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Copyright 2000 Federal News Service, Inc.  
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June 21, 2000, Wednesday


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Chairman Crapo, Senator Baucus my name is Bill Goodhard and I appear here today on behalf of Echo Bay Mines where I am the Director of Reclamation and Environmental Affairs. I also appear at the request of the National Mining Association.

My comments today are based upon my 24 years experience in the minerals industry.

During my career in the industry I have worked as an exploration geologist, mine geologist, technical assistant to milling, mill superintendent, chief geologist, mine superintendent, superintendent of technical services, resident manager, project manager and director of reclamation and environmental affairs. For the last 12 years responsibilities have included mine reclamation and mine closure. I have designed or supervised reclamation and mine closure budgeting, negotiation and work. The work has been at four underground mines, two open pit mines and one developmental project located in the western United States and Canada. The work has included negotiating and working with local, state and federal agencies as well as with a watershed stakeholder group. I appreciate the opportunity to share my thoughts on the "abandoned and Inactive Mine Waste Remediation Act," S. 1787. GENERAL COMMENTS:

First I would like to thank Senator Baucus, his colleagues and cosponsors, Senators Daschle, Campbell, and Reid for advancing the debate on Good Samaritan issues with the introduction of the "Abandoned and Inactive Mine Waste Remediation Act, S. 1787. I also thank Senator Crapo for today's hearing, and for providing an opportunity to hear from the mining industry on an issue that the industry considers very important. The very fact that we are here today at this hearing speaks to the high level of importance that the U.S. Senate and numerous stakeholders have placed in solving this problem.

Unfortunately, as currently drafted, the liability relief in S. 1787 is illusory because it does not include the two groups of remediating parties that must play a significant role if we are to solve the abandoned mine cleanup problem. The two parties I am referring to are the federal land management agencies (e.g., the U.S. Bureau of Land Management, the U.S. Forest Service, and the National Park Service) on whose land most abandoned mines are located, and the private sector who has demonstrated both the willingness and the capability to reclaim abandoned mine land (AML) sites.

Like the Senators here today, the National Academy of Sciences/National Research Council (NAS/NRC) also recognizes the need to enact Good Samaritan liability relief if we are to solve the AML cleanup problem. A recently published NAS/NRC study on hardrock mining entitled "Hardrock Mining on Federal Lands1 discusses the existing legal and regulatory impediments thwarting private-sector cleanup of AMLs and stresses the importance of enacting legislation to facilitate and promote AML cleanup. The NAS/NRC prepared this 249-page study" (the Study) in response to a Congressional directive to review existing rules for mining and to determine how well these rules protect the environment. The Study findings regarding AML cleanup include the following:

"Recommendation 7: Existing environmental laws and regulations should be modified to allow and promote the cleanup of abandoned mine sites in or adjacent to new mine areas without causing mine operators to incur additional environmental liabilities."2 "Implementation: To promote voluntary cleanup programs at abandoned mine sites, Congress needs to approve changes to the Clean Water Act and the CERCLA legislation to minimize company liabilities."3

These NAS/NRC findings are particularly noteworthy given the fact that Congress did not specifically ask the NAS/NRC to examine the AML issue. However, the evidence gathered during the course of the NAS/NRC's research efforts was so compelling, that this recommendation was included in the Study. The NAS/NRC comments on the AML issue underscore the importance of our discussion here today and point to the need to enact meaningful liability relief as quickly as possible. I would like to devote the rest of my testimony to describing why the current bill will not achieve the goal of solving the liability problem and offer suggestions to address the shortcomings in S 1787.

The assertion that significant progress could be made towards solving the AML problem if the private sector were granted Good Samaritan liability relief is not conjectural. The private sector has already helped to clean up numerous abandoned and inactive mines throughout the West. Some of these private sector efforts are documented in a study published in 1998 by the National Mining Association entitled "Reclaiming Inactive and Abandoned Mine Lands - What Really is Happening"4. I would like to request that this study be placed in the hearing record.

The NMA study presents compelling evidence that given the right opportunity, the private sector can play a significant role in improving the environment at abandoned and inactive mines. The NMA study also documents that state and federal agencies have accomplished AML cleanups.

