions About Remining Have Complicated
Development of a Good Samaritan Liability Relief Policy.--Policy
discussions have incorrectly characterized all concurrent mining and
AML reclamation/remediation efforts as remining and have assumed
remining is a profitable endeavor. The reluctance on the part of some
members of the regulatory and activists communities to extend liability
relief to a profitable remining project is perhaps understandable.
Unfortunately, intransigence on this issue has created great
difficulties in developing liability relief policies applicable to any
industry-sponsored AML cleanup project.
Renewed Dialogue to Develop Liability Relief for
Uneconomic Remining Projects and for Reclamation-Mining Projects is
Needed.--Concerns about extending liability relief to remining
activities should be refocused on profitable projects. Uneconomic
remining and reclamation-mining projects should qualify for liability
protection.
AML Sites with Acid Rock Drainage (ARD) From Mine Openings
Pose the Most Challenging Technical and Policy Problems.--Remediation
of ARD from underground workings is the most challenging issue both
from a technical and a legal perspective. Although passive water
treatment systems can achieve significant water quality improvements
and are practical at remote sites with no power infrastructure, more
sophisticated water treatment measures are typically required to meet
water quality standards and NPDES permit limits. Both State agencies
and the private sector face onerous legal challenges from Clean Water
Act citizen lawsuits for residual drainage from remediated AML sites
that does not meet arbitrary water quality standards--regardless of the
improvements realized at these sites.
CWA Citizen Lawsuits Are Significantly Chilling State and
Industry Efforts to Improve AML Sites with ARD.-- Concerns about CWA
citizen lawsuits have nearly completely stymied cleanup progress at
sites with acid drainage from underground workings. The end result is a
net loss to the environment as water quality problems at these sites
remain unabated. Remediation measures that could result in incremental
(and in some cases significant) water quality improvements are not
undertaken for fear of the resulting liability exposure.
Pursuit of the Perfect is Thwarting Realization of the
Good.--Regulatory policies that require strict compliance with all
environmental standards, particularly arbitrary one-size-fits-all water
quality standards, have forestalled State and industry AML cleanup
projects that may produce significant environmental benefits but that
do not meet some water quality standards. A new policy approach is
needed to facilitate partial and incremental cleanup efforts and to
protect the parties involved from exposure to CWA citizen lawsuits.
shortcomings of s. 1787 and suggested remedies
Although the introduction of S. 1787 presents an opportunity to
open the dialog, I must emphasize that S. 1787 by itself will not
accomplish the goal of facilitating AML cleanup and improving the
environment at AML sites. As documented by the findings of the NMA
study, the bill as written does not go far enough to provide meaningful
liability relief to both private and public sector interests who might
otherwise be in a position to improve the environment at an inactive or
abandoned mine, nor does it provide any incentives that would encourage
voluntary cleanups. Therefore, I do not believe S. 1787, in its current
form, will do much if anything to encourage on the ground cleanup of
abandoned mine lands. The remainder of my testimony will present
suggestions for addressing the current shortcomings in the bill:
Specifically the following areas need to be addressed:
Expand the definition of remediating parties;
Recognize that land status at most AML sites is a complex
mixture of private and public ownership;
Allow the Federal and State governments, Indian Tribes and
municipalities protection for cleanup of its sites for which it is not
responsible;
Accept the concept of net environmental gain in lieu of
maximum extent practicable and use existing site conditions to define
the baseline against which net environmental gain will be measured;
Maximize the investment of resources spent on-the-ground
rather than devoted to a protracted regulatory review process by
developing a streamlined permitting process for proposed AML cleanup
projects and eliminating open-ended authorities granted to the
Administrator allowing for additional information;
Allow States permitting authority;
Provide liability protection from CERCLA actions to
qualifying volunteers if the cleanup is done according to the approved
plan;
Provide liability protection from CWA citizen lawsuits at
sites where cleanup activities result in incremental water quality
improvement but may not be able to meet arbitrary water quality
standards;
Eliminate limitation precluding sites proposed for
inclusion on National Priorities List (NPL) and sites that are subject
of planned or ongoing response or resource damages actions;
Remove disincentives for remining and reclamation mining
where contemplated by the approved plan; and
Provide incentives for encouraging private sector
involvement in cleanups;
Allow for grants from other programs, including 319 (h) to
be used for cleanups.
I believe these changes can be made while preserving the intent of
the Clean Water Act that requires other actions and requirements of
responsible parties. The Good Samaritan concept is a useful tool that
foster voluntary cleanups of abandoned and inactive mines resulting in
positive environmental gains and improved water quality. A more
detailed discussion of these suggested changes follows.
The Definition of Remediating Parties Must be Expanded
The first step in developing a Good Samaritan liability relief
proposal must be founded on a clear understanding of the universe of
parties (i.e., stakeholders) who may potentially undertake an AML
cleanup effort. As documented in the above referenced NMA study, the
private sector, State regulatory agencies, and Federal land management
agencies have all performed AML cleanup projects in the past. It seems
logical that under the proper circumstances, these three stakeholder
groups are likely to be the remediating parties of the future.
Therefore, it is imperative that liability relief extend to all of
these entities in addition to those already included in the bill: the
private sector, State agencies, Federal land management agencies, and
Federal land owners.
A careful consideration of the ownership conditions that apply to
AML sites will quickly reveal that both the public and private sectors
must be included in the definition of remediating party and granted
Good Samaritan liability relief. Otherwise, very few problematic
historic mines will benefit from Good Samaritan liability relief
provisions, and the enacted liability relief will be so limited in its
application as to be illusory. The following definitions are suggested
to clarify these ownership issues:
Abandoned Mine.--A site with no private owner of record typically
on public land managed (and sometimes owned) by a Federal, State, or
local government agency. These sites are sometimes referred to as
``orphaned''. Abandoned mines on public land comprise a very
significant portion of the universe of problematic AML sites.
Inactive Mine.--A site on patented/private land which, in contrast
to an abandoned site, has an owner or owners of record. However, at
many sites the current inactive mine owners are not the entity involved
in the past mining activities that created the safety hazards or
environmental problems. Moreover, some owners of inactive mines do not
have the financial resources necessary to correct the safety and
environmental problems.
Excluding Federal land management agencies or Federal land owners
(on their own land) from the definition of remediating party will mean
that a large population of AML sites will not benefit from the proposed
Good Samaritan liability relief provisions. Thus, as currently written,
S. 1787 does very little if anything at all to advance the goal of
cleaning up problem sites on public land because Federal land owners
and Federal land management agencies represent stakeholders with a
significant interest in addressing abandoned mines, and are thus likely
remediating parties. Likewise, precluding the State as a remediating
party on its own lands unless the State purchased the land for the
purpose of cleaning up the site similarly limits the utility of this
bill.
Another potential remediating party for abandoned sites on public
land is the private sector, such as a mining company with a nearby or
adjacent property. By excluding such private parties from remediating
party status, the bill fails to recognize that industry is already
investing millions of dollars voluntarily, yet such private parties
would not receive the benefit of the liability protections provided by
the bill. In fact, it was the hardrock mining industry that initiated,
in cooperation with the Western Governors Association, the Abandoned
Mine Land Initiative (AMLI). The AMLI was the first cooperative effort
between industry and government to address the AML problem. Currently,
the AMLI is working toward completing pilot cleanup projects in the
western states. Unfortunately, until the CERCLA, RCRA and CWA liability
issues are resolved, such projects are limited to the less complex
sites, thereby leaving the high risk sites unaddressed. For these
reasons, S. 1787 must be expanded to include private parties, including
the mining industry, as a matter of good public policy.
Finally, S. 1787 must be expanded to clarify that liability
protections that apply to either a State or Federal agency also extend
to private-sector contractors charged with executing the on-the-ground
work. Because State and Federal agencies typically contract work to
third-party, private-sector companies, the contractual relationship
between a State or Federal agency should designate the contractor as an
agent of the governmental entity, and clearly include the contractor in
the liability coverage.
The Focus to Identify PRPs is Inconsistent with the Good Samaritan
Concept
The concept of the Good Samaritan gets lost in the proposed
legislation. In the context of AML cleanup, a Good Samaritan is a
person, private-sector company, or government agency that acts
voluntarily and without obligation to improve the environmental
conditions at a specific site. Therefore to be maximally effective in
facilitating AML cleanups, S. 1787 should provide complete protection
for those who pursue voluntary cleanup activities. As a matter of
policy, an entity that desires to remediate an AML site should not have
to assume liability for pre-existing conditions at the AML site.
Furthermore, once those planned activities are completed, the Good
Samaritan should be released from any further permit obligations and
should be free from exposure to citizen suits.
It should also be clearly understood that identifying parties with
previous involvement at an historically mined site is typically a very
complicated task. Most historic mining districts are comprised of a
complex mixture of private and public land. At many AML sites the
private land consists of patented mining claims that are intermingled
with and/or surrounded by unpatented claims (i.e., public land).
Assigning liability is especially difficult at these mixed estate AML
sites, and at sites with a history of multiple owner/operators. Some
sites have numerous potentially responsible parties (PRPs); some have
only one or two owners/operators; and others have no viable owners at
all. Although a title search may reveal an owner of record for the
patented claims, it is not uncommon for the current private land owner
to be an absentee owner who had no involvement with the mining
activities at the site and who may have limited or no resources to
devote to an AML cleanup. For example, the patented claims may have
been inherited by the present owners as part of an estate settlement.
Or, for that matter, the private, absentee owner may be ``financially
capable'' yet unwilling to engage in cleanup. S. 1787 provides no
incentive to encourage the private, financially capable landowner to
join the voluntary cleanup. Therefore, the majority of these sites will
go unaddressed. This becomes particularly important where a site is
situated in a watershed targeted for cleanup or where the site is
located adjacent to a site undergoing cleanup, etc. It is important to
note that this provision of S. 1787 in effect actually impedes
addressing the AML problem on a watershed basis.
It is highly likely that all or some of the public land at an
historic mine site consists of unpatented mining claims for which there
is no current claimant and is thus truly an abandoned site. The
incidence of abandonment of unpatented claims increased dramatically
following Congress' decision in 1993 to eliminate the annual assessment
work requirement and to substitute an annual claim maintenance fee of
$100 per unpatented mining claim. Since that date, many mining
claimants abandoned their claims because they were unwilling or unable
to pay for the annual claim maintenance fee.
In the context of Good Samaritan provisions, these factors mean
that an effort to identify PRPs is difficult, impractical, and may not
find entities with significant financial resources. Moreover, a
protracted PRP search merely detracts from the resources that could
otherwise be spent performing on-the-ground environmental improvement
measures.
The focus of S. 1787 should be to expedite and facilitate tangible
environmental improvement at sites affected by outmoded mining
practices that existed prior to the development of today's
environmental laws and regulations. The proposed PRP search
requirements are inconsistent with that goal and regrettably reflect a
``search for the guilty party'' vendetta rooted in an attitude of
historical revisionism that fails to recognize that nearly all AML
sites were mined in the distant past when there were no environmental
controls on mining--or other human endeavors.
S. 1787 Should Facilitate Projects that Have a Reasonable Chance to
Produce Net Environmental Benefits
If it is agreed that the principal objective of S. 1787 is to help
solve the AML problem by encouraging and facilitating voluntary
cleanups of AML sites, then it is important to recognize that other
issues besides liability exposure must also be addressed. One of the
main regulatory barriers currently thwarting both private and public
sector voluntary cleanups is concern about whether a proposed cleanup
project will be able to meet stringent water quality standards. This
concern translates into a significant reluctance to pursue voluntary
cleanup projects for fear that the remediating party will be subjected
to regulatory sanctions and even citizen lawsuits if water quality at
the remediated site does not meet predetermined and typically arbitrary
water quality standards. The following sections discuss this issue in
detail and suggest ways to address this significant regulatory barrier
to voluntary AML cleanups.
Defining and Attaining Cleanup Criteria
Defining appropriate and attainable cleanup criteria at AML sites
with contaminated surface water and/or groundwater creates both
technical and regulatory challenges that are impeding public- and
private-sector AML cleanup activities. At many AML sites, naturally
occurring geochemical reactions between the mineralized rocks and the
surface water or groundwater systems contribute dissolved metals,
sulfate and other parameters to proximal surface and groundwater
resources. Consequently, surface water and groundwater systems in and
near some orebodies have background water quality conditions that may
exceed one or more regulatory standards. The absence of baseline (i.e.,
pre-mining) water quality data for most AML sites makes determining any
incremental contamination due to mining activities technically
challenging and impractical at some sites.
However, the naturally occurring levels of metals and other
chemical constituents contributed by the orebody need to be considered
in developing reasonable AML water quality cleanup goals. As discussed
in CCEM (1998), states often apply EPA ``Gold Book'' standards in
defining numeric concentration limits for pollutants like heavy metals.
These one-size-fits-all standards do not consider site-specific factors
including the geochemical signature that an orebody may imprint upon
nearby surface waters. The unilateral application of Maximum
Contaminant Levels (MCLs) to determine groundwater quality cleanup
requirements poses similar problems at mineralized sites at which
groundwater quality reflects the geochemistry of the orebody.
The CWA authorizes the EPA to require owners of both active and
inactive mines to obtain an NPDES permit that stipulates effluent
limits for surface water discharges. Depending upon the designated
beneficial use of the receiving surface water and the corresponding
water quality standards, NPDES permits typically establish stringent
effluent limits. Active mining operations successfully employ proven
and effective water treatment technologies to meet NPDES permit limits.
However, these water treatment measures may not be feasible at many AML
sites in remote locations lacking the necessary infrastructure to
operate a water treatment plant.
The use of Gold Book standards to set surface water quality
standards or MCLs to set groundwater quality standards creates a
significant dilemma at many AML sites. Applying these standards may
require an AML cleanup effort to achieve the impossible--to make a site
``cleaner than clean'' by mandating improvements in water quality that
do not reflect pre-mining conditions and the presence of metals,
sulfate, etc. due to naturally occurring reactions between the orebody
and the surrounding water systems.
It is important to note that the Environmental Protection Agency
(EPA) acknowledges, in the context of coal remining operations, that
requiring AML cleanup efforts to meet strict numeric standards is
sometimes inappropriate and is a disincentive to remining. In an effort
to remove regulatory impediments and to encourage remining, EPA
recently proposed to amend the CWA regulations to address pre-
existing discharges at coal remining operations. 65 Fed. Reg. 19440. As
justification for the proposal, the EPA acknowledges the following:
``remining has the multiple benefits of improving water quality,
removing hazardous conditions, and utilizing remaining coal as a
resource instead of mining virgin land.'' Furthermore, the Agency
acknowledges, ``requiring the treatment of pre-existing discharges to
meet existing standards has been shown to be cost prohibitive, and
thus, a disincentive to remining activities.'' \5\ S. 1787 fails to
make similar findings.
---------------------------------------------------------------------------
\5\ EPA Fact Sheet ``Amendments to Effluent Limitations Guidelines
and New Source Performance Standards for the Coal Mining Point Source
Category: Proposed Rule'' March 2000.
---------------------------------------------------------------------------
AML Cleanup Policies Should Focus on Net Environmental
Benefit--Not Arbitrary Standards
In discussing the issue of AML reclamation/remediation and water
quality requirements it is very important to acknowledge that
significant water quality improvements can be achieved at many sites by
performing some fairly straightforward physical reclamation. The NMA
study documents a number of cases where the simple removal of mine
waste from a drainage course, rerouting a drainage away from or around
a mine waste pile, or capping a mine waste pile to minimize
infiltration of meteoric water has improved water quality--sometimes
substantially. Moreover, these improvements in water quality often
translate into a significant recovery of aquatic habitat to the point
where fish populations have dramatically increased.
However, additional, costly water treatment measures, including
construction and operation of a water treatment plant, would be
required at some of these sites in order to achieve water quality
standards such as those that might be specified in an NPDES discharge
permit. The concern that voluntary reclamation work could ultimately
force the remediating party to construct and operate additional water
treatment requirements is having a significantly chilling effect on
voluntary AML reclamation work. This means that the significant
environmental benefits that can be achieved with physical reclamation
work are foregone. Moreover, the incremental improvement in water
quality that may be achievable with a water treatment plant may not be
cost effective when measured in the context of meaningful improvements
in fish populations, enhancements of aquatic habitat, or benefits to
downstream users. S. 1787 thus needs to be modified to remove this
regulatory barrier in order to allow and encourage projects that result
in a net environmental benefit but may not meet arbitrary water quality
standards.
How Should Environmental Benefits be Measured
As discussed above, determining pre-mining water quality conditions
is a technically challenging if not impossible task at many AML sites.
It should also be recognized as an unnecessary complication when
applied to a voluntary AML cleanup project. AML cleanup policies should
specify that the only conditions that are relevant in assessing a
cleanup proposal are the existing conditions. The baseline data
inventory effort should be accomplished as expeditiously as possible in
order to minimize the resources spent studying the problem, and to
maximize the resources spent solving the problem.
AML Cleanup Policies Should Not Stifle Experimental Cleanup
Techniques
Although significant environmental improvements can be achieved at
AML sites using existing techniques and technology, it is highly likely
that an improved regulatory climate that allows voluntary AML cleanups
would stimulate the development of new and possibly more effective
cleanup technologies. AML cleanup policies should therefore include
provisions to allow onsite testing of new or experimental reclamation
and remediation techniques. Remediating parties who wish to try new or
unproven techniques at voluntary cleanup sites should be allowed to do
so without fear of regulatory sanctions or citizen lawsuits if the
resulting water quality does not meet expectations.
S. 1787 needs to be modified to include language that authorizes
remediating parties conducting voluntary cleanups to use experimental
techniques that have a reasonable likelihood of success. The absence of
this type of liability and regulatory relief measure will completely
stymie the development of new and improved AML reclamation and
remediation techniques.
S. 1787 Should Be Modified to Include CERCLA/RCRA and CWA Citizen Suit
Liability Relief
Past industry-funded improvement projects at AML sites have been
driven primarily by the desire to avoid, reduce, or otherwise limit
liabilities associated with both safety hazards and environmental
concerns. If contaminants such as metals, sediments, or acid rock
drainage (ARD) have been or are being released or have the potential to
be released from an AML site, the owners, operators, or managers of
that site potentially face liabilities under a number of State and
Federal environmental laws, CERCLA, RCRA and the CWA being foremost
among them.
Without the necessary liability relief from CERCLA, RCRA and the
equivalent State statutes, most AMLs will simply go unaddressed.
Potential CERCLA liability is considered the single greatest obstacle
to cleaning up AMLs. Because heavy metals are considered ``hazardous
substances'' under the CERCLA regulatory regime, a current or past
owner or operator of an AML could be liable for cleanup of the AML to
the extent ``hazardous substances'' are determined at the site.
Incurring CERCLA liability can be as easy as having ``active
involvement in the activities'' at a site. Furthermore, any ``active
management'' of mining wastes not excluded by the Bevill exemption
would trigger RCRA Subtitle C regulation of the actively managed wastes
to the extent those wastes qualify as ``hazardous wastes.'' Once
triggered, RCRA Subtitle C regulation would impose exceedingly
stringent generation, transportation, treatment, storage and disposal
requirements, the so-called ``cradle to grave'' regulation.
Thus, at many AML sites it is simply good business practice and in
the owners' best interest to reclaim the site as expeditiously and
efficiently as possible. However, the potential for citizen lawsuits
under the CWA should discharges occur at reclaimed AML sites
effectively suffocates the best intents of industry (as well as State
AML agencies and Federal agencies) to reclaim any more sites than
absolutely necessary to contain potential CERCLA actions. While
industry may have the desire and the means to abate and remediate AML
sites throughout the West, implementation will not be achieved until
there is indemnification against such litigation and associated
liabilities.
Voluntary remediators should be treated similar to CERCLA remedial
action contractors. Under this exemption, a remediator would not be
liable under CERCLA or any other Federal law unless they cause damages
as a result of their negligence, gross negligence or intentional
misconduct. If S. 1787 is to have any utility, the CERCLA/RCRA
liability issues must be addressed.
The Term ``Remining'' Has Been Used Too Broadly in AML Policy
Discussions
Defining Remining
The term ``remining'' is used rather indiscriminately in both the
public and the private sectors to describe a broad range of renewed
mining activities in previously mined areas. The findings of the NMA
study suggest that a narrower definition of remining would be useful in
focusing policy issues that affect remining and AML reclamation and
remediation. The suggestion is made herein to restrict the use of the
term remining to projects involving processing of existing mine wastes
(e.g., waste rocks, and low-grade stockpiles) and/or reprocessing of
tailings and previously leached materials (e.g., heap leach ores) at a
nearby metals recovery (i.e., treatment) plant. The term ``reclamation-
mining'' is suggested for active mining projects with concurrent AML
reclamation and remediation activities that do not include mine waste
processing or reprocessing. Using these definitions, remining is a
subset of reclamation-mining. Reclamation-mining is discussed later in
this testimony.
Remining Benefits
In the last few years, AML policy discussions about remining have
assumed that remining results in both environmental and economic
benefits. Because remining metal-bearing mine wastes achieves source
reduction, it can be an exceptionally effective environmental cleanup
method for AML sites. Other cleanup methods such as water treatment or
waste containment do not reduce or eliminate the source of the
contaminants, and may create long-term operational and monitoring
requirements. In contrast, recovering metals by remining removes some
or all of the contaminant source, thereby minimizing the volume of
problematic mine waste and reducing the residual metals content in the
resulting waste product. Additionally, the newly generated mineral
processing wastes are disposed of in a modern, permitted mine waste
disposal facility with appropriate containment, monitoring, and
financial guarantees. Remining is thus an environmental remedy in the
form of resource recovery and source reduction, both of which are EPA-
favored responses for environmental cleanups and waste management.
Remining is also assumed to produce economic rewards for the
company that processes or reprocessed the previously mined materials
because the company recovers some of the metals in these materials and
avoids some of the costs associated with mining new ore. A 1993
remining study identified widespread industry interest in remining,
suggesting that remining could be viable at a number of sites. However,
this study also revealed equally widespread concerns about the
potential environmental liability exposure associated with becoming
involved with historically mined areas (Struhsacker, 1993).
Remining Examples
Despite the widespread recognition that remining could facilitate
AML cleanups at some AML sites, the NMA study identified only six sites
(the Alta Mine in Idaho, the Maitland Tailings and the Double Rainbow
Mine in South Dakota, the Dean Mine in Nevada, the Mercur Mine in Utah,
and the Westar Heap in New Mexico) at which remining involving mine
waste reprocessing has occurred. The limited number of remining sites
appears to be due to the same liability concerns identified in the 1993
remining survey. (It should be noted that mine wastes at the Westar
Heap were sold as a silica flux source; they were not reprocessed as a
source of residual metals). Details about these six sites are presented
in the NMA study.
