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28–277 PDF 2006

BARRIERS TO THE CLEANUP OF

ABANDONED MINE SITES

(109–62)

HEARING

BEFORE THE

SUBCOMMITTEE ON

WATER RESOURCES AND ENVIRONMENT

OF THE

COMMITTEE ON

TRANSPORTATION AND

INFRASTRUCTURE

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

MARCH 30, 2006

Printed for the use of the

Committee on Transportation and Infrastructure

(
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

DON YOUNG, Alaska, Chairman

THOMAS E. PETRI, Wisconsin, Vice-Chair

SHERWOOD L. BOEHLERT, New York

HOWARD COBLE, North Carolina

JOHN J. DUNCAN, JR., Tennessee

WAYNE T. GILCHREST, Maryland

JOHN L. MICA, Florida

PETER HOEKSTRA, Michigan

VERNON J. EHLERS, Michigan

SPENCER BACHUS, Alabama

STEVEN C. LATOURETTE, Ohio

SUE W. KELLY, New York

RICHARD H. BAKER, Louisiana

ROBERT W. NEY, Ohio

FRANK A. LOBIONDO, New Jersey

JERRY MORAN, Kansas

GARY G. MILLER, California

ROBIN HAYES, North Carolina

ROB SIMMONS, Connecticut

HENRY E. BROWN, JR., South Carolina

TIMOTHY V. JOHNSON, Illinois

TODD RUSSELL PLATTS, Pennsylvania

SAM GRAVES, Missouri

MARK R. KENNEDY, Minnesota

BILL SHUSTER, Pennsylvania

JOHN BOOZMAN, Arkansas

JIM GERLACH, Pennsylvania

MARIO DIAZ-BALART, Florida

JON C. PORTER, Nevada

TOM OSBORNE, Nebraska

KENNY MARCHANT, Texas

MICHAEL E. SODREL, Indiana

CHARLES W. DENT, Pennsylvania

TED POE, Texas

DAVID G. REICHERT, Washington

CONNIE MACK, Florida

JOHN R. ‘RANDY’ KUHL, JR., New York

LUIS G. FORTUN ̃ O, Puerto Rico

LYNN A. WESTMORELAND, Georgia

CHARLES W. BOUSTANY, JR., Louisiana

JEAN SCHMIDT, Ohio

JAMES L. OBERSTAR, Minnesota

NICK J. RAHALL, II, West Virginia

PETER A. DEFAZIO, Oregon

JERRY F. COSTELLO, Illinois

ELEANOR HOLMES NORTON, District of

Columbia

JERROLD NADLER, New York

CORRINE BROWN, Florida

BOB FILNER, California

EDDIE BERNICE JOHNSON, Texas

GENE TAYLOR, Mississippi

JUANITA MILLENDER-MCDONALD,

California

ELIJAH E. CUMMINGS, Maryland

EARL BLUMENAUER, Oregon

ELLEN O. TAUSCHER, California

BILL PASCRELL, JR., New Jersey

LEONARD L. BOSWELL, Iowa

TIM HOLDEN, Pennsylvania

BRIAN BAIRD, Washington

SHELLEY BERKLEY, Nevada

JIM MATHESON, Utah

MICHAEL M. HONDA, California

RICK LARSEN, Washington

MICHAEL E. CAPUANO, Massachusetts

ANTHONY D. WEINER, New York

JULIA CARSON, Indiana

TIMOTHY H. BISHOP, New York

MICHAEL H. MICHAUD, Maine

LINCOLN DAVIS, Tennessee

BEN CHANDLER, Kentucky

BRIAN HIGGINS, New York

RUSS CARNAHAN, Missouri

ALLYSON Y. SCHWARTZ, Pennsylvania

JOHN T. SALAZAR, Colorado

JOHN BARROW, Georgia

(II)
SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT

JOHN J. DUNCAN, JR., Tennessee, Chairman

SHERWOOD L. BOEHLERT, New York

WAYNE T. GILCHREST, Maryland

VERNON J. EHLERS, Michigan

STEVEN C. LATOURETTE, Ohio

SUE W. KELLY, New York

RICHARD H. BAKER, Louisiana

ROBERT W. NEY, Ohio

GARY G. MILLER, California

HENRY E. BROWN, JR., South Carolina

BILL SHUSTER, Pennsylvania

JOHN BOOZMAN, Arkansas

JIM GERLACH, Pennsylvania

TOM OSBORNE, Nebraska

TED POE, Texas

CONNIE MACK, Florida

LUIS G. FORTUN ̃ O, Puerto Rico

CHARLES W. BOUSTANY, JR., Louisiana,

Vice-Chair

JEAN SCHMIDT, Ohio

DON YOUNG, Alaska

(Ex Officio)

EDDIE BERNICE JOHNSON, Texas

JOHN T. SALAZAR, Colorado

JERRY F. COSTELLO, Illinois

GENE TAYLOR, Mississippi

BRIAN BAIRD, Washington

TIMOTHY H. BISHOP, New York

BRIAN HIGGINS, New York

ALLYSON Y. SCHWARTZ, Pennsylvania

EARL BLUMENAUER, Oregon

ELLEN O. TAUSCHER, California

BILL PASCRELL, JR., New Jersey

RUSS CARNAHAN, Missouri

NICK J. RAHALL, II, West Virginia

ELEANOR HOLMES NORTON, District of

Columbia

JOHN BARROW, Georgia

JAMES L. OBERSTAR, Minnesota

(Ex Officio)

(III)

(V)

CONTENTS

TESTIMONY

Page

Frohardt, Paul, Administrator, Colorado Water Quality Control Commission .. 5

Limerick, Patricia Nelson, Ph.D, Professor of History and Faculty Director,

University of Colorado at Boulder ...................................................................... 19

Mudge, John, Director, Environmental Affairs, Newmint Mining Corporation . 19

Grumbles, Benjamin H., Assistant Administrator for Water, U.S. Environmental Protection Agency .................................................................................... 5

Pizarchik, Joseph G., Director, Bureau of Mining and Reclamation, Pennsylvania Department of Environmental Protection ............................................... 5

Smith, Velma M., Senior Policy Associate, National Environmental Trust ....... 19

Williams, Dave, Director, Wastewater, East Bay Municipal Utility District,

Oakland, California .............................................................................................. 5

Wood, Chris, Vice President for Conservation Programs, Trout Unlimited ....... 19

PREPARED STATEMENT SUBMITTED BY MEMBERS OF CONGRESS

Carnahan, Hon. Russ, of Missouri ......................................................................... 31

Costello, Hon. Jerry F., of Illinois .......................................................................... 32

PREPARED STATEMENTS SUBMITTED BY WITNESSES

Frohardt, Paul .......................................................................................................... 34

Grumbles, Benjamin H. ........................................................................................... 51

Limerick, Patricia Nelson ....................................................................................... 59

Mudge, John ............................................................................................................. 71

Pizarchik, Joseph G ................................................................................................. 83

Smith, Velma M ....................................................................................................... 107

Williams, Dave ......................................................................................................... 118

Wood, Chris .............................................................................................................. 131

SUBMISSION FOR THE RECORD

Pizarchik, Joseph G., Director, Bureau of Mining and Reclamation, Pennsylvania Department of Environmental Protection, responses to questions ....... 103

(1)

BARRIERS TO THE CLEANUP OF ABANDONED

MINE SITES

Thursday, March 30, 2006,

HOUSE OF REPRESENTATIVES, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, SUBCOMMITTEE ON

WATER RESOURCES AND ENVIRONMENT, WASHINGTON,

D.C.

The committee met, pursuant to call, at 10:00 a.m., in Room

2167, Rayburn House Office Building, Hon. John J. Duncan, Jr.

[chairman of the committee] presiding.

Mr. DUNCAN. I want to first of all welcome everyone to our hearing today. This hearing is on barriers to the cleanup of abandoned

mine sites around the Country. Hopefully we will hear about potential ways to encourage volunteers to help clean up these sites.

Past mining activities which occurred when mining practices

were less sophisticated than today have disturbed hundreds of

thousands of acres of land, altered drainage patterns and generated

substantial amounts of waste scattered around the landscape.

Today there are several hundred thousands of these old mine sites

in the U.S., staff briefing memo say about half a million. Many of

these mines were abandoned by the owners or operators a long

time ago, when the remaining minerals became too difficult or costly to extract.

Although operated consistent with the governing laws at the

time, many of these abandoned mines now pose environmental and

health threats to surrounding surface and groundwaters and to

downstream interests. Nationally, tens of thousands of miles of

streams are polluted by acid mine drainage and toxic loadings of

heavy metals leeching from many of these old mines, impacting

fisheries and water supplies.

State and Federal agencies have worked to remedy these problems, but the number of sites and the expense involved has made

progress very slow. A lot of these old mine lands lack a viable

owner or operator with the resources to remediate them. Many others are truly abandoned, with no identifiable owner or operator to

hold responsible. As a result, few of these old mine sites are getting

cleaned up.

Public or private volunteers are Good Samaritans, have been

willing to partially remediate many of these sites. These Good Samaritans may be driven by a desire to improve the environment,

others may want to improve water quality at their water supply

source. Still others may want to clean up an old mine site for the

purpose of re-mining the area or developing it in some other way.
2

However, most Good Samaritans have been deterred from carrying out these projects by the risk of becoming liable for complete

cleanup required by various environmental laws. This is because

current Federal law does not allow for partial cleanups. For example, if a Good Samaritan steps in to partially clean up an abandoned mine site, that party could become liable under the Clean

Water Act or Superfund for a greater level of cleanup and higher

costs than the party initially volunteered for. Because they could

face the legal consequences if they fall short of complete cleanup,

most potential Good Samaritans refrain from attempting to address

a site’s pollution problems at all.

Federal policy should encourage and not discourage parties to

volunteer themselves to clean up abandoned sites. We should consider whether in some circumstances environmental standards

should be made more flexible in order to achieve at least partial

cleanup of sites that otherwise would remain polluted.

This is not about letting polluters off the hook. They should remain responsible under existing law. However, if a party

unconnected to an abandoned mine site steps forward to help with

remediation, everyone wins. I believe there is little disagreement

that encouraging volunteers to clean up abandoned mine sites is a

worthwhile policy.

