Hearings - Testimony
 
Full Committee
Oversight Hearing to Consider Whether Potential Liability Deters Abandoned Hard Rock Mine Clean-Up
Wednesday, June 14, 2006
 
Terry Harwood
Former Executive Director Hazardous Material Policy Council, USDA, Former Chief Environmental Engineer, USFS

Good morning Mr. Chairman and Members of the Committee. I thank the Committee for this opportunity to testify on the issue of cleanup of abandoned mines and mining related contamination. This issue is and has been a major focal point of my professional life for over twenty years. I managed the abandoned mine cleanup programs in USDA and the Forest Service at the national and regional level. This experience included managing the programs as well as on-the-ground cleanup activities at hundreds of sites. I continue to be professionally involved in cleanup of mining related contamination and natural resource damage restoration after retirement from Federal service.

 

The intent of this hearing is to consider whether potential liability deters abandoned hard rock mine cleanup. Our attention is focused on the potential for “Good Samaritans” to assist in the cleanup process. This is not the right focus. This approach runs the risk of us ignoring the monster in the room which is the lack of sufficient commitment and funding by state and federal governments and industry to adequately address the task of cleanup. During the years that I managed the abandoned mine programs in USDA, funding levels were never increased from Fiscal Year 1995 to the day I retired in 2002 and those funding levels have subsequently been cut. There are thousands of abandoned sites to deal with and at current funding levels the program will take hundreds of years. The potential for good intentioned, technically qualified Good Samaritans to make a discernable impact on this huge problem is highly questionable. There seems to be an attitude that volunteerism will offset real commitment by government and industry to deal with mining related environmental problems.

I could spend a great deal of time relating all of the abandoned mine problems and challenges to cleaning them up and how the problems run from rather small environmental issues on remote public lands to massive complexes in Idaho and Montana affecting human health and large eco-systems. Others testifying today may outline those issues and numbers more thoroughly.

One of my major concerns is while attempting to deal with alleged impediments to voluntary action we hide from public discussion and consideration the really important issue, the lack of adequate funding and commitment by government and industry.

But this is not my greatest concern. The proposed legislation may be an attempt to hide the true nature of cleanup challenges with a gross simplification or disregard for the science and engineering needed to insure that we end up with environmental improvement. Effective cleanup actions require a professional honest intentioned approach to the problem, often times a high level of expertise and substantial resources. Improperly regulated Good Samaritans will not get the job done. After review of S.1848 and S. 2780, I see an attempt to remove most environmental regulation from potential Good Samaritan operations as an answer to the fear of liability issue. This can lead to degraded environmental conditions after the volunteer action is undertaken. The schemes outlined in the proposed legislation do not protect us from things getting substantially worse.

For example, with S.1848, we would regress to a time when there was little control over environmental disturbance activities, only the good intent of the party taking the action. This is the reason we find ourselves with the current environmental mess. The bill is appropriately numbered, because 1848 was a time in history when we did not give much credence to the effect our activities had on the environment.

Let us also discuss the type of Good Samaritan we may be talking about. For example, they could be a conservation group whose only intent is to assist the governments with no profit in mind, they could be a developer concerned about the impact of contaminated abandoned mine sites on a project they are involved in, or they could be a mining company that believes they can reprocess mine wastes in a profitable manner. As metals prices escalate, there is more potential for speculation and remining proposals. Under both bills you could have a situation in a mining district where a mining company operating a new or existing facility would be required to meet all of the appropriate environmental regulations while another company operating at a previously abandoned site would be shielded from critical environmental regulation. The remining operations can have the same potential for environmental impact as new mining operations where hazardous chemicals such as cyanide are used in leaching operations. There can be activities where there is no difference between a new operation and a remining operation.

Both bills are rife with other problems, for example:

· No adequate provision for the development of regulations for permitting;

 

· No environmental accountability. The legislation says that projects have to result in improvement to the environment. The improvements are not defined and normal standards are waved by the legislation;

· Weak or non-existent language to prevent collusion between parties liable for cleanup and so called Good Samaritans exempted from environmental regulation;

· No recognition of the mature abandoned mine cleanup programs in the federal land management agencies. Enabling EPA to issue permits on federal public lands in conflict with the authorities granted under CERCLA in EO 12580;

· Creation of an unnecessary new federal program within EPA for permitting voluntary actions; and

· The potential for states to permit activities on federal public lands without fully accounting for federal resource issues, to name a few.

The supposed intent of this discussion and the proposed legislation is to deal with disincentives to voluntary cleanups because of potential liability. What the proposed legislation does is eliminate most if not all environmental regulation and safeguards from volunteer activities.

There is a better solution. There seems to be the idea that under current environmental regulation we must hold potential Good Samaritans accountable to the same remedial cleanup standards as those who caused the contamination and that this creates a strong disincentive to voluntary cleanup. Experience tells me that we can use incremental removal actions as defined under CERCLA to work toward final cleanup standards and that each removal action does not need to result in the final standard. It just needs to be done in a manner that insures that the removal action does not affect our ability to meet final standards in the future and that it has positive results.

This can be done under current CERCLA regulations through the use of a Good Samaritan Administrative Order on Consent (AOC). With this process we could insure that appropriate environmental regulations were considered, we could address the liability question for the Good Samaritan, protect the environment from the activities of an unscrupulous or highly speculative party acting as a volunteer, and not need to create an entirely new program in EPA. This would also recognize the authority and ability of the states and federal land management agencies to use this tool as well.

This would require that the EPA and federal land managers with CERCLA authority develop a model Good Samaritan AOC working with potential volunteers and that there be a commitment by these agencies to not allow the process to bog down in a bureaucratic swamp. It could result in a volunteer program that assists in working toward a final cleanup standard while relieving Good Samaritans from the fear of liability.

Thank you for the opportunity to discuss my concerns and recommendations with you. My hope is that the nation is not misled into thinking that a solution to the Good Samaritan liability issue through currently proposed legislation is a meaningful solution to the abandoned mine problem. It is not. Far from it, with the legislation proposed, we run the risk of substantially adding to our environmental problems by creating a program where necessary scientific investigation of site conditions is not performed; development of regulations and cleanup standards is non-existent or weak; parties looking to make a buck can tear into these sites with little or no regulatory consequence to their behavior; and, even with the best of intentions, the states, federal land managers and the EPA will end up with a larger mess to deal with.

 

 

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