WESTERN GOVERNORS' ASSOCIATION

GOOD SAMARITAN CLEANUPS OF ABANDONED AND INACTIVE MINES

June 15, 1998

The western states find that abandoned and inactive mines are responsible for many of the greatest threats and impairments to water quality throughout 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. At least 400,000 abandoned or inactive mine sites occur in the West.

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.

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 which protects a remediating agency--or "Good Samaritan"--who does not otherwise have liability for abandoned or inactive mine sites, and that attempts to improve the conditions at these sites, from becoming legally responsible, under section 301(a) and section 402 of the Clean Water Act, for any continuing discharges from the mined land after completion of a clean-up project. This potential liability is an overwhelming disincentive to voluntary remedial activities financed or conducted by public entities to address the serious problems associated with inactive or abandoned mined lands.

The western states have 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, western states have endeavored to develop--with the input of the environmental community, the mining industry, EPA, and other interested parties--the following proposal for amending the Clean Water Act. The effect of the proposal would be to eliminate the current disincentives that exist in the Act to restore and protect water quality within watersheds through Good Samaritan cleanups of abandoned or inactive mines.

Responses to Major Issues

Scope of "Remediating Party" Definition

There has been substantial discussion between the western states and other interested parties regarding how broad or narrow the definition of "remediating party" should be, or in other words, who can be considered a "Good Samaritan" and thus benefit from the proposal. Generally, environmental group representatives have expressed a preference for a narrow definition while industry representatives have pressed for a broader definition. The environmental groups are concerned that the provision not reduce anyone's existing legal responsibility for conditions at a site, and that those engaged in mining activities not gain an undue relaxation of water quality protection requirements due to this provision. Industry groups do not believe it makes sense to preclude industry from acting as a Good Samaritan, and argue that industry is more able to contribute to cleanups, both financially and technically.

The states concluded that "remediating parties" should not be limited solely to governmental entities, since there are many other persons likely willing to contribute to Good Samaritan clean-up initiatives. However, the current proposed definition is intended to broadly exclude both 1) those with prior involvement at the abandoned or inactive mine site and 2) those with current or prior legal responsibility for discharges at a site. The proposal also assures that any non-remediation-related development at a site is subject to the normal NPDES rules, rather than this Good Samaritan provision.

The definition, although intended to be narrowly constructed in order to minimize fears over potential abuses of this type of discharge permit, is not intended to be so narrow that it excludes entities whose prior involvement with the abandoned or inactive mined land was of a limited, non-decision making nature. For these reasons, the definition of 'remediating party' specifically allows the following entities: "a county government that collected taxes based on the mining operation, a non-managerial employee of the mining operation, an independent supplier who provided goods or services to the mining operation, and a consultant, such as an engineering or earthworks firm, whose participation at a site was limited to performing professional services for a fee." Report language is included to further clarify the states' intent with regard to the definition.

The environmental community expressed a concern regarding earlier drafts of the 'remediating party' definition, suggesting that the definition's exclusion of persons with prior involvement at a site could be subject to abuse by the use of shell corporations or other related entities. The current definition addresses this concern by adding language also excluding "any person who owned or controlled such person or operation, is owned or controlled by such person or operation, or is under common ownership or control with such person or operation." (Emphasis added.)

The western states believe that the term "owned or controlled" should be interpreted broadly. The states further believe that it would be very difficult to anticipate all possible 'ownership and control' relationships, and therefore did not attempt to define the term in statute, but believe that its meaning should be further developed in report language, such as that attached to the proposal. The states recognize the line-drawing problem that use of this term presents, but believe that inclusion of some language along these lines is necessary to eliminate concerns about potential abuse of a Good Samaritan provision. It should be noted that the states are aware of the strong opposition to the 'ownership and control' language by some mining industry representatives, and are not necessarily wedded to that specific language. The states do, however, believe that the language effectively addresses the purpose for which it was developed. Further, no alternative language that would equally address the intended purpose has been offered to date.

The proposed definition of "remediating party" also excludes federal agencies undertaking activities on federal lands. The issue of federal agency responsibility for abandoned or inactive mine impacts on federal lands has been the subject of an ongoing dialogue between EPA and other federal agencies, as well as other stakeholders. The current proposal would leave that issue to be worked out in a different forum.

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, the states have 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.

Originally, the states had carefully and narrowly drafted the proposal to only preclude citizen suits for "true" Good Samaritans, while otherwise retaining all liability and enforcement tools for all actions and development not associated with the Good Samaritan remediation permit. However, because of significant environmental community concern regarding its potential precedential effect, the current draft eliminates language that would preclude citizen enforcement of Good Samaritan permits. States note that this major change in the proposal is based on their judgment regarding the workability of the overall package. If the proposal were to be amended in such a way as to expose Good Samaritans to additional liabilities, the package may not be workable without a preclusion of citizen suits.

