U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

42–281PDF 2009

S. HRG. 109–1043 

OVERSIGHT HEARING TO CONSIDER WHETHER 

POTENTIAL LIABILITY DETERS ABANDONED 

HARDROCK MINE CLEANUP 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED NINTH CONGRESS 

SECOND SESSION 

JUNE 14, 2006 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://access.gpo.gov/congress.senate 
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED NINTH CONGRESS 

SECOND SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

JOHN W. WARNER, Virginia 

CHRISTOPHER S. BOND, Missouri 

GEORGE V. VOINOVICH, Ohio 

LINCOLN CHAFEE, Rhode Island 

LISA MURKOWSKI, Alaska 

JOHN THUNE, South Dakota 

JIM DEMINT, South Carolina 

JOHNNY ISAKSON, Georgia 

DAVID VITTER, Louisiana 

JAMES M. JEFFORDS, Vermont 

MAX BAUCUS, Montana 

JOSEPH I. LIEBERMAN, Connecticut 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

HILLARY RODHAM CLINTON, New York 

FRANK R. LAUTENBERG, New Jersey 

BARACK OBAMA, Illinois 

ANDREW WHEELER, Majority Staff Director 

KEN CONNOLLY, Minority Staff Director 

(II) 
(III) 

C O N T E N T S 

Page 

June 14, 2006 

OPENING STATEMENTS 

Boxer, Hon. Barbara, U.S. Senator from the State of California ....................... 14 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma ................... 1 

Jeffords, Hon. James M., U.S. Senator from the State of Vermont ................... 4 

Thune, Hon. John, U.S. Senator from the State of South Dakota ..................... 33 

Vitter, Hon. David, U.S. Senator from the State of Louisiana ........................... 6 

WITNESSES 

Allard, Hon. Wayne, U.S. Senator from the State of Colorado .......................... 7 

Prepared statement .......................................................................................... 38 

Salazar, Hon. Ken, U.S. Senator from the State of Colorado ............................. 9 

Prepared statement .......................................................................................... 38 

Ellis, Dennis E., Executive Director, Colorado Department of Public Health 

and Environment ................................................................................................. 20 

Prepared statement .......................................................................................... 41 

Response to an additional question from Senator Jeffords ........................... 43 

Gioia, John, chair, Board of Supervisors of Contra Costa County and Contra 

Costa County Flood Control and Water Conservation District ........................ 23 

Prepared statement .......................................................................................... 43 

Harwood, Terry A., Former Executive Director, Hazardous Materials Policy 

Council, USDA; Former Chief Environmental Engineer, USFS ...................... 25 

Prepared statement .......................................................................................... 45 

Responses to additional questions from: 

Senator Inhofe ........................................................................................... 47 

Senator Jeffords ......................................................................................... 48 

Johnson, Stephen L., Administrator, U.S. Environmental Protection Agency ... 12 

Prepared statement .......................................................................................... 48 

Responses to additional questions from: 

Senator Inhofe ........................................................................................... 51 

Senator Jeffords ......................................................................................... 51 

Lewis, Scott A., director, Environmental and Governmental Affairs, 

AngloGold Ashanti North America, INC ............................................................ 26 

Prepared statement .......................................................................................... 54 

Responses to additional questions from Senator Inhofe ............................... 58 

Smith, Velma M., senior policy associate, National Environmental Trust ......... 22 

Prepared statement .......................................................................................... 64 

Responses to additional questions from: 

Senator Inhofe ........................................................................................... 71 

Senator Jeffords ......................................................................................... 73 

ADDITIONAL MATERIAL 

Article, Daily Journal, Wednesday, March 2, 1994; Good Intentions Do Not 

Confer a Right to Pollute ..................................................................................... 76 

Letters: 

East Bay Municipal Utility District ....................................................................... 77 

National Association of Clean Water Agencies ..................................................... 82 

Trout Unlimited ....................................................................................................... 84 
Page

IV 

Undersigned groups; Trout Unlimited, Izaak Walton League of America, 

American Fly Fishing Trade Association, BASS/ESPN Outdoors, Federation 

of Fly Fishers, Theodore Roosevelt Conservation Partnership, American 

Sportfishing Association ...................................................................................... 80 

Western Governors’ Association ............................................................................. 88 

Testimony, GAO, Environmental Liabilities: Hardrock Mining Cleanup 

Obligations ............................................................................................................ 91 
(1) 

OVERSIGHT HEARING TO CONSIDER WHETHER POTENTIAL LIABILITY DETERS ABANDONED HARDROCK MINE CLEANUP 

Wednesday, June 14, 2006 

U.S. SENATE

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

Washington, DC. 

The committee met, pursuant to notice, at 9:30 a.m. in room 628, 

Senate Dirksen Building, Hon. James M. Inhofe (chairman of the 

committee) presiding. 

Present: Senators Inhofe, Warner, Thune, Vitter, Jeffords, and 

Boxer. 

Senator INHOFE. Our meeting will come to order. Senator Jeffords and I have a policy that we start on time, even if we are the 

only ones here, and that is what is happening. 

OPENING STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

It has been 6 years since the EPW Committee has held a hearing 

on the issue of whether liability concerns are a deterrent to the 

cleanup of abandoned hard rock mines. In reviewing that hearing’s 

testimony, I was struck by the fact that both Senator Mike Crapo, 

the former chairman of the Subcommittee on Fisheries, Wildlife, 

and Water, as well as Senator Baucus, the former chairman of this 

committee both asked that we not let the perfect be the enemy of 

the good. Here we are 6 years later and several legislative proposals later, and I fear that is exactly what has happened. 

We have come here today to find common ground as to how exactly liability fears are causing Good Samaritans to walk away 

from cleaning up abandoned mines. It is estimated that there are 

over 500,000 abandoned hardrock mines littering our country, and 

the Western Governors Association estimates that nearly 20 percent of them are posing a significant risk to the waterways into 

which they discharge. 

It is particularly important to understand what is the abandoned 

hardrock mine. These are mines from the Gold Rush Era and 

mines that produced the ores and metals that were needed during 

World War II. They are also mines that were abandoned long before modern environmental laws were enacted. Interestingly, it is 

those very laws which have protected our natural resources that 

may in fact be hindering the restoration of some of the States’ waterways. This is certainly never the intent. 
2 

John Whitaker, President Nixon’s Undersecretary for the Environment said, ‘‘We did not envision at the time that the day would 

come when the Zero Discharge Provision’’ FE-we are talking about 

the Clean Water Act in this case FE-‘‘would prevent Good Samaritans from cleaning up acid mine drainage or when the onerous and 

costly Federal permit requirements would snuff out any economic 

incentive to curb the acid mine drainage problems associated with 

abandoned mines.’’ Keep in mind, that was back during the Nixon 

administration. 

In light of the potential magnitude of the problem, if we were to 

enact legislation, we must broadly define the Good Samaritans, so 

that as many innocent parties as possible can participate while 

taking necessary precautions to ensure that those who may have 

had any role in the mining of these sites are legally and financially 

accountable. No one here today proposes to violate the Polluter 

Pays concept. 

I was pleased to introduce, by request of the Administration, a 

Good Samaritan legislative proposal. As part of the President’s 

commitment to cooperative conservation, the Administration has 

put forth a proposal to address the liability concerns of potential 

Good Samaritans. The Bush administration is following on support 

by the Clinton administration for the concept of addressing these 

liability issues. 

Charles Fox, who was President Clinton’s Assistant Administrator for Water, testified in 2000 on Senator Baucus’ Good Samaritan legislation. This is Charles Fox from the Clinton administration, he said, ‘‘Unfortunately, there are limitations under the Clean 

Water Act that often hamper remediation and restoration activities 

at abandoned mine sites. In particular, the permitting requirements under Section 402 of the Clean Water Act require that the 

permittee meet all requirements and fluid discharge limits set out 

in their discharge permit. These discharge limits include water 

quality standards that have been established for the body of water 

into which the treated fluid is discharged. In addition, these requirements mean anyone conducting reclamation or remediation in 

an abandoned mine site may become liable for any continuing discharges from that site.’’ Again, that was Charles Fox who made 

that statement back during the Clinton Administration. 

Further, there have been bipartisan bills introduced in each of 

the past three Congresses, and the only person on all three of these 

bills was Senator and Minority Leader Harry Reid. For three Congresses and two Administrations, there has been bipartisan consensus that liability is a factor affecting these cleanups, and clearly 

Senator Reid agrees that we can’t let the perfect be the enemy of 

the good. 

We will hear today from a potential Good Samaritan who had 

funding available to clean up a mine but did not do it because of 

the fear of liability. We also will hear from the mining industry 

that may be better suited than anyone else to be a Good Samaritan. Today’s mining industry is not responsible for the practices of 

several generations ago. They have the expertise, knowledge and 

resources to be able to effectively, quickly, and cost-efficiently restore more of these sites than potentially any other group. 
3 

We have been presented with a unique opportunity, thanks in 

large part to the Administration’s proposal and to our two fellow 

Senators, Senator Allard and Senator Salazar, who came together 

to craft this bipartisan bill. Their bill is co-sponsored by two of the 

EPW Committee members, Senator Baucus and Senator Isakson. 

To put the final piece in place, our colleagues in the House have 

already held a hearing on this issue. 

There is now more momentum behind addressing this problem 

and restoring thousands of waterways than ever before. However, 

we must be sure that other non-related issues involving Superfund 

should not be part of this discussion and do not end up killing this 

opportunity. I urge all of those concerned about clean, fishable, 

swimmable waters to help Congress seize this great opportunity 

and pass the Good Samaritan Law this year. 

[The prepared statement of Senator Inhofe follows:] 

STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM THE

STATE OF OKLAHOMA

It has been 6 years since the Environment and Public Works Committee has held 

a hearing on the issue of whether liability concerns are a deterrent to the clean up 

of abandoned hardrock mines. In reviewing that hearing’s testimony, I was struck 

by the fact that both Senator Mike Crapo, the former chairman of the Subcommittee 

on Fisheries, Wildlife and Water as well as Senator Baucus, former chairman of the 

EPW Committee, both asked that we not let the perfect be the enemy of the good. 

Here we are 6 years and several legislative proposals later and I fear that is exactly 

what has happened and what will continue to happen. 

We’ve come here today to find common ground as to how exactly liability fears 

are causing Good Samaritans to walk away from cleaning up abandoned mines. It 

is estimated that there are over 500,000 abandoned hardrock mine sites littering 

our country and the Western Governors Association estimates that nearly 20 percent of them are posing significant risks to the waterways into which they discharge. 

It is particularly important to understand what an abandoned hardrock mine is. 

These are mines from the gold rush era and mines that produced the ores and metals needed to build weapons during World War II. They are also mines that were 

abandoned long before modern environmental laws were enacted. Interestingly it is 

those very laws that have protected our natural resources for so many years that 

may in fact be hindering the restoration of some of the States’ waterways. This was 

certainly never the intent. John Whitaker, President Nixon’s Undersecretary for the 

Environment noted, ‘‘We did not envision at the time that the day would come when 

the zero discharge provision [of the Clean Water Act] would prevent Good Samaritans from cleaning up acid mine drainage or when the onerous and costly Federal 

permit requirements would snuff out any economic incentive to curb the acid mine 

drainage problem associated with abandoned mines.’’ (Center for American West, 

page 23). 

In light of the potential magnitude of the problem, if we were to enact legislation, 

we must broadly define a ‘‘Good Samaritan’’ so that as many innocent parties as 

possible can participate while taking necessary precautions to ensure that those who 

may have had any role in the mining of these sites are held legally and financially 

accountable. No one here today proposes to violate the polluter pays principal in 

which we all so firmly believe. 

I was pleased to introduce by request the Administration’s Good Samaritan legislative proposal. As part of the President’s commitment to cooperative conservation, 

the Administration has put forth a proposal to address the liability concerns of potential Good Samaritans. The Bush administration is following on support by the 

Clinton administration for the concept of addressing these liability issues. As 

Charles Fox, Clinton’s Assistant Administrator for Water testified in 2000 on Senator Baucus’ Good Samaritan legislation: ‘‘Unfortunately, there are limitations 

under the CWA that often hamper remediation and restoration activities at abandoned mine sites. In particular, the permitting requirements under Section 402 of 

the CWA require that the permittee meet all of the requirements and effluent discharge limits set out in their discharge permit. These discharge limits include water 

quality standards that have been established for the body of water into which the 
4 

treated effluent is discharged. In addition, these requirements mean anyone conducting reclamation or remediation at an abandoned mine site may become liable 

for any continuing discharges from that site.’’ Further, there have been bipartisan 

bills introduced in each of the past three Congresses and the only person on all 

three bills was the Senator Minority Leader, Harry Reid. For three Congresses and 

two Administrations there has been bipartisan consensus that liability is a factor 

affecting these cleanups and clearly Senator Reid agrees that we can’t let the perfect 

be the enemy of the good. 

We will hear today from a potential Good Samaritan who had funding available 

to cleanup a mine but opted not to out of fear of liability. We also hear from the 

mining industry that may be better suited than anyone to be a Good Samaritan. 

Today’s mining industry is not responsible for the practices of several generations 

ago. They have the expertise, knowledge and resources to be able to effectively, 

quickly and cost-efficiently restore more of these sites than potentially any other 

group. 

We have been presented with a unique opportunity thanks in large part to the 

Administration’s proposal and to our two fellow Senators Wayne Allard and Ken 

Salazar who came together to craft a bipartisan bill. Their bill is cosponsored by 

two EPW Committee members, Senator Baucus and Senator Isakson. To put the 

final piece in place, our colleagues in the House have already held a hearing on the 

issue. There is now more momentum behind addressing this problem and restoring 

thousands of waterways than ever before. However, we must be sure that other nonrelated issues involving Superfund do not end up killing this opportunity. I urge all 

of those concerned about clean, fishable, swimmable waters to help Congress seize 

this great opportunity and pass a Good Samaritan law this year. 

Senator INHOFE. Senator Jeffords. 

OPENING STATEMENT OF HON. JAMES M. JEFFORDS, 

U.S. SENATOR FROM THE STATE OF VERMONT 

Senator JEFFORDS. Mr. Chairman, the title of this hearing implies that potential liability is the main deterrent to the cleanup 

of the thousands of abandoned mine sites in our country. I believe 

that this is only part of the picture presented in a manner designed 

to move us in only one direction for unnecessary waivers to environmental statutes that will cause undue risk to human health and 

the environment. 

The true story becomes apparent as one evaluates the Nation’s 

hardrock mining policies. There are estimated to be over 500,000 

abandoned contaminated hardrock mines in the United States, including three copper mines in Vermont that have been languishing 

on the Nation’s National Priorities List for years. In 2004, the 

EPA’s Office of Inspector General estimated that the potential 

cleanup costs nationwide could be as much as $24 billion. 

Can we expect Good Samaritans to volunteer to pay more than 

a small fraction of the cost to clean up the Nation’s abandoned 

mines? Of course not. How then, can we solve this problem? 

I propose a twofold solution. First, we need to fully fund the 

Superfund, so that the EPA has the ability to do its job and cleanup contaminated toxic mining sites around the Nation. Due to this 

Administration’s failure to seek reinstatement of the Superfund 

fees, the Superfund program is limping along with about 35 percent fewer dollars in real terms than in 1993. Second, the EPA 

needs to take action to prevent new abandoned mines. 

In a report I requested, the Government Accountability Office 

recommended that the EPA issue long overdue rules to require 

mining companies to set aside money now for existing and future 

cleanups. Yesterday, I co-sponsored legislation sponsored by Senator Cantwell that would require the EPA to take this action. The 

EPA has not pursued these rules and instead chose to put forward 
5 

a legislative proposal to waive the environmental statues rather 

than focus on comprehensive long term solutions. Today’s hearing 

reaches for another reason to justify waiving environmental statutes. 

I urge my colleagues to consider the following questions as you 

listen to today’s testimony. First, is liability actually an impediment? There are several abandoned mine cleanups that have gone 

forward under the EPA’s existing authority. 

Second, what would motivate someone to become a so-called 

Good Samaritan? It is conceivable that a State or a local Government would have an interest in cleaning up water supply for drinking water purposes. It seems contrary then to permit the waiver of 

drinking water standards as part of a cleanup action, but this is 

exactly what one legislative proposal would permit. 

Third, why would a for-profit entity spend millions of dollars on 

cleanups unless it has a financial interest? The legislative proposals referred to this committee would permit remining at cleanup 

sites without the protection of existing environmental statues, 

making this permit scheme a tool for future pollution. 

Fourth, doesn’t the public have a clear interest in seeing that 

abandoned mine cleanups occur? Some legislative proposals appear 

to intentionally restrict the public’s role by minimizing public notice and comment, waiving NEPA, and attaching legal privilege to 

some documents. 

I could go on and on, but in the interest of time, I will submit 

my full list of questions for the record, Mr. Chairman. I believe our 

focus at today’s hearing is inadequate, and I urge our colleagues to 

take a look at the big picture. 

Thank you. 

[The prepared statement of Senator Jeffords follows:] 

STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM THE

STATE OF VERMONT

Mr. Chairman, the title of this hearing implies that potential liability is the main 

deterrent to the cleanup of the thousands of abandoned mine sites in our country. 

I believe that this is only part of the picture, presented in a manner designed to 

move us in only one direction—toward unnecessary waivers to environmental statutes that will cause undue risk to human health and the environment. 

The true story becomes apparent as one evaluates the Nation’s hardrock mining 

policies. There are estimated to be over 500,000 abandoned contaminated hard rock 

mines in the United States, including three copper mines in Vermont that have 

been languishing on the Nation’s National Priorities List for years. In 2004, the 

EPA’s Office of Inspector General estimated that the potential cleanup costs nationwide could be as much as $24 billion. 

Can we expect Good Samaritans to volunteer to pay more than a small fraction 

of the cost to clean up the Nation’s abandoned mines? Of course not. 

How then can we solve this problem? I propose a two-fold solution. 

First, we need to fully fund the Superfund program so that the EPA has the ability to do its job and clean up the contaminated toxic mining sites around the Nation. 

Due to this Administration’s failure to seek reinstatement of the Superfund fees, the 

Superfund program is limping along with about 35 percent fewer dollars in real 

terms than in 1993. 

Second, the EPA needs to take action to prevent new abandoned mines. In a report I requested, the Government Accountability Office recommended that the EPA 

issue long-overdue rules to require mining companies to set aside money now for 

existing and future cleanups. Just yesterday, I co-sponsored legislation authored by 

Senator Cantwell that would require the EPA to take this exact action. The EPA 

has not pursued those rules, and instead, chose to put forward a legislative proposal 

to waive environmental statutes. 
6 

Rather than focus on comprehensive long-term solutions, today’s hearing reaches 

for another reason to justify waiving environmental statutes. 

I urge my colleagues to consider the following questions as you listen to today’s 

testimony. 

First, is liability actually an impediment? There are several abandoned mine 

cleanups that have gone forward under the EPA’s existing authorities. 

Second, what would motivate someone to become a so-called Good Samaritan? It 

is conceivable that a State or local Government would have an interest in cleaning 

up a water supply for drinking water purposes. It seems contrary then, to permit 

the waiver of drinking water standards as part of a cleanup action. But, this is exactly what one legislative proposal would permit. 

Third, why would a for-profit entity spend millions of dollars on cleanups unless 

it had a financial interest? The legislative proposals referred to this Committee 

would permit re-mining at cleanup sites, without the protections of existing environmental statutes, making these permit schemes a tool for future pollution. 

Fourth, doesn’t the public have a clear interest in seeing that abandoned mine 

cleanups occur? Some legislative proposals appear to intentionally restrict the 

public’s role by minimizing public notice and comment, waiving NEPA, and attaching legal privilege to some documents. 

I could go on and on, but in the interest of time, I will submit my full list of questions for the record. 

Mr. Chairman, I believe our focus at today’s hearing is inadequate, and I urge 

our colleagues to take a look at the big picture. 

Thank you. 

Senator INHOFE. Thank you, Senator Jeffords. 

We are delighted to have on the first panel, our fellow Senators, 

Senator Allard and Senator Salazar. 

I want to say something that will surprise everyone here, and 

that is I probably know more about these mines than anybody in 

this room. Back before most of you were born, I went to the University of Colorado and left to go back in the White River Forest country, and I prospected for uranium. At that time, what they had 

called fool’s gold in these abandoned gold mines was really 

carnatite, and I was in there chopping it up. It is just a miracle 

that my remains aren’t in there polluting a lot of streams right 

now. 

[Laughter.] 

Senator Vitter, I am sorry. I didn’t see you way over in the corner there. 

OPENING STATEMENT OF HON. DAVID VITTER, U.S. SENATOR 

FROM THE STATE OF LOUISIANA 

Senator VITTER. Thank you, Mr. Chairman. I will submit my 

opening statement for the record, but I just want to thank you and 

the Ranking Member for this hearing on a very important issue. 

I want to thank our colleagues for their work on the issue and for 

testifying today, and certainly the EPA Administrator. 

This is an important issue because thousands of rivers and 

streams are impacted by acid mine discharge, and many, many 

sites have to be cleaned up. I would hope that we all bring the spirit of common sense and unity of purpose to this discussion, and I 

would hope it would be virtually beyond debate that we want to encourage Good Samaritans, folks in that position, to help with the 

cleanup and certainly don’t want to saddle them with liability for 

pollution they had nothing to do with producing. That should be a 

very common sense, straight forward principle. 

I think if we all focus on that common sense principle and work 

out reasonable language, we can achieve an important result, even 
7 

as we may have continuing disagreements on levels of funding for 

various programs and other things. I encourage that spirit. I thank 

our two colleagues for bringing that spirit to the debate. 

I think they are destined to have some success because I was at 

the Nationals game last night, and the Rockies are on a roll. Senator Allard was there as well. The Rockies are on a roll this week, 

so hopefully that will inure to the benefit of this issue as well. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Vitter follows:] 

STATEMENT OF HON. DAVID VITTER, U.S. SENATOR FROM THE STATE OF LOUISIANA

I want to thank you Mr. Chairman and the Ranking Member for this hearing on 

a very important issue. I want to thank our colleagues for their work on the issue 

and for testifying today, and certainly the EPA Administrator. 

This is an important issue because thousands of rivers and streams are impacted 

by acid mine discharge, and many, many sites have to be cleaned up. Most of these 

mines were developed and abandoned long before modern environmental laws were 

enacted. While those environmental laws have contributed greatly to the restoration 

of our environment, they are not perfect and in small ways may be negatively impacting the ability to clean up these sites. As the witnesses will point out in their 

testimony today, no amount of money will be enough to restore all of the possible 

500,000 sites that may need mitigation. Liability is obviously a major factor in the 

inability to address abandoned mines. 

I would hope that we all bring the spirit of common sense and unity of purpose 

to this discussion, and I would hope it would be virtually beyond debate that we 

want to encourage Good Samaritans to help with the cleanup. We certainly do not 

want to saddle Good Samaritans with liability for pollution they had nothing to do 

with producing; that would not encourage efforts to address these sites. It is time 

for Congress to address the liability concerns of municipalities and other Good Samaritans so that we can restore these thousands of waterbodies and improve water 

quality. That should be a very common sense, straight forward principle. 

I think if we all focus on that common sense principle and work out reasonable 

legislation, we can achieve an important result. I encourage that spirit. I look forward to hearing from the witnesses today and working with the committee to seek 

to provide liability relief to Good Samaritans. Thank you, Mr. Chairman. 

Senator INHOFE. The Rockies are on a roll, OK, good. 

By previous agreement, we will hear from both of our Senators 

on the first panel. They will then be excused, and we will get to 

Mr. Johnson, the EPA Administrator. 

Senator Allard. 

STATEMENT OF HON. WAYNE ALLARD, U.S. SENATOR FROM 

THE STATE OF COLORADO 

Senator ALLARD. Mr. Chairman, thank you. I would like to make 

my full statement a part of the record. 

Senator INHOFE. Without objection. 

Senator ALLARD. Then I would just like to talk a little bit about 

the problem that we have in the State of Colorado and I think 

many Western States. My hope is what we are putting forward 

here, meaning Senator Salazar and myself, is a common sense approach to the problem that we have in the State of Colorado. Our 

intention is not to let anybody off the hook but actually to create 

an opportunity for private parties and individuals to be able to step 

forward and cleanup these mines. 

I want to thank you, Mr. Chairman, for allowing both Senator 

Salazar and myself to testify this morning. Certainly, we are not 

going to question your knowledge on mining. It is nice to have 
8 

somebody who is sitting in the Chair, who has some practical experience as far as mining is concerned. 

As you probably are well aware, a mining claim in Colorado, 

well, all over the country, is a relatively small parcel of land, 600 

feet by 1,500 feet long. This dates back to the early silver and gold 

days of Colorado when silver and gold was very profitable in the 

State, and we had many prospectors come to Colorado and file 

claims. They would start a mine, they would hit a small vein or 

something, and then maybe it wasn’t financially practical to continue with it. Then these small, little claims, there wasn’t anybody 

there to continue to operate the claim. So, it was sitting there. 

There are individuals, single individuals, not large mining companies—these aren’t Superfund sites—who have come in and said, 

well, I would like to purchase a small parcel of land, but I am concerned about the liability. These are individuals like you and I. You 

can’t afford to go down and pay a lawyer thousands of dollars in 

order to try and fight a liability claim or an environmental claim 

because when you buy that, that liability then transfers to you. We 

try to prevent that from happening. 

If you would not have the liability transfer over to the private 

party, then individuals will look at this and say, well, this is something, a piece of land I would like to purchase, and I can clean it 

up. I can take the tailings and whatnot from the mining operation 

there. We can clean it up. We can stop the discharge that comes 

out of the mine that is polluting the river. This creates a wonderful 

opportunity for small individuals like any member here on this 

committee to go and buy a small parcel of land to do that. 

There are a number of reasons for them to buy a parcel of land. 

Sometimes they just want to have a little piece of property in the 

mountains for one reason or another. Sometimes it might be just 

somebody who has an intention to try and do their little part to 

clean up the environment. There are all sorts of reasons why somebody might want to do this. It may very well go beyond any profit 

motive. It may just strictly be a Good Samaritan effort to try and 

cleanup the environment. 

This particular piece of legislation is targeted for these hundreds 

upon hundreds of small mining claims which I described, to make 

them available so that individuals, without fear of a lawsuit, can 

own these and clean them up. If we can accomplish this, you would 

see, I think, a big difference in the mountains of Colorado and 

other Western States who have had many prospectors come and 

have small mines which they are trying to clean up. 

I just would ask the committee to act expeditiously on this. This 

is an important piece of legislation. It has nothing to do with the 

Superfund issue. It has more to do with small parties, individuals 

in particular, who want an opportunity to do something to help the 

environment for whatever reason they may desire to purchase that 

particular mining claim. 

I see my time has expired. 

Senator INHOFE. Thank you, Senator Allard. 

Senator Salazar. 
9 

STATEMENT OF HON. KEN SALAZAR, U.S. SENATOR FROM THE 

STATE OF COLORADO 

Senator SALAZAR. Thank you very much, Chairman Inhofe and 

Ranking Member Jeffords. It is an honor to appear before your 

committee. Thank you, Senator Vitter, as well. 

I look forward to working with this committee and with my colleague, Senator Allard, as we move forward on this very specific 

issue that is focused on only the Good Samaritan legislation. It 

does not deal with the rest of the issues that we sometimes have 

to deal with, including Superfund liability and CERCLA reform. 

This is very specific and focused on what we do with respect to 

Good Samaritans. 

Let me say that, as we have worked on this legislation over the 

last year and a half, I am proud of the work that Senator Allard 

and I have done. Supporters of the legislation, Senate bill 1848, include our Governor of Colorado, Bill Owens, and on this committee, 

Senator Isakson, a co-sponsor of the bill, as well as Senator Max 

Baucus and Senator Harry Reid. We also worked very closely with 

the National Mining Association, the Colorado Mining Association, 

the Colorado Water Congress, and the Western Business Roundtable in putting together legislation that we believe will address 

the issue of Good Samaritan liability. 

The concept that we would pass in our legislation is simple. The 

main three points of what the legislation does are: It simplifies 

what we do with respect to permitting by requiring only one permit. It is an EPA permit that would be granted to somebody who 

is going to work on the Good Samaritan activity. 

Second, the liability protections are customized. You look at a 

site and you determine what it is that you are going to protect the 

Good Samaritan from. That is a function and a responsibility that 

would be given to the EPA. 

Third, we allow broad participation from those would-be Good 

Samaritans. It is not just local Governments or private landowners 

that happen to buy property, but also maybe companies and other 

non-profits that are very interested in the cleanup of a watershed. 

I will try to touch briefly on what some of those opportunities are 

within my State of Colorado. 

I will submit my full statement for the record as well, Senator 

Inhofe. I will not read it all but would ask that you accept that for 

the record. 

Senator INHOFE. Without objection. 

Senator SALAZAR. Let me just say, in Colorado, we have 22,000 

inactive and abandoned sites in my State, and some of those may 

have been the ones that you excavated, Senator Inhofe, but all of 

these sites today are beyond the reach of the EPA, Superfund, and 

the State Health Department. That is 22,000 sites in one State 

alone. It is not because the pollution laws don’t apply to those 

22,000 sites. It is simply that there are no identifiable owners or 

operators to take on the responsibility of cleaning up the sites. 

