S 1787 IS

To amend the Federal Water Pollution Control Act to improve water quality on abandoned or inactive mined land.

October 26, 1999

Mr. BAUCUS (for himself, Mr. CAMPBELL, and Mr. DASCHLE) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works

To amend the Federal Water Pollution Control Act to improve water quality on abandoned or inactive mined land.

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

SECTION 1. SHORT TITLE.

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

SEC. 2. FINDINGS AND PURPOSE.

(a) FINDINGS- Congress finds that--

(1) thousands of abandoned or inactive mines exist in the West and elsewhere in the United States;

(2) drainage and runoff from those abandoned or inactive mines are responsible for significant threats and impairments to water quality; and

(3) often, a party that is responsible for conditions at abandoned or inactive mined land is not identifiable or economically viable, resulting in an inability to compel the party to clean up the mine site.

(b) PURPOSE- The purpose of this Act is to allow a party that is not responsible for environmental conditions relating to abandoned or inactive mined land to improve water quality affected by past mining activities at the land without incurring liability under sections 301, 302, and 402 of the Federal Water Pollution Control Act (33 U.S.C. 1311, 1342) to make further progress toward the goal of meeting or exceeding water quality standards in all waters of the United States.

SEC. 3. ABANDONED OR INACTIVE MINED LAND WASTE REMEDIATION PERMITS.

Section 402 of the Federal Water Pollution Control Act (33 U.S.C. 1342) is amended by adding at the end the following:

`(q) ABANDONED OR INACTIVE MINED LAND WASTE REMEDIATION PERMITS-

`(1) DEFINITIONS- In this subsection:

`(A) ABANDONED OR INACTIVE MINED LAND- The term `abandoned or inactive mined land' means land formerly mined for non-coal resources--

`(i) that is no longer actively mined (and not in temporary shutdown) at the times at which the remediation plan is submitted and the permit is issued;

`(ii) that is not included, or proposed for inclusion, on the National Priorities List under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.) and that is not the subject of a planned or ongoing response or natural resource damages action under that Act; and

`(iii) for which there is no identifiable owner or operator for the mine or mine facilities.

`(B) IDENTIFIABLE OWNER OR OPERATOR- The term `identifiable owner or operator' means a person identified by a remediating party under paragraph (3)(B)(vi) or by the public under paragraphs (3)(C)(iii) and (3)(D)(i))--

`(i) that is responsible for the activities at abandoned or inactive mined land that created conditions that cause or contribute to the discharge of pollutants from the abandoned or inactive mined land; and

`(ii) that is financially capable of compliance with requirements of sections 301, 302, and 402.

`(C) PERMIT- The term `permit' means an abandoned or inactive mined land waste remediation permit described under paragraph (2).

`(D) REMEDIATING PARTY- The term `remediating party' means--

`(i) the United States, except with respect to abandoned or inactive mined land located on Federal land;

`(ii) a State;

`(iii) an Indian tribe; or

`(iv) a municipality.

`(2) PERMITS-

`(A) IN GENERAL- The Administrator, with the concurrence of the applicable State or Indian tribe, may issue an abandoned or inactive mined land waste remediation permit to a remediating party for discharges associated with remediation activity at abandoned or inactive mined land, that modifies the otherwise applicable requirements of any other subsection of this section and of sections 301 and 302.

`(B) FEDERAL ENFORCEMENT- A permit (including conditions of a permit) issued under this subsection is subject to the Federal enforcement authority under section 309.

`(C) DELEGATION- The Administrator shall not delegate the authority under subparagraph (A).

`(3) PERMIT PROCESS-

`(A) SCOPE-

`(i) IN GENERAL- Except as provided in clause (ii), a remediating party may apply for a permit for remediation activities at abandoned or inactive mined land from which there is or may be a discharge of pollutants to waters of the United States.

`(ii) LIMITATION- A remediating party may not apply for a permit under clause (i) if the abandoned or inactive mined land is owned by the remediating

party, unless the land was purchased by the remediating party for the express purpose of remediating pollutant discharges related to past mining activities at the land to improve water quality.

`(B) REMEDIATION PLAN- A remediating party that seeks a permit shall submit an application for the permit that includes a remediation plan that--

`(i) identifies the remediating party and any persons cooperating with the remediating party with respect to the plan;

`(ii) identifies the abandoned or inactive mined land addressed by the plan, including a verification that the land meets the requirements of paragraph (1)(A);

`(iii) identifies the waters of the United States affected by past mining activities at the abandoned or inactive mined land;

`(iv) describes the baseline condition of the waters (including the nature and extent of any adverse water quality impact and, as applicable, the levels of any pollutant causing the impact);

`(v) describes the physical conditions at the abandoned or inactive mined land that are causing adverse water quality impacts;