Standard for Cleanup

Concern was raised that the standard to which sites had to be cleaned in the original Good Samaritan proposal was too vague and could allow Good Samaritan cleanups in which only negligible improvements in water quality might result. The proposal only required that the cleanup plan demonstrate "with reasonable certainty that the actions will result in an improvement in water quality."

The states considered adding language to make it clear that we intend for only those plans that result in significant improvements to be approved, but were stymied in our attempt to legislatively define such terms as "significant." The states did add language to clarify our intent that EPA should approve a permit only if it determines that "the remediation plan demonstrates with reasonable certainty that the actions will result in an improvement in water quality to the degree reasonably possible, taking into consideration the resources available to the remediating party for the proposed project." Clearly, states and others will have no reason to undertake the expense of a cleanup project unless they believe that meaningful water quality improvement will result.

Additionally, language was added under 'limitations on statutory construction' (subparagraph (4)(D)) to clarify that the proposal would not undermine the goals and structure of the Clean Water Act with respect to water quality standards. The proposal would allow some entities which have no liability for an abandoned or inactive mine to undertake a partial cleanup without facing open-ended liability for the entire site, but would not eliminate the long-term goal of attaining water quality standards.

Concern was also expressed that the proposal could potentially allow a Good Samaritan to leave a site in a worse condition than prior to the Good Samaritan remediation. This concern prompted a proposed amendment to require a "no worse than before" finding prior to permit termination. Although the states understand the motivation behind this proposed amendment, such a provision would make the proposal unworkable. Good Samaritans need certainty about their responsibilities before they undertake a project. A "no worse than before" standard could result in open-ended liability if a Good Samaritan encounters problems that had not been anticipated in their remediation plan. The analysis of likely results of a proposed project -- by the Good Samaritan, by EPA, and by interested citizens -- 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. Toward this end, the revised proposal includes a provision requiring the Administrator to issue a permit only "if the remediation plan demonstrates with reasonable certainty that the actions will result in an improvement in water quality."

Scope of Mining Sites Addressed

The Good Samaritan proposal was developed initially with a focus principally on impacts from abandoned or inactive hardrock mines in the western United States. However, the western states recognize that there are also remaining challenges regarding the remediation of abandoned or inactive coal mines. Therefore, the proposed definition of "abandoned or inactive mined lands" has been drafted to include coal sites eligible for reclamation or drainage abatement expenditures under the Surface Mining Control and Reclamation Act (SMCRA). However, to avoid interference with complex issues regarding the implementation of SMCRA, the proposed definition would not include sites under Title V of SMCRA where mining has occurred subsequent to SMCRA's adoption. The Western Governors' Association will oppose any effort to expand this provision to lands regulated under Title V of SMCRA.

Search for Parties with Existing Liabilities

Concern was raised that a Good Samaritan cleanup could commence without first trying to identify whether parties with liability for the site still exist. Consequently, states added a provision that the Good Samaritan "remediation plan" include a summary of the results of a reasonable effort to identify parties whose past activities have affected discharges at the site. States further added language to clarify that existing liabilities for mined lands would not be affected by the proposal.

Remining

Mining industry representatives expressed a preference for broadening the scope of the proposal to also grant similar incentives (or removal of disincentives) to undertake remining of a previous mine site for profit, due to the net environmental improvement that may result. Environmental group representatives have strongly opposed expanding the Good Samaritan proposal to allow remining, and have vowed their opposition should remining be included.

The western states found that, while providing incentives for remining is an important topic that warrants further public discussion and analysis, that 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.

In developing a Good Samaritan proposal, western states did consider the issue of allowing limited incidental reprocessing of tailings or waste rock piles to take place on a Good Samaritan site, so long as the revenues which resulted from such reprocessing would go toward offsetting the total costs of remediating the site. Conceptually, the states broadly supported this idea, however, we ran into difficulties in constructing the language narrowly enough to preclude creating a loophole in the proposal for remining. States remain open and supportive of the idea of including incidental reprocessing in the proposal if language can be developed that does not result in opposition to the Good Samaritan proposal.

Because the western governors identified the Good Samaritan provision as one of their high priorities, the western states urge Congress at this time to proceed with the adoption of a Good Samaritan provision without initially attempting to expand this concept. This provision provides a logical and constructive starting point for efforts to instill flexibility into the Clean Water Act that can lead to further progress in environmental protection. The western states are frankly concerned that efforts to expand the scope of this program at the outset is likely to generate significant opposition that may delay or frustrate the ability to get this needed and widely supported provision adopted into law. At the same time, western states advocate a separate process/dialogue with the various interested parties which could lead to the development of a proposal providing incentives to promote environmental remediation through remining.

Page last updated 10/26/1999