In view of the impacts on water quality caused by these abandoned mines and the difficulties in identifying responsible parties to remediate the sites, states are 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, states currently are dissuaded from taking measures to clean up the mines due to an overwhelming disincentive in the Clean Water Act. The bill before you would amend the Act in effort to reduce those disincentives.
I would like to offer you an analogy to the situation states are experiencing with our attempts to clean up the runoff from these abandoned mines. Imagine, if you will, a neighborhood, perhaps your own neighborhood, with houses and yards, trees lining the street, kids and dogs playing, families barbequing. Now imagine a house, perhaps next door to your own house, that has been abandoned. The paint on the outside walls has long worn off. The windows are all broken out. The front door flops open and shut in the wind. The yard has not been mowed or kept, and has years of debris collected in its high weeds. Add an old refrigerator to the broken down front porch and a beat up old car in the side yard. It is an old house that has been abandoned, and it is in your neighborhood.
Now, let's just say you have had enough of the eyesore. It is impacting the value of your home; it is a safety and health hazard for the kids in the neighborhood curious to explore it; and it is a constant source of debris blowing into your yard. You decide to take some actions to clean up the house to mow the lawn and pick up the trash. Move the fridge inside. Nail the door shut and board the windows. Actions that do not cost you much, but that result in significant improvements.
Now, imagine that after you have completed these modest improvements someone in your community takes you to court claiming that the actions you have taken make you liable to bring the house up to code and up to the covenants of the neighborhood, and make you responsible for maintaining the condition of the property indefinitely into the future. And they win! You had nothing to do with the disrepair that the abandoned house had fallen into, and yet, because you made an effort to clean up some of the mess, you are now legally obligated for very costly renovation and maintenance of the house.
This is the situation states find themselves in with regard to their efforts to clean up abandoned or inactive mines. 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. One such example involves the Penn Mine in California, an abandoned copper and zinc mine. A portion of the Penn Mine property was acquired by the East Bay Municipal Utility District to construct a reservoir. Subsequently, the utility and a California Regional Water Quality Control Board constructed a facility to contain toxic runoff from the site and minimize its impact on downstream waters. Neither the municipal utility nor the Regional Board had any previous involvement in the mining operation but were at the site for the purpose of cleaning it up. Because the new facility did not eliminate all discharge to downstream waters, the municipal utility and the regional board were later sued by an environmental group alleging that the facility was discharging pollutants without an NPDES permit. This position was upheld through the 9th Circuit Court of Appeals, with the result that costly further cleanup requirements were imposed on the municipal utility and the regional board. This particular example has had a severe chilling effect on the interest of other 'Good Samaritans' in pursuing similar cleanup efforts in several Western states.
States have found that there are many instances where a reasonable investment in a cleanup project at an abandoned mine site will result in substantial improvement in water quality, even though all impacts from the site will not be eliminated. However, there is currently no provision in the Clean Water Act which protects a remediating agency or "Good Samaritan" who does not otherwise have liability for abandoned or inactive mine sites, and that attempts to improve the conditions at these sites, from becoming legally responsible, under section 301(a) and section 402 of the Clean Water Act, for any continuing discharges from the mined land after completion of a cleanup project. This potential liability is an overwhelming disincentive to voluntary remedial activities financed or conducted by public entities to address the serious problems associated with abandoned or inactive mined lands.
The Western states have found 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, since 1994 Western states have endeavored to develop a proposal for amending the Clean Water Act, to eliminate the current disincentives that exist in the Act to restore and protect water quality within watersheds through Good Samaritan cleanups of abandoned or inactive mines. From the outset, this has been a truly bipartisan effort, and an effort in which the states have sought to involve the full spectrum of stakeholders, including EPA, the environmental community, the mining industry, and other interested parties. Each of these groups has brought important perspectives and considerations to the discussions. Over several years, the proposal evolved substantially as it was refined in response to issues and concerns raised. S.1787 uses the WGA proposal as its starting point, while including further refinements crafted by the bill's sponsors.