However, in exploring the details of such a policy a number of

issues arise, such as who should be eligible for a lower standard

of cleanup; how should new standards be applied; and how should

potential re-mining of these sites be addressed. To help us identify

and address these and other issues, we have assembled a number

of parties who have been actively involved in the debate over how

to address the abandoned mines problem in the Country. I hope

our witnesses will bring forward ideas on how we can remove impediments to abandoned mine cleanups and get more Good Samaritans to step forward.

When I chaired the Aviation Subcommittee, we produced the first

Good Samaritan law for the skies. In addition, we have done some

movements in this direction in brownfields legislation that we

passed through this Subcommittee a few years ago. I look forward

today to an educational and enlightening hearing. I appreciate very

much the witnesses who have come here today, all of our witnesses. Our most distinguished and prestigious witness, Mr. Grumbles, from the EPA, who has been with us many times before and

of course, the other State witnesses who have come long distances

to be here in some cases.

Let me now turn to my distinguished Ranking Member, Ms.

Johnson, for any opening statement she wishes to make.

Ms. JOHNSON. Thank you very much, Mr. Chairman, and thank

you for holding this hearing.

Today we receive testimony from a wide spectrum of parties and

interests who all have a common goal of improving the environmental situation associated with abandoned and inactive mines. I

share that goal.

I must say that I find it somewhat ironic that we are considering

legislative proposals to scale back environmental standards in

order to achieve improvements in water quality. But that is where
3

we find ourselves. Existing programs that could address mine runoff are either inadequately funded or inadequately enforced.

The Administration and the Republican-led Congress have reduced funding for water quality under the Clean Water Act both

for point and non-point pollution controls. They have also refused

to reinstate funding for cleanup of toxic releases under the Superfund program, so now we look to volunteers where the Government

will not help.

Within this reality, I believe that we can fashion a legislative

proposal that focuses upon areas of common ground and avoids

areas that are divisive. Today’s hearing will help identify those

areas of common ground.

But in all of our years of examining this issue, I believe that

some common themes are already apparent. We should make the

focus water quality improvement and let other laws address mining

operations. We will need to define who can be a Good Samaritan.

But other than excluding responsible parties, we should encourage

all volunteers. A threshold level of remediation should be a measurable improvement in water quality, with no diminishing of water

quality allowed. We must recognize the legitimate role of States

and Tribes in implementing the Clean Water Act and ensure that

the rights of the public to fully participate in the permitting process are preserved.

Abandoned, inactive mines are a major source of uncontrolled

pollution in America’s waters, particularly in the western States.

This Committee has been talking about doing something to encourage volunteer efforts to improve water quality for nearly 15 years.

Hopefully, this is the year we can get something enacted. I look forward to the testimony today.

Ms. JOHNSON. Mr. Chairman, before I relinquish the mic, I want

to ask unanimous consent to put into the record a statement by

Congressman Tim Holden, who has a conflict and could not be here

this morning. But he has a very complete statement.

Mr. DUNCAN. Thank you very much, Ms. Johnson, and Congressman Holden’s full statement will be placed into the record.

Dr. Boozman.

Mr. BOOZMAN. Thank you, Mr. Chairman, and thank you to you

and the Ranking Member for holding this hearing. The title of our

hearing today is Barriers to the Cleanup of Abandoned Mine Sites.

I would like to go on the record that I think one of the barriers will

be if this effort to make chicken litter meet the definition of hazardous waste succeeds. You would be surprised, your grandfather

would be surprised, Chairman Duncan, that the farm that he lived

on, with the barnyard manure, was a hazardous waste site.

We have limited resources to address cleanup sites, such as

abandoned mines. So I hope that we can address the problem with

trying to make manure a hazardous waste at some time. And

again, not waste our resources in efforts like that that are totally

ridiculous. We should not use the funding, the resources that we

have, in ways like this. Instead, we should try to use them in logical ways to actually deal with legitimate problems, such as abandoned mines.

Thank you.
4

Mr. DUNCAN. Well, I certainly agree with you there. Good statement.

Mr. Salazar.

Mr. SALAZAR. Thank you, Mr. Chairman. I want to thank both

you and the Ranking Member for holding this hearing today.

Since enacting the Clean Water Act, our Nation has made significant progress in improving our water quality around this Country.

One are that we need to make significant improvements, I believe,

is in the pollution of abandoned mine sites. As you know, the settlement of the west was driving by mining. Mining has and continues to be a critical part of our development across the west.

We also have to remember that severe environmental consequences can accompany mining. This rings true especially in the

earlier ways that mining activities were conducted. I believe that

the current system in place creates a disincentive for parties from

attempting to voluntarily clean up these mine sites.

Today, I plan on introducing legislation that would form a pilot

project that would allow Good Samaritans to clean up the Animus

River Basin. This bill will be introduced with the support and comments of local communities in the Animus River Basin.

The objective of the bill is to allow those parties the necessary

tools to attempt to clean up the waters of the Animus River as well

as using it for a model for our Nation to see what works and what

does not work. I would urge my colleagues to support this bill and

help make it a reality. I think we need to go forward with some

piece of legislation. This problem has been around for a very long

time and the public is looking to Congress for answers.

In closing, I look forward to hearing testimony from the two panels, and I want to thank the panel participants and once again, the

Chairman and the Ranking Member.

Mr. DUNCAN. Thank you very much, Mr. Salazar. We will be

happy to work with you on that, your proposed legislation, too.

Our first panel this morning is led off by the Honorable Benjamin H. Grumbles, who is Assistant Administrator for Water from

the U.S. Environmental Protection Agency. We also will have testimony from three State witnesses. Representing the Western Governors Association is Mr. Paul Frohardt, Administrator of the Colorado Water Quality Control Commission from Denver, Colorado.

We have representing the Interstate Mining Compact Commission Mr. Joseph Pizarchik. Mr. Pizarchik is the Director of the Bureau of Mining and Reclamation of the Pennsylvania Department

of Environmental Protection from Harrisburg, Pennsylvania.

And we have representing the East Bay Municipal Utility District Mr. Dave Williams, Director of Wastewater for Oakland, California.

Gentlemen, we are happy and pleased that all of you are here

with us. Administrator Grumbles, you may begin your statement.

All of your full statements will be placed in the record. The rules

of the Committee are you are given five minutes, but in this Subcommittee we give you six minutes. But in consideration of the

other witnesses, if you see me start to wave this, that means to

bring your statement to a close.

Thank you very much. Administrator Grumbles.
5

TESTIMONY OF THE HONORABLE BENJAMIN H. GRUMBLES,

ASSISTANT ADMINISTRATOR FOR WATER, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY; PAUL FROHARDT,

ADMINISTRATOR, COLORADO WATER QUALITY CONTROL

COMMISSION; JOSEPH G. PIZARCHIK, DIRECTOR, BUREAU

OF MINING AND RECLAMATION, PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; DAVE WILLIAMS,

DIRECTOR, WASTEWATER, EAST BAY MUNICIPAL UTILITY

DISTRICT, OAKLAND, CALIFORNIA

Mr. GRUMBLES. Thank you, Mr. Chairman. And thank you also,

Congressman Boozman and Congressman Salazar, for your interest

and your leadership on Good Samaritan efforts and holding this

hearing. I was very encouraged by Congresswoman Johnson, her

statement that she was looking forward to legislation this year,

moving forward with legislation.

So on behalf of EPA, I am very honored to appear before the Subcommittee to discuss the barriers and also talk about some of the

solutions and things that can be done to incorporate cooperative

conservation and common sense into what has been over the decades a very complex issue. So there is great opportunity to accelerate environmental protection and watershed restoration through

cooperative conservation and common sense, as applied to clean

water and other liabilities.

Mr. Chairman, I just wanted to mention that behind me is the

Deputy Assistant Administrator for Water, Brent Fewell, who has

been the fuel, the driving force behind a lot of the Agency’s Good

Sam work over the last year. I remember sitting over on the other

side over a decade ago, when this Subcommittee was listening to

the problem about Good Samaritan, the need for cleanup of abandoned mines throughout the West and other places in the Country.

The main message is that we are committed to working with the

Committee on a bipartisan basis to really make this the year where

legislation moves forward. We also are committed administratively

to do everything we can to advance cooperative conservation and

common sense in the content of cleaning up these abandoned mine

sites.

As you and others have stated, the problem is large and complex.

There are hundreds of thousands of abandoned or inactive mine

sites across the Country, and there are thousands that are contributing to water quality impairments and degrading watersheds.

So the real issue is, how can we move forward in a responsible

way to accelerate the progress in environmental restoration? A lot

of experts speaking after me will highlight some of the legal and

bureaucratic complications when Good Samaritans want to move

forward. We view a Good Samaritan as a good steward who is acting because he is inspired, not because he is required to do so.

We see that there are challenges under the Clean Water Act

when it comes to the permitting responsibilities and the liabilities

and the standards. So what I wanted to do, Mr. Chairman, in the

remaining amount of time, was to focus on first the threat of liability. It is a barrier, a barrier to Good Samaritans stepping forward.

It is a barrier under the Superfund laws because of the operator

liability or arranger liability.
6

Those who do not own the land and want to step forward to help

remediate these legacy sites face the very real threat that they

won’t be able to rely on protections under the Superfund law. They

face the very real threat that they will be liable under the Clean

Water Act for permitting responsibilities. That is why we think

both administrative and legislative efforts are important to have a

targeted and responsible approach to reduce or remove some of the

liability.

Partial cleanups by Good Samaritans will result in meaningful

environmental improvements. In many cases the impaired water

bodies may never fully meet water quality standards, regardless of

how much cleanup or remediation is done.

By holding Good Samaritans accountable to the same cleanup

standards as polluters, or requiring strict compliance with the

highest water quality standards, we have created a strong disincentive to voluntary cleanups. So in addition to the barrier of liability under CERCLA or the Clean Water Act, there is also the

barrier of water quality standards that are not appropriate for this

precise situation when volunteers, Good Samaritans are stepping

forward.

We are not supporting, we are not talking about decreasing the

level of protection, the water quality standards, as much as we are

talking about injecting some common sense. If the Good Samaritan

is going to be improving water quality, that is the real measure,

and that is what we wanted to ensure occurs, but not have a barrier where they are held to the same standard as the industrial

polluter or the other polluter who created the problem in the first

place.