The NMA study presents data from industry sources and state abandoned mine programs on successfully reclaimed AML sites in a number of western states and includes detailed information on nearly 80 successfully reclaimed AML sites. Like the NAS/NRC study, the NMA study also concludes that there are a number of legal, regulatory, and institutional barriers that are impeding progress on solving the AML problem. The NMA study findings are based on the characteristics of the 80 reclaimed AML sites described in the report and comments made by state AML program personnel and mining industry sources contacted during the study. The study findings relevant to this discussion are summarized as follows: Private Funding, Equipment, and Labor from the Mining Industry Have Been Responsible for Reclaiming and Remediating Many AML Sites - Industry has spent tens of millions of dollars involuntary on-the- ground cleanups and abatements of AML sites throughout the West. The progress made to date and the lessons learned by both the mining industry and state and federal regulators in addressing these sites is often overlooked in policy discussions on the AML issue.

- AML Reclamation, Remediation, and Abatement Solutions Must be Site Specific - Just as no two mines are identical, each AML has unique characteristics based upon site-specific physical conditions and ownership patterns and history. Therefore, appropriate solutions to problems at an AML must be determined on a site-by-site basis. The Term "Remining" Has Been Used Too Broadly.

AML stakeholders (e.g., industry, regulators, industry critics, and the public) have indiscriminately used the term "remining" to mean any project involving active mining and concurrent AML reclamation and cleanup. Remining should be used to describe projects that process or reprocess previously mined materials. Concurrent mining andreclamation/remediation of an adjacent or nearby AML is more appropriately called "reclamation-mining". Industry Reclamation-Mining Projects Have Contributed Significantly to AML Cleanups - The numerous examples of reclamation-mining examined in this survey document that significant synergism can be achieved when active mining operations reclaim and remediate problems at adjacent or nearby AML sites. There are a number of reclamation-mining sites at which industry-funded reclamation/remediation activities have achieved significant environmental improvements. Most of these reclamation-mining projects occurred at sites acquired prior to the mid- to late 1980s. It appears that liability concerns have inhibited industry acquisition of previously mined areas since then, probably corresponding to the enactment of CERCLA and the Superfund Amendments and Reauthorization Act (SARA) in the 1980s. Reclamation-mining could be a significant partial solution to the AML problem if CERCLA, CWA and other liability barriers were removed. Remining Has Occurred on a Very Limited Basis and May Not be Profitable at Most Sites Only six examples of remining in which previously mined materials were processed or reprocessed were identified in this survey. Just one of the six produced a net economic gain which occurred during a period of extraordinarily high gold prices in 1981. Based on this limited data, remining may not be financially rewarding at many sites but may help off-set AML remediation and reclamation costs. Widespread Misconceptions About Remining Have Complicated Development of a Good Samaritan Liability Relief Policy - Policy discussions have incorrectly characterized all concurrent mining and AML reclamation/remediation efforts as remining and have assumed remining is a profitable endeavor. The reluctance on the part of some members of the regulatory and activists communities to extend liability relief to a profitable remining project is perhaps understandable. Unfortunately, intransigence on this issue has created great difficulties in developing liability relief policies applicable to any industry-sponsored AML cleanup project.- Renewed Dialogue to Develop Liability Relief for Uneconomic Remining Projects and for Reclamation-Mining Projects is Needed Concerns about extending liability relief to remining activities should be refocused on profitable projects. Uneconomic retaining and reclamation-mining projects should qualify for liability protection. AML Sites with Acid Rock Drainage (ARD) From Mine Openings Pose the Most Challenging Technical and Policy Problems - Remediation of ARD from underground workings is the most challenging issue both from a technical and a legal perspective. Although passive water treatment systems can achieve significant water quality improvements and are practical at remote sites with no power infrastructure, more sophisticated water treatment measures are typically required to meet water quality standards and NPDES permit limits. Both state agencies and the private sector face onerous legal challenges from Clean Water Act citizen lawsuits for residual drainage from remediated AML sites that does not meet arbitrary water quality standards - regardless of the improvements realized at these sites. CWA Citizen Lawsuits Are Significantly Chilling State and Industry Efforts to Improve AML Sites with ARID. Concerns about CWA citizen lawsuits have nearly completely stymied cleanup progress at sites with acid drainage from underground workings. The end result is a net loss to the environment as water quality problems at these sites remain unabated. Remediation measures that could result in incremental (and in some cases significant) water quality improvements are not undertaken for fear of the resulting liability exposure. Pursuit of the Perfect is Thwarting Realization of the Good - Regulatory policies that require strict compliance with all environmental standards, particularly arbitrary one-size-fits-all water quality standards, have forestalled state and industry AML cleanup projects that may produce significant environmental benefits but that do not meet some water quality standards. A new policy approach is needed to facilitate partial and incremental cleanup efforts and to protect the parties involved from exposure to CWA citizen lawsuits.


