CONGRESSMAN SALAZAR MOVES TO IMPROVE WATER QUALITY, CLEAN UP ABANDONED MINE SITES

At Congressional Hearing, Salazar Announces Plan for “Good Samaritan” Legislation

WASHINGTON, DC – Congressman John Salazar (CO-3), Member of the House Committee on Transportation, today participated in a Congressional hearing discussing the barriers to cleaning up abandoned mine sites. Salazar noted the urgent need to clean up sites in rural Colorado and protect the water quality of the Animas River basin. Salazar also announced his plan to solve the problem and help communities in the Four Corner’s region move forward with water quality improvement projects without fear of penalty.

Salazar made the following remarks in Committee today:

“Good Samaritans are willing to help clean up the Animas River basin so we can all enjoy clean water. These are the kinds of local efforts government should support and encourage, but the rules in place create unnecessary roadblocks preventing efforts to clean up these sites.

“I plan to introduce legislation to finally give Good Samaritans the tools they need to clean up the Animas River basin. Not only will this legislation help us protect water quality in the Four Corner’s – it will also allow rest of the nation to see a working example of community driven, government supported mine clean up.”

“We need to move forward with improving local water quality. The water quality problem created by abandoned mine sites has been around for far too long and the public is looking to Congress for answers.”

In addition to Congressman Salazar’s participation, Colorado was also represented by hearing witness Paul Frohardt, Administrator of the Colorado Water Quality Control Commission.  Background information and a summary of the Committee hearing follows:

Background Information

Past mining activities in the United States have disturbed hundreds of thousands of acres of land, altered surface and ground water drainage patterns, and generated substantial amounts of waste - much of which was left in waste piles scattered around the landscape.  Most of these old sites were mined and later abandoned by the mine owners or operators when it was no longer economically viable to retrieve minerals from the sites, prior to the modern environmental laws enacted in the 1970s.

Today, over half a million abandoned hard rock and coal mine sites are scattered throughout the United States, on private, State, and Federal lands.  Many of these abandoned mines, plus their associated residual wastes, adversely impact the quality of surface and ground waters and pose other environmental and health hazards as a result of acid mine drainage and toxic loadings of heavy metals leaching from these old mines and associated wastes.  Many of these old mine sites also pose physical safety hazards.  An estimated 15,000 abandoned hard rock mine sites present the most significant threat to surface and ground waters.  Currently, there is no broad effort underway around the nation to cleanup abandoned mine sites.

Barriers To Site Cleanup Activities

While it is widely acknowledged that the many abandoned mine sites around our nation are a problem and that securing and cleaning up priority sites is warranted - particularly those sites that may be contributing to water quality problems or that present public health and safety concerns - it is less clear how to go about doing it.  Several issues must be addressed at most abandoned mine sites.

The first issue is responsibility.  Most of the environmental impacts are caused by mining operations that ceased many decades ago, prior to modern environmental concerns and standards.  As a result, it is often difficult to identify a party responsible for a cleanup.  Many businesses may have gone bankrupt or simply vanished.  Many abandoned mine sites on government-owned lands are so old that no financially viable parties exist today except for the government property owner.

Legal requirements may present impediments to successfully addressing abandoned mine sites.  There are potentially many voluntary parties who did not own or operate the abandoned mines willing to take steps to reduce the environmental, health, and safety problems associated with abandoned mine sites.  These parties, sometimes referred to as “Good Samaritans,” may include Federal, State, or local government agencies, nongovernmental organizations, mining companies, or other private parties.

However, potential Good Samaritans have indicated a reluctance to become involved in site cleanup work at abandoned mines because of a fear of becoming liable for complete cleanup required under various laws.  Potential legal liability exists under the Clean Water Act (CWA), or comparable state law, and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund). 

Under the Clean Water Act, anyone conducting cleanup activities at an abandoned mine site assumes liability for any new or continuing point source discharges of pollutants from the mine and must obtain an National Pollutant Discharge Elimination System (NPDES) permit for such discharges from the site.  Not only is that party responsible for conducting the cleanup activities it said it would do, but the party may remain responsible for any point source discharges that continue after the cleanup activities are completed.

In addition, when a party receives an NPDES permit, that permit requires the party to meet all applicable technology based standards and may include more stringent water quality standards.  A Good Samaritan may want to decrease the discharge of pollutants and acid mine drainage but perhaps because of cost limitations, cannot undertake a comprehensive remediation project that would satisfy all Clean Water Act standards.  EPA has experimented with using administrative and legal orders to achieve less than complete compliance, but this method is cumbersome. 

The Superfund law may also be a deterrent to the cleanup of abandoned mine sites.  Liability under Superfund is strict (that is, the potentially responsible party [PRP] need not have been negligent), joint and several (that is, any one PRP can be sued for the entire damage), and retroactive (that is, a current party can be sued for any damages caused by past disposal of hazardous substances even if done by others).  As a result, a Good Samaritan who gets involved with cleaning up an abandoned mine site could be considered an owner or an operator of the site and potentially become liable for cleanup costs far greater than the party is willing to pay.  However, Superfund provides liability protection where a release is pursuant to a Clean Water Act permit.  This permit shield is effective as long as the release complies with the permit.