In August of 2004, there was an executive order on cooperative

conservation. In August of 2005, Administrator Steve Johnson announced a Good Samaritan initiative by the U.S. EPA to really

make progress in cleaning up these abandoned hardrock mine sites

across the Country. What we are doing, Mr. Chairman, administratively, is advancing a tool kit that will provide an array of tools,

a model covenant or agreement with Good Samaritans to help reduce the threat of liability, also letters, comfort letters to give them

signals to move forward, also guidance with other Federal agencies.

We also have an innovative project we are working on with Trout

Unlimited at the American Fork Canyon.

Mr. Chairman, the thing I really wanted to emphasize in the remaining amount of time is on the legislative front. We applaud the

efforts, the bipartisan efforts of members of Congress, both sides of

the aisle and both chambers. But we ourselves are also aggressively moving forward with developing legislation on behalf of the

Administration that will bring together and help add momentum to

the effort to get legislation across the finish line. We would be delighted to share that when we can, hopefully in the very near future. But it is focused on streamlined permitting processes, a targeted approach, realistic and common sense standards and really

accelerating watershed restoration and protection.

Mr. Chairman, I just want to commend the Committee and Congresswoman Johnson for their interest in this, and pledge to work

with all of the members of the Committee in moving forward responsibly with targeted legislation for Good Samaritans.
7

Thank you, Mr. Chairman.

Mr. DUNCAN. Thank you very much, Administrator Grumbles.

Your statement points up clearly that, as in most things, nothing

is as simple as it appears on the surface. It is a complex problem

and I applaud you for going forward with the initiative that you

have described administratively. We appreciate your offer to help

on the legislation. I think you always approach these issues in a

very sensible, intelligent way.

I appreciate your comments. In almost no legislation can we ever

go as far as people who work full time on that particular problem

to the exclusion of all other problems. But hopefully we can make

some progress.

Our next witness is Mr. Frohardt. I have already introduced Mr.

Frohardt and you may begin your statement.

Mr. FROHARDT. Thank you, Mr. Chairman, members of the Committee. I appreciate the opportunity to be in front of you today to

talk about this issue, which is of great importance to the Western

Governors Association and western States.

Abandoned and inactive mines are responsible for many of the

greatest threats to water quality in western States. We do have

thousands of stream miles that are impacted by drainage from

these mines and runoff. And we have encountered a situation

where there is often no identifiable financially responsible party to

clean up these sites.

In view of the significant impacts that are caused and the difficulties in finding a responsible party that can be required to clean

up the sites, States are very interested in undertaking and encouraging Good Samaritan remediation initiatives; that is, initiatives

by States and other third parties who are not legally responsible

for the existing conditions to try to improve the situation.

However, as has been pointed out, there is currently no provision

in the Clean Water Act that protects a Good Samaritan that attempts to improve conditions at these sites from becoming legally

responsible for any continuing discharges after completion of a

cleanup project. We believe that this potential liability under the

Clean Water Act is the major barrier currently to cleanup of these

sites.

The western States greatly appreciates recent efforts by EPA to

examine and enhance administrative tools to facilitate Good Samaritan remediation efforts. But we do believe that only a legislative solution can fully address liability concerns, particularly for

sites with draining adits.

Our written testimony addressees several principles that WGA

believes are important for any Good Samaritan legislation. This

morning in the brief time that we have, I would just like to highlight two of those principles. First, the definition of a remediating

party or Good Samaritan. The western States believe that participation in Good Samaritan cleanups should not be limited solely to

governmental entities, since there are many other persons that are

likely willing to contribute to Good Samaritan cleanup initiatives.

However, the States believe that statutory provisions should be

carefully crafted. In particular, that they should broadly exclude

those with prior involvement at abandoned or inactive mine sites;

they should broadly exclude those with current or prior legal re-
8

sponsibility for discharges at a mine site, and they should assure

that any non-remediation related development at a site is subject

to the normal Clean Water Act requirements, rather than the Good

Samaritan provisions.

Secondly, the standard for cleanup under a Good Samaritan

project. We believe that EPA should approve a Good Samaritan

permit only if it determines that a remediation plan demonstrates

with reasonable certainty that the actions will result in an improvement in water quality to the degree reasonably possible with

the resources available to the remediating party for the proposed

project.

However, we think it is particularly important that analysis of

a proposed project, that that analysis needs to occur at the front

of a project. It is very difficult to always predict exactly what is

going to be achieved and therefore, a Good Samaritan’s responsibility should be defined as implementing an approved project, rather

than, for example, meeting specific numerical effluent limitations.

So the western States urge Congress to proceed quickly on this

issue and in addressing the issue, we would recommend that Congress avoid expanding the Good Samaritan proposal toe extraneous

issues, such as re-mining or a general fee on mining. The western

States are concerned that efforts to expand the scope of this issue

are likely to generate significant opposition that may further delay

or frustrate the ability to get this needed and widely supported proposal adopted into law.

Now I would like to turn for just a minute to a few comments

separately specifically on behalf of the State of Colorado. Governor

Owens is on record in support of S. 1848, the Cleanup of Inactive

and Abandoned Mines Act, which was introduced by Senators Allard and Salazar. Colorado believes that this bill provides a

thoughtful and balanced approach to the range of issues and options that have been discussed, and urges Congress to move forward with S. 1848 as the basis for Good Samaritan legislation.

For us, this is not an academic debate about appropriate legislative language. We have a number of projects in the pipeline that

have been put on hold for many years, and if a Good Samaritan

bill is enacted, water quality in Colorado will begin to improve during the next construction season.

Finally, I want to just provide a brief personal note. I first testified before this Committee on this issue on behalf of the Western

Governor Association 11 years ago. At that time, we worked with

a very helpful young Committee staffer named Ben Grumbles.

Unfortunately, sine then, in spite of a lot of efforts by a lot of

people, we still don’t have a Good Samaritan Act, and we still do

have the same water quality impacts to the streams in our mountains. Please work to get this legislation adopted quickly, so that

real progress can be made without substantial further delay.

Thank you for your time.

Mr. DUNCAN. Thank you very much, Mr. Frohardt. Somebody

told me a couple of months ago that the days are long but the years

are short. And I am sure you would say that 11 years has probably

gone by very, very quickly.

Mr. Pizarchik.
9

Mr. PIZARCHIK. Thank you, Chairman, members of the Committee.

As part of my discussion today, in regard to the barriers to the

cleanup of abandoned mines, I would like to talk about our experiences in Pennsylvania regarding the reclamation of abandoned

mine lands under Pennsylvania’s Environmental Good Samaritan

Act and under our re-mining program.

In my home State, we have had over 200 years of mining that

have left a legacy of over 200,000 acres of abandoned mine lines.

These abandoned sites include open pits, water-filled pits, spoil

piles, waste coal piles, mine openings and subsided surface areas.

The water-filled pits shown on the easel there in that photo covers

40 acres and is 238 feet deep. All that water is acid mine drainage.

It will cost over $20 million to reclaim it.

We also have thousands of abandoned mine discharges with

varying degrees of acid, iron, aluminum, manganese and sulfates

in the water. Some of the discharges are small and some are quite

large. One such large discharge is a tunnel that drains over a 20

square mile area and discharges 40,000 gallons per minute.

According to an EPA Region III list from 1995, there were 3,158

miles of Pennsylvania streams affected by mine drainage. Over the

last 60 years, Pennsylvania has spent hundreds of millions of dollars on abandoned mine problems. It became clear that without

help from others, Government efforts alone would take many decades and billions of dollars to clean up all of the problems. Additional options were needed.

One option was re-mining. We found that operators were obtaining mining permits for abandoned sites and were mining the coal

that was previously economically and technologically impossible to

recover. However, such re-mining and reclamation was not occurring on sites that contained mine drainage.

When Pennsylvania officials tried to leverage the State’s limited

resources by working with citizen and watershed groups to accomplish more reclamation, we met significant resistance. Citizen

groups and mine operators alike would not tackle sites that had

mine drainage on them, because State and Federal law imposed liability on them to permanently treat that discharge.

With the advances made in science, technology and in our understanding of mine drainage, we in the Pennsylvania mining program

knew that there were many abandoned discharges that could be

eliminated or improved at little or no cost to the Commonwealth

if we could address the potential liability issue. In Pennsylvania,

we took two different approaches to limit the liability.

First, for re-mining of sites with pre-existing discharges, we

worked to change the mining laws to eliminate mine operators’ liability. Second, we enacted the Environmental Good Samaritan Act

to provide protections and immunities to people who were not legally liable, but who voluntarily undertook reclamation of abandoned mines.

For the re-mining, we only approved permits that are likely to

improve the discharge. While the law limits a permittee’s potential

liability, it does not provide absolute liability. Potential liability for

making things worse helps weed out those sites that cannot suc-
10

cessfully be re-mined, and helps ensure that the operator follows

the special measures needed to improve or eliminate the discharge.

Our re-mining program has been very successful. Of 112 abandoned surface mines containing 233 pre-existing discharges that

were re-mined, 48 discharges were eliminated, 61 were improved,

122 showed no significant improvement and 2 were degraded.

Thousands of tons of metals deposited into the streams annually

were removed. Approximately 140 miles of our streams were improved. Treatment would have cost at least $3 million a year every

year to remove that through conventional measures.

The benefits of re-mining are not limited to our water quality improvements. Significant amounts of Pennsylvania’s abandoned

mine lands have been reclaimed at no cost to the Government.

Over the past 10 years, 465 projects reclaimed over 250,000 acres

and eliminated 140 miles of dangerous high wall. Abandoned waste

coal piles were eliminated. Abandoned pits were filled. And lands

were restored to a variety of productive uses, including wildlife

habitat.

On the photo that you see there, those are elk. They are Pennsylvania elk, and they are feeding on a site that was re-mined and

reclaimed pursuant to our re-mining program. The estimated value

of the reclamation that was accomplished through re-mining in the

past 10 years exceeds $1 billion.

Separate from our re-mining laws is Pennsylvania’s Environmental Good Samaritan Act. Like re-mining, only projects approved

by our Department are eligible for the protection. Approval is required to ensure that the project is likely to make things better.

The project must be an abandoned mine land or abandoned discharge for which there is no liable party. And protections are provided to the land owners, as well as those who are doing the work

or providing materials or services.

