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WESTERN GOVERNORS' ASSOCIATION Good Samaritan Proposal June 15, 1998 A central issue in developing this bill has been arriving at an appropriate definition of a "remediating party", or in other words, who should be considered a "Good Samaritan" and thus be able to obtain a permit for a remediation project under this new subsection of section 402. The definition contained in the bill requires that a state or Indian tribe be involved in a Good Samaritan project, at least in a cooperating role. Otherwise, the definition seeks to allow the broadest possible participation as a "remediating party" that is consistent with: (1) not allowing anyone with existing legal responsibility for discharges at a site to benefit from the Good Samaritan protections; and (2) not allowing anyone to benefit from the Good Samaritan protections for activities other than remediation. The definition of "remediating party" has not been limited solely to governmental entities since there are many other persons likely to be willing to contribute to Good Samaritan clean-up initiatives. However, the definition is intended to broadly exclude those entities with prior involvement at the abandoned or inactive mine site where a remediation project is proposed, with the exception of those remediating parties who commenced a Good Samaritan cleanup prior to enactment of this provision. Additionally, the definition is intended to broadly exclude other entities related by concepts of ownership or control to those with prior involvement at the site. Without also excluding entities related by ownership or control, there is a risk that this new permit option could be misused to the benefit of a separate but related corporate entity that has legal responsibility for a discharge from a site. While providing appropriate safeguards, it is also the Committee's intent that the exclusionary language in the definition be implemented by the Environmental Protection Agency with a measure of common sense and an eye on the policy goals noted above. The Committee intends that the "ownership or control" language be implemented in a practical, reasonable manner. The Committee does not anticipate or intend that implementation of this provision would require the development of an elaborate data base such as that developed to implement the Applicant Violator System that is based upon similar language in the Surface Mining Control and Reclamation Act. Rather, a potential remediating party should be required to provide information that is reasonably available to that entity regarding any corporate relationships with those who have "directly benefitted from or directly or indirectly participated in any mining operation" at the site. EPA should rely on this information unless it is obviously incomplete or inconsistent with other available information, such as that which may be provided by the public in the permit review process. The Committee also notes that it does not intend the "ownership or control" language to exclude entities related to other excluded entities solely through the presence of common officers or directors. The focus instead should be on structural and organizational relationships that evidence majority ownership or actual control. Another important issue in developing this bill is clarifying the appropriate federal, state and tribal roles in issuing a Good Samaritan permit. Because states may often be involved in the Good Samaritan cleanup as a remediating party, the new statutory language provides that Good Samaritan permits can only be issued by the Administrator. However, because entities other than states may act as remediating parties, it is also important to clarify the states' and tribal roles in this process. Paragraph (1) states that "...the Administrator, with the concurrence of the applicable State or Indian tribe, may issue a permit to a remediating party under this section..." By "concurrence," the Committee means that a permit shall not be issued or modified unless the EPA Administrator and the applicable State, and if appropriate, the applicable Indian Tribe have agreed to all terms specified in the permit. Pursuant to 401, the State or Indian Tribe shall have the authority to reject any permit endorsed by the EPA Administrator if the permit is contrary to State or Indian Tribe statutes, regulation, and/or policies. In the development of this provision, some states advocated that Good Samaritans should be shielded from citizen suits upon issuance of a permit. These states argue that without such a shield, Good Samaritans could potentially be subject to citizen suits for a broad range of liability issues, including liability for any discharges from the site. Broad potential for citizen suits during the implementation of a Good Samaritan permit, they argue, creates uncertainty about a Good Samaritan's liabilities and will act as a strong disincentive to Good Samaritans to pursue cleanups. The Committee concludes that a Good Samaritan permit issued under the provisions of this bill should be subject to the same enforcement as other permits issued under 402. The Committee further concludes that, as applied to the Good Samaritan provision, 505 limits citizen suits to enforcement of the "permit or conditions thereof" (or any "order issued by the Administrator or a State with respect to such [permit.]") A remediating party would not be subject to liability (through a citizen suit or EPA enforcement) for discharges that are the subject of a Good Samaritan permit so long as the remediating party is in compliance with that permit. Prior to enactment of this provision, Section 319 funds were utilized for a number of projects remediating inactive and abandoned mined lands. To assure that 319 funds will continue to be available for such cleanup projects, paragraph 8 specifically authorizes that 319 funds may be used for projects subject to Good Samaritan permits. The Committee does not intend Paragraph 8 to change the current 319 allocation formula or a state's prioritization of projects under a state nonpoint source management program. |
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Page last updated 10/26/1999 |