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Congressional Testimony
March 21, 2000, Tuesday
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 3174 words
HEADLINE:
TESTIMONY March 21, 2000 WILLIAM J. JANKLOW SOUTH DAKOTA GOV. THE WESTERN
GOVERNORS' ASSOCIATION SENATE environment & public works
fisheries, wildlife and water ABANDONED MINES
BODY:
June 21, 2000 Testimony of South Dakota Gov. William J. Janklow on behalf of
THE WESTERN GOVERNORS' ASSOCIATION on S. 1787, The Good Samaritan Abandoned or
Inactive Mine Waste Remediation Act Before the Senate
Environment and Public Works Committee Subcommittee on Fisheries, Wildlife and
Water 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 this Congress, so that states may once
again get on with the business of cleaning up our proverbial neighborhoods.
LOAD-DATE: June 23, 2000, Friday