Ironically, it is the draconian liability schemes under CERCLA 

and the Clean Water Act that deter would-be volunteers, Good Samaritans, from getting near those sites for fear of unlimited liability. With a sensible plan to clean up a mine site, a Good Samaritan 

assumes massive liabilities that dissuade them from working to 
10 

undo the environmental legacy of hardrock mining. The barriers 

discouraging Good Samaritans from helping with cleanups is one 

of the most frustrating realities of cleaning up abandoned mine 

sites throughout our country. 

That is why, with my Republican and Democratic colleagues, I 

worked hard to draft this bill. The bill aims to fulfill a simple objective: We want to make it easier for Good Samaritans to clean up 

inactive and abandoned mine sites when a cleanup by the liable 

party is otherwise very unlikely. 

I want to briefly highlight three ways in which this bill accomplishes the goal of providing Good Samaritan liability protection in 

a straightforward and pragmatic manner. 

First, there is one permit for the Good Samaritan. In my experience with water and public land issues, I have found the best results are achieved when all stakeholders agree on the scope of a 

project before the project begins. Under our bill, the Good Samaritan applies for one permit from the EPA. In order to receive that 

permit for the project, local, State and Federal authorities must all 

agree that the overall environmental improvement will be significant and there will not be environmental degradation. At the end 

of that process, there will be one permit that is issued. 

Second, there are customized liability protections that are included in the legislation. While some approaches have offered blanket liability protection from environmental laws for Good Samaritans, our legislation provides that liability protections will be crafted on a case by case basis. The local and State Governments can 

then create liability protections from their laws, and the EPA can 

offer limited or extensive liability protection under the Clean Water 

Act or CERCLA. 

Mr. Chairman, I see my time is up. May I have two more minutes? 

Senator INHOFE. Take all the time you want. That doesn’t go for 

the future panelists. 

[Laughter.] 

Senator ALLARD. I think I quit a little early, so he can have some 

of my time. 

Senator SALAZAR. Thank you, Senator Inhofe and Senator Allard. 

I was trying to speed read through it. 

Third, what the bill does, it is also broad in its scope, and this 

goes to one of the questions that Senator Jeffords asked. It enables 

cleanups at abandoned mine sites where the person who may be responsible for the mine residue does not have the financial resources 

to pay for the cleanup. In that case, it is more important to clean 

up the site than it is to point a finger of liability. Given the safeguards in the bill, there is no good policy to limit Good Samaritan 

permits to local or State Governments when so many capable nonprofit organizations, individuals, and businesses are willing and 

able to make significant improvements at these sites. 

Mr. Chairman, I believe that our bill is a balanced and pragmatic 

approach to solving a vexing problem that has eluded resolution for 

a very long time. It creates an open and straightforward process 

that is neither bureaucratic nor unduly legalistic but based on consensus and a sound technically based work plan. 
11 

My experience in having worked for more than a decade in the 

natural resources section of the law and having worked on 

CERCLA cases and having run the Colorado Department of Natural Resources and being the Attorney General for Colorado, I believe that what we have put forward here will advance the cleanup 

of many abandoned mine sites in my State and across the country. 

I want to thank you, Mr. Chairman, and Ranking Member Jeffords for holding this hearing today and for inviting both my colleague, Senator Allard, and me to testify. It is important work for 

the Nation. 

If I may, I want to answer just two quick questions that Senator 

Jeffords posed. 

First, he asked, ‘‘is the liability on cleaning up these sites an impediment?’’ The fact of the matter is that it is because once you 

touch one of these abandoned mine sites, the CERCLA liability 

that comes with cleaning up these abandoned mine sites attaches 

to you. 

A related question that you asked, Senator Jeffords, is what 

would motivate a Good Samaritan to invest the financial resources 

in getting some of this done? I can think of a lot of examples, but 

I will point out only one. To the west of Denver is a place I know 

that Senator Allard knows well and Senator Inhofe I am sure visited while he was there in Colorado. There is a major brewing company by the name of Coors, the Coors Brewing Company. What 

they do is they take their water from a place called Clear Creek 

for much of the beer that is produced around the country by the 

company. Up above Golden, sitting in places that were historically 

mined as some of the richest mining lands in the history of the entire Nation, up in places like Central City and Black Hawk and 

Georgetown, are thousands upon thousands of abandoned mine 

sites. 

The Coors Brewing Company, along with the city of Golden and 

many stakeholders that share the water supply from Clear Creek, 

have a major interest in making sure that these thousands of abandoned mine sites up there are in fact cleaned up because right now 

those sites are contributing to the degradation of the water quality 

within Clear Creek. There is a major incentive for the private sector and a major incentive for the local Governments—for the many 

counties and communities that share the water of Clear Creek—to 

clean up these abandoned mine sites. Also, there is a major incentive for non-profits that have been involved in the restoration of the 

Clear Creek watershed to try to move forward with a watershed 

restoration plan that necessarily must involve cleaning up these 

abandoned mine sites. 

So, there is major incentive there, but at this point in time, most 

people would be afraid to touch these sites because of the CERCLA 

liability that comes attached to this. 

This is very important legislation. I know there are issues and 

there is the Administration’s proposal that Senator Inhofe and others have looked at. I think there is a way in which we can work 

through some of these issues, so that we can do something that is 

very good for the environment. I hope that we can continue, Senator Inhofe and Senator Jeffords, with the bipartisan approach that 
12 

my colleague, Senator Allard, and I come with to the table this 

morning to make this presentation to all of you. 

Thank you very much, Mr. Chairman. 

Senator INHOFE. Thank you, Senator Salazar. I thank both of 

you, and you may be excused now or you can stay. 

I would like to ask Administrator Johnson to please come forward. 

Mr. Administrator, you are recognized for an opening statement. 

STATEMENT OF STEPHEN L. JOHNSON, ADMINISTRATOR, U.S. 

ENVIRONMENTAL PROTECTION AGENCY 

Mr. JOHNSON. Thank you and good morning, Mr. Chairman and 

members of the committee. I am honored to appear before you 

today to testify on one of the most important environmental challenges and, I believe, opportunities facing the United States: legacy 

impacts from abandoned hardrock mines and the innovative efforts 

that we can make to remove their threats and impairment to water 

quality. 

First of all, I would like to thank you, Mr. Chairman, for introducing by request of the Administration, S. 2780, the Good Samaritan Clean Watershed Act. I also want to commend Senator Allard 

and Senator Salazar and their colleagues for their legislative efforts to date. Finally, I would like to acknowledge the long term efforts of the Western Governors Association to address this issue. 

We hope that this committee reports out, that the Congress 

passes, and that the President signs into law S. 2780 or similar 

legislation this year. 

Inactive or abandoned mine sites can pose serious public safety 

and environmental hazards. According to estimates, there are over 

a half million abandoned mines nationwide, most of which are 

former hardrock mines located in Western States. Acid mine drainage from these abandoned mines pollute thousands of miles of 

streams and rivers as well as groundwater. Mine drainage and 

runoff challenges can be extremely complex, and solutions are often 

highly site-specific. In many cases, the parties responsible for the 

pollution are either insolvent or no longer available to participate 

in remediation. 

However, over the years, an increasing number of Good Samaritans, those not responsible for the pollution, have volunteered to 

clean up these mines. Unfortunately, the potential liability associated with voluntary hardrock mine cleanup has discouraged their 

good work. By clearing these legal roadblocks, we can accelerate 

the pace of watershed restoration and advance the President’s ethic 

of cooperative conservation. Remediation of these sites can be complex and resource-intensive. Yet, even partial cleanups by Good Samaritans will result in meaningful environmental improvements. 

By holding Good Samaritans accountable to the same cleanup 

standards as those that caused the pollution or requiring strict 

compliance with water quality standards, we have made the perfect 

enemy of the good. The EPA strongly believes that liability should 

rest squarely on parties responsible for the environmental damage, 

not on those volunteers trying to clean it up. 

Let me emphasize, encouraging Good Samaritan cleanups is not 

about lowering environmental standards or letting polluters off the 
13 

hook. Those responsible for the pollution, if still in existence, will 

remain accountable, consistent with the Agency’s Polluters Pay policy. This legislation will hold Good Samaritans, those not responsible, to a realistic standard that ensures environmental results. 

Last August, as part of the President’s Conference on Cooperative Conservation, I announced the EPA’s Good Samaritan Initiative as a means to encourage more effective voluntary efforts to remediate damage from abandoned mines. The initiative accomplishes the objectives of cooperative conservation by empowering 

communities and grassroots organizations to confront environmental challenges. Unfortunately, our one success to date took far 

too long to accomplish. 

By passing the Good Samaritan Clean Watershed Act, we would 

quickly clear the legal roadblocks and allow more projects to get off 

the ground. Safeguards in the bill ensure that abandoned mines 

will be properly remediated. This legislation requires a thorough 

due diligence evaluation of a Good Samaritan and a proposed 

project. It requires a determination that a project will result in environmental improvements, limits liability relief to only those activities undertaken through an issued permit, and nullifies liability 

protection for those engaged in fraud. Initially, this legislation requires robust public participation before a permit is issued and provides ongoing Federal oversight and enforcement of cleanup activities. 

In conclusion, thank you, Mr. Chairman, for the opportunity to 

discuss with you the Administration’s Clean Watershed Good Samaritan Act legislation. The issue of abandoned hardrock mines 

has been discussed and debated for well over a decade, and a solution is long overdue. The American people and our water deserve 

results. We applaud bipartisan efforts in both Houses of Congress 

to address this issue and look forward to working with you and 

your colleagues to get this important environmental legislation to 

the President’s desk as soon as possible. 

Thank you, Mr. Chairman. 

Senator INHOFE. Thank you, Mr. Administrator. That is an excellent opening statement. 

We have been joined by Senator Warner. He tells me he does not 

have an opening statement, so I will go ahead and just ask a couple of questions. 

Mr. JOHNSON. Please. 

Senator INHOFE. Some of our colleagues and some of the witnesses suggest we just need to do three things to take care of this 

problem. One would be reform existing laws; another is make the 

mine owners more financially responsible; and third is put more 

money into Superfund. Now, those are three things. How do you respond to that? 

Mr. JOHNSON. Well, what we are doing is focusing on a narrow 

but important issue—allowing volunteers to go in and cleanup 

abandoned hard rock mines without fear of liability. It just makes 

sense. We are not talking about major reforms of CERCLA or the 

Clean Water Act. We are talking about just allowing volunteers to 

go in and do the right thing without fear of liability. 

Senator INHOFE. It would seem to me if you are doing that, one 

of the objections I have heard is maybe these people don’t know 
14 

how to do it, but even if it is improved a little bit, that is better 

than it is today. The magnitude of this thing, for example 500,000 

mines are going to have to be cleaned up, is pretty overwhelming. 

In your testimony, you speak of the value of providing legislative 

solutions to the problem. What would you say to those who suggest 

that providing administrative relief is really all we need? 

Mr. JOHNSON. We are pursuing the administrative path. We have 

one success story with Trout Unlimited, but what we have found 

through that experience is it is very time consuming. There is still 

legal uncertainty. The value of legislation is that it provides legal 

certainty; it provides a streamlined permitting process; and it also 

ensures inclusive stakeholder involvement. I think one of the important things is that this is very similar to the brownfields voluntary cleanup legislative model which has had bipartisan support 

and has had great success. 

Senator INHOFE. It seems to me that this legislation and other 

legislation that has been introduced before really empowers local 

Governments to get involved in this process, whether it is a licensing process or permit process or just to get some of these things 

cleaned up. It seems to me that the closer you get to the problem 

in government, the better job that is being done. 

Mr. JOHNSON. Absolutely. 

Senator INHOFE. Senator Warner. 

Senator WARNER. Thank you, Mr. Chairman. I have to disclose 

a bias or conflict. I am a member of Trout Unlimited, but I don’t 

believe that will disqualify me from voting. I wanted to come and 

lend my support to this legislation this morning because I really 

think it is a wise thing, and I concur wholeheartedly in your observation that, while the regulation might suffice, there is a world full 

of trial lawyers out here who will challenge that. If these Good Samaritans are willing to step up, I don’t want to see them exhaust 

all their funds in legal fees. 

I am going to support this legislation. I thank the Chair for 

bringing this matter up here this morning. 

Senator INHOFE. Thank you, Senator Warner. Do you have any 

questions of the Administrator? 

Senator WARNER. No. 

Senator INHOFE. Senator Boxer, we have made our opening statements. If you have a great desire to make an opening statement, 

we would recognize you to do that if you would keep it within the 

time limit. 

Senator BOXER. Thank you. I will keep it within the time limit. 

I apologize, my grandchild graduated from fifth grade. They do a 

graduation. 

Mr. JOHNSON. Congratulations. 

Senator INHOFE. With honors? 

Senator BOXER. Always with honors. It is an honor just to have 

him as a grandchild. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

But anyway, thank you, Mr. Chairman. I can’t stress enough how 

critical it is that we address the threat of toxic waste sites in the 

Committee, particularly the threat these sites pose to the health of 
15 

families including children in nearby communities. I hope we can 

have a series of hearings on environmental cleanup issues that go 

beyond the issue for today’s hearing. 

I also greatly appreciate your agreement with me to allow a 

Superfund oversight hearing in the Superfund Subcommittee tomorrow because the information we have gathered on the current 

status of toxic sites around the country makes it clear the threat 

posed by these sites merit our immediate attention. 

I am pleased that Mr. Johnson is here today, and I have several 

questions for him on EPA’s approach to clean up programs, including mine cleanup. It is worth noting that the Administrator is testifying today in support of an effort—and he is certainly not the only 

one, there are colleagues who support this—to roll back environmental laws and standards that would provide a direct financial 

benefit to industry. The enthusiasm shown by the Administration 

for waivers and rollbacks of environmental laws that protect public 

health is striking. Proposals to streamline environmental cleanup 

by undermining standards is the wrong approach. I don’t really 

think they are streamlinings so much as they are rollbacks, and 

they raise the risks to communities that things could possibly get 

worse, not better. 

Abandoned mine sites pose a serious threat to water resources. 

Mine wastes frequently contain high levels of heavy metals, including mercury and arsenic, and cyanide and other hazardous chemicals are used in mine operations. In California, there are 47,000 

abandoned mines, so this is an issue that I care deeply about for 

my State. 

If mishandled, well-intentioned efforts can have disastrous effects. In fact, in my home State, we have a clear example of a wellintentioned cleanup effort gone wrong, and this is the problem. 

When someone gets injured, they don’t care whether it was a wellintentioned effort or a not well-intentioned effort. If it goes wrong, 

it is very, very dangerous. I will briefly describe that experience to 

highlight why environmental rollbacks are the wrong path to take 

when it comes to cleaning up abandoned mine sites. 

The experience at the Penn Mine in Calaveras County, CA, was 

well-intentioned but poorly executed and destructive. This mine 

site has been used to justify the so-called Good Samaritan initiative 

because it involved litigation and significant cleanup costs. As you 

will see, the limited regulatory review and the poor engineering at 

the site made a bad situation worse. 

Let me read from a letter from a long list of groups opposing the 

so-called Good Samaritan legislation and hear what they have to 

say about the lessons at Penn Mine. ‘‘At Penn Mine, the waiving 

of environmental review coupled with an egregious lack of understanding of complex geochemical and hydrogeological processes at 

the site led to terrible water quality problems, accelerating the formation of acid mine drainage by up to a million times. A prominent 

geochemist testified that ‘The facility could not have been better 

designed had its intention been maximum reduction of toxic acid 

mine drainage.’ ’’ 

There is a long list of groups on the letter opposing the rollback 

legislation, including S. 1848 as well as S. 2780, and with good rea-
16 

son. I would ask unanimous consent that the letter in opposition 

be printed in the record. 

Senator INHOFE. Without objection. 

[The referenced letter can be found on page 80.] 

Senator BOXER. Thank you. 

If you read this, it would astound you to see the opposition to 

what I think we are trying to do here today. 

I think there is a much better way to approach this issue, Mr. 

Chairman. First, the EPA does in fact have significant administrative authority and could streamline the cleanup process with model 

orders under Superfund. These orders could contain appropriate liability relief, could be limited in scope, and could maintain environmental standards. The EPA has some experience with this approach and, with effort, could do more. I appreciate well-intentioned efforts to allow so-called Good Samaritan cleanups to proceed more efficiently. 

However, environmental rollbacks are not the answer. The Good 

Samaritan proposals don’t even contain the basic protections of the 

brownfields law and raise the risk that things could get worse, not 

better. We also cannot afford to lose sight of one of the key parts 

of any solution to the toxic waste problem. Superfund must be 

funded, and polluters must once again pay into the fund. The need 

for cleanup of abandoned mine land dwarfs any Good Samaritan 

initiative. This is a large and complex problem, and the Good Samaritan proposals are a drop in the bucket, but they could be 

worse if things go wrong. 

Thank you very much, Mr. Chairman. 

[The prepared statement of Senator Boxer follows:] 

STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE

STATE OF CALIFORNIA

Mr. Chairman, I cannot stress enough how critical it is that we address the threat 

of toxic waste sites in this committee, particularly the threat these sites pose to the 

health of families, including children in nearby communities. I hope we can have 

a series of hearings on environmental cleanup issues that go beyond the issue for 

today’s hearing. I also appreciate your agreement to allow a Superfund oversight 

hearing in the Superfund Subcommittee tomorrow. Information we have gathered 

on the current status of toxic sites around the country makes it clear—the threat 

posed by these sites merits our immediate attention. 

I am pleased that the EPA Administrator is here today, and, as you might imagine, I have a few questions for Administrator Johnson on EPA’s approach to cleanup 

programs, including abandoned mine cleanup. 

It is worth noting that the Administrator is testifying today in support of efforts 

to rollback environmental laws and standards that would provide a direct financial 

benefit to industry. The enthusiasm shown by this Administration for waivers and 

rollbacks of environmental laws that protect public health is striking. Proposals to 

streamline environmental cleanup by undermining standards is the wrong approach 

and raises the risk to communities that things will get worse, not better. 

Abandoned mine sites pose a serious threat to water resources. Mine wastes frequently contain high levels of heavy metals, including mercury, and arsenic. Cyanide and other hazardous chemicals are used in mine operations. In California, it 

is estimated there are 47,000 abandoned mines. 

If mishandled, well-intentioned efforts can have disastrous results. In fact, in my 

home State we have a clear example of a well-intentioned cleanup effort gone 

wrong. I will briefly describe that experience to highlight why environmental 

rollbacks are the wrong path to take when it comes to cleaning up abandoned mine 

sites. 

The experience at the Penn Mine in Calaveras County, CA was well-intentioned 

but poorly executed and is instructive. This mine site has been used to justify the 

so-called ‘‘Good Samaritan’’ initiatives because it involved litigation and significant 
17 

cleanup costs. As you will see, the limited regulatory review and poor engineering 

at this site made a bad situation dramatically worse. Let me read from a letter from 

a long list of groups opposing the ‘‘Good Samaritan legislation’’ and what they have 

to say about the lessons of Penn Mine: 

‘‘At Penn Mine, the waiving of environmental review coupled with an egregious 

lack of understanding of complex geochemical and hydro-geological processes at the 

site led to exacerbated water quality problems. . . accelerat[ing] the formation of 

acid mine drainage by up to one million times.’’ A prominent geochemist testified 

that ‘‘the facility could not have been better designed had its intention been maximum production of toxic acid mine drainage.’’ There is a very long list of groups 

on this letter opposing the rollback legislation, including both S. 1848 as well as S. 

2780 and with good reason. (See letter for groups attached) 

There is a much better way to approach this issue. First, EPA does in fact have 

significant administrative authority and could streamline the cleanup process with 

model orders under Superfund. These orders could contain appropriate liability relief, could be limited in scope and could maintain environmental standards. EPA has 

some experience with this approach and with effort could do more. 

I appreciate well intentioned efforts to allow so-called ‘‘Good Samaritan’’ cleanups 

to proceed more efficiently. However, environmental rollbacks are not the answer. 

The Good Samaritan proposals do not even contain the basic protections of the 

Brownfields law and raise the risk that things will get worse not better. There is 

another way that does not involve rollbacks or waivers, or giveaways to industry. 

We also cannot afford to lose sight of one of the key parts to any solution to the 

toxic waste problem. Superfund needs to be funded and polluters must once again 

pay into that fund. The need for cleanup of abandoned mine lands dwarfs any Good 

Samaritan Initiative. This is a large complex problem and the Good Samaritan proposals are a drop in the bucket. Worse if they go wrong. 

Senator INHOFE. Thank you, Senator Boxer. You may proceed 

with your questions now. It is around to you. Thank you for staying 

within your time limit. 

Senator BOXER. Administrator, welcome. 

Mr. JOHNSON. Thank you. 

Senator BOXER. You say in your written testimony that the impacts of abandoned mines are one of the most important environmental issues and opportunities facing the United States. Do you 

believe the fact that children are living in communities where exposure to toxic material from Superfund sites is not under control is 

also one of the most important issues facing the United States, and 

what opportunities and specific plans have you formulated to remedy the problem? 

Mr. JOHNSON. Thank you, Senator Boxer. I do believe that those 

Superfund sites in cities where children may be exposed are significant and very important. I, too, believe 500,000 abandoned mines 

are also an important issue and again, provide a tremendous opportunity for us to be innovative and allow volunteers liability protection to go in and make environmental improvements. 

This is not a rollback. This is an opportunity to actually improve 

the environment. Very much as the lessons we learned from 

brownfields in starting with voluntary programs, here is another 

opportunity for us to make significant progress. It is not a rollback. 

We have a number of safeguards to ensure that it is not increased 

risk, and we learned a lot from the Penn Mine example that you 

mentioned earlier in your testimony. 

I look forward to working with you and the chairman to move 

this forward because it just makes sense. 

Senator BOXER. Mr. Johnson, are you aware that the EPA career 

staff in the Superfund program concluded in written comments, 

after reviewing the Good Samaritan legislation, but that most of 

their comments were not incorporated, including comments on the 
18 

inadequate environmental standards in the bill, in other words, 

what they considered to be rollbacks? Are you aware that is the 

case and we have those comments? 

Mr. JOHNSON. I am aware that there were a number of discussions inside the Agency. Again, this is not about Superfund reform. 

This is not about Clean Water Act reform. This is about providing 

a very narrow opportunity for voluntary cleanup of abandoned hard 

rock mines by third parties, Good Samaritans. These are people 

who have not caused the problem. They are not legally responsible 

for cleanup of pollution. They want to volunteer, and we want to 

provide them the opportunity to do the right thing. 

Senator BOXER. Well, why weren’t their comments included? 

Mr. JOHNSON. Again, this is the opportunity for voluntary cleanup. This is to make incremental progress. This is not requiring, as 

under the brownfields program, meeting a strict environmental 

standard. 

Senator BOXER. No, no, no, their comments on the legislation. 

Obviously, they were asked to comment on it. Why didn’t you include their comments? Why would they be deep-sixed? 

Mr. JOHNSON. Again, our focus is to provide for incentives for 

people to voluntarily cleanup and make progress, not requiring a 

strict standard. 

Senator BOXER. I understand, but they disagreed. 

Mr. JOHNSON. Well, that is fine. 

Senator BOXER. Is that why you left it out? 

Mr. JOHNSON. Well, that is right because I disagree with that. 

Senator BOXER. You disagree? 

Mr. JOHNSON. I disagree. 

Senator BOXER. So, you think we ought to waive standards then 

for this program. 

Mr. JOHNSON. What I believe, Senator, is I believe that we ought 

to provide volunteers with the opportunity and liability protection 

to do the right thing. To do the right thing is to improve the environment. These sites—— 

Senator BOXER. What if it doesn’t work out that way? 

Mr. JOHNSON. Senator, you know what, nothing has happened in 

decades, absolutely nothing. Here is a wonderful opportunity for 

there to be environmental progress, and that is what we want to 

do, to allow volunteers to be able to do that. 

Senator BOXER. The issue that I described to you, where scientists said it was an absolute disaster when this happened, that 

doesn’t concern you? 

Mr. JOHNSON. Of course, it concerns me. That is why we have 

built into the legislation a number of safeguards, both a rigorous 

screening process including data to demonstrate that they are good 

actors. We require that they make sure they have adequate financial resources. The EPA and the State and tribes retain our oversight and enforcement authority. We have penalties, both civil and 

if there are local violations, and we also have a very rigorous public 

comment period, both notice and comment as well as a requirement 

for hearing, again all to help ensure that we are making environmental progress and that nothing goes wrong. 

Senator BOXER. Your staff said, nowhere does the legislation 

specify what standards would govern whether there is an improve-
19 

ment to the environment. It appears that water quality, under this 

act, would not apply. How will the permitting authority assess 

whether a project will result in improvement? How do they measure improvement? They said, it lacks national guidelines and you 

can’t really do cost benefit analysis. 

As I said, in this last experience, a prominent geochemist said, 

‘‘A facility could not have been better designed had its intention 

been maximum production of toxic acid mine drainage.’’ 

I am not sure that we are learning from experience. That is one 

thing that I thought we would do. 

Mr. JOHNSON. I think that the experience you mentioned, the 

Penn Mine example, is actually an excellent mine example because 

they started out trying to do a voluntary cleanup. The East Bay 

Municipal Utility District found themselves being responsible for a 

$10 million cleanup. They started to try to do things voluntarily. 

Again, there are probably lessons learned of how they could have 

done things better; more importantly, certainly, are the safeguard 

which we have included in our legislative proposal. But the point 

is: here is an organization that tried to do things voluntarily and 

then ended up being responsible or saddled with a $10 million 

cleanup. 

Again, we are trying to see and trying to encourage voluntary 

Good Samaritans. We are trying to see environmental progress, 

and we put in safeguards to make sure they do that, they document it, and it is done well. 

I think that there are many issues we have to face under Superfund as well as others. 

Mr. Chairman, I would like to submit for the record a letter that 

has been sent both to Chairman Inhofe and myself from the Western Governors Association which says, ‘‘We strongly support the efforts of the U.S. Environmental Protection Agency in developing 

this legislation and believe it represents a solid basis for moving 

forward.’’ 

Senator INHOFE. Without objection, that will be part of the 

record. I received that letter and read it, and I find it to be a very 

good letter. 

[The referenced letter can be found on page 88.] 

Senator INHOFE. Do you have one more question? 

Senator BOXER. Yes, I do, one more. Thank you very much. 

Now, the EPA can already issue a Good Samaritan administrative order that protects innocent parties and allows cleanups at 

abandoned mines, is that correct? 

Mr. JOHNSON. Under CERCLA 107(j), it does not protect volunteers from liability. It still leaves volunteers subject to CERCLA 

Section 106. 

Senator BOXER. Would you support EPA standardizing the process and applying it nationwide to help facilitate cleanups? You already have a process. 

Mr. JOHNSON. The problem is the law. The current construct of 

the law does not provide liability protection for volunteers. That is 

why. That is what the focus is on. 

Senator BOXER. That is not my understanding at all. So, why 

don’t we talk about that later? 
20 

To me, this thing seems to be a rollback, plain and simple. We 

have seen it from this Administration before, and that is what I 

see. 

The last thing I would ask, and I am done here, is I would like 

to submit into the record an article called ‘‘Good Intentions Do Not 

Confer a Right to Pollute,’’ and it is the whole story about what 

goes wrong in some of these cases where you don’t have rigorous 

standards, if I might put this into the record. 

[The referenced article can be found on 76.] 

Senator INHOFE. Sure, without objection, so ordered. Thank you 

very much, Senator Boxer. 

Thank you, Mr. Administrator. When I look at this legislation, 

you see such individuals as Senator Baucus and Senator Reid and 

Senator Salazar. This is bipartisan. It is a problem. We can’t just 

keep putting it off. 

I think you have done an excellent job of testifying today, and 

you may be excused. 

Mr. JOHNSON. Thank you, Mr. Chairman. Thank you for your 

leadership. 

Senator INHOFE. Thank you. 

I will invite our next panel to come forward. We have a very distinguished panel. Dennis Ellis, Executive Director of the Colorado 

Department of Public Health and Environment; Velma Smith, National Environmental Trust; John Gioia, Chairman of the Board of 

Supervisors for Contra Costa County Public Works; Terry Harwood, former Executive Director of the Hazardous Material Policy 

Council, USDA, and former U.S. Forest Service Chief Environmental Engineer; and Scott Lewis, Director of Environmental and 

Governmental Affairs, AngloGold Ashanti North America. 

We will start with you, Mr. Ellis, and then work across. We 

would like to ask you to try to confine your opening remarks to 5 

minutes. We do have the timer up here. You are recognized. 

STATEMENT OF DENNIS E. ELLIS, EXECUTIVE DIRECTOR, COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT 

Mr. ELLIS. Thank you, Mr. Chairman and Senator Boxer. Thank 

you for the opportunity to appear before you today to discuss an 

issue of great importance to the State of Colorado: abandoned or 

inactive mines and the liability barriers that exist to clean ups of 

these mines. 