The NMA study indicates that the assumptions regarding the economic
rewards associated with remining are inaccurate or overstated. Only one
of the identified remining projects, the 1981 reprocessing of the
Maitland Tailings in Lawrence County, South Dakota, produced a net
economic gain. Remining at the Double Rainbow Mine and the Westar Heap
sites helped defray the reclamation and remediation costs; however,
remining was not profitable at either project. The positive economics
realized by reprocessing the Maitland Tailings were due largely to
anomalously high gold prices in 1981. This project was undertaken
principally as an economic endeavor rather than as an AML remediation
effort--land use. It is not known whether remining would be financially
rewarding if pursued at other sites.
In several of the identified remining projects, remining was
selected as the most cost effective AML cleanup measure because it
allowed the mining companies to place the resulting tailings into an
existing tailings disposal facility, thus avoiding the costs and
environmental impacts associated with a new waste repository. However,
using an existing tailings facility for remining tailings consumes
space that would otherwise be available for tailings from processing
the primary orebody. Moreover, the remining wastes may not be of
comparable grade or recovery characteristics as the primary orebody.
Therefore, the decision to engage in remining and to displace primary
ore tailings with remining tailings must involve a site-specific cost-
benefit analysis.
Remining Policy Issues
The NMA study findings regarding the limited circumstances in which
remining is profitable are significant from a policy perspective. At
least some of the controversy surrounding development of a Good
Samaritan provision to the CWA for AML remediation has revolved around
remining. Mining industry critics and some regulators have strenuously
objected to allowing remining projects to qualify for the Good
Samaritan provision (CCEM, 1998). Their objections to providing
liability relief for remining presumably stem from the belief that an
economic endeavor should not enjoy liability protection. The limited
data available on remining suggests that this opposition may be based
upon an incorrect perception of remining economics. Moreover, the
widespread misuse of the term remining to mean concurrent mining and
any AML reclamation/remediation activity has inappropriately lumped
together a diverse group of industry-sponsored AML projects and stymied
progress on development of a liability relief policy applicable to some
industry-led AML cleanup efforts.
The suggestion is made herein to refocus these discussions in the
context of the restricted definition of remining as used in this report
(i.e., projects involving
processing or reprocessing of previously mined materials). By doing so,
perhaps the discussion can be focused on the environmental benefits
that stand to be gained by including provisions for such remining
projects outlined in this discussion. Accordingly, the committee should
reconsider the possibility of including a remining component with S.
1787.
Reclamation-Mining
Defining Reclamation-Mining
Although the NMA study identified only a few remining projects at
which industry processed or reprocessed previously mined materials as
part of an AML remediation effort, the study includes numerous examples
of reclamation-mining in which industry reclaimed and remediated AML
sites in and near active mining operations through synergism between
the active mine/mill and the AML site. The reclamation-mining examples
described in the NMA study capitalized upon industry expertise,
equipment, personnel, and existing mine waste disposal and mineral
processing facilities and infrastructure to close, reclaim, or
remediate the nearby AML site(s).
Reclamation-mining is a highly site specific undertaking both in
terms of the AML site characteristics and the range of activities,
resources, and facilities at the active mine and mineral processing
operation. The reclamation-mining sites identified in the NMA study
encompass a broad range of activities that have produced numerous and
varied environmental benefits. Examples of reclamation-mining
activities identified in the NMA study include the following:
Remining (as discussed above);
Removing and relocating old mine wastes to existing
project components (i.e., active, permitted tailings, heap leach, or
waste rock facilities)
Removing and relocating old mine wastes to new waste
repositories;
Stabilizing old mine wastes in-situ using appropriate
liners, caps, and covers; and
Remediating groundwater by taking advantage of dewatering
activities to support pump and treat opportunities.
The NMA study identifies the following environmental and public
safety benefits and improvements that have occurred as a result of
reclamation-mining activities:
Surface water quality improvements;
Landscape improvements;
Wildlife habitat restoration, preservation and
enhancement;
Historical preservation; and
Safety closures.
Appropriate Incentives Would Stimulate Voluntary AML Cleanup
Removing the liability risks and regulatory barriers discussed in
this testimony would be a significant step in solving the AML problem
by making voluntary AML cleanups a much less problematic. However,
creating incentives for parties engaged in voluntary AML cleanup
efforts could increase the number of voluntary AML reclamation projects
and would result in more and accelerated progress in reclaiming and
remediating AMLs. AML policy discussions such as the current dialog on
S. 1787 should go beyond the topic of liability relief and consider
ways to encourage and promote private-sector voluntary AML cleanup
efforts.
The types of incentives that could be considered could include a
streamlined regulatory review process, reduced or waived royalties in
the event Congress establishes hard rock mining royalty provisions in
the future, and depletion allowances. Also, tax credits could be
considered for projects which are not economic but which are pursuing
reclamation-mining to address environmental issues. Similarly voluntary
AML cleanup projects could generate environmental credits that could be
used to mitigate or offset impacts at other mining projects operated by
the remediating party.
The advantages to the public in creating incentives for private-
sector, voluntary AML cleanups is that the resulting reclamation-mining
projects would expedite cleanups at a number of sites and ameliorate
environmental conditions with no or minimized public funding. This
would reduce the scope of government sponsored mine land reclamation
programs currently envisioned as being necessary to solve the AML
program.
conclusion
I appreciate the opportunity to present to this committee my views
and the views of the National Mining Association regarding S. 1787. I
believe the bill serves to further the discussion regarding the Good
Samaritan concept. However, without significant changes as outlined in
my comments I am afraid the bill will fall short of achieving its
intended goals, that of increasing voluntary, cooperative efforts
toward cleaning up AMLs. I wish to encourage this committee to work
together to revise S. 1787 accordingly to provide a workable and
meaningful bill.
At a minimum, I suggest the committee work to revise the definition
of remediating party to include private parties and the State and
Federal Governments on their own lands; reconsider the cleanup
standards required of Good Samaritans; address CERCLA, RCRA, and CWA
citizen suit liability issues; provide opportunity for states with
adequate programs to issue remediating permits; and reconsider the
possibility of including a remining component.
__________
Reclaiming Inactive and Abandoned Mine Lands--What Really is Happening
Executive Summary
background
On behalf of the National Mining Association (NMA), Debra W.
Struhsacker, Environmental and Government Relations Consultant, and
Jeffrey W. Todd, Senior Consultant with Schafer and Associates,
performed a survey to identify successfully reclaimed abandoned and
inactive mines. This survey was undertaken in conjunction with the
Abandoned Mine Land Initiative (AMLI), a partnership between the NMA
and the Western Governors' Association designed to take a proactive
approach to the hardrock abandoned and inactive mine land (AML)
problem. This investigation on successfully reclaimed AML sites had the
following objectives:
Compile data available from industry sources and State
abandoned mine programs on successfully reclaimed AML sites in each WGA
state;
Obtain information on AML reclamation success stories to
showcase the effective application of modern environmental and
reclamation technology at hardrock AML sites; and
Determine the regulatory, legal, and institutional policy
issues that are facilitating or impeding progress on solving the AML
problem.
Information on nearly 80 successfully reclaimed AML sites was
gathered during the short duration of this survey (Appendix A). These
data were obtained from approximately 95 representatives from the
mining industry and State AML programs who responded to this survey
(Appendix B).
The types of reclamation and remediation efforts at the sites
included in this survey are typical of the accomplishments being made
by State AML programs and industry. However, it must be emphasized that
this survey was not intended to be all inclusive. Based on the
information gathered to date, it is apparent that there are hundreds of
examples of State and industry AML projects involving reduction of
safety hazards and environmental improvements that could be included in
this study.
survey findings
The survey findings listed below are based on an analysis of the
characteristics of the reclaimed AML sites in Appendix A, and on
comments made by State AML program personnel and mining industry
sources contacted during the survey.
Both the Western States and the Mining Industry Have
Achieved Measurable Progress in Addressing the AML Problem.--This
survey found that State AML programs and industry-sponsored efforts
have abated, reclaimed, and remediated a number of high-priority AML
sites throughout the west. AML policy discussions typically dismiss or
fail to recognize the progress made to date, choosing instead to
emphasize the large but poorly defined dimensions of the AML problem.
Private Funding, Equipment, and Labor from the Mining
Industry Have Been Responsible for Reclaiming and Remediating Many AML
Sites.--Industry has spent tens of millions of dollars in voluntary on-
the-ground cleanups and abatements of AML sites throughout the WGA
region. Mining industry critics often overlook or ignore this
significant industry contribution.
States with SMCRA Reclamation Funds Have Significant AML
Abatement Accomplishments and Have Achieved Some AML Cleanup and
Reclamation.--AML programs in the western coal-producing states (e.g.,
Wyoming, Colorado, Utah, Montana, Texas, and to a lesser extent Alaska
and New Mexico) have been able to use SMCRA reclamation money derived
from a tax on coal to reduce or eliminate public safety hazards at
hardrock AML sites. As a result, these states have made significant
progress in addressing AML safety problems. The OSM has certified the
Wyoming and Montana coal AML reclamation effort as complete and these
states have started using some SMCRA reclamation funds to cleanup
environmental problems at hardrock AML sites. States with no SMCRA
funds have much more limited AML programs and greater reliance on
industry-funded efforts.
The Term ``Site'' has Different Meanings and Must be
Defined Specifically in Every Forum.--Some AML inventory efforts,
including those performed by mining industry critics, have considered a
``site'' to be any single mine opening, mining or exploration
disturbance, or mining-related feature. Inventories performed in this
fashion typically reflect a desire to show as many sites as possible to
qualify for a larger share of available reclamation funds, or in some
cases, to advance a political agenda. In contrast, many State AML
programs and the mining industry define ``site'' in a much broader
sense. In this context a site may contain multiple features that can be
addressed with coordinated and consolidated abatement or remediation
measures.
A Comprehensive AML Inventory is Not a Necessary First
Step in Solving the AML Problem.--The successfully reclaimed AML sites
identified in this study indicate that a complete inventory of the
universe of hardrock AML sites is not required for the states or
industry to achieve meaningful progress on correcting the AML problem.
AML Reclamation, Remediation, and Abatement Solutions Must
be Site Specific.--Just as no two mines are identical, each AML has
unique characteristics based upon site-specific physical conditions and
ownership patterns and history. Therefore, appropriate solutions to
problems at an AML must be determined on a site-by-site basis. Efforts
to categorize, pigeonhole, and inventory all aspects of the AML problem
have reached a point of diminishing returns and will add nothing more
to solving the AML problem. A one-size-fits-all approach to AML site
definition and reclamation is neither necessary nor appropriate.
Safety Hazards are the Dominant AML Problem.--There are
far more AML sites that create a public safety problem than sites with
environmental problems. In a recent survey of western State AML
programs, 11 of the top 30 AML problem sites have safety hazards;
another 9 sites pose both safety and environmental problems. The
remainder of the sites have environmental issues. Other recent surveys
corroborate that safety hazards are the dominant problem at hardrock
AML sites. Abating safety hazards at many sites is relatively
straightforward.
South Dakota Has the Most Industry-funded AML Cleanup and
Reclamation Accomplishments.--A streamlined regulatory environment that
has minimized legal proceedings and protracted administrative and
regulatory reviews, and has maximized resource expenditure for on-the-
ground reclamation and remediation measures has facilitated industry-
sponsored AML projects in South Dakota. This streamlined approach is
critical and appropriate for industry-funded cleanups that involve no
expenditure of public resources. These projects should not be burdened
with unnecessary regulatory reviews and attendant costs and delays. The
South Dakota regulatory model may be easiest to replicate in states
with an omnibus regulatory agency with jurisdiction over water quality,
air quality, hazardous and solid waste, and mine reclamation.
Safety Closures May Create Conflicts with Bat Habitat and
Historic Preservation Concerns.--A number of State AML program
officials mentioned the difficulties encountered in balancing the need
to seal mine openings to protect public safety with the need to
preserve wildlife (especially bat) habitat and the integrity of old
mine workings as historic resources. In some settings, fencing old
workings may be adequate to protect public safety and avoids these
potential resource conflicts. However, fencing does not satisfy the
SMCRA mine closure prescription.
The Term ``Remining'' Has Been Used Too Broadly.--AML
stakeholders (e.g., industry, regulators, industry critics, and the
public) have indiscriminately used the term ``remining'' to mean any
project involving active mining and concurrent AML reclamation and
cleanup. Remining should be used to describe projects that process or
reprocess previously mined materials. Concurrent mining and
reclamation/remediation of an adjacent or nearby AML is more
appropriately called ``reclamation-mining''.
Industry Reclamation-Mining Projects Have Contributed
Significantly to AML Cleanups.--The numerous examples of reclamation-
mining examined in this survey document that significant synergism can
be achieved when active mining operations reclaim and remediate
problems at adjacent or nearby AML sites. There are a number of
reclamation-mining sites at which industry-funded reclamation/
remediation activities have achieved significant environmental
improvements. Most of these reclamation-mining projects occurred at
sites acquired prior to the mid- to late 1980's. It appears that
liability concerns have inhibited industry acquisition of previously
mined areas since then, probably corresponding to the enactment of
CERCLA and the Superfund Amendments and Reauthorization Act (SARA) in
the 1980's. Reclamation-mining could be a significant partial solution
to the AML problem if CERCLA, CWA and other liability barriers were
removed.
Remining Has Occurred on a Very Limited Basis and May Not
be Profitable at Most Sites.--Only six examples of remining in which
previously mined materials were processed or reprocessed were
identified in this survey. Just one of the six produced a net economic
gain which occurred during a period of extraordinarily high gold prices
in 1981. Based on this limited data, remining may not be financially
rewarding at many sites but may help off-set AML remediation and
reclamation costs.
Widespread Misconceptions About Remining Have Complicated
Development of a Good Samaritan Liability Relief Policy.--Policy
discussions have incorrectly characterized all concurrent mining and
AML reclamation/remediation efforts as remining and have assumed
remining is a profitable endeavor. The reluctance on the part of some
members of the regulatory and activists communities to extend liability
relief to a profitable remining project is perhaps understandable.
Unfortunately, intransigence on this issue has created great
difficulties in developing liability relief policies applicable to any
industry-sponsored AML cleanup project.
Renewed Dialogue to Develop Liability Relief for
Uneconomic Remining Projects and for Reclamation-Mining Projects is
Needed.--Concerns about extending liability relief to remining
activities should be refocused on profitable projects. Uneconomic
remining and reclamation-mining projects should qualify for liability
protection.
AML Sites with Acid Drainage From Mine Openings Pose the
Most Challenging Technical and Policy Problems.--Remediation of ARD
from underground workings is the most challenging issue both from a
technical and a legal perspective. Although passive water treatment
systems can achieve significant water quality improvements and are
practical at remote sites with no power infrastructure, more
sophisticated water treatment measures are typically required to meet
water quality standards and NPDES permit limits. Both State agencies
and the private sector face onerous legal challenges from Clean Water
Act citizen lawsuits for residual drainage from remediated AML sites
that does not meet arbitrary water quality standards--regardless of the
improvements realized at these sites.
CWA Citizen Lawsuits Are Significantly Chilling State and
Industry Efforts to Improve AML Sites with ARD.--Concerns about CWA
citizen lawsuits have nearly completely stymied cleanup progress at
sites with acid drainage from underground workings. The end result is a
net loss to the environment as water quality problems at these sites
remain unabated. Remediation measures that could result in incremental
(and in some cases significant) water quality improvements are not
undertaken for fear of the resulting liability exposure.
Pursuit of the Perfect is Thwarting Realization of the
Good.--Regulatory policies that require strict compliance with all
environmental standards, particularly arbitrary one-size-fits-all water
quality standards, have forestalled State and industry AML cleanup
projects that may produce significant environmental benefits but that
do not meet some water quality standards. A new policy approach is
needed to facilitate partial and incremental cleanup efforts and to
protect the parties involved from exposure to CWA citizen lawsuits.
AML Liability Issues May be Best Solved with a Parallel-
Track Approach.--It may be appropriate for future AML policy
discussions to proceed on two parallel tracks that differentiate
between sites with ARD from underground mine openings versus sites with
waste stabilization/removal issues. Parallel track discussions that
devote specific attention to developing liability relief mechanisms for
less complex sites (primarily sites with waste removal or stabilization
needs rather than sites with drainage from underground workings) could
bear fruit while continuing to work on the more challenging legal and
technical issues at mine sites with acid drainage. This incremental
step could accelerate AML cleanup progress at a number of sites and
result in significant environmental improvement and meaningful progress
toward solving the AML problem.
______
Responses by William B. Goodhard, Director, Reclamation and
Environmental Affairs to Additional Questions from Senators Crapo and
Boxer
Question 1. Did the mining industry play a material role in the
development of S. 1787? If limited, does this represent a lost
opportunity to benefit from the expertise brought by the industry to
the problem of remediating abandoned or inactive mine sites? Which
specific provisions of S. 1787 does the mining industry consider the
result of its recommendation to the bill's sponsor?
Response. The mining industry did participate in development of S.
1787 through the Abandoned Mine Lands Initiative, a partnership with
the Western Governors Association, and directly with the Senate staff.
Throughout the discussions the mining industry worked toward removing
inappropriate ownership and control language and suggested self-
certification language. The concept of self-certification was not well
received and little discussion occurred. This issue was very
contentious and it was apparent that the bill would not move forward
unless resolved. The mining industry withdrew from discussions focused
on expanding remediating parties to include private parties, in the
interest of advancing the bill with the intention that ``Remediating
Parties'' would be readdressed later in the process. Unfortunately,
this never happened.
Question 2. The legislation before us excludes sites on Federal
lands where the government is the remediator and sites under
consideration for the superfund program. What does the mining community
believe will be the impact on the number of sites qualifying for Good
Samaritan?
Response. Exclusion of Federal agencies on Federal lands for
impacts for which it is not responsible and sites under consideration
for the superfund program clearly limits the number of sites available
for voluntary remediation. Certainly many of the more serious sites are
located on Federal lands. Limiting the number and these types of sites
in this manner will have a direct impact on how broadly Good Samaritan
provision is used and limit the scope of our cleanups. Fewer potential
sites will mean fewer voluntary cleanups and that translates into fewer
water quality improvements. Projects that occur at sites under
consideration for superfund could result in improvements in water
quality at minimal or no cost to the taxpayers. Should a qualifying
``Remediating Party'' have the desire to voluntarily fund work that
makes an incremental improvement to water quality it should be allowed
to do so. Furthermore, allowing voluntary cleanup at these sites does
not relieve any legally responsible party of its obligations under the
CWA and or CERCLA.
Question 3. This legislation does not provide complete liability
protection even under the Clean Water Act. Do you believe that certain
parties may need to also apply for a Section 404 permit to undertake a
comprehensive and effective cleanup?
Response. Yes, I agree that in many instances remediation
activities will require Section 404 permits. Currently, the bill does
not provide liability protection for activities undertaken pursuant to
section 404. The bill should be expanded to provide such liability
protections as broader liability protection will help to further
encourage voluntary cleanup efforts.
Question 4. Your experience suggests that the mining industry is
engaged in
numerous abandoned and inactive mine cleanup projects. Is it
appropriate for this legislation to provide a liability shield for
government agencies, who already enjoy sovereign immunity in many
instances, but not to provide liability protection for potential
private Good Samaritans?
Response. No, as written the liability protection stops with the
defined ``Remediating Party'' and does not provide protection for the
agents and contractors who will ultimately be responsible for
completing the site work. The mining industry strongly believes that
the language needs to be expanded to include, at a minimum, the current
remediating parties, agents and contractors. For example, the mining
industry believes that mining companies which have no legal liability
at the site should be afforded liability protection if they are working
under an approved permit. The mining industry has the experience and
special expertise for addressing many of the environmental problems at
these sites. If they or any other industry faces liability for working
on these sites then you will lose the benefit of that knowledge and
expertise. Furthermore, many of the sites are located in remote areas
making access expensive. In these cases, it may be most efficient for a
mining company already located in that remote vicinity to address the
site.
Question 5. Do you believe that Superfund liability for potential
Good Samaritans is an important current disincentive that should be
addressed in S. 1787?
Response. This issue was discussed during the hearing and the
mining industry is supportive of specific language to be included in
the Good Samaritan Bill addressing Superfund liability. If you wish to
get the broadest possible Good Samaritan cleanup accomplished it should
be clarified that Remediating Parties are not liable under any other
law for their work at the site, except for those obligations that they
have assumed under the terms of their permit. Without clear language
granting protection from Superfund, only the non-Superfund sites will
be able to be addressed, relegating those sites to much more expensive
and drawn out processes.
Question 6. The term ``maximum extent practicable'' in determining
acceptable cleanup levels is used in this bill. Is this too high a
threshold? Would it preclude marginal improvements from being made?
Response. The term ``maximum extent practicable'' is undefined and
therefore creates a significant disincentive to remediation activities
and will lead to extensive debate over whether the standard is being
met in any particular case, with the effect that time will be lost in
getting cleanups underway and resources wasted in trying to determine
how to proceed. A more workable standard would be ``a net improvement
in surface water quality'' recognizing that partial or incremental
improvements in water quality at a specific site may go far toward
overall improvement of the water quality in a watershed. It is
important to recognize that a series of cleanups can occur under the
bill and that ``everything'' does not have to be taken care of all at
once. If we adopt this latter language we will be encouraging
incremental cleanups over time, allowing the most important areas to be
addressed first and getting cleanups started sooner.
Question 7. What is the mining industry's record in undertaking
voluntary cleanups of abandoned or inactive mine sites? Should this
experience be used in the development of Good Samaritan legislation in
Congress?
Response. The mining industry has spent tens of millions of dollars
in voluntary cleanups of AML sites throughout the West. This is
documented in the AMLI report submitted to the record at my request at
the hearing. It would be shortsighted to preclude further participation
by an industry whose successes are already well documented and whose
motivation to continue cleanups is high.
Question 8. What principles of SMCRA should be applied to this
legislation?
Response. I have no experience with SMCRA and therefore prefer not
to elaborate.
Question 9. Would remining of cleanup materials be appropriate for
encouraging new Good Samaritans?
Response. I assume by ``remining'' you mean processing previously
mined materials at abandoned sites while undergoing remediation
activities. In my written testimony, I encouraged the committee to
reconsider remining. With proper liability protections remining could
provide an incentive for cleanups to proceed and for defraying the cost
of those cleanups. It is clearly in the public interest to keep cleanup
costs as low as possible, and allowing remining will help to accomplish
this goal. Is the conduct of PRP searches by Good Samaritans
appropriate and should it be their responsibility?