Pennsylvania has undertaken 34 Good Samaritan projects. Some

projects are simple, low-maintenance treatment systems. Others

are more complex, like the project in Bittendale, Pennsylvania that

transformed an abandoned mine into a part that treats acid mine

drainage, celebrates the coal mining heritage and provides recreation facilities for the residents and serves to heighten public

awareness about the importance of treating mine drainage.

While Pennsylvania’s Good Samaritan Act has been successful,

there are concerns. First, the Federal Clean Water Act citizen supervision still poses a potential liability to these Good Samaritans.

Recent developments portend action by some who hold a strict, literal view of the permitting requirements and the total maximum

daily load requirements of the Federal Clean Water Act. Without

Federal Good Samaritan Act or an amendment to the Clean Water

Act providing that Good Samaritan projects and abandoned mine

discharges are not point sources or not subject to the permitting requirements, the potential good work of the volunteers in Pennsylvania throughout the Country is at risk.

People who would undertake projects to benefit the environment

in America could be personally liable for making things better just

because they didn’t make them perfect.

Thank you.
11

Mr. DUNCAN. Thank you very much, Mr. Pizarchik. Very fine

statement. It has been a wonderful thing to see some of these reclamation projects where people have put golf courses, retirement

communities, green spaces and parks. I particularly enjoyed the

picture of the elks feeding there. Thank you very much.

Mr. Williams.

Mr. WILLIAMS. Thanks for the opportunity to address you this

morning.

I think we need Good Samaritan legislation and what I wanted

to do is touch on an example that we had at our district, and then

give you some of my thoughts on how the POTW, the publiclyowned treatment works, could play a role in this.

Abandoned mines are a big problem. There are over 39,000 alone

in California. A lot of waste rock goes along with that, and the acid

mine drainage. The East Bay MUD story is that we are a wastewater district serving 1.3 million people in the East San Francisco

Bay. Our water supply is on the Mokelumne River in the Sierra

Foothills. We have a couple of reservoirs there.

We have a reservoir, and the south shore of that reservoir has

an abandoned mine. It is called Penn Mine. It was a major copper

producer during World War II, and it was abandoned in the 1950s.

When it was abandoned, there were 400,000 cubic yards of waste

rock left in piles on the site. That resulted in 100,000 pounds of

copper being discharged in the Mokelumne River every single year

from acid mind drainage and massive fish kills.

We were asked by the State in 1978 to help implement an abatement plan. We said okay. Our part of the plan was to build a berm

about 100 feet long, 15 feet tall, to basically keep the acid mine

drainage from entering the river. We did that on our land. It resulted in dramatic improvements in the reduction of acid mine

drainage and reduction in fish kills.

We were then sued in 1990 by the Committee to Save the

Mokelumne. They said that it represented a potential to discharge,

the spillway on this berm, into the Mokelumne. We argued that in

court and lost. When we lost, we were then ordered by EPA to restore the entire site to the pre-mining condition. So we did that at

a cost of $10 million. That was completed in 2000.

The story spread like wildfire throughout California, put a

chilling effect on any efforts to clean up abandoned mines and little

has happened since then.

I think that is a good example, but I think there is a lot of potential for benefits. And I think the POTW community could play a

role in that. I wanted to give you an example of how that might

work. Currently, San Francisco Bay is impaired for mercury. So

how did all the mercury get there? Well, it came from mining operations, 26 million pounds of mercury was used to extract gold during the Gold Rush days. Eight million pounds of mercury found its

way down into the sediment into San Francisco Bay.

So you have sediment and you have the continued runoff from

the abandoned mines. The total maximum daily load report for San

Francisco Bay identified the major sources. Two major sources:

sediment and abandoned mines. Publicly-owned treatment works

were also a contributor. We contribute, total, all 40 treatment

plants in the Bay Area, 17 kilograms out of a total of 1,220 kilo-
12

grams that find its way into San Francisco Bay every year. We are

viewed as a de minimis source.

Nonetheless, the TMDL is proposing that we cut back the mercury discharge from treatments by 40 percent in 20 years. You can

do a little bit with pollution prevention. But you can’t make the 40

percent. So we need some assistance there.

What we are faced with is installing costly tertiary treatment fa- cilities at a cost of an estimated $200 million to $300 million per

year on the ratepayers, in addition to what they are currently paying in the San Francisco Bay area. Doesn’t it make sense to spend

much less than that and get much more bang for the buck by creating a mechanism where you could go in and relieve some liability

and do some good by cleaning up abandoned mines? It seems to

make sense to me.

Let me give you some thoughts on what I think a Good Samaritan legislation should address. One is, it should provide for a process to assure that projects make sense and a reasonable expectation that you are going to get the environmental benefit that you

are expecting. There should be assurances that the project will be

done without imposing some of the typical NPDES permit requirements as Mr. Grumbles mentioned that may be unnecessary and

inapplicable.

It should limit long term responsibility once the remediation is

done. And of course, it should not negate existing liability of those

who have caused the problem.

There are just a few other considerations, whether they be addressed in legislation or policy or guidance. But that is, the effort

should be voluntary. There should be cost certainty, so that someone is not writing a blank check.

And the cleanup effort should be reasonably related to that

which a discharger would otherwise have to do and have an incentive built in it. If you are going to spend $50 million on treatment

facilities and you would have to spend the same amount to clean

up an abandoned mine, you are going to build the treatment facilities, because you have control over that. There needs to be some

incentive there. Also, it needs to be documented in the permit, because the permit does give a shield.

In summary, I think that efforts on mine cleanup are stalled.

The time is right. You have the power, and I urge you to act.

Mr. DUNCAN. Thank you very much, Mr. Williams. Four very fine

statements, very informative and I think very helpful.

Mr. Grumbles, you mentioned and I mentioned the Good Samaritan initiative that the EPA is presently attempting. Can you do

enough, can you provide adequate legal protection through your

initiative administratively without legislation?

Mr. GRUMBLES. Mr. Chairman, we believe legislation would be

extremely important and helpful. It is very hard to accelerate watershed restoration at the pace we want to accelerate it, based solely on administrative authorities. We will use those to the fullest extent, but legislative guidance and direction from Congress is really

what is needed.

Mr. DUNCAN. Are there other major laws or obstacles besides the

Clean Water Act and the Superfund law that would get in the way

of potential environmental Good Samaritans?
13

Mr. GRUMBLES. Mr. Chairman, I would say on a case by case,

watershed by watershed basis, there may be times when another

law creates a barrier that needs to be worked out, worked through.

But we feel that based on the evidence and some of the work that,

in the report, that you will hear more about--cleaning up abandoned hardrock mines in the west, Patty Limerick’s efforts--the evidence is that those are two of the primary obstacles, and certainly

the Clean Water Act, the permitting and the liability and the right

standards question are ones that we think merit the greatest

amount of attention and focus, and focus in a targeted way so that

a decade from today there is not another hearing urging movement

on legislation. The barriers, the pitfalls to legislation in the past,

have been trying to solve or respond to too many other ancillary

issues. So we support focused activity on the Clean Water Act and

some of the Superfund-related issues.

Mr. DUNCAN. Do we need to treat public or private lands differently in any way?

Mr. GRUMBLES. Well, I think that one of the challenges and opportunities for moving forward smartly is to ensure that Federal

land management agencies are very much involved in these Good

Samaritan projects, as cooperating agencies. And we do need to

keep in mind, on a site by site basis, the different factors that play

in having a successful bill. We think it is important to focus on the

status of the Good Samaritan and make sure that that person or

organization is in fact a Good Samaritan and that it is not about

profit, but it is about environmental protection.

Mr. DUNCAN. Are there other measures that you think we need

to take in addition to Good Samaritan legislation to speed up our

assist in the cleanup of these abandoned mine sites?

Mr. GRUMBLES. Certainly the whole spirit of the executive order

on cooperative conservation is, work with all parties to facilitate cooperation and conservation as opposed to confrontation. I would say

that pilot projects are very important, they are very good, and we

are using our authorities to carry out pilot projects under the Clean

Water Act and non-point source programs and the targeted watershed grants. But it requires more than just pilot projects. There

needs to be, from the top, a strong message providing legal protection and inserting common sense into the standards process.

Mr. DUNCAN. Administrator Grumbles needs to leave here in just

a few minutes. I have questions for the State witnesses but I am

going to turn to Ms. Johnson now for any questions she has for Administrator Grumbles.

Ms. JOHNSON. Thank you very much, Mr. Chairman. I really

don’t have in particular for Mr. Grumbles, but I appreciate your

being here and making yourself available.

Mr. GRUMBLES. Thank you.

Mr. DUNCAN. All right, thank you very much, Mr. Grumbles, you

are free to go. Thank you very much for being with us.

Mr. Frohardt, what is your best estimate of how many abandoned mine sites there are in the U.S. and how many in the State

of Colorado?

Mr. FROHARDT. Mr. Chairman, I don’t have those numbers specifically. There have been widely varying estimates and it really depends on what people are looking at. We have a lot of abandoned
14

sites, and then you get different estimates of what subset of those

sites are specifically causing water quality impacts. But throughout

Colorado, we have sites, in each of the headwaters of each of our

river basins that continue to cause significant impacts. We have

local groups in each of those basins that are anxious to undertake

efforts to clean them up if we can get this issue addressed.

Mr. DUNCAN. How many States are there in the Western Governors Association?

Mr. FROHARDT. Eighteen.

Mr. DUNCAN. Eighteen? And do you have any kind of rough estimate as to how many abandoned mine sites there are in those

western States? Do you think this is primarily an eastern problem

or primarily a western problem or about the same all over the

whole Country?

Mr. FROHARDT. The western States have been focused in particular on the hardrock sites, are where we are seeing the greatest impacts from the historic activities. I would assume that those problems occur much more frequently in the western States.

Mr. DUNCAN. Have you found, or do you believe there are quite

a few Good Samaritans that would be willing to perform abandoned

mine site cleanups?

Mr. FROHARDT. Absolutely. Again, we have over a dozen groups

in Colorado in different locales, different river basins, different specific historic impact sites that have really over the last decade gotten themselves organized and interested in undertaking projects.

They are at varying degrees in terms of their analysis or how ready

a specific project is to go forward. But I believe that if this liability

issue can be addressed we have quite a few instances where

progress could be made quickly.

Mr. DUNCAN. You have been involved in this for a long time, because you mentioned testifying 11 years ago, and I assume you

were involved in it for at least a few years prior to that. What laws

do you think have been the greatest obstacles to getting these

abandoned mines cleaned up?

