Copyright 2000 Federal News Service, Inc.
Federal News Service
June 21, 2000, Wednesday
SECTION: PREPARED TESTIMONY
LENGTH: 7624 words
HEADLINE:
PREPARED TESTIMONY OF WILLIAM B. GOODHARD DIRECTOR OF RECLAMATION &
ENVIRONMENTAL AFFAIRS ECHO BAY MINES LTD. ON BEHALF OF ECHO BAY MINES AND THE
NATIONAL 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:
INTRODUCTION:
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.
SHORTCOMINGS OF S. 1787 AND SUGGESTED REMEDIES
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.
Reclamation-Mining
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.
CONCLUSION:
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.
FOOTNOTES:
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.
END
LOAD-DATE: June
22, 2000