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[Senate Report 109-351]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 645
109th Congress                                                   Report
                                 SENATE
 2d Session                                                     109-351

======================================================================

 
 TO PROMOTE REMEDIATION OF INACTIVE AND ABANDONED MINES, AND FOR OTHER 
                                PURPOSES

                                _______
                                

               September 27, 2006.--Ordered to be printed

                                _______
                                

    Mr. Inhofe, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 1848]

    The Committee on Environment and Public Works, to which was 
referred a bill (S. 1848) to promote remediation of inactive 
and abandoned mines, and for other purposes, having considered 
the same, reports favorably thereon and recommends that the 
bill, as amended, do pass.

                    GENERAL STATEMENT AND BACKGROUND

    It is estimated that there are as many as 500,000 abandoned 
hardrock mines throughout the United States. While the Western 
Governors Association estimates that 80 percent of these sites 
do not pose any environmental or safety concerns,\1\ thousands 
of them have acid mine drainage (AMD) which contains pollutants 
like mercury and lead that have polluted waters in the affected 
states, or are otherwise polluting air, soils and/or 
groundwater. Cleaning-up pollution stemming from abandoned 
mines should be a priority. The EPA estimates that thousands of 
stream miles have been impacted by acid mine drainage which may 
include heavy metals such as lead, copper, zinc, arsenic, 
mercury, and cadmium.\2\ The former U.S. Bureau of Mines 
estimated that 12,000 stream miles and 180,000 acres of lakes 
in the West have been impacted by acid mine drainage.\3\
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    \1\ Western Governors' Association and National Mining Association, 
Cleaning Up Abandoned Mines; A Western Partnership; page 6. 1998.
    \2\ EPA letter responding to questions at June 14, 2006 EPW hearing 
``Oversight Hearing to Consider Whether Potential Liability Deters 
Abandoned Hard Rock Mine Clean-Up.'' July 14, 2006.
    \3\ Ibid.
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    Senator Ken Salazar said on the floor of the Senate when he 
introduced the bill, ``The Western United States is pockmarked 
with old mines and mining residues, and many of these sites 
continuously pollute the water, the land, and the air. Our 
rivers and streams suffer particularly from this type of 
pollution. In many cases, no one alive is legally responsible 
for cleaning these sites. In other cases, those who are legally 
responsible lack the money or other resources necessary to 
clean them up, and the pollution continues.'' \4\
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    \4\ Floor Statement (Sen. Salazar) upon introduction of S. 1848 
(October 6, 2005).
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    The Center for the American West in its report, ``Cleaning 
Up Abandoned Hardrock Mines in the West,'' described one aspect 
of the problem:

    The vegetation along the stream or river thins out or even 
disappears altogether. Part of the streambed displays unnatural 
shades of red and orange that defy the ideal of a clear-
running, sparkling Western stream. You may have a vague notion 
that those gaudy colors come from some kind of iron deposit. 
But what you are seeing is a symptom of a grave environmental 
disease: the toxic and acidic discharges from long-abandoned 
hardrock mines, a witch's brew that destroys aquatic life and 
pollutes waterways wherever it flows. This environmental 
ailment goes by the name of ``acid mine drainage.'' \5\
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    \5\ ``Cleaning Up Abandoned Hardrock Mines in the West, Prospecting 
for a Better Future,'' Center for the American West, page 1. 2005.

    These mines are for the most part legacy mines, abandoned 
long ago before modern environmental laws were enacted. As 
Senator Wayne Allard explained at an Environment and Public 
Works Committee hearing, ``A [typical] mining claim in Colorado 
* * * is a relatively small parcel of land, 600 feet by 1,500 
feet long. This dates back to the early silver and gold days of 
Colorado when silver and gold was very profitable in the State, 
and we had many prospectors come to Colorado and file claims. 
They would * * * start a mine, they would hit a small vein, and 
then maybe it wasn't financially practical to continue with 
it.'' According to Senator Allard, these claims would then be 
abandoned and have been left untouched ever since.\6\
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    \6\ Testimony of Senator Wayne Allard. Senate Committee on 
Environment and Public Works; Oversight Hearing to Consider Whether 
Potential Liability Deters Abandoned Hard Rock Mine Clean-Up. June 14, 
2006.
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    Because these sites do not have an identifiable and 
financially viable owner or operator, their cleanup most likely 
falls to the government--or the pollution continues unabated 
because state and federal resources are limited. Sometimes, 
though, ``Good Samaritans,'' volunteers who have no connection 
to the mining activity and no liability for the cleanup are 
interested in voluntarily restoring the body of water affected 
by pollution from the site.
    Good Samaritans may be nonprofit groups, municipalities, 
States, Tribes, or private corporations interested in restoring 
these sites. However, concern about liability under the 
nation's environmental laws has prevented these potential Good 
Samaritans from moving forward to remediate these legacy mines. 
The nation's environmental laws have provided benefits to our 
society that one cannot begin tocalculate. But in this instance 
they also have had an unforeseen consequence that may be having the 
opposite effect on the environment.
    Senator Salazar said during testimony in support of his 
bill, ``[I]ronically, the draconian liability schemes under 
CERCLA and the Clean Water Act deter would-be volunteers, or 
``Good Samaritans,'' from getting near those sites for fear of 
unlimited liability. Even with a solid, sensible plan to clean 
up a mine site, Good Samaritans assume massive liabilities 
under the Clean Water Act and CERCLA, in addition to state and 
local laws. These liabilities dissuade efforts to erase the 
environmental legacy of hard rock mining.''
    John Whitaker, President Nixon's Undersecretary for the 
Environment noted, ``We did not envision at the time that the 
day would come when the zero discharge provision [of the Clean 
Water Act] would prevent Good Samaritans from cleaning up acid 
mine drainage or when the onerous and costly federal permit 
requirements would snuff out any economic incentive to curb the 
acid mine drainage problem associated with abandoned mines.'' 
\7\
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    \7\ Center for the American West, page 23.
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    The National Association of Clean Water Agencies stated in 
a letter to the Committee that ``[Good Samaritan legislation] 
is important to interested stakeholders, including publicly 
owned treatment works (POTWs) who want to prevent further 
degradation of and help to improve the quality of waters 
impaired by runoff from abandoned mines.'' \8\ Further, at the 
June 14, 2006 hearing, John Gioa, the County Supervisor of 
Costa Contra County explained that the County had received a 
grant to remediate an abandoned mine that is leaching mercury 
into a reservoir owned by the County. However, concern about 
liability from both Superfund and the Clean Water Act forced 
the County to turn down the grant and postpone any plans to 
remediate the mine.\9\
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    \8\ Letter to Senator James M. Inhofe from the National Association 
of Clean Water Agencies. June 19, 2006.
    \9\ Statement of John Gioa, Committee on Environment and Public 
Works. June 12, 2006.
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    In a letter to the Committee on Environment and Public 
Works, Trout Unlimited, a conservation group involved in the 
cleanup of several abandoned mines, stated ``[an] impediment to 
making progress on the ground is the lack of a clear permitting 
process that allows for would-be Good Samaritans to initiate 
cleanups. The [Superfund law] and the Clean Water Act are 
outstanding tools for holding polluters and other potentially 
responsible parties accountable for their actions and for 
preventing water pollution. But on many of the sites where we 
work, there is not potentially responsible party, or the area 
is not high enough of a priority to warrant federal funding or 
enforcement actions. On these sites, there is often no party 
available as a target for an enforcement action, and the simple 
fact is that there is absolutely no prospect of any future 
enforcement action to drive clean-up.'' \10\
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    \10\ Letter to Senator James M. Inhofe from Chris Wood of Trout 
Unlimited. June 13, 2006.
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    The Committee believes that to incentivize voluntary 
cleanups of such sites, it is necessary to establish a new 
permit program pursuant to which EPA (or a delegated State or 
Tribe) may issue a permit to a Good Samaritan that may, on a 
case by case basis, waive or relax the regulatory, permitting 
and/or liability provisions that might otherwise be triggered 
under CERCLA, the Clean Water Act and several other laws and 
that would dissuade a Good Samaritan from taking steps to 
improve that environment at and in the vicinity of the mine 
site.
    An example of a case where EPA has undertaken a clean-up of 
this type with a non-responsible party is the clean up of four 
sites located on the North Fork of the American Fork River, in 
American Fork Canyon, Utah County, Utah. Trout Unlimited (TU) 
entered into an Administrative Order on Consent (AOC) under 
CERCLA in order to accomplish a conduct a short-term removal 
action at an abandoned mine site in Utah. An AOC is an 
enforcement tool used by EPA to bring those who violate the 
nation's environmental laws into compliance. This innovative 
agreement required TU to enter into the AOC even though it was 
acting as a volunteer with no liability whatsoever for cleanup 
of the abandoned mine.
    The AOC provided TU with protection against CERCLA 
liability to the federal government as well as provided TU with 
protection from any future liability to potentially responsible 
parties for contributions under CERCLA. The AOC included 
protection from future EPA action based on unknown releases 
because the project was relatively small in comparison to 
typical violations being addressed by an AOC.
    While some have argued that Trout Unlimited's experience 
shows that EPA already has the administrative power under 
CERCLA to address the liability concerns of potential Good 
Samaritans, the TU AOC involved circumstances that will not 
necessarily be applicable to the vast majority of inactive and 
abandoned mine sites that are polluting the environment. 
Importantly, the site in Utah that Trout Unlimited has 
remediated did not involve discharges into a navigable 
waterway.
    Many mine sites that a Good Samaritan would seek to 
remediate will involve a discharge into a navigable water. An 
AOC under CERCLA, such as TU's, would not eliminate the 
requirements for such sites under the Clean Water Act to meet 
stringent water quality standards or any applicable 
requirements under RCRA or TSCA. Because TU AOC addressed only 
liability under CERCLA, it may not be an effective model for 
sites with water quality concerns. Moreover, the TU AOC 
requires TU to comply with the many procedural and substantive 
requirements contained in the CERCLA National Contingency 
Plan--which is required in any AOC negotiated pursuant to 
CERCLA. While compliance with these requirements may not be 
unduly burdensome in the case of a short-term removal action 
(such as that undertaken by TU at the Utah site in question), 
this would not necessarily be the case with the many 
requirements that would apply with a GoodSamaritan remediation 
of a complex site. Although Section 113 of CERCLA provides protection 
for a party that ``has resolved its liability to the United States or a 
State in an administrative or judicially approved settlement'' from 
``claims for contribution regarding matters addressed in the 
settlement,'' it is unclear that such ``contribution protection'' would 
protect a future Good Samaritan that negotiates an AOC--from suits by 
States, Tribes, and other non-PRPs (such as innocent purchasers or bona 
fide prospective purchasers of the site) under Section 107 of CERCLA. 
Potential Good Samaritans should have certainty from liability under 
applicable federal statutes.
    The AOC negotiated with Trout Unlimited, which involved 
only short-term removal action, took over fourteen months to 
negotiate. In response to questions concerning the time 
required to negotiate an AOC posed to the EPA at the 
Committee's hearing on this topic, the Agency stated, ``* * * 
The TU AOC is one of the first times that an administrative 
order on consent has been used with a non-liable party that is 
not also a bona fide prospective purchaser. Therefore, a number 
of legal and policy issues of first impression had to be fully 
considered and decided.'' Moreover, the federal government made 
clear in the AOC that because of the NGO status of TU and the 
limited nature of the response action, the AOC ``is not 
intended to serve as a model for any other administrative order 
or agreement''.\11\ Thus, while the CERCLA AOC is certainly an 
option to be pursued, as EPA Administrator Johnson explained 
during the June 2006 Committee on Environment and Public Works 
(EPW) hearing, ``The value of legislation is that it provides 
legal certainty; it provides a streamlined permitting process; 
and it also ensures inclusive stakeholder involvement.''
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    \11\ Administrative Order on Consent for Removal Action between EPA 
and Trout Unlimited, page 3. September 2005.
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    Senator Salazar stated in testimony before the June 2006 
EPW hearing that ``most people would be afraid to touch these 
sites because of CERCLA liability that comes attached to [the 
cleanup].''
    Other Good Samaritans in addition to municipalities and 
nonprofit organizations include mining companies. Mining 
companies know mines better than any other entity. A successful 
Good Samaritan program relies upon capturing their knowledge 
and resources. There are simply too many abandoned mines to 
discount any nonliable, willing Good Samaritan. In its 1999 
report, ``Hardrock Mining on Federal Lands,'' the National 
Research Council of the National Academy of Sciences 
recommended ``Existing environmental laws and regulations 
should be modified to allow and promote the cleanup of 
abandoned mine sites in or adjacent to new mine areas without 
causing the mine operators to incur additional environmental 
liabilities.'' \12\
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    \12\ National Academy of Sciences; ``Hardrock Mining on Federal 
Lands.'' 1999. page 104.
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    Further, the NAS report explains the situation many mining 
companies encounter today in which they have to mine around 
existing abandoned mines to avoid liability rather than reusing 
and remediating those older mine sites:

    Concern over legal liabilities or the ability to meet 
regulatory standards leads mine operators to design around 
older mined areas and pre-existing discharges. In many cases, 
however, reclamation of previously mined areas would be a 
reasonable approach for combining construction of the new mine 
with improvement of environmental problems caused by earlier 
mining. For example, existing pits might be appropriate places 
for waste rock disposal; construction of tailings facilities 
might present opportunities to stabilize or reclaim previous 
disposal sites; or replacement wetlands sties might be located 
to provide some treatment for existing poor-quality discharges. 
Incentives might be needed to assure that appropriate 
opportunities for reclamation and improvement of environmental 
impacts are not missed.\13\
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    \13\ Ibid., 105.

    It further follows that mining companies may seek to remove 
tailings and abandoned mined ores to extract from them whatever 
marketable ore may remain and then dispose of the wastes from 
such activities in an environmentally-sound manner. As noted by 
the Center of the American West's report, ``Some kind of profit 
incentive could dramatically accelerate the process of cleaning 
up abandoned mines. Private enterprise has an energy and drive 
that could have a very positive effect. Mining companies, after 
all, know how to work the sites * * * Why exclude this 
expertise from the effort?'' \14\
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    \14\ ``Cleaning Up Abandoned Hardrock Mines in the West,'' page 25.
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    Different versions of Good Samaritan legislation has been 
introduced in three of the past four Congresses and both the 
current and previous Administrations noted the need for it. As 
Charles Fox, President Clinton's Assistant Administrator for 
Water testified in 2000 on Senator Max Baucus' Good Samaritan 
legislation: ``Unfortunately, there are limitations under the 
CWA that often hamper remediation and restoration activities at 
abandoned mine sites. In particular, the permitting 
requirements under Section 402 of the CWA require that the 
permittee meet all of the requirements and effluent discharge 
limits set out in their discharge permit. These discharge 
limits include water quality standards that have been 
established for the body of water into which the treated 
effluent is discharged. In addition, these requirements mean 
anyone conducting reclamation or remediation at an abandoned 
mine site may become liable for any continuing discharges from 
that site.'' \15\
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    \15\ Testimony of Charles Fox, Senate Subcommittee on Fisheries, 
Wildlife and Water. ``Hearing to examine S. 1787, the Good Samaritan 
Abandoned or Inactive Mine Waste Remediation Act''.
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    Liability concerns have proven to be a detriment to the 
cleanup of abandoned and inactive hardrock mines. The National 
Academy of Sciences summed up the objectives of Good Samaritan 
legislation in its 1999 report: ``The objective of changes in 
laws and regulations would be to recognize that environmental 
improvement is worth pursuing at abandoned sites and to limit 
the liability incurred by the cleanup entity.'' \16\
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    \16\ National Academy of Sciences, page 106.
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                      SECTION-BY-SECTION ANALYSIS

Sec. 1. Short title

    ``The Cleanup of Inactive and Abandoned Mines Act.''