This bill offers a starting point from which to work to resolve the liability disincentive problem that is currently preventing many potential Good Samaritan cleanup projects from going forward. The key provisions of the bill are consistent with WGA policy resolution 98-004, "Cleaning Up Abandoned Mines," a copy of which is attached.
It provides a process to assure that proposed projects make sense from an environmental standpoint and that they will not be authorized unless there is a sound basis to conclude that they will result in water quality improvements at a site.
It provides assurances that a remediating party will carry out a project as approved, in an environmentally sound manner, without imposing unnecessary and infeasible standard NPDES permit requirements.
It provides that after a remediation project is completed a remediating party can terminate its permit without open-ended, continuing responsibility for remaining discharges at a site.
At the same time, it assures that the existing legal liability of those properly responsible for discharges at an abandoned or inactive mine site, prior to a Good Samaritan project, is not affected in any way.
The Western Governors' Association has expressed its support for S. 1787 in the attached letter dated October 19, 1999, although we believe two issues need further consideration: 1) CERCLA liability; and 2) contractor liability.
The current proposal has been criticized both as too narrow and as too broad. Some who see the proposal as too narrow would like the provisions regarding who can be a remediating party to be expanded, so that more entities can pursue Good Samaritan projects. Some who see the proposal as too broad believe that all remediation efforts should be subject to a specific cleanup standard, or that no exceptions should be allowed to the usual Clean Water Act requirements.
What is important is that some variation on the current proposal be adopted soon. Few, if any, other revisions to the Clean Water Act would result in such immediate or certain improvements to water quality as the prompt adoption of an effective Good Samaritan provision. Projects in various stages of planning and design are ready to move forward in several Western states if the current disincentives to such remediation projects can be eliminated. A list of several examples of such projects is attached as an addendum to this testimony. On the other hand, if action on this bill is delayed by those that feel it does not give them 100 percent of what they want, no projects will go forward and our Western streams will remain polluted.
It is important to note that this bill would not be and has not been represented as a comprehensive solution to the environmental problems created by abandoned or inactive mines. In particular, it does not provide any new resources, which is another major constraint to further progress in obtaining cleanup. However, there are some resources currently available and meaningful cleanup projects will go forward if the current liability cloud is removed. For example, section 319 of the Clean Water Act provides one source of project funding that was used by states to help undertake these projects until the liability issue was recognized. The provision in S. 1787 that would assure that this funding source remains available for these projects in the future is a critical element of the proposal. Additional funding sources will be needed in the future. However, until the liability issue is resolved, there is very little incentive for states or others to initiate major efforts to identify potential additional resources for abandoned or inactive mine remediation.
The Western Governors commend the sponsors for introducing the "Good Samaritan Abandoned or Inactive Mine Waste Remediation Act" in an effort to eliminate current disincentives to voluntary, cooperative efforts aimed at reducing water quality impacts from abandoned or inactive mines. WGA remains willing to work with those that seek to improve this concept.
Adoption of a Good Samaritan bill will result in immediate and significant improvement in the water quality of some of our country's most polluted streams. Inaction will result in continued degradation for the foreseeable future of many Western streams impacted by historical mining activity. On behalf of the Western Governors' Association, I therefore urge passage of Good Samaritan legislation this Congress, so that states may once again get on with the business of cleaning up our proverbial neighborhoods.
California
Penn Mine Copper mine, Calaveras County
Because of a lawsuit in the 1990s, the Central Valley Board was compelled to do major remediation because the court found the Board was an NPDES discharger based on remedial work it did in the 1970s. Remediation is nearly complete, but the Board risks liability for residual seeps and other discharges.
Walker Mine Copper Mine, Plumas County
Regional Board spent over 30 years unsuccessfully suing the mine owner to cleanup acid mine drainage discharge that sterilized a creek. Finally, the Board plugged mine shaft and accepted settlement from mine owner's estate. The Board remains liable for any point source discharge that may occur from the plug.
