The Idaho Mining Association supports the concept of encouraging and promoting the remediation of abandoned or inactive mined land through a good Samaritan program. S. 1787, however, is seriously flawed and will not achieve the desired objective of remediating these areas.
The State of Idaho has a long history of mining activity and, as a result, the state possesses a large number of abandoned mine sites. Our industry is aware of the challenges presented by abandoned and inactive mines and has worked with the State of Idaho to address these challenges.
Good Samaritan legislation at the federal level has the potential to be a powerful and effective tool for helping to address abandoned and inactive mines. It is possible to craft legislation that would not only provide significant incentives for parties to engage in remediating these mines but also to remove the existing remediation obstacles. Unfortunately, S. 1787 is not that legislation.
From a mining industry perspective, there are numerous concerns with S. 1787. Today, I would like to highlight three of these concerns: (1) The program established in S. 1787 is far too limited with respect to both the areas that qualify for remediation and the entities that may engage in remediation; (2) the bill establishes a standard for water quality that is so stringent it will act as a disincentive to participation in the program; and (3) the bill contains other major disincentives to participation such as exposing parties who remediate under the program to potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).
I will briefly amplify each of these concerns. First, the bill has an overly strict definition of "abandoned or inactive mined land" resulting in an unnecessary limit on eligibility. The bill excludes areas that are on CERCLA's National Priorities List (NPL), proposed for inclusion on the NPL, or the subject of a planned or ongoing response or natural resource damages action. This provision eliminates large areas throughout the country from eligibility. For example, the Coeur d'Alene Basin in Idaho, where there is a heavy concentration of abandoned mines, would be excluded from eligibility under the bill. This is an area that might benefit from a self-structured good Samaritan program. If improvement in water quality is the goal, then deferring in this way to CERCLA is not the answer unless you are satisfied waiting a decade or more to see remedial action taken, and then only at an inordinate cost.
S. 1787 is also unduly restrictive with respect to the parties that are eligible to engage in good Samaritan remediation. The bill limits participation to the United States, states, Indian tribes and municipalities. However, the United States cannot be a remediating party with respect to abandoned or inactive mined land located on federal land. In addition, the bill provides, with one narrow exception, that a remediating party cannot apply for a permit if the abandoned or inactive mined land is owned by the remediating party. If the United States cannot remediate on land it owns, and in general, neither can a state, Indian tribe or municipality, then what land is eligible for remediation and who is eligible to remediate it? It seems that the bill has so many restrictions in place that not much land will be eligible for remediation and not many entities will qualify as remediation parties. In order to maximize the number of areas that remediated, S. 1787 needs to be less restrictive, and the definition of remediating party needs to include private entities as well as governmental agents and contractors.
Second, a remediation plan, in order to be approved, must demonstrate with "reasonable certainty" that it will result in "an improvement in water quality to the maximum extent practicable, taking into consideration the resources available to the remediating party for the proposed remediation activity." The standard for remediation should, instead, be "an improvement in surface water quality." By adding "to the maximum extent practicable" an overly stringent standard is created that will lead to protracted debate as to its meaning and will at as a serious disincentive to participating in the program. In addition, the requirement to demonstrate a "reasonable certainty" that maximum water quality improvement will occur is likely to discourage the use of innovative technologies.
Third, S. 1787 contains several additional disincentives to participation in the program. Even if an eligible party (e.g., the United States) finds a land area that meets the bill's overly restrictive eligibility criteria, and the party is willing to brave the requirement to improve water quality "to the maximum extent practicable," there are additional requirements in the bill that discourage participation in the program. I will mention one of these disincentives. The purpose of the bill is to allow a limited class of eligible parties to remediate a limited number of eligible abandoned or inactive mined lands without incurring liability under sections 301, 302, and 402 of the Federal Water Pollution Control Act, commonly known as the Clean Water Act. What the bill fails to address, and therefore is one of its fatal flaws, is the fact that parties will not go near an area if the potential exists that CERCLA liability will attach in the future. Because of CERCLA's draconian liability system (retroactive, strict, joint and several liability) and the fact that liability attaches to "any person who owned, operated, or otherwise controlled activities" at the facility, no party would risk potential CERCLA liability attaching in the future to remediate under this bill. The bill excludes CERCLA sites from eligibility but a non-CERCLA site today could be a CERCLA site tomorrow and anyone who "operated" at the area would be liable under CERCLA section 107(a). The ultimate disincentive to remediation under S. 1787 is the fact that every remediating party will face the prospect that the area in question will some day be subject to CERLA and, therefore, subject them to retroactive, strict, joint and several liability.
In closing, let me reiterate that the Idaho Mining Association supports the concept of encouraging the remediation of abandoned or inactive mined lands through a good Samaritan program. We believe that any such legislation, to be effective, should encompass the maximum number of areas and should have a broad definition of remediating parties; should provide clear and reasonable remediation standards; and should provide incentives for participation. S. 1787 fails on all three of these counts by unduly restricting both the type of area that qualifies for the program and the type of parties that may engage in good Samaritan remediation; by imposing a remediation standard that encourages debate and delay and discourages participation; and by failing to remove some current obstacles to engaging in good Samaritan remediation and by imposing new obstacles. For these reasons, S. 1787 would not be an effective tool for encouraging the remediation of abandoned or inactive mined land.
Thank you for the opportunity to testify on S. 1787. Mr. Chairman, I look forward to working with you to craft legislation that would create a meaningful and effective good Samaritan program for abandoned and inactive mined lands.
I would be happy to answer any questions that you or any member of your subcommittee might have.