Mr. FROHARDT. Again, the Western Governors Association’s focus

has always been to principally on the Clean Water Act. Within the

State of Colorado, when we first started looking at actually using

some Section 319 non-point source funds under the Clean Water

Act for our Division of Minerals and Geology to clean up some sites

in the late 1980s, the first thing we worried about was CERCLA

liability, because that is usually much broader and scarier liability.

We found some mechanisms under CERCLA that appeared to us

to be workable. Our State entered into a memorandum of understanding with EPA and using on-scene coordinator provisions of

CERCLA, felt that we had a mechanism which was maybe not

ideal but at least workable to move forward, until in the early

1990s, thanks to the unfortunate experience of East Bay MUD, we

all became aware of these concerns under the Clean Water Act for

which we were unable to find an administrative solution.

So I think it starts with the Clean Water Act. I think there are

some complications in CERCLA. As Ben Grumbles said, there may

well be instances where there could be issues that come up under

other statutes as well, but we believe those are the primary concerns.
15

Mr. DUNCAN. Well, thank you very much.

Mr. Pizarchik, you have described the Pennsylvania program,

and I commend you for what you have been able to do so far. Do

you feel that your State program has been able to give adequate

legal protection to the people who want to clean up or redevelop

these sites? Or do you think it would help for additional Federal

legislation to be passed?

Mr. PIZARCHIK. Additional Federal legislation would be very

helpful, Mr. Chairman. We have a number of folks who have been

reluctant to undertake some of these cleanup projects because of

their concern for the Federal legislation. We have had some other

folks who were willing to proceed and take the risks on somebody

suing them on that point, and we have been fortunate to date that

we haven’t had that happen.

But I believe a Federal assistance, Federal legislative fix for that

potential liability would go a long way to encouraging more people

to undertake these projects.

Mr. DUNCAN. Have you had a difficult time or an easy time trying to determine what level of cleanup a potential Good Samaritan

should be required to achieve?

Mr. PIZARCHIK. We have not had that problem, Mr. Chairman.

Based on the long history that we have had with our re-mining

program, we have learned a lot about what can be accomplished

through certain best management practices or activities out on the

site. We work with the watershed groups who are wiling to take

these projects to undertake those.

I would strongly recommend against the establishment of a numerical number, because the sites vary so much in the quantity

and the quality of the pollutants and the problems that are out

there that what can be achieved by a Good Samaritan can vary significantly. Sometimes we can get total elimination of the discharge,

other times we can only get an incremental improvement.

So something that was more along the lines of a best management practice approved by the State agency that was likely to

make things better would be much better suited to the problem

than establishing numerical limits.

Mr. DUNCAN. Thank you very much.

Mr. Williams, you mentioned the gigantic problem that you face

in the Bay there, but you are a de minimis participant, as you said,

a very small part of the problem. What do you think we need to

do? What approach would you recommend that would, you think,

facilitate or speed up this mine cleanup process?

Mr. WILLIAMS. One thing I think that is needed is some sort of

an offset program. Right now there isn’t an offset program in California and—

Mr. DUNCAN. How does that work?

Mr. WILLIAMS. It could work in a number of different ways. But

an example would be that if you are looking at reducing a discharge from your treatment works by a kilogram, you might go and

clean up 10 kilograms of a same pollutant or a similar pollutant,

a toxic pollutant at a different site. You could set up some sort of

a mitigation bank, where you could actually pay into that and reap

the benefits of that leveraging there.
16

One of the fundamental problems is the liability issue. EPA has

a trading policy, but it doesn’t allow for going outside the watershed. It also states that if you trade, and this is where somebody

is in business, so you trade with somebody, so it is much more cost

effective to reduce their pollutant loading than to reduce yours.

That is kind of a trading policy.

But the way the policy reads is if they do not uphold their end

of the bargain, then you are still on the hook. Well, that doesn’t

work very well for abandoned mines, right? So it is kind of that

blank check type of thing.

So I think having legislation that addresses the liability issue

would be a major step forward to allowing States to begin to tackle

this offset type of concept.

Mr. DUNCAN. How long have you been in the utility business?

Mr. WILLIAMS. Thirty-three years.

Mr. DUNCAN. Thirty-three. And I assume you know, you go to a

lot of utility meetings and know a lot of people in this industry.

Mr. WILLIAMS. I do.

Mr. DUNCAN. Do you think that a lot of utilities would consider

engaging in Good Samaritan projects if they had adequate liability

protections?

Mr. WILLIAMS. If it was adequate liability and if it was voluntary, I think they would certainly consider that. They would be

looking at meeting TMDLs, and it doesn’t matter if it is a TMDL

for mercury or PCBs or legacy pesticides, anything where they are

a very small contributor and it is going to be very difficult for them

to meet. If there was liability protection and it was voluntary, you

would certainly have people looking at that very carefully.

Mr. DUNCAN. How would you respond to statements that if your

utility district only had sought a permit from the State, the district

would not have been held liable for cleanup and subsequent monitoring action?

Mr. WILLIAMS. That’s an interesting question. You go back 20

some years, at the time, 1978, massive fish kills on the Mokelumne

River, which is a reservoir that we owned. It is a huge recreational

resource in the Sierra foothills. Unabated discharges of acid mine

drainage, high in copper loadings, into this reservoir. And we get

approached by the State regulatory body that actually issues permits. And they say, you don’t need a permit for this, would you

participate in this abatement effort and build this berm that would

keep the acid mine drainage from running into the river.

With 20-20 hindsight, but at the time, on the ground, we said,

yes, we will. Obviously we were wrong, because a court ultimately

determined that the fact that periodically in heavy rain types of

situations there was a spillway on that berm and that spillway

could overflow. And what overflowed was going to receiving water

in the United Sates, and it did not meet water quality standards.

So we got burned.

Mr. DUNCAN. All right, well, thank you very much.

Ms. Johnson.

Ms. JOHNSON. Thank you very much, Mr. Chairman.

Mr. Pizarchik, from Pennsylvania, you have a State legislative

action on Good Samaritans. Tell me exactly how that works. How

do you go about encouraging people?
17

Mr. PIZARCHIK. At the time we had that legislation enacted, we

also had a bond sale that was approved, and where it has raised

$650 million for watershed improvements projects, spring cleanup

projects. Our agency used that money for grants to watershed

groups to do cleanup streams, but also helped to encourage the construction of watershed groups.

As part of the Environmental Good Samaritan Act, we have a

fact sheet out that we distributed to watershed groups, we have

watershed coordinators in our various district mining offices that

attend these types of meetings. We have a formal guidance document that lays out the process about how a group can come in

under the protections of that particular statute.

They submit their proposal to our agency. We review it for the

purposes of determining whether or not it is going to make the

water quality better, to improve water quality. We also get all the

participants identified. We track that information in a data base.

And for whatever sources these folks are using for their money,

they go out and will complete the project. We work with them on

that particular project.

Our Good Samaritan Act provides them protections under any

citizen suit provisions under our State laws, or State Clean Water

act. And it also protects those folks should anybody be injured

while the project is occurring. It allows for future protection as

well, if that project should fail at some point in the future, if their

treatment system failed, they would not have liability under at

that point as well.

In addition, we also undertake a public notice provision where

we notify the adjacent property owners and downstream riparian

landowners and give them an opportunity to have input on the

project, to make sure that any concerns that they may have would

be considered in the approval or incorporated into the plan, in

order to help project them from any adverse consequences.

In essence, what we have for those approved projects, it is set up

pretty much as an affirmative defense if someone were to try to

challenge or to sue those people for anything that happened out on

that project, or for something that might happen in the future. And

we maintain a data base that lists the participants, the location of

the projects, et cetera, so it is accessible to any members of the

public to be raised as that type of an affirmative defense.

Ms. JOHNSON. Thank you very much.

Anyone else with a program that might not be codified yet? All

codified?

Mr. FROHARDT. Thank you, Representative Johnson. In Colorado,

we have not adopted any State law at this point. There has been

some consideration of that. But because the ultimate liability concern really is the Federal law, and obviously we can’t affect that

liability, we have made the decision at this point not to do anything especially with our State law until Federal law hopefully gets

addressed.

Ms. JOHNSON. Mr. Williams, do you have anything similar?

Mr. WILLIAMS. In terms of a State law?

Ms. JOHNSON. Well, whether you have a law or not, whether you

have maybe a volunteer program, and how it works.
18

Mr. WILLIAMS. No, there is concern right now with respect to

adoption of the TMDLs. That is something that many POTWs are

concerned about. And that is that absent a framework of any kind

of an offset program, and absent any fix with respect to liability

issues, the concern is that if you are a de minimis source and the

TMDL gets adopted, and you are at a point where the only thing

that you could possibly do aside from adding very expensive treatment facilities is try to do source control.

And you do that, but you know that the source control isn’t going

to get you to the end point, the concern is that you will be

ratcheted down because you are a point source, and be leveraged

to go out and do something. The situation is, do something until

we tell you it is enough. And that is the concern that we have as

a POTW community.

Ms. JOHNSON. Thank you very much, Mr. Chairman.

Mr. DUNCAN. All right, thank you, Ms. Johnson.

There are so many parts of this that we haven’t covered, and we

are going to be getting into some votes in just a few minutes, and

we are going to have to move on to the next panel. But just for a

few examples, our staff, when we were discussing this yesterday,

we came up with some of these things, whether Good Samaritan

legislation is necessary, who should be allowed to remediate with

reduced liability, whether and to what extent anyone should try to

find the original responsible parties, whether in some circumstances environmental standards should be made more flexible

in order to achieve at least partial cleanup, what and how cleanup

benchmarks or standards should be applied in Good Samaritan

cleanups, whether citizen suits should be allowed against a party

acting as a Good Samaritan, what are the restrictions on these

suits? That is a difficult question there.

Whether to extend Good Samaritan protections to abandoned

coal as well as hardrock mines, whether to extend Good Samaritan

protections to public as well as private lands, what incentives

should be extended to encourage Good Samaritan cleanup? That is

a potentially interesting thing, too. Whether and what circumstances and by whom re-mining of abandoned mine sites

should be allowed. Re-mining could be a big question. Whether and

how to set up a funding mechanism to pay for cleanup of abandoned mine sites. Who should administer a Good Samaritan program.