Abandoned or inactive mines are responsible for the greatest 

threats and impairments to water quality in Colorado and indeed 

across the Western United States. Due to the impacts on water 

quality caused by these abandoned mines and the difficulties in 

identifying responsible parties to remediate the sites, Colorado is 

very interested in undertaking and encouraging voluntary Good Samaritan remediation initiatives, such as cleanup efforts by States 

or other third parties who are not legally responsible for existing 

conditions at the site. However, Good Samaritans currently are dissuaded from taking measures to clean up the mines due to an overwhelming legal disincentive. 

Colorado has found that there would be a high degree of interest 

and willingness on the part of Federal, State, and local Agencies, 
21 

volunteer organizations, and private parties to work together toward solutions to problems commonly found on inactive mine lands 

if an effective Good Samaritan provision were adopted. Consequently, for over a decade, Colorado has participated in and encouraged, in cooperation with other States, congressional offices, 

the environmental community, the mining industry, EPA, and 

other interested parties, efforts to develop bipartisan Good Samaritan legislation. Colorado strongly believes that only a legislative solution can effectively address liability concerns and therefore 

strongly encourages Congress to move forward on this issue. 

We encourage this committee to consider the following six components of a Good Samaritan proposal. 

Scope of remediating party: First, Colorado believes that participation in a Good Samaritan cleanup should not be limited solely 

to governmental entities since there are many other persons willing 

to contribute to Good Samaritan cleanups. The provision should include broadly excluding those with prior involvement at the abandoned site, broadly excluding those with current or prior legal responsibilities for discharges at a site, assurance that any nonremediation-related development is subject to the normal NPDES 

system rules, and be narrowly enough constructed to minimize 

fears over potential abuses of this liability protection. 

Second, the Citizen Suit Enforcement Tool has proven to be a 

useful incentive to encourage permit compliance by point source 

dischargers subject to the NPDES program. However, from the outset, Colorado has believed that a different set of enforcement tools 

is warranted for Good Samaritan permittees. Other permittees are 

required to get permits because they are undertaking activities 

that cause pollution. A Good Samaritan is not a polluter. Rather, 

they are an entity that voluntarily attempts to step in and remediate pollution caused by others. In this case, sound public policy 

needs to be focused on creating incentives for Good Samaritans’ actions, not on aggressive enforcement that creates risks to those 

that might otherwise undertake such projects. 

Third, the analysis and standard for cleanup of a proposed 

project needs to occur at the front end. Once there is agreement 

that a specific project is expected to result in water quality improvement with no reasonable likelihood of resulting in water quality degradation, the Good Samaritan’s responsibility must be defined as implementing the approved project rather than meeting 

specific numerical effluent limits. 

Fourth, Colorado supports the adoption of a Good Samaritan bill 

that addresses abandoned or inactive hard rock mines. Colorado is 

concerned that any efforts to include coal mines in Good Samaritan 

legislation would bring into play additional issues that would make 

adoption of legislation much more challenging and lead to further 

delays of cleanups. 

Fifth, Colorado has actively encouraged remining as a form of environmental cleanup since 1987. Colorado Governor Bill Owens 

supports remining as an option that presents the potential for 

achieving further cleanup of historic mining impacts. Options for 

promoting responsible remining that can result in additional remediation of historic mining impacts should be fully explored. 
22 

Sixth, regarding funding for remediation, Clean Water Act Section 319 funds have been utilized for a number of projects remediating inactive and abandoned mine lands. To assure that Section 

319 funds will continue to be available for such cleanup projects, 

any Good Samaritan proposal should include a provision clarifying 

that such funds may be used for projects subject to Good Samaritan permits. 

In conclusion, Governor Owens is on the record in support of S. 

1848, the Cleanup of Inactive and Abandoned Mines Act, introduced by Senators Allard and Salazar. We believe this bill provides 

a thoughtful and balanced approach to the range of issues and options that have been discussed. Governor Owens also applauds the 

efforts of the EPA to pursue administrative as well as legislative 

avenues to move forward on Good Samaritan efforts. 

For Colorado, this is not an academic debate about appropriate 

legislative language. If a Good Samaritan bill is enacted, then 

water quality in Colorado will improve as soon as the next available construction season. The State of Colorado urges Congress to 

move forward with S. 1848 as a basis for Good Samaritan legislation. 

Thank you for allowing me to testify today. I would like to submit my full statement for the record, and I am more than willing 

to answer any questions you may have. 

Senator INHOFE. Yes, without objection, all full statements will 

be submitted as part of the record. We appreciate your keeping 

within your time. 

Ms. Smith. 

STATEMENT OF VELMA M. SMITH, SENIOR POLICY ASSOCIATE, 

NATIONAL ENVIRONMENTAL TRUST 

Ms. SMITH. Thank you, Mr. Chairman. On behalf of the National 

Environmental Trust, I thank you for this opportunity to testify on 

the important issues surrounding cleanup of abandoned mines. 

Since Monday morning when I submitted my written testimony, 

that testimony has been joined by the Wilderness Society and the 

Sierra Club who would also like to join in on that testimony. 

While we appreciate the good intentions of those who worked so 

hard on the bills before you today, we know that they focused attention on a long festering and still growing national problem, and 

that focus would be useful if it would prompt new action to clean 

up mine sites and to stop new mines from joining the enormous 

universe of abandoned mining messes. But I must be perfectly 

frank. The bills before you don’t do that. On the contrary, in our 

view, they may well take us in the wrong direction. 

If you want to address mine sites, there are two things that are 

needed: more funding for cleanup and better regulation of mining. 

On the latter, I point out the legislation that Senator Jeffords mentioned, sponsored by Senator Cantwell, as one such piece of improvement that may make a contribution to the problem. 

I am going to depart a little from what I had planned to say because I need to speak to the characterization that those of us who 

have concerns with these bills are letting the perfect become the 

enemy of the good. I say that is not the case at all, and we are fearful that the slapdash will replace the thoughtful and deliberate. We 
23 

must be careful about making improvements. The Penn Mine case 

indeed shows us and many others do, with wetlands that have 

failed, with waste rock piles that have collapsed, with tailing stems 

that have collapsed, that mistakes can be made which is not to say 

the intention was ill to start with, but mistakes can be made and 

we have to be careful. 

I also want to depart from my notes because I am somewhat baffled that Administrator Johnson is calling this effort similar to 

brownfields, and I am also baffled that he would say nothing has 

happened. In fact, I went to the EPA web site, and there you will 

find that there is much going on in the way of abandoned mine 

cleanup. These are not only Superfund sites, they are Superfund 

alternative sites; they are brownfield sites; they are State efforts; 

they are the Forest Service and BLM. The brownfields program 

itself is being used to clean up mine sites, to assess mine sites, to 

redevelop mine sites. What would be useful would be to continue 

to use that program and to put more money into the brownfield 

program, specifically for mining sites. 

I would also point out that the EPA has worked with USGS and 

the Federal Land Managers, developing a watershed-based approach to setting priorities and doing cleanup from a watershed approach. That has great promise and is being used successfully in 

certain areas. What is needed is additional money, once they identify what needs to be done, for cleanup in a watershed and to have 

funds to implement that cleanup. 

As my time is running out, I did want to mention that I think 

if you wanted to pursue legislation, I would look to the other body 

and to Congressman John Salazar who has a demonstration project 

based in Colorado on the upper Animas River. The Animas River 

Stakeholders Group has been in existence for 12 years, and they 

have developed some plans that they would like to implement for 

cleanup in that watershed. I think if you look at Congressman 

Salazar’s bill, that is the way you may find a constructive approach 

if you want to legislate on this area. 

I thank you for the time, and I look forward to your questions. 

Senator INHOFE. Thank you, Ms. Smith. 

Mr. Gioia. 

STATEMENT OF JOHN GIOIA, CHAIR, BOARD OF SUPERVISORS 

OF CONTRA COSTA COUNTY AND CONTRA COSTA COUNTY 

FLOOD CONTROL AND WATER CONSERVATION DISTRICT 

Mr. GIOIA. Thank you, Mr. Chairman and Senator Boxer. Thank 

you for the opportunity to discuss an issue of great importance for 

water quality and the environment in our county and throughout 

this country. 

I am here as the Chair of the Contra Costa County Board of Supervisors, and I would like to describe to you a project in our county that would greatly benefit water quality in the San Francisco 

Bay Area but has not been completed due to liability exposure concerns. Contra Costa County has one million people and fronts on 

San Francisco Bay in the Sacramento Delta through which most of 

the runoff from the Sierra Nevada Mountains flows on its way to 

the Pacific Ocean. Probably most importantly, we are just across 

the bridge from Senator Boxer’s home county of Marin. 
24 

The abandoned Mount Diablo mercury mine is located on private 

property near the headwaters of Marsh Creek on the upper slopes 

of Mount Diablo, one of the most prominent landmarks in the San 

Francisco Bay Area. Rainwater washing over the mine tailings 

transports mercury into Marsh Creek which flows through several 

communities with a population of over 60,000 people and ultimately into San Francisco Bay. Nearly 90 percent of the mercury 

in the Marsh Creek Watershed originates from this abandoned 

mine. Also, one of the most significant sources of mercury in San 

Francisco Bay is runoff from abandoned mines like the Mount Diablo mercury mine. In fact, advisory notices are posted for adults to 

not eat fish from the bay more than twice every month. 

The property owner in this case purchased the abandoned mine 

and surrounding property in 1974. The property is bordered on 

three sides by a popular State park. The current owners never intended to develop or mine the property but bought it as a beautiful 

site to raise their children and retire. 

In 1978, the Regional Water Board issued the property owners 

a cleanup and abatement order, even though they did not create 

the problem. The owners have taken efforts to clean up the property as best they can but do not have the resources to complete a 

full scale mine remediation. In fact, they stated they spent well 

over $300,000 of their retirement money in cleaning the mine. 

In 1997, Contra Costa County applied for grant moneys to voluntarily conduct remediation of the mine. After legal consideration of 

the liability issues, the county withdrew the grant application because it would be exposed to substantial liability if the project were 

built. We are still interested in remediating the mine and are confident we can obtain the grant funds to do so. Money is not the 

issue for us. 

The county has been working cooperatively with a very supportive local watershed council, environmental groups, and property owners who are all supportive of our remediation efforts. Last 

year, we partnered with Sustainable Conservation, a non-profit 

with experience in liability exposure in environmental projects. 

This has led to discussions with the Environmental Protection 

Agency on their Good Samaritan initiative and the prospect of 

emulating the recent Trout Unlimited cleanup project in Utah, accomplished through an administrative order on consent developed 

during a collaborative process with the EPA. 

However, in order for this collaborative administrative process to 

be successful in the future, the process needs to be made more 

straight forward, shorter, less cumbersome, and less costly. It took 

over a year for Trout Unlimited to develop an AOC with the EPA 

that limited their liability. Rather than developing each administrative order on consent from scratch which involves substantial resources and time, a model should be developed which can be replicated by other Good Samaritan public agencies seeking to remediate abandoned mines. We fully expect and support appropriate 

protections for the environment in this process. 

We believe our project can be a demonstration project and model 

for others. We are ready, willing, and able to fix a source of pollution in our county and improve water quality for the San Francisco 

Bay Area. We support any efforts of the EPA and Congress to de-
25 

velop legislation for an effective and efficient collaborative administrative process that will allow public agencies like ours to responsibly and safely remediate an abandoned mine without becoming 

exposed to unlimited liability. 

Thank you for the opportunity to address you on this issue. 

Senator INHOFE. Thank you, Mr. Gioia. 

Mr. Harwood. 

STATEMENT OF TERRY A. HARWOOD, FORMER EXECUTIVE DIRECTOR, HAZARDOUS MATERIALS POLICY COUNCIL, USDA; 

FORMER CHIEF ENVIRONMENTAL ENGINEER, USFS 

Mr. HARWOOD. Good morning, Mr. Chairman and Senator Boxer. 

I thank the committee for this opportunity to testify on the issue 

of cleanup of abandoned mines and mining-related contamination. 

You mentioned, Senator Inhofe, that you had been in the woods 

many years ago. Well, I have been in the woods 37 years. 

Senator INHOFE. I said in the mines, not in the woods. 

[Laughter.] 

Mr. HARWOOD. Anyway, a long time. I managed the Abandoned 

Mine Programs in USDA and the Forest Service at national and regional levels, and this experience included managing programs as 

well as actual on the ground work on cleanup of hundreds of sites. 

I continued to be professionally involved in cleanup of mining-related contamination and natural resource damage restoration after 

retirement from Federal service. 

The intent of this hearing is to consider whether potential liability deters abandoned hardrock mine cleanup. Our intention is focused on the potential for Good Samaritans to assist in the cleanup 

process, but this is not the right focus. It runs the risk of us ignoring the monster in the room which is the lack of sufficient commitment and funding for the State and Federal Governments and the 

industry to adequately address the task of cleanup. The potential 

for good intentioned, technically qualified Good Samaritans to 

make a discernible impact on this huge problem is highly questionable. There seems to be an attitude that volunteerism will offset 

real commitment by Government and industry to deal with miningrelated environmental problems. 

One of my major concerns is, while attempting to deal with the 

list of impediments to voluntary action, we hide from public discussion and consideration the really important issue which is a lack 

of adequate funding and commitment by Government and industry. 

But this isn’t my greatest concern. The proposed legislation may be 

an attempt to hide the true nature of cleanup challenges with a 

gross simplification or disregard for science and engineering that is 

needed to ensure that we end up with an environmental improvement. Effective cleanup actions oftentimes require a high level of 

expertise and substantial resources, and an improperly regulated 

Good Samaritan is not the answer. 

After review of S. 1848 and S. 2780, I see an attempt to remove 

most environmental regulation for potential Good Samaritan operations as an answer to this fear of liability issue. This can lead to 

degraded environmental conditions after the voluntary action is undertaken and may fail. The schemes outlined in the proposed legislation do not protect us from things getting substantially worse. 
26 

For example, we cannot afford to have a remining operation 

where hazardous chemicals such as cyanide are used in leaching 

operations to be uncontrolled. Current new mining operations must 

meet environmental regulations and so must operations that are 

done by volunteers. 

For example, with S. 1848, we would regress to a time when 

there was little control over environmental disturbance activities, 

only the good intent of the party taking the action. This is the very 

reason why we find ourselves with the current environmental 

mess. They didn’t have good intent. The bill is appropriately numbered because 1848 was a time in history when we didn’t give 

much credence to the effect that our activities had the environment. 

The proposed intent of this discussion and the proposed legislation is to deal with disincentives to voluntary cleanups because of 

potential liability. What the proposed legislation does is eliminate 

most, if not all, environmental regulation and safeguards from voluntary actions. 

There is a better solution which has already been mentioned. It 

can be done under current CERCLA regulations through the use of 

a Good Samaritan administrative order on consent. With this process, we could assure that appropriate environmental regulations 

were considered. We could address the liability question for the 

Good Samaritan. We could protect the environment from the activities of an unscrupulous or highly speculative business interest acting as a volunteer. We need not create an entirely new program 

within EPA. 

Thank you for the opportunity to discuss my concerns and recommendations with you. My hope is that the Nation is not misled 

into thinking that a solution to the Good Samaritan liability issue 

through currently proposed legislation is a meaningful solution to 

the abandoned mine problem. It is not and far from it. With the 

legislation proposed, we run the risk of substantially adding to our 

environmental problems by creating a program where necessary 

scientific investigation of site conditions is not performed, where 

the development of regulations and cleanup standards is either 

nonexistent or weak, parties looking to make a buck can tear into 

the sites with little or no regulatory consequence to their behavior, 

and even with the best of intentions, the State and Federal land 

managers and the EPA will end up with a larger mess to deal with. 

I would like to add to my comments. I ran the program in USDA 

and the Forest Service for many years, and we got a lot of work 

done. So, there have been a lot of things done in the field that 

aren’t being given credit. 

Thank you. 

Senator INHOFE. Thank you for that excellent statement, Mr. 

Harwood. 

Mr. Lewis. 

STATEMENT OF SCOTT A. LEWIS, DIRECTOR, ENVIRONMENTAL AND GOVERNMENTAL AFFAIRS, ANGLOGOLD 

ASHANTI NORTH AMERICA, INC. 

Mr. LEWIS. Good morning, Mr. Chairman and Senator Boxer. I 

am the Director of Environmental and Governmental Affairs for 
27 

AngloGold Ashanti North America. Our U.S. offices are located in 

Denver, CO. The parent company, AngloGold Ashanti, Limited, has 

21 operations on four continents. 

Over my 23 years of environmental experience in the mining industry, I have had the opportunity to examine a number of orphaned sites primarily in the West and evaluate them. That has 

provided some insights and opportunities that we will discuss later 

in terms of cleanups that have already occurred. 

The spectrum of disturbance or the environmental damage is 

broad and ranges from safety hazards to very complicated issues. 

The sad reality is without meaningful Good Samaritan legislation, 

there will be little more done. Some has already been done but little more will be done than has already been accomplished. This is 

an opportunity to really open the door and get a variety of stakeholders involved in the process. 

I am here today representing the National Mining Association 

and the member companies. Mining companies must be allowed to 

qualify as Good Samaritans if they have not caused or are not liable for the environmental damage. This is a key provision. We 

should not automatically be excluded from participating as Good 

Samaritans. We have and will continue to be responsible stakeholders in the process, doing the work. In many cases, it just 

makes sense for the mining companies to participate because we 

have the staff, the technology, the resources, contractors, etcetera 

in the area to do the work. 

The EPA must authorize Good Samaritan projects through a formal permitting process. That is a key to this, and we cannot forget 

that. It must be demonstrated through that process to EPA and the 

public and other interested parties that there will be an environmental benefit, that environmental quality will be improved. Similarly, that process should prevent a misuse of the Good Samaritan 

bill. 

Next, the EPA must be given discretion to relax certain regulatory and liability provisions of the environmental laws. This may 

indeed include CERCLA, the Clean Water Act, the Clean Air Act, 

and RCRA, but in order to get other people, industry, communities, 

local Governments involved, that is a key element when it is done 

on a case by case basis, again focusing on improvement in environmental quality. 

Good Samaritan legislation must not unduly narrow the types of 

activities that constitute legitimate remediation, and this is the reprocessing issue. There are opportunities in active mining districts 

to take historic wastes and reprocess those. Those reprocessed 

wastes then fall under the scrutiny and requirements of current 

environmental law. So, there are merits to considering reprocessing 

in Good Samaritan legislation. 

Mining companies should be allowed to potentially make a profit 

on certain cleanup activities. There can be no guarantees, that any 

profits will be made currently and in the future, as each project is 

evaluated. There is a lot of downside potential, but there needs to 

be some upside potential to doing these projects in the future under 

Good Samaritan legislation. It should not be prohibited if a profit 

is possible. 
28 

In conclusion, legislation such as Senate bill 1848 by Senators 

Allard and Salazar and the Administration bill, Senate Bill 2780, 

are a great start. They really are. They offer some creative and innovative approaches to a solution that we have been struggling 

with for decades. We would encourage this committee to continue 

the process and further explore the merits of those two bills and 

move forward. 

Thank you, and I would be pleased to answer any questions. 

Senator INHOFE. Thank you very much, Mr. Lewis. 

I am hoping that this hearing today will provide a solution to the 

problem. We keep eating, meeting, and retreating, and nothing gets 

done. Let us hope that it will this time. 

Ms. Smith, I take issue with your statement that the perfect 

must not be the enemy of the good, and I will take your characterization of that statement along to its author, Harry Reid, who will 

be very interested in your comments. 

In all seriousness, Trout Unlimited spent a year negotiating the 

administrative order by consent, so that it could cleanup a site 

without incurring liability under the Superfund. One of our panelists has money to clean up an abandoned mine but won’t touch it 

because of the liability issue, and I understand that you want us 

to focus on mines that will be abandoned and hold the current mining industry liable for the financing of these cleanups. 

But what about the mines they are talking about, Trout Unlimited and the mine our panelist talked about, where there is no current mining company to go after? Are you proposing that we go 

after mining companies even if they have nothing to do with the 

problem? 

Ms. SMITH. Mr. Chairman, if they are not responsible parties, if 

they don’t own the land, never owned the land, didn’t participate 

in creating the problem, didn’t generate the waste, no. 

I think there are a variety of ways to craft programs that will 

allow for voluntary cleanups, for cleanups by all sorts of people. If 

you look through EPA’s data on cleanups that have been happening, you will find casino developers. You will find a whole variety of private land owners who have indeed volunteered and managed to find their way through to work within the context of existing laws, no doubt sitting down with people and figuring out what 

they had to do and what they needed to do to be protected but who 

have done cleanups. You have Viacom. You have Aventis. You have 

a whole variety of names of participants in cleanups that weren’t 

mining companies. So, it is not a matter of trying to just stick it 

to the mining companies. 

Reprocessing and remining is a fine activity, and I think it would 

be a useful thing to do, but that can be done within the context 

of existing laws and existing permits and existing environmental 

reviews. 

Senator INHOFE. I will ask others to respond to that. 

Mr. Harwood, in your testimony, you take issue with what you 

believe to be a lack of accountability for the Good Samaritan 

projects. As you know, the Clean Water Act is delegated to the 

States to administer. I would ask the question, if the States are 

able to administer the Clean Water Act, why would they not be 

able to administer the Good Samaritan proposal? 
29 

Mr. HARWOOD. I am not questioning the States’ abilities to administer environmental regulations. I work with the States all the 

time in that role. It is part of the cooperative effort that we have 

between all the Governments in an area. 

The question that I had was concerning the open-endedness of 

the language in the legislation and my concern as to where we are 

headed with that open-ended language. 

Also, like I said in my testimony, I think people are having a 

tendency to say, well, these are all easy things to do, and all the 

engineering and science that is necessary to get the job done just 

gets in the way of progress. Having worked on hundreds of these 

sites and been responsible for accomplishing hundreds of site cleanups, I know that is not the case. There is every level of scientific 

and engineering expertise needed from the very small sites to the 

very biggest ones. 

I think what we need to do is get the EPA and the Federal Land 

Management Agencies, which are pretty well left out of this whole 

discussion, involved in the process of working on this model AOC 

process. 

Senator INHOFE. I appreciate that clarification because I think it 

is good for the record to know that you believe the States would 

be capable of doing something like this. 

Mr. Lewis, do you agree? Do you believe that the delegation of 

this to the States, that they would have the ability to do this, and 

the administration of this program would be as good or better than 

if it were done at the Federal level? 

Mr. LEWIS. Thank you, Mr. Chairman. I think an EPA-delegated 

program to States with robust programs like Colorado, where I am 

from, is a good example. It has great programs in plae now for the 

clean water, mining, and reclamation. I think that needs to be the 

criteria. There needs to be a decent, respectable State program in 

place. But, yes, the States are qualified. They have the staff. They 

deal with these issues on a daily basis. They are familiar with the 

site-specific conditions in and around these properties. So, they are 

imminently qualified, yes, sir. 

Senator INHOFE. I think that is an area where we are all in 

agreement. 

Mr. Gioia, first of all, help us out a little bit. Where is Contra 

Costa County? 

Mr. GIOIA. Contra Costa County is just across the Bay from San 

Francisco and Marin County and just north of Berkeley and Oakland. 

Senator INHOFE. OK, well, thank you very much. I understand 

that the county had a grant. 

Mr. GIOIA. We applied for a grant that we were pretty sure we 

were going to get, and we withdrew the grant application because 

of the liability issues. 

Senator INHOFE. What was the size of the grant? 

Mr. GIOIA. Two to three million dollars is the cleanup cost we estimate, and we have been assured that there are many grant opportunities available for this type of cleanup in the San Francisco 

Bay area. 

Senator INHOFE. Yes, it is my understanding that you would 

have been granted that. 
30 

Mr. GIOIA. Yes, right. 

Senator INHOFE. In fact, for all practical purposes, you turned 

down a grant. 

Mr. GIOIA. We did. 

Senator INHOFE. Just to reiterate, what the county then really 

needs is some kind of liability relief. If you had the liability relief, 

would you have accepted the grant? 

Mr. GIOIA. If we had the liability relief, we would have accepted 

the grant. I mean this is clearly a case where we are the true Good 

Samaritan. We are a public agency. We are not a responsible party. 

We are working with the local community, with environmental 

groups, so we all are on the same page. We were just concerned 

about future liability. 

Senator INHOFE. Mr. Ellis, based on the sites in Colorado, would 

providing more money but not addressing the liability concerns resolve your problem? 

Mr. ELLIS. Thank you, Mr. Chairman. I still believe liability is 

clearly the largest hurdle in addressing these mine sites. I would 

like to believe that we could get a check for a billion dollars to 

clean up everything in Colorado, from the Federal Government, but 

I am also a pragmatist and a realist, and I know that is not going 

to happen. There is more and more pressure on Federal funding all 

the time, and it is reflected in the EPA’s budgets and other areas. 

I see this initiative or this legislation as a new, innovative way to 

try to provide additional infusion of public and private capital to 

try to replace those Federal dollars that aren’t there. 

I certainly think it would be foolish to not look into that area and 

see if we can’t pass a bill that will probably have a zero cost from 

CBO. That is an amazing thing for an environmental bill. I believe 

there is no authorization of any appropriation. To me, that means 

a higher chance of passage. If it can result in environmental cleanup, that is a great thing. 

Senator INHOFE. You heard Ms. Smith say she believes there are 

people out there who would, under the current law, be willing to 

come in and cleanup these sites. What is your response to that, 

without any kind of liability protection? 

Mr. ELLIS. That certainly may be the case. I don’t know of every 

site in Colorado. She did mention Representative Salazar’s bill, and 

I think that is an innovative way to try to tackle the problem as 

well. I wish them the best of luck in that effort. But anybody who 

has ever done even Federal land exchanges of 10 acres, understands the difficulty of passing Federal legislation. If we were to do 

that for every single watershed, I don’t know that that is a great 

thing to hang your hat on to solve the problem Westwide. It takes 

an act of Congress. 

Senator INHOFE. Ms. Smith, you are shifting around there. Did 

you want to respond? Did I mischaracterize your statement? 

Ms. SMITH. Well, Mr. Chairman, I think it is not a question of 

liability relief by waiving the law and changing the law or no liability relief. You have a tool. You can do an administrative order on 

consent. The EPA spent a year, and perhaps that was far too long 

to spend on the Trout Unlimited project, but now they have a 

model. They have other models. They have done consent agreements in a whole variety of places, some much more complicated 
31 

than the Trout Unlimited project. They can use that to offer protections. 

I think part of the unsaid piece of this is there are dry cleanups 

and there are going to be discharging cleanups. Those cleanups 

where there will be a continuing discharge, and because many 

mines will have perpetual pollution, acid mine drainage that will 

last for thousands of years, there is going to be a continuing discharge. So, if somebody comes in, makes the discharge better, and 

then walks away, somebody has to be responsible for overseeing 

what happens in the future. Hopefully, the States or the counties 

would step up to the plate if they had the funds for helping them. 

Senator INHOFE. I appreciate that. I do appreciate that. 

Mr. Gioia, first of all, what is your title with this county? 

Mr. GIOIA. I am the Chair of the Board of Supervisors. 

Senator INHOFE. You are the boss. 

Mr. GIOIA. There are five of us who were elected throughout the 

county, and I just happen to be the Chair this year. 

Senator INHOFE. It is your turn. I have been there; I understand. 

They kind of implied that perhaps the county wouldn’t have the 

ability or the resources or be able to take care of one of these remediations. How would you do this? Would you have mining engineers 

advise you? How would you go about doing it? How would you answer that? 

Mr. GIOIA. What we would do in this situation is clearly we 

would be hiring experts to consult and to affect this remediation. 

These grants that we would obtain require a fair amount of oversight and require clearly a process that would need to be followed 

to insure the integrity of the cleanup. 

Now, there have been some issues raised about what is the best 

way to do this. For us, ultimately, it is about protecting liability because, as all of you know, local governments spend a fair amount 

of money on health and social services and public works and planning. For us, how much we may have in terms of liability for something that we are voluntarily taking upon ourselves to do is a concern. We would rather be spending our money handling health and 

social services which is one of our major responsibilities. 

So, if we can get the money and we are confident we can, we 

don’t want to have a blank check out there where we start the 

cleanup and run into a ‘‘touch it, you own it’’ kind of philosophy 

and we then have the potential for payments over a period of years. 

We don’t want that. We need certainty. That is why we just want 

to have liability capped if we do cleanup responsibly and safely. We 

know that we have that responsibility. We would hire the experts 

to do that. We wouldn’t be doing all that ourselves, and we would 

be doing it in a very public way, working with the community. 

Senator INHOFE. Thank you, Mr. Gioia. 

Senator Boxer, I am just insisting you take more than the 5 minutes you normally have, more than 10 minutes, a full 12 minutes 

with one proviso. 

Senator BOXER. What? 

Senator INHOFE. That would be when Senator Thune arrives, between your questions, you would allow him to make an opening 

statement, all right? 

Senator BOXER. Absolutely. 
32 

Senator INHOFE. All right. 

Senator BOXER. Thank you very much. 

First of all, welcome to Washington, I say to my constituent, Supervisor Gioia. As you know I started out as a Marin County Supervisor. 

Mr. GIOIA. I remember. I worked on the staff of a Supervisor 

across the Bay when you were the Supervisor at Marin. 

Senator BOXER. You young thing. 