Question 10. Is the conduct of PRP searches by Good Samaritans
appropriate and should it be their responsibility?
Response. Good Samaritans will be voluntarily funding efforts
focused at improving water quality. Conducting PRP searches is not the
best nor even a sensible use of these funds. The Good Samaritan will
need the current owners permission to do work on a site. Decisions
about whether the agencies should identify and pursue PRP's for
additional cleanup work is best left with the agencies.
Question 11. How important would a Section 404 permit waiver be to
ensuring further Good Samaritan cleanups?
Response. There are instances where a Section 404 permit is
necessary to complete a remediation project, therefore, any favorable
language, which extends or expands the lands upon which the Good
Samaritan Act can be used and limits the exposure of the Remediating
Parties will increase the number and scope of sites potentially
available for voluntary cleanups to occur.
Question 12. Is the bill's preclusion of Federal agencies cleaning
up Federal lands a problem?
Response. This preclusion will limit one of the largest landowners
from voluntarily cleaning up its own sites, presumably sites for which
it does not have responsibility. As long as the agency is not
responsible for the site it should be allowed to do a voluntary cleanup
that will improve water quality.
Question 13. Do you agree with the provision in S. 1787 that would
sunset the program after 10 years? If not, what would you recommend?
Response. Based on EPA's testimony that it will take 3 years to
promulgate regulations 10 years is not a sufficient time. There does
need to be a point where Congress can examine whether or not the
program is working, but of course they are always free to do so.
Regardless of the timing, providing for a formal examination or review
of the Act could result in changes in the Act that may further improve
upon the program by drawing upon the experience gained.
__________
Abandoned Mine Land Initiative by Debra W. Struhsacker, Environmental
and Government Relations Consultant and Jeffrey W. Todd, Senior
Consultant, Schafer & Associates, Inc.
executive summary
Introduction
Abandoned hardrock mines have long been an issue of concern to
industry, government and the public. The majority of AML sites are
historic, and some are in mining districts with features included on
the National Register of Historic Places. The ``typical'' site can be
described as an underground mine which began operation in the mid to
late 1800's or early 1900's. Generally, but not always, a mill was
associated with these historic operations.
The technologies employed at these historic sites were refined for
production efficiency over the years, but the management of air
emissions, water discharges and wastes were not radically changed until
the enactment of environmental legislation in the 1970's. Mining in a
number of important U.S. mining districts commenced more than a century
before the passage of these environmental laws, and a number of
abandoned mines in some of these districts now present safety and
environmental problems.
Environmentally responsible mining is rooted in the passage of the
National Environmental Policy Act of 1969 (NEPA) and the program-
specific environmental laws and land management acts that followed.
Many Western states enacted state-level mining reclamation legislation
over the last 25 years. These State laws include reclamation bond
requirements to ensure that today's mines do not become tomorrow's
unreclaimed AML sites.
In conjunction with the Abandoned Mine Land Initiative (AMLI), a
partnership between the National Mining Association (NMA) and the
Western Governors' Association (WGA), NMA recently undertook a survey
to identify successfully reclaimed abandoned and inactive hardrock
mines in WGA states. This investigation on successfully reclaimed AML
sites had the following objectives:
Compile data available from industry sources and State
abandoned mine programs on successfully reclaimed AML sites in each WGA
state;
Obtain information on AML reclamation success stories to
showcase the effective application of modern environmental and
reclamation technology at hardrock AML sites; and
Determine the regulatory, legal, and institutional policy
issues that are facilitating or impeding progress on solving the AML
problem.
The types of reclamation and remediation efforts at the sites
included in this survey are typical of the accomplishments being made
by State AML programs and industry. However, it must be emphasized that
this survey was conducted over a short timeframe and was not intended
to be all inclusive. Based on the information gathered to date, it is
apparent that there are hundreds of examples of State and industry AML
projects involving reduction of safety hazards and environmental
improvements that could be included in this study.
summary of survey findings
The survey findings listed below are based on an analysis of the
characteristics of the reclaimed AML sites in Appendix A, and on
comments made by State AML program personnel and mining industry
sources contacted during the survey. The survey gathered information
from approximately 95 representatives from the mining industry and AML
programs in WGA states on 83 reclaimed AML sites. The following
summarizes the key findings from this survey.
Both the Western states and the mining industry have
achieved measurable progress in addressing the AML problem. This survey
found that State AML programs and industry-sponsored efforts have
abated, reclaimed and remediated a number of high priority AML sites
throughout the West. Private funding, equipment and labor from mining
companies have been responsible for reclaiming and remediating many AML
sites. Mining companies have spent tens of millions of dollars in
voluntary on-the-ground cleanups and abatements of AML sites. AML
policy discussions often dismiss or fail to recognize the progress
made. Instead, the debate emphasizes the large but poorly defined
dimensions of the AML problem.
The Term Site Has Different Meanings and Must be Defined
Specifically in Each Forum.--Some AML inventory efforts have considered
a ``site'' to be any single opening, mining or exploration disturbance,
or mining related feature. Other State AML programs and the mining
industry define ``site'' to include multiple features that can be
addressed with coordinated and consolidation abatement and remediation
measures. Continued debate over a universal definition of AML ``site''
and development of a comprehensive hardrock AML inventory diverts
attention and resources from the real issues that need to be addressed.
Safety hazards are the dominant AML problem, and most
sites pose no problem at all.--According to the Mineral Policy Center,
97 percent of the abandoned sites it identified were characterized as
reclaimed and/or benign, landscape disturbances or safety hazards. The
survey indicates that abatement of safety hazards are generally less
complex and less costly than environmental remediation actions. The WGA
recently indicated that the majority of abandoned mines (greater than
80 percent) create neither environmental nor immediate public safety
concerns. These sites are either benign or manifest a landscape
disturbance of some variety.
The impediments to voluntary cleanup are twofold.--First
there are the legal impediments, or risks of incurring new legal
liability for taking voluntary action at an AML site. Second, there is
the institutional impediment, which consists of the systematic one-
size-fits-all or command-and-control approach taken by regulatory
agencies to public safety and environmental issues that inhibits
voluntary, cooperative action at AML sites.
The most significant legal barrier to voluntary cleanup at
AML sites is the potential for incurring Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) liability. Many high
priority AML sites will not be remediated or reclaimed voluntarily,
given the attachment of CERCLA liability to ``actual control''
activities.
The Clean Water Act (CWA) creates another legal impediment
to voluntary AML cleanups.--Given the CWA's broad legal jurisdiction,
AML abatement, remediation or reclamation could easily be subject to
CWA permitting requirements in the event of a discharge. The current
CWA liability scheme discourages cleanup of AML sites, even if the
cleanup would significantly reduce water pollution by controlling and
treating discharges. This impediment is particularly apparent in cases
involving the remediation of acid rock drainage (ARD) from underground
workings.
AML abatement, reclamation, and remediation solutions must
be site specific.--Just as no two mines are identical, each AML site
has unique characteristics based upon site-specific physical
conditions, ownership patterns and history. Therefore appropriate
solutions to problems at AML sites must be determined on a site-by-site
basis. Command-and-control regulatory policies that require strict
compliance with all environmental standards, particularly one-size-
fits-all water quality standards, have forestalled State and industry
cleanup projects that would produce significant environmental benefits
but do not meet specific numeric water quality standards. A new policy
approach is needed to recognize the appropriateness of site-specific
measures and to facilitate partial and incremental cleanup efforts by
protecting participating parties from exposure to CWA liability.
The regulatory approach in South Dakota has facilitated
significant AML cleanup.--A streamlined regulatory environment that has
minimized legal proceedings and protracted administrative and
regulatory reviews and associated expenses in South Dakota has resulted
in maximum resource expenditures for industry-
sponsored reclamation and remediation projects. This streamlined
approach is critical and appropriate for industry-funded cleanups that
involve no expenditure of public resources. The South Dakota regulatory
model may be the easiest to replicate in states with an omnibus agency
with jurisdiction over water quality, air quality, hazardous and solid
waste, and mine reclamation.
There are several sources of potential funding for the
cleanup of abandoned mine sites.--Under the umbrella of the ``Clean
Water Action Plan'', several Federal agencies have requested funds to
engage in abandoned hardrock mine cleanups. Under certain circumstances
and subject to certain constraints, funding for AML remediation
projects also may be available under the Clean Water Act, section 319;
Title IV of the Surface Coal Mining and Reclamation Act; and section
206 of the Water Resources Development Act of 1996. Several states have
established their own funding mechanisms to further their involvement
in voluntary remediation projects.
A funding information clearinghouse is needed.--It is
difficult to assess the adequacy of available AML reclamation and
remediation funding when the sources are located in so many different
Federal programs. Industry, other private and semi-private parties,
States, and the Federal Government would benefit from the creation of a
data bank or cleaninghouse that identifies and describes available
resources.
There are numerous examples of remining, including the
processing of existing mine wastes and the reprocessing of tailings and
previously leached materials, in which mining companies reclaimed and
remediated AML sites in and near active mining operations through
synergism between the active mine/mill and the AML site.--Remining
capitalizes on mining industry expertise, equipment, personnel, and
existing waste disposal and mineral processing facilities and
infrastructure to reclaim and remediate the nearby AML site. There are
a number of AML sites where remining has occurred that have achieved
significant environmental improvements. However, concerns about
potential CERCLA and CWA liability attaching have inhibited mining
industry activity in historic mining areas. Remining could contribute
more to AML reclamation and remediation if CERCLA, CWA and other
liability and institutional barriers were removed.
conclusion
Western states and the mining industry have achieved measurable
progress in addressing the AML problem. The progress has occurred in
spite of significant legal and institutional barriers and disincentives
and funding constraints. The threat of CWA and CERCLA liability pose
serious legal impediments to both industry- and state-led hardrock AML
abatement, reclamation, and remediation efforts. Similarly,
institutional preferences for command-and-control approaches to public
safety and environmental issues create a system in which incremental
improvements at AML sites are foregone, because unattainable standards
attach to states and miners who, in good faith, attempt reclamation and
remediation of sites long since abandoned by an unidentifiable entity.
The absence of a well coordinated information source on available
funding mechanisms is also hindering state-led AML cleanup efforts.
1.0 introduction
1.1 The History
When James Marshall reached into a side channel of California's
American River to pick up a glittering nugget on a cold January day in
1848, he unknowingly started the first hardrock mining boom in the
American west. Mining districts organized and flourished and technology
advanced rapidly. Names such as Coloma, Virginia City, Deadwood, Butte,
White Pine, Bisbee, Wallace, Leadville, Telluride, Creede and a myriad
of others became known throughout the country. Advancements in
processing technology left sluices, arrastras, and stamp mills as
historic artifacts. Although there were fits and starts, booms and
busts, hardrock mining grew steadily into a powerful industry over the
next 150 years, becoming a keystone in the settlement of the American
west and in the development of the U.S. as a world-class industrial
nation.
However, like any growing industry with a rich history, mining left
its mark. Prior to the enactment of stringent local, state, and Federal
environmental laws and regulations beginning, more or less in the early
1970's, mining was conducted in accordance with the existing laws that
reflected the priorities of the time. The wastes produced by mining and
ore processing--waste rock, mill tailings, and smelter slags--were
deposited adjacent to the operating facilities or directly down-
gradient in the nearest valley or low spot, much as domestic wastes of
the time were sent to the nearest moving water body. Gravity was
considered the great equalizer--the best friend of miners and other
industrial waste generators of the time. Once the commercial ore was
exhausted or market prices fell below the cost of extraction and
processing, operators commonly abandoned sites with little, if any,
thought to reclamation or reuse of the land.
In many settings, these old mine wastes remain vulnerable to wind
and water erosion and, with the right geology and geochemistry, they
generate acid and leach heavy metals. Throughout the west, there are
streams in the vicinity of old mines with acid- and metals-contaminated
waters draining from mine opening and mine waste piles. Unsecured mine
openings and pit highwalls at old mines also create a public safety
hazard--especially as suburban expansion of many western cities
encroaches upon previously mined areas.
1.2 Previous Studies of Abandoned and Inactive Mines
There is widespread agreement amongst all stakeholders--industry,
government, and industry critics--that correcting the environmental and
public safety problems created by old mines is an important goal.
Various entities have undertaken a number of studies in the last
several years to define the problem and to examine policy issues
affecting cleanup and reclamation of old mines.
In the early 1990's, the Western Governors' Association (WGA)
conducted a detailed study and evaluation of the environmental and
public health and safety aspects of abandoned and inactive mine
(hereinafter referred to as ``Abandoned Mine Land or AML'') sites as
well as the policy options for addressing these AML problems (Western
Interstate Energy Board, 1991). Shortly thereafter, in 1994, the
Colorado Center for Environmental Management (CCEM) and the U.S. Bureau
of Mines (now defunct) released a report which extended the findings of
the earlier WGA study (CCEM and USBM 1994).
The debate regarding the extent, nature, and impacts of AML sites
continued to gain momentum in the mid-1990's with significant
discussion between the hardrock mining industry, State and Federal
regulatory agencies, and the WGA. The issue of AML sites garnered
considerable notice and concern at the national level in discussions
relative to changes in mining laws and national mining regulatory
strategies. Several reports were generated. One of the most recent,
CCEM (1998), presents an excellent discussion of the barriers to and
incentives for voluntary cleanup of AML sites.
Also in the mid-1990's, the AML issue began to play an important
role in influencing public dialog about proposals for new mines. For
example, in a recent effort to stop the proposed Crandon Mine in Forest
County, Wisconsin, anti-mining activists in Wisconsin pointed to
environmental problems at old mines to justify mining moratorium
legislation. In this context, AML sites create a challenging political
and public opinion problem for the mining industry due to the effective
manner in which anti-mining activists exploit environmental issues at
old mines to create public concern about new mining proposals.
Recognizing the importance of developing a coordinated program to
help solve the AML problem, the mining industry, through the National
Mining Association (NMA), began a dialog with the WGA. In 1997, the WGA
and the NMA entered into a Memorandum of Agreement for the Abandoned
Mine Land Initiative (AMLI), the first cooperative effort between
industry and government to address the AML problem. Using seed money
from the mining industry, AMLI is designed to consolidate financial
resources and technological expertise in order to facilitate the
identification and evaluation, and then promote the abatement
remediation and reclamation of hardrock AML sites. This initiative is
discussed at length in Crozier (1997).
1.3 AMLI Study Purpose and Scope
One of AMLI's first goals is to obtain information on successfully
reclaimed AML sites in WGA states. In March 1998, the NMA retained the
services of the authors to compile data available from industry and WGA
State AML programs on reclaimed or remediated inactive and abandoned
sites and to prepare this report. The specific goal of this effort is
to illustrate, with examples, that reclamation and remediation of AML
sites is being accomplished effectively and efficiently by industry and
the states using modern technology within the limitations of available
resources and laws that create unintended barriers and disincentives.
Within each WGA state, there are excellent examples of AML
reclamation by the appropriate State agency, by industry alone, and by
cooperative efforts between the states and industry. While the authors
readily acknowledge that Federal land management agencies also have
conducted significant reclamation and remediation of AML sites within
their jurisdictions, evaluating these sites is beyond the designated
scope of this investigation. In addition, cleanups of AML sites listed
on the National Priorities List (NPL) and under the direct jurisdiction
of the Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA) were not reviewed. However, some sites were included at
which the implied or potential threat of becoming an NPL site triggered
the cleanup action. Also, several sites at which AML cleanups were
conducted as a CERCLA removal action (as distinguished from a CERCLA
remedial action) were considered.
1.4 Methodology and Limitations
Time and resource constraints limited this investigation primarily
to telephone inquiries and interviews and searches of selected Internet
resources and publications databases. Since both investigators reside
in states (Nevada and Colorado) with long mining histories, active
mining operations, and similarly active State AML programs, personal
visits to those AML program managers were conducted. A meeting was also
held with Wyoming AML program personnel because of this agency's
accomplishments and well-funded AML efforts.
Data and information regarding the sites investigated were
consolidated in a simple data base arranged as a single page per site
for quick and efficient review. This data base was designed for MS
Access for PC and FileMaker Pro for the Mac platform. The information
data base format was approved by NMA and WGA personnel prior to
conducting the investigation. The data base was not designed to provide
detailed technical information for each site. Likewise, this
investigation is not an all inclusive inventory of the entire universe
of successfully reclaimed AML sites. This is an important distinction
because it became quickly apparent during the investigation that there
are hundreds of examples of State and industry AML projects involving
reduction of safety hazards and environmental improvements that could
be included in the data base. If certain sites were excluded, it was
just a matter of logistics given the short time frame of this study.
For instance, discussions with some state AML agencies revealed that
while there might be 50 or more completed AML actions in that state,
time should limit inclusion to only a small percentage that represent
elements of the others. Likewise, numerous industry projects were not
included simply because designated contacts/managers were unavailable
in time. Indeed, the listings in this report easily could be tripled or
beyond given additional time.
The discussions in this report and the conclusions and
recommendations of this investigation are based on the data and
information included in the 83 site data base forms in Appendix A and
on the discussions held with the State and industry representatives
listed in Appendix B. The sites in Appendix A are sorted alphabetically
according to State and project within each state. As discussed, each
data sheet is a stand-alone representation of a single project, or in a
few cases, of a larger group of projects with similar characteristics.
Many of the contacts listed in Appendix B are also shown in the
``Comments'' data field for each site and are useful for future follow-
up or for obtaining photographs, additional detailed information, and
information for possible future site visits if desired.
1.5 Definitions
At first glance, the majority of terms used herein are well-known
to those familiar with the hardrock mining industry and the AML issue.
However, in conducting this investigation, it became evident that there
are some subtle and not so subtle differences in the way in which these
terms are used. Therefore, the following terms and definitions apply to
this investigation:
Site.--A specific ``project.'' A project can be a
district, area, property, or ownership block and can have multiple
``features'' such as adits, shafts, tailings facilities, and smelters,
singly or collectively. However, a project also can entail, for
example, closure of a single feature as at Wyoming's Jesse Project. The
important point is that a ``one-size-fits-all'' definition for an AML
site is not appropriate.
Abandoned.--A site with no private owner of record
typically on land managed (and often owned) by a Federal, state, or
local government agency. These sites also have been referred to as
``orphaned''.
Inactive.--A site on patented/private land which, in
contrast to an abandoned site, has an owner or owners of record.
However, inactive mine owners are not typically the entity involved in
the past mining activities that created the safety hazards or
environmental problems. Moreover some owners of inactive mines do not
have the financial resources necessary to correct the safety and
environmental problems.
Abatement.--The process of reducing public safety risks by
sealing mine openings or other measures to secure safety hazards
(Crozier, 1997).
Reclamation.--The process of returning a site to a
beneficial post-mining land use (Crozier, 1997).
Remediation.--The process of improving environmental
conditions and reducing environmental risks (Crozier, 1997). The terms
``remediation'' and ``cleanup'' are used synonymously in this report.
AML Improvement Project.--A collective and inclusive term
meaning any combination of abatement, reclamation, or remediation
measures that address one or more safety or environmental problems at
an AML site.
Remining.--The process of concurrent mining at an active
mine and AML abatement, reclamation, and remediation at an adjacent or
nearby AML site. Remining is a synergistic use of industry resources
that benefits the environment with little or no expenditure of public
resources, and reduces the AML owner's liability exposure. Some
remining projects use existing, permitted facilities to process or
reprocess previously mined materials such as mine wastes, waste rock,
unused ore stockpiles, heap leach ores, tailings, contaminated soils,
or smelter wastes at an AML site. More commonly, remining projects
achieve AML abatement, reclamation, and remediation as a necessary
consequence of new mining activity, as a feasible undertaking at an
active mine, or as a voluntary measure at an adjacent or nearby AML
site.
Remowal Actions.--The process of removing and relocating
previously mined materials to a mine waste disposal facility.
In Situ Actions.--The process of regrading, covering,
capping, or other measures to stabilize previously mined materials in
place. In situ actions performed with resources from a nearby active
mine are a form of remining.
2.0 an overview of the aml problem
2.1 What is an AML Site
Exactly what is an AML site? This question has arisen numerous
times from a variety of interested parties with varied backgrounds. As
discussed previously, there is no pat answer, no standardized
description. An AML site can be as small as a single shaft or open
stope or as large as a multi-thousand acre district. An AML site can be
owned by an individual or multiple persons, a large corporation with an
active operation nearby, a small miner, a real estate developer, a
bankrupt firm, a non-profit organization, an unknowing heir, an
historical preservation group, the public at large (managed by a local,
State or Federal Government agency), or any combination or permutation
thereof. However, there are some generalities that apply to most (but
not all) AML sites.
The majority of AML sites are historic, and some are in mining
districts with features included on the National Register of Historic
Places. The ``typical'' site can be described as an underground mine
which began operation in the mid- to late-1800's or early 1900's.
Generally, but not always, a mill was associated with these historic
operations. Milling may have started as a stamp operation and then been
converted to a cyanide mill (after 1893) or a flotation mill where
sulfides were present. Prior to approximately 1900, and even thereafter
for some years, mill tailings were piped directly down-gradient to the
nearest low point--usually a stream-course or moving water body.
Likewise, waste rock materials were deposited near and directly down
hill of the mine openings.
In the early 1900's, constucted tailing impoundment technology
began to be used in the industry, particularly where water was limited
or scarce. These impoundments were constructed of wooden-cribbed dam
faces and wooden decants and launder systems which allowed both process
water and tailing to be diverted directly to the stream under overload
circumstances. Although these impoundments provided a degree of
environmental protection while active, they soon failed when operations
became inactive or were abandoned.
2.2 The Temporal Relationship Between AML Sites and Environmental Laws
These technologies certainly were refined for production
efficiency, but generally were not radically changed until the
enactment of environmental legislation and regulations in the 1970's
and early 1980's. As discussed in Todd and Struhsacker (1997) and WGA
(1998), mining at many metallic mining districts throughout the country
began well before the advent of environmental laws and regulations.
Nearly all of the environmental laws and regulations affecting metallic
mining were enacted since about 1970. Mining at a number of important
U.S. mining districts commenced more than a century before the
enactment of these environmental laws, and were governed by existing
laws that often favored development.
What today is regarded as environmentally responsible modern mining
is rooted in passage of the National Environmental Policy Act of 1969
(NEPA), the Clean Air Act of 1970, the Clean Water Act of 1972, Federal
Land Policy and Management Act of 1976, and other Federal laws. Many of
the WGA states enacted state-level mining reclamation legislation
during this same period (for example, the Montana Metal Mine
Reclamation Act of 1971, the Colorado Mined Land Reclamation Act of
1976, the Idaho Surface Mining Act of 1977, and the South Dakota Mined
Land Reclamation Act of 1982). These State mining laws include
reclamation bond requirements that are intended to ensure that today's
mines do not become tomorrow's AML sites.