`(vi) describes the applicant's reasonable efforts to identify--

`(I) current owners, lessees, and claimants of the abandoned or inactive mined land addressed by the plan; and

`(II) other persons, including mine operators, if any, whose activities at the abandoned or inactive mined land after October 18, 1972, created conditions that cause or contribute to the discharge of pollutants from the abandoned or inactive mined land;

`(vii) describes the remediation goals and objectives, including the pollutant or pollutants to be addressed by the plan;

`(viii) describes the practices, including a schedule and estimated completion date for implementing the practices, that are proposed to reduce, control, mitigate, or eliminate the adverse water quality impacts, including--

`(I) in the case of a new remediation project, the preliminary system design and construction, operation, and maintenance plans; and

`(II) in the case of an existing remediation project, available system design and construction, operation, and maintenance plans and any planned improvements to the projects;

`(ix) explains how the practices described in clause (viii) are expected to result in a water quality improvement for the identified waters;

`(x) describes the monitoring or other forms of assessment that will be undertaken to evaluate the success of the practices during and after implementation, relative to baseline conditions;

`(xi) describes contingency plans, including the practices to be implemented to achieve the remediation goals and objectives described in clause (vii), for responding to unplanned adverse events;

`(xii) provides a schedule for periodic reporting on progress in implementing the plan;

`(xiii) provides a budget for the plan and identifies the funding sources that will support the implementation of the plan, including practices described in clauses (viii), (x), and (xi);

`(xiv) describes the applicant's legal authority to enter and conduct activities at the abandoned or inactive mined land addressed by the plan;

`(xv) contains any other additional information requested by the Administrator to clarify the plan and the activities covered by the plan; and

`(xvi) is signed by the applicant.

`(C) REVIEW OF APPLICATION-

`(i) IN GENERAL- The Administrator shall--

`(I) review each application for an abandoned or inactive mined land waste remediation permit; and

`(II) determine whether the application meets the requirements of subparagraph (B).

`(ii) DISAPPROVAL- If the Administrator determines that an application does not meet the requirements of subparagraph (B), the Administrator shall--

`(I) notify the applicant that the application is disapproved and explain the reasons for the disapproval; and

`(II) allow the applicant to submit a revised application.

`(iii) APPROVAL- If the Administrator determines that an application meets the requirements of subparagraph (B), the Administrator shall--

`(I) notify the applicant that the application is accepted;

`(II) provide to the public notice of and reasonable opportunity to comment on the application; and

`(III) provide to the public an opportunity for a public hearing on the application.

`(D) ISSUANCE-

`(i) DECISION TO ISSUE- After notice and opportunity for public comment on a permit proposed to be issued, the Administrator may issue an abandoned or inactive mined land waste remediation permit to the applicant if the Administrator determines that--

`(I) relative to the resources available to the remediating party for the proposed remediation activity, the remediating party has made a reasonable effort to identify persons under subparagraph (B)(vi);

`(II) no identifiable owner or operator exists; and

`(III) the remediation plan demonstrates with reasonable certainty that the implementation of the plan 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.

`(ii) DECISION NOT TO ISSUE- If the Administrator decides not to issue an abandoned or inactive mined land waste remediation permit to the applicant, the Administrator shall notify the applicant of the reasons for not issuing the permit.

`(E) MODIFICATION-

`(i) IN GENERAL- Not later than 120 days after the receipt of a written request by a permittee, the Administrator shall approve or disapprove a modification of a permit.

`(ii) APPROVAL- A permit modification approved by the Administrator under this subsection shall be--

`(I) by agreement of the permittee and the Administrator;

`(II) with the concurrence of any applicable State or Indian tribe;

`(III) after providing the public notice of, and opportunity for comment and a hearing on, a proposed modification of a permit;

`(IV) in accordance with the standards in subparagraph (D)(i)(III); and

`(V) immediately reflected in and applicable to the remediation permit.

`(4) CONTENTS OF PERMIT-

`(A) IN GENERAL- A permit--

`(i) shall include--

`(I) a remediation plan approved by the Administrator; and

`(II) any additional requirements that the Administrator establishes under paragraph (9); and

`(ii) shall provide for compliance with and implementation of the remediation plan and any other requirements described under clause (i).

`(B) REVIEW- A permit shall establish a schedule for review, by the Administrator, of compliance with the conditions and limitations of the permit.

`(C) COMPLIANCE WITH OTHER LIMITATIONS- A permit shall not require the remediating party to comply with any other subsection of this section or with sections 301 or 302.

`(D) COMMERCIAL USE OR SALE- A permit shall not authorize any discharge associated with the extraction, processing, or removal of minerals for purposes of commercial use or sale, unless the revenue generated through the use or sale is used for remediation activities that will further improve the quality of waters identified in paragraph (3)(B)(iii).