Buena Vista/Klau Mine Mercury Mine, San Luis Obispo County Central Coast Board has unsuccessfully tried to secure cleanup from mine owner for over 20 years. These mines are the source of 80 percent of mercury pollution in Nacimiento Reservoir, which is under a fishing advisory. US EPA is willing to do cleanup on condition California takes over the long-term operation and maintenance. The state is unwilling to accept liability for NPDES discharges at site and so relieve the recalcitrant mine owner of responsibility. Cleanup may be delayed until potential state liability is resolved.
Mt. Diablo Mine Mercury Mine, Contra Costa County
Owner discovered mine after spending entire savings to buy land for a residence. Mine pollution has sterilized a creek and caused a fishing advisory in a nearby reservoir. With liability protection, a government agency could do partial remediation to significantly reduce pollutant discharges from the site. Without liability protection it is likely no remediation will occur.
Stowell Mine, Keystone Mine, and Mammoth Mine, Shasta County
In 1991, the Board secured $1 million from the State Cleanup Account to hire consultants to perform remedial work at those three mines. Although a responsible party eventually came forward to take remedial action, the Board decided to return the funds rather than apply them to mine cleanup because of liability concerns (brought on by the Penn Mine case.)
Balaklala and Shasta King Mines, Shasta County
These mines discharge abandoned mine drainage to West Squaw Creek, a tributary to Shasta Lake. Impacts include elimination of aquatic life in the stream below the mines, frequent fish kills where the stream enters Shasta Lake and degradation of recreational/aesthetic uses in this part of the National Recreation Area. The owner, Alta Gold Company, has performed some remedial work but final site restoration is probably beyond their capability. There is a unique opportunity here for Alta Gold to sell the property to the public resource agencies for development of an off-road vehicle park with funds from the sale to be used for mine drainage control. This arrangement could provide substantial funds for problem solution but is presently not being actively pursued due to the liability issue.
Mammoth Mine, Shasta County
This large abandoned copper mine discharges abandoned mine drainage to Little Backbone Creek and Shasta Lake. Impacts are similar to those previously described for the West Squaw Creek mines. The owner, Mining Remedial Recovery Company, has implemented a comprehensive mine sealing program but the results to date have been disappointing. Substantial modification of the sealing program or a new control strategy, such as collection and treatment, will be required to address the problem. The issue is further complicated by a lawsuit filed by the California Sport Fishing Protection Alliance. We believe that a cooperative effort at Mammoth Mine between the owners, resource protection groups, and the agencies would be more effective than lawsuits and enforcement orders.
Greenhorn Mine, Shasta County
This acid mine west of Redding discharges abandoned mine drainage to Willow Creek which is a tributary to the Wiskeytown Lake National Recreation Area. The discharge impacts aquatic life and recreational uses in the area. There is no responsible owner capable of implementing a control program. A reclamation feasibility study has been prepared by the Department of Water Resources (under contract to Regional Board), but no work has been done. Water quality and beneficial use improvements could be achieved through a combination of surface drainage control and mine sealing.
Corona Mine and Abbott Mine, Lake County
These two mercury mines would each benefit from actions to contain tailings and solid wastes and to divert surface waters. Staff estimates a cost of $1-2 million per mine.
Afterthought Mine, Shasta County
Proposed actions at this mine include sealing the multiple portals, removing and covering the tailings pond, and rehabilitating the access road.
Bully Hill Mine, Shasta County
Staff proposes solid waste containment and portal scaling at this site.
S. 1787 would also support watershed cleanups. US EPA is working on regulations to permit publicly owned sewage treatment works (POTWS) to cleanup pollution within a watershed as an alternative to removing pollutants that exist at very low levels in the POTWS' discharge. This will provide much greater removal of pollutants from watersheds and will help California comply with its mandate to implement Total Maximum Daily Load allocations. However, POTWS are not likely to cleanup abandoned mines under a watershed program unless they get some liability protection.