Mine, mill, and smelter sites that closed, became inactive, or were
abandoned prior to the enactment of Federal and State environmental
laws were grandfathered and not required to come into compliance with
the newly passed laws, or to be reclaimed or remediated in any fashion.
In addition, a few sites became inactive or were abandoned after
implementation of environmental regulation because of insolvency and
bankruptcy. Thus, a variety of public safety and environmental problems
remain unattended at many of these sites.
2.3 How Many AML Sites Are There
The WGA recently contacted State AML programs to obtain information
on the number of AML sites in each state. This information gathering
exercise confirmed earlier AML inventory efforts that show that AML
sites are spread unevenly throughout the west and that the confidence
level of the data in the AML databases varies among states (WGA, 1998).
The completeness of AML inventories is quite variable. To complicate
matters even further, each State defines an abandoned mine slightly
differently, making nation-wide compilations difficult if not
impossible. Generally speaking, coal producing states have access to
reclamation funds collected as a tax on coal production authorized by
SMCRA, and therefore have more comprehensive AML inventories than those
states with no or minor coal mining. (It should be noted that the SMCRA
inventory process, especially for coal AML sites, was costly and
inefficient and should not be used as a model for any future hardrock
AML inventories).
Although the desire for a definitive picture of the AML problem in
the western U.S. is understandable, the unique and site-specific
character of AML sites makes this a difficult if not impossible task.
As discussed in Chapter 1, there is no one-size-fits-all definition of
an AML site. Each site must be defined taking into account site
specific factors including, but not limited to, climate, terrain,
geology, hydrology, types of AML features, history, and ownership. It
thus makes sense for each State to use a definition of AML site best
suited to the conditions within that state.
There are just too many variables at AML sites to pigeonhole,
categorize and neatly inventory the universe of hardrock AML sites.
Efforts to develop a comprehensive western regional AML inventory have
reached a point of diminishing returns and will contribute nothing more
to solving the AML problem.
This investigation of successfully reclaimed AML sites shows that
significant AML abatement, reclamation, and cleanup progress is being
made by both State agencies and the private sector without a
comprehensive AML inventory, and suggests a new AML paradigm is needed
which recognizes it is not necessary to have a complete AML inventory
prior to initiating AML reclamation and remediation programs. This
finding validates the recent recommendation of the WGA's Abandoned Mine
Inventory Guiding Principles Group (WGA, 1996). This group of diverse
AML stakeholders including representatives from the mining industry,
citizen and environmental groups, and State and Federal regulatory
agencies developed a set of principles to guide future AML inventory
efforts. One of the group's recommendations is that future inventory
efforts should be viewed as an ongoing effort that can proceed
concurrently with on-the-ground AML abatement, reclamation and
remediation.
2.4 Typical Problems at AML Sites
According to the WGA's recent AML data compilation, a majority of
abandoned mines (greater than 80 percent) create neither environmental
nor immediate public safety concerns (WGA, 1998). Of those sites at
which problems exist, safety hazards are the dominant problem, although
some AML sites have both safety and environmental issues.
Other recent investigations corroborate that most hardrock AML
sites pose no problems at all, and that the bulk of AML problem sites
pose public safety hazards rather than environmental risks. For
example, The Mineral Policy Center's (MPC's) 1993 AML report, ``Burden
of Guilt'' speculates that there are 557,650 hardrock AML sites (Lyon,
1993). Although the mining industry is highly critical of this report
and the purported number of AML sites, the MPC's characterization of
the nature of the AML problem (Table 2-1) is nonetheless consistent
with the observation that most AML sites are not problematic and that
landscape disturbance and safety hazards are the most common problems
at AML sites.
Although each AML site is unique, some generalizations can be made
about AML safety, landscape disturbance (i.e., reclamation), and
environmental issues. Most AML sites have one or more of the following
problems:
unrestricted and hazardous openings (shafts, adits,
portals, stopes, subsidence features, exploration ``dog holes'');
dangerous highwalls and open pits;
unsafe structures and dilapidated buildings (many of which
are of historic significance);
physically unstable or erodible waste rock dumps, tailings
deposits, and smelter wastes;
acid rock drainage (ARD) from mine openings, waste rock
dumps, and tailings deposits;
surface and ground water quality degradation from
sedimentation, ARD, and metals releases;
blowing dust problems from unreclaimed tailings piles;
contaminated soils;
chemical contamination from processing reagents such as
cyanide; and
surface disturbance that detracts from the aesthetic or
natural appearance of the site.
The sites listed in Appendix A had one or more of these problems
and are representative of the ways in which the states and industry
have addressed safety, landscape, and environmental concerns at AML
sites.
Table 2-1.--Mineral Policy Center's Burden of Gilt Report
Characterization of U.S. Abandoned Minesa
------------------------------------------------------------------------
Assumed Number of Percent of Total
Category Sites Sites
------------------------------------------------------------------------
Reclaimed and/or Benign........... 194,500 34.8
Landscape Disturbance............. 231,900 41.6
Safety Hazard..................... 116,300 20.9
Surface Water Contamination....... 14,400 2.6
Groundwater Contamination......... 500 0.089
Superfund......................... 50 0.0089
-------------------------------------
Totals.......................... 557,650 100.8
------------------------------------------------------------------------
a Modified after Burden of Gilt, pages 6 and 31, Mineral Policy Center,
June 1993.
3.0 survey findings: state and industry progress in addressing aml
problems
3.1 Types of Sites Being Improved
Consistent with the findings of the recent AML investigations
discussed in Chapter 2, this investigation found that the majority of
AML sites reviewed required abatement of physical safety hazards (see
Appendix A). At many of these sites, closure of mine-related openings
such as adits, shafts, portals, subsidence features, and ponds
constituted the only action required. One of the best examples of this
is the Central City area-wide site in Colorado where over 1000 features
have been abated in some manner. Of these 1000 features, approximately
950 are vertical openings (each of these features may be designated as
an individual ``site'' by others). Likewise, the Nevada Statewide
Program has abated over 4500 such features either directly through the
State AML program or in conjunction with private land owners and claim
holders.
A smaller percentage of the sites examined in this survey required
both abatement of safety hazards and site reclamation and/or
remediation activities. Typically, actions at these sites are larger
scale and may involve some or all of the following measures: securing
mine openings; removing or stabilizing buildings, foundations, or other
operational structures; minimizing highwalls; reducing unsafe slopes on
waste rock dumps and dredge tails; recontouring and revegetating (i.e.,
reclaiming) disturbed land; and remediating environmental problems
caused by mine, mill and smelter wastes and mine drainage.
Generally speaking, State AML programs are principally involved
with abating AML safety hazards whereas industry efforts typically
address AML environmental as well as safety problems. The predominance
of state-sponsored safety closures largely reflects restrictions in the
way in which SMCRA reclamation funds can be used. The remainder of this
chapter presents some generalizations about the various safety
abatement and environmental remediation methods typically used at AML
sites.
3.2 Abatement of Safety Hazards
3.2.1 Methods for Securing Mine Openings
There is no prescriptive, one-size-fits-all means for closing or
otherwise abating public safety hazards at AML sites. Numerous
techniques and methods are being used depending upon the type of
feature, public accessibility, land/claim owner or manager, location
and general environment, presence of bats, historic importance of the
feature, and funding availability and sources. Again, as with all
facets of AML site reclamation/remediation, each site and each feature
requires abatement measures tailored in response to site-specific
conditions.
The most prevalent means of closing mine openings throughout the
WGA region is by partial or complete backfilling. If heavy equipment is
available at the site or at nearby active operations, backfilling may
be expedient. Backfilling combined with a plug, panel, or cap of some
sort also is popular in a number of states. Such seals can be concrete,
in situ or as precast panels, wood, steel, or sprayed/pumped
polyurethane. In several instances, expensive and sophisticated
engineered bulkhead plugs have been installed in adits and portals
where mine drainage is active. Such bulkheads allow control and
monitoring of mine water. In some instances, as in the case of the
Keystone Mine in Colorado, these bulkheads direct mine drainage to an
active water treatment facility.
Gates, doors, drain doors, and grates also are in widespread use by
both State AML agencies and industry. Gates and doors can be installed
inexpensively, and are appropriate in more remote areas where access to
heavy equipment is limited. Grates and grated gates are used widely to
close adits known to be used by various bat species. It has been long
known that bats will inhabit abandoned or inactive mine openings.
Significant research (Pierson, et al., 1991) at Homestake Mining
Company's McLaughlin Mine in California documented and substantiated
such use and initiated industry-wide awareness of mine closure and bat
habitat issues. However, as discussed below, developing measures to
close mine openings that do not preclude use of the mine by bats
sometimes creates challenges and resource conflicts.
The least expensive, and in some areas, the most widely used method
of safety hazard abatement is simple fencing and signage. The State of
Nevada AML program minimizes public safety problems at AML openings
through the use of fencing and warning signs. (The Nevada program also
features an aggressive public outreach campaign, ``Stay Out and Stay
Alive'', to educate the public about the dangers associated with mine
openings. Arguably, fencing is easily breached or destroyed by the
curious or those seeking entrance. However, fencing is inexpensive
(approximately $175 per feature in Nevada) and easily maintained or
reinstalled. Given the limited availability of AML funds, many more
sites can be secured with fences than backfilled, sealed, or gated.
Nevada AML program personnel make the case that the majority of closure
techniques may fail over time and that most can be breached by those
with the will and means to gain entrance. In addition, issues related
to historic preservation and bat habitat become moot if the features
are left undisturbed except for fence installation.
3.2.2 Issues and Problems Associated with Safety Abatements
It became quickly apparent during this investigation that several
specific issues face both state AML agencies and private parties when
closing mine openings or removing/stabilizing mine and mill structures
at AML sites. These issues involve historical aspects of the site or
feature and utilization of specific features by bat species. A third
issue involves the long-term integrity and stability of closures.
Historical preservation has become an extremely important and
sensitive issue in implementing safety abatement programs involving
public or private funds. Commonly, AML sites are located within or
adjacent to historic mining districts with rich histories. In some
instances, mine or mill sites may have distinct architectural
structures remaining such as headframes, loadouts, or step-design
buildings which contribute to the historical value of the particular
site. Local stakeholders, State historic preservation officers (SHPOs),
Federal land management agencies (if Federal lands are involved), and
the general public have interests in maintaining historical integrity
of such sites.
Thus, what would be (in most cases) a relatively simple safety
abatement can become an expensive, complex and, occasionally, a highly
contentious public issue if a site is within an area of historical
importance or on its own merits may qualify for historical designation.
During this investigation, 15 sites (see Appendix A) were found
where historical/cultural resources issues were considered
``obstacles'' to efficient closure. However, in each case, State
agencies and private parties worked through the process to obtain
consensus for the closure action. As evidenced by Colorado's
historically complex Central City area wide site (Appendix A), the
Colorado Division of Minerals and Geology (DMG) has been particularly
effective in integrating historical aspects of features into abatement
programs.
As discussed above, preserving bat habitat in mine-related openings
has become an issue complicating some AML abatement efforts since the
beginning of the 1990's. Of the sites in Appendix A, 11 had definitive
bat habitat which required specifically designed closure techniques.
Grates and bat gates which allow free movement of bats into the mine
openings but exclude larger animals and humans are the most common
forms of closures in these instances. Construction and installation of
bat gates is expensive when compared to other closure techniques. For
example, the bat gates installed at the Nevada Golconda Tungsten site
(private funding) cost approximately $1000 each. In comparison, the
State of Nevada AML program abates all openings with fencing which
costs approximately $175 per mine opening, causes no disturbance to the
openings proper, and has no impact upon bat usage of the underground
mine.
Although the jury remains out, most if not all safety abatements
other than complete backfill, while generally effective in the short-
term, may not withstand the test of time. Certainly, wooden structures
such as some doors, gates, and panels will deteriorate over time even
if properly treated. Likewise, concrete and steel, while lasting
significantly longer, also will deteriorate. Minor subsidence, changes
in mine water quality and quantity, and general exterior and internal
mine climatic factors can cause bulkheads, plugs, and seals to lose
integrity and efficiency.
Vandalism in its varied forms and styles is anathema to closure
structures, agencies, and industry. Human will-power, coupled with the
right equipment, can breach all closures including concrete panels,
bulkheads, and partial backfills, with the possible exception of total
backfill. Therefore, to be effective in the long-term, safety closures
need to be monitored for structural integrity on a regular basis.
Indeed, the majority of the sites in Appendix A which include safety
closures are monitored to varying degrees. However, the future duration
of such monitoring beyond 3 to 5 years is unknown even to the agencies
and firms conducting the inspections, and will depend to a large degree
upon availability of funds and personnel.
3.3 Remediation of Environmental Problems
3.3.1 Characteristics of AML Sites with Environmental
Problems
Under the broad definition of the term ``remediation'' used in this
investigation, 63 of the sites listed in Appendix A have been or are
undergoing remediation actions to address environmental problems. A
number of these remediated sites also include significant abatement
activities.
Interestingly, of these 63 remediated AML sites, 43 have been (or
are being) done by industry and funded, in large part, with private
capital.
Environmental cleanup problems at the AML sites listed in Appendix
A typically were due to contaminant releases or the potential for such
releases from mine wastes to the environment. Releases of sediments,
metals, and ARD to surface waters and groundwater present the largest
issues at these sites. Wind-blown tailings were problematic at several
of the sites examined. A few of the identified sites also had
contamination or potential contamination due to the presence of non-
mining wastes and chemicals. Typically, the non-mining and chemical
wastes were materials used in mineral processing and equipment
maintenance. Some of these non-mining and chemical wastes may be
regulated as hazardous (i.e., RCRA Subtitle C wastes) and require
special, offsite disposal or treatment measures.
Although environmental problems at many of the AML sites in
Appendix A were derived directly from the interaction between the
environment and aboveground mine wastes, problems at several of the
sites were due to contaminated drainage emanating from underground mine
openings. Contaminated mine drainage typically has a low pH (i.e., is
acidic) and contains dissolved metals in concentrations harmful to
aquatic life and other beneficial uses of surface water. Mine openings
with contaminated drainage constitute a subset of AML remediation
problems and represent some of the most technically challenging AML
sites to remediate. Moreover, parties involved with remediation efforts
at these sites potentially face complex regulatory and liability
issues. The technical challenges; associated with remediating
contaminated drainage from mine openings is discussed in more detail
below. The legal and regulatory issues surrounding these sites are
discussed in Chapter 4.
3.3.2 Typical Environmental Cleanup Measures
Regardless of the nature or severity of the environmental
problem(s) an AML site, the survey results indicate that viable
solutions require a site-specific approach. The methods used for source
control and remediation of the sites in Appendix A are designed in
response to the climate, terrain, geology, mining features, and other
factors at each site. The need for site-specific solutions to AML
problems is analogous to the need for site specificity in designing
mine plans and reclamation measures for active mines. However, from
site to site, there are some general similarities in approach to AML
environmental remediation, and it is possible to make some
generalizations about the types of environmental cleanup measures
commonly used.
The remediated sites in Appendix A include removal actions,
repository actions, and in situ actions. Removals have caused the mine
wastes to be completely or partially removed from the initial
deposition area to an active, permitted facility. (In some cases,
removal actions involve remining in which the previously mined
materials are processed or reprocessed at an existing modern mill or
heap leach facility. (Remining is discussed in detail in Chapter 5).
Repository actions involve consolidating and moving the wastes to a
new, engineered mine waste repository that has been specifically
designed and built as a remediation measure to contain the old mine
wastes. In situ actions stabilize and reclaim the wastes in place. As
per the definitions in Chapter 1, all removal actions, and those
repository and in situ actions using equipment/personnel from a nearby
active mining operation are considered remining.
Removal actions, repository actions, or a combination of the two
were typically used to remediate sites where mine wastes were in
contact with surface water (including wetlands) or had a demonstrated
impact to groundwater. While expensive, removal and repository AML
remediation actions were usually technically straightforward. Of the
sites in Appendix A, 23 involved repositories, 29 involved in situ
actions, five involved removal actions, and two involved a combination
of remedial actions Table 3-1). All of these AML remediation actions
have improved the landscape and environmental conditions at each site.
If the source of contaminant release is fine-grained wind-blown
tailings only, remediation actions many times are characterized by in-
situ reclamation. Multiple tailings impoundments may (or may not be)
consolidated and surfaces stabilized by capping and vegetating. In some
instances, particularly where radionuclides are an issue, a multi-media
cap followed by placement of a rock cover on the surface may be the
remedy of choice.
Table 3-1.--Remediation Actions at AML Sites in Appendix A
------------------------------------------------------------------------
Site Action Funding Source
------------------------------------------------------------------------
AZ--Stockton Mill............... Repository........ Private
CA--Buchanan Mine............... In situ........... Private
CA--Valley View Mine............ In situ........... Private
CO--Alta........................ In situ........... Private
CO--Capitol Prize............... In situ........... Private
CO--Crystal Hill................ In situ........... Private
CO--John Reed Mine.............. Removal........... Private
CO--Keystone Mine............... In situ........... Private
CO--Rawley Mine and Tailings.... Repository........ Private
CO--Rico........................ In situ........... Private
CO--Sunbank..................... In situ........... Private*
CO--Sunnyside Mine and Tailings. In situ........... Private
CO--Upper Chalk Creek/Mary Repository........ SMCRA, 319 et al
Murphy.
ID--Alta Mine................... Removal........... Private
ID--Cataldo Flats............... Repository........ Private
ID--Wagontown Placer............ In situ........... Private
MT--Black Pine.................. In situ........... Private
MT--Blackfoot Tailings.......... Repository........ SMCRA
MT--Brooklyn Mine............... Repository........ SMCRA, USFS
MT--Charter Oak Mine and Mill... Repository........ SMCRA
MT--Corbin Flats Tailings....... Repository........ Private
MT--Curlew Mine................. Repository........ SMCRA
MT--Empire Mine................. Repository........ SMCRA
MT--Glen Tungsten Mill.......... In situ........... SMCRA
MT--Golden Messenger Mine and In situ........... SMCRA
Mill.
MT--Joslyn Street Tailings...... Repository........ Private**
MT--Lower Tenmile Mill.......... Repository........ EPA
MT--Maxville Tailings/ Repository........ SMCRA
Londonderry.
MT--McLaren Tailings............ In situ........... Private
MT--Mike Horse Mine............. Repository........ Private
MT--Park Mine................... In situ........... SMCRA
MT--Piegan Gloster.............. Repository........ SMCRA
MT--Pony Mill................... In situ........... Private
MT--Red Water................... Repository........ EPA
MT--Stillwater Chromium Tailings Repository/In situ Private
MT--Vosberg..................... Repository........ SMCRA, USFS
NV--Alligator Ridge Project..... In situ........... Private
NV--Buckhorn/Red Springs........ In situ........... Private
NV--Dean Mine................... Removal/In situ... Private
NV--Getchell Smelter and In situ........... Private
Tailings.
NV--Golconda Tungsten Mine...... In situ........... Private
NV--Nevada Copper Tailings...... In situ........... Private
NV--Robinson Mining District.... In situ........... Private
NM--Bull Hill Mine and Mill..... Repository........ Private
NM--Bull Frog Mill and Tailing.. Repository........ Private
NM--Westar Heap................. Removal........... Private
OR--Amalgamated Mill............ Removal........... Private
SD--Bald Mountain Tailings...... In situ........... Private
SD--Double Rainbow Mine......... Removal........... Private
SD--Gilt Edge Tailings.......... Respository....... Private
SD--Maitland.................... Removal........... Private
SD--Red Placer.................. In situ........... Private
TX--Shafter Tailings............ Respository....... Private
UT--Gold Hill................... In situ........... Private
UT--Mercur Mine................. Removal........... Private
UT--SF Phosphate................ In situ........... Private
WA--Sherwood Mine............... In situ........... Private
WY--Atlantic City Tailings...... In situ........... SMCRA
WY--Carissa Mine Tailings....... Repository........ SMCRA
WY--Encampment River Tailings... Repository........ SMCRA
WY--Shirley Basin Uranium....... In situ........... SMCRA
WY--Sunrise Mining District..... In situ........... SMCRA***
------------------------------------------------------------------------
*Included some Clean Water Act 319 funds for experimental work.
**Included off-set funds from MT CECRA.
***Included small forfeited bond from previous operator.
3.4 Technical Challenges
As a general observation based on the information in Appendix A,
technical challenges are not a significant barrier to AML abatement or
AML cleanup at sites requiring mine waste removal, repository, or in
sit actions and landscape improvements. The technologies used to
relocate and stabilize mine waste typically involve engineered liner
and capping systems and stream diversion measures identical to those
used at modern mines and other industrial facilities, and no technology
gaps were identified. Similarly, AML landscape issues are addressed
using the same reclamation techniques employed at active mines. No
technical problems were recognized with the commonly used techniques to
seal mine openings to abate safety hazards. Although implementing the
appropriate abatement and remediation measures may be costly, (and
available funding sources are typically quite limited), technical
challenges do not appear to be a significant impediment.
In contrast, technical challenges are a serious barrier to AML
cleanup at sites with acidic and metals-bearing drainage from
underground mine openings. Mine plugging activities to eliminate
drainage from an underground mine often produce contaminated seepage
from some other location. Moreover, treating mine drainage to meet
National Pollutant Discharge Elimination System (NPDES) permit effluent
limits may be very costly, particularly at remote sites with no source
of power, and may require treatment in perpetuity. Although passive
water treatment systems such as wetlands may significantly improve
water quality conditions, they may not achieve full compliance with
strict, numeric water quality standards for one or more parameter. The
Acid Drainage Technology Initiative (ADTI), a cooperative effort
involving the mining industry and State and Federal agencies, and other
entities are currently researching and developing new passive treatment
technologies.
Additionally, as discussed in Chapter 4, sites that are unable to
meet applicable water quality standards and NPDES permit effluent
limits face serious legal problems due to their vulnerability to CWA
lawsuits. Given the chilling effect that CWA lawsuits are currently
having on State and industry cleanup of AML sites with acidic mine
drainage, it appears that this legal barrier must be removed prior to
committing any significant resources towards mine plugging and water
treatment technology development. It seems unlikely that either the
states or industry will be willing to pursue AML cleanups and test new
technologies at sites with acid drainage from mine openings without
some form of liability relief.
3.5 Funding Sources for AML Improvement Projects
A complete investigation of the funding sources available for AML
improvement projects was beyond the scope of this survey. However, the
following presents a brief overview of existing funding sources and
several funding proposals currently under consideration in the Federal
Fiscal Year 1999 budget.