Sec. 2. Findings and purposes

Sec. 3. Remediation of inactive or abandoned mines by Good Samaritans

            Summary
    Section (3)(a) defines several terms used throughout the 
bill: Administrator, Cooperating Agency, Environmental Law, 
Good Samaritan (Good Sam), Historic Mine Residue, Inactive or 
Abandoned Mine Site, Indian Tribe, Permitting Authority and 
Person.
            Discussion
    This section defines the Administrator as the Administrator 
of the Environmental Protection Agency and a Cooperating Agency 
as a Federal, State, tribal or local agency or other person 
that is authorized to participate in the issuing of a permit 
under this section and chooses to participate. The term 
Cooperating Agency does not include the Administrator.
    The term environmental law encompasses Toxic Substances 
Control Act (TSCA), the Federal Water Pollution Control Act 
(the Clean Water Act), the Solid Waste Disposal Act (RCRA), 
Comprehensive Environmental Response, Compensation, and 
Liability Act (Superfund), applicable environmental laws of a 
State or Indian Tribe and applicable environmental ordinances 
of a political subdivision of State or Indian Tribe. Pursuant 
to Section 3(f) of the Act, the permit issuer (either EPA or a 
delegated State or Tribe) is authorized to issue a permit 
allowing a Good Samaritan to remediate, in whole or in part, an 
inactive or abandoned mine site that is polluting the 
environment. Pursuant to Section 3(g), the permit issuer can 
(on a case-by-case basis) waive or relax the regulatory, 
permitting, and/or liability provisions that would otherwise 
apply under one or more provisions of any of the above-listed 
environmental laws. However, pursuant to Section 3(g), the 
permit issuer is not authorized to relieve the permittee of the 
obligation to comply with TSCA or RCRA with respect to the off-
site disposal of any waste or material removed from the 
inactive or abandoned mine site.
    The four laws listed as environmental laws under the Act 
are laws which potential Good Samaritans have raised as 
containing regulatory, permitting, and/or liability provisions 
that, if applicable to all Good Samaritan projects would 
dissuade Good Samaritans from acting. Under the Clean Water Act 
(CWA), for instance, a Good Samaritan who begins to clean up a 
mine site would need a National Pollutant Discharge Elimination 
System (NPDES) permit under Section 402(a) of the Act for any 
discharges from the site to a water of the United States. Such 
a permit also would require that the discharge be treated, or 
otherwise managed in perpetuity, so that it will meet all 
applicable technology based standards and so that the discharge 
does not result in an exceedence of applicable water quality 
standards. Given resource constraints, many of those seeking to 
reduce harmful discharges from one of these abandoned sites may 
not be able to, or may not be willing to expend the resources 
needed to, fully restore the waterbody to meet all CWA 
standards or to perpetually treat all discharges from the site, 
although a Good Samaritan may be willing to undertake certain 
activities that could positively affect the quality of the 
water. Once NPDES permit requirements are triggered, the Good 
Samaritan assumes liability under the statute for all existing 
and future discharges.\17\
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    \17\ Center for American West. Page 20.
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    Superfund has also been raised as a statute about which 
potential Good Samaritans are equally concerned.\18\ In 
testimony before the Environment and Public Works Committee, 
John Goia, County Supervisor for Costra Contra County in 
California stated, ``There is also liability exposure to the 
County under the Federal Comprehensive Environmental Response, 
Compensation and Liability Act (CERCLA). This law imposes 
liability for response costs upon owners and operators for the 
release of hazardous materials from a facility.'' \19\
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    \18\ Congressional Research Service. ``Superfund Overview and 
Selected Issues,'' page 2. May 17, 2006. RL33426
    \19\ Ibid, Gioa.
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    Under existing case law, a Good Samaritan who enters upon a 
site with which it was not previously associated and begins to 
conduct remediation activities may be held an ``operator'' of 
the site under section 107(a) of CERCLA, and be potentially 
liable to cleanup the entire site.\20\ In addition, under the 
case law, such a Good Samaritan, by moving about any 
``hazardous substance'' (such as heavy metals) already located 
on the site, could be liable as a ``transporter'' or an 
``arranger'' under Section 107(a) of CERCLA.\21\ Further, to 
the extent that a Good Samaritan acquires a possessory or 
ownership interest in the property in order to conduct the 
cleanup, it could be deemed an ``owner'' liable under CERCLA 
for releases from the site. If held liable, the Good Samaritan 
may not only be liable for the costs of cleaning up releases of 
hazardous substances it caused, but also for the clean-up of 
releases, or threatened releases, of any hazardous substances 
from the entire site--including those caused by the activities 
of historic mine owners or operators.
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    \20\ See, e.g., Kaiser Aluminum & Chemical Corp. v. Catellus 
Development Corp., 976 F.2d 1338, 1342 (9th Cir. 1992).
    \21\ See, e.g., Redwing Carriers, Inc. v. Saraland Apartments, 94 
F.3d 1489, 1511-1512 (11th Cir. 1996); Kaiser Aluminum & Chemical Corp. 
v. Catellus Development Corp., 976 F.2d at 1343.
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    CERCLA provides for some limitations on liability for 
owners of sites. First, the Small Business Liability Relief and 
Brownfields Revitalization Act of 2002 (Pub. L. No. 107-118) 
amended CERCLA to exempt ``bona fide prospective purchasers'' 
from liability as an owner or operator of the site, if it 
satisfies several conditions, including, but not limited to (1) 
conducting all appropriate inquiries into the previous 
ownership and uses of the property in accordance with generally 
accepted good commercial and customary standards and practices, 
and (2) purchasing the property after the Brownfields statute 
was enacted on January 11, 2002. However, this limitation on 
CERCLA liability does not protect a bona fide prospective 
purchaser from liability under other environmental statutes 
(e.g., the Clean Water Act), nor would the bona fide 
prospective purchaser be summarily protected from the 
substantive regulatory requirements that apply under such other 
federal laws. Most importantly, the Good Samaritan would have 
to purchase the property in order to qualify as a bona fide 
prospective purchaser and receive protection from CERCLA 
liability. However, most Good Samaritans wish only to clean up 
the mines, not own the property. For instance, TU did not 
purchase the property on which were the mines it remediated 
under its AOC. Indeed, in the case of sites located on public 
lands, the Good Samaritan would not be able to purchase the 
site, even if it wished to do so.
    Section 107(b) of CERCLA contains the ``innocent 
landowner'' defense, which provides protection for purchasers 
of sites who did not know or had no reason to know that 
hazardous substances had been disposed on, in or at the site 
(see section 101(35)(A)(i) of CERCLA). Good Samaritans would be 
taking cleanup actions at sites precisely because they are 
aware of the presence of hazardous substances there that need 
to be cleaned up. As such, they could not claim that they were 
unaware of the presence of hazardous substances at the time 
they undertook the remediation activities. Moreover, as in the 
case of the bona fide prospective purchaser, to satisfy the 
``innocent land owner'' defense, the Good Samaritan would 
actually have to own the land--which will not occur in the vast 
majority of Good Samaritan projects. The innocent landowner 
defense is a defense to CERCLA liability only, not the Clean 
Water Act.
    Some argue that one need not pass legislation including the 
Clean Water Act because the Administrator or On-Scene 
Coordinator can provide relief from CWA standards through 
Superfund in the case of a CERCLA remedial action. However, the 
Administrator or the OSC under the National Contingency Plan 
must generally ensure that the actions being taken under 
Superfund provide equivalent protections as those under 
Environmental statutes, for instance the Clean Water Act (See 
Section 121(d) of CERCLA). As such, the actual substantive 
standards imposed by the Clean Water Act could not generally be 
relaxed or waived. While the statute also allows EPA or the OSC 
to allow compliance with an equivalent standard of performance, 
this is a case-by-case determination that does not provide any 
certainty to a potential Good Samaritan considering taking on 
the remediation of an abandoned mine site. This person would 
have to commit time and resources into the process in the hopes 
that the Administrator or OSC makes the subjective 
determination that equivalent protection will be provided. 
Nonetheless, one goal of the Good Samaritan legislation is to 
provide EPA with the ability to relax the requirements of the 
Clean Water Act where this is deemed appropriate in order to 
allow an environmentally beneficial Good Samaritan project to 
go forward, even though the project might not result in 
compliance with all Clean Water Act substantive requirements or 
even ``equivalent'' protection. In many Good Samaritan 
projects, ``equivalent'' protection cannot, or will not given 
available resources, be obtained, but a lesser clean-up would 
still be desirable.
    Conversely, some argue that one does not need to address 
Superfund as long as liability under the Clean Water Act has 
been addressed, due to the federally permitted release 
exception in CERCLA Section 107(j). This exception applies to 
NDPES permitted point source discharges to surface waters. 
However, an inactive or abandoned mine site may have releases, 
or threatened releases, to several environmental media in 
addition to surface waters (including to groundwater, soils, 
and air). Moreover, it will likely have non-point source 
discharges to surface waters which are not covered by an NPDES 
permit. The ``federally permitted release'' exception in CERCLA 
Section 107(j) may not cover the costs of cleaning up releases 
to other environmental media or non-point discharges not 
covered by the NPDES permit. The Good Samaritan could be liable 
for all such costs should someone choose to sue the Good 
Samaritan. Even to obtain relief with respect to the permitted 
releases, the Good Samaritan would have to prove in Court that 
the costs of cleaning up the permitted releases are divisible 
from the costs of cleaning up the non-permitted releases. \22\
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    \22\ See, e.g., Lincoln Properties, Ltd. v. Higgins, 1993 U.S. 
Dist. LEXIS 1251, at * 76 (E.D. Cal. 1992); United States v. Shell Oil 
Co., 1992 U.S. Dist. LEXIS 3947, at * 18 (C.D. Cal. 1992); United 
States v. Iron Mountain Mines, 812 F. Supp. 1528, 1541 (E.D. Cal. 
1992); In re Acushnet River & New Bedford Harbor, 722 F. Supp. 893, 
896-97 (D. Mass. 1989).
---------------------------------------------------------------------------
    Moreover, the ``federally permitted release'' exception 
would only apply to releases that occur after a Clean Water Act 
permit has been issued. The person could be sued and would have 
to mount a vigorous defense against liability for pre-existing 
releases. Thus, liability for costs and damages due to pre-
permit discharges to surface waters--which would have been 
caused by historic owners and operators of the mine site--will 
remain. See Iron Mountain Mines, 812 F.Supp. at 1541. This 
individual would have certainty against liability if Good 
Samaritan legislation were enacted.
    Further, pursuant to longstanding EPA interpretation, if 
any effluent limit in an NPDES permit is exceeded, the 
``federally permitted release'' exception would cease to apply, 
because the discharge would not be in ``compliance with'' the 
permit, as required by the literal language of Section 101(10) 
of CERCLA.
    Finally, and most importantly, despite these protections 
that may exist under current law as indicated above, there is 
uncertainty for the Good Samaritan under existing processes and 
he may still be subject to legal actions. If the current 
processes provided the Administrator with sufficient ability to 
protect Good Samaritans and if those protections were certain, 
far more Good Samaritan projects would be currently ongoing. 
Given the lack of progress in restoring the nearly 100,000 
waters being affected by AMD under current authorities, 
legislation is clearly needed
    Concerns have also been expressed by potential Good 
Samaritans about the Toxic Substances Control Act (TSCA) and 
the Solid Waste Disposal Act (also known as RCRA).\23\ S. 1848 
allows a Good Sam to ask the permit-issuing authority to waive 
or relax some or all of the RCRA or TSCA permitting, 
regulatory, and liability provisions that might otherwise apply 
to a Good Samaritan project. During restoration and remediation 
of the site, a Good Samaritan might encounter materials that, 
if disturbed in any way, could constitute ``hazardous wastes'' 
under RCRA, principally because these materials may contain 
metals that were impurities in the ore that was historically 
mined at the Good Sam site. By disturbing these materials, the 
Good Sam could be considered the ``generator'' of a hazardous 
waste, subject to RCRA regulatory requirements. Moreover, by 
moving these materials from one location to another on the site 
(for instance, either to move them away from drainage paths so 
that they do not continue to be a source of pollution to 
surface water, or by otherwise placing them in a manner that is 
less potentially harmful to the environment), the Good 
Samaritan could be considered to be operating a ``storage'' or 
``disposal'' facility under RCRA, which would require the Good 
Samaritan to obtain a RCRA permit and to comply with many 
substantive design and operating standards that would be very 
onerous to a potential Good Samaritan and might dissuade the 
Good Samaritan from acting. Some abandoned sites may also have 
PCBs in soils and other materials situated on site due to 
spills from transformers that occurred in the past or possibly 
from transformers buried in old tailings piles. Pursuant to 
TSCA, if the PCB concentrations exceed 50 parts per million, 
the Good Sam might be required to comply with numerous 
substantive standards in order to take any action in connection 
with remediation of these soils, including merely moving them 
from one place on site to a different place on site where they 
are less likely to be impacted by surface water drainage.
---------------------------------------------------------------------------
    \23\ Testimony of Scott Lewis, Senate Committee on Environment and 
Public Works. ``A Hearing to Consider Whether Potential Liability 
Deters Abandoned Hard Rock Mine Clean-Up'', June 14, 2006.
---------------------------------------------------------------------------
    This bill would allow the permitting authority to relax or 
waive some or all of the requirements or potential liabilities 
under the Clean Water Act, CERCLA, TSCA and/or RCRA that would 
otherwise apply, in order to incentivize Good Samaritans to 
undertake partial remediations at such sites that will result 
in significant improvements to the environment.
    This section also includes in the definition of 
environmental statute certain state, local and tribal laws. As 
noted below, since State and relevant Tribes must sign off on 
any Good Sam permit that is issued (whether or not EPA has 
delegated administration of the Good Sam program to a State or 
Tribe), States or Tribes will in effect have veto authority 
over the issuance of any permits that would waive or relax the 
requirements of State or tribal law. Similarly, to the extent 
that any Good Sam permit would relax the requirements of local 
laws, the political jurisdiction in question would have to 
consent to the issuance of the permit (subparagraph (f)(1)(C)).
    Section (3)(a) defines a Good Samaritan as a person that 
had no role in the creation of the historic mine residue, had 
no role in creating the environmental pollution caused by the 
historic mine residue and is not liable under any Federal, 
State, tribal or local law for the remediation of the historic 
mine residue. This section ensures that a person who is liable 
under any Federal, state or local law for the historic mine 
residue cannot be a Good Samaritan. Therefore, anyone who is a 
potentially responsible person or otherwise liable under 
Superfund cannot be a Good Samaritan. Further, a person who may 
not be liable under a statute but had a role in creating the 
mine residue or the pollution caused by it cannot be a Good 
Samaritan. If a person had previously attempted to cleanup a 
site and perhaps made it worse, thus contributing to the 
environmental pollution, that person cannot be a Good 
Samaritan.
    This section defines Historic Mine Residue as mine residue 
or conditions at an inactive or abandoned mine site that 
pollute the environment. It includes, among other materials, 
previously mined ores and minerals that directly contribute to 
acid mine drainage or other pollution; equipment (or materials 
in equipment); wastes or materials from extractions, 
beneficiation, or other processing; and acidic or otherwise 
polluted flows in surface water or groundwater. Thus, the term 
would include, among other things, previously mined ores and 
minerals that are intermixed with on-site soils, or that are 
not protected from storm water run-on or potential dispersal by 
wind or the elements, or that are otherwise in the path of 
drainage flows.
    The term inactive or abandoned mine site/mine site means 
the site of a mine and associated facilities that were used for 
the production of mineral other than coal, have historic mine 
residue and are abandoned or inactive as of the date on which 
an application is submitted for a permit under this section.
    The term Indian Tribe has the meaning given the term in 
Section 4 of the Indian Self-Determination and Education 
Assistance Act.
    The term permitting authority means the Administrator or a 
State or Indian Tribe with a Good Samaritan program approved 
under subsection (d).
    The term person includes an individual, a firm, a 
corporation, an association, a partnership, a consortium, a 
joint venture, a commercial entity, a nonprofit organization, 
the Federal Government, a State, a political subdivision of a 
State, an interstate entity, a commission and an Indian Tribe.

