Copyright 2000 Federal News Service, Inc.
Federal News Service
June 21, 2000, Wednesday
SECTION: PREPARED TESTIMONY
LENGTH: 1993 words
HEADLINE:
PREPARED TESTIMONY OF WILLIAM JANKLOW GOVERNOR, SOUTH DAKOTA ON BEHALF OF THE
WESTERN GOVERNORS' 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, and members of the
Committee, thank you for the opportunity to appear before you today to discuss
an issue of great importance to Western states--the cleanup of abandoned or
inactive mines. Abandoned or inactive mines are responsible for many of the
greatest threats and impairments to water quality throughout the Western United
States. Thousands of stream miles are severely impacted by drainage and runoff
from these mines, often for which a responsible party is unidentifiable or not
economically viable. At least 400,000 abandoned or inactive mine sites occur in
the West.
Regulatory approaches to address the environmental impacts of
abandoned or inactive mines are often fraught with difficulties, starting with
the challenge of identifying legally responsible and financially viable parties
for particular impacted sites. Mine operators responsible for conditions at a
site may be long gone. The land and mineral ownership patterns in mining
districts are extremely complex and highly differentiated. The surface and
mineral estates at mine sites are often severed, and water rights may exist for
mine drainage. It is not uncommon for there to be dozens of parties with partial
ownership or operational histories associated with a given site. In view of the
impacts on water quality caused by these abandoned mines and the difficulties in
identifying responsible parties to remediate the sites, states are very
interested in undertaking and encouraging voluntary "Good Samaritan" remediation
initiatives, i.e., cleanup efforts by states or other third parties who are not
legally responsible for the existing conditions at a site. However, states
currently are dissuaded from taking measures to clean up the mines due to an
overwhelming disincentive in the Clean Water Act. The bill before you would
amend the Act in effort to reduce those disincentives.
l would like to
offer you an analogy to the situation states are experiencing with our attempts
to clean up the runoff from these abandoned mines. Imagine, if you will, a
neighborhood, perhaps your own neighborhood, with houses and yards, trees lining
the street, kids and dogs playing, families barbecuing. Now imagine a house,
perhaps next door to your own house, that has been abandoned. The paint on the
outside walls has long worn off. The windows are all broken out. The front door
flops open and shut in the wind. The yard has not been mowed or kept, and has
years of debris collected in its high weeds. Add an old refrigerator to the
broken down front porch and a beat up old car in the side yard. It is an old
house that has been abandoned, and it is in your neighborhood.
Now,
let's just say you have had enough of the eyesore. It is impacting the value of
your home; it is a safety and health hazard for the kids in the neighborhood
curious to explore it; and it is a constant source of debris blowing into your
yard. You decide to take some actions to clean up the house-to mow the lawn and
pick up the trash. Move the fridge inside. Nail the door shut and board the
windows. Actions that do not cost you much, but that result in significant
improvements.
Now, imagine that after you have completed these modest
improvements someone in your community takes you to court claiming that the
actions you have taken make you liable to bring the house up to code and up to
the covenants of the neighborhood, and make you responsible for maintaining the
condition of the property indefinitely into the future. And they win! You had
nothing to do with the disrepair that the abandoned house had fallen into, and
yet, because you made an effort to clean up some of the mess, you are now
legally obligated for very costly renovation and maintenance of the house.
This is the situation states find themselves in with regard to their
efforts to clean up abandoned or inactive mines. To date, Environmental
Protection Agency (EPA) policy and some case law have viewed abandoned or
inactive mined land drainage and runoff as problems that must be addressed under
the section 402 National Pollutant Discharge Elimination System (NPDES) permit
program. One such example involves the Penn Mine in California, an abandoned
copper and zinc mine. A portion of the Penn Mine property was acquired by the
East Bay Municipal Utility District to construct a reservoir. Subsequently, the
utility and a California Regional Water Quality Control Board constructed a
facility to contain toxic runoff from the site and minimize its impact on
downstream waters. Neither the municipal utility nor the Regional Board had any
previous involvement in the mining operation but were at the site for the
purpose of cleaning it up. Because the new facility did not eliminate all
discharge to downstream waters, the municipal utility and the regional board
were later sued by an environmental group alleging that the facility was
discharging pollutants without an NPDES permit. This position was upheld through
the 9th Circuit Court of Appeals, with the result that costly further cleanup
requirements were imposed on the municipal utility and the regional board. This
particular example has had a severe chilling effect on the interest of other
'Good Samaritans' in pursuing similar cleanup efforts in several Western states.