There are several sources of proposed Federal funding for the
cleanup of abandoned mine sites. For fiscal year 1999, the Bureau of
Land Management (BLM) has requested a $6 million ``investment in the
cleanup of abandoned hardrock mine sites.'' (Interior Budget in Brief,
February 1998 at page BH 6). In conjunction with this proposal, the
U.S. Geological Survey will provide support to the BLM and other
agencies to characterize watersheds and the impacts of past mining
practices. (Interior Budget in Brief, February 1998 at page DH 20).
In addition to these sources, individual line item appropriations
such as $3.74 million approved by the House Appropriations Committee
for the continued cleanup of the abandoned Penn Mine site in California
may become available for specific projects. Under certain
circumstances, and subject to certain constraints, funding for AML
Remediation projects also may be available under the Clean Water Act,
section 319; Title IV of the Surface Mining Control and Reclamation Act
of 1997; and section 206 of the Water Resources Development Act of
1996. Other sources of funding available to State AML agencies include,
but are not limited to, grants from the EPA (headquarters grants,
headwaters programs, etc.) and other Federal agencies, historic
preservation grants, and partnerships with industry.
During the survey, several individuals associated with State AML
programs indicated that information on the existence and availability
of Federal AML cleanup funds is not always easy to obtain. It is clear
from these discussions that State and Federal agencies, industry, and
watershed organizations would all benefit from the creation of a data
bank or clearinghouse that identifies and describes available Federal
AML cleanup resources. The issue of AML funding sources is explored at
greater length in CCEM (1998).
Several states have established their own funding mechanisms to
further their involvement in AML improvement projects. For example, the
Colorado DMG receives annual capital for AML closures from the Gaming
Fund from the casino industry located in historic mining areas of
Central City, Blackhawk, and Cripple Creek. The DMG also has
established a highly workable policy of cost-sharing to close hazardous
mine openings on private lands. Landowners with such hazards can make a
contribution to the DMG AML fund in return for which their site is
given preferential treatment for abatement action . . . those
contributing the most move higher on the list of priorities. In one
case (Colorado-Alta), a larger scale AML site owned by a real estate
developer was remediated in award-winning fashion through the DMG and
funded by a significant contribution from the owner.
State-industry partnership programs have been used on an ad hoc
basis with some success on some sites, but the concept has not been
institutionalized in any State with the possible exception of South
Dakota. The South Dakota Department of Environment and Natural
Resources (DENR) developed a program that works directly with industry
to provide some CERCLA liability relief and to streamline the
regulatory and administrative processes which commonly cause industry
to shy away from undertaking AML improvement projects. This program has
been a resounding success, driving the voluntary reclamation/
remediation of approximately 65 AML sites in the Black Hills region.
Additional information on this program is found in Chapter 4.
3.6 AML Improvement Project Awards
While this investigation has documented many of the issues,
problems, and obstacles to solving the AML problems, it also has found
that many AML projects have received prestigious State and Federal
awards for reclamation and environmental stewardship. Seventeen of the
sites in Appendix A either have received awards or have been nominated
for an award. Award recipients include AML, improvement projects
undertaken by both State AML agencies and industry (five and twelve,
respectively). Table 3-2 presents these sites and the awards received.
Table 3-2.--Award for State and Industry AML Improvement Projects
------------------------------------------------------------------------
State Site Award
------------------------------------------------------------------------
Colorado....................... Alta.............. 1997 CMLRB
Reclamation Award
Colorado....................... Crystal Hill...... 1995 CMLRB
Reclamation Award;
BLM Byways Site
Colorado....................... Keystone Mine..... 1993 CMLRB
Reclamation Award
Idaho.......................... Alta.............. ID Reclamation
Awards--Outstandin
g Achievement
Award
Idaho.......................... Wagontown Placer.. ID Reclamation
Awards--1997
Special
Reclamation
Project Award
(nominated)
Montana........................ Brooklyn Mine..... 1995 USFS
Appreciation Award
Montana........................ Curlew Mine....... Nominated for
several, but
unlisted.
Montana........................ Mike Horse Mine... 1996 Lewis & Clark
SCS Environmental
Excellence Award
Nevada......................... Alligator Ridge 1997 BLM Health of
Mine. the Land Award
Nevada......................... Nevada Copper 1995 Nevada
Tailings. Governor's Award
New Mexico..................... Gage.............. 1995 OSM National
AML Award
Texas.......................... Terlingua......... 1996 National Park
Partnership-
Leadership
Utah........................... Calumet Shaft..... 1998 State of Utah
Earth Day Award
Utah........................... Gold Hill......... State of Utah Earth
Day Award
Utah........................... Parrot Shaft...... State of Utah Earth
Day Award
Utah........................... Texas Shaft....... State of Utah Earth
Day Award
Wyoming........................ Sunrise Mining 1998 OSM National
District. AML Award
(nominated)
------------------------------------------------------------------------
4.0 survey findings: policy issues affecting aml solutions
4.1 Policy Issues Overview
Based upon the survey results, there are a number of policy issues
affecting State and industry AML abatement, reclamation, and
remediation activities (including remining in historic mining
districts) throughout the western U.S. For the most part, these policy
issues are impeding and in some cases preventing solutions to the AML
problem. However, the survey did identify a few policy approaches that
show promise in facilitating AML improvement projects.
The specific policy issues that are adversely affecting progress on
solving the AML problem include the following:
Legal Impediments: CWA and CERCLA liability;
Institutional Impediments: command-and-control regulatory
approach;
Defining and attaining cleanup requirements--particularly
water quality standards in highly mineralized areas;
Interagency jurisdiction and coordination; and
Failure to differentiate between sites with long-term
liabilities versus sites with less serious liabilities.
The following emerging policy approaches offer partial solutions to
the AML problem:
The South Dakota Steamlined Interagency Regulatory Process
Model
CWA Section 319 Grants; and
State Voluntary Cleanup Programs.
These policy issues are discussed in this chapter.
4.2 Legal and Institutional Impediments
At many inactive mine sites it is simply good business practice and
in the owner's best interest to reclaim the site as expeditiously and
efficiently as possible. However, two major impediments to voluntary
cleanups are significantly limiting the mining industry's ability to
undertake AML improvement projects (Crozier, 1997). First there are the
legal impediments, or risks of being exposed to new legal liability for
taking voluntary action at an AML site. Perhaps the most significant
legal barrier to voluntary cleanup at AML sites is the potential for
incurring CERCLA liability. Many high priority AML sites will not be
remediated or reclaimed voluntarily, given the attachment of CERCLA
liability to ``actual control'' activities. Another legal impediment to
voluntary AML cleanups is the CWA. Given the CWA's broad legal
jurisdiction, AML abatement, remediation or reclamation activities
could easily be subject to CWA permitting requirements in the event of
a discharge. The current CWA permitting liability scheme discourages
cleanup of AML sites, even if the cleanup would significantly reduce
water pollution by controlling and treating discharges. This impediment
is particularly apparent in cases involving remedition of acid rock
drainage (ARD) from underground workings.
Second, there is the institutional impediment associated with
having to comply with the systematic command-and-control approach taken
by regulatory agencies to public safety and environmental issues. This
mind set and the rigid application of arbitrary and prescriptive
environmental performance standards inhibits voluntary, cooperative
action at AML sites. It also stifles innovation and new technology
development. Moreover, regulatory policies that require strict
compliance with all environmental standards, particularly one-size-
fits-all water quality standards, have forestalled State and industry
cleanup projects that would produce significant environmental benefits
but do not meet specific numeric water quality standards.
Just as no two mines are identical, each AML site has unique
characteristics based upon site-specific physical conditions, ownership
patterns and history. Therefore, appropriate solutions to problems at
AML sites must be determined on a site-by-site basis. Unfortunately, a
command-and-control regulatory framework is not supportive of site-
specific solutions. A new policy approach is needed to recognize the
appropriateness of site-specific measures and to facilitate partial and
incremental cleanup efforts by protecting participating parties from
exposure to CWA liability.
4.2.1 Defining and Attaining Cleanup Criteria
Defining appropriate and attainable cleanup criteria at AML sites
with contaminated surface water and/or groundwater creates both
technical and regulatory challenges that may impede State and industry
AML cleanup activities. At many AML sites, naturally occurring
geochemical reactions between the mineralized rocks and the surface
water or groundwater systems contribute dissolved metals, sulfate and
other parameters to proximal surface and groundwater resources.
Consequently, surface water and groundwater systems in and near some
orebodies have background water quality conditions that may exceed one
or more regulatory standards. The absence of baseline (i.e., premining)
water quality data for most AML sites makes determining any incremental
contamination due to mining activities technically challenging and
impractical at some sites.
However, the naturally occurring levels of metals and other
chemical constituents contributed by the orebody need to be considered
in developing reasonable AML water quality cleanup goals. As discussed
in CCEM (1998), states often apply EPA ``Gold Book'' standards in
defining numeric concentration limits for pollutants like heavy metals.
These one-size-fits-all standards do not consider site-specific factors
including the geochemical signature that an orebody may imprint upon
nearby surface waters. The unilateral application of Maximum
Contaminant Levels (MCLs) to determine groundwater quality cleanup
requirements poses similar problems at mineralized sites at which
groundwater quality reflects the geochemistry of the orebody.
The CWA authorizes the EPA to require owners of both active and
inactive mines to obtain an NPDES permit that stipulates effluent
limits for surface water discharges from both active and inactive
mines. Depending upon the designated beneficial use of the receiving
surface water and the corresponding water quality standards, NPDES
permits typically establish stringent effluent limits. Active mining
operations successfully employ proven and effective water treatment
technologies to meet NPDES permit limits. However, these water
treatment measures may not be feasible at many AML sites.
The use of Gold Book standards to set surface water quality
standards or MCLs to set groundwater quality standards creates a
significant dilemma at many AML sites. Applying these standards may
require an AML cleanup effort to achieve the impossible--to make a site
``cleaner than clean'' by mandating improvements in water quality that
do not reflect pre-mining conditions and the presence of metals,
sulfate, etc. due to naturally occurring reactions between the orebody
and the surrounding water systems.
The legal and regulatory problems created by applying established,
one-size-fits-all water quality standards to ARD cleanup projects are
not unique to hardrock AML sites. Numerous coal AML sites have ARD
problems similar to hardrock AML sites and face analogous policy issues
regarding compliance with NPDES permit limits. The OSM recognizes these
challenges and is considering scenarios in which relaxed water quality
standards should be applied in order to facilitate AML cleanup projects
that would result in incremental water quality improvements but that
may not meet stringent NPDES permit limits (K. Karpan, personal
communication).
4.2.2 Clean Water Act Lawsuits
A number of State and industry survey respondents expressed
concerns about the cleanup standards with which they would be faced
should they undertake an AML project involving surface water or
groundwater remediation. As discussed in Chapter 3, significant water
quality improvements can be realized using a number of proven and
practical technologies. However, at many sites, achieving compliance
with water quality standards and NPDES permit limits may be difficult
and costly. For example, passive water treatment systems such as
wetlands or anoxic lime beds are a practical solution at AML sites
without power or an entity with sufficient funds to run a treatment
plant, and can achieve significant water quality improvements. However,
passive systems may not be able to achieve compliance with water
quality standards and NPDES permit limits.
Owners of inactive mine sites with an unpermitted surface water
drainage are facing third-party CWA lawsuits compelling them to acquire
an NPDES permit. One California regulator predicted that these mine
owners, some of whom are individuals not otherwise affiliated with the
mining industry, may face future litigation under the CWA for failure
to meet the effluent limits mandated in their NPDES permits.
Individuals from both State agencies and industry voiced serious
concerns about vulnerability to third-party CWA lawsuits in the event
that AML cleanup measures do not meet water quality standards, and
stated that this concern is having a significant chilling effect on
both state-led and industry-led AML projects at which there are surface
water quality and mine drainage issues.
Several respondents referred to the Penn Mine in California in
justifying their concerns about potential exposure to CWA lawsuits. At
the Penn Mine, the East Bay Municipal Utilities District (EBMUD), and a
State regulatory agency, the Central Valley Regional Water Quality
Control Board, constructed facilities to contain contaminated mine
drainage. The containment measures substantially improved downstream
water quality conditions but did not eliminate drainage from the site.
A local activists' group sued the utility district and the regulatory
agency claiming illegal discharges without an NPDES permit (Committee
to Save the Mokelumne River v. EBMUD, 1993). The plaintiffs prevailed
in Federal appeals Court and ultimately reached a settlement with the
defendants involving a plan to treat the remaining mine drainage and
additional site remediation work.
The Rico Project in Dolores County, Colorado is another example of
a site at which concerns about CWA liability significantly influenced
AML cleanup activities. Atlantic Richfield Company (ARCO) performed
extensive AML remediation and reclamation work at this site under
Colorado's Voluntary Cleanup and Redevelopment Act (see Appendix A).
However, mine water treatment was not included as part of the
remediation effort due to CWA liability concerns. Similarly, the
Colorado DMG has been unwilling to pursue water treatment remediation
efforts in the Central City area due to concerns about CWA liability
and becoming a potential target for third-party lawsuits.
Based upon the survey results, it appears that the concern about
vulnerability to CWA citizen lawsuits is creating a significant barrier
to both State and industry efforts to improve AML sites with acid mine
drainage issues. The end result of this reluctance to become involved
with these AML sites is a net loss to the environment. No environmental
improvements are being realized at sites at which a partial cleanup
could achieve incremental (and in some cases significant) water quality
improvements. It is truly unfortunate that what appears to be misguided
pursuit of the possibly unattainable perfect (i.e., 100 percent
cleanup) is thwarting realization of the good (i.e., a partial but
meaningful cleanup).
4.2.3 Interagency Jurisdiction and Coordination
A number of survey respondents noted that work on AML sites is
sometimes made more complicated and frustrating due to interagency
jurisdictional issues that precipitate a challenging agency
coordination task. Although these issues were ultimately resolved at
most sites, they did cause delays and added to the overall cost of the
AML improvement projects.
The most common interagency issue identified during the survey was
satisfying the conflicting mandates between agencies charged with
protecting historic sites, wetlands, or wildlife habitat, and agencies
whose primary mission is abating public safety hazards at AML sites. As
described in Chapter 3, AML closure measures that focus on plugging
mine openings and removing dilapidated buildings and mine structures
may first have to address concerns regarding historic preservation or
wildlife (especially bat) habitat protection. Resolution of these
competing interests was time consuming and expensive at some sites.
Another source of interagency conflict was different agency
perceptions regarding the necessary level of environmental review and
formal permitting. A formal (and sometimes protracted) environmental
review and permitting process may delay AML improvement projects and
can be a significant disincentive for industry-led AML projects. Work
on AML sites is season-dependent at many high elevation sites
throughout the west where the practical field season is limited.
Moreover, there are seasonal constraints associated with revegetation
measures (i.e., reseeding, seedling transplanting, etc.) in order to
take advantage of optimal soil moisture and precipitation conditions.
Regulatory reviews that are not responsive to these seasonal
considerations can delay work on an AML site by an entire field season
or more.
Industry-led AML projects are particularly sensitive to delays and
increased expenses that may result from a time-consuming formal
environmental review and permitting process. For example, at some
active mining operations, including remining opportunities at adjacent
or nearby AML sites, are highly time sensitive and need to be
integrated into the overall mine plan in order to be feasible.
Additionally, a number of industry responses to the survey indicated
that companies need to be able to maximize expenditure of resources on
actual on-the-ground measures and are unwilling to devote significant
company resources to transaction costs such as legal, administrative or
regulatory reviews. It should be noted that this comment does not
specifically apply to resolving site-specific technical issues and
identifying appropriate reclamation and remediation measures. A number
of respondents noted that they had worked closely with agency personnel
to develop an optimal reclamation/remediation design. However, several
companies stated their concerns about participating in a regulatory
review process just for process sake. Industry-sponsored AML cleanup
efforts that do not involve a commitment of public resources should not
be burdened with unnecessary regulatory reviews.
4.2.4 Failure to Differentiate Liability Type and Degree
The large number of variables at AML sites--climate, terrain,
accessibility, geology and geochemistry, hydrology, mine waste
characteristics and distribution, mining and mineral processing
history, and ownership patterns means that liability must be considered
on a site-by-site basis. Sites involving complex liability issues may
not require complex cleanup measures.
Sites with uncontrolled mine drainage or contamination of several
environmental media (i.e., soil, surface water, and groundwater) may
require extensive remediation and may expose the owner or a third party
that becomes involved with the site to significant liability under the
CWA, CERCLA, and State environmental laws. On the other hand, there are
numerous sites with less complex environmental issues and substantially
less liability exposure that could be significantly improved by
relatively straightforward (although not necessarily inexpensive)
remediation measures such as waste removal, repository, or in situ
actions. It should also be noted again that at most AML sites, the
principal issue is landscape disturbance and not environmental
remediation.
Site history and ownership issues make assigning liability a
complex endeavor at many AML sites, especially at mixed estate sites
with both private and public lands, and at sites with a history of
multiple owner/operators. Some sites have numerous potentially
responsible parties (PRPs); some have only one or two owners/operators;
and other have no viable owners at all.
AML policy discussions often focus on the worst and most complex
AML sites--for the most part sites with acid drainage from underground
mine openings, at which extensive and costly remediation requirements
trigger the need to identify PRPs in order to pay for the cleanup
costs. The survey results verify that these types of sites do indeed
create serious environmental problems and pose significant policy
challenges. Sites with acid drainage from underground mine openings
represent some of the most technically challenging sites to remediate,
and as discussed above, are also burdened with vexing liability issues.
This observation is consistent with CCEM's recent study of barriers to
voluntary AML cleanup (CCEM, 1998).
However, the environmental and liability issues at sites with acid
drainage from underground workings are not representative of the
environmental concerns at many AML sites, and should be considered as a
subset of the overall AML environmental problem. This survey identified
a number of AML sites with more tractable and easily managed problems
at which private and public-sector AML cleanup projects have realized
significant environmental improvements. Straightforward waste removal,
repository, and in situ actions have proven very effective in
addressing surface water and air quality environmental impacts at some
sites. For example, Brohm Mining Company's Strawberry Creek AML project
in the Black Hills of South Dakota achieved significant water quality
and aquatic habitat improvements by relocating the historic Gilt Edge
tailings from Strawberry Creek to a secure, engineered waste
repository. Tailings stabilization work involving in situ covers at
both the Getchell and the Nevada Copper tailings sites in Nevada
virtually eliminated the fugitive dust problems previously caused by
these unreclaimed tailings piles. A number of similar waste removal or
stabilization AML projects are described in Appendix A.
4.2.5 Dialogue on Liability Issues
Solving the legal and policy liability issues at all AML sites has
proven to be difficult and controversial. The WGA's ongoing efforts to
develop an AML Good Samaritan provision to the CWA point to the
challenges in addressing AML liability (CCEM, 1998). Cooperative
efforts such as this, however, will be ongoing under the auspices of
various memoranda of agreement undertaken by the WGA. Continued dialog
among interested parties can provide solutions to liability-based
impediments to AML cleanups resulting in the on-the-ground cleanup of a
greater number of sites with commensurate environmental benefits and
reduced transactions costs.
4.3 Promising Policy Approaches
This survey did identify policy approaches that have facilitated
AML projects in several states. These promising policy approaches
include one or more of the following elements:
minimal administrative delays;
streamlined regulatory reviews;
significant interagency cooperation;
industry--state partnerships;
stakeholder involvement;
liability relief; and
finding sources.
CCEM, 1998 presents a thorough discussion of the policy approaches
that appear to promote AML improvement projects. The remainder of this
chapter examines how AML improvement projects were facilitated at
several of the AML sites in
Appendix A.
4.3.1 The South Dakota Streamlined Interagency Regulatory
Process Model
According to the South Dakota DENR, the mining industry has
reclaimed about 65 inactive and abandoned mine sites on a voluntary
basis at a cost of about $6.2 million (DENR, 1998). In discussing South
Dakota AML reclamation and remediation activities with both industry
representatives and State personnel, it appears that one of the most
important factors in facilitating these activities was a regulatory
environment that allowed the mining companies to devote most of their
resources to implementing on-the-ground measures rather than on trying
to resolve competing agency interests and requirements, or engaging in
formal permitting processes and protracted agency reviews. In many
cases, this required significant interagency coordination, particularly
with respect to wildlife habitat issues. Durkin (1996) cites the
importance of keeping these AML improvement projects out of the legal
realm and overcoming regulatory barriers that might otherwise stifle
cleanup efforts in order to solve the AML problem in South Dakota.
The South Dakota regulatory review and interagency cooperative
approach could be used as a template to facilitate industry-led cleanup
activities in other states. This streamlined regulatory approach may be
most readily achieved in states with an omnibus environmental agency
like the South Dakota DENR which has jurisdiction over water and air
quality, public health, and mining regulation and reclamation. Only two
State agencies, the DENR and the Department of Fish, Game, and Parks,
were involved with most of the South Dakota AML cleanup projects. It
may be more difficult to achieve such a streamlined regulatory approach
in states with more numerous agencies with different or overlapping
jurisdictions. Many of the South Dakota AML sites are on private land,
so Federal agencies are not involved as land managers. However, the
U.S. Army Corps of Engineers has had CWA 404 permit program
jurisdiction over stream restoration projects like the Red Placer AML
cleanup described in Appendix A. This project required extensive State
and Federal interagency coordination and technical review of the
proposed stream restoration design.
The Upper Chalk Creek--Mary Murphy AML site in Colorado is another
example of good interagency coordination. The Colorado DMG used SMCRA
funds to abate safety hazards at this site. A different State agency,
the Colorado Department of Public Health and Environment, used a CWA
Section 319 grant to consolidate historic tailings into an engineered
repository. The two agencies worked together to coordinate the separate
abatement and remediation actions.
4.3.2 CWA Section 319 Grants
Several of the sites in Appendix A were remediated in part using
CWA Section 319 non-point source grants. These grant funds are
available for projects proposing innovative measures to address non-
point source pollution problems. (Adverse impacts to surface water due
to non-point source runoff from mine waste piles are a common problem
at AML sites). Projects that receive Section 319 grants must match 40
percent of the grant with non-Federal (either State or private) funds.
CCEM (1998) reports that 16 mining-related non-point source remediation
project have been funded in Colorado at a cost of $3.4 million.
Examples of Colorado AML cleanups at which Section 319 funds were used
include the Upper Chalk Creek--Mary Murphy site, and sites in Central
City with environmental issues. According to the CCEM (1998), Utah, New
Mexico, and Montana have used CWA Section 319 funds for AML cleanup
activities. Colorado and New Mexico are also using this program to fund
AML remediation technologies and management practices demonstration
projects. Use of Section 319 funds does not address the liability
problems for discharges that may persist following completion of the
reclamation/remediation activities.