(b) Permits

            Summary
    This section authorizes the permitting authority to issue 
permits to Good Samaritans.
            Discussion
    This section creates the permitting authority's power to 
issue permits to Good Samaritans.

(c)(1) Eligibility for Permits

            Summary
    This section outlines eligibility for permits. The 
principal purpose of the project must be the reduction of 
pollution caused by historic mine residue. The abandoned site 
may not be on CERCLA's National Priorities List. Further, the 
person obtaining the permit must be a Good Sam and the relevant 
State or Tribe must have in place a remediation program. 
Finally, the permit does not authorize any other activity than 
the remediation of the mine site, including without limitation, 
any mining or processing in addition to that required for the 
remediation of historic mine residue for the public good.
            Discussion
    This section lays out the requirements for a Good Samaritan 
project. It specifically states that any site on Superfund's 
National Priorities List cannot bethe subject of a Good 
Samaritan permit under the bill. Further, it requires the person 
receiving the permit to be Good Samaritan as that term is defined in 
the Act. It also authorizes only those activities that are directly 
required for the remediation of the mine site. A Good Samaritan cannot 
use the permit to extract new ores from a site for the sole purpose of 
mining those ores and recouping their value. The Good Samaritan may 
remove under a permit only those materials, including previously mined 
ores and minerals that are contributing to pollution at the site. To be 
eligible for a permit, the principal purpose of a proposed Good 
Samaritan project must be the reduction of pollution caused by historic 
mine residue at the inactive or abandoned mine site in question. The 
bill recognizes that inactive and abandoned hardrock mine sites can 
vary in the types of environmental problems that are posed, and that 
appropriate remediation measures to reduce pollution at such sites will 
vary from site to site. At some sites, or portions of sites, the permit 
issuer may authorize the physical removal of wastes and other mine 
residue and their disposal off-site. At other sites, it may be 
appropriate for the permit issuing authority to issue a permit that 
allows the Good Samaritan to divert stormwater or mine drainage away 
from wastes and other materials (including previously mined ores) that 
are highly mineralized. In this respect, inactive and abandoned mine 
lands tend to be located in highly mineralized areas--that is why 
mining occurred at those sites in the first place. Often, wastes and 
previously mined ores and minerals (such as ore stockpiles) abandoned 
by historic mining operations have quantities of a desired metal (such 
as gold, silver, zinc or copper) that can be recovered with modern 
mining technology. Allowing a Good Samaritan--particularly a mining 
company with operations nearby to the site--to process such materials 
and wastes as part of a Good Samaritan project that results in 
reduction of pollution will provide a financial incentive for mining 
companies to remediate such sites.

(d) State or Tribal Program

(d)(1) Program

            Summary
    Requires the state to have a program in place before the 
issuance of any Good Samaritan permits. This section further 
outlines the process by which a State or Tribe may seek 
delegation of the Good Samaritan program. The State or Tribe 
must submit an application that includes a complete and 
detailed description of the permit program as well as a 
statement from the appropriate state or tribal official that 
the laws of the State or Tribe provide adequate authority to 
carry out the proposed program. The Administrator must approve 
the application within 120 days of its receipt unless the 
Administrator determines that the application does not meet all 
necessary requirements outlined in (d)(2).
            Discussion
    Section (d)(1) defines the process by which a State or 
tribal government would seek delegation of the Good Samaritan 
program. Paul Frohardt, Administrator of the Colorado Water 
Quality Control Commission, testified on behalf of the Western 
Governors' Association, in support of delegating the program to 
the States. Forty-five states already manage the Clean Water 
Act (CWA) permitting requirements. The bill requires that 
states and Tribes prove their ability to both legally and 
capably administer the program. It lays out the application 
process. The application must contain a complete and detailed 
description of the proposed permitting program and a statement 
by the State Attorney General or an equivalent tribal official 
that the laws of the State or Indian Tribe provide adequate 
authority to carry out the program. The Administrator must 
approve the application no later than 120 days after it is 
received unless the Administrator determines that the State or 
Tribe did not meet the requirements of the program.

(d)(2) Requirements

            Summary
    The bill outlines several criteria a state or Tribe must 
meet in order to be delegated a Good Samaritan program. A State 
or Tribe must agree to participate in each project as a permit 
signatory, designate a lead State or Tribal agency to carry out 
permitting responsibilities, provide an opportunity for 
judicial review in State Court or by the appropriate tribal 
body of the final decision to approve or deny a permit 
application, possess the legal authority to implement a Good 
Sam program, agree to carry out the program in accordance with 
the Act except that the State or Tribe may be more protective 
of the environment, and provide for and encourage public 
participation in the permitting process. Further, the State or 
Tribe must agree that a Good Sam shall comply with the terms 
and conditions of the permit.
            Discussion
    This section requires a State prove that it not only has 
the capability of running such a program but that it will also 
fully meet the program's goals. By requiring the State to have 
the legal authority to carryout the program, the Act ensures 
States have the ability to perform the necessary tasks.

(d)(3) States and Indian Tribes Without Good Samaritan Programs

            Summary
    This section describes the actions a state or Tribe that is 
not seeking delegation must take in order for EPA to issue Good 
Samaritan permits in the State. The State must have in place a 
Good Samaritan program in order for EPA to issue Good Sam 
permits within the state or with respect to tribal lands. 
Through the program, a State, or Tribe must agree to 
participate as a permit signatory, in each project for which a 
permit for remediation in the State or on that tribal land 
isissued under this section, agree that a permittee shall comply all 
the terms and conditions of the permit, in lieu of compliance with any 
environmental laws, or provisions of environmental laws, that the 
permit issuer determines need not be complied with by the Good 
Samaritan, authorize State or Tribal agencies to participate in the 
permit process and designate a lead State or Tribal agency to be 
responsible for carrying out permitting responsibilities.
            Discussion
    This section is designed to protect the rights of states 
and Tribes who choose to leave the authority to issue Good 
Samaritan permits with the EPA. States or Tribes must have in 
place a program that facilitates their participation in the 
permitting process. Further, if a Good Samaritan chooses to 
seek liability relief from a state or Tribal environmental law, 
this section ensures state or Tribal participation in the 
permit approval process. Subsection (f) requires the State or 
Tribe concur with, and sign, the permit.

(e) Application for Permits

            Summary
    To obtain a permit to remediate an inactive or abandoned 
mine, the application must include the following: a description 
of the site, identification of any owner/operator or person 
with a legal right to exclude others from the mine site, a 
description of the relationship between the applicant and all 
persons that may be legally responsible, a certification that 
the applicant knows of no other person who is responsible for 
the clean up and has the resources to complete the remediation, 
a detailed description of the historic mine residue to be 
remediated, a description of the baseline conditions of the 
site; a description of the nature and scope of the remediation 
and engineering plans for the project, a description of the 
manner the remediation will assist the mine site in meeting, to 
the maximum extent reasonable and practical under the 
circumstances, water quality standards, an identification, 
based on an inquiry that is reasonable under the circumstances, 
of any significant adverse effects on the environment that 
could reasonably likely occur as a result of the Good Samaritan 
project if the permittee fails to properly implement the 
proposed remediation, a schedule, budget, financial assurances, 
a monitoring program following remediation, a plan for 
operation and maintenance of remediation, and a list of all 
environmental laws for which the applicant seeks protection.
            Discussion
    Section 3(e) of the bill sets forth the items that must be 
addressed in an application for a Good Samaritan permit. These 
items, to the extent applicable, must also be addressed in any 
application to the permitting authority for modification of an 
existing Good Samaritan permit. In some cases, the potential 
Good Samaritan may not, at the time of initial permit 
application, have complete knowledge of many of these matters, 
including, for instance, a detailed description of the mine 
residue to be remediated or a description of the baseline 
conditions at the site, and as a result may not be able to 
provide detailed engineering plans or detailed plans for 
remediating the site. Section 3(h)(3) of the bill takes account 
of this possibility by allowing the potential Good Samaritan to 
apply for a permit allowing a program of investigative 
sampling, so that the potential Good Samaritan can better 
characterize the site and develop an appropriate remediation 
plan, or, alternatively, decide not to pursue further 
remediation. Such a permit application, if it involves 
activities that do not pose risks to the environment, may be a 
candidate for a review under the more simple and rapid review 
process authorized in Section 3(f)(5) of the bill.
    Section 3(e)(10) would require the Good Samaritan to 
identify, based on an inquiry that is reasonable under the 
circumstances, any significant adverse effects on the 
environment that are reasonably likely to occur if the 
permittee fails to implement the proposed remediation in 
accordance with the engineering plans. This subsection 
presupposes a violation of the permit and as such requires the 
permit applicant to identify significant adverse risks of 
environmental harm that are reasonably likely to occur as a 
result of the Good Samaritan project itself, and then only if 
the Good Samaritan fails properly to perform the remediation in 
accordance with an approved work plan. It does not require the 
Good Samaritan to identify adverse effects on the environment 
that might occur if the Good Samaritan project were not 
undertaken there. Likewise, the permit applicant need not 
demonstrate (under Section 3(f)(1)(A)(iv)) that it has the 
financial resources to address adverse effects on the 
environment that might occur if no Good Samaritan project is 
undertaken at the site.

