[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
ABANDONED HARDROCK MINES AND THE ROLE OF NON-GOVERNMENTAL ENTITIES
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON ENERGY AND
MINERAL RESOURCES
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
Thursday, March 15, 2018
__________
Serial No. 115-41
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
28-981 PDF WASHINGTON : 2018
COMMITTEE ON NATURAL RESOURCES
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Chairman Emeritus Madeleine Z. Bordallo, GU
Louie Gohmert, TX Jim Costa, CA
Vice Chairman Gregorio Kilili Camacho Sablan,
Doug Lamborn, CO CNMI
Robert J. Wittman, VA Niki Tsongas, MA
Tom McClintock, CA Jared Huffman, CA
Stevan Pearce, NM Vice Ranking Member
Glenn Thompson, PA Alan S. Lowenthal, CA
Paul A. Gosar, AZ Donald S. Beyer, Jr., VA
Raul R. Labrador, ID Norma J. Torres, CA
Scott R. Tipton, CO Ruben Gallego, AZ
Doug LaMalfa, CA Colleen Hanabusa, HI
Jeff Denham, CA Nanette Diaz Barragan, CA
Paul Cook, CA Darren Soto, FL
Bruce Westerman, AR A. Donald McEachin, VA
Garret Graves, LA Anthony G. Brown, MD
Jody B. Hice, GA Wm. Lacy Clay, MO
Aumua Amata Coleman Radewagen, AS Jimmy Gomez, CA
Daniel Webster, FL
Jack Bergman, MI
Liz Cheney, WY
Mike Johnson, LA
Jenniffer Gonzalez-Colon, PR
Greg Gianforte, MT
John R. Curtis, UT
Cody Stewart, Chief of Staff
Lisa Pittman, Chief Counsel
David Watkins, Democratic Staff Director
------
SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES
PAUL A. GOSAR, AZ, Chairman
ALAN S. LOWENTHAL, CA, Ranking Democratic Member
Louie Gohmert, TX Anthony G. Brown, MD
Doug Lamborn, CO Jim Costa, CA
Robert J. Wittman, VA Niki Tsongas, MA
Stevan Pearce, NM Jared Huffman, CA
Glenn Thompson, PA Donald S. Beyer, Jr., VA
Scott R. Tipton, CO Darren Soto, FL
Paul Cook, CA Nanette Diaz Barragan, CA
Vice Chairman Vacancy
Garret Graves, LA Vacancy
Jody B. Hice, GA Raul M. Grijalva, AZ, ex officio
Jack Bergman, MI
Liz Cheney, WY
John R. Curtis, UT
Rob Bishop, UT, ex officio
CONTENTS
----------
Page
Hearing held on Thursday, March 15, 2018......................... 1
Statement of Members:
Gosar, Hon. Paul A., a Representative in Congress from the
State of Arizona........................................... 1
Prepared statement of.................................... 3
Lowenthal, Hon. Alan S., a Representative in Congress from
the State of California.................................... 4
Prepared statement of.................................... 5
Statement of Witnesses:
Coleman, Autumn, Vice President, National Association of
Abandoned Mine Lands Programs; Program Manager, Abandoned
Mine Lands Program, Montana Department of Environmental
Quality, Helena, Montana................................... 6
Prepared statement of.................................... 8
Questions submitted for the record....................... 16
Graves, Jeff, Director, Inactive Mine Reclamation Program,
Colorado Department of Natural Resources, Denver, Colorado. 29
Prepared statement of.................................... 30
Strohmaier Hon. David, County Commissioner, Missoula County,
Montana.................................................... 23
Prepared statement of.................................... 25
Wood, Chris, President and CEO, Trout Unlimited, Arlington,
Virginia................................................... 17
Prepared statement of.................................... 18
Additional Materials Submitted for the Record:
List of documents submitted for the record retained in the
Committee's official files................................. 50
OVERSIGHT HEARING ON ABANDONED HARDROCK MINES AND THE ROLE OF NON-
GOVERNMENTAL ENTITIES
----------
Thursday, March 15, 2018
U.S. House of Representatives
Subcommittee on Energy and Mineral Resources
Committee on Natural Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 2:09 p.m., in
room 1324, Longworth House Office Building, Hon. Paul Gosar
[Chairman of the Subcommittee] presiding.
Present: Representatives Gosar, Lamborn, Wittman, Tipton,
Hice, Bergman; Lowenthal, Huffman, Beyer, and Soto.
Also present: Representative Gianforte.
Dr. Gosar. The Subcommittee on Energy and Mineral Resources
will come to order. The Subcommittee is meeting today to hear
testimony on abandoned hardrock mines and the role of non-
governmental entities.
I ask unanimous consent that the gentleman from Montana,
Mr. Gianforte, be allowed to sit with the Subcommittee and
participate in the hearing.
Without objection, so ordered.
Under Committee Rule 4(f), any oral opening statements at
hearings are limited to the Chairman, Ranking Minority Member,
and the Vice Chair. This will allow us to hear from our
witnesses sooner and help Members keep to their schedules.
Therefore, I ask unanimous consent that all other Members'
opening statements be made part of the hearing record if they
are submitted to the Subcommittee Clerk by 5 p.m. today.
Without objection, so ordered.
STATEMENT OF THE HON. PAUL A. GOSAR, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Dr. Gosar. Today, the Subcommittee will discuss the problem
of abandoned hardrock mines and the role that non-government
entities can play as a part of the solution. We have held
several hearings in the Subcommittee on the value of domestic
mining. Hardrock mines inject tangible value into the economy,
provide employment opportunities, and contribute to the overall
economic well-being of the United States.
While mining projects today are subject to strict safety
and environmental regulations, this was not always the case.
Abandoned hardrock mines, also known as abandoned mine lands or
AMLs, were mined and deserted before the era of modern
regulations. These historic sites have no current responsible
party, and when left unattended, they may pose health, safety,
or environmental risks to the nearby communities.
Furthermore, the task of reclaiming these sites presents an
ongoing financial burden at the local, state, and Federal
level. While exact numbers are not known, the scale of the AML
problem is extensive and hundreds of thousands of sites may
exist across the country. For instance, Federal agencies spend
about $80 to $85 million every year on hardrock AML reclamation
projects.
However, the United States is lucky enough to have non-
government entities willing to lend their own resources and
expertise to help reclaim abandoned hardrock mines. These NGOs,
which include conservation organizations, watershed groups, and
industry, are third-party actors with no responsibility for
existing damage at AML sites. Unfortunately, liability and
regulatory concerns have discouraged third-party participation
in hardrock AML projects.
In particular, the threat of liability under the
Comprehensive Environmental Response, Compensation, and
Liability Act, also known informally as ``Superfund,'' as well
as the Clean Water Act, are of particular concern. Under
existing law, any individual, corporation, or non-profit acting
on an AML site may be held responsible for historic discharges
at the site, as well as other existing environmental and safety
issues.
Water treatment as regulated by the Clean Water Act is an
especially complicated aspect of AML reclamation. While water
quality at AML sites may be drastically improved, Clean Water
Act standards can be unfeasible and even impossible to meet,
even with highly advanced treatment systems.
At the risk of a potential lawsuit, third-party actors may
avoid projects they might otherwise try to improve. To truly
empower NGO participation in abandoned mine cleanups, they must
have certain protections from undeserved liability.
Let's not forget that these AML sites are already polluted,
with the polluters long gone. Many of these sites are already
in violation of the Clean Water Act requirements and have been
for years. NGOs volunteering cleanup efforts today can help
improve an already bad situation. While a so-called ``polluter
pays'' policy is fair in principle, making groups who clean up
pollution pay is not.
Some states and local communities have begun to address
this problem by establishing their own public-private
partnerships. Pennsylvania has shown positive results from a
1999 law which gives protections to third-party groups
undertaking AML reclamation projects. Other states are
interested in similar endeavors but the lack of a Federal
framework and the high vulnerability to lawsuits makes that
difficult.
Another hurdle to effective AML remediation is a lack of
one Federal agency with full authority over this issue. This
role was once filled by the U.S. Bureau of Mines, but the
Bureau was closed in 1996. Today, several agencies share AML
reclamation responsibilities, causing confusion and hindering
efforts for an accurate nationwide inventory.
The problem of abandoned hardrock mines is a nationwide
issue that may take decades, if not longer, to resolve. Non-
government entities can be a powerful force in reclamation
efforts, and empowering them to act will benefit communities
across the United States.
I want to thank the witnesses for being here and look
forward to hearing from them today.
[The prepared statement of Dr. Gosar follows:]
Prepared Statement of the Hon. Paul A. Gosar, Chairman, Subcommittee on
Energy and Mineral Resources
Today, the Subcommittee will discuss the problem of abandoned
hardrock mines, and the role that non-government entities can play as
part of the solution.
We have held several hearings in this Subcommittee on the value of
domestic mining. Hardrock mines inject tangible value into the economy,
provide employment opportunities, and contribute to the overall
economic well-being of the United States.
While mining projects today are subject to strict safety and
environmental regulations, this was not always the case. Abandoned
hardrock mines, also known as ``abandoned mine lands'' or AML, were
mined and deserted before the era of modern regulations. These historic
sites have no current responsible party, and when left unattended, they
may pose health, safety, or environmental risks to the nearby
communities.
Furthermore, the task of reclaiming these sites presents an ongoing
financial burden at the local, state, and Federal level. While exact
numbers are not known, the scale of the AML problem is extensive, and
hundreds of thousands of sites may exist across the country. For
instance, Federal agencies spend about $80-$85 million every year on
hardrock AML reclamation projects.
However, the United States is lucky enough to have non-government
entities willing to lend their own resources and expertise to help
reclaim abandoned hardrock mines. These NGOs, which include
conservation organizations, watershed groups, and industry, are third-
party actors with no responsibility for existing damage at AML sites.
Unfortunately, liability and regulatory concerns have discouraged
third-party participation in hardrock AML projects.
In particular, the threat of liability under the Comprehensive
Environmental Response, Compensation, and Liability Act, also known
informally as ``Superfund,'' as well as the Clean Water Act are of
particular concern. Under existing law, any individual, corporation, or
non-profit acting on an AML site may be held responsible for historic
discharges at the site, as well as other existing environmental and
safety issues.
Water treatment as regulated by the Clean Water Act is an
especially complicated aspect of AML reclamation. While water quality
at AML sites may be drastically improved, Clean Water Act standards can
be unfeasible and even impossible to meet, even with highly advanced
treatment systems. At the risk of a potential lawsuit, third-party
actors may avoid projects they might have otherwise improved. To truly
empower NGO participation in abandoned mines cleanup, they must have
certain protections from undeserved liability.
Let's not forget that these AML sites are already polluted, with
the polluters long gone. Many of these sites are already in violation
of Clean Water Act requirements, and have been for years. NGOs
volunteering clean-up efforts today can help improve an already bad
situation. While a so-called ``polluter pays'' policy is fair in
principle, making groups who clean up pollution pay, is not.
Some states and local communities have begun to address this
problem by establishing their own public-private partnerships.
Pennsylvania has shown positive results from a 1999 law, which gives
protections to third-party groups undertaking AML reclamation projects.
Other states are interested in similar endeavors, but the lack of a
Federal framework and the high vulnerability to lawsuits makes that
difficult.
Another hurdle to effective AML remediation is the lack of one
Federal agency with full authority over the issue. This role was once
filled by the U.S. Bureau of Mines, but the Bureau was closed in 1996.
Today, several agencies share AML reclamation responsibilities, causing
confusion and hindering efforts for an accurate nationwide inventory.
The problem of abandoned hardrock mines is a nationwide issue that
may take decades to resolve. Non-government entities can be a powerful
force in reclamation efforts, and empowering them to act will benefit
communities across the United States.
I want to thank the witnesses for being here and look forward to
hearing from them today.
______
Dr. Gosar. With that, I now recognize the gentleman from
California, Ranking Member Mr. Lowenthal, for his 5 minutes.
STATEMENT OF THE HON. ALAN S. LOWENTHAL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Dr. Lowenthal. Thank you, Mr. Chairman. Thank you, Mr.
Chairman. Thank you, Mr. Chairman. Three times, remember, three
thank you's. And thank you for your continued focus on this
issue that affects so many communities, particularly in the
West. You have been a champion on this issue.
As we have discussed in this Subcommittee many times over
the past few years, the roughly one-half million abandoned
hardrock mines that litter this country are a huge public
safety and environmental problem. Yet, unlike coal, we have no
dedicated source of funding for cleaning these sites up.
The idea behind the coal abandoned mine land fee was that
the coal industry had a responsibility to address its own
historical legacy of pollution. The hardrock mining industry
has no less of a responsibility than the coal industry.
This does not mean, though, that I feel they should be the
only source of funding for this effort. I certainly do support
providing opportunities for Good Samaritans to volunteer their
own time and their own money toward cleaning up abandoned
mines, but that is no substitute for a robustly-funded program
that makes the mining industry pay their fair share to help
solve a problem they helped to create.
The lack of coordination between agencies on cleaning up
abandoned hardrock mines is another handicap in this effort,
and an issue that I really appreciated being raised in the
Majority's memo on this hearing.
This also ties in with the issue of hardrock mine
permitting, which we have also discussed numerous times in this
Committee. For coal mines, there is a specific law, the Surface
Mining Control and Reclamation Act, that deals with permitting
and establishes, really, the coordinating agency that oversees
that program as well as the abandoned coal mine cleanup.
With hardrock mining, no such law exists. Instead, we are
still working under the Mining Law of 1872, an obsolete,
creaky, absolutely decrepit law that is as relevant to modern
mining as the Pony Express is to smartphones.
I think it was President Ulysses S. Grant who passed the
Mining Law of 1872, very liberal and very progressive, not
because he wanted to, it was because the West needed more
development. Well, I have to tell President Grant, the West has
developed. We don't need to continue to do that any longer.
So, instead of having a coherent permitting system for
hardrock mining, our land managers have to adapt other more
general laws, such as the Federal Land Policy and Management
Act, the Safe Drinking Water Act, the Clean Air Act, and more,
in order to get the job done. It simply does not make any
sense. It is long past time to comprehensively reform the
Mining Law of 1872.
Not only could we create a permitting system designed
specifically for hardrock mining and establish a reclamation
program for abandoned hardrock mines, we could also finally
make it so that companies can no longer extract billions of
dollars of gold, silver, copper, and other precious metals from
public lands without paying a dime of royalties to the American
taxpayers.
We could provide more certainty for mining companies,
particularly when it comes to identifying which of our public
lands are simply too precious or vulnerable to be mined. And we
could finally get rid of the idea that mining is always the
best and highest use of our public lands.