4.3.3 State Voluntary Cleanup Programs
This survey identified several sites at which AML cleanup
activities took place under the aegis of a State Voluntary Cleanup
Programs (VCPs). CCEM (1998) describes the use of VCPs for cleanup of
AML sites. The ``Abandoned Mine Lands Preliminary Assessment Handbook''
recently published by the California Environmental Protection Agency
Department of Toxic Substances Control (DTSC, 1998) describes a DTSC-
managed VCP in the context of a regulatory resource for industry and
private-sector AML cleanup activities. A VCP allows states to provide
some liability relief, a more streamlined regulatory process, and some
measure of predictability of technical and cleanup requirements.
The Rico Project in Dolores County, Colorado, and the Corbin Flats
Tailings project in Jefferson County, Montana are examples of AML
cleanup projects involving industry working under a VCP to remediate an
AML site. The industry representatives interviewed about these sites
(see Appendix A) had positive things to say about the VCP concept.
However, they mentioned the significant amount of agency coordination
and stakeholder involvement required for these projects, and suggested
that a more streamlined process would be desirable.
4.3.4 Liability Relief
Several states have developed partial solutions to the AML
liability problem. In 1995, the California State Legislature enacted
amendments to the State's water law that provide regulatory relief for
a State agency and private parties engaged in remediation activities
approved by the California Regional Water Quality Control Board.
Colorado has a Memorandum of Understanding (MOU) with the EPA for
liability protection for AML cleanup projects conducted under the CWA
Section 319 program. South Dakota has a similar agreement with the EPA
that provides the State and its agents with CLRCLA liability relief for
inventory or cleanup activities at abandoned or inactive mines on
private lands. However, none of these liability relief measures
minimize exposure to CWA citizen lawsuits (CCEM, 1998).
5.0 remining
5.1 Defining Remining
The term ``remining'' includes the process where mining at an
active mine and AML abatement, reclamation and remediation are
accomplished concurrently as a necessary consequence of new mining
activity, as a feasible undertaking at an active site, or as a
voluntary measure at an adjacent or nearby site. The term ``remining''
includes the use of existing, permitted facilities to process or
reprocess previously mined materials such as mine wastes, waste rock
unused ore stockpiles, heap leach ores, tailings, contaminated soils,
or smelter wastes from an AML site. However, this investigation
identified only a few remining projects at which industry processed or
reprocessed previously mined materials as part of an AML remediation
effort.
More commonly, remining involves other types of AML improvement
measures. Appendix A includes numerous examples of remining projects in
which industry reclaimed and remediated AML sites in and near active
mining operations through synergism between the active mine/mill and
the AML site. These examples capitalized upon industry expertise,
equipment, personnel, and existing mine waste disposal and mineral
processing facilities and infrastructure to close, reclaim, or
remediate the nearby AML site(s). The survey indicates that there are
situations where these two types of remining activities (e.g.,
reprocessing versus other AML abatement, reclamation, and remediation
measures) should be differentiated in order to clarify the context in
which the term ``remining'' is being used.
Remining is a highly site specific undertaking both in terms of the
AML site characteristics and the range of activities, resources, and
facilities at the active mine and mineral processing operation. The
remining sites identified in this survey encompass a broad range of
activities that have produced numerous and varied environmental
benefits. Examples of remining activities identified in this survey
include the following:
Processing of waste rock and low grade stack piles and/or
reprocessing of tailings and previously leached materials;
Removing and relocating old mine wastes to existing
project components (i.e., active, permitted tailings, heap leach, or
waste rock facilities);
Removing and relocating old mine wastes to new waste
repositories;
Stabilizing old mine wastes in-situ using appropriate
liners, caps, and covers; and
Remediating groundwater by taking advantage of dewatering
activities to support pump and treat opportunities.
The following environmental and public safety benefits and
improvements have occurred at sites identified in this survey as a
result of remining activities:
Surface water quality improvements;
Landscape improvements;
Wildlife habitat restoration, preservation and
enhancement;
Historical preservation; and
Safety closures.
5.2 Remining/Reprocessing Benefits
Because reprocessing metal-bearing mine wastes achieves source
reduction, it is considered to be an effective environmental cleanup
method for AML sites. Other cleanup methods such as water treatment or
waste containment do not reduce or eliminate the source of the
contaminants, and may create long-term operational and monitoring
requirements. In contrast, recovering metals by reprocessing removes
some or all of the contaminant source, thereby minimizing the volume of
problematic material and reducing the residual metals content in the
resulting waste product. Additionally, the newly generated mineral
processing wastes are disposed of in a modern, permitted mine waste
disposal facility with appropriate containment, monitoring, and
financial guarantees. Remining/reprocessing is thus an environmental
remedy in the form of resource recovery and source reduction, both of
which are EPA-favored responses for environmental cleanups and waste
management.
5.3 Remining Examples
Despite the widespread recognition that remining could facilitate
AML cleanups at some AML sites, this survey identified only eight sites
at which remining involving mine waste processing or reprocessing has
occurred. The limited number of this type of remining site appears to
be due to the same liability concerns identified in the 1993 remining
survey.
All of the remining/reprocessing sites identified in this survey
capitalized upon opportunities to integrate reprocessing of previously
mined materials into the modern mining and milling sequence. For
example, remining at the Mercur Mine in Utah removed approximately 4
million tons of historic tailings from the Mercur drainage basin
produced from mining activities from 1890 to 1913. Some of these
historic tailings were used during 1985 to 1990 as composite liner
cushioning material to protect the new heap leach pad liners from
punctures and to achieve incidental gold recovery. The remaining
historic tailings were reprocessed during the period March 1997 through
April 1998. The tailings produced from this reprocessing effort were
placed into the engineered and permitted tailings disposal facility
used at Mercur from 1983-1997 for tailings from processing new ore.
Remining and reprocessing of the historic tailings at Mercur removed a
waste from a watershed, allowed secondary gold recovery from a material
otherwise given up for waste, and allowed access to historically
impacted surface areas in the basin to more effectively accommodate
mined land reclamation and post-closure land uses.
In several of the identified remining projects, processing of
existing mine wastes and/or reprocessing of tailings and previously
leached materials was selected as the most cost effective (although
seldom profitable) AML cleanup measure, because it allowed the mining
companies to place the resulting tailings into an existing tailings
disposal facility, thus avoiding the costs and environmental impacts
associated with a new waste repository. However, using an existing
tailings facility for remining tailings consumes space that would
otherwise be available for tailings from processing the primary
orebody. Moreover, the remining wastes may not be of comparable grade
or recovery characteristics as the primary orebody. Therefore, the
decision to engage in remining and to displace primary ore tailings
with remining tailings must involve a site-specific cost benefit
analysis. Liability issues discussed above must be carefully evaluated
in each instance.
Table 5-1 is a partial listing of the remining projects identified
during this survey. The projects listed are representative of the range
of industry reclamation and remediation activities at remining sites
located in and near currently operating mining and exploration
projects. Based on the survey data, the State with the most remining
sites is South Dakota. As discussed in Chapter 4, South Dakota mine
operators have reclaimed about 65 inactive mines in the Black Hills
(DENR, 1998).
The information about remining obtained during this survey is
consistent with the results of another recent survey to evaluate
environmental practices at North American hard rock mines (Todd and
Struhsacker, 1997). This comprehensive evaluation involved contacting
over 150 individuals in the mining industry and mining regulatory
communities, detailed consideration of over two dozen mines, and field
examination of 14 mine sites in geographically diverse areas of the
U.S. The Todd-Struhsacker survey identified a number of mines that had
performed remining to address environmental impacts from previous
mining activities. Significant environmental improvements were
documented at a number of these sites, many of which are included in
Appendix A.
Table 5-1.--Example of Industry Remining Projects
------------------------------------------------------------------------
Remining Type Site Names and Location
------------------------------------------------------------------------
Processing and Reprocessing............... Maitland--SD
Double Rainbow Mine--SD
Westar, NM
Alta, ID
Mercur, UT
Dean Mine, NV
Removal Actions........................... John Reed Mine--CO
Repository Action......................... Upper Chalk Creek--Mary
Murphy
Gilt Edge Tailings--SD
Corbin Flat--MT
In situ Actions........................... Keystone Mine--CO
Stillwater Mine--MT
Getchell--NV
Bald Mountain Tailings--SD
Groundwater cleanup facilitated by active Confidential
mine dewatering activities.
Water quality improvements................ Keystone Mine--CO
Buclthorn--NV
Gilt Edge Tailings--SD
Landscape rehabilitation and improvement.. Castle Mountain--CA
Golconda--NV
Getchell--NV
Robinson District--NV
SF Phosphates--UT
Safety closures........................... Castle Mountain--CA
John Reed Mine--CO
Keystone Mine--CO
Alta Mine--ID
Golconda--NV
Wildlife habitat restoration, preservation Wagontown Placer--ID
and enhancement. Red Tail Placer--SD
Golconda, NV
Maitland Tailings--SD
Historic resource preservation............ Midas--NV
Getchell--NV
------------------------------------------------------------------------
5.4 Remining Policy Issues
It is important to note that, with just a few exceptions, the
remining examples identified in this study have occurred at historic
mining properties that were acquired by the current owners prior to the
late 1980's--a date that appears to signal the development of
heightened industry awareness and concerns regarding the liability
considerations associated with acquiring old mining properties. This
awareness probably emerged in the late 1980's as industry began to
recognize the implications of CERCLA and the Superfund Amendments and
Reauthorization Act (SARA) which were enacted in the 1980's. Although
many of the remining sites were acquired by the present owners in the
1970's and early 1980's, some represent mining districts in which one
or more company has had a significant presence for many years. The
Black Hills gold mining district in South Dakota, and the Coeur d'Alene
lead-silver distinct in Idaho are two areas in which the present mine
owners have had property positions for a number of years.
Since the late 1980's, the paucity of historic property
acquisitions suggests that elevated concerns about liability exposure
have significantly influenced corporate mining property acquisition
policies. It appears that most companies are unwilling to acquire
previously mined properties with known or suspected substantial
reclamation or remediation needs for fear of being held responsible for
these problems.
This downturn in acquisition of previously mined properties does
not reflect lack of industry interest in the mineral potential of these
areas. Liability issues not withstanding, industry generally perceives
old mining districts to hold considerable promise. A number of industry
representatives contacted during the 1993 remining study commented that
old mining districts are often attractive mineral exploration targets
(Struhsacker, 1993). If the liability-related impediments set forth
above were adequately addressed, remining, and corresponding
reclamation, of these historic sites certainly would increase.
6.0 conclusions and recommendations
The following conclusions and observations are based on an in-depth
review and analysis of the site data in Appendix A. They also reflect
many of the comments made by the State AML program personnel and mining
industry sources listed in Appendix B.
Both the Western States and the Mining Industry Have Achieved
Measurable Progress in Addressing the AML Problem.--This survey found
that State AML programs and industry-sponsored efforts have abated,
reclaimed, and remediated a number of high-priority AML sites
throughout the west. AML policy discussions often dismiss or fail to
recognize the progress made to date, choosing instead to emphasize the
large but poorly defined dimensions of the problem.
Private Funding, Equipment, and Labor from the Mining Industry
Have Been Responsible for Reclaiming and Remediating Many AML Sites.--
Industry has spent tens of millions of dollars in voluntary on-the-
ground cleanups and abatements of AML sites throughout the WGA region.
Mining industry critics often overlook or ignore this significant
industry contribution.
The Term Site Has Different Meanings and Must be Defined
Specifically in Each Forum.-- Some AML inventory efforts have
considered a ``site'' to be any single opening, mining or exploration
disturbance, or mining related feature. Other State AML programs and
the mining industry define ``site'' to include multiple features that
can be addressed with coordinated and consolidated abatement and
remediation measures. Continued debate over a universal definition of
AML ``site'' and development of a comprehensive hardrock AML inventory
diverts attention and resources from the real issues that need to be
addressed.
A Comprehensive AML Inventory is Not a Necessary First Step in
Solving the AML Problem.--The successfully reclaimed AML sites
identified in this study indicate that a complete inventory of the
universe of hardrock AML sites is not required for the States or
industry to achieve meaningful progress on correcting the AML problem.
AML Reclamation, Remediation, and Abatement Solutions Must be Site
Specific.--Just as no two mines are identical, each AML has unique
characteristics based upon site-specific physical conditions and
ownership patterns and history. Therefore, appropriate solutions to
problems at an AML must be determined on a site-by-site basis. Efforts
to categorize, pigeonhole, and inventory all aspects of the AML problem
have reached a point of diminishing returns and will add nothing more
to solving the AML problem. A one-size-fits-all approach to AML site
definition and reclamation is neither necessary nor appropriate.
Safety Hazards are the Dominant AML Problem and Most AML Sites are
not Problematic.--As indicated in Table 2-1, 97 percent of the
abandoned mine sites are characterized by the Mineral Policy Center as
reclaimed and/or benign, landscape disturbances, or safety hazards.
According to the Western Governors' Association, greater than 80
percent of abandoned mines create neither environmental nor immediate
public safety concerns.
Impediments to Voluntary Cleanups are Two-Fold.--First there are
the legal impediments, or risks of incurring new CWA or CERCLA
liability for taking voluntary action at an AML site. Second, there is
the institutional impediment, which consists of the systematic one-
size-fits-all or command-and-control approach taken by regulatory
agencies to public safety and environmental issues that inhibits
voluntary, cooperative, and innovative action at AML sites.
Pursuit of the Perfect is Thwarting Realization of the Good.--
Regulatory policies that require strict compliance with all
environmental standards, particularly arbitrary one-size-fits-all water
quality standards, have forestalled State and industry AML cleanup
projects that may produce significant environmental benefits but that
do not meet some water quality standards. A new policy approach is
needed to facilitate partial and incremental cleanup efforts and to
protect the parties involved from exposure to CWA citizen lawsuits.
South Dakota Has the Most Industry-funded AML Cleanup and
Reclamation Accomplishments.--A streamlined regulatory environment that
has minimized legal proceedings and protracted administrative and
regulatory reviews, and has maximized resource expenditure for on-the-
ground reclamation and remediation measures has facilitated industry-
sponsored AML projects in South Dakota. This streamlined approach is
critical and appropriate for industry-funded cleanup that involve no
expenditure of public resources. These projects should not be burdened
with unnecessary regulatory reviews and attendant costs and delays. The
South Dakota regulatory model may be easiest to replicate in States
with an omnibus agency with jurisdiction over water quality, air
quality, hazardous and solid waste, and mine reclamation.
Industry Remining Projects Have Contributed Significantly to AML
Cleanups.--The numerous examples of remining examined in this survey
document that significant synergism can be achieved when active mining
operations reclaim and remediate problems at adjacent or nearby AML
sites. Remining projects involving the processing of existing mine
wastes and the reprocessing of tailings and previously leached
materials comprise a fraction of the total remining sites. There are a
number of remining sites at which industry-funded reclamation/
remediation activities have achieved significant environmental
improvements. Most of these remining projects occurred at sites
acquired prior to the mid- to late 1980's. It appears that liability
concerns have inhibited industry acquisition of previously mined areas
since then, probably corresponding to the enactment of CERCLA and the
Superfund Amendments and Reauthorization Act (SARA) in the 1980's.
Reclamation-mining could be a significant partial solution to the AML
problem if CERCLA, CWA and other liability barriers were removed.
AML Sites with Acid Drainage From Mine Openings Pose the Most
Challenging Technical and Policy Problems.--Remediation of ARD from
underground workings is the most challenging issue both from a
technical and a legal perspective. Although passive water treatment
systems can achieve significant water quality improvements and are
practical at remote sites with no power infrastructure, more
sophisticated water treatment measures are typically required to meet
water quality standards and NPDES permit limits. Both State agencies
and the private sector face onerous legal challenges from CWA lawsuits
for residual drainage from remediated AML sites that do not meet
numeric water quality standards--regardless of the improvements
realized at these sites.
Safety Closures May Create Conflicts with Bat Habitat and Historic
Preservation Concerns.--A number of State AML program officials
mentioned the difficulties encountered in balancing the need to seal
mine openings to protect public safety with the need to preserve
wildlife (especially bat) habitat and the integrity of old mine
workings as historic resources. In some settings, fencing old workings
may be adequate to protect public safety and avoid these potential
resource conflicts.
There are Several Sources of Potential Funding for the Cleanup of
Abandoned Mines.--Under the umbrella of the ``Clean Water Action
Plan'', several Federal agencies have requested funds to engage in
abandoned hardrock mine cleanups. In certain circumstances, the
Environmental Protection Agency, Department of Interior and Corps of
Engineers programs can be a source of primary or matching funds for
cleanups. In addition to these Federal sources, several States have
established their own funding mechanisms. The survey also manifests
significant private industry contributions to the cleanup effort. State
and Federal agencies, industry and watershed organizations would all
benefit from the creation of a data bank or clearinghouse that
identifies and describes available Federal AML cleanup resources.
Based on the site information collected for this survey and the
conclusions and observations listed above, the authors offer the
following recommendations:
Collect Additional Data.--The data included with this report in
Appendix A are limited due the short time available to conduct this
study. This data base of successfully reclaimed AML sites could be
expanded with continued study. Future data collection efforts should
focus on industry-sponsored remining projects in order to develop a
comprehensive understanding how to facilitate future industry AML
efforts.
Conduct Field Visits.--Field visits to successfully improved AML
sites could provide all stakeholders in the AML issue with a better
awareness of the successes achieved to date. Field visits could also be
a valuable opportunity for industry and State representatives to
collaborate on proven AML abatement, reclamation, and remediation
techniques and to examine effective solutions to specific technical and
policy challenges.
Compile Photo and Video Documentation of AML Improvement
Projects.--Armed with vivid images of AML sites, mining opponents have
an easy job in provoking public concerns about mining and the
environment, and fomenting opposition to proposed mining projects.
Pictures and videos of reclaimed AML sites are needed to displace these
dated images of landscapes and environments damaged by past mining
activities.
Prepare Detailed Case Studies of Selected Sites.--Case studies
should be prepared for several types of reclaimed AML sites to provide
detailed information about the technical and policy issues that either
facilitated or impeded AML improvement efforts. The types of AML sites
that would be appropriate for case study evaluation include the
following: a composite of the South Dakota sites to evaluate the
streamlined regulatory approach; a site with acid drainage from a mine
opening to evaluate the technical and legal challenges; a remining/
reprocessing site to examine
liability, technical, and economic issues; several other types of
remining sites including sites requiring removal, repository, and in
situ actions to define liability,
technical, and economic issues; and a safety abatement site to assess
the conflicting concerns regarding historic preservation, bat habitat
protection, and mine sealing.
acknowledgments
The authors wish to gratefully acknowledge the excellent response
and cooperation from both the mining and regulatory communities in
supplying information on reclaimed AML sites. Preparation of this
report would not have been possible without the significant
contribution of data and information from both industry and agency
sources.
references cited
California Environmental Protection Agency Department of Toxic
Substances Control (DTSC), 1998, The Abandoned Mine Lands
Preliminary Assessment Handbook, January, 1998, 75 pages.
Colorado Center for Environmental Management (CCEM), 1998, Barriers and
Incentives to Voluntary Cleanup of Abandoned Hardrock Mine Sites,
report prepared for the U.S. Department of Energy, Office of
Science and Technology, 29 pages.
Colorado Center for Environmental Management (CCEM) and U.S. Bureau of
Mines, 1994, Inactive and Abandoned Non-Coal Mine Inventory and
Reclamation--A Status Report on 19 States.
Crozier, S.A., 1997, The Abandoned Mine Land Initiative: Regulatory
Impediments and Policy Options, unpublished report, 19 pages.
Durkin, T.V., 1996, Acid Mine Drainage: Reclamation at the Richmond
Hill and Gilt Edge Mines, South Dakota, EPA Seminar Publication no.
EPA/625/R-95/007: Managing Environmental Problems at Inactive and
Abandoned Metals Mine Sites, October, pp. 54-61.
Lyon, J.S., et al., 1993, Burden of Gilt, Mineral Policy Center,
Washington, DC.
Pierson, E.D., et al., 1991, Bats and Mines: Experimental Mitigation
for Townsend's Big-eared Bat at the McLaughlin Mine in California
in Proc. V: Issues and Tech. In the Management of Impacted
Wildlife, Snowmass, CO, April 8-10, 1991.
South Dakota Department of Environment and Natural Resources (DENR),
1998, 1997 Summary of the Mining Industry in South Dakota.
Struhsacker, D.W., 1993, Proposed Industry Program for Re-mining and
Reclamation of Inactive Mine Sites: paper prepared for McClure
Gerard & Neuenschwander and placed into the record of August 5,
1993 House Natural Resources Committee hearing on unreclaimed hard
rock mines.
Todd, J.W., and Struhsacker D.W., 1997, Environmentally Responsible
Mining: Results and Thoughts regarding a Survey of North American
Metallic Mineral Mines: Society for Mining, Metallurgy, and
Exploration, Inc., Preprint 97-304.
Western Governors' Association (WGA), 1998, Abandoned Hardrock and Non-
Coal Mines in the West, Draft Report, May 1998.
Western Governors' Association, 1996, Guiding Principles for
Inventorying Inactive and Abandoned Hardrock Mining Sites, in,
Abandoned Mine Waste Working Group Final Report, June 1996.
Western Interstate Energy Board, 1991, Inactive and Abandoned Noncoal
Mines, A Scoping Study, prepared for the Western Governors'
Association.
__________
Statement of Jack Lyman, Executive Vice President,
Idaho Mining Association
Mr. Chairman, members of the subcommittee, my name is Jack
Lyman. I am Executive Vice President of the Idaho Mining
Association. It is a pleasure to be here today to provide you
with a mining industry perspective on S. 1787, the ``Good
Samaritan Abandoned or Inactive Mine Waste Remediation Act.''
The Idaho Mining Association consists of over 50 members who
mine and process minerals and who provide equipment and
services to the industry.
The Idaho Mining Association supports the concept of
encouraging and promoting the remediation of abandoned or
inactive mined land through a Good Samaritan program. S. 1787,
however, is seriously flawed and will not achieve the desired
objective of remediating these areas.
The State of Idaho has a long history of mining activity
and, as a result, the state possesses a large number of
abandoned mine sites. Our industry is aware of the challenges
presented by abandoned and inactive mines and has worked with
the State of Idaho to address these challenges.
Good samaritan legislation at the federal level has the
potential to be a powerful and effective tool for helping to
address abandoned and inactive mines. It is possible to craft
legislation that would not only provide significant incentives
for parties to engage in remediating these mines but also to
remove the existing remediation obstacles. Unfortunately, S.
