Copyright 2000 Federal News Service, Inc.
Federal News Service
June 21, 2000, Wednesday
SECTION: PREPARED TESTIMONY
LENGTH: 1330 words
HEADLINE:
PREPARED TESTIMONY OF JACK LYMAN EXECUTIVE VICE PRESIDENT IDAHO MINING
ASSOCIATION
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:
Mr.
Chairman, members of the subcommittee, my name is Jack Lyman. I am Executive
Vice President of the Idaho Mining Association. It is a pleasure to be here
today to provide you with a mining industry perspective on S. 1787, the "Good
Samaritan Abandoned or Inactive Mine Waste Remediation Act."
The Idaho Mining Association consists of over 50 members who mine and process
minerals and who provide equipment and services to the industry.
The
Idaho Mining Association supports the concept of encouraging and promoting the
remediation of abandoned or inactive mined land through a good samaritan
program. S. 1787, however, is seriously flawed and will not achieve the desired
objective of remediating these areas.
The State of Idaho has a long
history of mining activity and, as a result, the state possesses a large number
of abandoned mine sites. Our industry is aware of the challenges presented by
abandoned and inactive mines and has worked with the State of Idaho to address
these challenges. Good samaritan legislation at the federal level has the
potential to be a powerful and effective tool for helping to address abandoned
and inactive mines. It is possible to craft legislation that would not only
provide significant incentives for parties to engage in remediating these mines
but also to remove the existing remediation obstacles. Unfortunately, S. 1787 is
not that legislation.
From a mining industry perspective, there are
numerous concerns with S. 1787. Today, I would like to highlight three of these
concerns: (1) The program established in S. 1787 is far too limited with respect
to both the areas that qualify for remediation and the entities that may engage
in remediation; (2) the bill establishes a standard for water quality that is so
stringent it will act as a disincentive to participation in the program; and (3)
the bill contains other major disincentives to participation such as exposing
parties who remediate under the program to potential liability under the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(CERCLA).
I will briefly amplify each of these concerns. First, the bill
has an overly strict definition of "abandoned or inactive mined land" resulting
in an unnecessary limit on eligibility. The bill excludes areas that are on
CERCLA's National Priorities List (NPL), proposed for inclusion on the NPL, or
the subject of a planned or ongoing response or natural resource damages action.
This provision eliminates large areas throughout the country from eligibility.
For example, the Coeur d'Alene Basin in Idaho, where there is a heavy
concentration of abandoned mines, would be excluded from eligibility under the
bill. This is an area that might benefit from a self-structured good Samaritan
program. If improvement in water quality is the goal, then deferring in this way
to CERCLA is not the answer unless you are satisfied waiting a decade or more to
see remedial action taken, and then only at an inordinate cost.
S. 1787
is also unduly restrictive with respect to the parties that are eligible to
engage in good Samaritan remediation. The bill limits participation to the
United States, states, Indian tribes and municipalities. However, the United
States cannot be a remediating party with respect to abandoned or inactive mined
land located on federal land. In addition, the bill provides, with one narrow
exception, that a remediating party cannot apply for a permit if the abandoned
or inactive mined land is owned by the remediating party. If the United States
cannot remediate on land it owns, and in general, neither can a state, Indian
tribe or municipality, then what land is eligible for remediation and who is
eligible to remediate it? It seems that the bill has so many restrictions in
place that not much land will be eligible for remediation and not many entities
will qualify as remediation parties. In order to maximize the number of areas
that are remediated, S. 1787 needs to be less restrictive, and the definition of
remediating party needs to include private entitles as well as governmental
agents and contractors.
Second, a remediation plan, in order to be
approved, must demonstrate with "reasonable certainty" that it 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." The standard for remediation should, instead, be "an
improvement in surface water quality." By adding "to the maximum extent
practicable" an overly stringent standard is created that will lead to
protracted debate as to its meaning and will act as a serious disincentive to
participating in the program. In addition, the requirement to demonstrate a
"reasonable certainty" that maximum water quality improvement will occur is
likely to discourage the use of innovative technologies.
Third, S. 1787
contains several additional disincentives to participation in the program. Even
if an eligible party (e.g., the United States) finds a land area that meets the
bill's overly restrictive eligibility criteria, and the party is willing to
brave the requirement to improve water quality "to the maximum extent
practicable," there are additional requirements in the bill that discourage
participation in the program. I will mention one of these disincentives.
The purpose of the bill is to allow a limited class of eligible parties
to remediate a limited number of eligible abandoned or inactive mined lands
without incurring liability under sections 301,302, and 402 of the Federal Water
Pollution Control Act, commonly known as the Clean Water Act. What the bill
fails to address, and therefore is one of its fatal flaws, is the fact that
parties will not go near an area if the potential exists that CERCLA liability
will attach in the future.
Because of CERCLA's draconian liability
system (retroactive, strict, joint and several liability) and the fact that
liability attaches to "any person who owned, operated, or otherwise controlled
activities" at the facility, no party would risk potential CERCLA liability
attaching in the future to remediate under this bill. The bill excludes CERCLA
sites from eligibility but a non-CERCLA site today could be a CERCLA site
tomorrow and anyone who "operated" at the area would be liable under CERCLA
section 107(a). The ultimate disincentive to remediation under S. 1787 is the
fact that every remediating party will face the prospect that the area in
question will some day be subject to CERCLA and, therefore, subject them to
retroactive, strict, joint and several liability.
In closing, let me
reiterate that the Idaho Mining Association supports the concept of encouraging
the remediation of abandoned or inactive mined lands through a good Samaritan
program. We believe that any such legislation, to be effective, should encompass
the maximum number of areas and should have a broad definition of remediating
parties; should provide clear and reasonable remediation standards; and should
provide incentives for participation. S. 1787 fails on all three of these counts
by unduly restricting both the type of area that qualifies for the program and
the type of parties that may engage in good Samaritan remediation; by imposing a
remediation standard that encourages debate and delay and discourages
participation; and by falling to remove some current obstacles to engaging in
good Samaritan remediation and by imposing new obstacles. For these reasons, S.
1787 would not be an effective tool for encouraging the remediation of abandoned
or inactive mined land.
Thank you for the opportunity to testify on S.
1787. Mr. Chairman, I look forward to working with you to craft legislation that
would create a meaningful and effective good samaritan program for abandoned and
inactive mined lands.
I would be happy to answer any questions that you
or any member of you subcommittee might have.
END
LOAD-DATE: June 22, 2000 