We do need mines. I am not saying we don't. We do need
mines, there is no question about it. But we don't need to
continue operating under a law that says mines are all we need.
We need parks, wilderness, hunting grounds, rivers to canoe
on, and breathtaking vistas. And we need to ensure that these
things are still around for our children and our grandchildren
to enjoy.
That is why I am working with Ranking Member Grijalva on a
new bill to reform the Mining Law of 1872. And I hope once we
introduce that this spring, we will be able to start talking
about comprehensive mining reform in this Committee.
I thank the witnesses for being here, and I yield back the
balance of my time.
[The prepared statement of Mr. Lowenthal follows:]
Prepared Statement of the Hon. Alan S. Lowenthal, Ranking Member,
Subcommittee on Energy and Mineral Resources
Thank you, Mr. Chairman, and thank you for your continued focus on
this issue that affects so many communities, particularly in the West.
As we have discussed in this Subcommittee many times over the past
few years, the roughly half-million abandoned hardrock mines that
litter this country are a huge public safety and environmental problem.
Yet, unlike coal, we have no dedicated source of funding for cleaning
these sites up.
The idea behind the coal abandoned mine land fee was that the coal
industry had a responsibility to address its own historical legacy of
pollution. The hardrock mining industry has no less of a responsibility
than the coal industry.
This does not mean I feel that they should be the only source of
funding for this effort. I certainly support providing opportunities
for Good Samaritans to volunteer their own time and their own money
toward cleaning up abandoned mines. But that is no substitute for a
robustly-funded program that makes the mining industry pay their fair
share to help solve a problem they helped create.
The lack of coordination between agencies on cleaning up abandoned
hardrock mines is another handicap in this effort, and an issue that I
appreciated being raised in the Majority's memo on this hearing.
This also ties in with the issue of hardrock mine permitting, which
we have also discussed numerous times in this Committee. For coal
mines, there is a specific law--the Surface Mining Control and
Reclamation Act--that deals with permitting and establishes the
coordinating agency that oversees that program as well as abandoned
coal mine cleanup.
With hardrock mining, no such law exists. Instead, we are still
working under the Mining Law of 1872, an obsolete, creaky, absolutely
decrepit law that is as relevant to modern mining as the Pony Express
is to smartphones.
Permits aren't needed under the Mining Law of 1872. The whole law
is designed to give land and minerals away for next to nothing, not
ensure that mines are built and operated in a responsible manner.
So, instead of having a coherent permitting system for hardrock
mining, our land managers have to adapt other more general laws, such
as the Federal Land Policy and Management Act, the Safe Drinking Water
Act, the Clean Air Act, and more, in order to get the job done. It
simply doesn't make sense. It is long past time to comprehensively
reform the Mining Law of 1872.
Not only could we create a permitting system designed specifically
for hardrock mining, and establish a reclamation program for abandoned
hardrock mines, we could also finally make it so that companies can no
longer extract billions of dollars of gold, silver, copper, and other
precious metals from public lands without paying a dime of royalties to
the American taxpayers.
We could provide more certainty for mining companies, particularly
when it comes to identifying which of our public lands are simply too
precious or vulnerable to be mined. And we could finally get rid of
this idea that mining is always the best and highest use of our public
lands.
We need mines--there is no question about that. But we don't need
to continue operating under a law that says mines are all we need.
We need parks, wilderness, hunting grounds, rivers to canoe on, and
breathtaking vistas, and we need to ensure that these things are still
around for our children and grandchildren to enjoy.
That's why I'm working with Ranking Member Grijalva on a new bill
to reform the Mining Law of 1872, and I hope once we introduce that
this spring, we'll be able to start talking about comprehensive mining
reform in this Committee.
I thank the witnesses for being here, and I yield back the balance
of my time.
______
Dr. Gosar. I thank the Ranking Member.
I am now going to introduce Mr. Gianforte for two witness
introductions.
Mr. Gianforte. Thank you, Mr. Chairman. I am very pleased
that two of my fellow Montanans are here today.
I would first like to introduce Ms. Autumn Coleman, the
Program Manager for the Abandoned Mines Lands Program at the
Montana Department of Environmental Quality. In addition to her
experience with abandoned mines in Montana, she is also Vice
President of the National Association of Abandoned Mine Lands
Programs and can offer a national perspective on this issue.
Second, I would like to introduce another constituent of
mine from Missoula, Missoula County Commissioner, David
Strohmaier.
Thank you both for being here today. I yield back.
Dr. Gosar. I thank the gentleman. I would like to introduce
our two other witnesses.
First, a friend of mine, Mr. Chris Wood, President and
Chief Executive Officer of Trout Unlimited. Thanks, Chris.
And Mr. Jeff Graves, Director of the Inactive Mine
Reclamation Program at the Colorado Department of Natural
Resources.
Let me remind the witnesses that under Committee Rules,
they must limit their oral testimony to 5 minutes. Our lights
are automatic. For the first 4 minutes, there is a green light.
When it turns yellow, start summarizing. When you see it turn
red, we are going to cut you off, OK? Just that quick. We want
to make sure that everybody has some interaction with some
questions for you.
I would like to now recognize Ms. Coleman for your 5
minutes. Thank you.
STATEMENT OF AUTUMN COLEMAN, VICE PRESIDENT, NATIONAL
ASSOCIATION OF ABANDONED MINE LANDS PROGRAMS; PROGRAM MANAGER,
ABANDONED MINE LANDS PROGRAM, MONTANA DEPARTMENT OF
ENVIRONMENTAL QUALITY, HELENA, MONTANA
Ms. Coleman. Thank you. Good afternoon, Mr. Chairman and
members of the Committee. My name is Autumn Coleman and I am
the Montana Abandoned Mine Lands Program Manager, as well as
the Vice President of the National Association of Abandoned
Mine Lands Programs. I am honored to appear here today on
behalf of the state of Montana and the AML Association.
Throughout the country, state and tribal AML programs are
working hard to return lands and waters impacted by legacy
hardrock mining to productive use. But available resources are
very limited in comparison to the scale of the problem. Every
source of help is needed to contend with that problem, but
current circumstances constrain AML programs' efforts and deter
motivated volunteers from assisting in that work. A Good
Samaritan policy holds the potential to unbind the AML
programs' hands and allow our volunteer partners to lend
theirs.
While it is difficult, as you said, to put an exact number
on the total hardrock AML costs or produce a perfectly accurate
inventory, there is no question that the problem is massive and
pervasive.
To give an example of my home state, Montana has thousands
of abandoned hardrock mines, with over 200 discharging adits.
Between mine waste left in creeks and rivers and acid mine
drainage coming from those mines, Montana also has 2,500 miles
of rivers and streams polluted by abandoned mines.
For other examples, government sources report that Arizona
has an estimated 50,000 and California has 47,000 abandoned
mines. Various sources, as you pointed out, cite over half a
million abandoned hardrock mines nationwide. The price tag on
these public safety and environmental liabilities could be in
the tens of billions of dollars.
Recognizing the economic environmental and social benefits
of addressing public safety and restoring lands and rivers
impaired by abandoned hardrock mines, AML programs,
municipalities, Federal agencies, volunteer citizen groups, and
private parties have come together across the West to try to
clean up some of these sites. Unfortunately, the existing state
and Federal grants do not provide consistent or adequate
funding.
To address the hardrock abandoned mine land problem, there
is no question that the greatest need is funding. That is where
our Good Samaritan volunteers come in to try to help fill that
gap. To empower our Good Samaritans, the first step is to solve
a thorny legal problem that is keeping our resources on the
sidelines.
In Montana, I have had the privilege of working with
several Good Samaritans including Trout Unlimited and local
government agencies. These groups extend the reach of limited
government funds by providing matching funding from outside
resources.
The Montana AML program in its successful partnership with
Powell County Conservation District and Trout Unlimited was
successful in raising funds to reclaim the Lilly Orphan Boy
Mine. Together, we have removed toxic mine waste from the banks
and flood plain to restore Telegraph Creek, we stabilized a
dangerous mine waste embankment, closed a hazardous mine
opening, and protected a historic headframe.
While the project speaks to a success in partnership
between the state and Good Samaritans, the work of the Lilly
Orphan Boy Mine is not done. In the middle of the beautifully
restored flood plain, there still flows acid mine drainage from
an adit. The water quality below the mine has seen significant
improvement following the mine waste removal, but there are
still impacts from the drainage. Both our Good Samaritans and
the Montana AML Program have no choice but to walk away from
these straining mines because of liability concerns.
Perpetual treatment of acid mine drainage can be a multi-
million-dollar commitment, which is difficult for the states
and Good Samaritans to afford. Affordable acid mine drainage
treatment options could make a significant difference in water
quality, but they would likely never meet all the water quality
standards, therefore Good Samaritans and the state could be
liable under the Clean Water Act.
The key to resolving this issue is to bring clarity and
practicality to any Clean Water Act requirements borne by the
states and Good Samaritans. Rather than focus on achieving the
impossibility, which is perfection, the basic goals for
eligible Good Samaritan projects should be simple: achieving
improvements in the environment.
In this way, states and Good Samaritans would uphold the
essential purpose of the Clean Water Act, which would be to
improve water quality. Good Samaritan groups should also be
responsible for their own work on the site and whatever pre-
existing pollution remains should not be considered a Good
Samaritan's responsibility.
The mechanism in both Pennsylvania's Good Samaritan law and
the excellent Community Reclamation Partnerships Act offers an
example of how a hardrock Good Samaritan program could be
structured, by partnering Good Samaritans with the state or
travel programs and legitimizing their good work in the eyes of
the Clean Water Act.
In a time where we are seeing cuts in Federal AML funding,
help from Good Samaritans is needed now more than ever. The AML
association would welcome the opportunity to work with the
Committee to enable Good Samaritans to help conquer the
monumental task of reclaiming our abandoned mine lands and
impaired waters.
Thank you for the opportunity to submit this statement.
If the Committee would accept it, I would like to submit
for the record the Policy Resolution from the Western
Governors' Association on the issue of Good Samaritan.
Dr. Gosar. Without objection, so ordered.
[The prepared statement of Ms. Coleman follows:]
Prepared Statement of Autumn Coleman, Program Manager, Abandoned Mine
Lands Program, Montana Department of Environmental Quality on Behalf of
the National Association of Abandoned Mine Land Programs and the
Interstate Mining Compact Commission
introduction
Good afternoon Chairman Gosar, Ranking Member Lowenthal, and
members of the Committee. My name is Autumn Coleman and I am Program
Manager of the Abandoned Mine Lands (AML) Program within the Montana
Department of Environmental Quality. I also serve as Vice President of
the National Association of Abandoned Mine Land Programs (NAAMLP).
Thank you for the opportunity to provide the state of Montana's
perspective as well as NAAMLP's position on the role of non-
governmental entities in hardrock AML work.
NAAMLP represents 31 state and tribal AML programs across the
Nation. Many of these programs have earned delegations of authority
from the Federal Government to implement national environmental laws
such as the Surface Mining Control and Reclamation Act (SMCRA) and
Federal Water Pollution Control Act (otherwise known as the Clean Water
Act or CWA).
The topic of the hearing today is of great interest and importance
to the states and tribes represented by NAAMLP. Throughout the country
our AML programs are working diligently to restore lands and waters
impacted by legacy hardrock mining, but available resources are very
limited in comparison to the scale of the problem before us. Every
source of help is needed to contend with that problem, but current
circumstances constrain the states' efforts and deter motivated, well-
intentioned volunteers from assisting in that work. ``Good Samaritan''
policy holds the potential to unbind the state AML programs' hands and
allow our potential volunteer partners to lend theirs.
We commend the Committee for its continuing efforts to establish an
effective way for both state and tribal programs and Good Samaritans to
work toward restoring water resources impacted by historic mine
pollution. We appreciate the opportunity to share our perspective on
how this can be accomplished. My testimony today will address the
current status of hardrock abandoned mine lands, the efforts underway
to reclaim these sites and remediate their impacts, and the potential
for a Good Samaritan program to encourage and enhance those efforts.
the hardrock abandoned mine land problem
Background
The United States has a rich history of hardrock mineral mining.
The role that gold, silver, and copper mining played in the settling of
the American West and the rise of a fledgling industrial nation are the
stuff of legend. Hardrock mining continues to this day to be a mainstay
of vibrant economies throughout the country and especially in the West,
but today's mining is conducted very differently than it was in the
past. Today's mines are required to be fully reclaimed and impacts are
carefully monitored, but in a time prior to modern day controls and
understanding of environmental impacts, mines were often abandoned in
disrepair. Many of those historic mining sites have enduring impacts
today, which has resulted in a massive environmental and economic
problem.
Following the passage of comprehensive national environmental laws
in the 1970s, the states and tribes have largely taken the lead in
fashioning and implementing effective programs for the regulation of
mining and its impacts, including reclaiming and restoring lands and
waters impacted by historic abandoned mines. Every year our AML
programs are working to reclaim open mine pits, stabilize cave-ins and
landslides, close mine shafts, remove left behind equipment and mining
waste, and restore rivers and streams impacted by acid mine drainage
(AMD). The safety hazards associated with these sites result in
injuries and even deaths each year, and environmental impacts like AMD
are incredibly damaging in their own right. While most will recall
visions of orange rivers following the blow out of a mine pool at the
Gold King AML site, few realize that there are thousands of similar
sites scattered throughout the West. In fact, many times the amount of
impaired water released during the Gold King event drain out of
abandoned mines throughout the country every day. These water
impairments degrade ecosystems and have widespread adverse economic
impacts, including the loss of recreational fisheries and contamination
of water and irrigation supplies.
While it is difficult to put an exact number on total hardrock AML
costs or to produce a perfectly accurate inventory of remaining sites,
there is no question that the hardrock AML problem is massive and
pervasive, and would be counted in tens of billions of dollars. Today's
environmental laws are meant to hold polluters to account, but because
the historic mining in question happened so long ago, there are no
potentially responsible parties available to pay for their cleanup;
these sites are an unfunded public cost. Abandoned mines are everyone's
problem but no one's responsibility.
Hardrock AML Inventory
Over the years, several studies have been undertaken in an attempt
to quantify the total hardrock AML cleanup need. Despite these efforts,
there is currently no comprehensive, fully accurate national inventory
of the hardrock AML problem. Although inventory efforts are helpful in
attempting to put numbers on the problem, in almost every case, the
states and tribes are intimately familiar with the highest priority
problems within their borders. The AML programs are therefore generally
well positioned to direct limited reclamation dollars to best protect
public health and safety and the environment without the need for
significant enhancements to AML inventories. To the extent that the
Committee finds additional inventorying efforts expedient for policy
making, separate funding would ideally be provided for those efforts.