I mean, these are just a few of the questions. And the reason I

covered these things, very quickly, like I said, we are going to have

to move on to this next panel. But to help us, if there is anything

that I haven’t covered here or anything that I have mentioned

there that creates some thoughts in your minds, I wish that you

would, I hope you would be willing to submit an additional statement or comments that we can place in the record. You would have

to do that within the next few days, if you could do that. But that

would be very helpful to go into the final report of this hearing.

So we thank you very much for being with us today and for coming long distances to be here. You have been really outstanding

witnesses, in my opinion. Thank you very much.

We will proceed with the next panel, and hopefully we can get

in their statements before the votes occur. We have as the second
19

panel, representing the Center of the American West, Ms. Patricia

Nelson Limerick, Ph.D, Professor of History and Faculty Director

at the University of Colorado at Boulder; representing the National

Mining Association, we have Mr. John Mudge, who is the Director

of Environmental Affairs of the Newmont Mining Corporation from

Reno, Nevada; we have representing Trout Unlimited Mr. Chris

Wood, who is Vice President for Conservation Programs, and he is

based here in Arlington, Virginia; and we have representing the

National Environmental Trust Ms. Velma M. Smith, Senior Policy

Associate, and she is here in Washington.

We are very pleased and appreciative that all of you would take

time out from your busy schedules to come here. You have probably

heard me say that your full statements will be placed in the record.

You will be given six minutes, but I stick strictly to that. If you

see me wave this, I do that to try to be polite to the other witnesses

and in consideration of members’ schedules, so that they can hopefully get to some questions.

But we will start with Dr. Limerick.

TESTIMONY OF PATRICIA NELSON LIMERICK, PH.D, PROFESSOR OF HISTORY AND FACULTY DIRECTOR, UNIVERSITY OF

COLORADO AT BOULDER; JOHN MUDGE, DIRECTOR, ENVIRONMENTAL AFFAIRS, NEWMONT MINING CORPORATION;

CHRIS WOOD, VICE PRESIDENT FOR CONSERVATION PROGRAMS, TROUT UNLIMITED; VELMA M. SMITH, SENIOR POLICY ASSOCIATE, NATIONAL ENVIRONMENTAL TRUST

Ms. LIMERICK. Thank you very much, Mr. Chairman and members of the Subcommittee. I thank you for your public service, as

an historian and as an American citizen, I have a two-fold appreciation for what you do in your offices.

It is a great honor and privilege to appear before you. I feel particularly fortunate to be speaking on behalf of a good cause, to be

discussing a problem that comes with a solution and a practical

and pragmatic solution at that. We were fortunate to write a report

at the Center of the American West called Cleaning Up Abandoned

Mines, Hardrock Mines in the West, with the support of EPA, with

the participation of Trout Unlimited and with a big debt to the

Western Governors Association.

I must say that writing that report was a spirit-lifting exercise

for us at the Center, because this is not an intractable problem.

This is one of the few environmental issues in which a clear and

workable solution sits before us, a solution carrying bipartisan

sponsorship and support.

Abandoned mines and acid mine drainage present the opportunity for a rewarding, inspirational and I hope precedent-setting

exercise in legislative problem solving. I believe it also represents

an alternative to the polarization and condemnation that I know

wears on you, as it wears on others of us.

Two historical reckonings are involved in this. The first reckoning, obviously, with the legacy of hardrock mining. No one in the

field of history, no one who lives in the west can be in denial for

a moment of the significance and value of mining in building the

west and indeed, building the Nation, winning the Civil War, Nevada silver, I will not give a lengthy historical lecture there, but
20

no one can mistake the importance of mining in building the region

and the Country. So this is not a matter of blame and regret, dealing with these mines. It is instead a realistic reckoning with consequences, and a reckoning that can lead us to an important and

inspirational precedent for other reckonings with the environmental legacy from our national past.

The dimensions of the legacy of abandoned mining and unfortunate mentions are obvious to everyone here, the loss of recreational

opportunities, the impediment to economic development and diversification in western communities, the threat to wildlife, especially

endangered fish species, the impairment of water supplies to downstream municipalities and other users, and even airborne pollution

from the dust from tailings.

It is a daunting matter when you look at the number of abandoned mines. The estimates are of course uncertain. There is no

exact record of this. Numbers as high as 500,000 for the American

west have been given.

But the good news, and often not noted, I think, sufficiently, is

that there is a comparatively small number of abandoned mines

that could be a priority for cleanup. There is no need to treat all

500,000 or whatever the number is. In fact, there would be significant, enormously significant gains from the treatment of a small

percentage of these sites.

Now, the second aspect of reckoning with history comes with our

reckoning with the environmental laws of the 1970s, I know a matter that comes before Congress in all sorts of forums. In this case,

we reckoned with the legacy of the Clean Water Act, and the unforeseen and unintended consequences of that Act as it was written

and then put into practice.

The goals and intentions of the Clean Water Act have proven in

a sense counterproductive in the matter of abandoned mines. We

quote in our report from a man, John Whitacre, one of my favorite,

favorite public officials, the Environmental Policy Advisor to President Nixon and then the Under Secretary of Interior after that,

who was present at the creation of the Clean Water Act and who

says, I think quotably and memorably in our report, ‘‘We did not

envision at the time that the day would come when the zero charge

instruction would prevent Good Samaritans from cleaning up acid

mind drainage.’’ So here we have one statement, I am sure we

could get many others from people present at the time of the passage of the law that the effect on discouraging Good Samaritans

was not an intended part of the passage of that Act.

So honoring the core values of the Clean Water Act requires a

modification of one regulatory element of the original Act. I believe

that, speaking as an historian, an important demonstration of flexibility and a willingness to make sure that an important act of legislation achieves its goals.

The west is well populated with Good Samaritans waiting to get

to work on this issue. These are people, groups of dedicated citizens

currently stymied by an unnecessary obstacle. When they are unleashed they are people with a creative capacity to cobble together

funding resources to find a spectrum of local revenues, Federal

grants programs and even private funding.
21

There is also a significant role potentially for companies and for

the mining industry to play in this. We are talking about local people trying to act responsibly and even heroically to address local

problems and being unnecessarily stymied. This is in other words

a force for good that is easily unleashed. When Good Samaritans

are released from the penalty, I believe we will see material, visible, measurable improvements in many western locations.

The issue of re-mining is, as a number of people have noted, including the Chairman, a difficult issue. But it is my judgment that

there are a limited number of sites involved in the issue of re-mining. It would be interesting to have an investigation—maybe the

Congressional Research Service could help with this—to put this

problem in perspective.

What seems most likely to us at the Center of the American

West is that re-mining, as a possible abuse of the flexibility of the

provisions and requirements that would reduce the penalty on

Good Samaritans, that re-mining poses a marginal risk and should

not be an obstacle to the good that would come from new arrangements on behalf of Good Samaritans.

It seems to me also that adaptive of management flexibility in

appraising the results of particular efforts could play a part in setting the standards in terms of how much improvement in water

quality should be mandated for Good Samaritans.

I conclude with the well-known reality of American life. The

American west is associated with the spirit of optimism and hope.

We are challenged, we are challenged every day, we are called

every day to match the enterprise, pluck and determination of

those who came before us in the west and the cleanup of the abandoned mines as a providential opportunity to demonstrate that we

have that enterprise, that pluck, that determination.

The timing of your considerations also seems to me as an historian to be promising and providential. The stars are coming together. Many of you have ben in meetings on this subject for a long

time. But I think the moment has begun to appear before us when

change can happen.

I ask you as an historian to think of our relationship to posterity,

the American citizens of the future. Good Samaritan legislation

would be a clear and concrete way to court the good opinion of our

descendants. I cannot deny myself what a professional and personal pleasure it would be for me to act as an historian and to

write the history of the creative and positive actions of all of you

as you solve this problem.

Thank you.

Mr. DUNCAN. Thank you very much, Dr. Limerick. Very interesting to say that there would be a significant number that would be

unleashed for this force for good. That is a very hopeful statement.

Mr. Mudge.

Mr. MUDGE. Thank you, Mr. Chairman, Congresspersons. It is a

pleasure to be here today, and especially to work on what appears

to be a win-win situation here.

My name is John Mudge. I am the Director of Environmental Affairs for Newmont Mining Corporation. Newmont is a large, multinational mining company, with extensive operations in the west,

gold and copper primarily, as well as operations on five continents
22

around the world. I have been with Newmont for 24 years, working

in mining and environmental protection aspects associated with

mining, and recognize the importance of doing it right in today’s

world, mining-wise, with environmental protection and reclamation.

But also through that, I recognize the hazards that have been

created out there from past mining, turn of the century mining,

and the abandoned mines that have been associated with that effort. Newmont in our effort really strives to do things right. We

have received a number of reclamation awards over the years. Most

recently we received a 2005 award from the Bureau of Land Management for 40 years of mining on the Carlin Trend in North Central Nevada and sustainability, reclamation and rehabilitation

projects that we have carried out in association with that.

Despite the good work that we have done and our peers do, there

are problems out there that have been discussed in fair detail here.

I am here on behalf of the National Mining Association to endorse

Good Samaritan legislation as we are discussing here today. We

would like this to be a framework for incentives for Government

entities, mining companies, citizen groups, non-profit organizations,

to go forward and voluntarily remediate these problem abandoned

mine lands.

As has been discussed, there are definitely limits and concerns

about voluntarily cleaning up under the current statutes. Clean

Water Act is one. RCRA may be a problem resource, Conservation

and Recovery Act. A third of course is CERCLA. As we have discussed the possibility of entering old mine sites and doing cleanup,

it has really been the Superfund liability under CERCLA that has

dissuaded us from going into those properties.

The possibility of having to face another entity like a State or

Federal Government coming in, cleaning up a property and then

billing us because we spent any time on the property, is a deterrent

that we just haven’t got around to date. The Clean Water Act, and

it has been discussed here today, but the stringent requirement on

discharges and the stringent standards just may not be doable at

some of these abandoned mine sites in any practical way.

This has been pointed out by the Western Governors Association,

National Academy of Sciences and the Center of the American

West in their review of legal impediments to cleaning up abandoned mine lands. We believe that there are five key concepts that

should be in legislation going forward for Good Samaritan cleanup

of abandoned mines. One is that mining companies that are active

today that did not create this disturbance should be allowed to go

in and clean up and it should be authorized under this Good Samaritan language. We have the know-how, the technology and in

some cases the processing facilities nearby to carry out this work.

