The liability issue for Good Samaritans working on draining mines began in 1994 when U.S. EPA determined that draining mines are point sources and require National Pollution Discharge Elimination System permits (NPDES permits). To resolve the liability issue, most Good Samaritan legislation has centered on proposed amendments to section 402 of the Clean Water Act. The amendments would create a new NPDES permit specifically for accomplishing abandoned mine cleanups. There has been a great deal of variation in different proposals as to who can be Good Samaritan and as to what lands are eligible for cleanup.
Current Legislation (110th Congress)
Rep. Mark Udall (CO) has introduced Good Samaritan legislation (H.R. 4011) during the current Congress. For the most part, it is based upon a proposal drafted by the Western Governor’s Association after facilitating discussions among different interests in 2007. The bill amends section 402 of the Clean Water Act by creating a special permit for Good Samaritans cleaning up abandoned mine sites. Any entity can be a Good Samaritan if it had no role in creating pollution at the mine site and if it is not liable for cleanup at the site. Lands that are eligible for cleanup under this new type of permit cannot be listed on the National Priorities List under CERCLA (Superfund). In addition, eligible lands cannot have an “identifiable owner or operator” – defined as a person legally responsible for discharges from the site and financially capable of treating those discharges. The bill has a ten year sunset clause. No hearings have been held on this legislation.
In 1995, legislation was introduced to re-authorize the Clean Water Act which included amendments to numerous parts of the Act. Part of the bill added a new type of NPDES permit to section 402. The “remediating party” was a governmental entity, or a person cooperating with the governmental entity excluding anyone who directly benefitted from or participated in mining at the site. The only restriction on eligible lands was that the mine was closed and not in temporary shutdown. The legislation passed the House (H.R. 961.RFS) but never made it through the Senate.
In 1999, Sen. Max Baucus (MT) introduced an amendment (S. 1787) to section 402 of the Clean Water Act. The legislation was a product of numerous discussions by a number of stakeholders facilitated by the Western Governors Association. It created a NPDES permit program for Good Samaritans remediating abandoned mines. The Good Samaritans were limited to governmental entities. Lands were ineligible for permits if they were listed or proposed to be listed on the National Priorities List under CERCLA (Superfund). In addition, if there existed a party responsible for conditions at the mine site who was financially capable of meeting the conditions for a typical NPDES permit, the site was ineligible for this new type of permit. There was also a ten year sunset provision on issuing permits so that Congress would have to re-authorize the program. Hearings were held on the legislation, but it failed to make it out of committee.
In 2003, three bills were introduced. Rep. Scott McInnis (CO) introduced a pilot project Good Samaritan bill (H.R. 2835) which would apply only to the upper Animas River Basin in Southwestern Colorado. The legislation closely followed the language in the Baucus bill (S. 1787) except that private parties could be Good Samaritans if they were not responsible for activities at the site that created the problems and/or they were not owners of the site.
Rep. Mark Udall introduced a bill (H.R. 504) with two distinct sections. One section created a funding mechanism for cleaning up abandoned mines by requiring a royalty on profits of active mining operations. The second section created a permitting program under section 402 of the Clean Water Act which was more restrictive than the either the Baucus or McInnis bills. Good Samaritans were limited to governmental entities and lands were not eligible for permits if the current owner or operator or anyone who was responsible for actions on the site that created the discharge were financially capable of meeting the conditions for a typical NPDES permit. In addition, mine sites were only eligible for permits “for which no evidence exists that the lands contain minerals which could economically be extracted through the mining, reprocessing, or remining of such lands.” Lands identified for remedial action under CERCLA (Superfund) are also not eligible.
Sen. Ben Nighthorse Campbell introduced legislation (S. 1660) that was less restrictive than the two other bills. Good Samaritans could be governmental entities or private parties that have not been determined to be legally responsible for mine discharges. Lands are eligible if there is “no identifiable or economically viable owner or operator of record for the mine” and the land is not listed on the National Priorities List under CERCLA(Superfund).
Both the McInnis and Udall bills had ten year sunset clauses and the Campbell bill did not. Hearings were never held for any of these bills and none of them moved out of committee.
Four Good Samaritan bills were introduced in the 109th Congress. Rep. Udall split his previous bill into two separate pieces of legislation, funding (H.R. 1265) and Good Samaritan permits (H.R. 1266). Together, these bills were very similar to the legislation Udall introduced in the 108th Congress.
Rep. John Salazar (CO) introduced a pilot project Good Samaritan bill (H.R. 5071) which would apply only to the upper Animas River Basin in Southwestern Colorado. While there were several modifications, the bill was overall quite similar to one introduced by Rep. McInnis in the previous session. No hearings were held on either the Udall bills or the Salazar bill.
On the Senate side, two other bills were introduced that took a very different approach. Both created a stand alone permit program for Good Samaritans which would preclude the need for permits under several environmental statutes. One bill (S 1848) was introduced by Sen. Ken Salazar (CO) and the other (S. 2780) by James Inhofe (OK) for the Bush Administration. (A bill (H.R. 5404) identical to S. 2780 was introduced in the House by Rep. John Duncan (TN) for the Bush Administration.)
Parts of the Administration bill were incorporated into the Salazar bill which passed committee but was not voted upon by the full Senate. The amended Salazar bill (S. 1848.RS) provided Good Samaritans with liability protection from the Toxic Substance Control Act, Clean Water Act, Solid Waste Disposal Act, and Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Any entity could be a Good Samaritan as long as they had no role in creating the problems on the site. Any abandoned or inactive site was eligible for a permit as long as it was not listed on the National Priorities List. There was no test as to whether or not a liable, financially capable party for the site existed. Generally, a permit under this legislation would not be terminated. By holding the permit, the Good Samaritan would not liable under the above listed environmental laws. There was no sunset clause in the legislation.