Otherwise, the states and tribes generally find that the best use of
limited hardrock AML funding is to accomplish as much reclamation and
restoration work as possible.
The state of Montana's hardrock AML inventorying efforts provide a
good case study. In the early 1990s Montana conducted a comprehensive
inventory of abandoned hard rock mines and began work in earnest to
close hazardous mine openings. Of the 3,500 abandoned hard rock mines
in the inventory, over 300 of those were designated as high priority
sites due to the risk to human health and the environment from heavy
metals and arsenic. As part of the inventory, Montana tallied 217
discharging adits. Between the mine waste left in creeks and rivers in
Montana and the acid mine drainage coming from those adits, Montana has
almost 2,500 miles of rivers and streams impacted by metals and arsenic
from abandoned mines. New abandoned mines are being discovered as
people move further into the wildland-urban interface and as forest
fires move through and expose new abandoned mine hazards previously
unknown.
Funding for Hardrock AML
Current state and tribal agencies work on hardrock abandoned mine
problems through a variety of state and Federal funding sources.
Various Federal agencies, including the U.S. Environmental Protection
Agency, the Bureau of Land Management, the National Park Service, the
U.S. Forest Service, and the U.S. Army Corps of Engineers have provided
some funding for hardrock mine remediation projects over the years.
These state/Federal partnerships have been instrumental in assisting
the states and tribes with their hardrock AML work. As states and
tribes take on a larger role in hardrock AML cleanups in the future,
they will continue to rely on their Federal partners. Unfortunately,
most of these existing Federal and state grants are project specific
and do not provide consistent funding.
For states and tribes with coal mining, the most consistent source
of AML funding has been the Title IV grants authorized under SMCRA.
While the vast majority of this funding is used to address coal AML and
AMD problems, Section 409 of SMCRA allows states and tribes to use
these grants at high priority non-coal AML sites. The funding is
generally limited to safeguarding hazards to public safety (e.g.,
closing mine openings) at hardrock sites. The small amount of money
that SMCRA states have been able to spend on physical safety hazards at
hardrock sites is making a difference.
To make more progress with hardrock AML there is no question that
the greatest need is funding. Recognizing the potential economic,
environmental and social benefits of remediating lands and streams
impaired by abandoned hardrock mines, states, tribes, municipalities,
Federal agencies, volunteer citizen groups and private parties have
come together across the West to try to clean up some of these sites.
In Montana, our local governments and Good Samaritan partners have the
capacity to raise funds inaccessible to the state. Leveraging outside
grant funds with state and Federal funds is the only way we can afford
these cleanups. However, due to questions of liability, many Good
Samaritan efforts, as well as the states' and tribes' own efforts, have
been stymied. To encourage public-private partnerships and empower
state and tribal AML programs, first we need to solve the thorny legal
problem that is keeping private resources on the sideline, increasing
the burden on public funds, and prolonging harm to our citizens and
environment.
the need for a good samaritan program
The Clean Water Act (CWA) was designed to clean up our waterways
and safeguard the health of our citizens and environment, and the
country is undoubtedly a better place as a result. It is therefore a
great irony that this law, which was meant to facilitate water quality,
now stands in the way of water quality improvements at AMD sites. As a
cornerstone of Federal Environmental Law, the CWA is intentionally very
strict in the restrictions and penalties directed at those who impact
our Nation's water resources. As an unintended consequence of that
strict design, in particular its purposefully stringent and inflexible
standards for water treatment, CWA requirements do not comport well
with the realities of AMD treatment. With regard to this issue, John
Whitaker, a White House staffer who played an integral role in the
passage of the Clean Water Act, recalls the following:
``When I and other White House staffers responsible for
environmental initiatives during the Nixon administration
recommended to the President new water pollution control
strategies for congressional consideration, our focus was
primarily on sewage treatment and industrial effluent, not the
acid mine drainage problems from abandoned mines. We should
have had more foresight . . . We did not envision at the time
that the day would come when the zero discharge provision would
prevent Good Samaritans from cleaning up acid mine drainage . .
.'' \1\
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\1\ ``Cleaning Up Abandoned Hardrock Mines In The West: Prospecting
for a Better Future''--Limerick, Ryan, Brown, and Comp, Center for the
American West.
This dilemma has been confirmed by the Environmental Protection
Agency on many occasions, and is summarized well by the following quote
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from an EPA Administrator's testimony before Congress in 2006:
``Under the CWA, a party may be obligated to obtain a discharge
permit which requires compliance with water quality standards
in streams that are already in violation of these standards. .
. . Yet, in many cases, the impacted water bodies may never
fully meet water quality standards, regardless of how much
cleanup or remediation is done. By holding Good Samaritans
accountable to the same cleanup standards as polluters or
requiring strict compliance with the highest water quality
standards, we have created a strong disincentive to voluntary
cleanups. Unfortunately, this has resulted in the perfect being
the enemy of the good.'' \2\
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\2\ Benjamin H. Grumbles, Assistant Administrator for Water, U.S.
Environmental Protection Agency, Testimony before the Subcommittee on
Water Resources and Environment, Committee on Transportation and
Infrastructure, U.S. House of Representatives, March 30, 2006, pp. 2-3.
The crux of the problem is that the Federal statutory paradigm for
treating AMD-impacted water is not well-suited to the unique
characteristics of these sites. The fundamental issue with AMD
treatment is that impacted waterways are by definition already
impaired, and in the case of abandoned mines, the originators of the
pollution have long since gone out of business. Even so, due to joint
and several liability under the CWA, any party who re-affects an AMD-
impacted site risks being held permanently responsible for fully
eliminating the existing discharge, even where the pollution is the
result of legacy mining, the project is significantly improving water
quality, the party in question has no connection to the pollution, and
no recklessness or negligence is exhibited.
The EPA has acknowledged and attempted to mediate the conflict
between AMD treatment and the CWA in the past, but the Agency's efforts
have not meaningfully facilitated progress. The EPA's guidance
memoranda of 2007 \3\ and 2012 \4\ regarding Good Samaritan involvement
in such projects, and the ``comfort letters'' issued by the Agency
pursuant to that approach, unfortunately led to very few additional
projects being undertaken. The primary remaining obstacle is that these
projects are still potentially subject to citizen suit liability under
the CWA. This means that even where these projects are conducted under
established procedures, condoned by the EPA and/or the state NPDES
authority, and are improving water quality by reducing pollution
loading, they could still be sued by a third party and be assessed
immense, perpetual liability. State and tribal AML programs could
similarly still be assessed liability and compelled to take immediately
required, expensive, tax-funded action to return a given site to an
impracticable condition, which already strained state budgets must
avoid.
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\3\ ``Interim Guiding Principles for Good Samaritan Projects at
Orphan Mine Sites and Transmittal of CERCLA Administrative Tools for
Good Samaritans,'' June 6, 2007.
\4\ Clean Water Act Sec. 402 National Pollutant Discharge
Elimination System (NPDES) Permit requirements for `` Good Samaritans''
at Orphan Mine Sites,'' Dec 12, 2012.
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There can be little question that obstacles posed by the CWA to the
treatment of AMD-impacted water have significantly slowed progress with
such projects throughout the country. State and tribal AML programs
must choose between forgoing these projects or proceeding and exposing
themselves to significant liability risks. While the need for
resolution of these issues has been widely agreed upon for some time,
the specifics of the ideal solution have long been debated--and it is
clear that debate is stalling desperately needed water treatment.
examples of the need for good samaritan protections in montana
The Montana AML Program in partnership with the Powell County
Conservation District and Trout Unlimited was successful in raising the
funds to reclaim an abandoned lead and silver mine in the mountains
near the state capital. This project had been shelved by the Montana
AML Program due to insufficient funding for hardrock abandoned mines,
but our Good Samaritan partners were able to secure the funding needed
to resurrect it. In 2016, the Montana AML Program and TU completed the
Lilly Orphan Boy Mine Reclamation Project. We removed toxic mine waste
from the banks and floodplain to restore Telegraph Creek, we stabilized
a dangerous mine waste embankment, closed a hazardous mine opening and
protected a historic headframe. While this project speaks to a
successful partnership between the state and Good Samaritans, the work
at the Lilly Orphan Boy Mine is still not done. In the middle of the
beautifully restored floodplain flows acid mine drainage from an adit.
The water quality below the mine has seen significant improvement
following the removal of the mine waste in the creek, but there are
still impacts from acid mine drainage. Both TU and the Montana AML
Program have walked away from addressing these draining adits because
of the concerns over the Clean Water Act liability.
Treatment of acid mine drainage is a multi-million dollar
commitment which neither the state nor their partners can raise on a
consistent or predictable basis. Less expensive options, such as
passive wetland treatment cells and automatic lime dosers, will
generally not meet all in-stream water quality standards or discharge
permit parameters. The other mechanism for eliminating acid mine
drainage is to plug mine openings, but those strategies are also costly
and may present safety concerns. The result is that adits continue to
drain into rivers and streams impacting fisheries and hampering
economic development.
Montana continues to address abandoned mine lands as best it can
given funding limitations and potential liability for discharge
exceedances. In instances where state and tribal AML programs are able
to proceed despite liability concerns, some success has been found in
source removal actions to address water quality. For example, Montana
recently recommended de-listing Soda Butte Creek, a tributary to the
Lamar River in Yellowstone National Park, for metals following a
tailings impoundment (dam) removal project. This de-listing of an
impaired waterbody for metals following abandoned mine reclamation is
the first of its kind in Montana and is critical for fisheries in
Yellowstone National Park. Much more of this type of progress could be
made if the states, tribes, and their Good Samaritan partners could be
provided consistent, reasonable relief from unnecessary liability.
pennsylvania example of successful state-level good samaritan program
We have seen the positive results from an effective approach to AMD
treatment in Pennsylvania, which enacted its own Good Samaritan law to
provide protections related to state clean water requirements for
groups and individuals who were not legally responsible but who
voluntarily undertook AML reclamation or AMD treatment projects.
Pennsylvania recognized long ago that with the availability of these
volunteer efforts and advances made in our understanding of mine
drainage, many of the state's abandoned coal mine AMD discharges could
be eliminated or improved at little or no cost to the Pennsylvania tax-
payer if only the potential for undeserved liability could be
addressed.
To that end, Pennsylvania enacted its Environmental Good Samaritan
Act (EGSA) of 1999,\5\ under which 79 AMD treatment projects have been
undertaken in various partnerships between the Commonwealth, local
governments and municipal authorities, individual community supporters,
corporations, watershed associations, and conservancies. Much like
previous Federal Good Samaritan proposals, projects eligible under the
EGSA must abate water pollution resulting from abandoned mine lands and
eligible participants must meet certain conditions demonstrating that
they and the project are worthy of liability protections offered by the
program. These projects are spread among 20 counties and 53 distinct
groups, and the majority are active today. State-level liability
protections have enabled these projects to occur without risk of undue
liability under state law, but risks remain for the Commonwealth and
their partners under Federal law, and still more projects could have
been pursued if not for the remaining specter of liability.
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\5\ Title 27 Pennsylvania Consolidated Statutes Annotated Sections
8101-811.
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Pennsylvania's experience in the almost 20 years since the passage
of the EGSA demonstrates that there are countless opportunities for
Good Samaritans to assist the AML programs, especially in the treatment
of AMD-impacted water. The Commonwealth and its partners' work under
the EGSA provides a proof of concept for the beneficial, responsible
participation of such groups in the AML programs' work.
considerations in crafting good samaritan legislation
Over the course of the past 15 years, several Good Samaritan bills
have been introduced in the U.S. Congress, each of which offered a
unique approach. From the states' and tribes' perspective, we have
several recommendations that we believe should be considered in any
Good Samaritan legislative effort. We offer the following
considerations based on our AML programs' decades of firsthand
experience contending with hardrock AML issues, our long-time
participation in the Good Samaritan policy debate, the lessons learned
through Pennsylvania's successful state-level Good Samaritan program,
and the recent success of the Community Reclamation Partnerships Act.
To summarize the preceding section: the specter of undeserved
liability is constraining much needed hardrock AML work. At the center
of concern is the simple fact that, as noted above, NPDES permits are
not well-suited for treating AMD-impacted water. The key to resolving
this issue is bringing clarity and practicality to any Clean Water Act
compliance responsibilities borne by the states and potential Good
Samaritan partners as they conduct AMD water treatment work. The
states' tribes' experience demonstrates that this can be accomplished
while maintaining uncompromising care in how these projects are
conducted. Through commitment to that goal and cooperation among
stakeholders, a process can be designed that finds the necessary
balance between the accountability that must be maintained and the
flexibility that must be provided to allow AMD work to move forward.
The Need for Reasonableness
To achieve sensible, effective Good Samaritan policy, the focus
must be on designing a system that is immanently reasonable. We must
recognize that the potential Good Samaritan AMD projects in question
are fundamentally different from other classes of projects and
therefore should not require the same level or type of regulatory
requirements. The waters in question are already impaired and the
responsible parties are long gone, meaning that certain aspects of the
CWA are inordinately strict in the context of these projects; most
notably the zero discharge standard and the application of perpetual
responsibility. Rather than focus on achieving impossible perfection or
holding no-longer-existent originators of the pollution to account, the
basic standards for eligible Good Samaritan projects should be simple:
achieving improvements in the environment. In this way, Good Samaritan
legislation would uphold the purposes of the CWA and further its
effectiveness by helping to fulfill its essential goal of improving
water quality.
Toward the goal of reasonable Good Samaritan policy, perhaps the
most important recognition needed is that partial remediation is
acceptable. Some abandoned mine problems are so intractable that it is
not possible to achieve ``total cleanup'' even with today's advanced
technologies, but a ``limited'' cleanup can result in very significant
environmental improvement. We also know that, in some circumstances,
even where total cleanup is technically possible, at some juncture the
cleanup effort reaches a point of diminishing returns and the money
would be better spent on addressing other sites.
These realities of AMD treatment have led many state AML programs,
particularly in the East, to adopt an approach that attempts to
maximize the number of discharges that receive treatment to the highest
standard practicable, with particular focus on supporting biological
and other functions of the water resource. Decisions regarding water
treatment are based on practical limitations such as available space,
technology options, landowner cooperation, and cost. While these
projects often do not strictly adhere to NPDES water quality based
effluent requirements, they nevertheless significantly improve water
quality in the receiving streams, the aggregate effect of which
produces drastic improvements in overall health of the greater
watershed at a comparatively low cost. This approach has led to great
strides in restoring AMD-impacted watersheds, as well as for the
community health and livelihoods that depend on those watersheds. Mine
drainage at these sites is being treated, pollution is substantially
reduced, and noticeable water quality improvements are being made, and
yet these efforts are still being constrained. It would be shortsighted
policy to continue to disallow this type of partial treatment strategy
when so much good can come as a result.
