II

106TH CONGRESS

1ST SESSION S. 1787

To amend the Federal Water Pollution Control Act to improve water quality

on abandoned or inactive mined land.

IN THE SENATE OF THE UNITED STATES

OCTOBER 26, 1999

Mr. BAUCUS (for himself, Mr. CAMPBELL, and Mr. DASCHLE) introduced the

following bill; which was read twice and referred to the Committee on Environment and Public Works

A BILL

To amend the Federal Water Pollution Control Act to

improve water quality on abandoned or inactive mined land.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Good Samaritan Aban5 doned or Inactive Mine Waste Remediation Act’’.

6 SEC. 2. FINDINGS AND PURPOSE.

7 (a) FINDINGS.—Congress finds that—

8 (1) thousands of abandoned or inactive mines

9 exist in the West and elsewhere in the United

10 States;
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1 (2) drainage and runoff from those abandoned

2 or inactive mines are responsible for significant

3 threats and impairments to water quality; and

4 (3) often, a party that is responsible for condi5 tions at abandoned or inactive mined land is not

6 identifiable or economically viable, resulting in an in7 ability to compel the party to clean up the mine site.

8 (b) PURPOSE.—The purpose of this Act is to allow

9 a party that is not responsible for environmental condi10 tions relating to abandoned or inactive mined land to im11 prove water quality affected by past mining activities at

12 the land without incurring liability under sections 301,

13 302, and 402 of the Federal Water Pollution Control Act

14 (33 U.S.C. 1311, 1342) to make further progress toward

15 the goal of meeting or exceeding water quality standards

16 in all waters of the United States.

17 SEC. 3. ABANDONED OR INACTIVE MINED LAND WASTE RE18 MEDIATION PERMITS.

19 Section 402 of the Federal Water Pollution Control

20 Act (33 U.S.C. 1342) is amended by adding at the end

21 the following:

22 ‘‘(q) ABANDONED OR INACTIVE MINED LAND WASTE

23 REMEDIATION PERMITS.—

24 ‘‘(1) DEFINITIONS.—In this subsection:
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1 ‘‘(A) ABANDONED OR INACTIVE MINED

2 LAND.—The term ‘abandoned or inactive mined

3 land’ means land formerly mined for non-coal

4 resources—

5 ‘‘(i) that is no longer actively mined

6 (and not in temporary shutdown) at the

7 times at which the remediation plan is sub8 mitted and the permit is issued;

9 ‘‘(ii) that is not included, or proposed

10 for inclusion, on the National Priorities

11 List under the Comprehensive Environ12 mental Response, Compensation, and Li13 ability Act of 1980 (42 U.S.C. 9601 et

14 seq.) and that is not the subject of a

15 planned or ongoing response or natural re16 source damages action under that Act; and

17 ‘‘(iii) for which there is no identifiable

18 owner or operator for the mine or mine fa19 cilities.

20 ‘‘(B) IDENTIFIABLE OWNER OR OPER21 ATOR.—The term ‘identifiable owner or oper22 ator’ means a person identified by a remedi23 ating party under paragraph (3)(B)(vi) or by

24 the public under paragraphs (3)(C)(iii) and

25 (3)(D)(i))—
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1 ‘‘(i) that is responsible for the activi2 ties at abandoned or inactive mined land

3 that created conditions that cause or con4 tribute to the discharge of pollutants from

5 the abandoned or inactive mined land; and

6 ‘‘(ii) that is financially capable of

7 compliance with requirements of sections

8 301, 302, and 402.

9 ‘‘(C) PERMIT.—The term ‘permit’ means

10 an abandoned or inactive mined land waste re11 mediation permit described under paragraph

12 (2).

13 ‘‘(D) REMEDIATING PARTY.—The term ‘re14 mediating party’ means—

15 ‘‘(i) the United States, except with re16 spect to abandoned or inactive mined land

17 located on Federal land;

18 ‘‘(ii) a State;

19 ‘‘(iii) an Indian tribe; or

20 ‘‘(iv) a municipality.