The point is I hear you so well because we were facing a lot of 

things like that. For example, our beautiful Frank Lloyd Wright 

Civic Center had to be earthquake-proofed. I remember being faced 

with this because at that time it was millions of dollars that we 

didn’t know where to get. It was scary. 

I think you did the right thing. Unless you were certain that you 

didn’t have this open-ended problem at the end, you did the right 

thing. However, knowing Contra Costa County and listening to you 

very carefully, I am assuming—and tell me if I wrong or right 

here—while you want liability protection, that is your main thing, 

you are not asking us to lower the cleanup standards, are you? 

Mr. GIOIA. No. We do not want you to lower environmental protections. 

Senator BOXER. Fine. 

Mr. GIOIA. We are very careful. We are very concerned about 

that. 

Senator BOXER. That is important to me because if I told you, as 

Ms. Smith tried to do and I am going to try to do too, that there 

are a couple of other ways you could proceed without this particular law and in fact, as Mr. Harwood has pointed out and Ms. 

Smith pointed out, that weakens the bottom line protections for the 

public in terms of the water quality because it is so vaguely drafted. All you have to do is read the EPA staff comments that were 

deep-sixed in this deal to see that. Then I assume you would be 

content with that. 

Mr. GIOIA. We would. 

Senator BOXER. In other words, you don’t have a dog in our fight. 

Mr. GIOIA. Our issue is to protect the true Good Samaritan which 

we believe we are. 

Senator BOXER. Yes, I hear you. I hear you, OK. 

Now, I just want to go forward with this little dialog that was 

started between our good chairman, and he is my really good 

friend, and Ms. Smith. That is there already is a way to do all this 

through the EPA, through the consent order which, by the way, is 

done outside the court. It says consent, so it sounds like a court, 

but it is not a court. It is an administrative decision. Mr. Harwood 

referred to it. The EPA is kind of throwing up its hands as if it 

is too difficult for them, but they can do this. They can provide for 

liability protection right in that order and keep the same standards, and we all go away happy. 

The other way is through a piece of legislation that I so supported and helped write, which is the brownfields law which unfortunately is not funded the way it should be funded. It still could 

be able to afford a $2 to $3 million grant. Specifically in 

brownfields, it allows for mine cleanups, and it goes along with 

Good Samaritan capabilities because it essentially gives the money 
33 

to the county. The county makes decisions on how it acts. My view 

is both of those things could work. 

Now, I would be glad to pause here for Senator Thune. 

Senator INHOFE. That would be good. Why don’t we stop the 

clock and recognize Senator Thune. 

Senator Thune, this was worked out before your appearance. If 

you would like to make an opening statement, you may do so at 

this time. Then we will go back to Senator Boxer’s question and 

then ask if you have questions. 

OPENING STATEMENT OF HON. JOHN THUNE, U.S. SENATOR 

FROM THE STATE OF SOUTH DAKOTA 

Senator THUNE. Thank you, Mr. Chairman. I appreciate that. I 

am just coming over from an Indian Affairs Committee hearing. I 

appreciate joining you and others for this hearing today as we 

learn more about how liability concerns may be impacted in cleanup of abandoned hard rock mines across the country. 

There is no doubt that the 500,000 abandoned hardrock mines 

pose varying degrees of risk to the public, including watersheds. As 

chairman of the Subcommittee on Superfund Waste Management, 

I can tell you I have learned a great deal since joining this committee, including some of the pitfalls associated with our environmental laws such as Superfund which is a stringent liability 

scheme that can impede clean ups by innocent parties. 

As a Senator who hails from a Western State that experienced 

a gold rush in the 1870’s, I can certainly understand the concerns 

raised by Senators Allard and Salazar as they work to address a 

major issue that continues to impact residents of their home State. 

I applaud the President and Administrator Johnson for joining us 

today to better explain why a Good Samaritan provision is needed 

to help address the impact of abandoned mines and the discharge 

of pollutants that continue to this day. 

Last, I understand that some on this committee oppose efforts to 

establish a Good Samaritan provision for hardrock mine cleanup 

because they feel the Superfund program should pay for the cost 

of cleanup. I would like to point out, Mr. Chairman, the Superfund 

program has limited resources, and not all abandoned mines qualify for such funding. While emergency removal funding can be used 

to protect human health regardless if the site is listed on the National Priority List, removal funding is limited to a 1-year effort totaling not more than $2 million. Also, long term remediation costs 

can only pay for out of the Superfund program if the site is listed 

on the NPL. I believe this distinction is important to keep in mind 

due to the larger Superfund cleanup needs that exist throughout 

the country. 

Seeing the proposals to provide Good Samaritan protection are in 

no way a solution for the cleanup of all abandoned hard rock 

mines, I do believe that if Congress can provide some ability for interested parties to clean up pollution from abandoned mines, then 

that is something we should all support. 

I appreciate the opportunity to come here, Mr. Chairman, and to 

make that statement, and I appreciate very much the testimony 

that has been offered today. I would also like to acknowledge that 

our subcommittee will beholding a hearing on the Superfund pro-
34 

gram tomorrow, and we will look forward to taking testimony at 

that as well. 

I will allow you to go back to the Senator from California, so that 

she can continue her line of questioning. 

[The prepared statement of Senator Thune follows:] 

STATEMENT OF HON. JOHN THUNE, SENATOR FROM THE STATE OF SOUTH DAKOTA

Mr. Chairman, I appreciate joining you and others for today’s hearing as we learn 

more about how liability concerns may be impacting the clean up of abandoned 

hardrock mines across the country. 

There is no doubt that the 500,000 abandoned hardrock mines poses varying degrees of risk to the public—including watersheds. 

As the Chairman of the Subcommittee on Superfund and Waste Management, I 

can tell you that I have learned a great deal since joining this committee—including 

some of the pitfalls associated with the our environmental laws—such as Superfund 

which has a stringent liability scheme that can impede clean-ups by innocent parties. 

As a Senator who hails from a western State that experienced a gold rush in the 

1870’s, I can certainly understand the concerns raised by Senators Allard and 

Salazar as they work to address a major issue that continues to impact residents 

of their home State. 

I applaud the President and Administrator Johnson for joining us today to better 

explain why a Good Samaritan provision is needed to help address the impact of 

abandoned mines and the discharge of pollutants that continue to this day. 

Lastly, I understand that some on this committee oppose any effort to establish 

Good Samaritan protections for hardrock mine cleanup because they feel the Superfund program should pay for the cost of cleanup. I would like to point out that the 

Superfund Program has limited resources and not all abandoned mine sites quality 

for such spending. 

While, emergency removal funding can be used to protect human health, regardless if a site is listed on the National Priority List (NPL), removal funding is limited 

to a 1-year effort totaling not more than $2 million. Also, long term remediation 

costs can only be paid for out of the Superfund program if a site is listed on the 

NPL. 

I believe this distinction is important to keep in mind due to the larger Superfund 

clean-up needs that exist throughout the country. 

Seeing that proposals to provide Good Samaritan protection are in no way a solution for the cleanup of all abandoned hardrock mines, I do believe that if Congress 

can provide some ability for interested parties to clean up pollution from abandoned 

mines then that’s something we should all support. 

Senator INHOFE. Thank you, Senator Thune. 

Senator THUNE. Thank you, Mr. Chairman. 

Senator INHOFE. Senator Boxer. 

Senator BOXER. Thank you both. 

As I was saying, Supervisor, what I get from you is your problem 

is you want assurances that you are not going to be sued for doing 

a very good faith, not only good faith but well designed, cleanup. 

Mr. GIOIA. Yes. 

Senator BOXER. I am with you on that, and I want to help you 

on that. We will be working with you because we believe we can 

accommodate this under current law. So, we will be working with 

you on that. 

Mr. GIOIA. Great. 

Senator BOXER. Now, I want to shift the remainder of my time 

to Mr. Harwood who I consider to be a real expert witness. How 

many years have you worked in this mine cleanup area? 

Mr. HARWOOD. I have worked in the mine cleanup area since 

1983, totaling 37 years of Federal service, and I am still working 

in mine cleanup. 
35 

Senator BOXER. OK. Well, let me ask you this. The New York 

Times did a very deep analysis about these cleanups, and I want 

to read some of the words they say and see if you agree with them. 

In October, the New York Times reported that mines usually 

need to dig up 30 tons of rock to create one ounce of gold, and they 

often use cyanide to capture the gold. The paper stated, ‘‘Before 

they are through, miners in some of the largest mines move a half 

million tons of earth a day, pile it in mounds that can rival the 

Great Pyramids, and drizzle the ore with a poisonous solution for 

years.’’ That is one quote. 

Another quote is ‘‘Some metal mines, including gold mines, have 

become the near equivalent of nuclear waste dumps that must be 

tended in perpetuity.’’ 

Do you think those are overstatements, or do you think they capture some of it? 

Mr. HARWOOD. The outline or definition of the heap leach operation is fairly accurate because the folks who are in the mining 

business now are working on ore bodies that have very small 

amounts of what they are hunting, so they have to move a horrendous amount of material, and one of the processes they use is a cyanide heap leach process. That has been a problem on active mining sites, and it has also been a problem on sites where the mining 

company, for whatever reason, has gone bankrupt, and the Federal 

Government or the State or whomever is left with this heap leach 

pile to try to neutralize. 

The other point I think was made that some of these sites will 

go on in perpetuity. I worked on a site in Central Idaho that has 

a water treatment plant on it which is treating the adit discharge 

from the mine works, and that water treatment plant, to meet 

water standards, will have to run forever, for eternity. Somebody 

has to maintain that water treatment for eternity. So, there are 

sites like this that I am talking about that will need to have maintenance and quality maintenance, somebody who knows what they 

are doing, forever to keep it clean. 

Senator BOXER. We are not talking about a bunch of volunteers. 

They keep saying volunteers. Administrator Johnson talks about 

volunteers as if it is some kind of a beach cleanup where we all 

meet and we cleanup the beach. We are talking about some serious 

cleanup here. 

Mr. HARWOOD. Some of the sites that I am working on have repositories where you put the contaminated mill tailings and waste, 

and one of these repositories holds over 22 million cubic yards of 

material. That is 2.2 million dumptruck loads of waste we had to 

dispose of. That is just one site. 

Now, not every site is like that. These are mega sites. At small 

sites I worked on with the Forest Service, where they built their 

own repository onsite, we are looking at 135,000 to 200,000 cubic 

yards of material to dispose of. It is not some small project. 

Senator BOXER. Do you agree with me and some of the others on 

the panel that there already are ways we can handle the Good Samaritans through these consent orders? You alluded to that in your 

testimony. 

Mr. HARWOOD. I alluded to that. We talk about American Fork 

Canyon. I started the American Fork Canyon project off just before 
36 

I retired. Of course, now I am finding out what finally happened 

there. 

One of the things I found out in all the years of Federal service 

I had was there was always somebody going to say you can’t do 

that or you can’t do this. There was a roadblock, and I usually 

drove a truck through the roadblock. The idea that we can’t deal 

with this from an administrative standpoint, I think is not correct. 

We can. It is just that everybody who is involved needs to put their 

minds to getting this done in a reasonable manner. 

Again, I don’t want to miss emphasizing the fact that the Federal 

Land Management Agencies have CERCLA authority on the public 

lands, and they have just as good a staff of people to work with 

the EPA on drawing up these administrative orders as anybody 

does. 

Senator BOXER. After listening to you and just listening to my 

staff explain to me the nuances of what we already have to work 

with here, the Administration could do these orders. We have 

brownfields legislation. 

At the end of the day, I am asking why do we have this legislation? The only answer I come up with is to weaken environmental 

laws because you described how some of these sites will have to be 

monitored essentially forever. I understand from the mining industry’s perspective they are not happy about that because if they are 

one of the parties involved with it, then they have to live up to 

standards. 

It seems to me, unless I am missing something and I could be, 

but my environmental gut says I am not, I think the whole point 

of this is to weaken standards at the end of the day. That is my 

sense of it. Do you think that is a possibility here? I don’t know 

why we need to create legislation if we already have the means to 

get Good Samaritans the help they need. 

Mr. HARWOOD. I think that is the key. That is what concerned 

me, and that is why I came here to testify. Both of these pieces of 

legislation are such a tremendous oversimplification of what the 

problem is, and I am concerned that, as we get into a rush to issue 

permits or whatever, we will disregard some really important environmental requirements. The thing about it is if we don’t do that, 

then the EPA has to establish a whole new program and regulations on how to write these permits and manage these permits. So 

you are starting a whole new program within the Agency. 

Senator BOXER. Right. It occurred to me it is a whole new bureaucracy for something that we have already addressed through 

administrative consents and through brownfields. 

Ms. Smith, my final question will be to you. I think I just expanded on your position. Did I, pretty much? 

But there was one thing that you brought to the table that I am 

not aware of. Could you explain Congressman Salazar’s bill just a 

little bit more? Does it take this concept of model sites? Is that 

what it does? Tell me about it. 

Ms. SMITH. Congressman Salazar’s bill is a demonstration project 

for a particular area. Quite a number of years ago, the EPA and 

the Federal Land Management Agencies along with some of the 

States began looking at a watershed-based approach. A group, a 

stakeholders group was created, and they have worked through 
37 

looking at the whole watershed, identifying priorities, and doing 

monitoring. They are doing this in the context of the TMDL. 

Senator BOXER. What does his bill do? 

Ms. SMITH. His bill creates a demonstration project and provides 

funding for allowing cleanup projects within the upper Animas 

River basin in Colorado. 

Senator BOXER. And the hope is if this works for Colorado, it 

could be adopted for the rest of us. 

Ms. SMITH. Right, it includes a report. It is a 10-year sunset. 

There are reporting requirements. There are monitoring requirements. 

Senator BOXER. But it is just limited to that geographic area. 

Ms. SMITH. Yes. 

Senator BOXER. In general, do you think, again just because now 

my time is really running out, that what we have been saying is 

accurate, that there already are ways to give liability protection 

through the administrative order and through the brownfields law? 

Ms. SMITH. Absolutely, the tools are out there, and I think it is 

a shame not to use the tools that have been developed. I am thinking of my 15 year old son. When he has homework he doesn’t want 

to do, he comes out and he looks for one pencil and then he looks 

for a different pen and then he wants a different pad of paper. I 

am like, just get on with it and get it done. 

I just would like the Agency to use the tools they have and get 

on with it. 

Senator BOXER. That is why I like women on panels because you 

tend to cut through everything. 

[Laughter.] 

Senator BOXER. Can I say one last word about the panel? I think 

this has been really helpful because I think what you had is you 

had your best spokespersons for all the different varieties and 

shapes for where we may come out. 

Thank you. 

Senator INHOFE. I was thinking the same thing, Senator Boxer. 

Senator Thune, each one of us took 12 minutes for questions. 

You may have a full 12 minutes if you want, and you are recognized for your questions. 

Senator THUNE. Thank you, Mr. Chairman. I understand you are 

probably trying to wrap this up, and it sounds like all the ground 

has been adequately covered. I do appreciate the perspectives presented by the panelists here today, and all bring great insights to 

this issue. 

Again, I would just echo what I said earlier in my statement 

about wanting to work with you and the committee as we move the 

legislation forward. I think it looks like it has very broad bipartisan support in the U.S. Senate, and hopefully we will be able to 

do something that is meaningful in terms of addressing this problem. 

Thank you. 

Senator INHOFE. All right, thank you, Senator Thune. 

Let me thank the panelists. Nobody got in a fight with anyone. 

You were all very respectful. We appreciate the knowledge and the 

ability and the message that you brought forward today. Thank 

you so much. 
38 

We are adjourned. 

[Whereupon, at 11:19 a.m., the committee was adjourned.] 

[Additional statements submitted for the record follow.] 

STATEMENT OF HON. WAYNE ALLARD, U.S. SENATOR FROM THE

STATE OF COLORADO

Mr. Chairman, thank you for holding a hearing on this important issue. Last year 

the EPA’s Inspector General released a report stating that hardrock mine sites 

would soon become the biggest drain on an already strained Superfund program. 

That report identified 156 hardrock mining sites, including copper, gold, iron ore, 

lead and silver mines, which could cost anywhere from $7 to $24 billion to cleanup. That figure is 5 to 12 times EPA’s average annual Superfund budget. While this 

legislation exempts sites eligible under Superfund, I think that these estimates can 

help us to realize the potential clean-up costs. 

These estimates are made all the more frightening by the fact that, in 1993, the 

Mineral Policy Center estimated that, nationwide, there are over one-half million 

abandoned hardrock mine sites in the United States. The same organization estimated that it would cost between $32 billion and $72 billion to reclaim about 

363,000 sites—the ones it classified as contributing the most contamination. If there 

is a way to clean-up some of these sites, without placing such a heavy burden on 

the taxpayer, Congress should be jumping at the opportunity to make it happen. 

Anyone who has driven westward up the I-70 corridor in Colorado from Denver, 

or on many other mountain roads throughout the Rocky Mountain West, has seen 

the impact of abandoned mines on the landscape. These sites, which dot the landscape, are called ‘‘abandoned mines’’ because there is no longer anyone who is legally responsible for their clean-up due to the fact that the owners have died or mining firms have long gone bankrupt. When responsible parties can still be located, 

they often do not have the resources to properly remediate these sites. In the meantime, these abandoned mines continue to pollute the surrounding land and water 

with toxic surface runoff and tailings. 

Allowing outside parties to contribute to the clean up of abandoned mines in Colorado and across the West is a common sense approach to dealing with what is a 

continuing environmental problem. The legislation that Senator Salazar and I have 

introduced, S. 1848 ‘‘The Cleanup of Inactive and Abandoned Mines Act,’’ would 

shield Good Samaritans from legal liability for environmental damage they did not 

generate. A Good Samaritan is a company, individual, or any group made of entities 

not responsible for the mine waste that is willing to clean-up historic mine residue 

at no cost to the taxpayers. Good Samaritans should be rewarded for doing the right 

thing, not put at legal risk. This legislation has been years in the making and I am 

pleased that we are here before the committee today with a bi-partisan solution. 

The legislation will provide legal protections for mining firms, communities, nonprofit organizations or individuals that step in to clean up these abandoned mines 

from liability under Federal and State laws, but it also contains stringent requirements to prevent abuse. 

A Good Samaritan permit would only be issued if the interested party submits 

a concrete action plan that identifies problems that need to be fixed and includes 

a clear plan for completion. The permit application and work plan would also have 

to be approved by the relevant State agencies in order to be valid. After the permit 

is approved the sites would be subject to ongoing monitoring to ensure that the remediation is completed as the permit states it will be; permitees would be subject 

to heavy fines for non-compliance with their permit. 

Before I close, I would like to take a moment to extend a special welcome to Dennis Ellis, executive director of the Colorado Department of Public Health and the 

Environment, and Scott Lewis with Anglo-Gold. Both of these gentlemen are Coloradans, I thank them for making the trip out to DC to share their perspectives on 

this important issue. 

Thank you again for holding this hearing, Mr. Chairman. We have a window of 

opportunity to accomplish a ‘‘win-win’’ solution for the environment and the taxpayers. I intend to continue working with you, Senator Salazar, and our colleagues 

in the Senate and the House in developing legislation this session to allow for deliberate and conscientious abandoned mine land clean-ups. 

STATEMENT OF HON. KEN SALAZAR, U.S. SENATOR FROM THE

STATE OF COLORADO

Thank you, Mr. Chairman and Ranking Member Jeffords. Thank you for agreeing 

to hold this hearing. I appreciate the opportunity to testify in support of S. 1848, 
39 

the Good Samaritan ‘‘Cleanup of Inactive and Abandoned Mines Act,’’ which I introduced with my colleague from Colorado, Senator Allard. And I look forward to working with both of you and with all of the members of this committee to pass this important legislation during this session. I am particularly grateful to Senator Baucus 

for his prior work in this area and for his support for my bill. 

For almost 25 years, first as a natural resources lawyer, then as Executive Director of the Colorado Department of Natural Resources, and then as Colorado’s Attorney General, I have been working to help clean up the many contaminated mine 

sites in my State. As I’m sure Mr. Ellis could affirm, I, as a regulator and as the 

State’s chief legal counsel, had ample tools in my toolbox and—most of the time— 

ample resources at my disposal to force polluters to clean up contaminated mine 

sites that were large enough and that posed a sufficient risk to public health and 

the environment to warrant the attention of the EPA or the State Health Department. Usually that was the case when a site like Leadville and Summitville was 

listed on the National Priorities List under CERCLA or when the Health Department identified an unpermitted discharge of acid mine drainage or other contaminants into the waters of the State. 

But there are some 22,000 inactive and abandoned mine sites in my State that 

are beyond the reach of EPA and the State, not because our pollution laws do not 

apply to them, but because there is no identifiable owner or operator who is responsible for performing the cleanup and because neither the State nor the Federal Government has the resources to step in and conduct its own cleanup. 

And ironically, the draconian liability schemes under CERCLA and the Clean 

Water Act deter would-be volunteers, or ‘‘Good Samaritans,’’ from getting near those 

sites for fear of unlimited liability. Even with a solid, sensible plan to clean up a 

mine site, Good Samaritans assume massive liabilities under the Clean Water Act 

and CERCLA, in addition to State and local laws. These liabilities dissuade efforts 

to erase the environmental legacy of hardrock mining. 

And so, year after year, over half a million mine sites across the country stand 

idle, awaiting cleanup as lead, cadmium, mercury, copper, arsenic and zinc seep into 

our watersheds; as mine tailings blow in the wind and taint our air and soil; as 

acidic compounds leach into the water, killing fish and aquatic life and polluting our 

drinking water. 

The continued pollution from these sites and the barriers discouraging Good Samaritans from helping with cleanups is one of the most frustrating realities I have 

faced as a natural resources lawyer. 

When I was the head of the Colorado Department of Natural Resources and Colorado’s Attorney General, I was anxious for State and Federal legislators to pass 

laws that would allow Good Samaritans to conduct these mine cleanups. Over the 

past several years, Congress has considered a number of Good Samaritan proposals—some to amend the Clean Water Act and CERCLA, some to create financial 

incentives for mining companies to act as Good Samaritans, some with extensive liability protection, and some with more limited liability protection. I was disappointed that Congress didn’t pass a comprehensive Good Sam bill at that time, 

because many of these proposals, including bills of Senator Baucus, Representative 

Udall from Colorado, and Senator Campbell from Colorado would have yielded good 

results. But I also thought there should be a more straightforward way of providing 

Good Samaritans the liability protection they need to conduct these cleanups. 

The goal of Good Samaritan legislation is simple: we want to make it easier for 

Good Samaritans to clean up inactive and abandoned mine sites when a cleanup by 

the liable party is otherwise very unlikely. This is a pragmatic objective, which recognizes that making the environment cleaner, especially when a Superfund-quality 

remediation is not possible and not necessary, is better than doing nothing. As is 

often said, the perfect should not be the enemy of the good. 

Because the goal of Good Sam legislation is simple and pragmatic, the means to 

achieve that goal should be simple and pragmatic, not legalistic or bureaucratic. 

So how do we do this? How do we create a permitting process for Good Samaritan 

mine cleanups that is straightforward yet thorough, simple yet rigorous? 

In my experience with water deals, public lands issues, and disputes over natural 

resources, I have found that the best results are achieved when all stakeholders 

agree on the scope of a project before the project begins. This consensus-based approach reduces bureaucracy, limits the potential for conflict, and ensures transparency. 

I have written this bill based on my experiences with consensus-building. Under 

my bill, a Good Samaritan applies for a permit from the EPA. It is a technicallybased permit application that depends on a sound work plan and achievable results. 

In order to receive the permit for the project, local, State, and Federal authorities 

must all agree that the overall environmental improvement will be significant, that 
40 

there is no environmental degradation—at the project or anywhere else—and that 

the project is technically sound. 

If the State or the local communities whose laws are affected do not agree with 

the proposed cleanup plan, they simply refuse to sign the permit and the project 

does not go forward. But if they think the cleanup plan is sound, they determine 

the scope of liability protection afforded under the permit. 

While some bills offer blanket liability protection from environmental laws for all 

Good Samaritans, my bill provides that the liability protections should be crafted 

on a case-by-case basis. The local and State Governments can create liability protections from their laws, and the EPA can offer limited or extensive liability protection 

under the Clean Water Act and CERCLA or other relevant statutes. Presumably, 

each project is unique, so the liability protections afforded under each permit should 

be designed to fit the project. 

The permit process is entirely open to the public at every step of the way. The 

EPA must give public notice of the permit application, hold a hearing, consider public comment, and make public all records in the permit process. 

Only after the public has weighed in and the stakeholders have agreed that the 

project will result in an overall improvement to the environment, the EPA issues 

the permit. In the permit, the applicant lays out a clear, concrete list of liability 

protections as well as the terms and conditions of cleanup that must be satisfied 

in order to benefit from those protections. That’s it—one permit, issued after extensive public input and the consensus of all stakeholders. 

This pragmatic, simple approach not only reduces bureaucracy, but it strikes a 

careful balance that protects Good Samaritans from liability without creating an 

end-run around environmental laws. 

Let me emphasize that last point: My bill, like the administration bill, makes 

clear that a party that is liable for the cleanup under any applicable Federal, State 

or local law is not eligible for a Good Samaritan permit. Furthermore, my bill makes 

clear that only the activities necessary for the cleanup are authorized under a Good 

Samaritan permit. Any new mining activities at the site would require a mining 

permit and must be performed in accordance with otherwise applicable environmental laws. It is certainly not my intention or the intention of the co-sponsors of 

my legislation to enable polluters to escape liability through a Good Samaritan permit, directly or indirectly, nor is it our intention to authorize mining or ‘‘remining’’ 

operations without the necessary mining permit and in compliance with all applicable laws. My bill recognizes those distinctions and draws those lines clearly. 

Just as we should facilitate Good Samaritan cleanups where there is no identifiable liable party, we should enable volunteers to clean up abandoned mine sites 

where the person who may be responsible for the mine residue does not have the 

financial resources to pay for the cleanup. In that case, it is more important to clean 

up the site than it is to point fingers. 

Based on my experience, we should also allow a range of stakeholders to apply 

for permits. Given the safeguards in the bill, there is no good policy reason to limit 

Good Samaritan permits to local or State Governments when so many capable nonprofit organizations, individuals, and businesses are willing and able to make significant improvements at these sites. 

Importantly, my bill would not disqualify a company or individual from capturing 

and retaining whatever ore values may exist in abandoned tailings piles or other 

mine residue. If the technologies available today enable a company to reprocess 

mine tailings and recover valuable minerals that could not be recovered more than 

100 years ago—when many of these mines sites were last active—then it should be 

permitted to retain those mineral values as a modest incentive for performing the 

cleanup and to offset its costs. 

Mr. Chairman, my bill reflects a balanced and pragmatic approach to solving a 

vexing problem. It creates an open and straightforward process that is neither bureaucratic nor unduly legalistic, but that is based on consensus and a sound, technically-based work plan. As I said earlier, in my experience the best solutions come 

not through subpoenas or paperwork, but at a conference table, with people of good 

will in open discussion, finding common ground. 

Passing this bill would be a great step forward for Colorado and Western States. 

For too long we in the West have been frustrated by the legacy of mining, stymied 

by liability schemes that focus primarily on who is responsible for what, rather than 

on developing a practical solution to the problem. The truth is that because we have 

all benefited, and continue to benefit, from resource extraction, we share a responsibility for cleaning up our land and our water. In the end, we will be judged not by 

who we find liable to clean these sites, but by whether we get them cleaned up for 

our children and our grandchildren. 
41 

Mr. Chairman, I want to thank you again for holding this hearing today and for 

inviting me to testify. I very much look forward to working with you and the Committee to pass this Good Samaritan legislation, which is of such importance to the 

land, water, and people of Colorado and the Nation. 

Thank you. 

STATEMENT OF DENNIS E. ELLIS, EXECUTIVE DIRECTOR, COLORADO DEPARTMENT OF

PUBLIC HEALTH AND ENVIRONMENT

Mr. Chairman, and members of the committee, thank you for the opportunity to 

appear before you today to discuss an issue of great importance to the State of Colorado—abandoned or inactive mines and the liability barriers that exist to the cleanup of these mines. Abandoned or inactive mines are responsible for many of the 

greatest threats and impairments to water quality in Colorado and across the western United States. Thousands of stream miles are severely impacted by drainage 

and runoff from these mines, often for which a responsible party is unidentifiable 

or not economically viable. 

Regulatory approaches to address the environmental impacts of abandoned or inactive mines are often fraught with difficulties, starting with the challenge of identifying legally responsible and financially viable parties for particular impacted sites. 

Mine operators responsible for conditions at a site may be long gone. The land and 

mineral ownership patterns in mining districts are extremely complex and highly 

differentiated. The surface and mineral estates at mine sites are often severed and 

water rights may exist for mine drainage. It is not uncommon for there to be dozens 

of parties with partial ownership or operational histories associated with a given 

site. 

In view of the impacts on water quality caused by these abandoned mines and 

the difficulties in identifying responsible parties to remediate the sites, Colorado is 

very interested in undertaking and encouraging voluntary ‘‘Good Samaritan’’ remediation initiatives, i.e., cleanup efforts by States or other third parties who are not 

legally responsible for the existing conditions at a site. However, ‘‘Good Samaritans’’ 

currently are dissuaded from taking measures to clean up the mines due to an overwhelming legal disincentive. 

