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Congressional Testimony
March 21, 2000, Tuesday
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 3427 words
HEADLINE:
TESTIMONY March 21, 2000 J. CHARLES FOX ASSISTANT ADMINISTRATOR U.S.
ENVIRONMENTAL PROTECTION AGENCY SENATE environment & public
works fisheries, wildlife and water ABANDONED MINES
BODY:
June 21, 2000 TESTIMONY OF J. CHARLES FOX
ASSISTANT ADMINISTRATOR FOR WATER U.S. ENVIRONMENTAL PROTECTION AGENCY BEFORE
THE SUBCOMMITTEE ON FISHERIES, WILDLIFE AND WATER OF THE COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS UNITED STATES SENATE 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% of the rivers and streams they assessed do not
meet clean water goals and another 10% of waters are threatened. In the case of
lakes and ponds, 45% of these waters do not meet water quality goals and 9% are
threatened. And, 44% of the coastal and estuarine waters that States assessed do
not meet their clean water goals and 9% are threatened. In the Great Lakes,
fully 96% 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% 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 time frame 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 one 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 three 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 five 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 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.
LOAD-DATE: June 23, 2000, Friday
