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


LENGTH: 1993 words


 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 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.


LOAD-DATE: June 22, 2000

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