Hearings - Testimony
 
Full Committee
Oversight Hearing to Consider Whether Potential Liability Deters Abandoned Hard Rock Mine Clean-Up
Wednesday, June 14, 2006
 
Dennis E. Ellis
Executive Director, CO Dept of Public Health and Environment

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 the State of Colorado–abandoned or inactive mines and the liability barriers that exist to the cleanup of these mines. Abandoned or inactive mines are responsible for many of the greatest threats and impairments to water quality in Colorado and across 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.

 

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, Colorado is 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, “Good Samaritans” currently are dissuaded from taking measures to clean up the mines due to an overwhelming legal disincentive.

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. However, there is currently no provision in the Clean Water Act that protects a “Good Samaritan” that attempts to improve the conditions at these sites from becoming legally responsible for any continuing discharges from the mined land after completion of a cleanup project. In addition, the potential for creating liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) has been a disincentive for parties interested in undertaking remediation efforts. These potential liabilities create an overwhelming disincentive to voluntary remedial activities to address the serious problems associated with inactive or abandoned mined lands.

Colorado has found that there would be 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, for over a decade Colorado has participated in and encouraged—in cooperation with other states, Congressional Offices, the environmental community, the mining industry, EPA, and other interested parties—efforts to develop appropriate Good Samaritan legislation. Colorado’s Minerals, Energy and Geology Policy Advisory Board supported the concept of Good Samaritan legislation in 1996.

Colorado believes strongly that only a legislative solution can effectively address liability concerns, particularly for sites with draining adits, and therefore strongly encourages Congress to move forward on this issue.

Components of a Good Samaritan Proposal

Scope of “Remediating Party” Definition
Colorado believes that participation in Good Samaritan cleanups should not be limited solely to governmental entities, since there are many other persons likely willing to contribute to Good Samaritan cleanup initiatives. The statutory provisions should do the following:
· broadly exclude those with prior involvement at the abandoned or inactive mine site;
· broadly exclude those with current or prior legal responsibility for discharges at a site;
· assure that any non-remediation-related development at a site is subject to the normal NPDES rules, rather than the Good Samaritan provision; and
· be narrowly enough constructed to minimize fears over potential abuses of this liability protection.

Citizen Suit Enforcement
The citizen suit enforcement tool has proven to be a useful incentive to encourage permit compliance by point source dischargers subject to the NPDES program. From the outset of development of the Good Samaritan proposal, Colorado has believed that a different set of enforcement tools is warranted for Good Samaritan permittees. Other permittees are required to get permits because they are undertaking activities that cause pollution, and a policy decision has been made that a broad array of enforcement tools are appropriate to assure that these polluting activities are adequately controlled. A Good Samaritan is not a “polluter,” but rather an entity that voluntarily attempts to step in and remediate pollution caused by others. In this case, sound public policy needs to be focused on creating incentives for the Good Samaritans’ actions, not on aggressive enforcement that creates real or perceived risks to those that might otherwise undertake such projects. It is clear that the perceived risk of citizen suit action is currently a major disincentive for such efforts.

Standard for Cleanup
The analysis of a proposed project needs to occur at the front end of a project. Once there is agreement that a project is expected to result in water quality improvement, with no reasonable likelihood of resulting in water quality degradation, the Good Samaritan’s responsibility must be defined as implementing the approved project rather than, e.g., meeting specific numerical effluent limits.

Scope of Mining Sites Addressed
Colorado supports the adoption of a Good Samaritan bill that addresses abandoned or inactive hardrock mines. Colorado is concerned that any efforts to include coal mines in Good Samaritan legislation would bring into play additional issues that would make adoption of legislation more challenging and likely lead to further delays.

Remining
Colorado has actively encouraged remining as a form of environmental clean up since the Colorado Mining Summit in 1987. Governor Owens supports remining as an option that presents the potential for achieving further clean-up of historic mining impacts. Options for promoting responsible remining that can result in additional remediation of historic mining impacts should be explored.

Funding for Remediation
Historically, Clean Water Act section 319 funds have been utilized for a number of projects remediating inactive and abandoned mined lands. To assure that section 319 funds will continue to be available for such cleanup projects, any Good Samaritan proposal should include a provision clarifying that such funds may be used for projects subject to Good Samaritan permits. Such a provision would not be intended to change the current section 319 allocation formula or a state’s prioritization of projects under a state nonpoint source management program.

Conclusion

Governor Owens is on record in support of S.1848, the Cleanup of Inactive and Abandoned Mines Act, introduced by Senators Allard and Salazar. We believe that this bill provides a thoughtful and balanced approach to the range of issues and options that have been discussed.

For us, this is not an academic debate about appropriate legislative language. If a Good Samaritan bill is enacted, water quality in Colorado will improve during the next available construction season. Our state Division of Minerals and Geology has several projects that it has put on hold due to liability concerns. These projects will be revived if legislation is passed. In addition, there are numerous public, private, governmental and non-profit groups and entities in Colorado anxious to pursue remediation projects in several of our river basins as soon as the Good Samaritan liability issue is resolved. The attached Appendix provides a list of several current or potential mine remediation projects in Colorado that are affected by the need for Good Samaritan legislation.

The State of Colorado urges Congress to move forward with S.1848 as the basis for Good

 

Majority Office
410 Dirksen Senate Office Bldg.Washington, DC 20510-6175
phone: 202-224-6176
Minority Office
456 Dirksen Senate Office Bldg.Washington, DC 20510-6175
phone: 202-224-8832