To date, Environmental Protection Agency (EPA) policy and some case law have 

viewed abandoned or inactive mined land drainage and runoff as problems that 

must be addressed under the section 402 National Pollutant Discharge Elimination 

system (NPDES) permit program. However, there is currently no provision in the 

Clean Water Act that protects a ‘‘Good Samaritan’’ that attempts to improve the 

conditions at these sites from becoming legally responsible for any continuing discharges from the mined land after completion of a cleanup project. In addition, the 

potential for creating liability under the Comprehensive Environmental Response, 

Compensation and Liability Act (CERCLA) has been a disincentive for parties interested in undertaking remediation efforts. These potential liabilities create an overwhelming disincentive to voluntary remedial activities to address the serious problems associated with inactive or abandoned mined lands. 

Colorado has found that there would be a high degree of interest and willingness 

on the part of Federal, State and local agencies, volunteer organizations and private 

parties to work together toward solutions to the multi-faceted problems commonly 

found on inactive mined lands if an effective Good Samaritan provision were adopted. Consequently, for over a decade Colorado has participated in and encouraged— 

in cooperation with other States, Congressional Offices, the environmental community, the mining industry, EPA, and other interested parties—efforts to develop appropriate Good Samaritan legislation. Colorado’s Minerals, Energy and Geology Policy Advisory Board supported the concept of Good Samaritan legislation in 1996. 

Colorado believes strongly that only a legislative solution can effectively address 

liability concerns, particularly for sites with draining adits, and therefore strongly 

encourages Congress to move forward on this issue. 

COMPONENTS OF A GOOD SAMARITAN PROPOSAL

Scope of ‘‘Remediating Party’’ Definition 

Colorado believes that participation in Good Samaritan cleanups should not be 

limited solely to Governmental entities, since there are many other persons likely 

willing to contribute to Good Samaritan cleanup initiatives. The statutory provisions 

should do the following: 

• broadly exclude those with prior involvement at the abandoned or inactive mine 

site; 
42 

• broadly exclude those with current or prior legal responsibility for discharges 

at a site; 

• assure that any non-remediation-related development at a site is subject to the 

normal NPDES rules, rather than the Good Samaritan provision; and 

• be narrowly enough constructed to minimize fears over potential abuses of this 

liability protection. 

CITIZEN SUIT ENFORCEMENT

The citizen suit enforcement tool has proven to be a useful incentive to encourage 

permit compliance by point source dischargers subject to the NPDES program. From 

the outset of development of the Good Samaritan proposal, Colorado has believed 

that a different set of enforcement tools is warranted for Good Samaritan permittees. Other permittees are required to get permits because they are undertaking activities that cause pollution, and a policy decision has been made that a broad array 

of enforcement tools are appropriate to assure that these polluting activities are 

adequately controlled. A Good Samaritan is not a ‘‘polluter,’’ but rather an entity 

that voluntarily attempts to step in and remediate pollution caused by others. In 

this case, sound public policy needs to be focused on creating incentives for the Good 

Samaritans’ actions, not on aggressive enforcement that creates real or perceived 

risks to those that might otherwise undertake such projects. It is clear that the perceived risk of citizen suit action is currently a major disincentive for such efforts. 

STANDARD FOR CLEANUP

The analysis of a proposed project needs to occur at the front end of a project. 

Once there is agreement that a project is expected to result in water quality improvement, with no reasonable likelihood of resulting in water quality degradation, 

the Good Samaritan’s responsibility must be defined as implementing the approved 

project rather than, e.g., meeting specific numerical effluent limits. 

SCOPE OF MINING SITES ADDRESSED

Colorado supports the adoption of a Good Samaritan bill that addresses abandoned or inactive hardrock mines. Colorado is concerned that any efforts to include 

coal mines in Good Samaritan legislation would bring into play additional issues 

that would make adoption of legislation more challenging and likely lead to further 

delays. 

REMINING

Colorado has actively encouraged remining as a form of environmental clean up 

since the Colorado Mining Summit in 1987. Governor Owens supports remining as 

an option that presents the potential for achieving further clean-up of historic mining impacts. Options for promoting responsible remining that can result in additional remediation of historic mining impacts should be explored. 

FUNDING FOR REMEDIATION

Historically, Clean Water Act section 319 funds have been utilized for a number 

of projects remediating inactive and abandoned mined lands. To assure that section 

319 funds will continue to be available for such cleanup projects, any Good Samaritan proposal should include a provision clarifying that such funds may be used for 

projects subject to Good Samaritan permits. Such a provision would not be intended 

to change the current section 319 allocation formula or a State’s prioritization of 

projects under a State nonpoint source management program. 

Conclusion 

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

Abandoned Mines Act, introduced by Senators Allard and Salazar. We believe that 

this bill provides a thoughtful and balanced approach to the range of issues and options that have been discussed. 

For us, this is not an academic debate about appropriate legislative language. If 

a Good Samaritan bill is enacted, water quality in Colorado will improve during the 

next available construction season. Our State Division of Minerals and Geology has 

several projects that it has put on hold due to liability concerns. These projects will 

be revived if legislation is passed. In addition, there are numerous public, private, 

governmental and non-profit groups and entities in Colorado anxious to pursue remediation projects in several of our river basins as soon as the Good Samaritan liability issue is resolved. The attached Appendix provides a list of several current 
43 

or potential mine remediation projects in Colorado that are affected by the need for 

Good Samaritan legislation. 

The State of Colorado urges Congress to move forward with S. 1848 as the basis 

for Good Samaritan legislation. 

RESPONSE BY DENNIS ELLIS TO AN ADDITIONAL QUESTION FROM SENATOR JEFFORDS

Question. What are the basic capabilities that you believe a State would need to 

demonstrate prior to receiving authority to issue a Good Samaritan permit addressing Clean Water Act and CERLA? 

Response. Basis capabilities a State would need to demonstrate for Clean Water 

Act (CWA) delegations would be similar to other showings for CQA delegations that 

currently exist, such as the ability and resources to effectively issue and enforce permits to the same level the Federal Government would provide. 

In order for a State to demonstrate the capability to receive delegation from a 

CERCLA perspective, the State should have: 

• Statutory Authority to participate in the CERCLA program; • A Memorandum of Agreement with EPA defining the roles and responsibilities 

of the agencies; • Experience in site characterization, review of site date, and formulation of appropriate response actions based on that data; and • Experience in response action construction oversight. 

STATEMENT OF JOHN GIOIA, CHAIR, BOARD OF SUPERVISORS OF CONTRA COSTA

COUNTY AND CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION

Mr. Chairman, and members of the committee, thank you for the opportunity to 

appear before you today to discuss an issue of great importance for the water quality of our County, the State of California, and other States of the Union—the cleanup of abandoned or inactive mines. I appear before you as Chair of the Board of 

Supervisors of Contra Costa County and the Contra Costa County Flood Control and 

Water Conservation District. I am pleased to provide you with our experiences and 

recommendations related to abandoned mine cleanups and the liability associated 

with a county agency involved in the clean up work. 

I would like to describe to the Committee an example of a project in Contra Costa 

County that would greatly benefit water quality in the region, yet has not been able 

to be completed due to the lack of ‘‘Good Samaritan’’ legislation. 

BACKGROUND

Contra Costa County is located in the San Francisco Bay Area of California. The 

west portion of the County fronts on the Bay, while the northern portion fronts 

along the Sacramento River, and the east portion drains into the Sacramento-San 

Joaquin Delta. Mount Diablo, the most prominent and tallest mountain in the area, 

presides in the center of the County. Marsh Creek drains from its headwaters at 

the top of Mt. Diablo to the west towards the Delta and discharges into the Sacramento River. An abandoned mercury mine is located in the upper slopes of Mt. 

Diablo, near the headwaters of Marsh Creek. Rain water washing over the mine 

tailings transports mercury down into Marsh Creek and ultimately out into the San 

Francisco Bay. Marsh Creek also flows through the communities of Brentwood and 

Oakley with a total population of 60,000 residents. 

In the early 1960’s, our Flood Control District built flood protection improvements 

in the Marsh Creek watershed, channelizing the downstream reaches of Marsh 

Creek through the flat alluvial area near the City’s of Brentwood and Oakley. 

In 1963 the Flood Control District built a dam across Marsh Creek approximately 

five miles upstream of the City of Brentwood for flood control purposes. The resulting Marsh Creek Reservoir impounds water year round, and has extensive riparian, 

marsh and aquatic growth along the shoreline, providing habitat for a variety of 

wild life including resident populations of fish. The Flood Control District owns the 

Marsh Creek Reservoir and most of the downstream channel. 

HEALTH ISSUE

In 1980 the California Department of Fish and Game analyzed fish from the reservoir and found mercury levels in the fish flesh were above existing health standards. The reservoir has since been fenced off and noticed for no trespassing or fishing due to the mercury contamination. Mercury is a health problem in the San 

Francisco Bay Area and advisory notices are posted for adults to not eat fish from 
44 

the Bay more than twice every month (only once a month for children and pregnant 

women) due to elevated levels of mercury in the flesh of the fish. 

THE MERCURY MINE

Mercury was first mined in this area in 1875 and continued on and off until 1971. 

In 1974, the current property owner purchased the abandoned mine and surrounding property. The property totaled 109 acres and is bordered on three sides 

by Mount Diablo State Park. The current owners were not looking to develop the 

property, but looked at the property as a beautiful spot to raise their children and 

retire. The owner and his wife intended to build their retirement home on the property, they had no plans nor any desire to mine the property, or contract with others 

to mine the property. 

The State’s Regional Water Quality Control Board (RWQCB) first issued waste 

discharge requirements (WDR) to prior mine operators in 1952 and recommended 

corrective action be taken. Although waste discharge requirements were issued to 

the mine operators, contaminated discharges continued after the mine was abandoned. In 1978 the RWQCB issued the property owner a Cleanup and Abatement 

Order because of mercury discharging from the mine site, even though the property 

owner was not a mining operator and did not create the problem. In response, the 

property owner has taken efforts to clean up the property as best he can, but does 

not have the resources to complete a full scale mine remediation project. The property owner recently said, ‘‘So far we have spent over $300,000 of our retirement 

money, in 1975 dollars, and the ‘‘well’’ is nearly dry.’’ 

ATTEMPTED REMEDIATION

In 1995 Contra Costa County contracted with a team from the University of California at Davis, lead by Dr. Darryl G. Slotten, to study and provide an assessment 

of mercury in the Marsh Creek watershed. The study showed that approximately 

90 percent of the mercury in the watershed originates from the piles of tailings at 

the abandoned mercury mine. Based on the study, Contra Costa County applied for 

a Calfed grant in 1997 to remediate the mercury mine and reduce the mercury 

transported from the mine to the downstream watershed and into the Bay/Delta 

system. Our County Counsel and Risk Manager reviewed the grant in light of the 

lawsuit that the East Bay Municipal Utility District was facing with the remediation work they had done at the Penn Mine site and concluded that our county 

would be exposed to liability if the project was built. As a result, we withdrew the 

grant. Our sentiment was summed up in a staff memo that said, ‘‘It is sad that we 

can’t try to help this problem, but we cannot risk getting into a situation that costs 

the county $5 million plus huge attorney bills like it did the East Bay Municipal 

Utility District’’. 

The Flood Control District is still interested in remediating the mine and we are 

confident we can get the grant funds to do so. The local watershed council in the 

Marsh Creek watershed is a stakeholder group that includes several local environmental groups and is very supportive of our efforts to remediate the mine. The property owner is also very supportive of our efforts. The barrier to us implementing the 

project is liability. 

GOOD SAMARITAN INITIATIVE

Understanding that liability exposure was the fundamental issue preventing us 

from participating in remediating the mine, Contra Costa County partnered with 

the Natural Heritage Institute and the cities of Oakley and Brentwood for a grant 

in 2000 that sought to solve the liability problem. This grant application was unsuccessful. Still interested in pursuing the remediation of the mercury mine, last year 

we partnered with Sustainable Conservation, a non-profit organization with experience in the arena of liability exposure with environmental projects. This has lead 

to discussions with EPA on their Good Samaritan Initiative and the prospect of 

emulating the Trout Unlimited cleanup project in the American Fork River watershed in Utah. 

The Good Samaritan Initiative is based on EPA’s administrative authority to 

issue an Administrative Order and Consent. This is intended to be used in enforcement actions for liable parties. The difference is we are not a liable party. We are 

interested and willing to help clean up the mine site, but we don’t legally have to. 

Since the Administrative Order and Consent is an enforcement tool, it would take 

an inordinate amount of our staff time and resources to modify it to be used for voluntary work. The other concern we have is that throughout the negotiation process 

to draft the Administrative Order and Consent there is no public input. In our experience, projects that have no public input end up creating huge problems later on. 
45 

When the public ultimately finds out about the project, we have to spend an inordinate amount of staff time and resources to change the project design based upon 

subsequent public input. As a result, we will not sponsor a project development 

process without public input. 

We support legislation specifically tailored to agencies cleaning up mines on a voluntary basis. This would be much better than the current attempt to modify an existing enforcement tool to achieve the same purpose. 

LIABILITY ISSUE

Our liability exposure occurs in at least two ways. One is under the Clean Water 

Act. This would be similar to the situation the East Bay Municipal Utility District 

(EBMUD) found themselves in after working on improving the Penn Mine drainage. 

EBMUD worked with the State’s Regional Water Quality Control Board (RWQCB) 

in developing a remediation plan for the mine site. The remediation work, which 

was completed in 1978, reduced the pre-project copper discharge from an average 

of 64,000 pounds per year to an average of 13 pounds per year. An environmental 

group sued claiming that EBMUD should have taken out a National Pollutant Discharge Elimination System (NPDES) permit. The courts agreed and found that in 

performing the remediation work EBMUD should have obtained a NPDES permit, 

then followed the NPDES requirements to improve the discharge to current water 

quality standards. After the court case, EBMUD and the RWQCB worked on a follow-up remediation plan that brought the site back to pre-mining conditions at a 

cost of approximately $10 million. 

There is also liability exposure to the county under the Federal Comprehensive 

Environmental Response, Compensation and Liability Act (CERCLA). This law imposes liability for response costs upon owners and operators for the release of hazardous materials from a facility. 

SUMMARY

California’s State Water Resources Control Board has identified the entire length 

of Marsh Creek, from the mine site to the Sacramento-San Joaquin Delta, as an impaired water body for mercury and heavy metals under Section 303(d) of the Clean 

Water Act. The San Francisco Bay Regional Water Quality Control Board is currently developing a total maximum daily load (TMDL) for mercury in the Bay Area. 

The TMDL will provide a long range plan and goals for reducing mercury in the 

watersheds that drain into San Francisco Bay. With the Mt. Diablo mercury mine 

being one of the important sources of mercury into the bay, it will be imperative 

to remediate the mine tailings and prevent further discharge of mercury from the 

abandoned mine site. 

Contra Costa County and the Contra Costa County Flood Control and Water Conservation District have been interested in remediating the mercury mine in our 

county for the last fifteen years. We are confident that we will be able to obtain 

the grant funding necessary to remediate the mercury mine. Every granting entity 

we have talked to is extremely excited about the prospects of the Flood Control District remediating the mercury mine. We are ready, willing and able to fix a source 

of pollution in our county once the issue of liability exposure is addressed. We 

strongly support the efforts of EPA and Congress to adopt legislation that would 

eliminate our liability exposure and allow us to improve the water quality for the 

residents of Contra Costa County and downstream San Francisco Bay Area. 

STATEMENT OF TERRY A. HARWOOD, FORMER EXECUTIVE DIRECTOR, HAZARDOUS MATERIALS POLICY COUNCIL, USDA; FORMER CHIEF ENVIRONMENTAL ENGINEER, 

USFS 

Good morning Mr. Chairman and members of the committee. I thank the Committee for this opportunity to testify on the issue of cleanup of abandoned mines 

and mining related contamination. This issue is and has been a major focal point 

of my professional life for over twenty years. I managed the abandoned mine cleanup programs in USDA and the 

Forest Service at the national and regional level. This experience included managing the programs as well as on-the-ground cleanup activities at hundreds of sites. 

I continue to be professionally involved in cleanup of mining related contamination 

and natural resource damage restoration after retirement from Federal service. 

The intent of this hearing is to consider whether potential liability deters abandoned hard rock mine cleanup. Our attention is focused on the potential for ‘‘Good 

Samaritans’’ to assist in the cleanup process. This is not the right focus. This ap-
46 

proach runs the risk of us ignoring the monster in the room which is the lack of 

sufficient commitment and funding by State and Federal Governments and industry 

to adequately address the task of cleanup. During the years that I managed the 

abandoned mine programs in USDA, funding levels were never increased from Fiscal Year 1995 to the day I retired in 2002 and those funding levels have subsequently been cut. There are thousands of abandoned sites to deal with and at current funding levels the program will take hundreds of years. The potential for good 

intentioned, technically qualified Good Samaritans to make a discernable impact on 

this huge problem is highly questionable. There seems to be an attitude that volunteerism will offset real commitment by Government and industry to deal with 

mining related environmental problems. 

I could spend a great deal of time relating all of the abandoned mine problems 

and challenges to cleaning them up and how the problems run from rather small 

environmental issues on remote public lands to massive complexes in Idaho and 

Montana affecting human health and large eco-systems. Others testifying today may 

outline those issues and numbers more thoroughly. 

One of my major concerns is while attempting to deal with alleged impediments 

to voluntary action we hide from public discussion and consideration the really important issue, the lack of adequate funding and commitment by Government and 

industry 

But this is not my greatest concern. The proposed legislation may be an attempt 

to hide the true nature of cleanup challenges with a gross simplification or disregard for the science and engineering needed to insure that we end up with environmental improvement. Effective cleanup actions require a professional honest intentioned approach to the problem, often times a high level of expertise and substantial resources. Improperly regulated Good Samaritans will not get the job done. 

After review of S. 1848 and S. 2780, I see an attempt to remove most environmental 

regulation from potential Good Samaritan operations as an answer to the fear of 

liability issue. This can lead to degraded environmental conditions after the volunteer action is undertaken. The schemes outlined in the proposed legislation do not 

protect us from things getting substantially worse. 

For example, with S. 1848, we would regress to a time when there was little control over environmental disturbance activities, only the good intent of the party taking the action. This is the reason we find ourselves with the current environmental 

mess. The bill is appropriately numbered, because 1848 was a time in history when 

we did not give much credence to the effect our activities had on the environment. 

Let us also discuss the type of Good Samaritan we may be talking about. For example, they could be a conservation group whose only intent is to assist the governments with no profit in mind, they could be a developer concerned about the impact 

of contaminated abandoned mine sites on a project they are involved in, or they 

could be a mining company that believes they can reprocess mine wastes in a profitable manner. As metals prices escalate, there is more potential for speculation and 

remining proposals. Under both bills you could have a situation in a mining district 

where a mining company operating a new or existing facility would be required to 

meet all of the appropriate environmental regulations while another company operating at a previously abandoned site would be shielded from critical environmental 

regulation. The remining operations can have the same potential for environmental 

impact as new mining operations where hazardous chemicals such as cyanide are 

used in leaching operations. There can be activities where there is no difference between a new operation and a remining operation. 

Both bills are rife with other problems, for example: 

• No adequate provision for the development of regulations for permitting; 

• No environmental accountability. The legislation says that projects have to result in improvement to the environment. The improvements are not defined and 

normal standards are waved by the legislation; 

• Weak or non-existent language to prevent collusion between parties liable for 

cleanup and so called Good Samaritans exempted from environmental regulation; 

• No recognition of the mature abandoned mine cleanup programs in the Federal 

land management agencies. Enabling EPA to issue permits on Federal public lands 

in conflict with the authorities granted under CERCLA in EO 12580; 

• Creation of an unnecessary new Federal program within EPA for permitting 

voluntary actions; and 

• The potential for States to permit activities on Federal public lands without 

fully accounting for Federal resource issues, to name a few. 

The supposed intent of this discussion and the proposed legislation is to deal with 

disincentives to voluntary cleanups because of potential liability. What the proposed 
47 

legislation does is eliminate most if not all environmental regulation and safeguards 

from volunteer activities. 

There is a better solution. There seems to be the idea that under current environmental regulation we must hold potential Good Samaritans accountable to the same 

remedial cleanup standards as those who caused the contamination and that this 

creates a strong disincentive to voluntary cleanup. Experience tells me that we can 

use incremental removal actions as defined under CERCLA to work toward final 

cleanup standards and that each removal action does not need to result in the final 

standard. It just needs to be done in a manner that insures that the removal action 

does not affect our ability to meet final standards in the future and that it has positive results. 

This can be done under current CERCLA regulations through the use of a Good 

Samaritan Administrative Order on Consent (AOC). With this process we could insure that appropriate environmental regulations were considered, we could address 

the liability question for the Good Samaritan, protect the environment from the activities of an unscrupulous or highly speculative party acting as a volunteer, and 

not need to create an entirely new program in EPA. This would also recognize the 

authority and ability of the States and Federal land management agencies to use 

this tool as well. 

This would require that the EPA and Federal land managers with CERCLA authority develop a model Good Samaritan AOC working with potential volunteers 

and that there be a commitment by these agencies to not allow the process to bog 

down in a bureaucratic swamp. It could result in a volunteer program that assists 

in working toward a final cleanup standard while relieving Good Samaritans from 

the fear of liability. 

Thank you for the opportunity to discuss my concerns and recommendations with 

you. My hope is that the nation is not misled into thinking that a solution to the 

Good Samaritan liability issue through currently proposed legislation is a meaningful solution to the abandoned mine problem. It is not. Far from it, with the legislation proposed, we run the risk of substantially adding to our environmental problems by creating a program where necessary scientific investigation of site conditions is not performed; development of regulations and cleanup standards is nonexistent or weak; parties looking to make a buck can tear into these sites with little 

or no regulatory consequence to their behavior; and, even with the best of intentions, the States, Federal land managers and the EPA will end up with a larger 

mess to deal with. 

RESPONSE BY TERRY A. HARWOOD TO ADDITIONAL QUESTIONS FOR SENATOR INHOFE

Question 1. You speak a great deal about the AOC reached with Trout Unlimited 

as the possible solution to the issue of liability deterring the cleanup of abandoned 

hardrock mine sites. However, the AOC addresses only Superfund Liability and the 

site at the American Fork Canyon did not involve any discharges into a navigable 

waterway. Are you aware of a means to address Clean Water Act liability, an issue 

at the center of proposals introduced by Senator Baucus (107th Congress), Co-sponsored by Senator Minority Leader Reid in each of the past three Congresses and 

sponsored this Congress by Senator John Salazar, and separately by Congressman 

Ken Salazar? 

Response. I did not speak extensively in either my written or oral testimony concerning an AOC reached with Trout Unlimited in American Fork Canyon, Utah, nor 

did I ever mention Trout Unlimited. I am fully aware of the conditions and circumstances involved in American Fork Canyon Mining District because that site 

was placed on the USDA and Forest Service CERCLA program of work by my staff 

long before EPA and Trout Unlimited were ever involved. The project is a cooperative effort by EPA and the Forest Service because they were required to work together at this mixed ownership site containing both private and Federal lands. 

What I did speak about and recommend was that EPA and the Federal Land Management Agencies with CERCLA authority develop a Good Samaritan AOC process 

using a model AOC that would address all liability issues for legitimate volunteers 

while insuring that appropriate environmental regulations were considered and 

human health and the environment were protected. CERCLA and the National Contingency Plan allow for certain provisions that can mitigate Clean Water Act liability under a CERCLA AOC. 

Incremental CERCLA Removal actions or interim Remedial actions are used at 

many sites to work toward final cleanup standards and the actions of a Good Samaritan can be treated as one of these steps, not making the volunteer necessarily 

liable for final standards. Most abandoned/inactive mine cleanup actions are not 
48 

Superfund listed sites and the process I recommend and used successfully for years 

in the USDA and Forest Service results in incremental environmental cleanup accomplishment while working toward the goal for achieving final standards. 

My testimony addressed the language in S.1848 and S.2780 and testimony by others given during the hearing, not other legislation proposed by Senators Baucus and 

Reid or Congressman John Salazar. If those proposals allow for the elimination of 

environmental regulations concerning the cleanup of abandoned mines or some open 

ended permitting process, my comments on them would be similar. 

Question 2. Mr. Harwood, you agreed with Senator Boxer’s claim that S1848 and 

S. 2780 rollback our environmental protections. The cleanup standards in these bills 

are similar to that proposed by Congressman Ken Salazar in his legislation praised 

by your fellow panelist Ms. Smith. It is also similar to that proposed by Senator 

Baucus in 107th Congress. Further, the Clinton Administration’s Assistant Administrator for Water supported the cleanup standard in Senator Baucus’ bill, stating ‘‘a 

permit may only be issued where it is demonstrated, with reasonable certainty, that 

improvement in water quality will take place to the maximum extent practicable 

taking into consideration the resources available to the remediating party.’’ Are you 

suggesting then that Senators Baucus and Reid as well as Congressman Salazar 

and the Clinton Administration supported rolling back environmental laws? 

Response. My testimony concerned the language in S. 1848 and S. 2780 and testimony by others at the hearing and the removal of environmental control over the 

acts of potential Good Samaritans working at abandoned mine sites. I am very concerned as to how the EPA would implement such an open ended permitting process 

where so called good intent would trump compliance with environmental regulations. I am also concerned that the permit issuing process would require more time 

than the use of a properly written model Good Samaritan AOC. Other concerns and 

comments I have are included in my testimony. 

As far as the intent of the testimony of Velma Smith concerning Congressman 

John Salazar’s proposed legislation involving the Upper Animas River in Colorado, 

I am not in a position to comment on her intent and questions about her testimony 

could best be answered by Ms. Smith. 

RESPONSE BY TERRY A. HARWOOD TO AN ADDITIONAL QUESTION FROM

SENATOR JEFFORDS

Question. Can you give a few examples of successful abandoned mine clean-ups 

conducted within the scope of the existing authority under CERCLA? 

Response. Following is a partial list of successful abandoned mine cleanup actions 

involving the USDA and Forest Service. The majority of the sites were not listed 

on the Superfund list and a most were cleaned up under USDA and Forest Service 

CERCLA authority or were joint EPA/USDA actions on mixed ownership sites containing private and Federal lands. Some were performed by the Potentially Responsible Parties (PRP), some using Federal and State funding, and some work performed by the agencies utilizing reclamation bond funds and CERCLA settlement 

funds from the PRPs. 

STATEMENT OF STEPHEN L. JOHNSON, ADMINISTRATOR, U.S. ENVIRONMENTAL

PROTECTION AGENCY

Good morning Mr. Chairman and members of the committee. I am honored to appear before you today to testify on one of the most important environmental issues, 

and opportunities, facing the United States—legacy impacts from abandoned mines 

and the innovative efforts we can all take to help clean up pollution from abandoned 

mines. The President is committed to accelerating environmental progress through 

collaborative partnerships, and the Good Samaritan legislation before the committee 

today is the embodiment of this cooperative conservation philosophy. 

First, I want to thank you, Mr. Chairman, for introducing, by request, S. 2780— 

the ‘‘Good Samaritan Clean Watershed Act.’’ S. 2780 is the Administration’s legislative proposal to encourage voluntary cleanup of abandoned mines. I also want to 

commend Senator Allard and Senator Salazar and their colleagues for their legislative efforts to date. Finally, I would be remiss if I failed to acknowledge the longterm efforts of the Western Governors Association to address this issue as well. We 

hope that this Committee reports out, that Congress passes, and that the President 

signs into law S. 2780, or similar legislation, this year. We pledge to work with you 

to make that happen. 
49 

THE ABANDONED MINE PROBLEM

Inactive or abandoned mine sites can pose serious public safety and environmental hazards. According to estimates, there are over half a million abandoned 

mines nationwide, most of which are former hardrock mines located in the western 

States, which are among the largest sources of pollution degrading water quality in 

the United States. Acid mine drainage from these abandoned mines has polluted 

thousands of miles of streams and rivers, as well as ground water, posing serious 

risks to human health, wildlife, and the environment. This problem can affect local 

economies by threatening drinking and agricultural water supplies, increasing water 

treatment costs, and limiting fishing and recreational opportunities. 

CHALLENGES TO CLEANING UP ABANDONED MINES

Mine drainage and runoff problems can be extremely complex and solutions are 

often highly site specific. In many cases, the parties responsible for the pollution are 

either insolvent or no longer available to participate in the remediation. However, 

over the years, an increasing number of ‘‘Good Samaritans,’’ not responsible for the 

pollution, have volunteered to clean up these mines. Through their efforts to remediate these sites, we can help restore watersheds and improve water quality. Unfortunately, as a result of legal obstacles, we have been unable to take full advantage 

of opportunities to promote cooperative conservation through partnerships that will 

restore abandoned mine sites throughout the United States. 