`(5) FAILURE TO COMPLY- If, during the review conducted under paragraph (4)(B), on receipt of a petition from any person, or for any other reason, the Administrator determines, based on available information, that a remediating party operating under an approved permit is not in compliance with any condition or limitation of the permit, the Administrator may bring an enforcement action under section 309.

`(6) TERMINATION-

`(A) IN GENERAL- The Administrator shall terminate a permit if--

`(i) the remediating party completes the implementation of the remediation plan;

`(ii) the discharges covered by the permit--

`(I) become subject to a permit issued under the other subsections of this section for development that is not part of the implementation of the remediation plan; and

`(II) the remediating party seeking termination of coverage is not a participant in the development; or

`(iii)(I) an event or condition is encountered that was not contemplated by the remediation plan and is beyond the control of the permittee; and

`(II) the surface water quality conditions due to remediation activities at the site, taken as a whole and with reference to the designated uses of the waters, are equal to or superior to the baseline conditions.

`(B) NO ENFORCEMENT LIABILITY- If a permit is terminated under subparagraph (A), the remediating party shall not be subject to enforcement under section 309 or 505 for any remaining discharges from the abandoned or inactive mined land described in the permit.

`(7) LIMITATIONS-

`(A) EMERGENCY POWERS- Nothing in this subsection limits the authority of the Administrator under section 504.

`(B) PRIOR VIOLATIONS-

`(i) IN GENERAL- Nothing in this subsection precludes actions under section 309 or 505 or affects the relief available in actions under those sections, with respect to violations of this section, or sections 301(a) or 302, that occurred prior to the issuance of a permit under this subsection.

`(ii) EXCEPTION FOR PRIOR ACTIVITIES COVERED BY THE PERMIT- If a permit covers remediation activities implemented by the permit holder prior to the issuance of the permit, clause (i) shall not apply to an action that is based on conditions resulting from those remediation activities.

`(C) OBLIGATION OF STATES AND INDIAN TRIBES- Except as expressly provided, nothing in this subsection limits any obligation of a State or Indian tribe under section 303.

`(D) OTHER DEVELOPMENT- Any development of abandoned or inactive mined land (including mineral exploration or mining) not described in a permit issued by the Administrator under this subsection shall be subject to this Act (other than this subsection).

`(8) LIABILITY OF OTHER PARTIES- Nothing in this subsection limits the liability of any person other than the remediating party, under this Act or any other law.

`(9) REGULATIONS-

`(A) IN GENERAL- Not later than 1 year after the date of enactment of this subsection, the Administrator, in consultation with State, tribal, and local officials and after providing the public with notice of, and opportunity for comment and a hearing on, regulations proposed to be promulgated, shall promulgate regulations establishing generally applicable requirements for--

`(i) remediation plans described in paragraph (3)(B); and

`(ii) as considered to be necessary by the Administrator, other paragraphs of this subsection.

`(B) SPECIFIC REGULATIONS- The Administrator may promulgate, on a case-by-case basis, in consultation with State, tribal, and local officials and after providing the public with notice of, and opportunity for comment and a hearing on, regulations proposed to be promulgated, more specific requirements that the Administrator determines would facilitate implementation of this subsection in an individual abandoned or inactive mined land waste remediation permit.

`(10) FUNDING- Implementation of a remediation plan under a permit issued under this subsection shall be eligible for grants under section 319(h).

`(11) REPORT-

`(A) IN GENERAL- Not later than 1 year before the date of the termination of permitting authority specified in paragraph (12), the Administrator shall submit to Congress a report on the activities authorized by this subsection.

`(B) CONTENTS- The report required under subparagraph (A) shall, at a minimum--

`(i) identify each permit, and associated remediating party, issued under this subsection;

`(ii) identify the abandoned or inactive mine land addressed by each permit (including the waterbodies and baseline water quality of the waterbodies affected by the land);

`(iii) summarize the remediation plan associated with each permit issued under this subsection, including--

`(I) the goals and objectives of the plan;

`(II) the plan budget; and

`(III) the practices to be employed according to the plan to reduce, control, mitigate, or eliminate adverse water quality impacts;

`(iv) identify the status of the implementation of each remediation plan associated with each permit issued under this subsection (including specific progress that permitted remediation activities have made toward achieving the goals and objectives of the remediation plan);

`(v) identify and describe any enforcement action taken by the Administrator or any civil action brought by a citizen concerning a permit issued under this section (including the disposition of the legal action); and

`(vi) include recommendations by the Administrator for any modifications to this subsection, or the regulations promulgated under paragraph (9) to implement this subsection, that would facilitate the improvement of water quality through the remediation of abandoned or inactive mined land.

`(12) TERMINATION OF PERMITTING AUTHORITY- The authority granted to the Administrator under this subsection to issue an abandoned or inactive mined land waste remediation permit terminates on the date that is 10 years after the date of enactment of this subsection.'.

END