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Congressional Testimony
March 21, 2000, Tuesday
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 2947 words
HEADLINE:
TESTIMONY March 21, 2000 KATE KELLY ADMINISTRATOR DIVISION, IDAHO DEPARTMENT OF
ENVIRONMENTAL QUALITY SENATE environment & public works
fisheries, wildlife and water ABANDONED MINES
BODY:
June 21, 2000 Testimony of Kate Kelly, Administrator, Waste Management and
Remediation Division, Idaho Department of Environmental Quality STATE OF IDAHO
"Good Samaritan Abandoned or Inactive Mine Waste Remediation
Act" Senate Environmental & Public Works Commission S. 1787 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 .(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 .(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 .(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.
LOAD-DATE: June 23, 2000, Friday