Although the introduction of S 1787 presents an opportunity to open the dialogue, I must emphasize that S 1787 will not accomplish the goal of facilitating AML cleanup and improving the environment at AML sites. As documented by the findings of the NMA study, the bill as written does not go far enough to provide meaningful liability relief to both private and public sector interests who might otherwise be in a position to improve the environment at an inactive or abandoned mine, nor does it provide any incentives that would encourage voluntary cleanups. Therefore, I do not believe S 1787, in its current form, will do much if anything to encourage on the ground cleanup of abandoned mine lands. The remainder of my testimony will present suggestions for addressing the current shortcomings in the bill: Specifically the following areas need to be addressed: - Expand the definition of remediating parties; Recognize that land status at most AML sites is a complex mixture of private and public ownership; Allow the federal and state governments, Indian Tribes and municipalities protection for cleanup of its sites for which it is not responsible; Accept the concept of net environmental gain in lieu of maximum extent practicable and use existing site conditions to define the baseline against which net environmental gain will be measured; Maximize the investment of resources spent on-the-ground rather than devoted to a protracted regulatory review process by developing a streamlined permitting process for proposed AML cleanup projects and eliminating open-ended authorities granted to the Administrator allowing for additional information; Allow States permitting authority; Provide liability protection from CERCLA actions to qualifying volunteers if the cleanup is done according to the approved plan; Provide liability protection from CWA citizen lawsuits at sites where cleanup activities result in incremental water quality improvement but may not be able to meet arbitrary water quality standards; Eliminate limitation precluding sites proposed for inclusion on National Priorities List (NPL) and sites that are subject of planned or ongoing response or resource damages actions; Remove disincentives for remining and reclamation mining where contemplated by the approved plan; and Provide incentives for encouraging private 'sector involvement in cleanups; Allow for grants from other programs, including 319 (h) to be used for cleanups.

I believe these changes can be made while preserving the intent of the Clean Water Act that requires other actions and requirements of responsible parties. The Good Samaritan concept is a useful tool that foster voluntary cleanups of abandoned and inactive mines resulting in positive environmental gains and improved water quality. A more detailed discussion of these suggested changes follows.

The Definition of Remediating Parties Must be Expanded

The first step in developing a Good Samaritan liability relief proposal must be founded on a clear understanding of the universe of parties (i.e., stakeholders) who may potentially undertake an AML cleanup effort. As documented in the above referenced NMA study, the private sector, state regulatory agencies, and federal land management agencies have all performed AML cleanup projects in the past. It seems logical that under the proper circumstances, these three stakeholder groups are likely to be the remediating parties of the future. Therefore, it is imperative that liability relief extend to all of these entities in addition to those already included in the bill: the private sector, state agencies, federal land management agencies, and federal land owners.

A careful consideration of the ownership conditions that apply to AML sites will quickly reveal that both the public and private sectors must be included in the definition of remediating party and granted Good Samaritan liability relief. Otherwise, very few problematic historic mines will benefit from Good Samaritan liability relief provisions, and the enacted liability relief will be so limited in its application as to be illusory. The following definitions are suggested to clarify these ownership issues:

Abandoned Mine - A site with no private owner of record typically on public land managed (and sometimes owned) by a federal, state, or local government agency. These sites are sometimes referred to as "orphaned". Abandoned mines on public land comprise a very significant portion of the universe of problematic AML sites.

Inactive Mine - A site on patented/private land which, in contrast to an abandoned site, has an owner or owners of record. However, at many sites the current inactive mine owners are not the entity involved in the past mining activities that created the safety hazards or environmental problems. Moreover, some owners of inactivemines do not have the financial resources necessary to correct the safety and environmental problems.

Excluding federal land management agencies or federal land owners (on their own land) from the definition of remediating party will mean that a large population of AML sites will not benefit from the proposed Good Samaritan liability relief provisions. Thus, as currently written, S. 1787 does very little if anything at all to advance the goal of cleaning up problem sites on public land because federal land owners and federal land management agencies represent stakeholders with a significant interest in addressing abandoned mines, and are thus likely remediating parties. Likewise, precluding the state as a remediating party on its own lands unless the state purchased the land for the purpose of cleaning up the site similarly limits the utility of this bill.