21 ‘‘(2) PERMITS.—

22 ‘‘(A) IN GENERAL.—The Administrator,

23 with the concurrence of the applicable State or

24 Indian tribe, may issue an abandoned or inac25 tive mined land waste remediation permit to a
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1 remediating party for discharges associated

2 with remediation activity at abandoned or inac3 tive mined land, that modifies the otherwise ap4 plicable requirements of any other subsection of

5 this section and of sections 301 and 302.

6 ‘‘(B) FEDERAL ENFORCEMENT.—A permit

7 (including conditions of a permit) issued under

8 this subsection is subject to the Federal en9 forcement authority under section 309.

10 ‘‘(C) DELEGATION.—The Administrator

11 shall not delegate the authority under subpara12 graph (A).

13 ‘‘(3) PERMIT PROCESS.—

14 ‘‘(A) SCOPE.—

15 ‘‘(i) IN GENERAL.—Except as pro16 vided in clause (ii), a remediating party

17 may apply for a permit for remediation ac18 tivities at abandoned or inactive mined

19 land from which there is or may be a dis20 charge of pollutants to waters of the

21 United States.

22 ‘‘(ii) LIMITATION.—A remediating

23 party may not apply for a permit under

24 clause (i) if the abandoned or inactive

25 mined land is owned by the remediating
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1 party, unless the land was purchased by

2 the remediating party for the express pur3 pose of remediating pollutant discharges

4 related to past mining activities at the land

5 to improve water quality.

6 ‘‘(B) REMEDIATION PLAN.—A remediating

7 party that seeks a permit shall submit an appli8 cation for the permit that includes a remedi9 ation plan that—

10 ‘‘(i) identifies the remediating party

11 and any persons cooperating with the re12 mediating party with respect to the plan;

13 ‘‘(ii) identifies the abandoned or inac14 tive mined land addressed by the plan, in15 cluding a verification that the land meets

16 the requirements of paragraph (1)(A);

17 ‘‘(iii) identifies the waters of the

18 United States affected by past mining ac19 tivities at the abandoned or inactive mined

20 land;

21 ‘‘(iv) describes the baseline condition

22 of the waters (including the nature and ex23 tent of any adverse water quality impact

24 and, as applicable, the levels of any pollut25 ant causing the impact);
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1 ‘‘(v) describes the physical conditions

2 at the abandoned or inactive mined land

3 that are causing adverse water quality im4 pacts;

5 ‘‘(vi) describes the applicant’s reason6 able efforts to identify—

7 ‘‘(I) current owners, lessees, and

8 claimants of the abandoned or inactive

9 mined land addressed by the plan;

10 and

11 ‘‘(II) other persons, including

12 mine operators, if any, whose activi13 ties at the abandoned or inactive

14 mined land after October 18, 1972,

15 created conditions that cause or con16 tribute to the discharge of pollutants

17 from the abandoned or inactive mined

18 land;

19 ‘‘(vii) describes the remediation goals

20 and objectives, including the pollutant or

21 pollutants to be addressed by the plan;

22 ‘‘(viii) describes the practices, includ23 ing a schedule and estimated completion

24 date for implementing the practices, that

25 are proposed to reduce, control, mitigate,
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1 or eliminate the adverse water quality im2 pacts, including—

3 ‘‘(I) in the case of a new remedi4 ation project, the preliminary system

5 design and construction, operation,

6 and maintenance plans; and

7 ‘‘(II) in the case of an existing

8 remediation project, available system

9 design and construction, operation,

10 and maintenance plans and any

11 planned improvements to the projects;

12 ‘‘(ix) explains how the practices de13 scribed in clause (viii) are expected to re14 sult in a water quality improvement for the

15 identified waters;

16 ‘‘(x) describes the monitoring or other

17 forms of assessment that will be under18 taken to evaluate the success of the prac19 tices during and after implementation, rel20 ative to baseline conditions;

