Copyright 2000 Federal News Service, Inc.
Federal News Service
June 21, 2000, Wednesday
SECTION: PREPARED TESTIMONY
LENGTH: 1930 words
HEADLINE:
PREPARED TESTIMONY OF J. CHARLES FOX ASSISTANT ADMINISTRATOR FOR WATER U.S.
ENVIRONMENTAL PROTECTION AGENCY
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
Good morning Mr.
Chairman and members of the Committee. I am Chuck Fox, Assistant Administrator
for Water at the U.S. Environmental Protection Agency (EPA).
I look
forward to talking with you this morning about the Nation's clean water program
and, more specifically, to support the "Good Samaritan Abandoned or Inactive
Mine Waste Remediation Act" (S. 1787) introduced by Senator
Baucus and others. This legislation will promote efforts to mitigate the effects
of pollutants discharged from abandoned or inactive mines into the Nation's
streams, rivers and lakes.
BACKGROUND
Despite the great progress
that has been made in improving the Nation's water quality since the passage of
the Federal Water Pollution Control Act in 1972, serious water quality problems
persist.States reported in 1998 that 35% of the rivers and streams they assessed
do not meet clean water goals and another 10% of waters are threatened. In the
case of lakes and ponds, 45% of these waters do not meet water quality goals and
9% are threatened. And, 44% of the coastal and estuarine waters that States
assessed do not meet their clean water goals and 9% are threatened. In the Great
Lakes, fully 96% of the shoreline miles assessed do not meet clean water goals.
Based on this data, the States indicate that over 20,000 waterbodies are
polluted and need the focused attention in order to recover. In the western
States, one of the more serious threats to this Nation's water quality is
pollution contributed by thousands of abandoned or inactive mines. Mining has a
significant economic benefit to the west, but many of these former mine sites
left an unfortunate legacy of water pollution or the threat of water pollution.
Exact figures are not available due to the magnitude of historical,
small-scale mining activities and the age of many of these abandoned mines, but
estimates place the total number of abandoned mine sites at 200,000 to 500,000
for the entire country. An independent assessment by the Western Governor's
Association places the total at more than 400,000 in the west alone. Most of
these sites are classified as "hardrock" mines that were developed to extract a
wide variety of metal-bearing ores. Further complicating the problem is the fact
that the majority of these sites were mined and abandoned prior to the enactment
of modem environmental regulations in the 1970%.
Estimates of the
magnitude of the environmental impacts occurring as a result of historical
hardrock mining activities in the western States vary significantly. Not all of
these mine sites pose serious threats to human health and the environment. The
Western Governors Association estimates that as many as 80% of the sites may not
pose environmental or immediate public safety concerns. However, many mine sites
do create significant environmental and public health hazards -- anywhere from
40,000 to 100,000 sites, based upon the previous figures cited.
REGULATORY AUTHORITY -- ABANDONED/INACTIVE MINES
EPA has no
single, comprehensive statutory authority to regulate mining and oversee
development of environmental performance standards and financial assurances at
individual mines. EPA does, however, have statutory authorities to help reduce
potential environmental problems at individual mines and has used these
authorities to prevent and remediate pollution at a number of mine sites. EPA
also has used administrative statutes, such as the National Environmental Policy
Act (NEPA), to try to introduce pollution prevention measures during the mine
site selection and evaluation phase for new mines.
EPA uses a number of
statutory authorities including the Clean Air Act (CAA), Clean Water Act (CWA),
the Resources Conservation and Recovery Act (RCRA), and the Comprehensive
Environmental Response, Compensation and Recovery Act (CERCLA) -- more commonly
referred to as the "Superfund" -- to regulate and remediate hardrock mining
activities.
RCRA and CERCLA authorities have only been used for the
highest priority sites posing the greatest threats to public health and safety.
A number of sections in the CWA have a direct bearing on regulating both
active and remediation activities at abandoned mines. Section 301 prohibits
discharges of any pollutant without a permit. Section 402, which authorizes the
National Pollution Discharge Elimination System (NPDES) that requires permits
for all discharges into waters of the United States, is the most comprehensive
and commonly used authority to regulate all types of mining-related activities.
The majority of active mines have CWA discharge permits and many of these
permits implement national technology-based effluent limitations developed under
section 301 and 304 of the CWA. Section 309 provides very broad enforcement
authority that includes issuing administrative penalty orders and assessing
penalties.
Closely related to provisions in Section 402 are certain
provisions in Section 303(d) that require States to identify water bodies that
exceed the prescribed water quality criteria and that the State develop a total
maximum daily load (TMDL) limitation on pollutants being discharged into these
water quality-limited bodies of water.
Section 504 of the Act, which
provides the Administrator with emergency powers to correct all activities that
constitute an "imminent and substantial endangerment to public health and
welfare," and Section 505, which permits citizen suits against polluters, also
come into play in the overall regulatory scheme.