Another potential remediating party for abandoned sites on public land is the private sector, such as a mining company with a nearby or adjacent property. By excluding such private parties from remediating party status, the bill fails to recognize that industry is already investing millions ofdollars voluntarily, yet such private parties would not receive the benefit of the liability protections provided by the bill. In fact, it was the hardrock mining industry that initiated, in cooperation with the Western Governors Association, the Abandoned Mine Land Initiative (AMLI). The AMLI was the first cooperative effort between industry and government to address the AML problem. Currently, the AMLI is working toward completing pilot cleanup projects in the westem states. Unfortunately, until the CERCLA, RCRA and CWA liability issues are resolved, such projects are limited to the less complex sites, thereby leaving the high risk sites unaddressed. For these reasons, S 1787 must be expanded to include private parties, including the mining industry, as a matter of good public policy.

Finally, S. 1787 must be expanded to clarify, that liability protections that apply to either a state or federal agency also extend to private-sector contractors charged with executing the on-the-ground work. Because state and federal agencies typically contract work to third-party, private-sector companies, the contractual relationship between a state or federal agencyshould designate the contractor as an agent of the govemmental entity, and clearly include the contractor in the liability coverage.

The Focus to Identify PRPs is Inconsistent with the Good Samaritan Concept

The concept of the Good Samaritan gets lost in the proposed legislation. In the context of AML cleanup, a Good Samaritan is a person, private-sector company, or government agency that acts voluntarily and without obligation to improve the environmental conditions at a specific site. Therefore to be maximally effective in facilitating AML cleanups, S. 1787 should provide complete protection for those who pursue voluntary cleanup activities. As a matter of policy, an entity that desires to remediate an AN site should not have to assume liability for pre-existing conditions at the AML site.

Furthermore, once those planned activities are completed, the Good Samaritan should be released from any further permit obligations and should be free from exposure to citizen suits.It should also be clearly understood that identifying parties with previous involvement at an historically mined site is typically a very complicated task. Most historic mining districts are comprised of a complex mixture of private and public land. At many AML sites the private land consists of patented mining claims that are intermingled with and/or surrounded by unpatented claims (i.e., public land). Assigning liability is especially difficult at these mixed estate AML sites, and at sites with a history of multiple owner/operators. Some sites have numerous potentially responsible parties (PRPs); some have only one or two owners/operators; and other have no viable owners at all. Although a title search may reveal an owner of record for the patented claims, it is not uncommon for the current private land owner to be an absentee owner who had no involvement with the mining activities at the site and who may have limited or no resources to devote to an AML cleanup. For example, the patented claims may have been inherited by the present owners as part of an estate settlement. Or, for that matter, the private, absentee owner may be "financially capable" yet unwilling to engage in cleanup. S 1787 provides no incentive to encourage the private, financially capable landowner to join the voluntary cleanup. Therefore, the majority of these sites will go unaddressed. This becomes particularly important where a site is situated in a watershed targeted for cleanup or where the site is located adjacent to a site undergoing cleanup, etc. It is important to note that this provision of S 1787 in effect actually impedes addressing the AML problem on a watershed basis.

It is highly likely that all or some of the public land at an historic mine site consists of unpatented mining claims for which there is no current claimant and is thus truly an abandoned site. The incidence of abandonment of unpatented claims increased dramatically following Congress' decision in 1993 to eliminate the annual assessment work requirement and to substitute an annual claim maintenance fee of $100 per unpatented mining claim. Since that date, many mining claimants abandoned their claims because they were unwilling or unable to pay for the annual claim maintenance fee.

In the context of Good Samaritan provisions, these factors mean that an effort to identify PRPs is difficult, impractical, and may not find entities with significant financial resources. Moreover, a protracted PRP search merely detracts from the resources that could otherwise be spent performing on-the-ground environmental improvement measures.The focus of S. 1787 should be to expedite and facilitate tangible environmental improvement at sites affected by outmoded mining practices that existed prior to the development of today's environmental laws and regulations. The proposed PRP search requirements are inconsistent with that goal and regrettably reflect a "search for the guilty party" vendetta rooted in an attitude of historical revisionism that fails to recognize that nearly all AML sites were mined in the past when there were no environmental controls on mining or other human endeavors.

