Copyright 2000 Federal News Service, Inc.
Federal News Service
June 20, 2000, Tuesday
SECTION: PREPARED TESTIMONY
LENGTH: 1840 words
HEADLINE:
PREPARED TESTIMONY OF KATE KELLY ADMINISTRATOR WASTE MANAGEMENT AND REMEDIATION
DIVISION IDAHO DEPARTMENT OF ENVIRONMENTAL QUALITY
BEFORE THE
SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE FISHERIES AND
WILDLIFE AND WATER SUBCOMMITTEE
SUBJECT - S. 1787: "GOOD
SAMARITAN ABANDONED OR INACTIVE MINE WASTE REMEDIATION ACT"
BODY:
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 Section (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 Section
(q)(2)(C). Enforcement of the permit is also placed within EPA's authority. 33
U.S.C. 1342 Section (q)(2)(B), as is the promulgation of regulations to
implement the legislation. 33 U.S.C. 1342 Section (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 Section
(q)(3)(B)(viii), and "result in a water quality improvement for the identified
waters." 33 U.S.C. 1342 Section (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 Section
(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 Section (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 Section (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 Section (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 Section
(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 Section (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.
END
LOAD-DATE: June 22, 2000 