21 ‘‘(xi) describes contingency plans, in22 cluding the practices to be implemented to

23 achieve the remediation goals and objec24 tives described in clause (vii), for respond25 ing to unplanned adverse events;
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1 ‘‘(xii) provides a schedule for periodic

2 reporting on progress in implementing the

3 plan;

4 ‘‘(xiii) provides a budget for the plan

5 and identifies the funding sources that will

6 support the implementation of the plan, in7 cluding practices described in clauses (viii),

8 (x), and (xi);

9 ‘‘(xiv) describes the applicant’s legal

10 authority to enter and conduct activities at

11 the abandoned or inactive mined land ad12 dressed by the plan;

13 ‘‘(xv) contains any other additional in14 formation requested by the Administrator

15 to clarify the plan and the activities cov16 ered by the plan; and

17 ‘‘(xvi) is signed by the applicant.

18 ‘‘(C) REVIEW OF APPLICATION.—

19 ‘‘(i) IN GENERAL.—The Administrator

20 shall—

21 ‘‘(I) review each application for

22 an abandoned or inactive mined land

23 waste remediation permit; and
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1 ‘‘(II) determine whether the ap2 plication meets the requirements of

3 subparagraph (B).

4 ‘‘(ii) DISAPPROVAL.—If the Adminis5 trator determines that an application does

6 not meet the requirements of subpara7 graph (B), the Administrator shall—

8 ‘‘(I) notify the applicant that the

9 application is disapproved and explain

10 the reasons for the disapproval; and

11 ‘‘(II) allow the applicant to sub12 mit a revised application.

13 ‘‘(iii) APPROVAL.—If the Adminis14 trator determines that an application

15 meets the requirements of subparagraph

16 (B), the Administrator shall—

17 ‘‘(I) notify the applicant that the

18 application is accepted;

19 ‘‘(II) provide to the public notice

20 of and reasonable opportunity to com21 ment on the application; and

22 ‘‘(III) provide to the public an

23 opportunity for a public hearing on

24 the application.

25 ‘‘(D) ISSUANCE.—
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1 ‘‘(i) DECISION TO ISSUE.—After no2 tice and opportunity for public comment on

3 a permit proposed to be issued, the Admin4 istrator may issue an abandoned or inac5 tive mined land waste remediation permit

6 to the applicant if the Administrator deter7 mines that—

8 ‘‘(I) relative to the resources

9 available to the remediating party for

10 the proposed remediation activity, the

11 remediating party has made a reason12 able effort to identify persons under

13 subparagraph (B)(vi);

14 ‘‘(II) no identifiable owner or op15 erator exists; and

16 ‘‘(III) the remediation plan dem17 onstrates with reasonable certainty

18 that the implementation of the plan

19 will result in an improvement in water

20 quality to the maximum extent prac21 ticable, taking into consideration the

22 resources available to the remediating

23 party for the proposed remediation ac24 tivity.
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1 ‘‘(ii) DECISION NOT TO ISSUE.—If the

2 Administrator decides not to issue an

3 abandoned or inactive mined land waste re4 mediation permit to the applicant, the Ad5 ministrator shall notify the applicant of the

6 reasons for not issuing the permit.

7 ‘‘(E) MODIFICATION.—

8 ‘‘(i) IN GENERAL.—Not later than

9 120 days after the receipt of a written re10 quest by a permittee, the Administrator

11 shall approve or disapprove a modification

12 of a permit.

13 ‘‘(ii) APPROVAL.—A permit modifica14 tion approved by the Administrator under

15 this subsection shall be—

16 ‘‘(I) by agreement of the per17 mittee and the Administrator;

18 ‘‘(II) with the concurrence of any

19 applicable State or Indian tribe;

20 ‘‘(III) after providing the public

21 notice of, and opportunity for com22 ment and a hearing on, a proposed

23 modification of a permit;
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1 ‘‘(IV) in accordance with the

2 standards in subparagraph

3 (D)(i)(III); and

4 ‘‘(V) immediately reflected in and

5 applicable to the remediation permit.