S. 1787 Should Facilitate Projects that Have a Reasonable Chance to Produce Net Environmental Benefits

If it is agreed that the principal objective of S. 1787 is to help solve the AML problem by encouraging and facilitating voluntary cleanups of AML sites, then it is important to recognize that other issues besides liability exposure must also be addressed. One of the main regulatory barriers currently thwarting both private and public sector voluntary cleanups is concern about whether a proposed cleanup project will be able to meet stringent water quality standards. This concern translates into a significantreluctance to pursue voluntary cleanup projects for fear that the remediating party will be subjected to regulatory sanctions and even citizen lawsuits if water quality at the remediated site does not meet predetermined and typically arbitrary water quality standards. The following sections discuss this issue in detail and suggest ways to address this significant regulatory barrier to voluntary AML cleanups.

Defining and Attaining Cleanup Criteria Defining appropriate and attainable cleanup criteria at AML sites with contaminated surface water and/or groundwater creates both technical and regulatory challenges that are impeding public- and private-sector AML cleanup activities. At many AML sites, naturally occurring geochemical reactions between the mineralized rocks and the surface water or groundwater systems contribute dissolved metals, sulfate and other parameters to proximal surface and groundwater resources. Consequently, surface water and groundwater systems in and near some orebodies have background water quality conditions that may exceed one or more regulatory standards. The absence of baseline (i.e., pre- mining) water quality data formost AML sites makes determining any incremental contamination due to mining activities technically challenging and impractical at some sites.

However, the naturally occurring levels of metals and other chemical constituents contributed by the orebody need to be considered in developing reasonable AML water quality cleanup goals. As discussed in CCEM (1998), states often apply EPA "Gold Book" standards in defining numeric concentration limits for pollutants like heavy metals. These one-size-fits all standards do not consider site-specific factors including the geochemical signature that an orebody may imprint upon nearby surface waters. The unilateral application of Maximum Contaminant Levels (MCLs) to determine groundwater quality cleanup requirements poses similar problems at mineralized sites at which groundwater quality reflects the geochemistry of the orebody.

The CWA authorizes the EPA to require owners of both active and inactive mines to obtain an NPDES permit that stipulates effluent limits for surface water discharges. Depending upon the designated beneficial use of the receiving surface water and the corresponding water quality standards,NPDES permits typically establish stringent effluent limits. Active mining operations successfully employ proven and effective water treatment technologies to meet NPDES permit limits. However, these water treatment measures may not be feasible at many AML sites in remote locations lacking the necessary infrastructure to operate a water treatment plant.

The use of Gold Book standards to set surface water quality standards or MCLs to set groundwater quality standards creates a significant dilemma at many AML sites. Applying these standards may require an AML cleanup effort to achieve the impossible to make a site "cleaner than clean" by mandating improvements in water quality that do not reflect pre-mining conditions and the presence of metals, sulfate, etc. due to naturally occurring reactions between the orebody and the surrounding water systems.

It is important to note that the Environmental Protection Agency (EPA) acknowledges, in the context of coal remining operations, that requiring AML cleanup efforts to meet strict numeric standards is sometimes inappropriate and is a disincentive to retaining. In an effort to remove regulatory impediments and to encourage remining, EPA recently proposedto amend the CWA regulations to address pre-existing discharges at coal retaining operations. 65 Fed. Reg. 19440. As justification for the proposal, the EPA acknowledges the following: "remining has the multiple benefits of improving water quality, removing hazardous conditions, and utilizing remaining coal as a resource instead of mining virgin land." Furthermore, the Agency acknowledges, "requiring the treatment of pre-existing discharges to meet existing standards has been shown to be cost prohibitive, and thus, a disincentive to retaining activities." 5 S1787 fails to make similar findings.

AML Cleanup Policies Should Focus on Net Environmental Benefit - Not Arbitrary Standards

In discussing the issue of AML reclamation/remediation and water quality requirements it is very important to acknowledge that significant water quality improvements can be achieved at many sites by performing some fairly straightforward physical reclamation. The NMA study documents a number of cases where the simple removal of mine waste from a drainage course, rerouting a drainage away from or around a mine waste pile, or capping a mine waste pile to minimize infiltration of meteoric water has improved water quality - sometimes substantially. Moreover, these improvements in water quality often translate into a significant recovery of aquatic habitat to the point where fish populations have dramatically increased.

