Western Governors' Association

GOOD SAMARITAN CLEANUPS OF ABANDONED AND INACTIVE MINES

June 15, 1998

Section 402 (33 U.S.C. 1342) is further amended by inserting at the end the following:

"(new subsection) Permits for Remediating Party on Abandoned or Inactive Mined Lands.-

"(1) Purpose and Applicability.-The purpose of this subsection is to provide a mechanism for a remediating agency that does not have liability for environmental concerns related to abandoned or inactive mined lands, to improve the water quality conditions at such sites without incurring liability under section 301(a) and section 402 of this Act. Subject to this subsection, including the requirements of paragraphs (2) and (3), the Administrator, with the concurrence of the applicable State or Indian tribe, may issue a permit to a remediating party under this section for discharges associated with remediation activity at abandoned or inactive mined lands which modifies any otherwise applicable requirement of sections 301(b), 302, 403, and 405, or any subsection of this section (other than this subsection), and implementing regulations.

"(2) Application for a permit. -- A remediating party who desires to conduct remediation activities on abandoned or inactive mined lands from which there is or may be a discharge of pollutants to waters of the United States or from which there could be a significant addition of pollutants from nonpoint sources may submit an application to the Administrator. The application shall consist of a remediation plan and any other information requested by the Administrator to clarify the plan and activities.

"(3) Remediation Plan. -- The remediation plan shall include (as appropriate and applicable) the following:

"(A) Identification of the remediating party, including any persons cooperating with the concerned State or Indian tribe with respect to the plan, and a certification that the applicant is a remediating party under this section.

"(B) Identification of the abandoned or inactive mined lands addressed by the plan.

"(C) Identification of the waters of the United States impacted by the abandoned or inactive mined lands.

"(D) A description of the physical conditions at the abandoned or inactive mined lands that are causing adverse water quality impacts.

"(E) A description of practices, including preliminary system design and construction plans and operation and maintenance plans, proposed to reduce, control, mitigate, or eliminate the adverse water quality impacts and a schedule for implementing such practices and, if it is an existing remediation project, a description of practices proposed to improve the project, if any.

"(F) An analysis demonstrating that the identified practices are expected to result in a water quality improvement for the identified waters.

"(G) A description of monitoring or other assessment to be undertaken to evaluate the success of the practices during and after implementation, including an assessment of baseline conditions.

"(H) A schedule for periodic reporting on progress in implementation of major elements of the plan.

"(I) A budget and identified funding to support the activities described in the plan.

"(J) Remediation goals and objectives.

"(K) Contingency plans.

"(L) A description of the applicant's legal right to enter and conduct activities.

"(M) The signature of the applicant.

"(N) Identification of the pollutant or pollutants to be addressed by the plan.

"(O) A summary of the results of a reasonable effort by the applicant for a permit under this subsection to identify (i) current owners, lessees and claimants of the abandoned or inactive mined lands addressed by the plan and (ii) other persons, including mine operators, if any, whose activities on the abandoned or inactive mined lands since October 18, 1972, created conditions that cause or contribute to the current discharge of pollutants from those lands. The reasonableness of the effort will be assessed relative to the resources available to the remediating party for the proposed project."

"(4) Permits. --

"(A) Contents. -- Permits issued by the Administrator pursuant to this subsection shall--

"(i) provide for compliance with and implementation of a remediation plan which, following issuance of the permit, may be modified by agreement of the permittee and the Administrator with the concurrence of the applicable State or Indian tribe;

"(ii) require that any modification of the plan be reflected in a modified permit;

"(iii) require that if, at any time after notice to the remediating party and opportunity for comment by the remediating party, the Administrator determines that the remediating party is not implementing the approved remediation plan in substantial compliance with its terms, the Administrator shall notify the remediating party of the determination together with a list specifying the concerns of the Administrator;

"(iv) provide that, if the identified concerns are not resolved or a compliance plan submitted within 90 days of the date of the notification, the Administrator may take action under section 309 of this Act;

"(v) provide that clauses (iii) and (iv) not apply in the case of any action under section 309 to address violations involving gross negligence (including reckless, willful, or wanton misconduct) or intentional misconduct by the remediating party or any other person;

"(vi) not require compliance with any limitation issued under sections 301(b), 302, and 403 or any requirement established by the Administrator under any subsection of this section (other than this subsection); and

"(vii) provide for termination of coverage under the permit without the remediating party being subject to enforcement under sections 309 and 505 of this Act for any remaining discharges --

"(I) after implementation of the remediation plan;

"(II) if the discharges covered by the permit become subject to a permit issued under the other subsections of this section for development that is not part of the implementation of the remediation plan, and the remediating party seeking termination of coverage is not a participant in such development; or

"(III) upon a demonstration by the remediating party that an event or condition has been encountered that was not contemplated by the remediation plan, and that the surface water quality conditions due to remediation activities at the site, taken as a whole, are equal to or superior to the surface water qualities that existed prior to initiation of remediation. This determination shall be made with reference to the designated uses of the affected waters.