These projects should be authorized by a permit issued by the

EPA. The EPA has the knowledge and the authority to set standards and to work with the permittee.

Mr. DUNCAN. You can keep going.

Mr. MUDGE. My time never came up here, so—

Mr. DUNCAN. You are fine.

Mr. MUDGE. I am in good shape? Good.
23

So the third component, Good Samaritan projects should be allowed to go forward as long as they will benefit the environment,

even if they won’t meet necessarily the stringent standards of acts

like the Clean Water Act. The perfect should not be the enemy of

the good in this case.

The fourth point, the EPA and the States should be given really

the discretion and the authority to establish what the provisions

would be in this Good Samaritan permit and the cite-specific conditions need to be taken into consideration. What are the issues,

what are the sources of pollutants, what are the various bodies of

water and such that might be impacted.

The fifth point is, the types of remedial activities that can be authorized under the Good Samaritan permit must include the processing and the re-use of ores, minerals, wastes, mineral processing

wastes, and the like. It is that aspect that the mining industry has

the knowledge, has the capability and has the ability and the

equipment to deal with.

In conclusion, legislation that embodies these five points that I

have mentioned, and that will provide incentives to mining companies and other entities to go forward voluntarily, to remediate

these AMLs, while fully protecting the environment and the interests of the public, should go forward. We commend the Subcommittee’s attention to the Senate bill, S. 1848, introduced by Senators

Allard and Salazar. We believe the Salazar-Allard legislation contains the elements necessary to remove the existing legal impediments that currently deter mining companies and others from undertaking investigations and remediations at these AMLs.

We also believe that it fully protects the public interest by requiring EPA and States to sign off on any Good Samaritan permit

and by only allowing such permits in situations where the environment will be significantly benefitted.

I would be happy to answer questions at the appropriate time.

Thank you.

Mr. DUNCAN. Thank you very much, Mr. Mudge.

Mr. Wood.

Mr. WOOD. Thank you, Mr. Chairman, Ranking Member Johnson, and other members of the Subcommittee. It is an honor to be

here today to talk about abandoned mine cleanup and to share

with you some of what we have learned on our own on the ground

work cleaning up abandoned mines throughout the east and the

west.

Trout Unlimited has about 160,000 members in 36 States across

the Country. We have a long history of engaging in watershed restoration projects that improve fisheries and water quality and otherwise improve watershed health. In fact, each of our more than

400 chapters donates well more than 1,200 hours a year in volunteer service doing stream cleanups, including a number of abandoned coal and hardrock mine projects.

Since the creation of the Office of Surface Mining’s Abandoned

Mine Reclamation Fund in 1977, more than $7.5 billion has been

collected from the coal industry to help heal Appalachian and western coal fields. In places such as Kettle Creek watershed of North

Central Pennsylvania, our work provides an example of how you
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can use those resources to both accomplish ecological restoration as

well as achieve economic opportunities.

In some of the places that we work in that State, thanks in large

part to Pennsylvania’s Good Samaritan legislation, which you

heard about earlier, coal contributing to acid mine drainage is

mined as part of a remediation plan. And then follow-up reclamation work can virtually eliminate abandoned mine drainage. Trout

Unlimited is working with the Commonwealth of Pennsylvania, the

Office of Surface Mining and other partners to extend this combination of active and passive treatments, habitat restoration and

community education to the Broader West Branch watershed,

which is a watershed that drains 20 percent of the State of Pennsylvania and many, many miles of which are essentially lifeless

due to acid mine drainage.

From a fisheries and watershed health perspective, issues associated with abandoned gold and silver mines and copper mines are

very similar to those of coal mines. The enormity and scope of the

abandoned mine problem in the western United States has led to

a collective sense of futility which I think you have heard a fair

amount about today, that has fostered inactivity in many landscapes.

In 2003, Trout Unlimited decided to restore the American Fork

Creek which is in Utah. This is an area that is visited by about

a million and a half people or so a year. The Forest Service had

reclaimed much of the landscape that was degraded by abandoned

minds on public land. Those areas that were remained were largely

on private lands that were owned by the Snowbird Ski and Summer Resort.

After reaching an agreement with EPA called an administrative

order on consent, Trout Unlimited is now in the midst of removing

the single largest sources of pollution from the private lands in the

watershed. When complete this summer, fisheries and water quality will be significantly improved.

In our view, the two greatest needs for increasing the scope and

scale of abandoned mine cleanup are creating a dedicated funding

source, and establishing a Federal permitting process that encourages Good Samaritan restoration projects. Lack of money and liability concerns are significant barriers to local restoration.

In the coal fields, as I mentioned earlier, the Federal Abandoned

Mine Land Reclamation Fund has collected over $7.5 billion for the

recovery of mine-scarred areas. That legislation needs long-term reauthorization, and the Appalachian Clean Streams Program needs

increased funding.

Mr. DUNCAN. Mr. Wood, I apologize, let me interrupt you there.

I had hoped we could get your full statement in, but we will just

have to interrupt at this point. We have two votes going on. I wish

we didn’t have to do this, but we are going to have to break to do

these votes. We should be back in about 15 minutes, and we will

let you conclude your statement at that time. We will give you

some extra time. Thank you very much.

[Recess.]

Mr. DUNCAN. I am sorry, they drag these votes out sometimes,

and Mr. Wood, we caught you in the middle of your statement. You

may resume your statement.
25

Mr. WOOD. Thank you, sir.

On the American Fork, we were able to cobble together some private and Federal funding, in particular, from the Tiffany and Company Foundation and through the Natural Resource Conservation

Service to initiate our restoration. It is important to note that

cleaning up private lands on the American Fork is not a particularly expensive proposition. To finish doing the job that the Forest

Service started will only cost about $150,000 to $200,000.

There are hundreds if not thousands of other cleanups across the

west that could be conducted if liability issues and funding issues

were addressed. Every commodity developed off public lands has

dedicated funding to pay for cleanup associated with production,

except for hardrock minerals. Communities and organizations such

as ours could get a lot more done if the resources were more readily

available and in more obvious places than they are today.

The other impediment that we have talked a lot about this morning to making progress on the ground is a clear permitting process

for Good Samaritans who wish to recovery abandoned mines. While

CERCLA and the Clean Water Act are outstanding mechanisms for

preventing pollution and holding polluters accountable, on many

sites those polluters are long gone. Liability concerns can prevent

Good Samaritan cleanups, as you have heard already today from

taking place.

Our experience is that using existing tools to facilitate cleanup

by Good Samaritans sometimes feels like pounding a square peg

into a round hole. We are making progress, however. For example,

the agreement that we reached with EPA on the American Fork

can serve as a model for other cleanups across the Country. Our

agreement protects Trout Unlimited by making our essential obligation the completion of an agreed-upon cleanup plan. In exchange

for raising the money and doing the work, we get from EPA a covenant from the EPA not to sue us if they decide to go after a polluter; protection from other potentially responsible parties suing

us, if EPA goes after them; a cap on our own liability if EPA chooses to step in and complete the work itself; and an expedited permitting procedure for meeting State and Federal legal requirements.

Once we complete the cleanup to the specifications of the plan

and the satisfaction of EPA, we walk away. Too often, trailing liability concerns from the Clean Water Act and CERCLA are seen

as impeding this kind of agreement.

Our administrative order on consent with EPA provides a model

that can be replicated and alleviate many, if not all, the liability

impediments to cleaning up abandoned mines. The fact is, though,

that we never would have completed this agreement were it not for

the direct involvement of Ben Grumbles’ shop, Brent Fewell and

the rest of the Office of Water and Administrator Johnson himself.

Such extraordinary intervention should not be required for projects

as small in scale as the American Fork. Now that the first one is

complete, we expect and hope that future cleanups and future

agreements will be easier to obtain.

In closing, the position of Trout Unlimited is that whether

through new legislation or the creation of a new permitting system

at EPA under existing law, a lot of good work can be done to im-
26

prove the quality of people’s lives and the health of our lands.

Thank you for inviting me to testify today.

Mr. DUNCAN. Thank you very much, Mr. Wood.

Ms. Smith.

Ms. SMITH. Thank you, Mr. Chairman. Since I am last in the

lineup here, I am going to try to help your deliberations by getting

straight to the point. You have heard this morning a number of

speakers focus their concerns on the chill that the Clean Water Act

seems to have on those who might opt to get in mine cleanups. We

fully understand that parties, be they local governments, water

utilities, or groups like Chris’s may be hesitant to become holders

of Clean Water permits.

We actually have some sympathy with their cautions, but we also

believe that the concerns that have been raised can and in fact

have, as Chris was just talking about, been addressed by working

closely with regulators, carefully planning and tailoring cleanup

projects to the appropriate scale and type, sometimes avoiding any

discharge at all and working out appropriate consent agreements

where necessary.

The folks from Pennsylvania earlier talked about a program that

is working. Chris talked about cleanup that is working. And we believe that others can follow using that model consent agreement.

We think that caution is important. When it comes to mine

cleanup, some significant caution is warranted. I would just draw

your attention back to the case of the Penn Mine. It is actually one

of those examples where, although conducted with the best of intentions, a mine cleanup actually went back and created new problems. I think that is what you need to guard against.

More importantly, we don’t believe that the Good Samaritan

projects are the real crux of the problem. There are down sides in

trying to craft, it is difficult, as you drew out, Mr. Chairman, trying

to figure out how craft legislation so you don’t have projects that

make mistakes and you don’t weaken liability and stop cleanup at

sites like Arrington, Nevada or Kennecott in Utah.

The inescapable fact is that there is an enormous universe of

abandoned mines, perhaps in the range of half a million total, and

neither industry nor Government is spending enough money to

make a serious dent in the problem. Money is the single most important barrier to cleanup. Congress needs to appropriate more

funds for cleanup. States need to contribute more to cleanup. And

the hardrock mining industry needs to follow the approach of their

coal mining brethren picking up a share of the cost of cleaning up

legacy mining problems.

The other part of the problem is that not all of mining’s problems

are in the past. There are many mines, like those in the Copper

Basin of Tennessee, Mr. Chairman, that do fit that image of the

legacy or historic mine. But there are many more that are far more

recent vintage. The west is dotted with abandoned mines that date

from the 1980s, not the 1880s, but the 1980s when gold, copper and

uranium mining were booming. Too many of those boom projects,

once touted as environmental models and economic windfalls, have

left large and costly messes.