However, additional, costly water treatment measures, including construction and operation of a water treatment plant, would be required at some of these sites in order to achieve water quality standards such as those that might be specified in an NPDES discharge permit. The concern that voluntary reclamation work could ultimately force the remediating party to construct and operate additional water treatment requirements is having a significantly chilling effect on voluntary AML reclamation work. This means that the significant environmental benefits that can be achieved with physical reclamation work are foregone. Moreover, the incremental improvement in water quality that may be achievable with a water treatment plant may not be cost effective when measured in the context of meaningful improvements in fish populations, enhancements of aquatic habitat, or benefits to downstreamusers. S. 1787 thus needs to be modified to remove this regulatory barrier in order to allow and encourage projects that result in a net environmental benefit but may not meet arbitrary water quality standards.

How Should Environmental Benefits be Measured?

As discussed above, determining pre-mining water quality conditions is a technically challenging if not impossible task at many AML sites. It should also be recognized as an unnecessary complication when applied to a voluntary AML cleanup project. AML cleanup policies should specify that the only conditions that are relevant in assessing a cleanup proposal are the existing conditions. The baseline data inventory effort should be accomplished as expeditiously as possible in order to minimize the resources spent studying the problem, and to maximize the resources spent solving the problem.

AML Cleanup Policies Should Not Stifle Experimental Cleanup Techniques Although significant environmental improvements can be achieved at AML sites using existing techniques and technology, it is highly likely that an improved regulatory climate that allows voluntary AML cleanups wouldstimulate the development of new and possibly more effective cleanup technologies. AML cleanup policies should therefore include provisions to allow on-site testing of new or experimental reclamation and remediation techniques. Remediating parties who wish to try new or unproven techniques at voluntary cleanup sites should be allowed to do so without fear of regulatory sanctions or citizen lawsuits if the resulting water quality does not meet expectations.

S. 1787 needs to be modified to include language that authorizes remediating parties conducting voluntary cleanups to use experimental techniques that have a reasonable likelihood of success. The absence of this type of liability and regulatory relief measure will completely stymie the development of new and improved AML reclamation and remediation techniques.

S1787 Should Be Modified to Include CERCLA/RCRA and CWA Citizen Suit Liability Relief

Past industry-funded improvement projects at AML sites have been driven primarily by the desire to avoid, reduce, or otherwise limit liabilitiesassociated with both safety hazards and environmental concerns. If contaminants such as metals, sediments, or acid rock drainage (ARD) have been or are being released or have the potential to be released from an AML site, the owners, operators, or managers of that site potentially face liabilities under a number of state and federal environmental laws, CERCLA, RCRA and the CWA being foremost among them.

Without the necessary liability relief from CERCLA, RCRA and the equivalent state statutes, most AMLs will simply go unaddressed. Potential CERCLA liability is considered the single greatest obstacle to cleaning up AMLs. Because heavy metals are considered "hazardous substances" under the CERCLA regulatory regime, a current or past owner or operator of an AML could be liable for cleanup of the AML to the extent "hazardous substances" are determined at the site. Incurring CERCLA liability can be as easy as having "active involvement in the activities" at a site. Furthermore, any "active management" of mining wastes not excluded by the Bevill exemption would trigger RCRA Subtitle C regulation of the actively managed wastes to the extent those wastes qualify as "hazardous wastes." Once triggered, RCRA Subtitle C regulation would impose exceedinglystringent generation, transportation, treatment, storage and disposal requirements, the so-called "cradle to grave" regulation.

Thus, at many AML sites it is simply good business practice and in the owners' best interest to reclaim the site as expeditiously and efficiently as possible. However, the potential for citizen lawsuits under the CWA should discharges occur at reclaimed AML sites effectively suffocates the best intents of industry (as well as state AML agencies and federal agencies) to reclaim any more sites than absolutely necessary to contain potential CERCLA actions. While industry may have the desire and the means to abate and remediate AML sites throughout the West, implementation will not be achieved until there is indemnification against such litigation and associated liabilities.

Voluntary remediators should be treated similar to CERCLA remedial action contractors. Under this exemption, a remediator would not be liable under CERCLA or any other federal law unless they cause damages as a result of their negligence, gross negligence or intentional misconduct. IfS1787 is to have any utility, the CERCLA/RCRA liability issues must be addressed.