Another key recognition that must be made is that groups conducting
volunteer cleanups should not be held as permanently responsible for
the sites at which they conduct their work. The courts have created an
expectation that states and volunteer groups affecting an existing
source of water pollution may be held as ``operators'' under the Clean
Water Act and compelled to comply with full requirements of and
indefinite liability associated with an NPDES
discharge,\6\,\7\ even where those requirements are clearly
unreasonable and the liability clearly undeserved with respect to the
parties in question. Under these circumstances, states, tribes and
potential volunteers are heavily disincentivized from taking on cleanup
projects, especially where the expectation is that full NPDES
requirements cannot be met. Rather, Good Samaritan groups should only
be responsible for their own work on the site. As long as that work is
positively affecting the environment and no negligence is committed,
whatever pre-existing pollution remains should not be considered the
Good Samaritan's responsibility. The Clean Water Act policy that anyone
who affects an impaired site is held responsible for the entirety of
the pollution in perpetuity is meant to hold polluters to account, but
in the case of Good Samaritan projects the groups in question are
decidedly not polluters. Ensuring that only worthy groups receive
designation as Good Samaritans is certainly a key consideration in Good
Samaritan policy, and it is the states' and tribes' experience that our
AML programs are well-equipped to make this distinction appropriately.
Once a Good Samaritan group's innocence with respect to the site can be
established, it should be understood that holding them to account for
past pollution is unhelpful--rather than encouraging higher water
quality it precludes any improvement at all.
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\6\ Pursuant to the Fourth Circuit Court of Appeals decision in
West Virginia Highlands Conservancy v. Huffman to designate water
treatment facilities as point-source discharges, West Virginia must now
obtain CWA permits for bond forfeiture sites. There have been concerns
that this ruling could be extended to AML projects being undertaken by
the states and tribes under SMCRA.
\7\ It is important to note that AML reclamation is handled
separately and distinctly from bond forfeiture sites, and that these
sites, and any companies experiencing bond forfeiture would not
expectedly be eligible for participation under a Good Samaritan
Program.
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Furthermore, if the protections provided to Good Samaritan groups
would have end dates, meaning that protections would only apply during
the time frame of the work on the project, many potential Good
Samaritans will be reluctant to engage in activities for which they
might incur liability beyond the termination date of work, as would be
the case with water treatment projects. Good Samaritans must be
supplied with liability protection in perpetuity in order to ensure
that they can afford to undertake the project. Similarly, an
expectation that the applicant has sufficient financial resources to
carry out all operation and maintenance activities related to the
project may be prohibitive. Most potential Good Samaritan groups,
including state and local governments, will not have the type of
financial resources available to fulfill or guarantee this requirement.
A third important recognition is that onerous, complex requirements
for achieving status as a Good Samaritan and securing project approval
will at some point be counterproductive to encouraging more work. There
has been a tendency in past Good Samaritan proposals for the
requirements to become very similar if not nearly identical to that of
standard NPDES permits, which would ultimately mean little if any
effective difference from the status quo would be achieved.
Potential Good Samaritans, in particular non-governmental
organizations (NGOs), tend to have limited funding, often in the form
of discrete grants. They often acquire funding for watershed
restoration projects in small incremental amounts over long periods of
time. Overly burdensome permitting requirements will therefore be cost-
prohibitive, as many NGOs will not be able to afford compliance with
overly elaborate permitting requirements. Much of this permitting
activity would have to be completed before the project is approved and
many NGOs will be reluctant to expend a substantial amount of their
limited grant funding to develop a project that may never be
implemented. States similarly must be very careful in how they proceed
with their limited hardrock AML funding. For these reasons it must be
acknowledged that for Good Samaritan policy to be effective, there must
be careful attention paid to constructing a system that is not unduly
burdensome on states or their potential volunteer partners. A
reasonable balance must be struck between ensuring the project will
proceed properly and that it will be possible to do the project at
all--and the states' experience demonstrates that this balance is
achievable.
As an alternative to the stand-alone permitting system often
proposed by past legislation, we suggest consideration of a procedure
similar to that utilized by the Commonwealth of Pennsylvania's
successful Good Samaritan program. The EGSA utilizes letters of
approval that apply to a specific AML or AMD project rather than
permits, and is generally more workable and less cost-prohibitive to
the efforts of potential Good Samaritans. For example, grant
applications include descriptions of the proposed projects, but are not
required to submit detailed engineering plans until the basic aspects
of the project have been approved, thereby preventing the potential
Good Samaritan group from wasting limited resources. Additionally, EGSA
approval provides Good Samaritan projects involving treatment systems
that require long-term operation and maintenance perpetual protection
from liability, rather than only during the duration of a permit, which
quells concerns with long-term liability.
A State-lead Partnership Model; Working within Existing Frameworks
There are many state and tribal agencies throughout the country
whose mission is to reclaim hardrock AML sites and restore AMD-impacted
water. While the focus of Good Samaritan policy discussions is
generally on protecting volunteer groups, providing protection for
these state and tribal agencies is an equally critical, if not more
fundamentally needed step in encouraging this type of work. The
agencies that have been ordained for this specific purpose, and the
environmental law frameworks they work within, are not being allowed to
fulfill the mission they were designed to do. The circumstances
described above continue to discourage if not totally preclude many
state's and tribe's ability to treat water under their dedicated AML
programs; and even in states that have been able to proceed with some
amount of water treatment work, these circumstances have been a
severely complicating factor. Recognizing this, we recommend that Good
Samaritan policy first seek to establish a means for the states and
tribes to fulfill their missions and conduct this work free from the
unhelpful aspects of the CWA. Building on that notion, working through
existing state and tribal regulatory frameworks to the extent possible
and emphasizing a state-lead partnership approach will lead to optimal
results for potential Good Samaritan legislation.
In accordance with the principles of state primacy contained in
laws such as SMCRA and the Clean Water Act, it is essential that Good
Samaritan programs be administered by state and tribal agencies. The
states and tribes best understand the specific complexities associated
with abandoned mine lands within their borders and tend to have better
working relationships with potential Good Samaritans. Our experience
indicates that reliance on the state and tribal AML programs is crucial
to achieving workable Good Samaritan policy. For example, one of the
key components of the Pennsylvania EGSA program's success is its
reliance on the state AML program's long-standing expertise in their
field. Under the EGSA, all activities related to a given project
proceed under the guidance and approval of the PADEP, which utilizes
its expertise and long resume of successful water treatment projects to
appropriately adjust requirements to match the scale and complexity of
the proposed project and to ensure that only well-conceived projects
move forward. PADEP works very closely with Good Samaritan volunteers
to assist them in the process of assessing circumstances, receiving
necessary approvals, designing a project, and conducting and overseeing
work on the project.
Optimal Federal Good Samaritan legislation will seek to emulate
this type of partnership approach, which was also utilized in the
Committee's recent Community Reclamation Partnerships Act (H.R. 2937).
Partnership between state agencies and Good Samaritan groups is of
great mutual benefit--Good Samaritan groups can be guided through the
process of pursuing a project with the unique experience of the AML
programs, and the program is able to harness the passion and financial
resources available in these groups toward their mutual goals of
improving water quality.
The Scope of Eligibility
The scope of liability protection is another key consideration for
Good Samaritan policy. The states and tribes have several
recommendations related to the necessary scope of protection intended
to ensure that Good Samaritan policy has its intended effect of
meaningfully facilitating AMD treatment work.
For example, Good Samaritan project eligibility should be extended
to projects undertaken on state, tribal, and private lands in addition
to Federal lands. Pollution problems know no such boundaries and must
be addressed wherever they occur.
Further to that point, it has been the states' experience, in
particular through Pennsylvania's EGSA, that the extension of
protections to innocent landowners is critical to a viable Good
Samaritan program. Many landowners will not cooperate if they are not
distinctly protected, because if not, they risk being held permanently
responsible for untenable water treatment requirements simply by
allowing a project to take place on their property. The inclusion of
language speaking directly to the potential liabilities of landowners
will help ensure the success of Good Samaritan legislation.
Many previous Good Samaritan legislative efforts have focused only
on liability with regard to the Clean Water Act. While this is
certainly the most pronounced issue, it should be noted that Good
Samaritan remediation efforts may also be stifled by the prospect of
incurring liability under a variety of other Federal environmental laws
such as the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), depending on the situation. The key here is
that if potential Good Samaritans do not feel completely assured of
liability protection related to these additional laws, many potential
Good Samaritan groups will have little choice but to forego working at
sites where the risk is simply too great a threat to their
organization's financial health. A system that allows liability
coverage to be tailored to the situation and the treatment strategy at
hand would greatly help to alleviate these concerns.
The considerations recommended above will result in more prevalent
and effective AMD water treatment work and mine waste removal actions
by the state and tribal AML programs, additional engagement of private
funding resources in Good Samaritan groups, and a more effective
overall implementation of Federal Environmental Law with respect to
these sites. Without such improvements, the difficulties in CWA's
application to abandoned AMD pollution will continue to constrain and
delay much-needed progress.
conclusion
The legacy of abandoned mine lands still looms large in many of our
Nation's communities. In the pursuit of eliminating the lingering
effects of abandoned mines, and in particular the impairment of water
resources, every source of help is needed. To that end, the enactment
of reasonable CWA (and other Federal environmental law) liability
protection for prospective Good Samaritan groups and state and tribal
AML programs holds immense potential benefit. The states' experience
demonstrates that the Good Samaritan idea works, but the Federal-level
obstacles to further enfranchisement of these groups must be removed.
In a time when funding available from SMCRA is approaching expiration,
and Federal Budget proposals are continuing to scale back on our
Federal partners' hardrock AML funding, help from Good Samaritans is
more needed than ever. As Congress continues to consider how to contend
with the multi-billion dollar public cost represented by remaining
hardrock AML problems, it is clear that every source of help is needed.
NAAMLP would welcome the opportunity to work with the Committee in
designing balanced, sensible, effective Good Samaritan legislation.
Thank you for the opportunity to submit this statement. Should you
have any questions or require additional information, please contact
us.
______
Questions Submitted for the Record by Rep. Gosar to Ms. Autumn Coleman,
Vice President of NAAMLP and Abandoned Mine Lands Programs Manager at
Montana DEQ
Question 1. At many reclaimed sites, long-term water treatment is
often necessary to prevent future acid mine drainage from occurring.
However, many third-party actors do not have the means to manage
treatment facilities in-perpetuity.
In your view, what is the best approach for handling the
long-term maintenance of water treatment systems?
Answer. Acid Mine Drainage (AMD) treatment is often prohibitively
expensive for potential Good Samaritans. Most of the Good Samaritan
discussion focuses on the need to incentivize these actors to make
water quality better without the fear of becoming liable for not making
it perfect. This question points out another dimension of the Good
Samaritan's dilemma. Their potential exposure extends not just to
liability for treatment to ``perfect'' quality, but also for such
treatment over an unlimited length of time. Liability for long-term
operation and maintenance (O&M) requirements must also be addressed. If
steps can be taken to design a practicable system for long-term O&M at
Good Samaritan projects, it may be possible to improve these groups'
ability to participate.
For example, while decades-long O&M plans will be too onerous for
the vast majority of potential Good Samaritans to bear, a more
reasonable 5-10 year plan may be tenable. The key is for these plans to
be flexible and provide a distinct end point to a Good Samaritans
responsibility at a site. The abandoned mine lands program's ability to
review project plans and assess their feasibility before approving a
Good Samaritan project will ensure that O&M requirements are well
designed for their purpose.
Good Samaritans cannot be expected to sign up for an indefinite and
unpredictably expensive responsibility at treatment site, but that
extreme extent of responsibility and planning is unnecessary.
Circumstances at these sites change over time and updated decisions
must be made about treatment as time goes on, for example where
technology advances and improvements can be made. It is also possible
that new funding and personnel resources become available as time goes
on, especially after a system begins to demonstrate water improvements
and its value becomes more obvious. To accommodate those circumstances
and allow the use of more practical, short-term O&M plans, it is
critical that O&M responsibilities can be split or shared among
multiple parties.
The level and types of O&M anticipated for Good Samaritan projects
should be flexible and based on specific circumstances and goals at a
given site. The overall goal should be accomplishing the most
efficient, effective improvements in water quality given the resources
available, and O&M requirements should be scaled to meet those more
modest goals. Finding the correct balance for O&M requirements at a
given site is important to ensure that enough funding and personnel
resources are available to address other sites in the region, in order
to maximize the restorative effect a network of AMD treatment projects
can have.
In Montana, when we evaluate the best approach for AMD treatment we
consider the following items. Plans for O&M at AMD treatment projects
should address the same basic components whether it is a large-scale
active AMD treatment system or a smaller passive AMD treatment system
such as a doser or wetland cell.
1. The scale of the existing problem and our water quality goals;
2. Feasibility of treatment technology given the site conditions and
selection of the best available option given the resources;
3. Monitoring plan to demonstrate water quality improvements;
4. Funding source and annual budget for operations and maintenance
(O&M);
5. Anticipated life cycle;
6. O&M plan and responsibilities; and
7. Plan for decommissioning the treatment system at the sunset of
funding.
______
Dr. Gosar. Thank you, Ms. Coleman.
I now recognize Mr. Wood for his conversation for 5
minutes.
STATEMENT OF CHRIS WOOD, PRESIDENT AND CEO, TROUT UNLIMITED,
ARLINGTON, VIRGINIA
Mr. Wood. Chairman Gosar, Ranking Member Lowenthal, and
other members of the Subcommittee, my name is Chris Wood and I
have the privilege of serving as the President and CEO of Trout
Unlimited.
I want to thank everyone here for their leadership on this
issue of cleaning up abandoned mines. This Committee and then
the entire House of Representatives played a really vital role
in passage of the Community's Reclaimers Act, which was very
significant earlier this year. Hopefully, today will be a step
toward applying similar common-sense protections for would-be
Good Samaritans who wish to clean up abandoned hardrock mines
as opposed to coal mines, which the Community's Reclaimers Act
implicates.
My testimony today is on behalf of 300,000 members and
supporters nationwide. Abandoned hardrock mines are ticking
time bombs that dot the western landscape. The EPA estimates
that 40 percent of western headwater streams are negatively
affected by abandoned mines.