These messes exist today, threats to public health and the environment and drains on the Federal Treasury, because the pro-
27

grams for regulating hardrock mining have failed. There is a desperate need for improvement of mining regulation, for a reasonable

and enforceable program to govern disposal of mine waste, for financial assurance rules that actually assure that cleanup funds are

available when mining operations cease.

In our view, the pressing need today is not to hurry along modest

cleanup projects. Some of those will do good, but others, hurried,

will go wrong and themselves have to be remedied. The pressing

need is for improved regulation. The pressing need is for scrutiny

and controls that recognize that perpetual pollution can occur at facilities like the Zortman Landusky Mine in Montana. The pressing

need is for a regulatory system that deals with the vast amount of

toxic waste produced by this industry.

Now, while the industry is on the crest of a boom, action to assure that this new generation of mining projects does not yet yield

another generation of mining messes is what is needed. If as apparently you are anxious to legislate something to aid Good Samaritans, we urge you to look on the model of a demonstration

project with funds, a demonstration project that looks at it on a

watershed basis, that makes sure that there is appropriate baseline

data, that engages mining reclamation experts, that includes a

bond pool or other mechanisms to underwrite financial assurances

for projects, and that doesn’t undermine the liability that governs

cleanup at other sites and that excludes re-mining.

We look forward to working with you, Mr. Chairman, and I look

forward to your questions. Thank you.

Mr. DUNCAN. Ms. Smith, I am interested in your last few words

there. You said that excludes re-mining. Do you think it would ever

be possible to re-mine at an abandoned site in an environmentally

safe way? Or do you think that is impossible?

Ms. SMITH. I don’t know that the act of re-mining itself couldn’t

be done in an environmental way. I don’t think it should be part

of a waiver or exclusion. The fact is that many mining projects, especially in the west today, most all of them are probably at some

level of re-mining. They are going back into old mining districts.

Summittville, Colorado, which was one of the sort of poster children of bad mine problems, actually was back in an area that had

been mined before. There are a whole variety of mining projects

that are going back into old areas. Which is not to say that you

wouldn’t want to go in and re-mine, just don’t handle those, as a

matter of a Good Samaritan project, with a streamlined permitting

process. Just let them be mining projects.

Mr. DUNCAN. Since you say that some of the 1980s projects or

areas that were mined, and they were described as environmentally safe at that time, and now they are disasters or harmful

areas in your opinion, do you feel that mining companies should be

excluded from any Good Samaritan legislation?

Ms. SMITH. I think the best way to get, if you want to move on

this, is to get going with local governments, watersheds, water utilities, non-profit groups. I don’t imagine, I think that the contribution that the mining industry could make would be like the coal

mining industry has made under SMCRA, which is to contribute a

certain percentage of profits or gross to a mine cleanup fund. I

think that could be the primary role for the mining industry.
28

Mr. DUNCAN. Mr. Mudge, what do you say? When you heard Ms.

Smith say that we should exclude re-mining, what is your position

on her response to those last two questions?

Mr. MUDGE. I think in terms of re-mining, re-mining needs to be

defined. If re-mining is going into an abandoned mine site and

picking up mineralized materials that were left at the site and

processing those, most likely to remove the metals, then re-mining

absolutely should be allowed.

If re-mining means not only doing that, but then developing a

new deposit of ore that may underlie that, then the myriad of State

and Federal permits that are in place now would cover that activity

outside of this legislation.

Mr. DUNCAN. Ms. Smith referred to the gold and copper mining

boom of the 1980s and said that many of those areas are environmental problems at this point. Do you know what she is talking

about there? Has new mining, do you have any projects from the

1980s that were described as environmentally safe at that time

that are hazardous or problem areas now?

Mr. MUDGE. Well, a couple of examples. We have been mining on

the Carlin Trend since 1965, and continue to develop those deposits. The rules and the regulations have changed over time. We have

helped manage those changes, and we have brought our facilities

up to today’s standards over that time.

We have one facility that started up in the 1950s under old

Atomic Energy Commission contracts. As we got into the 1980s, we

built it according to more like today’s standards, but there are

some issues that date back way prior. But for the most part, our

facilities that have been going since the 1960s, 1970s, 1980s are in

very good shape environmentally.

Mr. DUNCAN. Dr. Limerick and Mr. Wood, do most of these

projects, can they be done without very, very large amounts of

money, or do you think that most of these projects would be, that

it is very, very expensive to clean up these mine sites? Let’s just

go with that. What has your experience been in that regard?

Mr. WOOD. Our experience is that it varies. But I can use the

American Fork as an example. The engineering involved on the

American Fork was really straightforward. We essentially dug a

pit, created a repository, moved some tailings that were leaching

into the American Fork Creek and harming Bonneville Cutthroat

trout, moved those tailings into the hole, actually this work is

going to be conducted this summer, and then we are putting a liner

over it, re-vegetating and then recontouring the land to keep the

drainage away.

It will have a significant effect on water quality in the river, and it will cost us between $150,000 to $200,000 for the project.

Ms. LIMERICK. I would simply add that the goal of perfection is

very expensive, that the pursuit of perfection would be prohibitive.

But the pursuit of significant change and significant improvement,

I think that is within the reach of manageable.

And again, I have been really struck by the pluck and spirit and

originality of some of these groups in fighting multiple sources,

whether that is a local sales tax or a district bond or something

like that. It is really quite remarkable to me how many different

funding sources can open up on that.
29

But what I wouldn’t want is, well, that is exactly why we are

here to have this discussion, is a standard of something close to

perfection which is prohibitive in cost.

Mr. DUNCAN. What other incentives could we come up with or

could communities come up with to encourage abandoned mine

cleanup other than the Good Samaritan legislation that we are

talking about?

Ms. LIMERICK. The matter of incentives, as an historian, to me

is very interesting. I personally am privately a supporter of getting

as many incentives into play as possible. But I do understand that

there is, in some circles in the environmental community, a real

anxiety that opening the door to financial profit from companies

could return us to the late nineteenth century in a free-for-all. That

seems to me as an historian an exaggerated fear.

But I do understand that we have to walk very carefully when

we seem to be opening the door to market incentives for companies

and re-mining is of course the trigger point for that.

My feeling is that there is an enormous financial benefit to companies who take part in this in public relations, and a really good

set of community relations and good feelings from citizens, public

officials, regulators. But I really come from our work to have a

deep recognition of how jumpy that subject of market incentives

and other financial rewards for people doing the right thing.

I am struck, one of the few people I know in this whole discussion who went back and read the Bible and read the Good Samaritan parable and thought, who is this Good Samaritan, it is very

striking to see that the Good Samaritan not only helped the poor

soul by the road, but then puts a lot of money into it, says to the

innkeeper, I will be back here on my return trip and if you need

more money I will give it to you. So if we go by the Bible, and I

know I’m speaking in the wrong framework here, but there is a financial investment.

But I just think for the purposes of getting things moving, decoupling the Good Samaritan relief from the matter of funding that it

is probably best not to read Luke at this point in time in our discussion.

Mr. DUNCAN. I think Mr. Mudge and Ms. Smith want to make

comments. Mr. Mudge?

Mr. MUDGE. Frankly, the incentive for us is good will. We are always looking for good projects that we can show to the community

and to really improve mining’s reputation. We have done a project

on the Carlin Trend, actually working with Trout Unlimited to improve the habitat for a threatened trout. There happens to be an

abandoned mine also in this same drainage on BLM property.

There has been some discussion about how we can help on that

abandoned mine.

In an effort to holistically improve this whole drainage, it is

something that we would be very interested in doing. And the good

will and the reclamation awards we get out of it go a long way in

our organization. But as we have talked before, there is the impediments and deterrents to doing that.

Mr. DUNCAN. Ms. Smith?

Ms. SMITH. Yes, Mr. Chairman. I think programs like Pennsylvania where there is transparency, there is planning, there is prior-
30

ity setting, they are looking on a watershed basis, they are engaging the public in mine cleanups, engaging experts, keeping—and

doing that, I believe you can do that within the framework of consent agreements and within the framework of the Clean Water Act.

Mr. DUNCAN. So you believe the Pennsylvania program is a pretty good program?

Ms. SMITH. I think that might a model to learn from for other

States. To look at a watershed basis, to prioritize, not to do a little

bit over here, a little bit over there, but try to prioritize where

small projects can get you the best result.

I also think that in some projects, and where you can identify

ones that will be really truly small, where you are moving some

waste, where you perhaps are not touching the water itself. I think

for the ones that deal with discharges, then what the States, the

Feds could do is step up to the plate and have someone who will

be the keeper of the permit for perpetuity, because many of these

sites, you are going to have to treat the acid mine drainage forever.

You can’t just build a facility and walk away.

That is one of the issues in terms of Penn Mine, was the best

of intentions, but the facility they built was not engineered correctly, and it wasn’t maintained. Then you ended up with more

problems.

But if someone, if the State, if the local government wants to say,

we will take the responsibility for the ongoing discharge, but we

will take the help for the revegetation, the planting, the other kind

of work, then those are the kinds of programs that you can have

within the framework of the Clean Water Act now.

Mr. DUNCAN. All right. Mr. Woods.

Mr. WOOD. Perhaps for slightly different reasons than Velma

mentioned, I think Pennsylvania also provides an outstanding

model. We have done a lot of work there in the Kettle Creek watershed extending now into the West Branch. The two incentives that

the State provides are, or three incentives, are the liability relief,

which is real and significant, technical resources to help out these

groups with planning, design planning and such, and then the last

incentive, which is, it just can’t be overstated, is financial resources. The State has made available, I think it is over $650 million for their Growing Greener program to fund a lot of these cleanups.

Mr. DUNCAN. All right. Well, let me apologize to you once again.

I am running late for another meeting now. You have been very

helpful. I will say the same thing to you that I said to the first

panel, that if you have additional comments or suggestions that

would be helpful to us, we will keep the record open for just a few

days, if you could get those to us by some time next week, they will

be included in the record of the hearing. We will refer to them

when we work on this legislation.

Thank you very much for being with us and that will conclude

this hearing.

[Whereupon, at 12:17 p.m., the subcommittee was adjourned.]
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136

Æ