Unfortunately, there
are limitations under the CWA that often hamper remediation and restoration
activities at abandoned mine sites. In particular, the permitting requirements
under Section 402 of the CWA require that the permittee meet all of the
requirements and effluent discharge limits set out in their discharge permit.
These discharge limits include water quality standards that have been
established for the body of water into which the treated effluent is discharged.
In addition, these requirements mean anyone conducting reclamation or
remediation at an abandoned mine site may become liable for any continuing
discharges from that site.
PROPOSED GOOD SAMARITAN LEGISLATION
S. 1787 would encourage remediation activities for abandoned mine sites
where no action would be taken otherwise because of potential liability and
costs under the CWA. The Administration generally supports the bill and would
like the opportunity to work with the sponsors of the bill and members of this
Committee to improve the bill in several respects.
EPA supports the
major provisions of the bill including the following critical elements:
(1) the "Good Samaritan" acting as the remediating party can not have a
historical or existing responsibility for the mine site;
(2) sites are
only subject to the bill's coverage if there is not an identifiable owner or
operator of the mine that can clean up the site;
(3) the permitting
authority rests exclusively with EPA, ensuring consistency in application of
this innovative approach to environmental regulation under the Act
(4) a
permit may only be issued where it is demonstrated, with reasonable certainty,
that improvement in water quality will take place to the maximum extent
practicable taking into consideration the resources available to the remediating
party;
(5) public participation in the permit issuance and modification
process is ensured;
(6) the permit is in force until either the site
clean up is completed, the discharges are subject to a separate development
permit, or the site is left in a condition that at least meets the baseline
conditions prior to remediation efforts;
(7) the bill provides for
federal enforcement of permit conditions, and preserves existing authorities
over violations that occurred prior to issuance of the remediation permit; and
(8) the use or sale associated with any mining conducted as part of the project
is restricted to supporting remediation activities.
EPA would like to
work with the Committee to address several issues. The first issue concerns the
provision in the bill under section (2)(C) that
"The Administrator shall
not delegate the authority under subparagraph (A)..." to issue a permit. This
prescriptive language would require that the Administrator personally be the
authorizing official for each "Good Samaritan" permit. This provision should be
amended to enable delegation of permit issuance authority to the Assistant
Administrator for Water or Regional Administrators as the Administrator
determines appropriate. The second issue concerns the time frame for issuing
amended regulations to address the provisions of the new section 402(q) created
by the bill. Section (9)(A) of the bill language states that EPA shall have
"...not later than one year after the date of enactment of this subsection..."
to issue appropriate regulations. The language goes on further to state that
these regulations should be developed "...in consultation with State, tribal and
local officials and after providing for public notice." Given the requirements
for consultation with such a large number of potentially interested parties, EPA
will need not less than three years to finalize appropriate regulations after
the bill becomes law. Third, the Administration questions the provision of the
bill that would make State grant funds for reducing nonpoint pollution under
section 319 of the CWA available to pay for implementing controls over point
source discharges of pollution from abandoned mine sites.Fourth, the current
bill language does not consider providing "Good Samaritans" with relief from
ocean discharge criteria established under section 403(c) of the Clean Water
Act. In the proposed legislation, S 1787 allows the Administrator to issue a
permit to a "Good Samaritan" ... (all the substantive and procedural safeguards)
... without compliance with other provisions of section 301,302 and 402. As you
are aware, NPDES permits for discharges to the territorial seas also require
compliance with the provisions of section 403(c) of the CWA. To improve the
usefulness of this provision, it may be necessary to add language allowing the
"Good Samaritan" to also be exempted from provisions of 403(c).
Finally,
the bill provides that the permittee may request a modification of a permit. EPA
suggests that the Administrator should be allowed to initiate a modification of
the permit as needed. The bill should also provide authority for the
Administrator to terminate the permit where appropriate. The Administration may
provide additional comments.
CONCLUSION
In closing, I do want to
take a minute to commend the Western Governor's Association (WGA) for the work
that it has done over the past five years in both identifying issues and
developing much of the background data that provided the foundation for the
bill. WGA worked closely with a variety stakeholders, such as industry, EPA and
other federal agencies and the States, to develop a strong foundation for this
bill and to try to include as many perspectives on the proposed approach to
remediation of abandoned mines.
The "Good Samaritan" bill has much to
offer in addressing and correcting the environmental insults arising from
abandoned mine sites. The Administration is ready and willing to work with the
Committee, the States, other Federal agencies, the WGA and any other interested
parties to help assure the environmental remediation of abandoned mine sites.
Thank you, Mr. Chairman. I will be happy to answer any questions from
the Committee members.
END
LOAD-DATE: June 22,
2000 
