It has been six years since the Environment and Public Works Committee has held a hearing on the issue of whether liability concerns are a deterrent to the clean up of abandoned hardrock mines. In reviewing that hearing’s testimony, I was struck by the fact that both Senator Mike Crapo, the former Chairman of the Subcommittee on Fisheries, Wildlife and Water as well as Senator Baucus, former Chairman of the EPW Committee, both asked that we not let the perfect be the enemy of the good. Here we are six years and several legislative proposals later and I fear that is exactly what has happened and what will continue to happen.
We’ve come here today to find common ground as to how exactly liability fears are causing good samaritans to walk away from cleaning up abandoned mines. It is estimated that there are over 500,000 abandoned hardrock mine sites littering our country and the Western Governors Association estimates that nearly 20 percent of them are posing significant risks to the waterways into which they discharge.
It is particularly important to understand what an abandoned hardrock mine is. These are mines from the gold rush era and mines that produced the ores and metals needed to build weapons during World War II. They are also mines that were abandoned long before modern environmental laws were enacted. Interestingly it is those very laws that have protected our natural resources for so many years that may in fact be hindering the restoration of some of the states' waterways. This was certainly never the intent. John Whitaker, President Nixon's Undersecretary for the Environment noted, "We did not envision at the time that the day would come when the zero discharge provision [of the Clean Water Act] would prevent Good Samaritans from cleaning up acid mine drainage or when the onerous and costly federal permit requirements would snuff out any economic incentive to curb the acid mine drainage problem associated with abandoned mines." (Center for American West, page 23).
In light of the potential magnitude of the problem, if we were to enact legislation, we must broadly define a “Good Samaritan” so that as many innocent parties as possible can participate while taking necessary precautions to ensure that those who may have had any role in the mining of these sites are held legally and financially accountable. No one here today proposes to violate the polluter pays principal in which we all so firmly believe.
I was pleased to introduce by request the Administration’s Good Samaritan legislative proposal. As part of the President’s commitment to cooperative conservation, the Administration has put forth a proposal to address the liability concerns of potential Good Samaritans. The Bush Administration is following on support by the Clinton Administration for the concept of addressing these liability issues. As Charles Fox, Clinton’s Assistant Administrator for Water testified in 2000 on Senator Baucus’ Good Samaritan legislation: "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." Further, there have been bipartisan bills introduced in each of the past three Congresses and the only person on all three bills was the Senator Minority Leader, Harry Reid. For three Congresses and two Administrations there has been bipartisan consensus that liability is a factor affecting these cleanups and clearly Senator Reid agrees that we can’t let the perfect be the enemy of the good.
We will hear today from a potential Good Samaritan who had funding available to cleanup a mine but opted not to out of fear of liability. We also hear from the mining industry that may be better suited than anyone to be a Good Samaritan. Today's mining industry is not responsible for the practices of several generations ago. They have the expertise, knowledge and resources to be able to effectively, quickly and cost-efficiently restore more of these sites than potentially any other group.
We have been presented with a unique opportunity thanks in large part to the Administration’s proposal and to our two fellow Senators Wayne Allard and Ken Salazar who came together to craft a bipartisan bill. Their bill is cosponsored by two EPW Committee members, Senator Baucus and Senator Isakson. To put the final piece in place, our colleagues in the House have already held a hearing on the issue. There is now more momentum behind addressing this problem and restoring thousands of waterways than ever before. However, we must be sure that other non-related issues involving Superfund do not end up killing this opportunity. I urge all of those concerned about clean, fishable, swimmable waters to help Congress seize this great opportunity and pass a Good Samaritan law this year.