Among
the greatest threats to water quality across the western
United States are abandoned and inactive mines. Thousands
of stream miles have been severely impacted by drainage
and runoff from these mines. Yet, efforts to clean
them up have been fraught with difficulties.
Regulatory agencies have faced significant challenges in identifying the parties who are legally responsible for the damage incurred and in determining whether these parties are financially viable. Mine operators responsible for conditions at a site may be long gone. The land and mineral ownership patterns in mining districts can be extremely complex. And, at any given site, it is not uncommon for dozens of parties to have partial ownership or to have had an operational history.
Given the serious impacts on water quality
caused by these abandoned mines and the difficulties
in identifying responsible parties to remediate the
sites, Western states are very interested in undertaking
and encouraging voluntary, "Good Samaritan" remediation
initiatives.
There is broad support for this approach,
but one significant hurdle remains: under the Clean
Water Act, Good Samaritans could be legally responsible
for any continuing discharges from the mined land once
it is cleaned up. This potential liability has
been an overwhelming disincentive to voluntary remedial
activities.
The Western states have found that there would be much more 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. And so, for more than a decade, Western states have participated in and encouraged efforts to develop appropriate Good Samaritan legislation, in cooperation with Congressional offices, the environmental community, the mining industry, the Environmental Protection Agency and other interested parties.
The Western Governors' Association and
the Western States Water Council have focused on amending
the Clean Water Act in order to eliminate the current
disincentives that exist in the Act. However,
the Western states believe that there could be benefits
to addressing potential liabilities under the Superfund
law as well.
Who Should Qualify to be a "Good Samaritan"
Western governors believe participation in Good Samaritan cleanups should not be limited solely to governments, since there are many non-governmental entities who would be willing to contribute to Good Samaritan cleanup initiatives. The states believe the statutory provisions should:
1) broadly exclude those with prior involvement at the abandoned or inactive mine site;
2) broadly exclude those with current or prior legal responsibility for discharges at a site;
3) assure that any non-remediation-related development at a site be subject to the normal permitting rules, rather than the Good Samaritan provision; and
4) be narrowly constructed to minimize fears over potential abuses of this type of discharge permit.
A Role for States and Tribes in Permitting
The EPA Director should be allowed to
delegate permitting authority to states, especially
when the entity doing the cleanup is not a state government
agency. If Congress allows only the EPA to issue
a Good Samarian permit, it should be with the concurrence
of the applicable state or Indian tribe to all the permit
terms.
Improved Water Quality Standard for Cleanup
An important issue that any Good Samaritan
bill will need to address is the standard to which sites
need to be cleaned. The Western states believe
only those Good Samaritan projects that will result
in significant improvements should be approved, but
we recognize the difficulty in legislatively defining
such terms as "significant."
A Good Samaritan cleanup permit should
be approved only if the remediation plan demonstrates
with reasonable certainty that the actions will result
in an improvement in water quality. Further, we
believe Good Samaritans will have no reason to undertake
the expense of an abandoned mine cleanup project unless
they believe that meaningful water quality improvement
will result.
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 water-quality degradation, the Good Samaritan's responsibility
must be defined as implementing the approved project
rather than meeting specific numerical effluent limits
or standards.
The exception to this structure that
the states agree upon is that if a Good Samaritan seeks
early termination of a permit, meaning they will not
fulfill the obligations of the permit, then they have
to ensure that the conditions at the site are no worse
than before they started the project.
Search for Parties with Existing Liabilities
Western states agree that any Good Samaritan
cleanup must begin with a reasonable effort to identify
parties whose past activities have affected discharges
at a site. The permitting authority could
then make a determination that no identifiable, financially
viable, owner or operator exists before issuing a permit.
If a responsible party were found, then the next step
would be to determine if they can be forced to clean
up the site. If not, or if the responsible party was
found to be financially incapable, then the project
could then be opened back up to a Good Samaritan cleanup.
The bottom line is that existing liabilities for mined
lands should not be affected because someone else is
doing the clean up.
Remining – A Separate Issue from Good Sam
Western states have found providing incentives
for remining is an important topic that warrants further
public discussion and analysis. Remining would allow
mining to take place on historic mines in the hope that
overall conditions on the site would improve as a result
of the new mining and subsequent reclamation.
The difficulty in legislating remining
seems to come in drawing the line between reclamation
and new mining. The issue brings into play policy
considerations and stakeholders that go well beyond
those involved in Good Samaritan remediation issues.
Aside from the stated opposition a remining provision
would bring, it would also necessarily involve other
statutes beyond the Clean Water Act and thus trigger
other Congressional committee jurisdictions, all of
which would greatly complicate enactment of a Good Samaritan
provision.
Western states believe it is appropriate to allow limited incidental reprocessing of tailings or waste rock piles to take place during an approved Good Samaritan cleanup, so long as the revenues would go toward offsetting the total costs of cleaning up the site.
Citizen Suit Enforcement
The citizen suit enforcement tool under the Clean Water Act, which allows any citizen with proper standing to bring an action in court for purposes of asking the court to bring a permitee into compliance with the terms of their permit, has proven to be a useful incentive to encourage permit compliance by what are known as point source dischargers. From the outset, in developing a Good Samaritan proposal, Western states believed a set of enforcement tools other than citizen suit enforcement is warranted for Good Samaritan permittees.
Other permittees are required to get Clean
Water Act Section 402 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
steps in to 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 Clean Water Act citizen suit action
is currently a major disincentive for such efforts.
Funding for Remediation
Historically, Clean Water Act funds for addressing nonpoint sources of pollution have been utilized for a number of cleanup projects at inactive and abandoned mines. Good Samaritan legislation should include a provision that ensures these funds will continue to be available for such cleanup projects.
Western governors have consistently identified
the Good Samaritan provision as one of their high priorities
regarding water quality. The Western states urge
Congress to proceed with the enactment of a Good Samaritan
program that will allow states to proceed on Good Samaritan
cleanups in accordance with the principles described
above.
We urge Congress to avoid expanding the
Good Samaritan proposal to include issues such as remining
or a general fee on mining. The Western states
are concerned that efforts to expand the scope of this
program are likely to generate significant opposition
that may further delay or frustrate the ability to get
this needed and widely supported proposal enacted into
law.
We are confident that as soon as a law
is passed allowing Good Samaritan cleanups of abandoned
or inactive mines, water quality in the West will begin
to improve.
|