The threat of liability, whether under the Clean Water Act (CWA) or the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 

can be an impediment to voluntary remediation. A private party cleaning up a release of hazardous substances may become liable as either an operator of the site, 

or as an arranger for disposal of the hazardous substances. As well, under the CWA, 

a party may be obligated to obtain a discharge permit and comply with the permit’s 

effluent limitations, which must be as stringent as necessary to meet water quality 

standards. The potential assignment of liability occurs even though the party performing the cleanup did not create the conditions causing or contributing to the degradation. Addressing this liability threat will encourage more Good Samaritans to 

improve the water quality of watersheds impacted by acid mine drainage. 

Remediation of these sites can be complex and extremely resource intensive. Yet 

even partial cleanups by Good Samaritans will result in meaningful environmental 

improvements and will help accelerate achieving water quality standards. By holding Good Samaritans accountable to the same cleanup standards as those that 

caused the pollution or requiring strict compliance with water quality standards, we 

have created a strong disincentive 

to voluntary cleanups. Unfortunately, this has resulted in the perfect being the 

enemy of the good. EPA strongly believes that liability should rest squarely on parties responsible for the environmental damage, not on those who are trying to clean 

it up. EPA has seen this concept work successfully all across the country to clean 

up and restore brownfield properties to beneficial reuse. By removing this threat of 

liability, we will encourage more voluntary and collaborative efforts to restore watersheds impacted by acid mine drainage. 

Let me emphasize, however, that encouraging Good Samaritan cleanups is not 

about lowering environmental standards nor letting polluters off the hook. Instead, 

this legislation will hold Good Samaritans to a realistic standard that ensures environmental improvement. And those responsible for the pollution, if still in existence, 

will remain accountable, consistent with the Agency’s ‘‘polluter pays’’ policy. 

COOPERATIVE CONSERVATION AND EPA’S GOOD SAMARITAN INITIATIVE

President Bush’s August 2004 Executive Order on Cooperative Conservation directs Federal agencies to ensure—when taking actions that relate to the use, protection, enhancement, and enjoyment of our natural resources—that the agencies will 

engage in collaborative partnerships with State, local, and tribal Governments, private for profit and nonprofit institutions, and other non-Government entities and individuals. Last August, as part of the President’s Cooperative Conservation conference, I announced our Good Samaritan Initiative as a means to encourage more 

effective voluntary efforts to remediate damage from abandoned mines. 

This Good Samaritan Initiative accomplishes the objectives of cooperative conservation by clearing legal roadblocks and empowering communities and grass-roots 

organizations to confront environmental challenges. The initiative equips America’s 

eager army of citizen conservationists with important tools to protect our watersheds. 
50 

The first project under the Agency’s Good Samaritan Initiative is the cleanup of 

an abandoned mine in Utah’s American Fork Canyon. We are working with the volunteer group Trout Unlimited (TU) and the private landowner who did not cause 

the pollution. This project will restore a watershed that has been impacted for well 

over a century, improving the water quality and the habitat of a rare cutthroat trout 

species. Restoration of the American Fork is part of an ambitious multi-year effort 

by TU to draw attention to the problem of abandoned mines in the western United 

States while also identifying solutions. EPA has learned from the experience of the 

TU project and is putting those lessons to good use. This is a win-win situation for 

the environment and all involved and shows how cooperative conservation—placing 

a premium on collaboration and cooperation over confrontation and litigation—can 

accelerate environmental protection. 

GOOD SAMARITAN CLEAN WATERSHED ACT

The purpose of the Administration’s ‘‘Good Samaritan Clean Watershed Act’’ bill 

is to restore watersheds and improve water quality by encouraging remediation of 

inactive or abandoned hardrock mining sites by persons who are not otherwise legally responsible for such remediation. In the spirit of cooperative conservation, this 

bill recognizes that environmental progress can be accelerated by encouraging citizens and government at all levels to achieve environmental results through cooperation instead of confrontation. This bill is one of several cooperative conservation legislative proposals that will be submitted by the Administration this year. 

This bill establishes a streamlined permit program that would be administered at 

the Federal level by EPA, and which can be administered by States or tribes if certain conditions are met. A permit issued under this bill would allow a Good Samaritan to clean up an inactive or abandoned mine site and would offer targeted protection from CWA or CERCLA liability for the actions taken under the permit. As 

drafted, the bill is a freestanding piece of legislation and not an amendment to any 

existing Federal environmental statute. 

The bill also contains specific requirements regarding who is eligible for a Good 

Samaritan permit, the sites for which permits may be issued, and what must be included in the permit. Importantly, the bill encourages all volunteers, whether a private citizen, municipality, company, watershed group, or non-profit organization, to 

participate as a ‘‘Good Samaritan’’ provided that they did not contribute to the creation of the pollution, are not responsible under Federal, State or tribal law for the 

cleanup, and do not have an ownership interest in the property. 

I want to take a moment to highlight a number of additional safeguards the bill 

provides to ensure that abandoned mines will be properly remediated: 

• It requires a thorough ‘‘due diligence’’ evaluation of a Good Samaritan and proposed project, ensuring that the Good Samaritan is a ‘‘good actor’’ who has a history 

of good environmental compliance elsewhere and has; sufficient financial resources 

to complete a project; 

• It requires a determination that a project will result in improvement to the environment before any permit for the project is issued; 

• While it provides that permits shall not authorize the extraction of new mineral 

resources, it allows the recycling of historic waste piles if directly related to the 

cleanup, and only after such activities are identified in a permit application and approved; 

• It limits liability relief to only those activities undertaken pursuant to a permit 

issued under the Act; 

• It nullifies liability protection under the Act where an applicant engages in 

fraud or provides materially misleading information; 

• It requires robust public participation, including a mandatory public hearing before a permit is issued; and lastly, 

• It provides ongoing Federal oversight and enforcement of cleanup activities. 

CONCLUSION

Thank you, Mr. Chairman, for the opportunity to discuss with you the Administration’s Clean Watershed Good Samaritan Act legislation. The issue of abandoned 

mine remediation has been discussed and debated for well over a decade. A comprehensive solution is long overdue. We applaud bipartisan efforts in both houses 

of Congress to address the issue, and we look forward to working with you and your 

colleagues to get this important environmental legislation to the President’s desk as 

soon as possible. 
51 

RESPONSES BY STEPHEN L. JOHNSON TO ADDITIONAL QUESTIONS BY

SENATOR INHOFE

Question 1. Can you please describe the types of discharges occuring at the American Fork Canyon abandoned mine site? Does the site involve any water quality discharges or is a ‘‘dry site’’? 

Response. While the abandoned mine does contain a small draining adit, the 

clean-up activities by Trout Unlimited (TU) at the site covered by the Administrative Order on Consent (AOC phases 1 and 2) invole only the removal and disposal 

of contaminated mine tailings, which are contributing to the leaching of heavy metals. The clean up activities do not include the adit, consequently, TU is not required 

to obtain a Clean Water act. 

Question 2. Two witnesses have argued that the AOC the Agency reached with 

Trout Unlimited can be used as a model to clean up the roughly 100,000 abandoned 

hardrock mine sites that the Western Governors Association has estimated are causing water quality degradation. However, the AOC only addressed Superfund liability. Can as AOC be written to address Clean Water Act liability? 

Response. While an AOC can be written in some cases to mitigate Clean Water 

Act liability, an AOC does not automatically provide a blanket waiver of liability. 

For all Superfund responses actions, the EPA must consider all applicable or 

relevent and appropriate requirements (ARARs) that may apply to a particular site. 

The potential applicability of Clean Water Act requirements must be decided on a 

case-by-case basis. EPA has the authority and may decide to waive such requirements. In such case, the AOC would mitigate Clean Water Act liability consistent 

with the extent of the Water. 

RESPONSES BY STEPHEN L. JOHNSON TO ADDITIONAL QUESTIONS BY

SENATOR JEFFORDS

Question 1. Under the EPA legislation, you limit the statutes that may be waived 

under the permit scheme envisioned for Good Samaritan mine clean-ups to Clean 

Water Act and Superfund. Why did you exclude the statutes that were included in 

S. 1848 

Response. The Administration’s legislation is narrowly targeted to remove the 

most significant disincentives to voluntary clean ups. EPA believes that the Clean 

Water Act and Superfund pose the greatest disincentive to voluntary actions. EPA 

does not believe that other Federal, State or local laws, as reflected in S. 1848, create legal road blocks to voluntary clean ups. 

Question 2. The EPA IG reported recently that there were 200,000 abandoned 

mines nationwide. You are testifying today that there are about 500,000 such mines. 

Can you identify what assessments EPA has conducted and what information the 

Agency is using to develop the 500,000 estimate? How many of those mines impact 

water quality, and what are the primary contaminants at issue? 

Response. While a complete and accurate inventory of abandoned mines has never 

been prepared, the Mineral Policy Center concluded in 1995, based on a survey of 

State and Federal Agency database, that there are over 557,000 abandoned 

hardrock mines nationwide. The Bureau of Land Management (BLM) in 1996 estimated that there are approximately 70,000 abandoned hardrock mines sites (AMLs), 

encompassing over 300,000 features, on BLM-administered lands. The Western Governors Association has also estimated that at least 400.000 abandoned mine sites 

exist in the West. EPA estimates thousands of stream miles have been impacted by 

acid mine drainage (AMD) which, depending upon the site, may include heavy metals such as lead, copper, zinc, arsenic, mercury, and cadmium. The former U.S. Bureau of Mines estimated that 12,000 stream miles and 180,000 acres of lakes in the 

West have been impacted by AMD. 

Question 3. Response. Recently, the GAO recommended that EPA issue rules 

under CERCLA section 108(b) requiring mining companies to establish financial assurances in advance of developing a site that would ensure that funds were available when required for clean-ups. Please explain why EPA has not previously issued 

this statutorily required rulemaking, and what your plans are with regard to completing this rulemaking in the future. If the Agency does not plan to complete a 

rulemaking, please provide your justification. 

Response. Congress did not establish a date for promulgation of a rule under 

CERCLA section 108(b). EPA has not yet made a decision on when to commence 

rulemaking under CERCLA section 108(b). EPA currently has underway analysis of 

data that lead to a decision on the timing of such a rulemaking. EPA anticipates 

that the first part of this analytical effort will be available later this year. 
52 

Question 4. How many abandoned mines does EPA estimate are affecting water 

quality and upon what does the Agency base that assessment? 

Response. The Western Governors Association has estimated that approximately 

20 percent of abandoned hardrock mines are contributing to water quality impacts. 

This information was based on two intensive priority watershed evaluations by Federal land managers. EPA, in its May, 2000 report entitled, ‘‘Liquid Assets 2000: 

American’s Water Resources at a Turning Point,’’ estimated that about 40 percent 

of headwaters in the West have been impacted by discharges from abandoned 

mines. The former U.S. Bureau of Mines has estimated that 12,000 stream miles 

and 180,000 acres of lakes and reservoirs in the West have been impacted by abandoned mines. 

Question 5. Why did the EPA propose a stand-alone permit scheme for Good Samaritan clean-ups rather than incorporate permitting into the Clean Water Act or 

other statute? 

Response. Good Samaritan legislation is intended to provide volunteers with targeted relief from liability that may arise from one or more statutes, such as the 

Clean Water Act and Superfund. Offering this protection would require either 

amending these existing statutes or, alternatively, providing stand-alone legislation 

that would provide liability protection through a streamlined permitting program. 

Question 6. Why did the EPA propose a permitting scheme executed by the States 

rather than by EPA? 

Response. The permitting structure in the legislation is modeled after and builds 

upon the success of the National Pollutant Discharge elimination System (NPDES) 

permitting program under the Clean Water Act. Forty-five States currently have the 

authority to administer the Federal NPDES permitting program. Similarly, the 

Good Samaritan legislation provides for a Federally administered permitting program for the clean up of abandoned hardrock mines that States may obtain authorization under the legislation. 

Question 7. During the hearing, Mr. Scott Lewis from AngloGold Ashanti testified 

that it would be a good idea to require that States have ‘‘robust’’ programs before 

they received authority to issue good samaritan permits. Does the EPA believe that 

a State should demonstrate some minimum basic proficiencies, such as having a 

State-run NPDES program under the Clean Water Act, before receiving the authority to issue good samaritan permits? 

Response. Similar to the process for authorizing States to administer an NPDES 

permitting program, the Administration’s Good Samaritan legislation establishes 

threshold requirements before a State or tribe would be authorized by EPA to administer the permitting program. Threshold requirements include demonstrating 

that the State or tribal program (1) is at least as stringent as the Federal program, 

(2) provides for judicial review of permits that would safeguard public participation 

in the permitting process; and (3) would ensure that the State and tribes requirements are met before EPA will approve a State or tribe to administer the permitting 

program. The capacity of States and tribes to properly administer a Good Samaritan 

permitting program is essential to the effective and efficient clean up of these abandoned mines. 

Question 8. What were the major time constraints in executing the AOC for Trout 

Unlimited in the American Fork clean-up? 

Response. Substantial time and resources were devoted by EPA Region 8 and 

Headquarters, DOJ, and TU to negotiate the terms and conditions of the administrative order on consent related to, among other items, payment of response costs, 

site access, reservations of rights, covenants not to sue, indemnification, and contribution protection. The AOC required a little over a year to complete, although the 

majority of the work occurred during the last 6 months. The TU AOC is one of the 

first times that an administrative order on consent has been used with a nonliable 

party that is not also a bona fide prospective purchaser. Therefore, a number of 

legal and policy issues of first impression had to be fully considered and decided. 

Question 9. In 2000, the EPA issued a report on abandoned mine sites. This report noted that there are thousands of inactive and/or abandoned mine sites. Many 

of these sites create significant environmental problems, such as acid drainage, metals contamination of ground and surface water and sediments, sedimentation and 

cyanide releases. In 2000, 70 of these sites were listed on the National Priorities 

List. The EPA has determined conclusively that these abandoned mine sites pose 

significant environmental impacts. Why then is the EPA proposing that the cleanup 

of these sites be subject to broad regulatory flexibility? The environmental risk 

posed by these facilities remains the same. 

Response. The purpose of the regulatory flexibility under Good Samaritan legislation is to encourage non-liable parties to accelerate the mitigation of the environ-
53 

mental risks posed by these abandoned mines. The overwhelming majority of abandoned hardrock mines are small to medium size sites. The Administration’s Good 

Samaritan legislation is aimed principally toward these small and medium sites. Of 

the estimated hundreds of thousands of abandoned and inactive hardrock mines 

sites, only 83 are currently on the NPL. Mines sites on the NPL are not eligible 

for a Good Samaritan permit except where the permitting authority determines, on 

a case-by-case basis, that the remediation project is not inconsistent with any other 

planned clean up at the site and will accelerate environmental improvements. 

Question 10. Does the EPA believe that receiving waters from a good samaritan 

clean-up involving water contamination should be used for drinking water if the 

SDWA does not apply to such clean-ups? 

Response. Drinking water that is provided to consumers by public water systems 

must meet the requirements of the Safe Drinking Water Act, regardless of the 

source of drinking water. The Administration’s Good Samaritan legislation would 

not affect any SDWA requirements and would thus have no adverse effect on drinking water. Furthermore, because the legislation will accelerate the clean up of discharges from abandoned mines, we expect any effects on drinking water sources 

would be positive. 

Question 11. Under the permit scheme envisioned by the EPA, it appears that the 

determination of whether or not there is a responsible party for an abandoned mine 

is dependent solely on the applicant. Why does the EPA believe that potential good 

samaritans, some with limited resources, will have the ability to conduct this investigation with any degree of confidence that it is thorough and accurate? Does the 

EPA envision any type of State or Federal investigation or validation of this investigation occurring as part of the regular permitting process? If so, what could actually be accomplished within the 120 day permit review period prescribed by the 

Agency’s legislation? 

Response. The availability of information regarding potentially liable parties will 

vary depending upon the site. A Good Samaritan applicant will be required to describe, based upon a reasonable inquiry, all persons that may be legally responsible 

for remediation at the site and certify that the applicant knows of no person who 

is potentially legally responsible for the remediation of the mine site person who is 

potentially legally responsible for the remediation of the mine site (excluding the 

owner of the mine site who did not cause or contribute to the historic mine residue). 

Information regarding historic property use may be obtained,for example through 

conducting interviews and obtaining chain of title searches, tax records, and city or 

regional directory abstracts that would reveal site and operational histories. Much 

of this data is now automated and can be cost-effectively obtained through third 

party vendors specializing in providing site historic research data. Any potentially 

responsible party not identified by this inquiry is, as a practical matter, unlikely 

to take responsibility for cleanup of the site in the foreseeable future. Thus, even 

if such a potentially responsible party exists, clean up by the Good Samaritan will 

accelerate environmental progress. Nonetheless, regardless of the protection afforded the Good Samaritan, all parties responsible for the contamination will remain liable. 

Question 12. Does the EPA believe that any improvement in water quality, no 

matter how small, would justify the issuance of a good samaritan permit? 

Response. The EPA believes that improvements to water quality, even if incremental in nature, help move us one step closer to achieving water quality standards 

and, as such, are preferred over no improvements at all. 

Question 13. In your proposal, the EPA provides for cases where a permittee’s actions exacerbate the pollution from historic residue as a result of gross negligence 

or intentional misconduct. Can you identify the baseline conditions that the Agency 

envisions would be used for such a determination, who measures those conditions, 

at what point such measurements would be taken in the permit process, where such 

data would be maintained, and who would conduct follow-up monitoring to determine if historic residue was in fact exacerbated? Can you give an example of what 

you believe ‘‘gross negligence or intentional misconduct’’ would be under a good samaritan clean-up? 

Response. The baseline condition would be the condition of the site at the time 

the Good Samaritan commences clean up. What constitutes the baseline and the 

amount of data needed to determine the baseline will vary from site to site and will 

depend largely upon such site specific factors as the location and size of the mine, 

its proximity to sensitive receptors, the nature and extent of contamination, and the 

scope and complexity of the clean up. The permitting authority would be expected 

to consider these factors, among others, in determining how much baseline and 

monitoring data is appropriate. Whether a particular action does or does not meet 
54 

the standard of care (e.g., gross negligence, intentional misconduct) is a determination that a court will act in good faith to clean up sites in accordance with the Good 

Samaritans will act in good faith to clean up sites in accordance with the terms of 

their permits. However, we have included the provision you reference as a ‘‘safety 

valve’’ to address exceptional circumstances where this does not occur. 

Question 14. Does the EPA envision that the life of a permit would include any 

long-term groundwater monitoring, and if so, would remining be permitted on the 

permitted site outside the protections of environmental laws for the duration of the 

life of the permit? 

Response. Good Samaritan projects that propose recycling of tailings of waste 

piles would generally be expected to include baseline and monitoring data as part 

of the proposed remediation work plan to ensure that site conditions improve. Only 

those activities identified in a permit application and undertaken pursuant to the 

approved permit are eligible to receive liability protection; any activities beyond this 

are subject to all applicable environmental laws. The precondition for issuance of 

a Good Samaritan permit is environmental improvement relative to the status quo. 

Question 15. The EPA’s proposal would allow ‘‘temporary suspensions’’ of work 

under a good samaritan permit. How long does the EPA envision these lasting, 

would all work, including remining, be required to stop during this period, and why 

didn’t the Agency apply a finite time limit for such temporary suspensions. 

Response. The legislation allows the permitting authority to approve temporary 

suspensions of site work due to ‘‘adverse weather and other circumstances.’’ The 

purpose of this provision is to recognize and allow for acts of God or other circumstances (e.g., labor disputes, work stoppage) that may cause a delay in the 

project schedule and may merit allowing a delay in clean up. The duration of the 

temporary suspension would be appropriate to the circumstances, as determined by 

the permitting authority. 

STATEMENT OF SCOTT A. LEWIS, DIRECTOR, ENVIRONMENTAL AND GOVERNMENTAL

AFFAIRS ANGLOGOLD ASHANTI NORTH AMERICA INC. 

INTRODUCTION

My name is Scott Lewis. I am the Director, Environmental and Governmental Affairs for AngloGold Ashanti North America Inc. Our U.S. offices are located in Denver. One of our subsidiaries operates a large surface mine and processing facility 

that recovers gold and silver within a 115-year old mining district approximately an 

hour southwest of Colorado Springs, Colorado. AngloGold Ashanti Ltd., our parent 

company, presently has a total 21 operations on four continents. 

I have been an environmental professional for AngloGold Ashanti and the predecessor companies for over 15 years, with over 23 years of environmental experience 

in the mining industry and almost six years of formal college training in the environmental sciences. In these capacities I have had an opportunity to examine and 

evaluate a number of orphaned sites in the west that were created decades before 

modern environmental laws were enacted. Today, mines of all types are required to 

comply with strict environmental and reclamation requirements. While many of the 

orphaned sites are primarily safety hazards, others represent varying degrees of environmental impairment. Some of these sites would be amendable to relatively 

straight forward reclamation, while others are considerably more complicated and 

expensive to fix. The sad reality is that most of these sites will likely remain as 

is without thoughtful Good Samaritan legislation. Orphaned sites that are cleanedup in the absence of Good Samaritan legislation will probably be limited to those 

on land owned by and in close proximity to active mining operations. We have received awards for such work in the vicinity of our Colorado operations. Another interesting opportunity that we have discovered with respect to orphaned sites that 

represent a low risk to human health and the environment is the attractiveness of 

these areas for historic tourism. For instance, we have supported efforts of a local 

economic development group to build trails on our land within the historic mining 

district to enable both tourists and local residents to gain access to view a number 

of historic buildings, foundations, and headframes. Similar opportunities may arise 

with certain Good Samaritan projects. 

I am here on behalf of the National Mining Association and its member companies 

to urge this Committee to develop Good Samaritan legislation that will create a 

framework and incentives for a broad array of persons or parties, ranging from 

local, State, and Federal agencies to citizen’s groups, non-Governmental Organizations, and private landowners, extending all the way to corporations, partnerships, 
55 

1See Western Governors’ Association & National Mining Association, Cleaning Up Abandoned 

Mines: A Western Partnership at 8, available at www.westgov.org/wga/publicat/miningre.pdf; 

National Research Counsel, Hardrock Mining on Federal Lands (1999) at 72, reproduced at 

http://www.nap.edu/html/hardrock—fed—land/index.html; Center of American West, Cleaning 

Up Abandoned hardrock Mines in the West (2005) at 20-24, available at www.centerwest.org/ 

cawabandonedmines.pdf. 

joint ventures and the like to voluntarily remediate the environmental problems 

caused by others at such abandoned hardrock mine lands (‘‘AMLs’’). 

The Western Governors’ Association, the National Academy of Sciences, and the 

Center of the American West have all recognized the legal impediments to voluntary 

clean-ups of AMLs deriving from Federal and State environmental laws, and have 

urged that these impediments be removed.1

I would like to summarize five key concepts that must be included for effective 

Good Samaritan legislation: 

1. Mining companies that did not create the environmental problems caused by 

the AML in question should qualify as ‘‘Good Samaritans.’’ Mining companies have 

the resources, expertise, experience, and technology to efficiently and appropriately 

assess the problems present at an AML and to remediate those problems, often in 

conjunction with undertaking reclamation measures at nearby active mines which 

the company operates. 

2. Individual Good Samaritan projects should be subject to review and authorization by EPA , after adequate opportunity for public notice and comment. Such authorization, which can be granted in the form of a Good Samaritan permit, should 

specify the scope and details of the Good Samaritan project that will be undertaken. 

Governmental authorization of such projects will ensure that a mining company or 

other person cannot misuse the Good Samaritan permit in order to engage in other 

activities that are not necessary to remediate the site. 

3.Perfection or significant improvement should not always be the cleanup standard in every case, particularly where persons will be voluntarily remediating problems for which they have no legal or factual responsibility. Good Samaritan projects should be allowed so long as they will result in an improvement to the 

environment, even if they will not result in the clean-up of all contaminants at an 

AML or the attainment of all otherwise applicable environmental standards, such 

as stringent water quality standards. 

4.EPA must be given discretion under any Good Samaritan program to adjust environmental requirements, standards and liabilities arising under State and Federal 

environmental laws (particularly liability under CERCLA, the Clean Water Act, the 

Clean Air Act, the Toxic Substances Control Act, the Resource Conservation and Recovery Act and others) that could otherwise be applicable and that deter Good Samaritans from undertaking beneficial remedial actions. 

5.The types of remedial activities that can be authorized as Good Samaritan activities must include the reprocessing and reuse of ores, minerals, wastes, and materials existing at an AML—even if this may result in the mining company recovering 

metals from such wastes and making some cost recovery and profit on its Good Samaritan operations. Such processing and reuse of historic mining materials may 

often be the most efficient and least costly means of cleaning up an AML, with the 

wastes from any reprocessing or reuse activities being disposed of in accord with 

current environmental standards. The fact that a mining company could potentially 

make a profit on such activities would provide an added free market incentive for 

companies to clean up AMLs, although it should be kept in mind that, given the 

costs involved and the volatility of commodity prices, it is just as likely that a company would lose money as make a profit. Considering the level of downside risk involved, there must be the possibility for at least some upside potential. The goal 

should be on remediating the AMLs and if the potential to realize a profit from an 

AML provides an incentive to achieve that goal then it should be allowed. 

BACKGROUND

By way of background, mining activities have taken place in the western States 

(including on public lands) for the past century and a half. Most of this mining occurred before the advent of modern environmental regulation at the State or Federal level. As a result, many historic mining operations were abandoned without 

being adequately reclaimed to ensure against potential future environmental damage. Although there are thousands of AMLs located in the western States, no one 

really knows how many pose significant dangers to our nation’s waterways, soils, 

groundwater or air. The Western Governors’ Association has estimated that more 
56 

2Western Governors’ Association & National Mining Association, Cleaning Up Abandoned 

Mines: A Western Partnership at 5, available at www.westgov.org/wga/publicat/miningre.pdf. 3 Center of the American West, Cleaning Up Abandoned Hardrock Mines in the West (2005) 

at 31. 4 Reclaiming Inactive and Abandoned Mine Lands—What Really is Happening, Struhsacker, 

D.W., and Todd, J.W., prepared for the National Mining Association, 1998. 

than 80 percent of AMLs do not pose any environmental or safety problems.2 The 

Center of the American West recently concluded that ‘‘only a small fraction’’ of the 

abandoned mines are causing significant problems for water quality.3 Nonetheless, 

the Federal land management agencies and the States are generally agreed that at 

least some percentage of these AMLs are causing or contributing to the impairment 

of rivers and streams, and potential contamination of air and groundwater resources. At the vast majority of AMLs, there are no financially viable owners, operators, 

or other responsible persons whom the Federal Government or the States can pursue in order to fund clean-up of these sites. While the Federal land management 

agencies can use monies within their budgets to investigate or remediate AMLs located on the public lands, the fact is that those budgets are limited. So are grant 

monies that can be provided under environmental programs aimed at investigating 

or remediating pollution, such as Clean Water Act §319 grants or grants under the 

Brownfields Revitalization Act. Effective Good Samaritan legislation can, we believe, 

provide incentives for a diverse assemblage of persons or parties, ranging from local, 

State, and Federal Agencies to citizen’s groups, non-Governmental Organizations, 

and private landowners, extending all the way to corporations, partnerships, and 

joint ventures, to partially fill this gap and help remediate some AMLs posing environmental dangers. 

ELEMENTS OF EFFECTIVE GOOD SAMARITAN LEGISLATION

Efforts to enact Good Samaritan legislation have been ongoing in the Congress 

for the past decade. It has become clear to NMA and its members that, in order 

to be effective, Good Samaritan legislation must include a number of elements. 

1. Mining companies must be allowed to qualify as Good Samaritans. The NMA 

supports the concept that to be a Good Samaritan, an entity must not have caused 

the environmental pollution at issue. That does not mean, however, that all mining 

companies should automatically be excluded from the universe of persons who can 

qualify as Good Samaritans. The majority of AMLs were created decades before 

modern environmental laws were enacted. There is simply no reason to preclude an 

existing company that is not liable or somehow responsible for creating the orphaned site from being a Good Samaritan, simply because it is a mining company. 

To the contrary, there are good reasons why mining companies should be allowed 

to qualify as Good Samaritans. Mining companies have 

the resources, know-how, and technology to properly assess 

environmental dangers posed by an AML, and to efficiently remediate such sites. 

Indeed, to the extent that AMLs are located near active mining operations, a mining 

company would be in the best position to efficiently use equipment and personnel 

from its current operations, including its current reclamation operations, to remediate or reclaim a nearby AML for which it never had been responsible. 

In fact, the mining industry has been front and center in trying to deal responsibly with AMLs. The National Mining Association, in cooperation with the Western 

Governors’ Association, initiated the Abandoned Mine Land Initiative (‘‘AMLI’’). The 

AMLI was the first cooperative effort between industry and government to address 

AML issues, and focuses on disseminating data on the scope of the AML problem, 

technologies that can be used to address AML sites, and legal impediments to voluntary cleanup of AMLs. NMA, along with the Office of Surface Mining (‘‘OSM’’) 

and the Interstate Mining Compact Commission representing the States also cofounded the Acid Drainage Technology Initiative (‘‘ADTI’’). The purpose of the ADTI 

is to develop and disseminate information about cost-effective and practical methods 

and technologies to manage drainage from active and abandoned mining and processing operations. Industry has also already spent tens of millions of dollars to clean 

up numerous AMLs throughout the West. Some of these efforts are documented in 

a study published in 1998 by the National Mining Association entitled ‘‘Reclaiming 

Inactive and Abandoned Mine Lands—What Really is Happening’’.4 The NMA study 

presents compelling evidence that given the right opportunity, the mining industry 

can play a significant role in improving the environment at abandoned and inactive 

mines. 