6 ‘‘(4) CONTENTS OF PERMIT.—

7 ‘‘(A) IN GENERAL.—A permit—

8 ‘‘(i) shall include—

9 ‘‘(I) a remediation plan approved

10 by the Administrator; and

11 ‘‘(II) any additional requirements

12 that the Administrator establishes

13 under paragraph (9); and

14 ‘‘(ii) shall provide for compliance with

15 and implementation of the remediation

16 plan and any other requirements described

17 under clause (i).

18 ‘‘(B) REVIEW.—A permit shall establish a

19 schedule for review, by the Administrator, of

20 compliance with the conditions and limitations

21 of the permit.

22 ‘‘(C) COMPLIANCE WITH OTHER LIMITA23 TIONS.—A permit shall not require the remedi24 ating party to comply with any other subsection

25 of this section or with sections 301 or 302.
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1 ‘‘(D) COMMERCIAL USE OR SALE.—A per2 mit shall not authorize any discharge associated

3 with the extraction, processing, or removal of

4 minerals for purposes of commercial use or sale,

5 unless the revenue generated through the use or

6 sale is used for remediation activities that will

7 further improve the quality of waters identified

8 in paragraph (3)(B)(iii).

9 ‘‘(5) FAILURE TO COMPLY.—If, during the re10 view conducted under paragraph (4)(B), on receipt

11 of a petition from any person, or for any other rea12 son, the Administrator determines, based on avail13 able information, that a remediating party operating

14 under an approved permit is not in compliance with

15 any condition or limitation of the permit, the Admin16 istrator may bring an enforcement action under sec17 tion 309.

18 ‘‘(6) TERMINATION.—

19 ‘‘(A) IN GENERAL.—The Administrator

20 shall terminate a permit if—

21 ‘‘(i) the remediating party completes

22 the implementation of the remediation

23 plan;

24 ‘‘(ii) the discharges covered by the

25 permit—
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1 ‘‘(I) become subject to a permit

2 issued under the other subsections of

3 this section for development that is

4 not part of the implementation of the

5 remediation plan; and

6 ‘‘(II) the remediating party seek7 ing termination of coverage is not a

8 participant in the development; or

9 ‘‘(iii)(I) an event or condition is en10 countered that was not contemplated by

11 the remediation plan and is beyond the

12 control of the permittee; and

13 ‘‘(II) the surface water quality condi14 tions due to remediation activities at the

15 site, taken as a whole and with reference

16 to the designated uses of the waters, are

17 equal to or superior to the baseline condi18 tions.

19 ‘‘(B) NO ENFORCEMENT LIABILITY.—If a

20 permit is terminated under subparagraph (A),

21 the remediating party shall not be subject to

22 enforcement under section 309 or 505 for any

23 remaining discharges from the abandoned or in24 active mined land described in the permit.

25 ‘‘(7) LIMITATIONS.—
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1 ‘‘(A) EMERGENCY POWERS.—Nothing in

2 this subsection limits the authority of the Ad3 ministrator under section 504.

4 ‘‘(B) PRIOR VIOLATIONS.—

5 ‘‘(i) IN GENERAL.—Nothing in this

6 subsection precludes actions under section

7 309 or 505 or affects the relief available in

8 actions under those sections, with respect

9 to violations of this section, or sections

10 301(a) or 302, that occurred prior to the

11 issuance of a permit under this subsection.

12 ‘‘(ii) EXCEPTION FOR PRIOR ACTIVI13 TIES COVERED BY THE PERMIT.—If a per14 mit covers remediation activities imple15 mented by the permit holder prior to the

16 issuance of the permit, clause (i) shall not

17 apply to an action that is based on condi18 tions resulting from those remediation ac19 tivities.