The Term "Remining" Has Been Used Too Broadly in AML Policy Discussions

Defining Remining

The term "remining" is used rather indiscriminately in both the public and the private sectors to describe a broad range of renewed mining activities in previously mined areas. The findings of the NMA study suggest that a narrower definition of retaining would be useful in focusing policy issues that affect remining and AML reclamation and remediation. The suggestion is made herein to restrict the use of the term remining to projects involving processing of existing mine wastes (e.g., waste rocks, and low-grade stockpiles) and/or reprocessing of tailings and previously leached materials (e.g., heap leach ores) at a nearby metals recovery (i.e., treatment) plant. The term "reclamation- mining" is suggested for active mining projects with concurrent AML reclamation and remediation activities that do not include mine waste processing or reprocessing. Using these definitions, remining isa subset of reclamation-mining. Reclamation-mining is discussed later in this testimony.

Remining Benefits

In the last few years, AML policy discussions about remining have assumed that remining results in both environmental and economic benefits. Because remining metal-bearing mine wastes achieves source reduction, it can be an exceptionally effective environmental cleanup method for AML sites. Other cleanup methods such as water treatment or waste containment do not reduce or eliminate the source of the contaminants, and may create long-term operational and monitoring requirements. In contrast, recovering metals by remining removes some or all of the contaminant source, thereby minimizing the volume of problematic mine waste and reducing the residual metals content in the resulting waste product. Additionally, the newly generated mineral processing wastes are disposed of in a modem, permitted mine waste disposal facility with appropriate containment, monitoring, and financial guarantees. Remining is thus an environmental remedy in the form of resource recovery and source reduction, both of which are EPA- favored responses for environmental cleanups and waste management.Remining is also assumed to produce economic rewards for the company that processes or reprocessed the previously mined materials because the company recovers some of the metals in these materials and avoids some of the costs associated with mining new ore. A 1993 remining study identified widespread industry interest in remining, suggesting that remining could be viable at a number of sites. However, this study also revealed equally widespread concerns about the potential environmental liability exposure associated with becoming involved with historically mined areas (Struhsacker, 1993).

Remining Examples

Despite the widespread recognition that remining could facilitate AML cleanups at some AML sites, the NMA study identified only six sites (the Alta Mine in Idaho, the Maitland Tailings and the Double Rainbow Mine in South Dakota, the Dean Mine in Nevada, the Mercur Mine in Utah, and the Westar Heap in New Mexico) at which remining involving mine waste reprocessing has occurred. The limited number of remining sites appears to be due to the same liability concerns identified in the 1993 remining survey. (It should be noted that mine wastes at the Westar Heapwere sold as a silica flux source; they were not reprocessed as a source of residual metals). Details about these six sites are presented in the NMA study.

The NMA study indicates that the assumptions regarding the economic rewards associated with remining are inaccurate or overstated. Only one of the identified remining projects, the 1981 reprocessing of the Maitland Tailings in Lawrence County, South Dakota, produced a net economic gain. Remining at the Double Rainbow Mine and the Westar Heap sites helped defray the reclamation and remediation costs; however, remining was not profitable at either project. The positive economics realized by reprocessing the Maitland Tailings were due largely to anomalously high gold prices in 1981. This project was undertaken principally as an economic endeavor rather than as an AML remediation effort, land use. It is not known whether remining would be financially rewarding if pursued at other sites.

In several of the identified retaining projects, remining was selected as the most cost effective AML cleanup measure because it allowed the mining companies to place the resulting tailings into an existing tailings disposalfacility, thus avoiding the costs and environmental impacts associated with a new waste repository. However, using an existing tailings facility for remining tailings consumes space that would otherwise be available for tailings from processing the primary orebody. Moreover, the remining wastes may not be of comparable grade or recovery characteristics as the primary orebody. Therefore, the decision to engage in remining and to displace primary ore tailings with remining tailings must involve a site-specific cost benefit analysis.

Remining Policy Issues

The NMA study findings regarding the limited circumstances in which remining is profitable are significant from a policy perspective. At least some of the controversy surrounding development of a Good Samaritan provision to the CWA for AML remediation has revolved around retaining. Mining industry critics and some regulators have strenuously objected to allowing remining projects to qualify for the Good Samaritan provision (CCEM, 1998). Their objections to providing liability relief for retaining presumably stem from the belief that an economic endeavor should not enjoy liability protection. The limited data available on remining suggests that thisopposition may be based upon an incorrect perception of remining economics. Moreover, the widespread misuse of the term remining to mean concurrent mining and any AML reclamation/remediation activity has inappropriately lumped together a diverse group of industry-sponsored AML projects and stymied progress on development of a liability relief policy applicable to some industry-led AML cleanup efforts.