Colorado
St. Kevin Gulch, Lake County
The St. Kevin Gulch project is located northwest of Leadville in the small perennial drainage known as St. Kevin Gulch. Mine drainage from the lower Griffin Tunnel flows as a series of springs from the waste rock pile approximately two miles above the confluence of St. Kevin Gulch and Tennessee Creek. The mine drainage has a pH of 2.6 to 2.9 and has rendered St. Kevin Gulch virtually devoid on any aquatic life below the drainage, and has an adverse effect on trout reproduction in Tennessee Creek. The mine drainage is to be treated using a combination of an anoxic limestone drain and a sulfate reducing bioreactor (wetland). An interceptor trench has been completed to help site the treatment system. The project is in the final design state. Commitments for materials, labor, services, and cash were obtained from local individuals, Lake County, and the USGS. These commitments have at least partially been withdrawn and the project postponed because of concerns about assumption of liability. The estimated construction cost is $122,300.
McClelland Tunnel, Clear Creek County
The McClelland Tunnel project is located along Interstate 70, one-half mile southeast of the town of Dumont. The McClelland Tunnel drains approximately 15 gallons per minute of metal laden water into Clear Creek. The site also contains mine and mill waste along Clear Creek , a county road, and a State Highway. The Colorado School of Mines, Department of Transportation, Department of Public Health and Environment, Clear Creek County, and Coors have been collaborating with DMG on this project. The DMG's part of the project is to construct a small sulfate reducing bioreactor and a small aerobic wetland to treat the mine drainage. Final designs for the water treatment aspects of the project have been prepared and are ready to be bid. The project portion has been halted because of the concern of the State for incurring perpetual liability for maintaining the treatment system. The estimated cost of this project is $26,800.
Perigo, Gilpin County
The Perigo project is located approximately 6 miles north of Central City in a small perennial steam known as Gamble Gulch. The Perigo mine drains a average of 70 gallons per minute of pH2.9-3.9 metal laden water. Gamble Gulch below the mine drainage is virtually devoid of aquatic life for six miles before its confluence with South Boulder Creek. In 1989 and 1990, a small project was completed in this drainage to remove mine waste rock and mill tailings from the steam bed in two locations and construct a test treatment system at the Perigo mine. The proposed treatment techniques for this site include an aqueous lime injection system, settling pond and sulfate reducing bioreactor, which will be capable of treating all the mine drainage. The design for the project is completed but will not be bid out for construction until additional baseline information of the watershed is collected. If liability issues are not resolved at that time, the project will not proceed. These estimated cost for this project is $114,640.
Pennsylvania Mine, Summit County
The Pennsylvania Mine project is located just east of Keystone ski area on Peru Creek. Acidic metal laden water drains from caved mine workings making the creek biologically dead. Though a 319 grant from EPA, DMG has installed an innovative hydro-powered water treatment mechanism and a settling pond. The drainage water is diverted form the mine adit into a hydropower turbine, thus generating the power to drive a feeder that doses limestone to buffer the water. Once in the pond metal precipitate can settle out, and the effluent progresses through three wetland cells. Here, sulfate reducing bacteria and low oxygen waters remove much of the remaining acid and metal. The project is 80% complete with only a redesigned feeder mechanism necessary. The project is on hold pending resolution of NPDES liability issues.
Animas River Mine Sites, San Juan County
The Division of Minerals and Geology in conjunction with the Animas River Stakeholders Group has investigated hundreds of mine sites in the vicinity of Silverton. The resulting feasibility reports for Mineral Creek, Cement Creek, and the Animas River have identified at least two dozen sites having a significant impact on the Animas River water quality. Treatment recommendations have been made but project work can not proceed until the NPDES issue is resolved.