1787 is not that legislation.
From a mining industry perspective, there are numerous
concerns with S. 1787. Today, I would like to highlight three
of these concerns: (1) The program established in S. 1787 is
far too limited with respect to both the areas that qualify for
remediation and the entities that may engage in remediation;
(2) the bill establishes a standard for water quality that is
so stringent it will act as a disincentive to participation in
the program; and (3) the bill contains other major
disincentives to participation such as exposing parties who
remediate under the program to potential liability under the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA).
I will briefly amplify each of these concerns. First, the
bill has an overly strict definition of ``abandoned or inactive
mined land'' resulting in an unnecessary limit on eligibility.
The bill excludes areas that are on CERCLA's National
Priorities List (NPL), proposed for inclusion on the NPL, or
the subject of a planned or ongoing response or natural
resource damages action. This provision eliminates large areas
throughout the country from eligibility. For example, the Coeur
d'Alene Basin in Idaho, where there is a heavy concentration of
abandoned mines, would be excluded from eligibility under the
bill. This is an area that might benefit from a self-structured
Good Samaritan program. If improvement in water quality is the
goal, then deferring in this way to CERCLA is not the answer
unless you are satisfied waiting a decade or more to see
remedial action taken, and then only at an inordinate cost.
S. 1787 is also unduly restrictive with respect to the
parties that are eligible to engage in Good Samaritan
remediation. The bill limits participation to the United
States, states, Indian tribes and municipalities. However, the
United States cannot be a remediating party with respect to
abandoned or inactive mined land located on federal land. In
addition, the bill provides, with one narrow exception, that a
remediating party cannot apply for a permit if the abandoned or
inactive mined land is owned by the remediating party. If the
United States cannot remediate on land it owns, and in general,
neither can a state, Indian tribe or municipality, then what
land is eligible for remediation and who is eligible to
remediate it? It seems that the bill has so many restrictions
in place that not much land will be eligible for remediation
and not many entities will qualify as remediation parties. In
order to maximize the number of areas that are remediated, S.
1787 needs to be less restrictive, and the definition of
remediating party needs to include private entities as well as
governmental agents and contractors.
Second, a remediation plan, in order to be approved, must
demonstrate with ``reasonable certainty'' that it will result
in ``an improvement in water quality to the maximum extent
practicable, taking into consideration the resources available
to the remediating party for the proposed remediation
activity.'' The standard for remediation should, instead, be
``an improvement in surface water quality.'' By adding ``to the
maximum extent practicable'' an overly stringent standard is
created that will lead to protracted debate as to its meaning
and will act as a serious disincentive to participating in the
program. In addition, the requirement to demonstrate a
``reasonable certainty'' that maximum water quality improvement
will occur is likely to discourage the use of innovative
technologies.
Third, S. 1787 contains several additional disincentives to
participation in the program. Even if an eligible party (e.g.,
the United States) finds a land area that meets the bill's
overly restrictive eligibility criteria, and the party is
willing to brave the requirement to improve water quality ``to
the maximum extent practicable,'' there are additional
requirements in the bill that discourage participation in the
program. I will mention one of these disincentives.
The purpose of the bill is to allow a limited class of
eligible parties to remediate a limited number of eligible
abandoned or inactive mined lands without incurring liability
under sections 301, 302, and 402 of the Federal Water Pollution
Control Act, commonly known as the Clean Water Act. What the
bill fails to address, and therefore is one of its fatal flaws,
is the fact that parties will not go near an area if the
potential exists that CERCLA liability will attach in the
future. Because of CERCLA's draconian liability system
(retroactive, strict, joint and several liability) and the fact
that liability attaches to ``any person who owned, operated, or
otherwise controlled activities'' at the facility, no party
would risk potential CERCLA liability attaching in the future
to remediate under this bill. The bill excludes CERCLA sites
from eligibility but a non-CERCLA site today could be a CERCLA
site tomorrow and anyone who ``operated'' at the area would be
liable under CERCLA section 107(a). The ultimate disincentive
to remediation under S. 1787 is the fact that every remediating
party will face the prospect that the area in question will
some day be subject to CERCLA and, therefore, subject them to
retroactive, strict, joint and several liability.
In closing, let me reiterate that the Idaho Mining
Association supports the concept of encouraging the remediation
of abandoned or inactive mined lands through a Good Samaritan
program. We believe that any such legislation, to be effective,
should encompass the maximum number of areas and should have a
broad definition of remediating parties; should provide clear
and reasonable remediation standards; and should provide
incentives for participation. S. 1787 fails on all three of
these counts by unduly restricting both the type of area that
qualifies for the program and the type of parties that may
engage in Good Samaritan remediation; by imposing a remediation
standard that encourages debate and delay and discourages
participation; and by failing to remove some current obstacles
to engaging in Good Samaritan remediation and by imposing new
obstacles. For these reasons, S. 1787 would not be an effective
tool for encouraging the remediation of abandoned or inactive
mined land.
Thank you for the opportunity to testify on S. 1787. Mr.
Chairman, I look forward to working with you to craft
legislation that would create a meaningful and effective good
samaritan program for abandoned and inactive mined lands.
I would be happy to answer any questions that you or any
member of your subcommittee might have.
------
Statement of Sara Kendall, Western Organization of Resource Councils
Good morning. My name is Sara Kendall, and I am the
Washington, D.C. Representative for the Western Organization of
Resource Councils, or WORC. WORC is an association of
grassroots community-based organizations in six western
states--the Dakota Resource Council in North Dakota, Dakota
Rural Action in South Dakota, the Idaho Rural Council, the
Northern Plains Resource Council in Montana, the Powder River
Basin Resource Council in Wyoming, and the Western Colorado
Congress. We work primarily on environmental and family farm
agriculture issues. Many of our members live and work in
communities impacted by mining and abandoned mine lands.
I'd like to start by commending the subcommittee for its
interest in addressing the persistent problem of pollution from
abandoned mines. Abandoned mines are one of the major sources
of water pollution in western states. These sites release
sediments, heavy metals and other toxic chemicals into
community water supplies, are harmful to fish and wildlife, and
often impact local economies.
The primary obstacles that must be addressed if these sites
are to be cleaned up are the minimal efforts currently being
made to track down responsible parties and the lack of
sufficient funds for remediation. But, we acknowledge that it
is also important for states to stretch the funds they do have
as far as possible. In addition, we recognize that, at some
abandoned mine sites, it would be difficult to restore streams
to the applicable water quality standards. For these reasons,
we support the concept at the core of Senator Baucus' Good
Samaritan legislation--reducing water quality standards and
liability for third parties that want to clean up abandoned
mines.
I'd like to express WORC's appreciation for changes that
Senator Baucus and the Western Governors' Association made from
earlier drafts of the legislation to address concerns raised by
our organization and others:
S. 1787 is restricted to state, tribal and
municipal governments, eliminating the concern that loopholes
in earlier versions might have allowed a potentially
responsible party to qualify as a good samaritan.
The bill's requirement that revenue generated
through the use or sale of minerals be used for additional
remediation alleviates the concern that it is inappropriate for
a good samaritan to profit from cleaning up a site to anything
less than Clean Water Act standards, but does so without going
so far as to prohibit the sale of such resources and thereby
shut off a potential source of additional clean up funds.
The 10-year sunset leaves room for the Congress to
extend the Act if it is a success, but ensures that it will
automatically lapse if it is not.
The more detailed requirements for an analysis of
baseline conditions at the site will help good samaritans
document their successes and respond if charges are made that
their remediation efforts increased pollution from an abandoned
site.
Limiting the bill to abandoned hard rock mine
sites removes questions over the need for reducing water
quality standards at coal sites, where clean ups are occurring
at a much higher rate than they are at hard rock sites, thanks
to the coal royalty that funds an abandoned mine land clean up
program.
We view all of these changes as positive developments that
will enhance abandoned mine remediation and protect the
interests of communities and taxpayers.
We continue to have concerns, however, with a couple of S.
1787's provisions. We remain concerned that the best efforts of
the states, tribes or municipalities will not always succeed in
improving water quality, and in some cases may actually result
in increased pollution. S. 1787 would not hold good samaritans
responsible for meeting the clean up goals they themselves set,
or even to the level of pollution documented in the baseline
analysis, as long as they stick to their remediation plans. We
believe that if the good samaritan actually increases the
pollution from the mine site, they should be held liable for
returning the site to the condition documented in the baseline
analysis.
It is a basic tenet of the Clean Water Act that any party
must try to achieve some objective or standard for water
quality. While, as I said earlier, we recognize that it would
be difficult to restore streams at some abandoned mines to the
applicable water quality standards, we strongly urge the
incorporation of a mechanism for establishing a clear objective
good samaritan remediation efforts, with input from people in
the impacted communities. There are mechanisms in place today
under the Clean Water Act, such as a Use Attainability
Assessment (or some modification thereof), that could be used
to address this concern.
Finally, the reduced water quality standards and liability
waiver should only apply to mines that are truly abandoned, and
not to sites that are inactive, in bankruptcy proceedings or
permitted.
In closing, we ask that you consider, in addition to this
Good Samaritan legislation, a more comprehensive approach to
the problems associated with abandoned hard rock mines in the
West. Many states still need to inventory their abandoned mine
sites and set priorities for clean up. Strategies need to be
developed to remediate the high priority sites, including
attempting to identify the parties who own the mine sites and
are responsible for the pollution. Funds are needed for states,
tribes or municipalities to pursue responsible parties and,
when necessary, to remediate pollution problems. Without an
adequate funding source, no waiver of liability will even begin
to address the problem.
Although S. 1787 has the potential to facilitate the clean
up of a number of abandoned mine sites, this potential is very
limited because the Good Samaritan approach picks at the edges
of a problem fundamentally caused by an antiquated law and
outdated regulations under that law. We hope that the
subcommittee will address the concerns we've raised and move
forward with S. 1787, but we urge you to make it part of a more
comprehensive approach to the abandoned mine problem.
Thank you for the opportunity to testify.
------
Statement of David Gerard, Research Associate, Political Economy
Research Center (PERC), Bozeman, MT
PERC is the nation's oldest and largest nonprofit institute
dedicated to original research that advocates using market principles
to address environmental problems. More than 90 percent of our funding
comes from foundations and individual donors. As part of its mission,
PERC produces independent scholarly research on environmental policies.
Thus, PERC's comments on the proposed Clean Water Act revisions do not
represent the views of any affected parties or special interest groups,
but instead represent the interests of American citizens.
PERC has ongoing research on mining and hazardous waste issues,
including a current study of abandoned mines. Our abandoned mines
project is in the process of examining the status of abandoned mine
reclamation efforts, identifying issues confounding reclamation
(including liability issues), and exploring alternative approaches for
encouraging and funding site reclamation.
We would like to express our thanks to the members of the committee
for allowing us to testify on this proposed legislation.
summary of testimony on s. 1787
The intent of S. 1787 is to encourage parties that are not
responsible for environmental conditions to take steps to improve water
quality at abandoned mine sites. The question is: Are any Good
Samaritans likely to emerge? If not, why not? And, if so, will their
resources be put to their best use?
The proposed legislation responds to the provisions of the Clean
Water Act (CWA) that discourage parties from remediating waste
discharges from abandoned mine sites. The disincentive stems from the
fact that, pursuant to the CWA, any party that in any way affects a
discharge becomes fully responsible in perpetuity to meet the CWA water
quality standard. This full compliance holds even if the remediating
party had no role in creating the conditions that originally caused the
adverse water quality impacts. Thus, it is not possible for a
remediating party simply to improve water quality; the party must meet
the water quality standard specified by the CWA, whatever the cost.
As the title of the legislation suggests, meeting the CWA standard
at many abandoned sites is such a daunting responsibility, even the
proverbial Good Samaritan would need an additional incentive before
undertaking site remediation. The legislation provides this incentive
by amending the CWA to allow a remediating party to improve water
quality without being held responsible to comply fully with the CWA
water quality standard. Thus, the intent of the proposed legislation is
to promote voluntary cleanup.
My analysis of the proposed legislation draws two principal
conclusions:
S. 1787 will have positive environmental impacts on sites
addressed through state abandoned mine programs.
S. 1787 does not encourage Good Samaritans to undertake
cleanup efforts, and will therefore have little impact on the number of
sites addressed.
For sites slated for reclamation or already in the remediation
process, the proposed legislation will broaden the scope of activities
allowable. The resulting environmental quality at reclaimed sites will
be higher once the CWA liability is relaxed.
At the same time, however, the disincentives built into S. 1787
make it unlikely that new remediation parties will emerge. For
instance, the proposed legislation forces the Good Samaritan to expend
resources on an owner/operator search, which has proven to be a costly
and uncertain process in other contexts. In addition, the proposed
legislation does not eliminate all relevant liability concerns.
Specifically, potential liability under the Comprehensive Environmental
Response Compensation and Liability Act (CERCLA) is a major industry
concern, and might also be of concern to other potential remediating
parties. These liability concerns alone make industry Good Samaritan
efforts unlikely. Almost without exception, the proposed legislation
discourages potential remediation parties from pursuing cleanup efforts
abandoned mines background
There are thousands of abandoned noncoal mine sites in the U.S.
that pose environmental and/or safety hazards. Some of these abandoned
sites are the source of environmental contamination, including heavy
metal and acid discharges that degrade surface or groundwater quality.
Arizona has surveyed 5,890 mine openings, shafts, adits, prospects,
and quarried out areas. Of these sites, 118 (2 percent) have possible
environmental hazards, and 668 (11 percent) pose public safety hazards
(Arizona, 1999). In Montana the state has evaluated more than 3,800
sites based on their environmental and safety characteristics, and has
designated 380 priority cleanup sites from this list.
As the table indicates, these sites are located both on private and
on public lands. The table, however, belies the complex ownership
patterns of historic mining districts. As a result of various land
policies, it was common for the same mine site and processing
facilities to be located both on public land (e.g., mining claims) and
private land. Even for sites on private lands, however, often there is
either no identifiable owner or the owner does not have the financial
resources to reclaim the site. In cases where there is no identifiable
and solvent owner, the site is considered to be abandoned.
Table.--Ownership of Inactive Mines and Priority Cleanup Sites in
Montana
------------------------------------------------------------------------
All
Priority Inactive
Sites Sites
------------------------------------------------------------------------
Private....................................... 262 1820
Public........................................ 85 1325
Unclassified.................................. 33 709
-------------------------
Total....................................... 380 3834
------------------------------------------------------------------------
Source: Montana Department of Environmental Quality, August 1998
The legacy of abandoned mines is attributed to both a lack of
industry and public concern about potential hazards and an absence of
environmental regulation to address these hazards. Of course, public
attitudes and regulatory systems have changed radically over the past
three decades, and mining is now one of the country's most heavily
regulated industries. Mining activities are subject to federal statutes
and federal land agency regulations, as well as state statutes and
regulations. These regulations also affect activities at inactive and
abandoned mines. Though intended to promote sound environmental
management, these regulations can discourage remediation of hazardous
waste sites, including abandoned mined lands.
the clean water act and abandoned mine land remediation
The U.S. Environmental Protection Agency (EPA) maintains that
discharges from abandoned mine sites are subject to the National
Pollutant Discharge Elimination System (NPDES) under Section 402 of the
Clean Water Act. Thus, whether the mine is active or inactive, the mine
owner must obtain an NPDES permit, and the owner is responsible for
meeting water quality standards as specified in the permit.
Many abandoned sites produce discharges that contribute to
degradation of water quality. In such cases a party that begins
remediation activity that alters the current discharge becomes
permanently responsible for meeting the permit standard. The assignment
of liability occurs even though the remediating party did not create
the conditions causing or contributing to the water quality degradation
and had no previous responsibility or liability for the condition of
the site. This potential liability discourages parties that might
otherwise take steps to improve water quality at abandoned mines.
Enter the Good Samaritan?
The proposed legislation (S. 1787) addresses these disincentives.
The legislation allows the potential remediating party--the Good
Samaritan--to obtain a permit that allows it to take steps to improve
water quality without being required to comply fully with the water
quality standard.
The liability shield from liability for parties that had no role in
creating the water quality degradation would allow remediating
parties--particularly state abandoned mine land programs--to expand the
types of allowable activities (i.e., activities that affect the
discharge covered by NPDES permit). What is less clear is whether the
liability shield would be sufficient to encourage new parties to pursue
or to expand remediation activities. To address this issue, consider
the following possible Good Samaritan candidates:
federal agencies (Bureau of Land Management, Forest
Service, National Park Service)
local governments
non-profit groups
mining companies
Federal Agencies.--The legislation prohibits federal agencies from
acting as Good Samaritans on lands owned by the federal government. In
fact, if federal agencies are always considered responsible parties on
federal lands, it could be the case that S. 1787 does not apply to any
abandoned mine sites on federal lands (see below).
Local Governments and Private Groups.--The legislation builds in a
number of hurdles for private groups. Specifically, it requires Good
Samaritans to identify the identity and financial solvency of the
property owners, even though these expenditures do nothing to improve
the water quality at the site. Nonprofit groups may also have concerns
about being exposed to liability under CERCLA.
Mining Companies.--Mining companies face these same hurdles, and
are particularly concerned about potential CERCLA liability. In
addition, the proposed legislation removes other incentives by
prohibiting remining and mineral exploration, and also by prohibiting
remediating parties from profiting from a Good Samaritan cleanup.
Thus, there are clear obstacles other than CWA liability that could
prevent Good Samaritan cleanups.
disincentives for potential remediating parties
This brief survey indicates that new parties might not emerge
because (1) all liability is not removed, and (2) additional hurdles
and disincentives are added. I discuss these problems in greater detail
below.
1. The Search for Owner/Operators and the Solvency Test--Wasting Time
and Resources While Water Quality Deteriorates
As part of the permit requirements, the potential remediating party
is required to take steps to identify an owner or operator (e.g.,
current or past owners, mine operators, lessees). An identifiable owner
is defined as a party that (1) is responsible for creating or
contributing to the current waste discharge; and (2) ``is financially
capable of compliance with requirements of sections 301, 302, and 402''
of the Clean Water Act.
The EPA (the Administrator) will approve the permit application
only if ``no identifiable owner or operator exists.'' Thus, EPA can
reject a permit if the Good Samaritan has not taken ``reasonable
efforts'' to identify an owner/operator; or if the Administrator
determines that the party identified, in fact, meets the rather loosely
defined solvency requirements.
It is not clear why the potential remediating party should be
required to expend resources on an owner/operator search. Even so, the
proposed legislation does nothing to limit owner liability. If an owner
is identified, it will still be responsible for bringing water quality
into compliance with CWA permit requirements.
Moreover, the search process is likely to be complicated. The Good
Samaritan is required to not only search for an operator, but also to
determine whether the operator is solvent. As we have seen, land
ownership in historic mining districts is most often a mixture of
public and private land, and therefore there are often several parties
with partial ownership or some history of operations at a given site.
The search requirement does nothing to improve environmental quality.
Instead it creates uncertainty as to the issuance of a permit and
diverts resources that could otherwise be allocated toward cleanup.
Why should legislation prohibit a Good Samaritan effort to mitigate
the effects of ongoing waste discharges? If private funds are used,
that is the choice of the private party; if public funds are used, the
state or federal agency would be able to put a lien on the property or
to sue to recover the remediation costs. There is no reason to believe
that environmental quality would suffer if the search provision was
eliminated from the proposed legislation.
The Forest Service's abandoned mine cleanup efforts are instructive
on these issues. According to a 1996 Inspector General (IG) audit, the
Forest Service had identified 335 contaminated sites, but the agency
had remediated only 16 of these sites. The IG makes it clear that the
Forest Service's emphasis on determining the existence of a
potentially-responsible party (PRP) limited the number of site
cleanups:
Because of emphasis on sites where [the Forest Service] is the only
responsible party, [the Forest Service] has, so far, spent about $12.7
million on actual cleanup of mines and only 16 sites have been
completely cleanup up (USDA, 1996, 9).
The passage suggests that there will be few cases where there are
no parties that satisfy some element of the ``ownership'' criteria as
spelled out in the proposed legislation.
Even where the Forest Service found a PRP, however, it found it
difficult to collect funds. The IG found that:
[The Forest Service] has pursued PRP's (sic) at 29 sites with
estimated cleanup cost of $48.5 million. Bills of collection
totaling $4.3 million have been issued at only 6 sites and only
$2.2 million collected. Of the $2.2 million collected, $1.56
million came from one PRP (USDA, 1996, 16).
Although the emphasis on sites with no identifiable PRPs delayed
cleanup efforts, it did little to actually collect funds from PRPs.
Presumably no cleanup had occurred at these sites. At the same time,
because the Forest Service identified owners, these 29 sites would have
been off limits to any Good Samaritan efforts (the EPA will not approve
a permit if an identifiable owner exists). As a result, the offensive
discharge will continue.
The benefit of finding an owner/operator comes at a very high
price: The search for an owner/operator will be time consuming and
costly, which will delay cleanup and limit resources available for site
remediation. If an owner/operator is located, the EPA will deny the
permit application, further delaying cleanup.
State Agencies.--State agencies that remediate sites, however,
generally do not object to these search provisions because funding
sources for these cleanups are often tied to completing a search. For
instance, the Montana State Department of Environmental Quality (DEQ)
is a primary agency involved in abandoned mine cleanup. The DEQ uses
surplus funding from the Surface Mining Control and Reclamation Act
(SMCRA) to finance the cleanup of hardrock sites. In order to tap this
funding, DEQ must complete a PRP search. PRP searches are also routine
under federal and state Superfund programs. Thus, S. 1787 does not
create an additional hurdle for state abandoned mine programs because
that hurdle already exists.
The owner/operator search is a potentially costly hurdle. If the
provision is retained (and there is no reason to believe that the
provision will have any beneficial environmental impacts) the language
should allow for fast, low-cost searches.
2. Are Federal Lands Excluded?
The proposed legislation excludes federal agencies from being a
remediating party on federal lands. The text of the IG audit of the
Forest Service suggests that all federal lands are excluded from Good
Samaritan remediation:
Because of emphasis on sites where [the Forest Service] is
the only responsible party. . . (USDA, 1996, 9, emphasis mine).
This phrase suggests that if no owner/operator exists, then the
administrative agency is considered an owner of abandoned sites on
federal lands. If this is the case, there is no possibility of a Good
Samaritan cleanup because there is always a solvent owner--the Federal
Government. If this is the case, then the opportunities for Good
Samaritan cleanups will be limited. In Montana, more than 20 percent of
priority sites are on federal land, and there are some estimates that
as much as 70 percent of abandoned mine lands are located on federal
land. This would severely limit scope of proposed legislation.