(f) Permit Issuance

            Summary
    Permits may be issued only if the Permitting Authority 
determines that the project will improve the environment to a 
significant degree, the project will meet applicable water 
quality standards to the maximum extent reasonable and 
practicable under the circumstances, the Good Samaritan has the 
financial resources to complete the work, the project meets the 
requirements of this bill, and for those states or tribes 
without delegation, the State or Tribe concurs with and signs 
the permit. Further, the permittee must have the financial and 
other resources to address any contingencies identified in the 
permit application pursuant to paragraph (3)(e)(0), except that 
the permitting authority may waive this requirement for 
projects with a budget of less than $300,000. The permit must 
also provide protection for the Good Samaritan under any 
environmental law listed in the permit and, if the project is 
to occur on Federal land, each State or Tribe within which the 
Federal land is located concurs with the permit.
    Moreover, if the permit provides protection for the 
permittee under a law of a political subdivision of a State or 
Tribe, the political subdivision must also concur with the 
issuance of, and sign, the permit.
    Further, this section provides that the issuance of a 
permit and the concurrence of the State, or Tribe shall be 
discretionary actions taken in the public interest and that no 
action of the administrator or any other person shall be 
required to comply with section 102 of the National 
Environmental Policy Act (NEPA) of 1969. It also establishes 
deadlines by which the permit must be issued or denied. If the 
Administrator fails to issue or deny a permit, it shall be 
considered denied. The permitting authority may use expedited 
procedures to approve a project that is less complex and poses 
less risk than other projects.
            Discussion
    In order to approve a permit application, the Permitting 
Authority must determine that the project will improve the 
environment. The project also must, to the maximum extent 
reasonable and practicable, meet existing water quality 
standands. The Good Samaritan is not required to meet otherwise 
applicable water quality standards, however, if, for example, 
to do so would require disproportionately more resources than a 
particular project warrants. The intent of the program is to 
improve the environment to a significant degree, taking into 
account all of the relevant circumstances. For instance, a Good 
Samaritan may take on only the task of moving a tailings pile 
out of the path of stormwater flow. This will result in an 
immediate and long-term improvement to the water body, even 
though it alone may not be enough to bring the water body into 
compliance with all applicable water quality standards. Without 
the actions of the Good Samaritan, the stormwater would 
continue to flow over the mine tailings, causing the discharge 
of heavy metals and other contaminants.
    For State or Tribes with delegated authority, the State or 
Tribe would necessarily approve of the inclusion of any State 
or Tribe statutes in the permit by issuing the permit. For non-
delegated State or Tribes, the relevant State or Tribe must 
sign the permit in order for the Administrator to issue it, 
thereby approving the inclusion of any State or Tribe statute 
in the permit.
    The Act also provides that Section 102 of the National 
Environmental Policy Act (NEPA), from which the requirement for 
both environmental assessments and environmental impact 
statements is derived, does not apply to the issuance of a Good 
Samaritan mine cleanup permit under the Act. NEPA's purpose is 
to inform a Federal decision-maker of the environmental 
consequences of the decision that he or she is about to make 
and to ensure that the public is involved in that process. The 
NEPA process is particularly useful where the underlying 
Federal action proposed is not environmental remediation.
    S. 1848 is an environmental remediation bill. Rather than 
seeking to alter the natural environment, it seeks to restore 
it. Further, the bill requires an extensive public process, 
including public notice on the receipt of the permit 
application, public comment on the draft permit and a public 
hearing in the vicinity of the mine site. The bill fulfills the 
underlying objective of NEPA, an environmental review with 
public input, without subjecting a volunteer to potential 
liability for cleanup and the expensive and time-consuming NEPA 
process.\24\ Finally, this section allows the permitting 
authority to develop an expedited process for projects that the 
permitting authority determines are less complex, or pose less 
risk. The expedited process can include a public hearing if an 
interested party requests one.
---------------------------------------------------------------------------
    \24\ Written Testimony of Michael Caskey. Senate Committee on 
Environmental and Public Works, ``Environmental Impacts of U.S. Natural 
Gas Production.'' March 24, 2004.
---------------------------------------------------------------------------

(g) Effect of Permits

            Summary
    A permit issued under this Act shall authorize a Good 
Samaritan to carry out activities described in the permit, 
authorize enforcement under this section, and provide liability 
protection for the activities authorized under the permit. The 
Good Samaritan is required to comply with the terms and 
conditions of a permit in lieu of compliance with the 
environmental laws, or portions of environmental laws, that are 
listed by the permit issuer in the permit as environmental laws 
with which the permittee need not comply. In addition, to the 
extent specified in the permit, the permit relieves the 
permittee from liability under the environmental laws. However, 
a permit issued pursuant to this Act can not relieve a 
permittee from any obligation to comply with applicable 
provisions of the Toxic Substances Control Act or the Solid 
Waste Disposal Act relating to off-site disposal of any waste 
or material removed from the applicable inactive or abandoned 
mine site.
            Discussion
    This section clarifies the protections given to the Good 
Samaritan under a permit issued pursuant to this Act. Whether, 
and the extent to which, the permittee will be relieved of the 
obligation to comply with, or will be subject to liability 
under, the environmental laws will be determined by the 
permitting authority on a case-by-case basis. The permittee 
must comply with the terms and conditions of the permit instead 
of the specific environmental statutes listed in the permit as 
being waived, and the permittee shall be relieved of any 
obligations and liabilities arising from those laws for actions 
taken under the permit. The permit, however, cannot relieve a 
Good Samaritan from compliance with the off-site disposal 
requirements of TSCA or RCRA. It is the Committee's intent that 
any hazardous materials located at an abandoned or inactive 
mine site that are removed from that site shall be disposed of 
in accordance with all applicable TSCA and RCRA 
requirements.Nothing in this Act shall be construed as providing 
liability relief from these off-site requirements.

(h) Content of Permits

            Summary
    (h)(1) In General.--A permit must contain a detailed 
description of the proposed work plan, a specific list of the 
environmental laws under which liability protection is provided 
and which need not be complied with by the permittee, a 
provision stating that the Good Sam is responsible for securing 
all authorizations, licenses and permits required under 
applicable law other than those that would otherwise be 
required under the laws whose provisions are waived in the Good 
Samaritan permit, and any other terms determined appropriate by 
the permitting authority.
    (h)(2) Force Majeure.--The permit may include, at the 
request of the Good Sam, a provision outlining responsibilities 
of the Good Sam in the event of an Act of God or other 
unforeseen circumstance.
    (h)(3) Investigative Sampling.--A permit may identify an 
appropriate program of investigative sampling to be completed 
prior to remediation. In the event that investigative sampling 
is authorized, the permit may allow the Good Sam to decline 
further remediation to proceed based upon sampling results and 
authorizes the permit to be modified after the sampling is 
conducted.
    (h)(4) Timing.--Requires that work shall commence no later 
than 18 months after the date of issuance and continue until 
completed. If work is not begun within 18 months, the permit is 
terminated.
    Subsection (h) further requires the signature of the Good 
Sam and authorizes the transfer of a permit to a person that 
qualifies as a Good Sam and signs the permit. Finally, the 
Administrator may include additional requirements in a 
transferred permit.
            Discussion
    The permit must clearly state the obligations of the Good 
Samaritan and the terms for completing the project. It must 
include a technical work plan for the proposed remediation, a 
description of the engineering work and it must enumerate the 
specific environmental laws from which the Good Samaritan seeks 
liability protection. Further, it must include a statement that 
the permittee is responsible for complying with all other 
applicable environmental statutes and for securing all 
necessary licenses, permits and authorizations. It may include 
other terms and conditions as determined by the permitting 
authority.
    The permit may include, at the request of a Good Samaritan, 
a force majeure provision. For example, the AOC between EPA and 
Trout Unlimited contains a force majeure provision which 
outlines the obligations of Trout Unlimited should an 
unforeseen event occur, such as a major flood or other natural 
disaster. The exact terms of force majeure provision will be 
negotiated between the applicant and the permitting authority 
and may include time extensions as well as a definition of what 
types of unforeseen events would be covered by the provision.
    The permit may also identify an investigative sampling 
regime for the Good Samaritan. This provision allows the 
potential Good Samaritan to apply for a permit allowing a 
program of investigative sampling, so that the putative Good 
Samaritan can determine better the characteristics of the site 
and can develop an appropriate remediation plan or, 
alternatively, decide not to pursue further remediation. Such a 
permit application, if it involves activities that do not pose 
risks to the environment, could be a candidate for review under 
the more simple and rapid review process authorized in Section 
3(f)(5) of the bill. This would enable the Good Samaritan to do 
more intensive sampling than it may have done prior to 
submitting the permit application. If the Good Samaritan should 
find unexpected conditions that are beyond the Good Samaritan's 
ability or resources to address, the permit may be voided and 
the liability protections maintained, so that the Good 
Samaritan is not held liable for the sampling work.
    Work must begin within 18 months from the date of permit 
issuance but can be extended during adverse weather or other 
conditions specified in the permit. The permittee has legally 
acknowledged its obligations under the permit by signing it. 
The permit can be transferred to another person, but only if 
such person qualifies as a Good Samaritan, signs and agrees to 
be bound by the permit, and agrees to comply with any 
additional terms and conditions necessary to meet the goals of 
the Act.

(i) Role of the Permitting Authority

            Summary
    The Permitting Authority shall consult with prospective 
applicants, accept permit applications, coordinate and lead a 
review process, maintain records, provide an opportunity for 
cooperating agencies and the public to participate, issue 
permits, and enforce and carry out this section.
            Discussion
    The section identifies actions the permitting authority 
must carry out. In addition to accepting applications and 
leading the application review process, the permitting 
authority must maintain all records related to the permit and 
provide an opportunity for cooperating agencies and the public 
to participate in the permit process. A detailed public notice 
and comment requirement is explained in subsections (j), (k) 
and (l). The permitting authority is also responsible for 
issuing and enforcing permits.

(j) Cooperating Agencies

            Summary
    Notice of an application for a permit will be provided to 
the lead State or Tribal agency, local government, each federal 
and State or Tribal Agency that may have interest.
            Discussion
    If the permitting authority knows an application will be 
submitted, it must alert the lead State or tribal agency 
designated by the State, or Tribe, each local government 
located within radius of 75 miles of the mine site and each 
Federal, State, and tribal agency that may have an interest in 
the application. This section ensures that all governmental 
entities near the mine site will be given ample notice of a 
pending application, if possible. Because a Good Samaritan 
could seek liability protection from State, tribal and local 
ordinances, this advance notification is critical for these 
levels of government to have full participation in, and input 
into, the Good Samaritan program.

(k) State, Local and Tribal Communities

            Summary
    If the permitting authority receives an application for a 
Good Samaritan permit, the permitting authority shall, as soon 
as practicable, provide notice of the application to the lead 
State and tribal agencies, each local government located within 
75 miles of the project site and each Federal, State, and 
tribal agency that the permitting authority determines may have 
an interest in the application.
            Discussion
    If the permitting authority receives a permit application, 
it must alert notify the relevant state and tribal agencies, 
each local government located within radius of 75 miles of the 
mine site and each Federal, State, and tribal agency that may 
have an interest in the application. This section ensures that 
all governmental entities near the mine site will be given 
amble notice of a pending application. Because a Good Samaritan 
could seek liability protection from state, tribal and local 
ordinances, this advance notification is critical for these 
levels of government to have full participation in, and input 
into, the Good Samaritan program.