Montana
The State of Montana has inventoried its abandoned non-coal mine sites. Thus far, Montana has found 245 abandoned mines which have the potential to impact surface waters because they are within 100 feet of a stream. Of these, 71 sites have discharging adits (mine entrances emitting acid mine drainage into the environment). 89 of 245 sites are already known to be degrading water quality. These 89 sites have caused downstream water quality samples to exceed at least one Clean Water Act parameter either the Maximum Contaminant Limits or Aquatic Life Standards.
Given recent developments in federal case law, Montana officials are gravely concerned that cleanup projects addressing abandoned mines which are known to be seriously degrading the state's water quality will be halted due to Clean Water Act liability concerns.
Nevada
Tybo Tailings Site, Nye County, Nevada
The Tybo Tailings Site is located in the Tybo mining district in Nye County, Nevada. It is approximately 58 miles east of Tonopah on U.S. Highway 6 and thence 6.5 miles northwest on the Central Nevada Test Sites Base Camp access road. The site is located in the Hot Creek hydrographic basin. Tybo Creek flows from Tybo Canyon in the Hot Creek Range and then easterly into the Hot Creek Valley. The tailings are the result of mining activity, which began around 1866. Silver, lead, zinc, copper, mercury, and small amounts of gold were recovered. By 1877, Tybo was the second largest lead producing area in the United States after Eureka, Nevada. Production continued on an intermittent basis until around 1940. Some very minor production occurred in the 1950's and early 1960's. Total recorded production from the district is valued at over $9 million.
The tailings impoundment is located just downstream from the mouth of Tybo Canyon. The actual impoundment is located in an ephemeral wash and is about 1,000 feet long and up to 600 feet wide (approximately 12 acres total). The dam has been breached, allowing tailings to migrate down the creek for at least 6 miles. The tailings appear to be about 20 feet thick at the dam. The tailings are highly acidic (surface water on the tailings has a pH of 1-3), have a strong sulfur smell, and are stained brown-orange to purple, red and black. Surface water has eroded channels into the tailings. All vegetation along the migration path from the impoundment is stressed or dead for at least 3 miles downstream.
Preliminary studies have detected arsenic and lead range up to 10,000 ppm, zinc up to 7,500 ppm, and copper up to 233 ppm. At this time, the State of Nevada has recommended evaluating groundwater use and the habitat of threatened and endangered species. Additional recommendations include measures to prevent wildlife from drinking surface water, and restricting site access by fencing and gating. NDOW has expressed concern about the effects on plants and wildlife and groundwater.
Rip Van Winkle Mine, Elko County, Nevada
The Rip Van Winkle Mine site is located in the Merrimac mining district, Elko County, Nevada. The site is located at approximately 7,000 feet above mean sea level on Lone Mountain in the Independence Mountains, and is situated in the Maggie Creek Area hydrographic basin, which flows into the Humboldt River near Elko, Nevada. The Rip Van Winkle Mine recorded first production in 1918. It was the only active producer in the district after 1949 with limited production of lead, zinc and silver through 1966.
The mine site consists of shafts and underground workings, a mill, building foundations and several cabins, waste dumps and tailing impoundments. The tailings impoundments cover approximately 3 acres and contain acid-generating materials. Vegetation on the site is sparse and in the vicinity of the tailings, plants show signs of stress. Impacts to Humboldt River flows are unknown at present, but may be impacting endangered species.
Norse-Windfall Mill Site, Eureka County, Nevada
The Norse-Windfall Mill Site is located 5 miles south of Eureka, Nevada. It is located in the Diamond Valley hydrographic basin in which perennial springs are prolific in the mountainous regions south of Eureka, with many flowing springs existing at the mill site. The Windfall Mine was discovered in 1908, and was operated intermittently for about 30 years as an underground operation with a cyanide vat leach facility. Around 1968, Idaho Mining Corp. acquired the property and mined the same ore body via open pit methods. Between 1975 and 1978 the Windfall Pit, and associated cyanide heap-leach piles, waste dumps, mill process building, office and laboratory were constructed. The last operator of the site was Norse Windfall Mines, Inc. The site has been abandoned since 1989 and little or no reclamation has occurred. In July 1994, the Nevada Division of Environmental Protection conducted a compliance inspection of the site and noted that unmaintained process components and materials left scattered about the property may have the potential to cause environmental damage by degrading the waters of the state.