States have found that there are many instances where a reasonable
investment in a cleanup project at an abandoned mine site will result in
substantial improvement in water quality, even though all impacts from the site
will not be eliminated. However, there is currently no provision in the Clean
Water Act which protects a remediating agency---or "Good Samaritan"--who does
not otherwise have liability for abandoned or inactive mine sites, and that
attempts to improve the conditions at these sites, from becoming legally
responsible, under section 301 (a) and section 402 of the Clean Water Act, for
any continuing discharges from the mined land after completion of a cleanup
project. This potential liability is an overwhelming disincentive to voluntary
remedial activities financed or conducted by public entities to address the
serious problems associated with abandoned or inactive mined lands.
The
Western states have found a high degree of interest and willingness on the part
of federal, state and local agencies, volunteer organizations and private
parties to work together toward solutions to the multi-faceted problems commonly
found on inactive mined lands if an effective Good Samaritan provision were
adopted. Consequently, since 1994 Western states have endeavored to develop a
proposal for amending the Clean Water Act, to eliminate the current
disincentives that exist in the Act to restore and protect water quality within
watersheds through Good Samaritan cleanups of abandoned or inactive mines. From
the outset, this has been a truly bipartisan effort, and an effort in which the
states have sought to involve the full spectrum of stakeholders, including EPA,
the environmental community, the mining industry, and other interested parties.
Each of these groups has brought important perspectives and considerations to
the discussions. Over several years, the proposal evolved substantially as it
was refined in response to issues and concerns raised. S. 1787 uses the WGA
proposal as its starting point, while including further refinements crafted by
the bill's sponsors.
This bill offers a starting point from which to
work to resolve the liability disincentive problem that is currently preventing
many potential Good Samaritan cleanup projects from going forward.
The
key provisions of the bill are consistent with WGA policy resolution 98-004,
"Cleaning Up Abandoned Mines," a copy of which is attached. It provides a
process to assure that proposed projects make sense from an environmental
standpoint and that they will not be authorized unless there is a sound basis to
conclude that they will result in water quality improvements at a site. It
provides assurances that a remediating party will carry out a project as
approved, in an environmentally sound manner, without imposing unnecessary and
infeasible standard NPDES permit requirements. It provides that after a
remediation project is completed a remediating party can terminate its permit
without open-ended, continuing responsibility for remaining discharges at a
site. At the same time, it assures that the existing legal liability of those
properly responsible for discharges at an abandoned or inactive mine site, prior
to a Good Samaritan project, is not affected in any way.
The Western
Governors' Association has expressed its support for S. 1787 in the attached
letter dated October 19, 1999, although we believe two issues need further
consideration:
1) CERCLA liability; and 2) contractor liability.
The current proposal has been criticized both as too narrow and as too
broad. Some who see the proposal as too narrow would like the provisions
regarding who can be a remediating party to be expanded, so that more entities
can pursue Good Samaritan projects. Some who see the proposal as too broad
believe that all remediation efforts should be subject to a specific cleanup
standard, or that no exceptions should be allowed to the usual Clean Water Act
requirements.
What is important is that some variation on the current
proposal be adopted soon. Few, if any, other revisions to the Clean Water Act
would result in such immediate or certain improvements to water quality as the
prompt adoption of an effective Good Samaritan provision. Projects in various
stages of planning and design are ready to move forward in several Western
states if the current disincentives to such remediation projects can be
eliminated. A list of several examples of such projects is attached as an
addendum to this testimony. On the otherhand, if action on this bill is delayed
by those that feel it does not give them 100 percent of what they want, no
projects will go forward and our Western streams will remain polluted.
It is important to note that this bill would not be and has not been
represented as a comprehensive solution to the environmental problems created by
abandoned or inactive mines. In particular, it does not provide any new
resources, which is another major constraint to further progress in obtaining
cleanup. However, there are some resources currently available and meaningful
cleanup projects will go forward if the current liability cloud is removed. For
example, section 319 of the Clean Water Act provides one source of project
funding that was used by states to help undertake these projects until the
liability issue was recognized. The provision in S. 1787 that would assure that
this funding source remains available for these projects in the future is a
critical element of the proposal. Additional funding sources will.be needed in
the future. However, until the liability issue is resolved, there is very little
incentive for states or others to initiate major efforts to identify potential
additional resources for abandoned or inactive mine remediation.
The
Western Governors commend the sponsors for introducing the "Good Samaritan
Abandoned or Inactive Mine Waste Remediation Act" in an effort
to eliminate current disincentives to voluntary, cooperative efforts aimed at
reducing water quality impacts from abandoned or inactive mines. WGA remains
willing to work with those that seek to improve this concept.
Adoption
of a Good Samaritan bill will result in immediate and significant improvement in
the water quality of some of our country's most polluted streams. Inaction will
result in continued degradation for the foreseeable future of many Western
streams impacted by historical mining activity. On behalf of the Western
Governors' Association, I therefore urge passage of Good Samaritan legislation
this Congress, so that states may once again get on with the business of
cleaning up our proverbial neighborhoods.
END
LOAD-DATE: June 22, 2000