(l) Public Notice of Receipt of Applications

            Summary
    On receipt of a completed application, the permitting 
authority shall, no later than 30 days after receipt of the 
application, provide to the public a notice that describes the 
location of the mine site, the scope and nature of the proposed 
remediation and the name of the Good Samaritan applying for a 
permit to carry out the proposed remediation. The notice must 
also provide the public with a means of viewing or obtaining 
the application.
    Before the permit is issued, the permitting authority shall 
hold a public hearing in the vicinity of the mine site to be 
remediated. Not later than 30 days before the date of the 
hearing, the permitting authority shall provide the public with 
notice of the hearing and a draft permit. Finally, the 
permitting authority shall provide the applicant and the public 
with the opportunity to comment on the draft permit at the 
hearing and submit written comments to the permitting authority 
during the 30-day period following the hearing.
            Discussion
    Full public participation in the permitting process is 
critical to a successful Good Samaritan program. This section 
outlines the process by which the public is to be notified of 
an application, including the opportunity to view the 
application and related materials. Further, the public, 
including every municipality and tribal government within 75 
miles of the mine site, may participate in a public hearing on 
the draft permit. Finally, the public shall be given the 
opportunity to comment on the permit. The public will have the 
opportunity to comment on the assumptions used by the Good 
Samaritan in developing its proposal, the potential Good 
Samaritan's engineering and work plans, the need for the 
liability protections being sought by the Good Samaritan, and 
the appropriateness of any recovery of ores and minerals from 
the site. Further, local governments are given a prominent role 
in the permitting process and will be given advance notice of 
pending applications as soon as the permitting authority is 
made aware of one. The participation of the public and 
interested governments is an important element in the 
consensus-based permitting decisions contemplated by the bill.

(m) Monitoring

            Summary
    The permittee shall take such actions as determined by the 
Permitting Authority are necessary to ensure baseline 
monitoring, monitoring during the remediation and post-
remediation monitoring.
            Discussion
    This section allows the permitting authority to require 
monitoring during and after the remediation. A description of 
baseline conditions is a required element of the application 
process outlined in subsection (3(e)); however the permitting 
authority may require additional baseline monitoring. The 
Administrator may weigh the size and scope of the project, the 
risk to down gradient communities, and theoverall cost of the 
project against the need for additional information and make case-by-
case decisions on the degree of monitoring, if any, that is needed.

(n) Enforcement

            Summary
    Section 3(n) specifies the enforcement authorities under 
the bill. The permitting authority may bring a civil action 
(for injunctive relief or civil money penalties) for violation 
of a permit. Any person who violates a permit is subject to 
civil penalty of up to $10,000 a day for each day of the 
violation. Alternatively, EPA or a state may, on its own, issue 
administrative orders or impose administrative penalties.
            Discussion
    This section outlines the various enforcement tools 
available to the permitting authority to address permit 
violations by Good Samaritans. A person who violates a 
provision of the Good Samaritan permit is subject to these 
enforcement authorities, in lieu of enforcement authorities 
under environmental laws that have been specified in the permit 
pursuant to Section 3(g)(1)-(2) and (h)(1)(B). The Good 
Samaritan may be fined up to $10,000 per day for a violation of 
a Good Samaritan permit. Further, the permitting authority may 
use its existing administrative authorities or seek a judicial 
remedy. Courts are granted authority to issue injunctions, if a 
permit violation has occurred, to force compliance with the 
permit, to prevent violation of a permit or to force a work 
stoppage under the permit. The Court may, at a minimum, require 
that the permittee repair any damage to the environment caused 
by the permit violation and that the environment be restored to 
its condition prior to the violation of the permit. This 
section provides the permitting authority with full authority 
to use all of its available enforcement options to remedy a 
permit violation and restore the environment.

(o) Grant Eligibility

            Summary
    A remediation project conducted pursuant to this section 
shall be eligible for funding under section 319 of the Clean 
Water Act.
            Discussion
    This section would clarify federal policy that Section 319 
funds can be used to fund the cleanup of abandoned hardrock 
mines. The program has already funded projects in almost half 
of the States in the U.S. The projects include cleanups at 
Mosquito Creek, CO \25\ and Georges Creek, MD.\26\
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    \25\ http://www.epa.gov/nps/success/state/co_mos.htm
    \26\ http://www.epa.gov/nps/success/state/md.htm
---------------------------------------------------------------------------
    EPA's policy on the use of Section 319 is set forth in the 
Nonpoint Source Program and Grants Guidelines for States and 
Territories, 68 FR 60653, 60665 (Oct. 23, 2003). This language 
first appeared in EPA's guidelines published in May 1996, 
entitled ``Nonpoint Source Program and Grants Guidance for FY 
1996 and Future Years''. The Guidelines state, ``Abandoned mine 
land reclamation projects that are designed to restore water 
quality are eligible for Section 319 funding except where funds 
are used to implement specific requirements in a draft or final 
NPDES permit. For example, Section 319 funds cannot be used to 
build treatment systems required by an NDPES permit for an 
inactive mine, but they may be used to fund a variety of other 
remediation activities at the mine site.''
    Currently, EPA and the States do not issue permits for 
abandoned mine cleanups and therefore there is not a conflict 
with the guidance allowing Section 319 funding. However, 
projects permitted pursuant to this Act would now have a permit 
that could create some uncertainty as to whether they could 
continue to receive Section 319 funds. Subsection (o) ensures 
their continued eligibility.
    As noted by Dennis Ellis, Executive Director of Colorado's 
Department of Public Health and the Environment, ``To assure 
that Section 319 funds will continue to be available for such 
cleanup projects, any Good Samaritan proposal should include a 
provision clarifying that such funds may be used for projects 
subject to Good Samaritan permits.''

(p) Judicial review

            Summary
    A court may set aside or modify action of the Administrator 
issuing a permit only on clear and convincing evidence of abuse 
of discretion.
            Discussion
    Before a Good Samaritan permit may be issued, a true 
consensus must develop that the project is a good one. The 
Administrator and the State or Tribe involved both must be 
convinced that the project is in the public interest and that 
that project will improve the environment to a significant 
degree. These are discretionary conclusions. Both governments 
must sign the permit, signifying their agreement, or the permit 
does not issue. If the permittee is to receive protection from 
local environmental laws, as well, the local government must 
also sign the permit, signifying its agreement.
    Further, the bill encourages early public input in the 
project by requiring prompt notice of a permit application and 
an opportunity for public comment. The permitting authority is 
required to hold a public hearing in the vicinity of the mine 
site prior to issuance of the permit. At least 30 days before 
the hearing, the permitting authority must provide notice of 
the hearing and a draft permit.
    Given these rigorous public notice, comment and hearing 
provisions and the need for consensus-based permitting 
decisions, third-party litigation challenging the issuance of a 
Good Samaritan permit should be unnecessary. Moreover, the 
permitting authority has broad discretion to grant or deny a 
permit application and to specify the terms and conditions of 
the permit. The standard of judicial review contained in the 
bill, therefore, imposes a high burden of proof on the party 
challenging the issuance of a permit and is appropriately 
deferential to the exercise of agency discretion. Both elements 
of the standard of review are designed to discourage 
unnecessary and frivolous litigation. Such litigation, even if 
unmeritorious, is costly to defend, which itself would be a 
deterrent to expeditious cleanup of inactive and abandoned mine 
sites.
    As noted by Dennis Ellis, Executive Director of Colorado's 
Department of Public Health and the Environment, ``A Good 
Samaritan is a not a polluter. Rather, they are 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 Good Samaritans' actions, 
not on aggressive enforcement that creates risks to those that 
might otherwise undertake such projects.''

(q) Transfer of Permitting Authority

            Summary
    Not later than 120 days after the date on which a State or 
Indian Tribe has submitted an application to administer a Good 
Sam program, the Administrator shall suspend the issuance of 
Good Sam permits in the State or tribal area unless the 
Administrator determines that the application for permitting 
authority does not satisfy the requirements of this Act. The 
120 days can be extended by mutual agreement.
            Discussion
    This section requires the Administrator to cease issuing 
permits within a State or tribal area 120 days after a State or 
Tribe has submitted an application for delegation of the 
program. This is to ensure there is no overlap of 
responsibilities and that the State or Tribe has ample time to 
take over the permitting authorities from the Administrator.

(r) Notification of Administrator

            Summary
    Each State or Indian Tribe authorized to administer a Good 
Sam program shall submit to the Administrator a copy of each 
permit application and provide notice to the Administrator of 
each permit proposed to be issued by the State or Indian Tribe. 
The Administrator may object to a permit up to 90 days after 
being notified of the proposed permit by the State or Indian 
Tribe. The Administrator must provide an explanation for the 
objection.
            Discussion
    Subsection (r) provides the Administrator with a veto over 
permits issued by a State or Tribe. The State or Tribe must 
provide the Administrator with a copy of each permit 
application as well as each permit proposed to be issued, 
including modifications, transfers or terminations. No permit 
can be issued if the Administrator, no later than 90 days after 
receiving the proposed permit notification, objects in writing 
to the State or Tribe. The Administrator must determine that 
the permit would not be in accordance with the Act and provide 
reasons for the objection. The Administrator may waive his 
ability to veto the permit thus enabling the State or Tribe to 
issue the permit before the 90-day deadline afforded the 
Administrator for objecting to the permit.
    If the Administrator objects to a permit, the State or 
Tribe may request a public hearing on the objection. If no 
hearing is requested and if the State or Tribe fails to revise 
the permit within 90 days of receiving the Administrator's 
objection, or fails to resubmit the permit applications within 
30 days of a public hearing, the Administrator shall determine 
if the permit should be issued or denied. This section ensures 
a firm timeline for the permit issuance or denial to ensure 
that there is a date certain for the Good Sam.

(s) Withdrawal of Approval of State or Tribal Program and Return of 
        State or Tribal Program to Administrator

            Summary
    In General, each State or Tribal Good Samaritan program 
shall be administered in accordance with the Act. If the 
Administrator determines, after a public hearing, that a State 
or Indian Tribe is not administering the program in accordance 
with this Act, the Administrator shall notify the State or 
Tribe of its finding and failing appropriate corrective action 
within 90 days, withdraw the program. The Administrator shall 
not withdraw a program until the Administrator has notified the 
State or Tribe and makes available to the public, in writing, 
the reasons for the withdrawal.
            Discussion
    This section provides the Administrator with the authority 
to withdraw a State or Tribe's delegation if the Administrator 
finds that the program is not being administered pursuant to 
this Act.