Unfortunately, some Good Samaritan bills introduced over the past several years 

have proposed to exclude mining companies from participation as Good Samaritans. 
57 

There seems to be a view among some that, merely by having engaged in mining 

at other sites, the mining industry is somehow ‘‘morally culpable’’ for the pollution 

caused at the AML by someone else. That simply makes no sense. 

2. EPA Must Authorize Good Samaritan Projects. Good Samaritan projects should 

be approved by EPA, after prior notice to and comment from the public. Such approval should be given only if EPA concludes that the project will result in environmental benefits. EPA should also be allowed to impose conditions (such as monitoring requirements and financial assurance requirements) on the Good Samaritan 

as a condition of its going forward with its project. Approval of the project should 

be embodied in a Good Samaritan permit. 

EPA must be given discretion, on a case by case basis, to relax the regulatory and/ 

or liability provisions of Federal and State environmental law that might otherwise 

apply to the Good Samaritan. The main obstacle to mining companies and others 

to conduct voluntary clean-ups at AMLs are the potential liabilities and requirements deriving from Federal and State environmental laws. A Good Samaritan that 

begins to clean up, or even investigate, an AML runs the risk of being an ‘‘operator’’ 

under CERCLA, and could become liable for cleaning-up all pollution at the site to 

strict Superfund standards. A Good Samaritan also runs the risk of having to comply in perpetuity with all Clean Water Act requirements for any discharges from 

the site, including stringent effluent limitations and water quality standards. These 

are liabilities and regulatory responsibilities that mining companies and others are 

unlikely to voluntarily accept, particularly with respect to AMLs that are posing significant environmental problems. AngloGold Ashanti has, for instance, in the past 

considered taking actions to voluntarily address pollution at a certain inactive site 

near its operation in Colorado, but ultimately declined to do so because of the potential liability concerns under CERCLA, the Clean Water Act, the Clean Air Act, and 

possibly other environmental laws. 

Many have argued that the EPA’s discretion to relax regulatory requirements 

should be limited to the Clean Water Act and CERCLA. A Good Samaritan could 

easily find itself acquiring liability under other environmental acts as well. While 

NGO’s may not be particularly worried about being sued under these other laws out 

of professional courtesy to each other, a mining company has no such expectation. 

In order for the mining industry to participate in Good Samaritan efforts, there 

needs to be assurance that the mining company will not be subject to frivolous suits 

after the fact for having done exactly what was permitted by the EPA. 

To provide an incentive for mining companies and others to undertake Good Samaritan efforts, the legislation must allow the permit issuer, on a case-by-case basis, 

to relax the liability provisions and regulatory standards that might otherwise apply 

to the Good Samaritan project, so long as: (1) the project would result in some environmental benefit; and (2) the project would not go forward absent the waiver of 

such provisions and standards. As discussed previously, the Western Governors’ Association, the National Academy of Sciences, and the Center of American West have 

all urged that certain environmental standards and liabilities otherwise applicable 

to a Good Samaritan be waived or relaxed, in order to encourage Good Samaritan 

clean-ups. 

3. Good Samaritan Legislation must not Unduly Narrow the Types of Activities 

that Constitute Legitimate Remediation. Abandoned hardrock mines pose a variety 

of environmental and safety problems throughout the West. They also call for a variety of clean-up measures. At some sites, the physical removal of wastes and their 

disposal off-site may be the appropriate solution. At other sites, it may be a matter 

of diverting stormwater or drainage away from wastes and materials that are highly 

mineralized. And at yet still other sites, the best, most efficient, and least costly way 

to partially or wholly remediate the environment may be to collect the various 

wastes and materials located at the site, to then process those wastes and materials 

to remove any valuable minerals contained in them, and then to dispose of the 

wastes from the reprocessing operation in an environmentally-sound manner. 

AMLs are located in highly mineralized areas—that is why mining occurred at 

those sites in the first place. Often, materials and wastes abandoned by historic 

mining operations have quantities of a desired metal (such as gold, silver, zinc, or 

copper) that can be recovered with modern mining technology. Allowing the mining 

company—particularly a company with operations nearby to an AML—to process 

such materials and wastes as part of the Good Samaritan project would provide a 

financial incentive for mining companies to remediate such sites. 

We recognize that some groups are opposed to allowing mining companies to ever 

make a profit through Good Samaritan activities. Some groups have even argued 

that a mining company might seek to misuse Good Samaritan legislation as a way 

to engage in new mining, beneficiation and mineral processing operations without 

complying with the environmental laws that apply to such operations. 
58 

Such concerns are misplaced. NMA member companies have no plans to utilize 

Good Samaritan legislation to undermine application of all environmental laws and 

regulations to legitimate mining projects. Nor could they. Under our proposal, a 

Good Samaritan could not proceed without a permit from EPA. Prior to issuing a 

permit, EPA will certainly be aware—and if they are not, the public would make 

them aware—if a given project is in fact a stand-alone economically viable project 

that the mining company would undertake even absent Good Samaritan protections. 

The permit-issuer will also know whether the mining company’s proposed project is 

an operation that will be remediating existing pollution, as opposed to merely a forprofit operation that is not cleaning up any existing environmental dangers. 

4. We also disagree with the notion that a mining company should never be in 

a position to make a potential profit from clean-up activities. Unlike governmental 

entities and some NGOs who might undertake Good Samaritan activities, a mining 

company will be spending its own funds otherwise potentially targeted to going to 

its shareholders (not grants obtained from EPA or States) to undertake remediation 

activities. If it turns out that the price of a metal recovered through remediation 

activities is such that the mining company has made a profit, this does not detract 

from the fact that, without spending public funds, the mining company has in fact 

remediated an environmental danger. Moreover, the price of any given metal could 

as well go down as go up, leaving the mining company with no profit. In fact, a 

number of potential complications or unexpected conditions could arise during cleanup and rapidly change the economics. Considering the level of downside risk involved, there must be the possibility for at least some upside potential. 

CONCLUSION

Legislation that embodies the concepts discussed above will provide incentives to 

mining companies and other entities to go forward and voluntarily remediate AMLs, 

while fully protecting the environment and the interests of the public. We would 

commend to the Committee’s attention 

S. 1848, the Cleanup of Inactive and Abandoned Mines Act introduced by Senators Wayne Allard (R-Col.) and Ken Salazar (D-Col.) as well as S. 2780 the Good 

Samaritan Clean Watershed Act introduced by Chairman Jim Inhofe (R-Okla.) on 

behalf of the Administration. We believe that these bills represent a good starting 

point for those elements necessary to remove existing legal impediments that deter 

mining companies and others from undertaking investigations and remediation of 

AMLs. We also believe that these bills fully protect the public interest by requiring 

EPA to sign off on any Good Samaritan permit, and by only allowing such permits 

in situations where the environment will be significantly benefited. 

I would be happy to answer any questions that members of this committee may 

have. 

RESPONSES BY SCOTT A. LEWIS TO ADDITIONAL QUESTIONS FROM SENATOR INHOFE

Question 1. Can you please describe your background and current position? 

Response. I have been an environmental professional for AngloGold Ashanti and 

the predecessor companies for over 15 years, with more than 23 years of environmental experience in the mining industry and almost 6 years of formal college training in the environmental sciences. Mined land reclamation planning, design and 

evaluation have been an important part of my responsibilities as well as being an 

area of great interest to me throughout my professional career as well as during 

college. It is those skills combined with my extensive experience in environmental 

permitting, compliance, and monitoring that have provided the insights and background required to recognize important elements ofany Good Samaritan legislation. 

Question 2. Further, can you respond to Mr. Harwood’s description of current mining practices, specifically, were those same practices used in the hardrock mines 

abandoned before modem environmental laws and are all sites as complicated as 

those described by Mr. Harwood? 

Response. Contemporary mining involves sophisticated technologies to identify, 

excavate, process and extract metals from ore that did not exist at mines abandoned 

before modem environmental laws were enacted. Global Position System (GPS) technologies, automatic laser leveling devices, dispatch systems, communications networks, sophisticated containment systems, remote monitoring and control instrumentation, and other modem technologies are extensively utilized in the hardrock 

mining industry today to assure compliance with applicable environmental permits, 

regulations, and laws. As indicated in mytestimony, there is a full spectrum 

ofcomplexities associated with remediation ofabandoned sites. Some are safety hazards or aesthetic impairments that can be rectified with relatively simple methods. 
59 

Others are dry sites requiring contouring, covering with soil, revegetation, and perhaps other straight forward stabilization techniques. Abandoned sites involving 

water discharges or encroaching upon streams tend to be the most difficult and complex to remediate. These are the sites that often require a higher level ofengineering 

design and planning to successfully ameliorate. 

Question 3. Mr. Lewis, can you explain to the Committee how a prohibition on 

a landowner from being a Good Samaritan will affect the willingness ofmining companies, and other potential Good Samaritans, to clean up abandoned hardrock 

mines? 

Response. Aprohibition on landowners from being a Good Samaritan could actually preclude mining companies and other Good Samaritans from cleaning up abandoned sites. Mining companies and other potential Good Samaritans are commonly 

‘‘passive’’ landowners that have purchased, acquired, or held onto a property with 

an abandoned site. Oftentimes, the mining company or other potential Good Samaritan never caused or contributed to conditions at, or otherwise affected, the abandoned site and under these circumstances should not be prohibited from remediating that site. Moreover, to ensure control ofa remediation site and to meet permit 

conditions, Good Samaritan mining companies may feel the necessity to acquire 

ownership interest in abandoned sites even if they have not previously owned them. 

Question 4. Mr. Lewis, do you have any graphics or pictures showing some mine 

sites that have been or could be remediated? 

Response. Attached as Figure 1 is an example of the types of sites that are being 

voluntarily cleaned up in cooperation with State agencies in the absence of Good Samaritan legislation. Figure 2 shows the same area after the building, carbon columns, and associated debris were removed. Another example of a recently completed 

voluntary effort is provided in Figure 3, where additional backfilling of a surface 

mine was conducted. As shown in Figure 4, this enabled the area to be contoured 

and blended into the surrounding terrain. Voluntary cleanup efforts of this nature 

arc typically relatively straightforward with a low risk of future exposure to liability 

issues. Many of these low risk sites are simply visual impairments on the landscape. 

Larger sites, as shown in Figure 5 and Figure 6, with a greater potential for environmental damage and possible liability implications will likely be avoided by the 

mining industry and other non-governmental Good Samaritans in the absence of 

meaningful legislation. 

Question 5. You mentioned in your testimony that you believe a State must have 

a ‘‘robust’’ program prior to receiving any authority to issue a Good Samaritan permit. Can you elaborate on what you believe are the basic capabilities a State should 

be able to demonstrate prior to receiving authority to execute a Good Samaritan 

permit program? 

Response. States with delegated Clean Water Act and solid waste management 

programs that are functioning effectively would be good candidates for receiving authority to execute a Good Samaritan permit program. The existence of an effective 

Voluntary Cleanup Program like the one that exists within the Colorado Department of Public Health and Environment would be another good indicator that a 

Slate is capable of administering a Good Samaritan program. 

Please let me know if you have additional questions or comments. Again, I appreciate the opportunity to support legislation that will enable the cleanup of abandoned sites that blemish the environment. 
60 
61 
62 
63 
64 

1Mineral Policy Center, Burden of Gilt, June 1993. 

2Western Governors’ Association, Abandoned Hardrock & Noncoal Mines in the West: A Partnership Report, 1998 available online at http://www.westgov.org/wga/publicat/minigre.pdf. 

STATEMENT OF VELMA M. SMITH, SENIOR POLICY ASSOCIATE, NATIONAL

ENVIRONMENTAL TRUST

On behalf of the National Environmental Trust, I thank the Committee for this 

opportunity to testify on the important issue of cleaning up abandoned mine sites. 

The notice of this hearing is poses the question before the Committee as ‘‘whether 

potential liability deters abandoned hard rock mine cleanup,’’ and I know that the 

committee will hear testimony about the role of environmental laws in discouraging 

mine cleanups. I would begin, however, by asking you not to be too quick to narrow 

your focus to perceptions of liability as the primary culprit behind lingering problems. Rather, we urge you to consider other factors—factors that loom even larger 

in the challenge to clean up abandoned mining sites. 

Consider, first, the sheer size of the universe of abandoned mine sites and the diversity of that universe—from relatively modest areas of waste rock or small scale 

tailings piles to vast mining complexes. Consider also that the vast universe of 

abandoned mine sites keeps growing larger, even as we sit here today. 

In addition, though I realize you may tell me that I’m in the wrong hearing room, 

we would argue that the single most compelling barrier is not regulatory but financial: Mining sites are not being cleaned up fast enough because neither the industry 

nor the government is contributing sufficient money to the task. The Federal budget 

is tight, but to really address this problem, you must find a way to bring more resources to a serious cleanup effort. 

We would also remind you that while fear of liability may, in some cases, give 

pause to non-mining parties who would otherwise venture into mine cleanup, that 

pause, in and of itself, may not be a bad thing when it comes to cleaning up these 

difficult messes. Mining sites can be not only difficult to diagnose but also enormously difficult to cure. Entered upon without solid information, with poor design 

or with faulty execution, cleanups can and have gone terribly wrong. 

Finally, we urge you to consider that liability for both previous operators and land 

owners is an important factor that has been driving many cleanups—cleanups that 

are happening at listed Superfund sites like the Iron Mountain Mine in California 

and the Captain Jack Mill in Colorado and at non-listed sites like Yerington, Nevada, Bingham Canyon, Utah and the Copper Basin Mining District of Tennessee. 

If Congress reaches too broadly to encourage the cleanup of the most easily remedied mine sites, it will put at risk the current liability leverage that leads to cleanup of enormously difficult and expensive mining messes. And if a Congressional response brings remining operations into the definition of ‘‘Good Samaritan’’ actions, 

you may end up creating the exception to swallow the rule, removing normal, forprofit operations, which nearly always take place in old mining districts, from existing regulatory requirements. 

So please, don’t look simply through the narrow prism of regulatory hurdles for 

cleaning up a few of the many mining problems. Look broadly at the full scope of 

the problem and recast your topic as ‘‘Solutions to Mining Contamination.’’ In that 

context, figure out not only how to drive more of the easier cleanups but also how 

to stop adding to the problem and how to address the large and seemingly intractable mining messes. 

Hardrock mining is enjoying a boom. Metals prices are breaking records; exploration fever has once again hit the West; and even old operations that seemed like 

economic losers are attracting new attention. So now, while hardrock mining is 

flush, is the time to engage the industry in cleaning up its past and current operations. 

A BIG PROBLEM

In 1993 the Mineral Policy Center, now known as Earthworks, assembled data 

on hardrock abandoned mines from State and Federal agencies, private contractors 

and associations.1 From this effort, they estimated nearly 557,000 abandoned 

hardrock mines in 32 States. Their numbers, though perhaps considered high at the 

time, are generally in line with other best judgments—including estimates from the 

Western Governors’ Association, the Bureau of Land Management and the Environmental Protection Agency. 

A compilation of abandoned mine land data assembled by the Western Governors 

Association, for example, shows counts ranging from 150 abandoned mines in North 

Dakota to 100,000 in Arizona.2 The WGA report cautions that different States use 

different definitions of abandoned mines and count mines and mine sites in different 
65 

3 U.S. EPA, Office of Solid Waste and Emergency Response, Cleaning Up the Nation’s Sites: 

Markets and Technology Trends, September 2004. 4Omer Gilham, ‘‘Calls for Tar Creek buyouts intensify: A Corps Engineers report brings home 

to residents the dangers of possible cave-ins,’’ Tulsa World, February 2, 2006. 5 California Department of Conservation, Office of Mine Reclamation, Abandoned Mine Lands 

Unit, California’s Abandoned Mines: A Report on Magnitude and Scope of the Issue on the 

State, June 2000. 

ways. It also clearly acknowledges that existing inventories are incomplete. The report’s numbers for 13 States total more than a quarter of a million dollars. 

Estimates from Federal agencies are high as well. BLM, for example, places the 

number of abandoned mines on lands that it administers at a low of 100,000 or a 

high topping half a million.3 About 5 percent of those sites—possibly more than 

25,000 mines—have caused or could cause environmental damage, according to the 

Bureau. The Forest Service estimates that about 5 percent of an estimated 25,000 

to 35,000 abandoned mines on its lands will require cleanup under Superfund authorities; another 12 percent of those sites are expected to require water-related 

cleanup using authorities other than Superfund. Excluding lands in Alaska and 

California, the National Park Service estimates the number of abandoned sites on 

its lands at 2,500. 

A VARIED UNIVERSE, IN THE WEST AND BEYOND

What types of sites are these and what types of remediation is called for? The 

answers run the gamut from small problems to large complexes. And though much 

of the focus in this discussion is on the West, where the number of sites is huge, 

there are mine messes in other parts of the country as well. 

In some instances, the highest priority problems may be open shafts and adits 

that pose physical hazards to people and wildlife. These must be plugged, filled, secured or closed off. 

• A motorcyclist was killed in 2003, for example, when he rode his bike over a 

tailings pile directly into an open mine shaft in the Red Mountain area of California. 

• In Nevada, the State reports that people have died swimming in open pit lakes 

and suffocated after entering open mine shafts. 

• Wyoming has reports of mine subsidence affecting an interstate highway, a public water line and a housing development. 

In Alaska, 500 feet of dangerous high wall was reported in a heavily used area 

near Juneau, and open portals and shafts found within a few hundred feet of a public use cabin in a State park 

• In Oklahoma, the community has learned that a third of the small town’s 400 

houses sit atop or near a huge mining cavern with a probability of collapse.’’4

• In California alone, the Office of Mine Reclamation has stated that 84 percent 

of the State’s abandoned mines—that’s nearly 33,000 mines—present physical hazards.5

In other cases, the threats are from elevated levels of pollutants in mine wastes, 

contaminated soils, blowing tailings and abandoned ponds of cyanide solutions or 

other wastewaters. Abandoned mines, as the U.S. Geological Survey reports, may 

degrade water quality and aquatic resources with releases of acid drainage, seepage 

from tailings piles, streambank erosion and storm runoff. 

Overall, the government estimates that old mines have contaminated about 40 

percent of all Western river headwaters, and scientists have reported loss of fish 

populations and deterioration of fish health as well as groundwater contamination, 

including contamination of drinking water wells, all associated with continuing pollution from abandoned or inactive mines. 

• In Arkansas, for example, a 1996 report attributed problems in nearly 200 miles 

of streams to the impacts of old lead, zinc and coal mines. 

• In Oklahoma, a report from that same year identified 23 lakes and streams adversely impacted from past and then present mining operations. 

• In Utah an estimated 300 uranium mines have moderate to high levels of radiation. 

• A 1999 Nevada report on abandoned mines notes problems with breached 

tailings dams spreading heavy metals and acidic wastewaters, elevated levels of contaminants including mercury, lead, cyanide and arsenic from abandoned mines, and 

mining-related threats to local agricultural activities and the habitat of the endangered Desert Tortoise and the Northwest Valley Fly Catcher. 
66 

• In March of 2005, a ‘‘flash report’’ by the Department of Interior’s Office of Inspector General reported dangerous levels of arsenic and contaminated groundwater 

in a growing area of Pima County, AZ. 

Solutions to these problems will run the gamut as well, ranging from removing 

small piles of waste rock or tailings from a floodplain or reseeding a disturbed area, 

to removing transformers, machinery and buildings, stabilizing large waste piles, rerouting water flows, building new retention ponds, reinforcing old dams, managing 

toxic lagoons, removing or covering contaminated soils. 

OLD AND NEW CONTRIBUTIONS TO THE PROBLEM

Much of the discussion of abandoned mines brings to mind the grizzled prospector 

with mule and pick axe, faded sepia-tone images and thoughts of the Wild West. 

But before you assume that the nation’s abandoned mine messes all date from the 

19th century, well before modern environmental regulation, consider this. 

Modern-day mines are often located in historic mining areas, where mining 

wastes have been deposited in stream beds and other fragile areas, and where acid 

drainage still flows from old mine workings. In some cases, this makes it difficult 

to say with certainty just how much of a pollution problem is linked solely to recent 

activity. 

In many instances, however, it is clear that modern operations not only worsen 

existing problems but also create new problems. Modern mine operations can cover 

large acreages and employ enormous earth-moving equipment. Frequently they use 

large amounts of toxic chemicals, and collectively they release more toxics into the 

environment than any other industry. Their impact on the environment is enormous—and not always according to plan. 

• Perhaps the most notorious example of a modern mine gone wrong is from Colorado. The Summitville gold mine opened in 1986 and was abandoned in 1992. It became one of the nation’s most expensive Superfund cleanup sites, while the Canadian business tycoon behind the venture moved his schemes and his assets overseas. 

The Summitville area had a long history of mining, but the acid and cyanide drainage that killed miles of the Alamosa River were clearly connected to this faulty heap 

leach mine operation. • In 1996, Canyon Resources boasted that reclamation of the northern section of 

its Kendall heap-leach operation was 90 percent complete, and they predicted that 

they would rinse out the ‘‘last traces of cyanide’’ through the next year. Reclamation 

of the mine that opened in the late 1980s is still incomplete today, and according 

to Montana news reports, the mining company is resisting State calls for more extensive cleanup. Canyon extracted gold and silver from the ground from 1989 until 

1995. Treating the mine-contaminated water, says the State, will have to continue 

indefinitely. • Near Riddle, Oregon, a now-defunct Canadian company ran the Formosa copper 

and zinc mine between 1990 and 1993. The company abandoned the 100-acre property in 1994, and by 1997 the system they had installed to handle acid mine drainage was no longer working. As is the case with many other mines—some reclamation was accomplished by the company before its departure, but those efforts did not 

stop copper, cadmium, lead and zinc from polluting some 18 miles of a nearby 

stream. According to the State, the contamination has ‘‘. . .severely harmedμthe 

ecosystem of these streams, including protected Coho and Steelhead salmon populations.’’ • Idaho’s Grouse Creek mine began production in 1994, and its tailings impoundment, declared ‘‘state-of-the-art’’ when it was built, included clay and plastic liners 

and, according to a company spokesperson, exceeded permit requirements. But 

Hecla’s gold find wasn’t as rich as anticipated, and the company ran into processing 

problems. In July of 1995, EPA cited this mine near the Frank Church Wilderness 

for violations of cyanide, mercury and total suspended solids water quality standards. The problem: leakage from the impoundment liner. A month later, it was the 

pipeline carrying slurried mill wastes that caused more violations. In 1996, according to the U.S. Forest Service, another 19,000 gallon spill occurred in the mill area. 

The mine closed in 1997 and by 1999 ‘‘pervasive levels’’ of cyanide were found in 

Jordan Creek. 

I could go on. But suffice it to say that mining’s mistakes have and will always 

be characterized by the mining industry as its misguided past. In the 1970’s, history 

included the turn-of-the-century gold rush mines as well as mine operations from 

the 1940s and 50s. Now, it appears, that mines from the 1960s, 70s and 80s have 

taken their place in ‘‘history’’ as well. By 2020, will the mines of today be lumped 

in with those ‘‘turn-of-the-century’’ mines that bear all the responsibility for pressing pollution problems? 
67 

6 U.S. Government Accountability Office, ‘‘Environmental Liabilities: EPA Should Do More to 

Ensure that Liable Parties Meet Their Cleanup Obligations,’’ August 2005. 7 U.S. Government Accountability Office, ‘‘Hardrock Mining:BLM Needs to Better Manage Financial Assurances to Guarantee Coverage of Reclamation Costs’’, June 2005. 8Office of the Inspector General, U.S. EPA, Nationwide Identification of Hardrock Mining 

Sites, March 31, 2004, Report 2004-P-00005. 9 U.S. EPA, Office of Solid Waste and Emergency Response, Cleaning Up the Nation’s Waste 

Sites: Markets and Technology Trends, September 2004. 

From Brewer Gold in South Carolina to the Battle Mountain mine in Nevada, 

from Zortman Landusky in Montana to Red Dog in Alaska, modern mines have 

given us ample evidence of continuing pollution problems. The facts on the ground 

suggest that regulation—even today—is sorely lacking in substance or enforcement, 

or perhaps both. And in too many instances mining companies seek the shelter of 

bankruptcy courts before they meet their reclamation and cleanup obligations. 

We agree with the National Center for Manufacturing Sciences: ‘‘[T]he mining sector is, from an environmental standpoint, the least regulated of any comparable industry sector.’’ (Emphasis in original.) The Center goes on to State that the lack of 

regulation for mining ‘‘is no chance oversight,’’ but actually the result of a specific 

legislative loophole. Their reference is to the so-called Bevill amendment that 

shields the mining and mineral processing industry from Federal hazardous waste 

rules. This hard-fought and carefully protected special deal for mine-related wastes 

keeps EPA from regulating wastes derived from extraction and beneficiation of minerals, even if they met established criteria for designating wastes as ‘‘hazardous.’’ 

These wastes are frequently the crux of the problem at abandoned mine sites. 

EPA issued a National Hardrock Mining Framework in September of 1997, with 

the specific aim of improving environmental protection with coordination and collaboration across programs and agencies, but in August of 2003, the EPA Inspector 

General declared that it ‘‘found no evidence that the Framework contributed to environmental improvements or protections at specific hardrock mining sites.’’ The IG 

noted that the Framework’s goal of protecting human health and the environment 

at hardrock mining sites was hampered by EPA’s lack of direct regulatory authority. 

In addition, as the Government Accountability Office made so clear in its August 

2005 report,6 the Federal Government’s cleanup burden grows as businesses reorganize and restructure to limit their future expenditures for environmental cleanups. 

GAO points out that ‘‘EPA has not yet implemented a 1980 statutory mandate 

under Superfund to require businesses handling hazardous substances to maintain 

financial assurances’’ for environmental cleanups. 

Only 2 months earlier, the GAO also concluded that BLM’s failure to obtain proper financial assurances from mining operations on Federal lands has left a gap of 

some $56.4 million in unfunded reclamation costs.7 That number, by the way, covers 

only 48 hardrock mines that had ceased operations by the time the study was undertaken. It doesn’t cover mines that are still operating. 

A MATTER OF MONEY, LOTS AND LOTS OF MONEY

Because abandoned mine inventories have not been completed—and indeed may 

never be—it is difficult, if not impossible, to offer any certainty about the likely 

costs of addressing these problems. Some sobering numbers have been put forward, 

however. 

Earthworks, working with experienced mining engineers, has predicted that approximately 15,000 mines would require cleanup of water-related problems. The 

cleanup tab for the full universe of abandoned mine sites, according to the group, 

may run as high as $72 billion. 

In January 2003, the EPA Inspector General reported that 87 sites classified as 

abandoned hardrock mines or mine-related sites had been placed on the Superfund 

National Priorities List (NPL).8 At the time of the IG’s report, EPA’s rough estimate 

of cleanup costs for these specific sites was about $2 billion. Since then, more minerelated sites have been added to the list—and many more are possible candidates. 

Looking beyond these few sites, EPA’s Superfund office has predicted that somewhere between 7,700 and 31,000 mines will require cleanup—either under Superfund or under another program.9 An EPA report on the cleanup technologies, notes 

that the need for cleanup grows as the public looks increasingly toward rural areas 

for recreation and as some old mining areas are developed for primary housing or 

second homes. Data from several sources cited in this report indicate a range of 

cleanup cost running from $20 to $54 billion, with about $3.5 billion of that related 

to Superfund designated sites. 
68 

10 Ibid. 11 Robert McClure and Andrew Schneider, ‘‘More than a century of mining has left the West 

deeply scarred,’’ The Seattle Post-Intelligencer, June 12, 2001. 12 U.S. EPA, Office of Solid Waste and Emergency Response, Cleaning Up the Nation’s Waste 

Site: Markets and Technology Trends, September 2004. 13 U.S. EPA, Region 9, ‘‘Total Maximum Daily Load for Copper in Pinto Creek, Arizona,’’ April 

2001. 14See, for example, ‘‘The Earth’s Open Wounds: Abandoned and Orphaned Mines,’’ Environmental Health Perspectives, Volume 111, Number 3, March 2003. 

The Bureau of Land Management estimates that cleanup of abandoned mine sites in its jurisdiction may cost as much as $35 billion.10 Damage on U.S. Forest Service land alone would cost $4.7 billion to fix.11

How do expenditures match up against these figures? According to EPA12, the 

total Federal, State and private party outlays for mining site remediation have been 

averaging about $100 million to $150 million per year. 

At this rate of expenditure, notes the report, only 8 to 20 percent of all the cleanup work will be completed over the next 3 decades. 

NO EASY SOLUTIONS

And now for the bad news. Cleaning up mining problems can be, not only expensive, but also technically challenging. 

The case of the Penn Mine in California—the case that initially prompted the call 

to loosen Clean Water Act requirements for mining cleanups—makes the point. 

The abandoned old copper mine in the Sierra Nevada Mountains was producing 

acid mine drainage flowing into the Mokelumne River watershed, the same watershed that provides drinking water to the East Bay Municipal Utility District. The 

water utility, with the best of intentions, took on what it apparently thought would 

be a modest project to protect downstream fish and its water source. The Utility 

constructed a small dam, diversion facilities and retention ponds. Unfortunately, 

however, the results fell short. 