The reason that we care so much about this issue is because
those headwater streams are exactly where all of our native
trout are holed up these days, not to mention that they are
also the sources of drinking water of tens of thousands of
downstream communities.
The challenges for organizations such as mine who are
dedicated to protecting and restoring trout and salmon and the
rivers in which they live, is that in some cases if we touch
abandoned mine waste, we become part of that chain of liability
that Autumn mentioned.
If, for example, we were to improve water quality by 95
percent by spending $200,000, but do not have either the
technical capacity or perhaps the additional $1 million or $2
dollars that we might need to get to 100 percent of water
quality standards, we may be liable under the Clean Water Act.
That is a bit of simplification of the scenario on the ground,
but it is also a reality.
Good Samaritans like Trout Unlimited have no legal
obligation to take on abandoned mine cleanup. We do so simply
based on a desire to improve water quality and watershed
health.
This is a proposal without critics. There is no
constituency for acid mine drainage. Everyone, from our
partners such as Tiffany & Company, to mining companies such as
Newmont, Freeport-McMoran, Kinross, and a host of state and
Federal agencies, everyone wants clean water and fishable water
for their communities and their children.
Despite a general lack of opposition, Good Samaritan
legislation has been a challenge, so we wanted to recommend an
approach that we think might work. Specifically, we urge the
Committee to consider legislating a pilot program, whereby EPA
in coordination with the states could authorize 5 to 10
projects or so in the western states to allow us to prove that
the Good Sam concept can be turned into reality.
In pursuit of our mission, Trout Unlimited has restored
streams and rivers damaged by abandoned mines from the
Appalachian Coal Fields to the hardrock mining areas of the
Rocky Mountain states.
Theodore Roosevelt once defined conservation as the
application of common sense to common problems for the common
good, and no definition could better describe the need for Good
Samaritan legislation.
Thank you, Chairman.
[The prepared statement of Mr. Wood follows:]
Prepared Statement of Chris Wood, President & CEO, Trout Unlimited
Chairman Gosar, Ranking Member Lowenthal, and Subcommittee members,
my name is Chris Wood. I am the President and CEO of Trout Unlimited.
Thank you for the opportunity to testify today on abandoned hardrock
mines and the role of non-governmental entities in helping to clean up
pollution from them.
I offer the following testimony on behalf of Trout Unlimited and
its nearly 300,000 members and supporters nationwide. My testimony will
focus on the need for legislation and funding to facilitate the cleanup
of abandoned hardrock mine lands and water, and specifically the need
to facilitate abandoned hardrock mine cleanups by ``Good Samaritans''--
those individuals or entities who have no legal obligation to take on
an abandoned mine cleanup, but who wish to improve water quality and
watershed health.
We deeply appreciate the Subcommittee's focus on this issue, and we
urge the Subcommittee to continue to work with us, the states, the
Interior Department, the EPA, and other stakeholders to fashion a bill
to help provide an important tool to facilitate cleanups. Last year's
successful passage of the Subcommittee's ``Community Reclaimers'' bill
to facilitate cleanup of abandoned coal mines was a great step forward.
But we need both the coal and hardrock Good Sam bills to cross the
finish line and get enacted into law. Looking back, I was very involved
in the effort to develop a hardrock Good Sam bill that passed the
Senate Environment and Public Works Committee--but got no further--all
the way back in 2006. We are 12 years down the road and past due for
passage of Good Sam legislation.
In the vein of making it more, rather than less, likely that a bill
could pass Congress this year, there are several legislative approaches
that could work well for Good Samaritans that might reduce potential
opposition to the Good Sam concept. Specifically, we urge your
attention to the idea of legislating a pilot program whereby EPA, in
coordination with the states, could authorize 5-10 projects in the
western states to allow us and others to prove that the Good Sam
concept can be turned into reality. Last Congress' Gardner, Bennet,
Tipton Draft measure could be used as the permit mechanism for the
pilot programs. Title III, of Representative Lamborn's H.R. 3843 of the
previous Congress, could also work as the pilot project permit
mechanism.
Whatever the legislative solution might be, TU is ready to go to
work to clean up abandoned mine pollution. TU's mission is to conserve,
protect and restore North America's trout and salmon fisheries and the
watersheds they depend on. In pursuit of this mission TU has worked to
restore streams and rivers damaged by pollution from abandoned mines
from the Appalachian coalfields in Pennsylvania to the hardrock mining
areas of the Rocky Mountain states, and my testimony is based upon
these experiences. We need such legislation and additional funding to
expand the pace and scale of work to clean up abandoned mines. We seek
a bipartisan Good Sam bill to address what is clearly a bipartisan,
multi-state, problem.
Allow me to take a few moments to describe one of the Nation's
worst remaining pollution problems--the scourge of acidic and toxic
orange colored abandoned mine pollution coming down into the headwaters
of the West's great rivers.
abandoned mine pollution is a widespread problem but much of it is
fixable
Americans want clean water. Americans do not want orange water
running through their backyards and into their rivers.
Trout Unlimited members and staff are passionate about cleaning up
abandoned mine pollution. Even a cursory look at the damages to our
streams, rivers and groundwater caused by pollution from abandoned coal
and hardrock mines show that we have a long way to go to achieve clean
water for all. There is no better time than right now, as the Trump
administration and the 115th Congress discuss including water clean-up
work as part of an infrastructure package, to address cleanup of
pollution from abandoned coal mine.
Sadly, much of abandoned mine pollution is ``out of sight, out of
mind.'' But in August 2015, we received a vivid view of the mess. The 3
million gallons spill of polluted water from the Gold King mine near
Silverton, Colorado showed the world what TU members and staff who live
in mining country see every day: orange, polluted water leaking out
from abandoned mines.
Cleaning up abandoned mines is challenging and expensive. That does
not make it any less important. The legacy of historical mining
practices--thousands of abandoned coal and hardrock mines with an
estimated cleanup cost in the billions of dollars--has persisted for
the better part of a century with insufficient progress toward a
solution.
Abandoned coal mines dot the Rocky Mountain and Appalachian
landscape. Pollution from abandoned hardrock mines impairs as much as
40 percent of the headwater streams in the region, and abandoned coal
mines continue to damage thousands of miles of streams and rivers--over
10,000 miles just within Pennsylvania and West Virginia. While much has
been accomplished through the Surface Mining Control and Reclamation
Act's (SMCRA) extremely valuable Abandoned Mine Lands Fund (AML Fund)
for abandoned coal mine cleanup, no analogue exists for hard rock
mines. Coming up with dedicated funding is essential to cleaning up
abandoned hard rock mines in the western United States.
We have developed several model projects that can be replicated and
taken to scale. In Pennsylvania, aided by state-based Good Samaritan
policy, watershed groups, including Trout Unlimited, are working with
state agencies, communities, and other partners to conduct more than
250 abandoned coal mine pollution projects throughout the state. We can
do a lot more if the problem is fixed in the East, and we can develop
similar model projects in the West if the right policies and adequate
funding are in place. I will speak to the barriers, and then I will
turn to the solutions.
parts of our best environmental laws, the clean water act and cercla
(superfund), can be barriers to abandoned coal mine cleanup
TU and other prospective Good Samaritans are interested in cleaning
up smaller, lower risk abandoned mine sites. We are not interested in
larger, higher risk, sites where ownership and reclamation
responsibility is clear.
Smaller sites generally are not a high enough priority to get
funding under the ``Superfund'' provisions of CERCLA. For these sites,
where the parties responsible for the mining pollution are long gone,
and with current owners having little to no incentive to do any of the
cleanup because of liability risks, projects to reduce pollution can
become a legal quagmire. A partnership between TU, western states, and
EPA resulted in EPA policy that provides useful protection to Good
Samaritans from CERCLA liability in 2007,\1\ but CWA liability has
remained a significant obstacle.
---------------------------------------------------------------------------
\1\ http://water.epa.gov/action/goodsamaritan/.
CERCLA: When TU first started working on abandoned hardrock mines
in the West, we had liability concerns under CERCLA and the Clean Water
Act that prevented many Good Samaritan projects from moving forward.
CERCLA presented a significant barrier to Good Samaritan projects, both
because the statute presents real risks for any party helping to clean
up toxic wastes, but also because the statute's complexities and
perceived risks are incredibly daunting for many watershed groups,
local communities and NGOs. If any liability concerns were raised, even
the legal cost of sorting through it would financially strain a non-
profit such as TU.
In 2006, TU completed a pioneering Good Samaritan cleanup in Utah's
American Fork Canyon that overcame CERCLA liability concerns with the
help of EPA, the Forest Service and the state of Utah. The liability
protection document (an Administrative Order on Consent, or ``AOC'')
negotiated with the EPA for the American Fork work led to the issuance
of EPA guidance and model documents for dealing with CERCLA liability
protection for future Good Samaritans to use in similar projects.
TU has now negotiated three separate AOCs with the EPA covering two
different projects--one project on the American Fork in Utah (two AOC's
for different phases of the project) and another on Kerber Creek in
Colorado. These AOCs have allowed TU to undertake cleanup projects with
significant local benefits while eliminating the risks of additional
cleanup expenses or future liability under CERCLA. We greatly
appreciate the work that EPA has put into their model AOC for Good
Samaritan cleanups, and the work that EPA staff have put into
negotiating the specific AOCs for TU. Though there remains the need for
legislation, the AOCs have helped to reduce one of the major
impediments that have prevented communities, watershed groups,
conservation organizations, TU chapters and others from undertaking
abandoned mine cleanup projects.
Clean Water Act: There are many projects where water quality could
be improved by collecting run-off, or taking an existing discrete
discharge, and running the polluted water through a treatment system.
However, for would-be Good Samaritans, Clean Water Act (CWA) compliance
and liability issues remain a barrier to such projects. Several courts
have held that discharges from systems that treat wastewater from
abandoned mines are point source discharges that require a National
Pollutant Discharge Elimination System (NPDES) permit under section 402
of the CWA. Although EPA and some eastern states have not considered
such projects to be point sources requiring NPDES permits, the Fourth
Circuit's 2010 decision in West Virginia Highlands Conservancy, Inc. v.
Huffman creates uncertainty around that approach.
Stakeholders in projects involving treatment of mine drainage have
been held back because of CWA liability for two reasons. First, NGOs,
including TU, are not well suited to apply for and hold permits for
such projects. TU does not have an adequate funding mechanism to
legally bind itself to pay for the perpetual costs associated with
operating a water-treatment facility and permit compliance.
Second, for many projects it may be impossible to obtain a permit,
because the treatment systems, even if they will greatly improve
conditions, may not be able to treat abandoned mine wastewater to a
level that meets all applicable water quality standards or other
applicable criteria. It should be noted that while these treatment
systems are certainly capable of producing water that will support a
healthy fishery, the resulting water quality might not meet CWA
standards for some pollutants that are particularly difficult to remove
from mine waste. For example, passive wetland systems that effectively
treat highly polluted water often leave levels of manganese that do not
comply with CWA standards.
This is not to say that CWA standards should be weakened; just the
opposite, in fact. But there should be incentives for would-be Good
Samaritans to make water cleaner even if water quality is still short
of full CWA standards. Put another way, Federal law should provide
incentives for would be Good Samaritans to make our water cleaner and
communities safer, one project at a time. The rationale for this is
simple--Good Samaritans can deliver outstanding projects with our
local, state and Federal partners, which cumulatively can make a huge
improvement in a particular watershed.
TU has worked with the EPA to try to address these challenges, and
we appreciate the efforts the agency has made to help us and other
would-be Good Samaritans. For example, in December of 2012 the EPA
issued a guidance memo designed to clarify how the Clean Water Act
applies to Good Samaritan abandoned mine cleanup projects. The guidance
memo requires potential Good Samaritans to fully comply with the 2007
Superfund Good Sam policy, but allows eligible Good Samaritans to avoid
CWA requirements under certain circumstances.
Several years of experience now indicate that the restrictions in
the guidance memo may not be a good fit for the type of work, such as
passive treatment facilities, that is needed. Indeed, the details of
the policies application remain quite unclear, in part because no one
has yet opted to use it for a project because, among other questions,
the policy leaves open the liability and compliance obligations of
owners of land where projects take place. While the EPA's guidance memo
is a good start, a legislative solution is necessary.
As we explain in more detail below, TU is working with our partners
and allied watershed groups to restore miles of stream in places like
Pennsylvania, Colorado, Montana, and Washington right now under the
constraints of current law. With Good Sam policy and increased funding
in place, the sky is the limit on fighting back against pervasive
abandoned mine pollution.
good projects could be expanded and replicated with effective good
samaritan policy for coal
Western Projects
By using the CERCLA liability protection and avoiding projects that
trigger Clean Water Act liability, and with the support of the Tiffany
& Co. Foundation, Freeport-McMoRan Copper & Gold, Inc., and other
partners and supporters, TU has made substantial progress in cleaning
up abandoned mine impacts in several watersheds in the West. These
projects not only improve the environment, but also put local
contractors to work, providing both clean water and jobs.
American Fork, Utah. The Pacific Mine cleanup in the American Fork
Canyon was the first voluntary, non-profit-led abandoned hardrock mine
restoration project in the West. TU and its partners received awards
from the Utah Board of Oil, Gas and Mining and the EPA for work on the
American Fork. Anglers can now catch Bonneville cutthroat trout
immediately downstream of the area where pollution used to run off mine
tailings piles.
Mores Creek, Idaho. To date, over 14,000 cubic yards of mine
tailings have been removed from the banks of Mores Creek to create a
more natural floodplain area, and trees planted along the stream will
provide critically needed shade for coldwater fish. Hundreds of
schoolchildren from the area have participated in tree plantings and
other restoration work. Migratory fish are now seen using instream
habitat structures installed as part of the restoration effort.
Kerber Creek Watershed, Colorado. In total, TU and its partners
restored over 80 acres of mine tailings, improved 8 miles of stream,
and installed more than 340 instream structures that are now home to a
reproducing brook trout population. Volunteers logged over 13,000 hours
of work in the watershed over the past 3 years. The restoration project
has received four prestigious awards: the BLM's Hardrock Mineral
Environmental Award, the Colorado Riparian Association's Excellence in
Riparian Area Management Award, the Rocky Mountain Region of the USFS's
Forest and Grassland Health Partner of the Year, and the Public Lands
Foundation's Landscape Stewardship Award.