(t) Federal Land Management Agencies

            Summary
    A Federal land management agency that provides 
authorization for, or participates in, a Good Sam project shall 
not be liable under environmental laws for the conduct or 
actions of a Good Sam.
            Discussion
    This section protects the Federal land management agency 
from liability if a Good Samaritan project occurs on Federal 
lands.

                 (u) Emergency Authority and Liability

            Summary
    Nothing in this section affects the authority of Federal, 
State, tribal or local agency to carry out any emergency 
authority, including an emergency authority provided under any 
environmental law listed in a permit. Further, except to the 
extent that a permit provides protection under an environmental 
law specified in the permit, nothing in this section or a 
permit issued under this section limits the liability of any 
person under any other provision of law.
            Discussion
    This section provides a savings clause which protects the 
authority of Federal, State, tribal or local agencies to use 
any emergency authorities, including but not limited to any 
emergency authority provided under any environmental law listed 
in the permit. It further limits the protections afforded to 
the Good Samaritan to only those laws specifically addressed in 
the permit issued pursuant to this Act.

(v) State and Tribal Reclamation Programs

            Summary
    No State, Indian Tribe or Other Good Samaritan shall be 
required to obtain a Good Sam permit to remediate an abandoned 
or inactive mine site for the conduct of reclamation work under 
a SMCRA approved State or tribal abandoned mine reclamation 
plan.
            Discussion
    The Surface Mining Control and Reclamation Act of 1977 
provides states with resources and authority to remediate 
coalmines. Once a state has remediated abandoned coalmines, the 
State may use funds under SMCRA to remediate abandoned hardrock 
mine sites consistent with an approved reclamation plan (33 
U.S.C. 1240(a)). States are afforded liability protection for 
mine sites remediated in accordance with their SMCRA approved 
plan. The Western Governors Association testified before the 
House of Representatives Committee on Transportation in support 
of clarifying the law such that nothing in S. 1848 is intended 
to preclude a State from addressing these sites under an 
approved SMCR program.\27\ States are concerned that they could 
be required to do these cleanups under Good Samaritan permits 
instead of under their already successful SMCRA program permit. 
This subsection clarifies that States can continue to remediate 
abandoned hardrock mining sites through their approved SMCRA 
programs without needing a Good Samaritan permit.
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     \27\ Ibid, Frohardt.
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(w) Termination of Authority

            Summary
    The Act shall terminate on September 30, 2016. However, the 
permitting authority may issue permits after September 30, 
2016, if the application for the permit was submitted not later 
than 180 days before that date; and was completed in accordance 
with subsection (e) no later than September 30, 2016. Any 
permit issued pursuant to this Act that is in effect after 
September 30, 2016, shall remain in effect after that date in 
accordance with the terms and conditions of the permit and this 
Act except that all work must be completed the later of 10 
years after the date of enactment or four years after the 
issuance of the permit.
            Discussion
    This section establishes a sunset for both the Act and work 
authorized by a Good Samaritan permit. The Act's authorization 
ends on September 30, 2016. Projects must be completed the 
later of ten years from the date of enactment or four years 
after the permit has been issued. Finally, this section 
provides an exception for those permit applications received 
180 days before September 30, 2016. The permits may still be 
issued and work may continue under those permits for up to four 
years after the date of issuance.

(x) Report to Congress

            Summary
    Not later than January 1, 2016, the Administrator shall 
submit a Report to the Committee on Environment and Public 
Works of the Senate and the Committeeson Transportation and 
Infrastructure, Energy and Commerce, and Resources of the House of 
Representatives. The report shall include a description of the number, 
types and objectives of permits issued pursuant to this Act and each 
site remediation project authorized by those permits. The report shall 
also include qualitative and quantitative data on the results achieved 
under the permits, a description of any problems encountered in 
administering the act and whether the problems can be addressed through 
administrative action. Finally, the report shall include a description 
of progress made in achieving the purposes of the Act and 
recommendations on whether the permit program should be continued 
including any suggested statutory modifications.
            Discussion
    This section requires the Administrator to submit a report 
to the various Congressional authorizing committees describing 
the projects that were permitted pursuant to this Act as well 
as recommendations for improvements to the program.

(y) Regulations

            Summary
    Provides the Administrator with the Authority to issue 
regulations to implement the Act and allows permits to be 
issued and projects to begin regardless of when or whether 
regulations are promulgated.
            Discussion
    This section requires the Administrator to issue 
regulations as the Administrator determines are necessary 
describing how to implement the Act. It authorizes the issuance 
of permits prior to the issuance of regulations.

                          LEGISLATIVE HISTORY

    On October 6, 2005, Senator Salazar and Senator Allard 
introduced S. 1848, ``The Cleanup of Inactive and Abandoned 
Mines Act.'' On June 14, 2006, the Committee held an oversight 
hearing to consider whether potential liability deters 
abandoned hard rock mine clean up.

                             ROLLCALL VOTES

    Senator Inhofe offered a complete substitute that was 
accepted. Senator Carper offered an amendment to modify a 
provision relating to injunctions. The amendment was accepted. 
Senator Carper offered an amendment to require completion of 
Good Sam projects within a certain timeframe. Senator Carper 
offered a second-degree amendment to modify the timeframe. The 
second degree and the underlying amendment were accepted. 
Senator Carper offered a third amendment to amend the bill's 
monitoring provisions. The amendment was accepted. Senator 
Carper offered a fourth amendment to require that certain 
applicants provide financial assurances. Senator Carper offered 
a second-degree amendment to his fourth amendment. Both the 
base amendment and the second degree were accepted. Senator 
Boxer offered a complete substitute amendment as modified that 
was defeated 7 to 11 with Senators Boxer, Jeffords, Lautenberg, 
Clinton, Lieberman, Obama and Chafee voting aye and Senators 
Inhofe, Warner, Bond, Voinovich, Thune, Murkowski, DeMint, 
Vitter, Isakson, Carper and Baucus voting nay.
    S. 1848 was then passed by voice vote.

                           REGULATORY IMPACT

    In compliance with Section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact of the bill. The bill does 
not create any additional regulatory burdens.

                          MANDATES ASSESSMENT

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the committee makes the following 
evaluation of the Federal mandates contained in the reported 
bill. S. 1848 imposes no Federal intergovernmental mandates on 
State, local or tribal governments.

                          COST OF LEGISLATION

    Due to time constraints the Congressional Budget Office 
estimate was not included in the report when received by the 
committee, it will appear in the Congressional Record at a 
later time.

                  ADDITIONAL VIEWS OF SENATOR JEFFORDS

    During my time in the Senate, I have been concerned about 
modernizing mining statutes to improve health and safety, and 
reduce the environmental impact of mining. As a result of 
several studies that reported abuse of current mining laws and 
the lack of modern environmental standards in the law, efforts 
to reform the General Mining Law of 1872 gained some momentum 
in the late 1980s and early 1990s. I was one of several 
cosponsors of S. 257, the Mineral Exploration and Development 
Act of 1993, introduced by Senator Dale Bumpers (D-AK), in the 
103rd Congress. The proposed legislation would have provided 
comprehensive reform of the General Mining Law of 1872. 
Included in the bill were provisions to impose a royalty on 
mineral production on federal lands, reclamation and bonding 
requirements, and an abandoned hardrock mine reclamation fund 
to reclaim abandoned hardrock mines. The House and Senate 
versions of the bill became deadlocked in conference and did 
not emerge as public law. Since that time, I have supported the 
passage of a provision in the annual Interior appropriations 
bill that imposed a moratorium on patents \1\--a practice that 
would give the mineral claimant title to the land and minerals.
---------------------------------------------------------------------------
    \1\ This effort began in FY 1995 with the Bumpers/Jeffords 
amendment number 2400 to H.R. 4602.
---------------------------------------------------------------------------
    In subsequent years, I have cosponsored legislative efforts 
that would have addressed the General Mining Law of 1872, such 
as the Elimination of Double Subsidies for the Hardrock Mining 
Industry Act in 1999 (S. 590) and 2001 (S. 115). Among other 
things, the bill would have established an Abandoned Mine 
Reclamation Trust Fund. As I said on June 14, 2006 in my 
statement for the Environment and Public Works Committee 
Oversight Hearing on Abandoned Hardrock Mine Cleanup, ``First, 
we need to fully fund the Superfund program so that the EPA has 
the ability to do its job and cleanup the contaminated toxic 
mining sites around the nation.''
    There is no question that cleaning up pollution stemming 
from abandoned mines should be a priority. It is estimated that 
there are as many as 500,000 abandoned hardrock mines 
throughout the United States.\2\ The EPA estimates that 
thousands of stream miles have been impacted by acid mine 
drainage which may include heavy metals such as lead, copper, 
zinc, arsenic, mercury, and cadmium.\3\ The former U.S. Bureau 
of Mines estimated that 12,000 stream miles and 180,000 acres 
of lakes in the West have been impacted by acid mine 
drainage.\4\ Currently, there are more than 80 abandoned mining 
sites on the National Priorities List. Many of these sites are 
categorized as mega-NPL sites,\5\ which are large, complex, and 
costly sites in which total cleanup costs are expected to equal 
or exceed $50 million.\6\ In fiscal year (FY) 2005, 
approximately half of the Superfund obligations for long-term, 
ongoing cleanup work were committed to just eleven of these 
sites.\7\ The EPA expects the situation to be the same this 
fiscal year.\8\ EPA funded mega-sites cleanup of abandoned 
mines has languished. In Vermont, there are three copper mines 
that have been on the NPL for years while little cleanup action 
has been taken. In 2004, the EPA's Office of Inspector General 
estimated that the potential cleanup costs nationwide could be 
as much as $24 billion.
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    \2\ Mineral Policy Center, ``The Last American Dinosaur * * *. The 
1872 Mining Law,'' finds 557,000 abandoned hardrock mines nationwide, 
1995.
    \3\ EPA letter responding to questions at June 14, 2006 EPW hearing 
on Good Samaritan legislation, July 14, 2006.
    \4\ Ibid.
    \5\ Environmental Protection Agency/Department of Energy Mine Waste 
Technology Program 2005 Annual Report, page 3.
    \6\ Superfund and Mining Megasites, National Research Council of 
the National Academies, December 2005, page 412.
    \7\ Statement of Susan Parker Bodine, Assistant Administrator, 
Office of Solid Waste and Emergency Response, U.S. EPA, before the 
Senate Subcommittee on Superfund and Waste Management, June 15, 2006.
    \8\ Ibid.
---------------------------------------------------------------------------
    If we had enacted the proposals for a trust fund in 1999 or 
2001, I believe that we would have already had 5 years of 
progress on cleaning up abandoned mines. We need to fully fund 
the Superfund program so that the EPA has the ability to do its 
job to cleanup the contaminated toxic mining sites around the 
nation. The Superfund program has successfully removed PCBs, 
arsenic, lead and other toxic wastes from almost 900 
communities. Yet, this Administration refuses to reauthorize 
the expired Superfund polluter-pays fees that were supported by 
Presidents Reagan, Bush and Clinton. As a result, the Superfund 
Trust Fund that once contained a surplus of $3.8 billion when 
the fees expired in 1995 is now essentially bankrupt and the 
burden on taxpayers to support it has increased by 300 
percent.\9\ Due to this Administration's failure to seek 
reinstatement of the Superfund fees, the Superfund program is 
limping along with about 40 percent fewer dollars in real terms 
than in 1987.\10\ Since 1987, annual Superfund appropriations 
have varied from a low of $1.1 billion in FY 1988 to a high of 
$1.6 billion in FYs 1991 and 1992.\11\ The program's FY 2005 
appropriations of $1.2 billion are the equivalent of $820 
million in constant 1987 dollars--a 40 percent decrease in 
purchasing power when compared with actual FY 1987 
appropriations of $1.4 billion.\12\
---------------------------------------------------------------------------
    \9\ Center for Health, Environment and Justice, ``25th Anniversary 
of Superfund, America's Safety Net in Crisis'' (2005).
    \10\ Statement of Katherine Probst, Senior Fellow, Resources for 
the Future, before the Senate Subcommittee on Superfund and Waste 
Management, June 15, 2006.
    \11\ Ibid.
    \12\ Ibid.
---------------------------------------------------------------------------
    The President's budget requests only $1.26 billion for 
Superfund cleanups in FY 2007. This level of funding would 
cleanup only 40 sites, down from an average of 87 sites a year 
cleaned up during the Clinton Administration. This funding 
level is grossly inadequate to protect human health and the 
environment and it will continue to shift the costs of these 
cleanups onto the taxpayers. Abandoned mines pose significant 
public safety and environmental hazards and are in desperate 
need of cleanup. Acid drainage from these mines damages 
watersheds and degrades water quality. Leaching of metals from 
relic tailings and other mine waste piles damages surrounding 
soil, ground water and surface water (creeks, streams, rivers). 
I strongly believe that Americans deserve clean soil and water. 
Nothing would be more effective in spurring cleanup and 
environmental improvement than a dedicated and reliable source 
of funding.
                                                      Jim Jeffords.