The suggestion is made herein to refocus these discussions in the context of the restricted definition of remining as used in this report (i.e., projects involving processing or reprocessing of previously mined materials). By doing so, perhaps the discussion can be focused on the environmental benefits that stand to be gained by including provisions for such remining projects outlined in this discussion. Accordingly, the Committee should reconsider the possibility of including a retaining component with S 1787.


Defining Reclamation-Mining

Although the NMA study identified only a few retaining projects at which industry processed or reprocessed previously mined materials as part of anAML remediation effort, the study includes numerous examples of reclamation-mining in which industry reclaimed and remediated AML sites in and near active mining operations through synergism between the active mine/mill and the AML site. The reclamation-mining examples described in the NMA study capitalized upon industry expertise, equipment, personnel, and existing mine waste disposal and mineral processing facilities and infrastructure to close, reclaim, or remediate the nearby AML site(s).

Reclamation-mining is a highly site specific undertaking both in terms of the AML site characteristics and the range of activities, resources, and facilities at the active mine and mineral processing operation. The reclamation-mining sites identified in the NMA study encompass a broad range of activities that have produced numerous and varied environmental benefits. Examples of reclamation-mining activities identified in the NMA study include the following: Remining (as discussed above); Removing and relocating old mine wastes to existing project components (i.e., active, permitted tailings, heap leach, or waste rock facilities) - Removing and relocating old mine wastes to new waste repositories; Stabilizing old mine wastes in-situ using appropriate liners, caps, and covers; and Remediating groundwater by taking advantage of dewatering activities to support pump and treat opportunities.

The NMA study identifies the following environmental and public safety benefits and improvements that have occurred as a result of reclamationmining activities: Surface water quality improvements; Landscape improvements; Wildlife habitat restoration, preservation and enhancement; Historical preservation; and Safety closures.Appropriate Incentives Would Stimulate Voluntary AML Cleanup

Removing the liability risks and regulatory barriers discussed in this testimony would be a significant step in solving the AML problem by making voluntary AML cleanups a much less problematic endeavors. However, creating incentives for parties engaged in voluntary AML cleanup efforts could increase the number of voluntary AML reclamation projects and would result in more and accelerated progress in reclaiming and remediating AMLs. AML policy discussions such as the current dialogue on S. 1787 should go beyond the topic of liability relief and consider ways to encourage and promote private-sector voluntary AML cleanup efforts.

The types of incentives that could be considered could include a streamlined regulatory review process, reduced or waived royalties in the event Congress establishes hard rock mining royalty provisions in the future, and depletion allowances. Also, tax credits could be considered for projects which are not economic but which are pursuing reclamation-mining to address environmental issues. Similarly voluntary AML cleanup projects could generate environmental credits that could be used to mitigate or offset impacts at other mining projects operated by the remediating party.The advantages to the public in creating incentives for private-sector, voluntary AML cleanups is that the resulting reclamation-mining projects would expedite cleanups at a number of sites and ameliorate environmental conditions with no or minimized public funding. This would reduce the scope of government sponsored mine land reclamation programs currently envisioned as being necessary to solve the AML program.


I appreciate the opportunity to present to this Committee my views and the views of the National Mining Association regarding S 1787. I believe the bill serves to further the discussion regarding the Good Samaritan concept. However, without significant changes as outlined in my comments I am afraid the bill will fall far short of achieving its intended goals, that of increasing voluntary, cooperative efforts toward cleaning up AMLs. I wish to encourage this Committee to work together to revise S 1787 accordingly to provide a workable and meaningful bill.

At a minimum, I suggest the Committee work to revise the definition of remediating party to include private parties and the state and federalgovernments on their own lands; reconsider the cleanup standards required of Good Samaritans; address CERCLA, RCRA, and CWA citizen suit liability issues; provide opportunity for states with adequate programs to issue remediating permits; and reconsider the possibility of including a retaining component.


l Hardrock Mining on Federal Lands, National Research Council/National Academy of Sciences, 1999.

2 NRC/NAS Study, page 104

3 NRC/NAS Study, page 106.

4 Reclaiming Inactive and Abandoned Mine Lands - What Really is Happening, Stmhsacker, D.W., and Todd, J. W., prepared for the National Mining Association, 1998.

5 EPA Fact Sheet "Amendments to Effluent Limitations Guidelines and New Source Performance Standards for the Coal Mining Point Source Category: Proposed Rule" March 2000.


LOAD-DATE: June 22, 2000

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