Therefore, the legislation should explicitly provide for Good
Samaritan cleanups on federal land.
3. CERCLA Liability
A major industry concern is that a permit obtained pursuant to the
proposed legislation will move a remediating party out of the frying
pan of Clean Water Act liability and into the fire of CERCLA liability.
If there is any uncertainty about CERCLA liability, the number of
industry Good Samaritan cleanups will be roughly zero. Again, this does
not present a disincentive to state abandoned mine programs, as the
states are immune from CERCLA liability.
4. Remining and Mineral Exploration Prohibited
In addition to exposing industry Good Samaritans to CERCLA
liability, the proposed legislation does its best to discourage
involvement by the mining industry. This is unfortunate, as industry is
a primary source of both expertise and potential reclamation funding.
Remining.--There is a reasonable rationale for not providing for
remining. The allowance of remining would complicate the basic scope of
the legislation by extending it beyond the purview of the CWA.
Reprocessing.--The proposed legislation requires a remediating
party that generates revenues by reprocessing materials to put those
funds back into the remediation effort. The proposed legislation
stipulates that the processing and removal of minerals can only be used
to ``further improve the quality of waters identified in paragraph
(3)(B)(iii)'' (emphasis added). Thus, a company cannot use proceeds to
finance a remediation effort, but is required by law to take a loss on
the venture.
Exploration.--Mineral exploration is expressly prohibited.
The disincentive effects of these provisions require no
elaboration. Given the political opposition of environmental groups,
bringing remining or mineral exploration to the table complicates
passage of this legislation. However, it is not clear why the
legislation should so thoroughly reject parties that will improve water
quality at a given site. Moreover, success of remining at sites such as
the Druid and Sunnyside Mines in Colorado makes remining a possibility
that warrants further review.
5. Citizen Suits
The proposed legislation allows for citizen suits. The entire
rationale for Good Samaritan legislation is that the remediating party
is not a polluter, and therefore should not be treated as such. The
Western Governors Association has asserted that citizen suits are a
``major disincentive'' for Good Samaritan efforts (WGA, 1998).
federalism
Under the Clean Water Act the EPA generally delegates authority to
the states (1) to issue discharge permits to industries and
municipalities and (2) to enforce the permit requirements. EPA has
delegated this responsibility to 43 states. In the proposed
legislation, however, the EPA will not delegate authority to state
agencies. The rationale for this is that it is inappropriate for a
state to issue a permit to itself, given the uncertainty surrounding
enforcement and the general absence of checks. (Unfortunately, this
provision reflects the underlying theme of my analysis, which is that
it is unlikely that remediation parties other than the states are
likely to emerge.
Because the proposed legislation does not prohibit citizen suits,
it is difficult to see why this argument applies. If there is some
question about the state's compliance with the permit provisions in a
cleanup effort, citizen suits can be used as an enforcement mechanism.
But even without the citizen suit provision, the explicit
prohibition on delegation to the states is questionable. States are
closer to the actual situation, and therefore have a better chance to
make appropriate decisions than the national government. The purpose of
the proposed legislation is to give remediating parties greater
discretion over discharge, without assuming liability under the CWA.
Thus, the legislation is intended to encourage actions that improve
water quality. It is hard to imagine how a federal regulatory agency
would have greater incentive to improve environmental quality within a
state than a state agency. It is much easier for citizens to hold local
government officials accountable and to monitor local environmental
regulations.
conclusions
It is difficult to label S. 1787 as ``Good Samaritan'' legislation.
Almost without exception, the provisions discourage all potential
remediating parties other than state abandoned mine programs from
undertaking cleanup efforts.
The exception, of course, is a very important one. The proposed
legislation would provide state abandoned mine programs, such as the
one operated by the Montana DEQ, with broader latitude in their
remediation activities. This should have positive impacts on water
quality at sites remediated by state agencies, though the cost of the
permit process is probably more cumbersone than it needs to be.
The intent of the proposed legislation is to encourage parties that
are not responsible for environmental conditions to take steps to
improve water quality at abandoned mine sites. The question is: Are any
other Good Samaritans likely to emerge? And, if so, will their
resources be put to their best use?
S. 1787 has been marketed as legislation that provides positive
incentives for parties to address water quality problems at abandoned
mine sites. This is important conceptually because a fundamental
precept of sound environmental policy is that incentives matter. The
problem, however, is the only positive incentive contained in the
legislation will primarily affect state abandoned mine land programs
that are already undertaking cleanup efforts. For other parties the
incentive structure is not as promising. Most significantly, the
legislation does not clearly eliminate all potential sources of
retroactive liability, and it builds in disincentives for other parties
that might initiate cleanup efforts. To summarize:
There is uncertainty concerning CERCLA liability
The permitting process requires the Good Samaritan to
conduct a search for a solvent owner. The search is costly and creates
uncertainty, though there are no obvious environmental benefits from
the provision.
Mining firms, the source of potential funding and
expertise, have no reason to act as Good Samaritans. In addition to
potential CERCLA liability, remining and mineral exploration are
expressly prohibited; processing minerals allowed only if remediating
party operates at a loss.
Citizen suits create disincentive to all potential
remediating parties.
The scope of the legislation will be narrow if federal
lands are excluded.
S. 1787 is a positive step that will improve environmental quality
at some abandoned mine sites, but it will fail to encourage new Good
Samaritans to emerge. Therefore, I suggest the proposed legislation is
either amended to address the many disincentives to potential
remediating parties, or renamed ``The Clean Water Act Liability
Reduction for State Abandoned Mine Land Programs.''
references
Arizona State Mine Inspector (1999) ``Abandoned and Inactive Mine
Survey,'' Pamphlet.
Montana Department of Environmental Quality (1998) ``Montana Inactive
Mine Inventory and Mine Reclamation Priorities.''
United States Department of Agriculture, Office of the Inspector
General (1996) Forest Service Management of Hazardous Material at
Active and Abandoned Mines. Audit Report No. 08601-1-At. Atlanta:
USDA.
Western Governors' Association (19989) ``Background Summary on the WGA
Proposed Amendment to the Clean Water Act Regarding Good Samaritan
Cleanups of Abandoned and Inactive Mines.''
______
Responses by David Gerard to Follow-up Questions from Senator Crapo
the good samaritan abandoned or inactive mine waste remediation act
Question 1. What kinds of market-based approaches would you
recommend for this proposal to result in Good Samaritan cleanups?
Response. Market-based approaches is a generic term that centers
attention on how laws and regulations affect incentives; this contrasts
to many regulations which prescribe both a standard and the means in
which that standard must be achieved.
Conceptually, Good Samaritan legislation intends to treat those
that would voluntarily remediate abandoned mine land (AML) sites in a
manner different than those who are responsible for the mess in the
first place. This can be done both by removing disincentives and adding
positive incentives to encourage voluntary cleanup efforts. I believe a
market approach to the AML program has these fundamental components:
removing liability for governmental AML programs;
removing hurdles for private cleanup efforts;
creating positive incentives for governmental and private
cleanup efforts.
There are political realities beyond my expertise that limit my
knowledge of what should be included in the bill. Some components, for
instance, are so controversial that they might make the legislation
politically unviable. That being said, it is my opinion that S. 1787
exclusively concerns State AML cleanups. If private parties are ever to
be involved in Good Samaritan cleanups, I think there are a number of
disincentives that absolutely must be addressed:
remove Clean Water Act liability;
remove CERCLA liability;
remove owner-operator and solvency searches;
remove or severely curtail Citizen Suits.
Removing these disincentives seems to be a reasonably
straightforward enterprise. The issue of creating positive incentives,
however, (e.g., through financial incentives or Brownfield initiatives)
is considerably more complex.
Question 2. This legislation would allow the EPA to insist on
unexplained ``other'' information, at the determination of the
Administrator, from the permit applicant and holder. What do you
anticipate would be the practical application of this provision?
Response. The language gives the EPA broad discretion to do what it
likes, but I have no idea how the EPA would apply the provision. I
think the effect of the provision is to create uncertainty as to the
issuance of a permit.
As an aside, it is not clear why the bill grants any authority to
EPA. According to the testimony of the EPA witness--Assistant
Administrator of Water Chuck Fox--``this issue of mining has been
unaddressed from EPA for some time. And I have had one heck of a time
trying to find the resources in a declining budget to try and invest in
these kinds of problems.''
Good Samaritan legislation has been at the fore of the Western
Governors Association priority list for some time. It seems that we
should not allocate authority for the program to an agency that has
been disinterested at best in the matter, and places low priority on
mining issues. In my mind, this is not a recipe for success.
Question 3. Do you think that the mining industry should be
excluded from the liability shields provided in this legislation or
should they be a part of the solution to abandoned and inactive mine
cleanups?
Response. As it stands, S. 1787 very narrowly applies to State AML
programs. If there is ever to be a comprehensive approach to the AML
problem, I do not see how the mining industry could be excluded.
Question 4. How many additional areas do you anticipate would be
cleaned up as a result of the enactment of S. 1787?
Response. Many State AML programs have a list of priority sites,
and the effect of Clean Water Act liability is to reduce how these
programs address discharges from abandoned mine land sites. The passage
of S. 1787 would allow these programs to clean up sites on their
priority lists to a greater extent.
It is not clear whether the bill applies to federal lands, however.
Obviously, if the bill does not apply to federal lands, fewer sites
will be addressed. In Montana, at least 85 of 380 sites on the State's
priority list are on federal land. If S. 1787 does not apply to federal
lands, then the scope of the legislation is pretty narrow--State AML
cleanups on private lands.
In addition, there are a number of major hurdles for private
parities to get involved in remediation activities (plus the fact that
S. 1787 only allows government entities to act as Good Samaritans), I
would expect few if any new sites to be addressed.
Question 5. Under what conditions would this legislation allow a
Good Samaritan to be discharged from their permit? Is this sufficient
or are there other situations in which a permit holder should be
excused from further obligations under the permit?
Response. I do not have a definite opinion on this matter. Whatever
the conditions for discharging the Good Samaritan, however, the
stipulations must be very clear ex ante, otherwise the inherent
uncertainty will be potentially costly to resolve ex post, and will
ultimately discourage future cleanups.
Question 6. Do you believe the requirements called for in S. 1787
for a complete permit to be too little, just about right, or too
exhaustive?
Response. If the sole intent of the bill is to give greater
latitude to State AML programs for cleanups on private lands, the
permit requirements are ridiculously exhaustive. The same goal could be
accomplished in a single sentence--``State Abandoned Mine Land Programs
are not subject to liability under the Clean Water Act.''
If the intent of the bill is to bring in new parties and increase
the universe of sites addressed, the permit requirements are still too
exhaustive, but not ridiculously so. As it stands, there is tremendous
uncertainty as to the issuance of a permit. It seems to me that anyone
who is going to think about expending time and resources planning an
AML cleanup is going to want to have a good idea of the likelihood of
the issuance of a permit. As it stands, EPA has broad discretion over
issuance, and there is inherent uncertainty with respect to issues such
as the owner-operator and solvency searches and the maximum extent
practicable. Of course, State programs are not affected by some of the
disincentives to private parties, such as CERCLA liability (states are
immune), and owner-operator searches (AML programs typically must
conduct such searches to secure various sources of funding).
Question 7. Is it appropriate for a potential Good Samaritan--in
essence, a volunteer--to be required to undertake a PRP search? Whose
responsibility should that be? Under this bill, who would be required
to pick up the tab for such a search?
Response. My written testimony covers this issue in detail. I think
the PRP search does nothing to enhance environmental quality, and I
think the experience of the federal Superfund program and the Forest
Service AML efforts provide clear support for my view. There are
several possible scenarios, and none provides much support for
requiring a PRP search.
The Good Samaritan does not find a PRP;
The Good Samaritan finds a PRP, and the subsequent
solvency search shows the PRP does not have sufficient resources for a
cleanup.
The Good Samaritan finds a PRP, and the subsequent
solvency search shows the PRP has sufficient resources for a cleanup.
In all three case resources the Good Samaritan is forced to expend
time and resources that could otherwise be devoted to cleanup, and
cleanup efforts would necessarily be delayed. If a solvency
determination is necessary, the Good Samaritan must expend even more
resources, and there is bound to be uncertainty as to whether a permit
will be issued (for instance, who knows whether the EPA will issue a
permit once it has a PRP discovered?). In the third case, the Good
Samaritan would have expended resources, and not been able to do any
cleanup.
As long as S. 1787 does not remove responsibility from any
responsible party for the cleanup, I see no reason to make the Good
Samaritan foot the bill for the PRP search.
Question 8. Senator Baucus is a principal sponsor of legislation to
promote Brownfields cleanups including rural mine sites. S. 2700
provides funding for a Brownfields program, grants for site
assessments, and other federal assistance. Is it consistent to deny
such incentives and financial assistance to those potential Good
Samaritans for certain instances under this legislation, but not under
S. 2700?
Response. In my response to the first question I note that so-
called market-based approaches consist both of removing negative
incentives and creating positive incentives. This question asks how far
down the line should this legislation go? Because this is fundamentally
a political question, I don't have an answer. However, it is clear that
the next step to addressing the universe of abandoned mine sites in the
western states is providing, for instance, a funding mechanism for
State AML programs, or creating some sort of incentives for private
contractors to remediate sites. Clearly, Brownfield initiatives can
create incentives without necessarily warranting a financial commitment
from any government body. Such programs are the next logical step from
the liability waivers.
Question 8a. Should this legislation include a waiver for Good
Samaritans from Superfund liability?
Response. If S. 1787 has any designs on encouraging non-
governmental bodies to pursue cleanups, then the waiver of CERCLA
liability is essential.
______
Association of Metropolitan Sewerage Agencies,
Washington, DC., June 14, 2000.
Hon. Max Baucus,
Ranking Minority Member,
U.S. Senate,
Washington, DC.
Dear Senator Baucus: I am writing to express the strong support of
Association of Metropolitan Sewerage Agencies (AMSA) for the Good
Samaritan Abandoned or Inactive Mine Waste Remediation Act (S. 1787).
AMSA greatly appreciates your leadership in introducing S. 1787, along
with Senators Campbell and Daschle. AMSA represents the interests of
the country's wastewater treatment agencies that serve the majority of
the sewered population in the United States, and collectively treat and
reclaim more than 18 billion gallons of wastewater each day.
As you know, the surface waters in many of our member agencies'
communities have been impacted by pollutants introduced from abandoned
and inactive mines. Heavy metal discharges from these mines result in
lower quality drinking water and pose significant health risk to the
biota that reside in these impacted waters, and the wildlife and
fisherman that eat these fish and shellfish. The Western Governors'
Association estimates that there are at least 400,000 abandoned or
inactive mine sites in the west. The Mineral Policy Center concludes
that nearly 14,400 abandoned hard rock mines directly degrade surface
waters.
AMSA believes that S. 1787 will encourage the federal government,
states, tribes, local governments and private parties to undertake
voluntary cleanup of abandoned or inactive hardrock mines, by
establishing alternative remediation requirements than are currently
available under the Clean Water Act for such ``Good Samaritan''
efforts. The legislation will provide enhanced environmental, economic
and social benefits to downstream users of waters whose quality will be
improve through such remediation efforts. This legislation is certainly
worthy of widespread bipartisan support and adoption.
______
ASIWPCA,
Washington, DC., June 15, 2000.
Hon. Max Baucus,
Ranking Minority Member,
U.S. Senate,
Washington, DC.
Dear Senator Baucus: The Association of State and Interstate Water
Pollution Control Administrators (ASIWPCA) has followed the issues of
abandoned mines and the related pollution consequences for water
quality for some time now. We are well aware of the problems associated
with the runoff of inactive mines that have not been properly
maintained or closed in accordance with sound environmental practices.
Yet, over the years the states have found themselves in legal
jeopardy because of the strict liabilities connected with the clean up
process.
It is not the habit nor tradition of this Association to support or
oppose specific legislation, however, we do want to express to you our
appreciation for your efforts to provide the States with the necessary
flexibility to address water quality and with the legal protection to
take remedial action without fearing legal repercussions of liabilities
``The Good Samaritan Abandoned or Inactive Mine Waste Remediation
Act'' (S. 1787), as an amendment to the Clean Water Act, has as its
intent the protection of State agencies engaged in the remediation
process from becoming legally responsible for any continuing discharge
from such abandoned mine sites after the completion of a clean up
effort.
States with concerns over mining activities are in need of support
for their remediation activities and are also in need of protection
from legal liability. For these reasons, we thank you for your efforts
to provide the States with the flexibility and legal immunity that they
need to enhance water quality.
Sincerely,
J. David Holm,
President.
______
Western States Water Council,
South/Midvale, UT, June 20, 2000.
Hon. Bob Smith,
Chairman,
U.S. Senate,
Washington, DC.
Dear Chairman Smith: On behalf of the Western States Water Council
(WSWC), we are writing to express our support for amending the Clean
Water Act (CWA) to allow for ``Good Samaritan'' clean up of inactive
and abandoned mines. Thousands of such mines exist across the West,
causing severe impairments to surface and ground water quality. In view
of the impacts on water quality caused by these abandoned mines and the
difficulties in identifying responsible parties to remediate the sites,
states are very interested in undertaking and encouraging voluntary
``Good Samaritan'' remediation initiatives, i.e., cleanup efforts by
states or third parties who are not legally responsible for existing
conditions at a site.
Currently, a huge disincentive exists in the CWA, as recent court
cases have found entities remediating mine-caused water quality impacts
to be liable under the National Pollutant Discharge Elimination System
for any remaining discharge. States and local government agencies
should be encouraged to address water quality problems caused by
abandoned and inactive mines. The Western Governors' Association with
the support of Council members, has worked to produce a proposal that
would provide encouragement, assuring the remediating party that its
liability for cleanup at the site is limited to following its cleanup
plan including any amendments thereto.
It has been the experience of many western states, that the water
quality impacts of an abandoned mine site can be substantially reduced
by reasonable investment in a cleanup project at the site, although all
impairment will not be eliminated. But currently, the CWA does not
protect such a ``Good Samaritan''--who attempts to improve the
conditions at such a site--from becoming legally responsible, under
section 301(a) and section 402 of the Clan Water Act, for any
continuing discharges from the mined land after completion of a cleanup
project.
We understand that the Subcommittee on Fisheries, Wildlife, and
Water will be holding a hearing on Good Samaritan legislation.
Wednesday, June 21. We urge your support in passing legislation to
address this current disincentive by amending the CWA to allow non-
responsible ``Good Samaritans'' to address water quality concerns
caused by abandoned and inactive mines, and improving existing
conditions without incurring legal liability for remaining problems.
Respectfully,
Francis Schwindt,
WSWC Chair.
______
Office of the Governor,
Helena, MT, October 12, 1999.
Hon. Max Baucus,
U.S. Senate,
Washington, DC.
Dear Senator Baucus: I am writing to support passage of the ``Good
Samaritan Abandoned or Inactive Mine Waste Remediation Act''.
As you know, Montana has had a very active abandoned mine
reclamation program for several years. This work is carried out with a
combination of state and federal funds. Montana has developed a list
and prioritized abandoned mines for cleanup. At each site, we do as
much as we can with the limited funding that is available. Because the
funding is limited oftentimes we are not able to take all the necessary
steps to completely improve the water quality.
Montana has also formed partnerships with federal agencies, such as
the Bureau of Land Management and the U.S. Forest Service, as well as
local counties and conservation districts to further leverage the funds
available for cleanup. However, the liability issue has always served
to make it very difficult to form these partnerships. Although everyone
recognizes the importance of cleaning up abandoned mines, individuals
and organizations without any direct responsibility for an abandoned
mine site are often times reluctant to get involved without some
assurance that they will not be assuming some larger liability for the
site.
The legislation which you have introduced is a positive step toward
greater involvement in cleaning up abandoned mines. I am grateful that
you have consulted with the Montana Department of Environmental Quality
(DEQ) while drafting the legislation. Like any legislation we believe
there are still some areas that need to be fine tuned, but on the whole
are very pleased with this effort. I have asked Mark Simonich, with the
DEQ, to continue to work with your staff as this legislation progresses
through Congress.
Sincerely,
Marc Racicot,
Governor.
______
Colorado Mining Association,
Denver, CO, June 20, 2000.
Hon. Michael D. Crapo,
Chairman, Senate Environment and Public Works,
Subcommittee on Fisheries, Wildlife, and Drinking Water,
Washington, DC.
Dear Senator Crapo and members of the subcommittee: The Colorado
Mining Association (CMA) appreciates the opportunity to submit its
position to the committee on S. 1787, the Good Samaritan Abandoned and
Inactive Mine bill.
The CMA is a not-for-profit association founded in 1876 whose
members are comprised of individuals and companies that explore for,
develop, produce and refine coal, metals, and industrial minerals and
supply goods and services to the mining industry.
The CMA appreciates the bipartisan efforts of both the Western
Governors' Association and Senators Baucus, Campbell, Reid, and Daschle
in putting this reasonable legislation forward to improve water
quality. CMA also appreciates Chairman Crapo's willingness to hold a
hearing and become involved in this potentially valuable program for
the West. The CMA has been engaged in this issue for nearly five years
and is offering language today to expand the effectiveness of this
program to assure that states, Indian tribes, municipalities and
federal agencies can partner jointly with private contractors in this
worthwhile program.
In the spirit of expanding participation in this voluntary program,
CMA encourages the sponsors and the committee to consider adopting, at
a minimum, the following changes:
1. Clarify that ``remediating parties'' includes the named entities
as well as their contractors and agents.
2. Consider language that establishes a ``net gain or improvement''
in water quality as the standard for accepting Good Samaritan projects.
The bill currently requires cleanup to the ``maximum extent
practicable,'' which is not easily defined and could engender delay in
getting site cleanups started.
3. Change the language of Section 3(2)(B)(vi)(II) to read as
follows: ``Persons whose activities at the abandoned or inactive mined
land after October 18, 1972, created a discharge of pollutants.'' With
this change, the bill does not preclude enforcement actions against any
responsible party under other provisions of the Clean Water Act; and
furthermore, it will create a larger class of potential cleanup
participants, thereby lowering the cost of Good Samaritan projects.
4. Assure that baseline conditions are defined as ``current''
conditions, not left open to differing interpretation.
The CMA is mystified as to the bill's provision prohibiting federal
agencies, states, Indian tribes and municipalities from performing Good
Samaritan projects on their own lands. This appears to be a limit on
the bill's purpose of improving water quality in the West. We would
encourage you to consider allowing these entities to clean up their own
lands.
The CMA thanks you for considering these comments.
Sincerely,
Stuart Sanderson,
President.