Leavenworth Creek Watershed, Colorado. In 2015, TU and Federal
partners removed and capped 5,400 cubic yards of mill tailings
containing high levels of zinc and lead, while constructing 2,500 feet
of hardened channel through a dispersed tailings area adjacent to the
Waldorf Mine. Removing the mill tailings, creating a vegetated
floodplain, and establishing a hardened channel will allow for the
conveyance of clean surface water runoff to Leavenworth Creek. This is
an important step in improving water quality to downstream South Clear
Creek, which acts as the drinking water source for the town of
Georgetown, Colorado.
Clark Fork River Basin, Montana. TU and partners have reclaimed
four mine sites in the Middle Clark Fork River and have six ongoing
mine reclamation projects in the planning and design phases. For
example, on Mattie V Creek, TU and its partners removed 12,000 cubic
yards of dredge tailings and reclaimed 500 feet of stream channel
reclamation project. Fish are now swimming up Mattie V Creek from
Ninemile Creek for the first time in 80 years. Because of these and
other accomplishments, the TU project manager in Montana was awarded
with the American Fisheries Society's Individual Achievement Award and
the U.S. Forest Service's Rise to the Future Award in 2010.
Eastern Projects
In Pennsylvania, abandoned coal mine pollution is being
successfully treated and streams and rivers are being brought back to
life because the Commonwealth has provided Good Samaritans with
dedicated funding. We believe that we can export the Pennsylvania model
across the rest of the country if liability concerns are eased and
funding is increased.
Kettle Creek, Pennsylvania. Our experiences in Pennsylvania are
illustrative of the positive effect of Good Samaritan cleanups. Over
the past 20 years, Pennsylvania has seen an increase in abandoned mine
reclamation projects by watershed groups, including TU. This boom has
been fueled by funding from the state's Growing Greener grant program
and the Federal Abandoned Mine Land (AML) reclamation fund. Most of
these projects involve treatment of acid mine drainage using passive
treatment systems, which run the polluted mine drainage through a
series of limestone basins and wetlands that increase the water's pH
and cause heavy metals to precipitate out. These projects have
significantly improved water quality and restored fish populations in
numerous Pennsylvania streams.
The Pennsylvania Department of Environmental Protection estimates
that public funding sources have paid for the construction of nearly
250 passive treatment systems in the state, the majority of which have
been constructed by private watershed groups, conservation districts or
other local groups.
Beginning in 1998, the work of TU and its partners in the lower
Kettle Creek watershed has resulted in the reclamation of approximately
160 acres of scarred abandoned mine lands and installation of nine
treatment systems that successfully improved mine water polluted with
high levels of acidity and metals. The results to date have been
tremendous, with water quality restored to 3 miles of previously dead
streams and 6 miles of a fully reconnected and thriving native brook
trout population.
This story of recovery plays out again and again in individual
streams and watersheds. Several years ago, the Babb Creek Watershed
Association accomplished de-listing 14 miles of Babb Creek, now a wild
trout fishery, from EPA's impaired streams list. Another 14 miles in
the Tangascootack Creek watershed is pending removal from the impaired
streams list as a result of passive treatment systems constructed by
the Clinton County Conservation District.
On a much larger scale, the West Branch Susquehanna River watershed
has made tremendous strides over the past few decades. A comparison of
conditions in the West Branch Susquehanna in 1972 with those in 2009
indicated that fish species increased 3,000 percent, and pH increased
from 3.8 to 6.6.
These improvements result in economic benefits. In Pennsylvania,
almost $4 billion was spent on fishing, hunting, and wildlife viewing
in 2006. A 2008 study found that full remediation of the West Branch
Susquehanna River watershed would result in ``an additional $22.3
million in sport fishing revenues could be expected to be generated
each year. Additional recreation spending--over and above that for
fishing--would be expected after remediation is completed.''
[1]
Regardless of the overall scope of the abandoned mine problem, each
of these projects restored a significant water body and represents a
big win for the local community.
what we would like to see in a good sam bill
Good Samaritan projects need an appropriate mechanism that requires
the project to produce significant improvements in water quality,
implement best-design and management practices, and conduct appropriate
monitoring, but that does not expose the Good Samaritan to liability if
the project at some point fails to achieve a required criterion for a
given pollutant.
Positive Features of a Draft Bill
Authorizes EPA, in coordination with the appropriate state
agencies, to approve 5-10 qualified Good Sam pilot
projects.
The Clean Water Act liability protection mechanism should
be narrowly tailored and ensures that water pollution
clean-up results in a significant improvement to the
environment.
The bill should supply adequate public notice and comment
for each project.
The bill should clarify that private landowners who are
not responsible for abandoned mine cleanup on their lands,
but who are willing to work cooperatively with the Good
Sams and the state to clean up pollution from abandoned
mines on their land, should also receive liability
protection from the bill over the life of the project.
Projects must meet applicable water quality standards to
the maximum extent practicable ``under the circumstances.''
We will need to make sure that implementing agencies
understand that ``under the circumstances'' will mean
performing cleanup activities that are cost-effective at
high elevations and in remote locales.
Projects are eligible for Clean Water Act Section 319
funding. Abandoned mine cleanup activities sometimes fall
into a gray area of the law between non-point and point
source control. Greater application of 319 funds to this
work will be very helpful.
The bill should provide protection from future liability
from the Clean Water Act and CERCLA once Good Samaritans
have successfully completed their permitted work
activities. This provision is much appreciated and is in
fact, essential for any Good Samaritan projects.
more funding is needed
Cleanup of abandoned coal mine pollution is a long-term job, and
long-term funding is needed to get the job done.
We urge Congress to consider establishing a fair royalty from any
minerals taken from public lands, a portion of which could be invested
in an abandoned hardrock mine cleanup fund. Almost every commodity
developed on our public lands--coal, wood fiber, oil, gas, and
livestock forage--has dedicated funding for mitigation of impacts and
restoration. The only commodity that lacks such a dedicated fund is
hardrock minerals.
conclusion
Improving water quality around the Nation is a fundamental goal of
the work of this Subcommittee, and thus we are pleased that the
Subcommittee is looking at one of the most vexing water problems
remaining in coal country. We stand ready to work with you so that
affected communities around the Nation will again have clean, fishable
waters. Thank you for considering our views, and thank you for working
with us on these important matters.
______
Dr. Gosar. I thank the gentleman.
I now recognize Mr. Strohmaier for his 5 minutes.
STATEMENT OF HON. DAVID STROHMAIER, COUNTY COMMISSIONER,
MISSOULA COUNTY, MONTANA
Mr. Strohmaier. Chairman Gosar, Ranking Member Lowenthal,
and members of the Subcommittee, thank you for the opportunity
to testify today on the problems and potential solutions to
cleaning up abandoned hardrock mines.
My name is David Strohmaier and I am a county commissioner
from Missoula County, Montana. Speaking as a fellow elected
official, I want to thank all of you for your service, which I
am sure you do not hear often enough.
With the Chair's permission, Austin has agreed to project a
graphic that goes along with the presentation.
[Slide.]
Missoula County is home to blue ribbon trout streams such
as the Blackfoot, Bitterroot, Clearwater, and Clark Fork.
Outdoor recreation is intrinsic to our way of life. It is also
crucial to our economy. In fact, recreation is now the largest
sector of Montana's economy.
When entrepreneurs come before our Commission seeking
economic development assistance, I frequently ask them why they
want to invest in Missoula County, and almost without
exception, the first response they give is quality of life,
which has everything to do with water.
Clean, cold water not only supports our recreation economy
and attracts business, our waters have sustained indigenous
peoples from time immemorial and are at the core of modern
treaty rights. Moreover, since the settlement era, our rivers
and streams have watered crops and livestock on farms and
ranches in western Montana.
Montana also has a long and rich history of mining, yet
thousands of abandoned hardrock mines in our state have left
behind a legacy of water pollution, harming fish, wildlife, and
their habitat, contaminating drinking water and degrading our
iconic trout streams. I agree that Good Samaritan initiatives
will provide important opportunities for abandoned mine cleanup
by NGOs, but we must not lose sight of the sheer scale of the
problem faced by western communities due to abandoned mine
pollution. Missoula County alone contains 186 abandoned and
inactive mines.
The Surface Mining Control and Reclamation Act, or
otherwise known as SMCRA, for nearly two generations has
required the coal industry to pay a fee for abandoned mine
reclamation. An independent, dedicated funding source for
hardrock abandoned mine cleanup similar to the SMCRA program is
long overdue.
Missoula County in partnership with Trout Unlimited and the
Lolo National Forest have secured over $3 million to clean up
abandoned placer mining and associated dredging. Nine Mile
Creek located 20 miles west of Missoula is one of the most
important native trout tributaries of the Middle Clark Fork and
one of the most affected by mining impacts. Many of the
tributaries of Nine Mile Creek nearly empty into dredge ponds
rather than the creek itself.
Today, we have completed several mine reclamation projects
in Nine Mile watershed yielding reduced sediment loading and
enhanced fish passage. Bull trout now freely move between Nine
Mile Creek and tributaries for the first time in 70 years.
But there is more work to do. Another $4.5 to $5 million
are needed to fully restore Nine Mile Creek and adjoining
tributaries.
In conclusion, Good Samaritan liability waivers, charitable
giving, and charitable cleanup are only a small part of the
abandoned mine solution. We, in Missoula County, Montana, hope
that policy makers will find a path forward for Good Samaritans
to help clean up some abandoned mines across the West. However,
creating a dedicated, meaningful funding stream is essential to
fully address the problem. Short of this, state, local, and
tribal governments and citizen groups can only help clean up a
small number of projects and our Nation's waters, public
health, and economy will suffer.
As Norman Maclean said in his novella, A River Runs Through
It, Missoula lies ``at the junction of great trout rivers in
western Montana.'' For future generations of Montanans and
visitors alike, we need to ensure that it remains that way,
that water continues to run clean, and where it is degraded, we
take steps to solve the problem. To do less is to squander the
birthright of future generations in our state and across the
Nation.
Thank you again for the opportunity to testify, and I would
be happy to answer any questions.
[The prepared statement of Mr. Strohmaier follows:]
Prepared Statement of David Strohmaier, County Commissioner, Missoula
County, Montana
Chairman Gosar, Ranking Member Lowenthal, and members of the
Subcommittee, thank you for the opportunity to testify before you today
on the problems and solutions to cleaning up abandoned hardrock mines.
My name is David Strohmaier and I am a county commissioner from
Missoula County, Montana.
Outdoor recreation is intrinsic to our way of life, but it is also
crucial to our economy. In fact, recreation is now the largest sector
of Montana's economy, garnering over $7 billion in annual consumer
spending.\1\ People come to Montana and Missoula County for our world
class trout streams, abundant public lands, and quality of life. In
Montana, counties are charged with the responsibility of reviewing
applications for Big Sky Trust Fund job creation grants. When
entrepreneurs come before us, I frequently ask them why they want to
invest in Missoula or Missoula County. Almost without exception, the
first response they give is quality of life. According to Jeff Fee,
interim director of the Missoula Economic Partnership, ``Missoula's
natural scenery and opportunities for outdoor recreation contribute to
our growing economy and enhance our ability to attract new businesses
and skilled workers to our region. A clean, safe environment is
inextricably linked to quality of life for Missoulians who choose to
start new businesses and raise their families here.'' \2\
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\1\ Outdoor Industry Association, ``Montana Outdoor Recreation
Economic Report,'' July 26, 2017. Available at: https: / /
outdoorindustry.org/resource/montana-outdoor-recreation-economy-
report/.
\2\ Jeff Fee, Interim Director, Missoula Economic Partnership,
personal communication, March 12, 2018.
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Clean, cold water not only supports our recreation economy and
attracts business, it has also sustained generation upon generation of
indigenous peoples in the northern Rockies and is at the core of the
Confederated Salish and Kootenai Tribes' treaty rights. Moreover, since
the settlement era, our rivers and streams have watered crops and
livestock on farms and ranches in western Montana.
Montana also has a long and rich history of mining. While mining in
Montana helped build the state and the Nation, it also left behind a
legacy of thousands of abandoned mines. These abandoned mines are a
significant source of water pollution, harming fish and wildlife and
their habitat, contaminating drinking water aquifers, degrading the
trout streams that Montana is renowned for, and jeopardizing our
agricultural heritage. Abandoned placer and dredge mines can also have
significant adverse effects, including dewatering, obstructing fish
passage, and excessive sedimentation.
the problem of abandoned mine lands (aml)
My main concern with abandoned hardrock mines is their potential to
generate long-term water pollution, including the release of harmful
metals and acid mine drainage (AMD). AMD can lower the pH of
surrounding surface water, making it acidic and unable to support many
forms of aquatic life. The Environmental Protection Agency (EPA)
estimates that mining activity has contaminated the headwaters of more
than 40 percent of watersheds in the West.\3\ The Government
Accountability Office (GAO) estimates that 33,000 abandoned mine sites
have degraded the environment by contaminating waters or leaving
``arsenic-contaminated'' waste piles.\4\
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\3\ U.S. Environmental Protection Agency, ``Liquid Assets 2000:
Americans Pay for Dirty Water,'' Available at: http://water.epa.gov/
lawsregs/lawsguidance/cwa/economics/liquidassets/dirtywater.cfm.
\4\ U.S. Government Accountability Office, ``Abandoned Mines:
Information on the Number of Hardrock Mines; Cost of Cleanup and Value
of Financial Assurances,'' July 14, 2011, https://www.gao.gov/products/
GAO-11-834T.
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To solve the problem of perpetual pollution from inactive and
abandoned hardrock mines, we must reform the 1872 Mining Law and
institute a source of revenue similar to the one paid by the coal
industry for cleaning up abandoned coal mines. Unlike the coal
industry, the hardrock mining industry pays no royalties for the
minerals that are extracted from Federal public lands. I agree that
Good Samaritan initiatives will provide important opportunities for
abandoned mine clean-up by NGOs, but we must not lose sight of the
sheer scale of the problem faced by western communities and water
resources due to abandoned mine pollution.
The Surface Mining Control and Reclamation Act (SMCRA) has for
nearly two generations required the coal industry to pay a fee for
abandoned mine reclamation.\5\ This fee has successfully funded coal
mine cleanups across the country. In fact, in some states like Montana,
the coal industry's funds have been used to clean up the messes of
their hardrock brethren. This important funding source, however, is set
to expire in 2021.
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\5\ See 30 U.S.C. 25 Subchapter IV Sec. 1231 et seq.