 ADDITIONAL VIEWS OF SENATORS BOXER, LIEBERMAN, LAUTENBERG, OBAMA AND 
                                CLINTON

    S. 1848, the Clean-Up of Inactive and Abandoned Mines Act, 
unnecessarily waives environmental protection statutes, putting 
human health and the environment at further risk from threats 
from abandoned mines. The answer to the environmental threat 
posed by abandoned mines is not to undermine the environmental 
standards that apply to the clean-ups. It is instead to fully 
utilize existing authority to relieve innocent parties from 
potential liability where appropriate and fully fund existing 
programs that support abandoned mine cleanups, including 
Superfund.

    Existing Authorities Can Expedite Clean-up and Ensure That the 
                        Environment Is Protected

    In 1980, when Congress enacted the Comprehensive 
Environmental Response, Compensation and Liability Act, 42 
U.S.C. Section 9601 et seq., (CERCLA), it provided agencies 
with broad authorities to limit liability and ensure 
flexibility when parties, including innocent parties, agree to 
undertake clean-up actions. In 2001, Congress expanded some of 
these authorities when it enacted the Small Business Relief and 
Brownfields Revitalization Act. In addition, the United States 
through the Department of Justice, has long been recognized to 
have broad settlement authorities which can be utilized to 
protect innocent parties from liability, when they agree to 
perform a clean-up. A brief summary of key existing authorities 
will highlight just how extensive the available liability 
protection is under current law. Every such authority is not 
listed here. The protections are far broader than suggested in 
the Majority views. These cleanup agreements can be 
memorialized in an Administrative Order on Consent. EPA should 
create a model order to expedite the process.
    Section 107(d) of CERCLA provides `` * * * no person shall 
be liable under this subchapter for costs or damages as a 
result of actions taken or omitted in the course of rendering 
care, assistance, or advice in accordance with the National 
Contingency Plan (``NCP'') or at the direction of an onscene 
coordinator appointed under such plan * * * '' This umbrella 
liability protection is one of the strongest available in 
statute. It can be applied to innocent parties who wish to 
perform a cleanup.
    It is worth noting that the NCP allows substantial 
flexibility when a party performs the kind of interim clean-up 
measures that an innocent party would most likely perform at an 
abandoned mine. When a party seeks to undertake an interim 
measure, rather than the final cleanup, it could be 
accomplished as a removal action under the NCP. Removal actions 
at a site can involve in some cases multi-million dollar, 
multi-year clean-ups. Removal actions may attain the applicable 
or relevant and appropriate requirements to the extent 
practicable considering the exigencies of the situation. 40 CFR 
415.
    It is also worth noting that pursuant to Section 121(e) of 
CERCLA, ``No Federal, State, or local permit shall be required 
for the portion of any removal or remedial action conducted 
entirely on-site * * * '' Accordingly, if an innocent party 
enters into an agreement with the United States to perform an 
interim clean-up at an abandoned mine, permitting requirements, 
including Clean Water Act permitting requirements are limited. 
This protection allows a party to reach agreement with EPA on a 
scope of work that includes flexible application of relevant 
standards, while at the same time receiving protection from 
permitting requirements and liability to the United States.
    The Brownfields law specifically provides additional 
liability protections for bonafide prospective purchasers and 
contemplates that mine scarred lands will be addressed under 
the Brownfields provisions. See CERCLA Section 101(39) and 
CERCLA Section 107(r). EPA may enter bonafide prospective 
operator agreements as well.
    The United States, as noted above has broad inherent or 
plenary settlement authorities, in addition to those provided 
in the CERCLA statute. Even the Section 122 settlement 
authorities in CERCLA allow discretion regarding compliance 
with the NCP. See Section 122(a). Section 113 also allows the 
United States to grant contribution protection, but clearly, it 
is not the sole basis for granting liability relief.
    Courts have repeatedly recognized the plenary authority of 
the United Sates to settle claims involving the United States. 
See e.g., Swift v. United States, 276 U.S. 311, 331-332. This 
plenary authority has been relied upon by the United States to 
provide liability protections and settle matters, such as the 
Good Samaritan Administrative Order on Consent reached with 
Trout Unlimited in December of 2005.
    Clearly, the tools exist in the law to formulate 
settlements that are protective of innocent parties who wish to 
clean-up an abandoned mine site. At the same time, 
environmental standards are clear but flexible, ensuring that 
the sites are not made worse despite a party's good intentions. 
The notion that the environmental laws stand in the way of 
environmental protection is a fallacy. The large number of 
organizations across the country who have raised serious 
concerns about the broad waivers of environmental laws and lack 
of standards, among other concerns, in S. 1848 makes clear that 
the notion that this bill is a step forward for environmental 
protection is unfounded. In fact, it presents a serious threat 
of taking environmental conditions backwards. It is worth 
noting that Mr. Goia of Contra Costa County, who testified at 
the hearing in the Environment and Public Works Committee on 
June 14, 2006 on this issue, indicated a strong interest in 
pursuing the administrative approach to addressing abandoned 
mines.
    Groups raising concerns about S. 1848 include, Sierra Club, 
Natural Resources Defense Council, Earthjustice, National 
Environmental Trust, National Wildlife Federation, EARTHWORKS, 
National Catholic Rural Life Conference, Clean Water Action, 
Friends of the Clearwater, Western Environmental Law Center, 
Silver Valley Community Resource Center, Northern Alaska 
Environmental Center, Siskiyou Project, Allied Fishing Groups, 
California Sportfishing Protection Alliance, California Striped 
Bass Association, California Water Impact Network, Coastkeeper 
Alliance, Committee to Save the Mokelumne, Butte Environmental 
Council, Deltakeeper Chapter of Baykeeper, Environmental Water 
Caucus, Friends of the River, Friends of the Trinity River, NCC 
Federation of Fly Fishers, Pacific Coast Federation of 
Fisherman's Association, Planning and Conservation League, San 
Joaquin Audubon, Southern California Watershed Alliance, 
Winnemem Wintu Tribe, Idaho Conservation League, Citizens for 
Victor, The Lands Council, Mining Impact Coalition of 
Wisconsin, Western Organization of Resource Councils, Earth 
Island Institute, Southeast Alaska Conservation Council, 
Alabama Rivers Alliance, Arroyo Seco Foundation, Coast Action 
Group, Environmental Law Society, Boalt Hall, Planning and 
Conservation League, Sierra Club, Rocky Mountain Chapter, 
Grassroots Coalition of Connecticut, Clean Water Network of 
Florida, Environment Florida, Florida Federation of Garden 
Clubs, Inc., American Bottom Conservancy, National Catholic 
Rural Life Conference, Kentucky Resources Council, Inc., 
Kentucky Waterways Alliance, Inc., Gulf Restoration Network, 
National Lawyers Guild Environmental Committee, Conservation 
VP, St. Louis Audubon Society, Fishing Outfitters Association 
of Montana, Western Nebraska Resources Council, New Hampshire 
Rivers Council, U.S. Environmental Watch, Amigos Bravos, 
Friends of the Wild Rivers, Bronx Greens, Citizens Campaign for 
the Environment, Great Lakes United, League of Women Voters of 
Westchester, Waterkeeper Alliance, Clean Water for North 
Carolina, Neuse River Foundation, Ohio Environmental Council, 
Ohio River Foundation, Rivers Unlimited Save the Illinois 
River, Inc., Northwest Environmental Defense Center, Tualatin 
Riverkeepers, Western Environmental Law Center, Clean Water 
Action, South Dakota Tennessee Clean Water Network, Lake 
Champlain Committee, Friends of the North Fork of the 
Shenandoah River, Friends of Milwaukee's Rivers, West Virginia 
Environmental Council, Wyoming Outdoor Council.
                                   Barbara Boxer.
                                   Frank R. Lautenberg.
                                   Barack Obama.
                                   Hillary Rodham Clinton.
                                   Joe Lieberman.

                        CHANGES IN EXISTING LAW

    Section 12 of rule XXVI of the Standing Rules of the Senate 
requires the committee to publish changes in existing law made 
by the bill as reported. Passage of this bill will make no 
changes to existing law.

                                  

```