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1Western Governors’ Association and National Mining Association, Cleaning Up Abandoned 

Mines; A Western Partnership; page 6. 1998. 

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. Cleaningup 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 


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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. 

4Floor Statement (Sen. Salazar) upon introduction of S. 1848 (October 6, 2005). 

5 ‘‘Cleaning Up Abandoned Hardrock Mines in the West, Prospecting for a Better Future,’’ Center for the American West, page 1. 2005. 6Testimony 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. 

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

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

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

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

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. 


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7 Center for the American West, page 23. 

8Letter to Senator James M. Inhofe from the National Association of Clean Water Agencies. 

June 19, 2006. 9Statement of John Gioa, Committee on Environment and Public Works. June 12, 2006. 

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 to calculate. 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

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

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 


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10Letter to Senator James M. Inhofe from Chris Wood of Trout Unlimited. June 13, 2006. 

the simple fact is that there is absolutely no prospect of any future 

enforcement action to drive clean-up.’’ 10

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 Good Samaritan 

remediation of a complex site. Although Section 113 of CERCLA 


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11 Administrative Order on Consent for Removal Action between EPA and Trout Unlimited, 

page 3. September 2005. 12 National Academy of Sciences; ‘‘Hardrock Mining on Federal Lands.’’ 1999. page 104. 

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 nonliable 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.’’

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

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 


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13 Ibid., 105. 14 ‘‘Cleaning Up Abandoned Hardrock Mines in the West,’’ page 25. 15Testimony 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’’. 16 National Academy of Sciences, page 106. 

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

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

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

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

SECTION-BY-SECTION ANALYSIS

Sec. 1. Short title 

‘‘The Cleanup of Inactive and Abandoned Mines Act.’’


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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 acVerDate Aug 31 2005 23:53 Oct 02, 2006 Jkt 049010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\SR351.XXX SR351

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17 Center for American West. Page 20. 18 Congressional Research Service. ‘‘Superfund Overview and Selected Issues,’’ page 2. May 17, 

2006. RL33426 19 Ibid, Gioa. 20See, e.g., Kaiser Aluminum & Chemical Corp. v. Catellus Development Corp., 976 F.2d 1338, 

1342 (9th Cir. 1992). 21See, 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. 

tivities 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

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

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. 

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 


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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 


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22See, 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). 23Testimony 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. 

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

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 potenVerDate Aug 31 2005 23:53 Oct 02, 2006 Jkt 049010 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 E:\HR\OC\SR351.XXX SR351

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tially 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. 

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 


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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 be the 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 


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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. Fortyfive 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 


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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 is issued 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. 


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(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 apVerDate Aug 31 2005 23:53 Oct 02, 2006 Jkt 049010 PO 00000 Frm 00015 Fmt 6659 Sfmt 6602 E:\HR\OC\SR351.XXX SR351

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proved 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 


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24Written Testimony of Michael Caskey. Senate Committee on Environmental and Public 

Works, ‘‘Environmental Impacts of U.S. Natural Gas Production.’’ March 24, 2004. 

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. 

(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. 


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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-bycase 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 protecVerDate Aug 31 2005 23:53 Oct 02, 2006 Jkt 049010 PO 00000 Frm 00018 Fmt 6659 Sfmt 6602 E:\HR\OC\SR351.XXX SR351

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tion. 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 


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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. 


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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 the overall 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 


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25http://www.epa.gov/nps/success/state/colmos.htm 26http://www.epa.gov/nps/success/state/md.htm 

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

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 


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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, thirdparty 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 * * * 

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ment 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. 


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(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 


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27 Ibid, Frohardt. 

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. 

(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 Committees on Transportation and Infrastructure, Energy and Commerce, and Resources of the House of Representatives. The report shall include a description of the number, 


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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, 


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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. 


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1This effort began in FY 1995 with the Bumpers/Jeffords amendment number 2400 to H.R. 

4602. 2Mineral 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. 

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. 

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 


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5 Environmental Protection Agency/Department of Energy Mine Waste Technology Program 

2005 Annual Report, page 3. 6Superfund and Mining Megasites, National Research Council of the National Academies, December 2005, page 412. 7Statement 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. 

9 Center for Health, Environment and Justice, ‘‘25th Anniversary of Superfund, America’s 

Safety Net in Crisis’’ (2005). 10Statement 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. 

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. 

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

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, 


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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. 


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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 requireVerDate Aug 31 2005 23:53 Oct 02, 2006 Jkt 049010 PO 00000 Frm 00032 Fmt 6604 Sfmt 6604 E:\HR\OC\SR351.XXX SR351

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ments 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 


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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. 

Æ 


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