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aml in montana
Montana's Department of Environmental Quality (DEQ) estimates that
our state has approximately 3,700 hardrock abandoned mines.\6\ Missoula
County alone, which covers approximately 2,600 square miles, contains
an estimated 186 abandoned and inactive mines, and others are located
in the county's watershed that encompasses adjoining counties.\7\ All
together, these mines impair roughly 2,000 miles of Montana's rivers
and streams--often from acid mine drainage, metals, or other
pollutants.\8\
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\6\ Bozeman Daily Chronicle, ``Scars of the past: Cleaning up
abandoned mines and the fight of the funding to do it,'' December 10,
2017. Available at: https://www.bozemandailychronicle. com/news/
environment/scars-of-the-past-cleaning-up-abandoned-mines-and-the/
article_6d014843-4d63-512b-bbbd-ffbf454fe07d.html.
\7\ Montana Bureau of Mines and Geology, abandoned and inactive
mine database, available at: http://data.mbmg.mtech.edu/3D/
DataViewer.asp?Database=2&focus=Menu&getby=CNT&.
\8\ Montana Department of Environmental Quality, Montana Final 2016
Water Quality Integrated Report, Appendix A, January 6, 2017, Available
at: http://deq.mt.gov/Portals/112/Water/wqpb/CWAIC/Reports/IRs/2016/
App_A.pdf.
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Ninemile Watershed
Missoula County is involved in a collaborative effort with the Lolo
National Forest and Trout Unlimited to clean up placer mining and
large-scale dredging operations causing significant damage to
tributaries of the middle Clark Fork River watershed. Ninemile Creek,
located 20 miles west of Missoula, is one of the most important native
trout tributaries in the middle Clark Fork River watershed and one of
the most affected by mining impacts. Many of the streams that used to
feed Ninemile Creek no longer reach it, emptying instead into mine
dredge ponds that line the floodplain.\9\
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\9\ Missoula County Community and Planning Services--Parks, Trails
and Open Lands Program.
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Several mine reclamation projects on tributaries in Ninemile Creek
have been successfully completed since an environmental analysis was
conducted in 2012 by the U.S. Forest Service. Working in collaboration,
the Lolo National Forest, Trout Unlimited, Missoula County, and others
have brought in over $3,000,000 to the local community (with $900,000
garnered in 2018 and 2019 alone), restoring almost 3 miles of the main
stem of Ninemile Creek, and connecting eight major tributaries.\10\ Due
to the completed and ongoing work, sediment loads have been reduced,
fish can now move to colder waters or to spawning grounds, and fish
populations are increasing. Bull trout now freely move between Ninemile
Creek and other tributaries for the first time in 70 years. The
collaborative cleanup project illustrates that, with a proper funding
source, we can make progress.\11\
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\10\ Ninemile Ranger District Staff, Lolo National Forest, personal
communication, March 12, 2018.
\11\ Missoula County Community and Planning Services--Parks, Trails
and Open Lands Program.
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There's more work to do, though. Another 3 miles of placer mine
damaged streams must be remediated to complete the mainstem of Ninemile
Creek, at an estimated cost of $3,500,000, and another $1 million is
needed for two significantly damaged tributary streams. All total,
another $4.5 to 5 million are needed to complete Abandoned Mine Land
(AML) work in the Ninemile.\12\
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\12\ Paul Parson, P.E., Trout Unlimited, personal communication via
e-mail, March 12, 2018.
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Flint and Fred Burr Creeks
Another example is Flint Creek, a major tributary to the Clark Fork
River of western Montana and part of the greater Clark Fork watershed
upstream from Missoula County. From its headwaters at Georgetown Lake,
Flint Creek travels through some of the region's most prized
agricultural lands before joining the Clark near Drummond, Montana.\13\
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\13\ John DeArment, Staff Scientist, Clark Fork Coalition, personal
communication via e-mail, March 12, 2018.
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The Flint Creek Watershed was actively mined throughout the 19th
and early 20th centuries, and the Montana Bureau of Mines and Geology
has catalogued 411 abandoned mining sites in the area.\14\ One of these
sites, the Rumsey Mill, located on Fred Burr Creek, a tributary to
Flint Creek near Phillipsburg, Montana, is an exceptionally significant
problem, even for a region riddled with so many legacy mining issues.
The mill became operational in 1889 and used mercury to recover gold
and silver from ore until 1893, leaving a dispersed deposit of mercury-
laden tailings along the creek downstream of the mill.\15\ Today,
concentrations of mercury in surface water and sediments routinely
exceed aquatic life and human health standards, and Fred Burr Creek is
the source of an estimated 80 percent of the mercury to Flint Creek,
which is in turn the largest source of mercury to the Clark Fork River.
The mercury has clearly made its way into the regions' wildlife, with
elevated concentrations having been detected in macroinvertebrates and
fish, as well as in osprey, a fish-eater raptor common to the
region.\16\ Montana officials have had to issue fish consumption
advisories on Fred Burr Creek, Flint Creek, and the Clark Fork River
due to the mercury released by the Rumsey Mill.\17\
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\14\ Seagull Environmental Services, ``Data Assessment Report
Regarding Historical Analytical Date for the Flint Creek Watershed in
Granite County, Montana,'' 2014.
\15\ Granite Conservation District, ``Flint Creek Watershed Metals
Remediation--Proposal for Fred Burr Creek Rumsey Mill Tailings,''
submitted to the Montana Department of Natural Resource Conservation,
2016.
\16\ Kindra McQuillan, Disturbed Waters--A Montana Chemist Searches
for the Source of a Persistent Poison, 2014, Graduate Student Theses,
Dissertations, and Professional Papers, 4365, available at: https://
scholarworks.umt.edu/etd/4365.
\17\ State of Montana, Montana Sport Fish Consumption Guidelines,
January 5, 2015, version.
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Fortunately, a grassroots effort is underway to address the
problem. The Granite Headwaters Watershed Group, based in Phillipsburg,
has secured funding to determine the extent of the contaminated
tailings and develop a preliminary remediation design. However,
complete removal of the tailings and restoration of the creek and mine
site are well beyond the financial means of the group. The initial
estimate for cleanup was $1 million, with the group securing
approximately half of that from state sources. As the group has learned
more about the extent of contamination, project costs have grown to
several times the initial estimate and will likely rise even
further.\18\ State and Federal AML hardrock funds could provide
critical support to the long-term success of this project, helping to
protect human health and the environment in Fred Burr and Flint Creeks
and beyond.
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\18\ Autumn Coleman, Abandoned Mine Program Supervisor, Montana
Department of Environmental Quality, Personal Communication with John
DeArment, March 2018.
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Many of the abandoned mine cleanup projects are complex and costly,
with multiple government agencies involved in trying to cobble funding
together for a single cleanup effort that often spans multiple years.
An independent, dedicated funding source for hardrock abandoned mine
cleanup, similar to the SMCRA program, is long overdue. This is the
only type of reclamation program that can truly solve our Nation's
abandoned and inactive mine problem. Since 1980, Montana's AML program
has reclaimed 408 coal mines and 38 hardrock mines in 17 counties.\19\
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\19\ Montana DEQ, Abandoned Mines website, available at: http://
deq.mt.gov/Land/AbandonedMines/accomplishments.
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benefits of aml cleanup
Abandoned mine cleanup offers substantial economic benefits as
well. Although it's been more than a decade since economic data has
been collected for Montana AML projects, but earlier reports
demonstrate their significant economic value. The Federal Office of
Surface Mining Reclamation and Enforcement (OSMRE) calculated the
economic benefits of various construction-ready projects in its annual
evaluation reports of Montana's AML program. According to a 2005
report, if $22.49 million in funding were available to complete the 20
construction-ready projects identified that year, that investment would
generate $53.38 million in economic benefits and support 1,831
jobs.\20\
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\20\ Office of Surface Mining and Reclamation and Enforcement,
``Annual Evaluation Summary Report for the Abandoned Mine Lands Program
Montana,'' 2005.
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In the case of Missoula County's Ninemile watershed mine
reclamation projects, an average of 95 percent of project funds--
estimated at over $3 million--have been spent in the private sector on
contracted services, and contracts have been awarded largely to local
or regional contractors.\21\ This figure does not include other local
industries that benefit from the projects, such as hotels, restaurants,
gas stations, or other services used by the contractors.
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\21\ Missoula County Community and Planning Services--Parks, Trails
and Open Lands Program.
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Montana's abandoned mine lands program is an effective program with
demonstrated on-the-ground successes. Yet, the limited funding
available to the state allows the program to remediate only a few sites
each year, and usually in phases.
The indirect economic benefits come from public use of the restored
resource for a variety of purposes. Recreationally, people can use the
clean water for fishing, swimming, rafting, and, in some cases, even
drinking. Restored areas can also be utilized for livestock grazing,
camping, and other activities that were previously restricted because
of risk from either air contaminants, direct contact with materials or
adversely impacted ground and surface water. Recreational dollars go
into the local economy. A recent study found that outdoor recreation
contributed $373.7 billion to the Nation's Gross Domestic Product in
2016, comprising 2 percent of gross domestic product (GDP).\22\ And,
again, a clean and healthy environment is one of the primary attractors
to entrepreneurial activity and investment in our region.
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\22\ U.S. Bureau of Economic Analysis, Economic data by industry,
Available at: https://www.bea.gov/iTable/
iTable.cfm?ReqID=51&step=1#reqid=51&step=51&isuri=1&5114=a&5102=5.
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success of the coal aml program
A robust AML program with a significant, dedicated funding source
can act as an economic driver. Across the country, SMCRA's AML program
has reclaimed over $5.7 billion worth of mine pollution and nearly
800,000 acres of damaged land and water.\23\ The program delivered a
total impact of $778 million to the U.S. economy in FY 2013, and
supported 4,761 jobs across the country.\24\ The Congressional Budget
Office (CBO) estimates that every $1 million invested in mine cleanup
creates 14 to 33 new jobs.\25\
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\23\ Appalachian Law Center, ``Abandoned Mine Program: A Policy
Analysis for Central Appalachia and the Nation,'' July 8, 2015.
Available at: https://appalachianlawcenter.org/abandoned-mine-land-
policy/.
\24\ Id.
\25\ https://www.gpo.gov/fdsys/pkg/CHRG-110shrg43266/html/CHRG-
110shrg43266.htm.
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conclusion
Good Samaritan liability waivers, charitable giving, and charitable
cleanup are only a small part of the AML solution. We, in Missoula
County, hope that policy makers will find a path forward for Good
Samaritans to help clean up some abandoned mines across the West.
However, creating a dedicated, significant stream of funding is
essential to fully address the pollution problem from half a million
abandoned hardrock mines. Given this crushing need, without this
funding source, state, local and tribal governments, and citizen
groups, can only help clean up a small number of projects, and our
Nation's waters, public health, and economy will suffer. As Norman
Maclean said in his novella, A River Runs Through It, Missoula lies
``at the junction of great trout rivers in western Montana.'' For
future generations of Montanans and visitors alike, we need to ensure
that it remains that way--that water continues to run clean, and where
it is degraded, we take steps to improve water quality and stream
flow.\26\ To do less is to squander the birthright of future
generations in our state and across the Nation.
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\26\ Norman Maclean, A River Runs Through It (Chicago and London:
The University of Chicago Press, 1976), 1.
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______
Dr. Gosar. Thank you, Mr. Strohmaier.
I now recognize Mr. Graves for his 5 minutes.
STATEMENT OF JEFF GRAVES, DIRECTOR, INACTIVE MINE RECLAMATION
PROGRAM, COLORADO DEPARTMENT OF NATURAL RESOURCES, DENVER,
COLORADO
Mr. Graves. Good afternoon, Mr. Chairman, Ranking Member,
members of the Committee. My name is Jeff Graves and I am the
director of the Inactive Mine Reclamation Program within the
Colorado Department of Natural Resources.
I am appearing on behalf of the state of Colorado to
provide testimony on the need for Good Samaritan provisions to
facilitate cleanup of abandoned hardrock mines. I appreciate
the opportunity to appear today and share our views on this
issue that impacts Colorado and many other hardrock states so
directly.
By many counts, Colorado has more than 23,000 abandoned or
legacy mine sites across the state. Regardless of the actual
number, the sheer magnitude of the problem drives the need for
partnerships and innovative solutions, and most importantly,
the potential liability relief provided by Good Samaritan
legislation.
One of the largest and thorniest problems associated with
legacy mines is the effects of acid mine drainage from many of
our hardrock sites. Over 1,300 miles of Colorado streams are
impacted by metals connected to acid mine drainage from
historic mining activity. Recently, the state sampled and
characterized over 170 draining mines and is currently working
with our Federal and NGO partners to evaluate those sites for
potential cleanup.
The challenge and frustration is that the discharge from
few, if any, of those sites will be addressed absent liability
protection. One example of how environmental liabilities have
stalled and even prevented cleanup of abandoned hardrock mines
is the Pennsylvania Mine located in Summit County. That mine is
the single largest man-made source of metals to Peru Creek, a
tributary to the Snake River. The mine was operated at the turn
of the last century, producing silver, gold, and base metals.
There is currently no viable responsible party that can be
held accountable for cleanup of the site. Recognizing that, the
state began investigating ways to address contaminated
discharge from the site, since it was obvious that both Peru
Creek and portions of the Snake River were so contaminated by
metals that the streams were devoid of any aquatic life.
At the time, many states considered discharge from mine
sites to be non-point sources of pollution under the Clean
Water Act, and a specific discharge permit was therefore not
needed to facilitate work to improve the quality of discharged
water. Additionally, states and NGOs assumed that since they
did not create the problem and were merely acting to improve
conditions, they would not be held responsible into the future
for not meeting existing standards.
With that paradigm in mind, the state designed a passive
water treatment facility at the Penn Mine to provide partial
treatment of the discharge during critical times of loading to
the creek. The state worked with volunteers for Alter Colorado,
a local NGO, to assist with construction of the treatment
facility, following construction of the facility.
Following construction of the facility, but prior to its
operation, EPA clarified that all discharges from mines would
be considered point sources under the Clean Water Act, thus
requiring a specific discharge permit. At that point, all
activities at the sites ceased for fear of the liability
associated with operating a plant not intended to meet
stringent discharge standards year round.
That treatment plant sat idle for more than 20 years
without treating any discharge from the mine. During that time,
a local stakeholders group was formed, consisting of downstream
users, NGOs, Federal, state, and local governments, to explore
alternative legal work-arounds that might facilitate operation
of the treatment system, but every avenue was stymied by the
potential for long-term liability.
The stakeholder group was able to facilitate cleanup of
non-point source issues within the watershed where long-term
liability and risk could be minimized and marginal improvements
to water quality could be realized, but all members recognized
that without addressing the point sources, larger improvement
goals could not be met. Eventually, the stakeholder group
convinced EPA to exercise its CERCLA authority under Removal
Action to facilitate cleanup of the site, but that avenue was
not an option at most sites in Colorado.