(viii) not authorize discharges associated with the extraction, processing, or removal of minerals for purposes of commercial use or sale.

"(B) Limitations. -- The Administrator shall only issue a permit under this section, consistent with the provisions of this subsection, to a remediating party for discharges associated with remediation action at abandoned or inactive mined lands if 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.".

"(C) Public participation. -- The Administrator may only issue a permit or modify a permit under this section after complying with subsection (b)(3) and implementing regulations.

"(D) Limitations on statutory construction. -- This subsection shall not be construed--

"(i) to limit or otherwise affect the Administrator's powers under section 504; or

"(ii) to preclude actions pursuant to section 309 or 505 for any violations of sections 301(a), 302, 402, and 403 or to affect the relief available in such actions with respect to such violations, that may have existed prior to issuance of a permit under this subsection except for any such actions against a remediating party based on conditions resulting from remediation of abandoned or inactive mined land that occurred prior to issuance of a permit under this subsection, provided that such permit covers remediation activities implemented by the permit holder prior to issuance of the permit; or

(iii) to limit any obligation that a State or Indian Tribe has under section 303, except as otherwise provided in this subsection.

"(E) Approval of compliance plans. -- The Administrator shall approve or disapprove a compliance plan submitted under subparagraph (A)(iv) as quickly as possible but in no case later than 90 days following the date of submission of such plan. If disapproved, the applicant may submit a revised compliance plan within 90 days of notification of disapproval.

"(5) Definitions. -- In this subsection the following definitions apply:

"(A) Remediating party. --

(i) The term 'remediating party' means--

(I) the United States (on non-Federal lands), a State or an Indian tribe or officers, employees, or contractors thereof; and

(II) any person acting in cooperation with a State or Indian tribe. 'Person' includes a local government that owns abandoned or inactive mined lands for the purpose of conducting remediation of the mined lands or that is engaging in remediation activities incidental to the ownership of the lands.

(ii) The term 'remediating party' does not include

(I) a federal agency on federal lands,

(II) any person who prior to issuance of a permit under this subsection directly benefitted from or directly or indirectly participated in any mining operation (including exploration) associated with the abandoned or inactive mined lands provided that persons shall not be excluded from participation as a remediating party if their participation in any mining operation was solely as (a) a county government that collected taxes based on the mining operation, (b) a non-managerial employee of the mining operation, (c) an independent supplier who provided goods or services to the mining operation, or (d) a consultant, such as an engineering or earthworks firm, whose participation at a site was limited to performing professional services for a fee,

(III) any person who is, or at any time has been legally responsible pursuant to 301(a) for any discharge of pollutants from the abandoned or inactive mined lands (except where any such person's legal responsibility results solely from conducting remediation activities that would otherwise qualify for a permit under this subsection),

(IV) any person who owned or controlled a person identified in clause (II) or (III) above, is owned or controlled by such person, or is under common ownership or control with such person, or,

(V) a predecessor or successor in interest to any person identified in (II), (III), or (IV) above.

"(B) Abandoned or inactive mined lands. -- The term 'abandoned or inactive mined lands' means either lands that were formerly and are neither actively mined nor in temporary shutdown at the time of submission of the remediation plan and issuance of a permit under this subsection, or lands that were formerly mined for coal resources and are eligible for reclamation or drainage abatement expenditures under Title IV, Section 404, of the Surface Mining Control and Reclamation Act, 30 U.S.C. 1231 et seq."

"(C) Mined lands. -- The term 'mined lands' means the surface or subsurface of an area where mining operations, including exploration, extraction, processing, and beneficiation, have been conducted. Such term includes private ways and roads appurtenant to such area, land excavations, underground mine portals, adits, and surface expressions associated with underground workings, such as glory holes and subsidence features, mining waste, smelting sites associated with other mined lands, and areas where structures, facilities, equipment, machines, tools, or other material or property which result from or have been used in the mining operation are located.

"(6) Regulations. -- The Administrator may issue regulations establishing more specific requirements that the Administrator determines would facilitate implementation of this subsection. Before issuance of such regulations, the Administrator may establish, on a case-by-case basis after notice and opportunity for public comment as provided by subsection (b)(3), more specific requirements that the Administrator determines would facilitate implementation of this subsection in an individual permit issued to the remediating party."

"(7) Other development. -- A remediation party who conducts development of any kind, including mineral exploration or mining, of abandoned or inactive mined lands for which a permit has been issued under this subsection, which development is not part of the implementation of the remediation plan, shall not obtain any benefit from this subsection with respect to such development. All such development shall be subject to the remaining provisions of this Act to the same extent as if the remediating party had not obtained a permit under this subsection or been involved with activities pursuant to such a permit.

(8) Funding -- Implementation of a remediation plan pursuant to a permit issued under this subsection shall be eligible for grants under section 319(h).

Page last updated 10/26/1999