20 ‘‘(C) OBLIGATION OF STATES AND INDIAN

21 TRIBES.—Except as expressly provided, nothing

22 in this subsection limits any obligation of a

23 State or Indian tribe under section 303.

24 ‘‘(D) OTHER DEVELOPMENT.—Any devel25 opment of abandoned or inactive mined land
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1 (including mineral exploration or mining) not

2 described in a permit issued by the Adminis3 trator under this subsection shall be subject to

4 this Act (other than this subsection).

5 ‘‘(8) LIABILITY OF OTHER PARTIES.—Nothing

6 in this subsection limits the liability of any person

7 other than the remediating party, under this Act or

8 any other law.

9 ‘‘(9) REGULATIONS.—

10 ‘‘(A) IN GENERAL.—Not later than 1 year

11 after the date of enactment of this subsection,

12 the Administrator, in consultation with State,

13 tribal, and local officials and after providing the

14 public with notice of, and opportunity for com15 ment and a hearing on, regulations proposed to

16 be promulgated, shall promulgate regulations

17 establishing generally applicable requirements

18 for—

19 ‘‘(i) remediation plans described in

20 paragraph (3)(B); and

21 ‘‘(ii) as considered to be necessary by

22 the Administrator, other paragraphs of

23 this subsection.

24 ‘‘(B) SPECIFIC REGULATIONS.—The Ad25 ministrator may promulgate, on a case-by-case
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1 basis, in consultation with State, tribal, and

2 local officials and after providing the public

3 with notice of, and opportunity for comment

4 and a hearing on, regulations proposed to be

5 promulgated, more specific requirements that

6 the Administrator determines would facilitate

7 implementation of this subsection in an indi8 vidual abandoned or inactive mined land waste

9 remediation permit.

10 ‘‘(10) FUNDING.—Implementation of a remedi11 ation plan under a permit issued under this sub12 section shall be eligible for grants under section

13 319(h).

14 ‘‘(11) REPORT.—

15 ‘‘(A) IN GENERAL.—Not later than 1 year

16 before the date of the termination of permitting

17 authority specified in paragraph (12), the Ad18 ministrator shall submit to Congress a report

19 on the activities authorized by this subsection.

20 ‘‘(B) CONTENTS.—The report required

21 under subparagraph (A) shall, at a minimum—

22 ‘‘(i) identify each permit, and associ23 ated remediating party, issued under this

24 subsection;
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1 ‘‘(ii) identify the abandoned or inac2 tive mine land addressed by each permit

3 (including the waterbodies and baseline

4 water quality of the waterbodies affected

5 by the land);

6 ‘‘(iii) summarize the remediation plan

7 associated with each permit issued under

8 this subsection, including—

9 ‘‘(I) the goals and objectives of

10 the plan;

11 ‘‘(II) the plan budget; and

12 ‘‘(III) the practices to be em13 ployed according to the plan to re14 duce, control, mitigate, or eliminate

15 adverse water quality impacts;

16 ‘‘(iv) identify the status of the imple17 mentation of each remediation plan associ18 ated with each permit issued under this

19 subsection (including specific progress that

20 permitted remediation activities have made

21 toward achieving the goals and objectives

22 of the remediation plan);

23 ‘‘(v) identify and describe any enforce24 ment action taken by the Administrator or

25 any civil action brought by a citizen con-
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1 cerning a permit issued under this section

2 (including the disposition of the legal ac3 tion); and

4 ‘‘(vi) include recommendations by the

5 Administrator for any modifications to this

6 subsection, or the regulations promulgated

7 under paragraph (9) to implement this

8 subsection, that would facilitate the im9 provement of water quality through the re10 mediation of abandoned or inactive mined

11 land.

12 ‘‘(12) TERMINATION OF PERMITTING AUTHOR13 ITY.—The authority granted to the Administrator

14 under this subsection to issue an abandoned or inac15 tive mined land waste remediation permit terminates

16 on the date that is 10 years after the date of enact17 ment of this subsection.’’.

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