The ponds were not sized properly and maintenance of the structures was reportedly minimal. So the facilities—though they solved some problems—actually created 

additional problems at certain times of year. People in the community were upset 

and took legal action to compel more cleanup. The Utility found itself with a longterm cleanup job that it had not initially anticipated. 

Was this particular ‘‘Good Samaritan’’ particularly inept or sloppy? Probably not. 

• In 1997, a mining company in Arizona was attempting to cover a tailings impoundment with waste rock. The impoundment failed and tailings and debris moved 

into Pinto Creek.13

• In Montana, a mining company reconstructed a tailings dam that had failed. 

Today, the State, the Forest Service, the EPA and the community are searching for 

answers and money to fix this previous ‘‘fix’’ that is now leaking and considered unstable. The company involved in this case and dozens of others is in bankruptcy. 

• A host of engineers tried to address the problems of acid drainage running 

through the Oklahoma lead mining district some 20 years ago. They apparently 

managed to keep acidic waters from returning to the surface through unplugged 

boreholes, and they thought they got it right with water diversions and ‘‘rerouting.’’ 

But just recently monitoring has shown high levels of lead and arsenic headed toward Oklahoma’s Grand Lake. 

In other words, mining problems can be a bear to solve. 

An adit may be plugged, only to blow out as water pressure increases. New seeps 

from a closed tunnel may open up, not at the original point of discharge, but in 

other unexpected areas.14 Constructed wetlands may function for a time but cease 

their cleaning function when they reach a point of saturation. Acid-generating rock 

may be encountered where none was anticipated; a season of drought, can pull 

groundwater into a pit lake faster than expected; storms or heavy snowmelt overwhelm the capacity of detention ponds. 

These examples are offered, not to suggest that nothing can be done to abate the 

problems of mining, but only to caution against a ‘‘solution’’ that tries to fast-track 

decisions that should not be fast-tracked, that skims over the need for critical baseline data, that imposes unreasonable deadlines on those reviewing cleanup plans, 

or that skimps on oversight. 

These real world lessons also remind us that time is an element to be reckoned 

with in mine cleanup efforts. In many cases, mining cleanups will have to be viewed 

as holding actions, and responsibility for long-term management must fall to someone, if not to the party that initiates cleanup. According to EPA, nearly 60 percent 

of the mining sites listed on the Superfund NPL are expected to require from 40 
69 

15 Ibid. 

years to ‘‘perpetuity’’ for cleanup operations.15 Many other mine sites will require 

long-term maintenance and vigilance in similar time frames. 

These examples also make it clear that a directive to ‘‘do no harm’’ may be difficult to follow. Because things can go wrong, despite the best of intentions, we 

think it would be more than reasonable for any provisions that encourage ‘‘Good Samaritan’’ actions to also ensure against the unforeseen. Financial assurance would 

add an upfront cost to cleanup projects, but that cost would be a small fraction of 

a project’s overall cost. It could be subsidized by a bond pool or special trust, and 

its existence would help to ensure that the cleanup projects undertaken today do 

not become tomorrow’s emergency removals, that what are anticipated to be small 

projects do not end up draining the government’s resources for response and remediation. 

LIABILITY PLAYS A USEFUL ROLE

It is, no doubt, frustrating to hear of cases in which a willing Samaritan hesitates 

to act because he doesn’t want to become embroiled in Clean Water Act permitting, 

is wary of a citizen suit or fears the reach of Superfund liability. But consider that 

there is another side to that coin. Liability, in many instances, is driving cleanups. 

In Nevada, a 3,500-acre copper mine has long been known to have unreclaimed 

tailings and other problems, but only in the last few years has the surrounding community learned that the old mine site has serious problems of radioactive contamination. The course has been difficult and it will take many years to clean the site, 

but progress on the site is being made, because the property owner is compelled by 

Superfund liability to proceed. 

In Utah, the Kennecott case is instructive. It has been heralded as a ‘‘voluntary’’ 

effort to clean up massive amounts of groundwater, but the more than 20-year 

cleanup was ‘‘voluntary’’ only in the sense that Kennecott negotiated out and agreed 

to a cleanup plan—after complaints were filed by regulatory agencies. In 1986, the 

State Health Department, acting as Trustee of Natural Resources as provided for 

under the Superfund law, filed a complaint against Kennecott Utah Copper Corporation for groundwater contamination. Superfund liability, again, drove cleanup. 

In the Copper Basin of Tennessee, at the Rio Tinto mine in Nevada and in dozens 

of other cases, cleanup and stabilization happens, not in spite of liability, but because of it. 

CONGRESS CAN ACT

The problems of abandoned mines are large and difficult, and Congress should be 

wary of simple solutions. Any effort to ‘‘encourage’’ cleanups with exemptions from 

Clean Water Act obligations, or worse still, from Superfund liability, is fraught with 

difficulty. 

If a ‘‘Good Samaritan’’ is relieved of achieving Clean Water Act standards, what 

standards must they achieve? Over what time frame? If a remedy fails, who bears 

responsibility? Who can be called upon for additional work or for maintaining treatment systems and reclamation work? Should there be a size or ‘‘class’’ limit on exempted projects—should the line be drawn at revegetating or removing waste piles? 

Should ‘‘Good Samaritans’’ tackle major mining complexes? What data should they 

have in hand to assure that they understand critical aspects of water flow and geochemistry? 

It would be nice to think that there’s a responsible way to answer these questions 

and make these distinctions in law or by rule, but there may not be at this time. 

Useful generalities are hard to come by, and the wrong generalities could take us 

backwards rather than forwards in the quest for cleanup. 

So what to do instead? We have a few recommendations. 

1. Endorse EPA’s efforts to use a model consent agreement to promote ‘‘Good Samaritan’’ projects, and draw on important experience in mining cleanups to craft, 

not a broad exemption, but a major demonstration project. Engage one or more 

States along with all the relevant Federal agencies, allowing interested States to 

look on a watershed basis for those areas where they believe that modest, voluntary 

efforts could bring lasting improvements in water quality. One option would be to 

do this in the context of TMDL or Total Maximum Daily Load reviews for particular 

watersheds. A watershed focus can assure that the broader context is kept in mind 

and that individual projects do not unintentionally improve water quality for one 

parameter or in one location only to undermine it elsewhere. In addition, several 

projects within a single watershed may be able to share important baseline data and 

technical information. Within this context, and only within this context, allow for 
70 

alternatives to the traditional National Pollutant Discharge Elimination System permits. Provide funding to get the demonstration program going, including funds to 

support a team of mining reclamation experts that will act in an advisory capacity 

to all chosen projects and to underwrite financial assurances for dealing with unforeseen problems. Assure that all projects have appropriate oversight, and require 

a report—say on a two-to-three-year time-frame—about successes and problems 

with the projects chosen. At that point, renew the effort to answer some of the questions I have just posed and, if necessary, amend the Clean Water Act to allow for 

new mining cleanup best practices by ‘‘Good Samaritans.’’ 

2. At the same time, look to the mining industry to help fund cleanup of abandoned mines, following the model set out for coal mine restoration under the Surface 

Mining Reclamation and Control Act (SMCRA). Congress should impose a tonnage 

fee on all metals mined from private and public land to fund a serious, long-term 

remediation program. Use the resulting trust fund to pay for cleanup at old sites 

where responsible, solvent entities cannot be found. 

3. In addition, boost Federal funding for cleanups and provide for coordination 

and sharing of funds among States, BLM, Forest Service, EPA and other appropriate agencies. By encouraging Federal agencies and the States to do joint planning 

and to pool resources, the best expertise and capacities of many parties can be leveraged for the maximum results. 

4. Engage States and Federal agencies in developing adequate inventories of sites 

and, perhaps more importantly, selecting priority areas for voluntary cleanups and 

for re-invigorated enforcement-driven cleanups. 

5. Direct EPA to get off the dime and issue rules for financial assurance for the 

mining sector, which makes such an enormous contribution to the country’s Superfund burden. This duty already exists in law, so you don’t have to pass new legislation. Make things happen with directions and appropriations. 

6. Don’t tolerate the continued creation of abandoned mine messes. Stop the creation of additional mine problems by first clearly defining ‘‘abandoned,’’ as recommended by the National Academy of Sciences and as done under SMCRA. And 

begin work on legislation to set out minimum performance standards, strong financial assurance requirements and clear permitting guidelines. Have the agencies create clear requirements for operators to notify regulators of changing conditions at 

operating mines, and be certain that mine permits—as well as bonding amounts— 

are updated as conditions change. Set out monitoring and reporting requirements 

as well fair and firm enforcement mechanisms. Build regulatory capacity and expertise in the field with grants to support State programs. 

7. Weed out irresponsible investors and operators with solid ‘‘bad actor’’ provisions 

to deny future permits or government contracts to companies that violate environmental rules or walk away from reclamation obligations. Make sure bad actors cannot hide behind corporate reshuffling and creation of new subsidiaries. 

8. Deal with the most dramatic regulatory loophole for mine operations by directing EPA to establish waste regulations specifically crafted for the management of 

mine waste rock, tailings or other mineral-processing wastes, including wastes currently covered by the Bevill amendment. 

9. Invest in research that will allow for more reliable predictions about mining’s 

impacts on water resources, looking closely at the potential for creating acid mine 

drainage but also focusing on other difficult issues, such as disruption of aquifers 

from dewatering, mechanisms for groundwater contamination and impacts of pit 

lakes that refill with acids, metals and other pollutants after mine operations cease. 

Make sure that the best available predictive tools are used to plan cleanups and 

to permit mines in the first instance. 

10. Learn from past mistakes with failure analyses conducted in conjunction with 

mine cleanups. Whenever Federal dollars or enforcement authorities are used for 

cleanup of a mine site that operated during the mid-1980s or forward, regulators 

should analyze those aspects of the operation that led to a need for cleanup. As 

these analyses identify problem management areas—be they heap leach pads, faulty 

liners, pipeline breaks, unstable waste piles, poorly characterized geology or something else—regulators should act to disseminate new information on ‘‘best practices’’ 

and, as necessary, adopt new regulations to prevent repeat failures. 

11. Commit to carrying out your oversight duties. This is a thorny issue, but there 

is much activity in the field. Congress should keep a close eye on developments, 

positive and negative, regarding mining and water quality. 

Again, Mr. Chairman, I appreciate this opportunity to testify, and I hope that 

Committee members find this information and these recommendations of help. I 

look forward to your questions and to working with your staff on these important 

issues. 
71 

RESPONSES BY VELMA M. SMITH TO ADDITIONAL QUESTIONS FROM SENATOR INHOFE

Question 1. During questioning from Senator Boxer, you argued that there is not 

a need for legislation to address liability concerns and that fear of liability is not 

really a factor in the cleanup of abandoned mines. However, you indicated your full 

support for legislation introduced by Congressman John Salazar which provides a 

legislative solution to fear of liability which is deterring the cleanup of a site in Colorado. Just to clarify, is there a need for legislation and is the concern about potential liability a legitimate concern or not? 

Response. We recognize that some parties who are interested in mine cleanup fear 

entanglement with environmental liability. We do not believe that fear of liability, 

however, is an insurmountable barrier to cleanup. 

On the contrary, fear of liability and possible enforcement action, in many instances, prompts landowners and other responsible parties to clean up abandoned 

mine problems—under consent agreements worked under Superfund, RCRA, or 

other corrective action authorities. Parties that are not currently liable but wish to 

avoid possible future liability also have an incentive to undertake cleanups, and 

many have done so, using prospective purchaser and prospective operator agreements and, in some cases, simply taking prudent action on their own to mitigate 

or prevent problems. 

Important work has been done under existing law, for example, 

• by OXY Oil and Gas USA at the Copper Basin Mining District in Tennessee, 

• by Honeywell at the Burlington Mine in Colorado, 

• with the help of the Taconite Economic Development Fund in Minnesota, 

• by Atlantic Richfield, successor to Anaconda, at mines like Leviathan and 

Yerington, 

• by the Montana Department of Environmental at the Wickes Smelter site and 

elsewhere, 

• under the auspices of the State of Colorado’s Voluntary Cleanup Program, 

• through collaborative efforts of groups such as the Dubuque County Conservation Board, the Iowa Natural Heritage Foundation, and the Iowa Department of 

Natural Resources, to deal with old lead mining areas, and 

• by Rhodia chemical company, an owner of old mine problems that worked with 

the U.S. Fish and Wildlife Service, the San Francisco Bay Regional Water Quality 

Control Board and others to clean up Peyton Slough. 

Given these and many other cleanup stories, the variety of options for addressing 

abandoned mine sites, and the host of determined and creative individuals and organizations that are making things happen on the ground, we do not believe that 

a legislative ‘‘fix’’ is required. 

However, we do agree that additional cleanup funds are sorely needed, and Congressman John Salazar’s bill, H.R. 5071, provides funding for a well-thought out, 

comprehensive cleanup program in a particular watershed in Colorado. This project 

could serve as a model in two respects: one, for careful and comprehensive planning 

on a watershed basis and, two, for a collaborative approach that engages a crosssection of the community in long-term cleanup. The Animas River Stakeholders 

Group has already done impressive work in the area over the last decade. They 

have sampled and prioritized 175 draining mines and about 160 mine waste piles 

and determined those areas where targeted remediation would provide the most 

bang for the buck in reducing metals loadings to streams. 

The legislation would provide needed funds for the project on a cost-share basis. 

It also includes some carefully drawn leeway with regard to meeting particular provisions of Clean Water Act permitting requirements. It does not waive the Clean 

Water Act in its entirety but adjusts the requirements of the NPDES permitting 

section to address concerns of the group that they would have to continue to hold 

a discharge permit far into the future. It includes requirements for careful assessment, for monitoring and reporting, and for enforcement. It allows for sale of materials recovered in the cleanup but requires the proceeds of such sales to be returned 

to cleanup efforts. It does not alter the rights of citizens to participate in permit 

decision-making, and it doesn’t alter Superfund liability or waive any other environmental law. 

For these reasons, we think that members of Congress should look to this bill as 

the underpinning of any legislative vehicle on this topic. 

Question 2. Ms. Smith, You indicated that with the AOC model and a few pilots 

abandoned mines could be cleaned up without legislation. However, the AOC used 

in trout unlimited only waived liability under Superfund. If the Western Governor’s 

Association is correct and there are approximately 100,000 abandoned hardrock 

mine sites that are affecting water quality in thousands of streams and rivers 
72 

throughout the country, will a few pilots and an AOC that doesn’t address water 

quality solve the problem? 

Response. While the AOC with Trout Unlimited did not address a water pollution 

discharge directly, it did address water quality. In fact, that was the entire rationale 

for the project: to improve water quality and return fish to the impacted stream. 

In this particular case, the water quality improvement was made without creating 

or affecting a direct discharge of pollutants other than that associated with nonpoint runoff, so the order did not need to speak directly to Clean Water Act permitting. Many other cases may be similar—where a ‘‘dry’’ cleanup involving removal 

of debris, regrading or capping of contaminated areas or revegetation can bring 

about water quality improvements. 

In other cases, remediation projects will involve surface water flows directly, but 

these may still be handled with orders or agreements based on existing Superfund, 

RCRA or other existing authorities. For example, the Yak Tunnel treatment plant 

at the California Gulch mine site operates without a Clean Water Act discharge permit but under an agreement worked out through Superfund cleanup authorities. 

The same is true for the treatment plant used for the Berkley Pit in Montana. 

On the issue of the extent of the problem, I return to my earlier point. Additional 

resources are needed—not just to ‘‘deputize’’ thousands of would-be Good Samaritans to do the best they can manage, but to help States and communities make and 

implement strategic decisions about cleanup priorities on a watershed basis. There 

is also a pressing need to assure that the mining industry does not continue to add 

to the enormous universe of unreclaimed and polluting sites. 

Question 3. You speak a great deal about the AOC reached with Trout Unlimited 

as the possible solution to the issue of liability deterring the cleanup of abandoned 

hardrock mine sites. However, the AOC addresses only Superfund Liability and the 

site at the American Fork Canyon did not involve any discharges into a navigable 

waterway. Are you aware of a means to address Clean Water Act liability, an issue 

at the center of proposals introduced by Senator Baucus (107th Congress), Co-sponsored by Senator Minority Leader Reid in each of the past three Congresses and 

sponsored this Congress by Senator Ken Salazar, and separately by Congressman 

John Salazar? 

Response. I understand fully that the discussion of ‘‘Good Samaritan’’ relief began 

with the Clean Water Act. Indeed, many of the long-time backers of ‘‘Good Samaritan’’ legislation have urged Congress to limit any liability waivers to the Clean 

Water Act alone. 

We have heard two primary issues with regard to the Clean Water Act. 

One, that a ‘‘Good Samaritan’’ may be able to take action to improve the quality 

of an existing discharge but not to the degree that the discharge would meet water 

quality standards. 

Second, that a ‘‘Good Samaritan’’ who is truly an innocent bystander and with no 

existing obligation to maintain a permit for the discharge does not want to create 

an obligation to hold an NPDES permit far into the future. Since many cases of acid 

mine drainage will continue for decades—if not forever—watershed groups and 

other third parties fear how long they would be tied to an NPDES permit. 

On the first point, I believe—based on my own experience on the Virginia State 

Water Control Board and on a review of much of the literature on mine cleanups— 

that the Clean Water Act allows for standards to be adjusted. Regulatory bodies frequently exercise enforcement discretion, providing extended compliance time lines 

and interim limits, and, if a strong case can be made, they may grant economic 

variances or waivers. They may make adjustments to use designations of affected 

streams, and create site-specific stream standards, where necessary. 

In Colorado, in fact, this discretion has been used so frequently and so widely that 

it has drawn criticism. A Denver Post investigative report from 2004 pointed out 

one mine where ‘‘temporary modification’’ of standards had been allowed for nearly 

20 years. 

The second point is a difficult one, because so much mining pollution will remain 

as a perpetual problem. This point is why we believe that the States, local Governments and the Federal land management agencies must take a leadership role in 

cleanup. Where perpetual acid discharges are anticipated on land that does not have 

a viable owner, we believe that those agencies must assume responsibility for continuing discharges. They must either hold NPDES permits or work out agreements 

with EPA under Superfund authorities to otherwise provide for ongoing treatment 

and discharge. Undeniably, this is a burden, but given the existence of the pollution, 

it is necessary. 

Again, this argues for new funding to assist with these efforts and for new regulation to assure that mining activities do not continue to create these problems. 
73 

RESPONSES BY VELMA M. SMITH TO ADDITIONAL QUESTIONS FROM SENATOR

JEFFORDS

Question 1. Am I correct that Good Samaritans, including corporations, are already shielded from potential Superfund liability from voluntary cleanup efforts as 

long as they follow existing standards under under CERCLA section 107(d)? 

Response. Yes. Potential Good Samaritans—be they State or local governments, 

non-profit organizations or corporations—may avail themselves of protections in the 

law, working with EPA to plan and carry out efforts to clean up and restore abandoned mine sites. Agreements may be crafted to assure that the Good Samaritan 

is protected—not only from action by the Federal Government but also by contribution actions brought by other parties. 

Under such agreements and other approaches, including use attainability assessments and site-specific water quality standards under the authorities of the Clean 

Water Act, cleanups can and have been undertaken. Such cleanups have involved 

volunteers, Government agencies, non-profits and for-profit businesses. For example: 

• In Colorado, EPA reports that casino developers have capped and removed mine 

waste piles contributing to cleanup. • In an area near the Birch Creek National Wild River Corridor, the Bureau of 

Land Management, the Alaska Department of Fish and Game, the Alaska Department of Transportation and the Alaska Department of Natural Resources worked 

together to restore portions of a reclaimed channel breach on land that had been 

used for placer gold mining from 1984 to 1990. • In an area along the Hammond River, also in Alaska, BLM worked cooperatively with the State and Alyeska to clean up mine waste from an old 1930s to 

1950s mine. • The Martin Mine restoration project in Idaho was undertaken by the National 

Park Service in cooperation with the Craters of the Moon Natural History Association, the BLM and a local Boy Scout troop. This modest but useful project helped 

to eliminate a water quality threat to Little Cottonwood Creek. • In Virginia, the Park Service worked with the State of Virginia and local volunteers to clean up the old Cabin Branch pyrite mine in the Prince William Forest 

Park. • In Nevada and elsewhere, Bat Conservation International has worked cooperatively with U.S. Borax and others to address hazards in old mines in ways that help 

conserve bat habitat. Their work includes closure at the abandoned Murphy Gold 

Mine in Nevada designed to protect a large colony of pallid bats—again accomplished within the context of current law. • In California, the Deltakeeper Chapter of Baykeeper and the California Department of Parks & Recreation signed a consent decree aimed at preventing a hundred 

year-old toxic waste at Empire Mine State Historic Park from continuing to degrade 

local waterways. The agreement—which actually grew out of challenge to the polluting discharges coming from the mine, was hammered out—not in spite of Federal 

environmental law but because of it. 

Question 2. Can you elaborate on the points you and others raised regarding the 

importance of preventing the creation of abandoned mines and how you would modify current policies to achieve this goal. 

Response. As I and many others have pointed out, there are enormous numbers 

of abandoned mine sites across the country. A portion of these date back 50 to 100 

years. 

But a substantial number of these mines are of much more recent vintage. Some 

have argued that modern mines are subject to exceedingly strict regulation, but 

‘‘modern’’ mines—including mines that date from the 1980s and 1990s—have been 

abandoned without adequate reclamation and sometimes with dire acid drainage 

problems that will last for decades if not centuries. 

The Zortman Landusky mine in Montana is just one example. Billed as a model 

for environmental management when it began operations in 1979, Zortman 

Landusky was one of the first large-scale, open-pit cyanide operations in the United 

States. Mining continued until 1996; the company declared bankruptcy in 1998; but 

the pollution is expected to continue in perpetuity. Though reclamation bonding was 

required for the mine, that bonding didn’t come close to covering the true costs of 

cleanup, and the State of Montana has had to set aside nearly $20 million to supplement the company’s bond for the long term care of just this single site. 

Unfortunately, though Zortman Landusky is a very bad case, it is not totally 

unique. 

In fact, according to EPA’s Office of Inspector General, nearly 60 percent of the 

mining sites listed on the NPL are expected to require from 40 years to ‘‘perpetuity’’ 

for cleanup operations. Some of these cleanups will be extraordinarily expensive— 
74 

not to take the property back to pristine or pre-mining conditions, but simply to remove the threats to local communities, water supplies and the environment. 

There are several factors behind such problems. 

Most importantly, there is no comprehensive environmental statute governing 

hardrock mining—no parallel to the Federal Surface Mining Control and Reclamation Act that governs coal mining. Instead, we continue to rely on the grossly outdated General Mining Law of 1872 and a patchwork of State laws that, in many 

instances, have not been up to the job. 

In addition, the mining industry has fought for and won exemptions and loopholes 

in coverage of other major environmental laws. For example, gold ore roasters emit 

airborne mercury but those facilities are not currently regulated under the Clean 

Air Act. Mine operations can also be significant contributors when it comes to particulates and other air pollutants, but recent rules give mining a pass when it comes 

to cleaning up such air pollution. 

Hardrock mining produces enormous volumes of waste which would meet the definition of hazardous under the Resource Conservation and Recovery Act—save for 

the Bevill amendment, which has stymied any rational control over these hazards. 

And though hardrock mining releases enormous amounts of toxic materials, such as 

lead, into the environment, the industry prevailed in its effort to have significant 

portions of those releases absolved from reporting requirements under the Toxics 

Release Inventory. 

Just recently, EPA, the U.S. Army Corps of Engineers and the State of Alaska 

have interpreted a newly devised loophole in the Clean Water Act to allow a mining 

company to put nearly 3 million cubic yards of processed mine wastes into a 23- 

acre alpine lake. 

In the face of these regulatory failures, there is much to be done, and my written 

testimony includes several recommendations. High on this list is reform of the outdated 1872 Mining Law and override of the Bevill amendment that keeps EPA from 

regulating mining waste. Clearly, these are large and controversial steps, and we 

understand they won’t happen overnight. In the meantime, however, there is one 

thing that Congress could do quickly that would have a major impact. 

Congress could insist that EPA implement the existing provisions of Superfund 

that authorize financial assurance rules for polluting businesses. It should do this, 

not only for mining communities, but also for other communities who suffer from 

mining problems, because abandoned mines are becoming increasingly serious 

drains on Federal cleanup resources. 

An August 2003 EPA Inspector General report touched on the problem of inadequate financial assurances for mine operations, and even suggested that some 

States may be motivated to set bonds for mining operations at low levels in order 

to hold operations in within their States. Nearly three years later, the U.S. Government Accountability Office looked at some of the same issues and found, once again, 

dramatic failings. ‘‘Environmental Liabilities: Hardrock Mining Cleanup Obligations’’ documents the burden that mining companies impose upon the American taxpayer, and it notes that EPA inaction on financial assurance exposes ‘‘the Superfund 

program, and ultimately the U.S. taxpayers, to potentially billions of dollars in 

cleanup costs.’’ 

Thus, we agree with the EPA presentation on abandoned mines that States flatly: 

‘‘The best immediate way to reduce CERCLA liabilities at mine sites is to aggressively improve reclamation and closure bonding at State and Federal level.’’ We urge 

this Committee to address this problem now by moving Senator Cantwell’s important legislation, the Cleanup Assurance and Polluter Accountability. 

Question 3. Should a good Samaritan permitting scheme ever be adopted, would 

it be important to ensure that such a scheme make all information available to the 

public prior to granting a permit, and that there be opportunity for notice and comment on the permit application? 

Response. Absolutely. Speaking from my own direct experience serving on the 

State of Virginia’s Water Pollution Control Board, I can say—without question— 

that informed public input is invaluable to those making decisions about the environmental management of potentially-polluting operations. The public, in many instances, has proven to be a critical source of important information about local conditions, impacts and concerns, a valuable ‘‘fact-checker,’’ and a source of useful perspective and common sense. 

In fact, a recent EPA report, ‘‘Integrating Water and Waste Programs to Restore 

Watersheds,’’ stresses that cleanup of abandoned mines is often most effective when 

regulators and mining companies work with the public, engaging a broad cross-section of a community in setting priorities and laying out cleanup plans. This cannot 

happen without disclosure and ample opportunities for meaningful input. 
75 

Question 4. How would the proposed waiver(s) of NEPA in both S. 1848 and S. 

2780 affect the public’s ability to participate in the permitting process envisioned 

in both bills? 

Response. In the absence of a Federal law that deals with environmental impacts 

of hardrock mining on a comprehensive basis, NEPA serves a critical role as the 

sole forum for looking at the overall impacts of mining-related activities. Broad 

waivers from would eviscerate the opportunities for real public participation. 

Question 5. One of the issues surrounding abandoned mine clean-ups and Good 

Samaritan permitting is whether and how any enforcement action could be taken 

should a clean-up action actually worsen water quality or other environmental conditions. In order to make such a determination, one would need to first conduct 

baseline monitoring and then long-term monitoring. Can you comment on your 

views regarding the optimum monitoring that should occur on any mine clean-up, 

regardless of whether it is conducted by a Good Samaritan or a responsible party? 

Response. Many stories in the history of mining and mining cleanup make it clear 

that lack of information can result in big problems. The old Anaconda copper near 

Yerington, Nevada is a case in point. Information about the co-occurrence of uranium with the copper ores has come to light only recently as has the extent of 

groundwater contamination at the site. The impact of lack of information in this 

case could be cleanup price tag closing in on half a billion dollars compared with 

earlier estimates of $10 million. 

Yerington and other cases make us extremely wary of the restrictions in S. 1848 

and S. 2780 regarding the collection of baseline data. Data needs remain—despite 

costs—and questions about underlying conditions should be answered up front—not 

only to ensure that the right cleanup decisions are made but also to ensure that 

actions taken do not complicate or even worsen conditions. 

Where cleanups may encounter water, permit reviewers must, at a minimum, ensure that actions are taken with a solid understanding of hydrological conditions— 

water flow conditions and interconnections, including flow under different weather 

conditions and other scenarios, groundwater interaction, water quality levels, co-occurrence of pollutants and possibilities for acid-generation. 

Such an understanding cannot be developed without site-specific data. Generalized information must be verified with on-site testing, and a record of site-specific 

testing must be sufficiently dense and span the seasonal variations that will be encountered. Monitoring for a full-year period is essential, but if that monitoring occurs in periods that are unusually dry or wet, then testing must continue beyond 

those periods. 

The lesson of a robust record is brought home by the case of the Sulphur Bank 

mine—an old mercury mine in California. There initial cleanup efforts were guided 

by monitoring data from what turned out to be an unusual dry spell. When precipitation levels changed, the conceptual model of the mine’s release of mercury into 

the environment was proven wrong and adjustments to the remedy were essential. 

Mine cleanups directed by new legislation should not repeat problems brought on 

by lack of information. 
76 
77 
78 
79 
80 
81 
82 
83 
84 
85 
86 
87 
88 
89 
90 
91 
92 
93 
94 
95 
96 
97 
98 
99 
100 
101 

Æ