Springs located within the site exceed the Nevada Water Quality Standards for arsenic, mercury, nickel, and cyanide. Within a 4-mile radius of the site, six municipal springs and one domestic well provide drinking water for Eureka. Water from the nearby springs are blended and pumped into 2 water tanks located just outside of Eureka. This water serves as the main water supply for the entire town.
South Dakota South Dakota has been working on reclaiming two small hardrock mines that occur in the Black Hills with EPA and the federal agencies that administer the land upon which the mines are located. They are the Minnesota Ridge mine (Forest Service and private land) and the Belle Eldridge mine (BLM land).
South Dakota also recently completed an inventory of abandoned hardrock mines occurring in the Black Hills of western South Dakota in conjunction with the South Dakota School of Mines and Technology. Approximately 900 mines were identified in a four-county area (about 700 on private land and about 200 on federal land). The inventory purpose was primarily to identify abandoned mine locations, so little or no assessment work was completed for many of the mines identified. Many of these historic mines pose significant safety hazards, and some pose environmental problems, including impacts to water quality. The Good Samaritan bill would certainly be an incentive for getting some of these mines cleaned up.
The Honorable Max Baucus
Senator of Montana
SH-511 Hart Senate Office Building
Washington, D.C. 20510-2602
Dear Senator Baucus:
The Western Governors commend you for introducing the "Good Samaritan Abandoned or Inactive Mine Waste Remediation Act." As stated in WGA Resolution 98-004 (attached), the Western Governors believe that there is a need to eliminate current disincentives in the Clean Water Act for voluntary, cooperative efforts aimed at improving and protecting water quality impacted by abandoned or inactive mines. We believe your bill would effectively and fairly eliminate such disincentives, and we therefore urge its passage this Congress.
Inactive or abandoned mines are responsible for threats and impairments to water quality throughout the western United States. Many also pose safety hazards from open adits and shafts. These historic mines pre-date modern federal and state environmental regulations which were enacted in the 1970s. Often a responsible party for these mines is not identifiable or not economically viable enough to be compelled to clean up the site. Many stream miles are impacted by drainage and runoff from such mines, creating significant adverse water quality impacts in several western states.
Recognizing the potential for economic, environmental and social benefits to downstream users of impaired streams, western states, municipalities, federal agencies, volunteer citizen groups and private parties have come together across the West to try to clean up some of these sites. However, due to questions of liability, many of these Good Samaritan efforts have been stymied.
To date, EPA policy and some case law have viewed inactive or abandoned mine drainage and runoff as problems that must be addressed under Section 402 of the CWA the National Pollutant Discharge Elimination System (NPDES) permit program. This, however, has become an overwhelming disincentive for any voluntary cleanup efforts because of the liability that can be inherited for any discharges from an abandoned mine site remaining after cleanup, even though the volunteering remediating party had no previous responsibility or liability for the site, and has reduced the water quality impacts from the site by completing a cleanup project.
The "Good Samaritan Abandoned or Inactive Mine Waste Remediation Act" would amend the Clean Water Act to protect a remediating agency from becoming legally responsible for any continuing discharges from the abandoned mine site after completion of a cleanup project, provided that the remediating agency -- or "Good Samaritan"-- does not otherwise have liability for that abandoned or inactive mine site and implements a cleanup project approved by EPA. The Western Governors support this bill, and urge that it be enacted this Congress.
Sincerely,
Marc Racicot, Governor of Montana
Bill Owens, Governor of Colorado
Michael O. Leavitt, Governor of Utah