The common thread hampering cleanup at most hardrock mines
is the risk associated with incurring long-term liability as a
result of the Clean Water Act and CERCLA. In some cases,
funding is available to complete projects that could result in
a net improvement to downstream water quality, but liability
concerns prevent additional work from taking place or even from
operating treatment systems already constructed. In many
instances, there are willing partners, either state agencies,
NGOs, or private entities that, if afforded Good Samaritan
protections, could accomplish water quality improvements at
many abandoned hardrock sites.
The universe of abandoned mine lands is so large and the
existing governmental resources are so limited that it will be
impossible to clean up all these sites without the assistance
of Good Samaritan volunteers along with liability protection.
Moving forward, any viable Good Samaritan measures must move us
away from the current environment of ``you touch it, you own
all of it,'' and toward the phrase borrowed from a different
profession of ``at least do no harm.''
Thank you for the opportunity to address the Committee on
the potential for Good Samaritan protections to facilitate
hardrock clean ups.
[The prepared statement of Mr. Graves follows:]
Prepared Statement of Jeff T. Graves, Director, Inactive Mine
Reclamation Program, on Behalf of Colorado Department of Natural
Resources, Division of Reclamation Mining and Safety
Good afternoon. My name is Jeff Graves and I am the Director of the
Inactive Mine Reclamation Program within the Colorado Department of
Natural Resources. I am a geological engineer by training and have been
responsible for the design and implementation of abandoned mine
reclamation projects throughout Colorado for the last 17 years. I am
appearing on behalf of the state of Colorado to provide testimony on
the need for Good Sam provisions to facilitate cleanup of abandoned
hardrock mines. I appreciate the opportunity to appear today and share
our views on this issue that impacts Colorado and many other hardrock
states so directly.
Colorado has enjoyed a rich mining heritage beginning with the
discovery of placer gold along Cherry Creek south of Denver in 1858.
What followed over the next 50 years was a rush to develop the vast
mineral resources throughout the state. During that time little
forethought was given to the consequences associated with unregulated
extraction, leaving us with a unique legacy of environmental
challenges.
By many counts, Colorado has more than 23,000 abandoned or legacy
mine sites across the state. That number is likely a conservative
estimate because many of these legacy sites are located in inaccessibly
rugged terrain or shrouded in heavily timbered areas of the
backcountry. Regardless of the actual number, the sheer magnitude of
the problem drives the need for partnerships and innovative solutions,
and most importantly the potential liability relief provided by Good
Samaritan legislation.
The problems associated with so many abandoned mines vary
considerably. Some sites pose direct physical safety hazards, as
unprotected shafts, adits and other mine features put the unsuspecting
public at risk. Other sites can result in personal injury or property
damage from subsidence of unseen underground mines. Over 30 underground
coal mine fires across our state create a heightened risk of wildfire
ignition.
Colorado has been actively addressing these legacy mine issues over
the last 40 years through its Inactive or Abandoned Mine Reclamation
Program in partnership with other state and Federal agencies, non-
governmental organizations, and private entities. To date, the program
has been responsible for safeguarding over 10,400 hazardous features,
reclaiming over 4,000 acres of mining-disturbed lands, improving water
quality at more than 220 sites, and investigating and managing 33
underground coal mine fires. The Program was recently recognized by the
Association of Environmental and Engineering Geologists as Outstanding
for its work to address legacy mine issues in Colorado, but much work
remains to be done.
One of the largest and thorniest problems associated with legacy
mines is the effects of acid mine drainage from many of our hardrock
sites. Over 1,300 miles of Colorado streams are impacted by metals
connected to acid mine drainage from historic mining activity,
resulting from varying causes. Often, direct snowmelt and rainfall on
mine waste piles and tailings leach metals from exposed waste and are
then transported to adjacent streams and rivers. At other sites,
horizontal mine entries or adits directly discharge acidic, metal laden
water directly to surface water creating immediate downstream impacts.
In 2015, Colorado Governor John Hickenlooper championed an effort
to identify and collect information on draining mine sites across the
state, recognizing that draining mines and the impacts from them were a
serious concern. Approximately 230 sites were identified as discharging
and potentially resulting in stream water impacts. Of those 230 sites,
some were already being addressed by the EPA Superfund program, but
many sites had little to no data available to assist in understanding
the scope of the problem. During 2016, over 170 of those sites were
visited and characterized. The state is currently working with our
Federal and NGO partners to prioritize those sites for cleanup, based
on site specific discharge criteria, and threats to the environment and
downstream users. The challenge and frustration is that acid discharges
into surface waters from few, if any, of those sites will be addressed
absent liability protection.
Environmental laws of the 1970s, including the Clean Water Act and
the Comprehensive Environmental Response and Cost Recovery Act, or
CERCLA, were designed to help clean up our Nation's waterways and
reduce environmental problems. Provisions in those laws, however, have
had the unintended consequence of preventing many states, NGOs and
private entities from conducting reclamation work at mine sites for
fear of incurring long-term responsibility and liability. Any Good
Samaritan, including states, that attempts to improve water quality at
mine sites through reclamation activities like capping and burying mine
waste or passively treating mine discharge can be held liable for any
remaining discharge that doesn't meet stringent water quality
standards. Additionally, the Good Samaritan could be considered an
``operator'' under CERCLA and held responsible for any future off-site
damages that result from work performed.
In an effort to illustrate how the aforementioned concerns have
hampered, stalled or even resulted in cleanup abandonment, I would like
to provide three specific examples in Colorado. Those examples are the
Pennsylvania Mine, the Solomon Mine and the Perigo Mine.
The Pennsylvania Mine, located in Summit County within the Snake
River watershed, is the single largest man-made source of metals to
Peru Creek, a tributary to the Snake River. The mine was operated from
the late 1800s through the early 1900s and produced silver, gold and
base metals. There is no viable Potentially Responsible Party that can
be held responsible for cleanup of the site, since the operator long
since passed away. In the 1980s, the state began investigating ways to
address contaminated discharge from the site since it was apparent that
both Peru Creek and portions of the Snake River were so contaminated by
metals that the streams were devoid of any aquatic life.
At the time, many states considered discharge from mines sites to
be non-point sources of pollution under the Clean Water Act, and a
specific discharge permit was therefore not needed to facilitate work
to improve the quality of the discharged water. Additionally, states
and NGOs assumed that since they did not create the problem and were
merely acting to improve conditions, they would not be held responsible
into the future for not meeting existing standards. With that paradigm
in mind, in 1993 the state designed a passive water treatment plant at
the Pennsylvania Mine to provide partial treatment of the discharge
during critical times of loading to the creek. The state worked with
Volunteers for Outdoor Colorado, a local NGO, to assist with
construction of the treatment facility. Following construction of the
facility, but prior to its operation, the state of Colorado received a
letter from EPA clarifying that all discharges from mines, including
seeps, would be considered point sources under the Clean Water Act,
thus requiring a specific National Pollutant Discharge Elimination
System (NPDES) permit. Upon receipt of that letter, all activities at
the site ceased for fear of the liability associated with operating a
plant not intended to meet discharge standards year round.
That treatment plant sat idle for more than 20 years without
treating any discharge from the mine, and all the while discharge from
the Pennsylvania Mine continued to contaminate Peru Creek and the Snake
River. During those 20 years, a local stakeholders group was formed to
explore alternative options or legal work-arounds that might facilitate
operation of the treatment system, but every avenue was stymied by the
potential for long-term liability. The stakeholder group was able to
facilitate cleanup of non-point sources within the watershed where
long-term liability and risk could be minimized and marginal
improvements to water quality could be attained, but all members
recognized that without addressing the point sources, larger
improvement goals could not be met.
Eventually, the stakeholder group convinced EPA to exercise its
CERCLA authority under a removal action to facilitate installation of
bulkhead seals to reduce discharge from the Pennsylvania Mine, but that
avenue is not an option at most sites in Colorado. Even after bulkhead
installation at the Pennsylvania Mine, some discharge remains that
could likely be addressed using passive treatment technology if
liability was not a concern.
Another site, the Perigo Mine in Gilpin County within the Boulder
Creek watershed, has historically discharged metal-laden water into
Gamble Gulch and has seen periodic surge events resulting in the creek
running orange. Much like the Pennsylvania Mine, the state recognized
the need to reduce metal loading from the Perigo Mine to help improve
downstream water quality. An attempt was made during the 1980s to
install a long-term passive treatment system that would reduce metal
concentrations in runoff, but would not be capable of meeting discharge
standards. At the time, it seemed like a viable alternative to the
installation of a full-scale active treatment plant costing millions of
dollars to construct and potentially operating forever.
The passive treatment system at the Perigo Mine was marginally
successful in reducing metal loading, but it was abandoned in part due
to the potential long-term liability and cost associated with
maintaining the system. More recently, the state received funding to
conduct additional investigations at the site to explore other
alternatives such as construction of a hydraulic seal bulkhead. The
state partnered with EPA and the United States Forest Service to
conduct a detailed site investigation, and determined that installation
of a bulkhead to reduce surge events was feasible, but the potential
for incurring liability associated with construction was too great a
risk. At the time, EPA was reluctant to initiate action under its
CERCLA removal authority. The money dedicated to installation of the
bulkhead was subsequently returned, and now the site sits unattended,
continuing to discharge metals into Gamble Gulch.
The final site is the Solomon Mine located in Mineral County within
the Rio Grande watershed. The Solomon Mine is just like the
Pennsylvania and Perigo mines in that mining was conducted during the
turn of the last century, and no responsible party exists. In 1991, the
state, in cooperation with the local watershed group, the Willow Creek
Reclamation Committee, completed a non-point source project that
cleaned up mine waste in East Willow Creek and constructed a passive
treatment system for the Solomon Mine discharge. The passive treatment
system operated successfully for a period of time, but was not
maintained due in part to concerns regarding long-term liability.
The common thread to all these examples is the risk associated with
incurring long-term liability as a result of the Clean Water Act or
CERCLA. In each instance, funding was available to complete projects
that would have resulted in a net improvement to downstream water
quality, but liability concerns prevented additional work from taking
place or even from operating treatment systems already constructed.
These projects highlight the adage, ``perfect is the enemy of the
good.'' There were willing partners, either state agencies, NGOs or
private entities that, if afforded Good Samaritan protections, could
have accomplished water quality improvements at each site.
These liabilities deter motivated, well-intentioned volunteers from
undertaking projects to clean up or improve abandoned sites, thereby
prolonging the harm to the environment and to the health and welfare of
our citizens. These impacts to water quality also have economic impacts
that are felt nationwide. In addition, the universe of abandoned mine
lands is so large and the existing governmental resources are so
limited, that it will be impossible to clean up all of these sites
without the assistance of Good Samaritan volunteers.
Colorado believes the pursuit of Good Samaritan protections will be
immensely helpful in our efforts to remediate the vast quantities of
abandoned mine sites in our state. We have seen the results from this
type of approach in other states such as Pennsylvania, which enacted
its own Good Samaritan law to provide protections and immunities
related to state clean water requirements. Even Pennsylvania Good
Samaritans, however, are still exposed to potential liability under the
Federal Clean Water Act for their good deeds, which imposes a chilling
effect on watershed cleanup efforts.
Thank you for the opportunity to submit this testimony. Should you
have any questions or require additional information, please contact
me.
______
Dr. Gosar. I thank the panel for their testimony, reminding
the members of the Committee that Committee Rule 3(d) imposes a
5-minute limit on the questions.
I will now recognize myself for questions.
I understand that treating acid mine drainage is one of the
most challenging aspects of abandoned mine land reclamation.
States face not only technical challenges in completing these
projects, but also compliance challenges under the law.
Mr. Woods, Mr. Graves, Ms. Coleman--first, with Mr. Woods.
In your experience with water treatment projects, why can't
some of the sites meet clean water standards even though some
of the best water treatment systems are in place?
Mr. Wood. Why can't they meet clean water standards?
Dr. Gosar. Yes.
Mr. Wood. Well, we know how to treat these systems both
actively and passively, and I referred to this in my testimony.
Often you can accomplish a great deal with a relatively small
amount of resources by doing things like passive treatments
where you would run abandoned mine waste, acid mine drainage,
rather, through lime ponds and that is a relatively low-cost
venture. But to get that extra increment to get you to 100
percent might be technically beyond our capacity or just vastly
more expensive.
Dr. Gosar. Ms. Coleman?
Ms. Coleman. Thank you, Chairman. In Montana, we are
actually exploring building a water treatment plant in Belt,
Montana for abandoned coal mines. And what we found for low-
cost passive systems that had been built in the past is that we
will make substantial improvement in water quality, but due to
practical limitations and financial limitations, we were not
able to afford the level of treatment that we would need to
meet the Clean Water Act standards. So, in order to meet those,
you have to build a substantial water treatment plant, a multi-
million dollar water treatment plant, and then find money to
afford to run that plant in perpetuity, and that is where the
real limitations come in.
Dr. Gosar. Would you agree with that, Mr. Graves?
Mr. Graves. Yes, I would. That is a similar experience to
what we have had in our state, where it is possible to build
low-cost passive treatment systems that address some portion of
the discharge at the site, but the ability to construct a full-
scale active water treatment plant to address that remaining
component becomes cost-prohibitive at most sites.
Dr. Gosar. I am going to start with you this time. If clean
water standards are not feasible for the Good Samaritan
projects, how would we go about establishing a better standard
that is achievable nationwide?
Mr. Graves. I think beginning with, kind of like I echoed
in my testimony, at least not doing harm but establishing
incremental improvements. And how that looks, I am not exactly
sure in terms of what standards you do set but recognizing that
the improvement on site is what we are after and not
necessarily one particular standard but in overall improvement
to downstream water quality.
Dr. Gosar. Mr. Woods?
Mr. Wood. I agree with that. I think the standard ought to
be trying to make things better. Early on, we negotiated an
agreement with EPA under the Bush administration, and at one
point during the negotiation one of the EPA attorneys said to
us, ``This is the best deal we have ever given a PRP.'' And our
response was, ``But we're not a PRP, we are not a potentially
responsible party. We are just a Good Samaritan who wants to do
the right thing.'' We shouldn't be held to the same standard
that people who actually caused the pollution are.
Dr. Gosar. Do you have any idea how we could actually build
legislation for that flexibility, Mr. Wood?
Mr. Wood. There have been good efforts in the past. I think
Congressman Tipton was involved in those last Congress, and
others have been as well. I don't think we are that far from
having that language right now.
Dr. Gosar. Perfect. Mr. Wood, do sites need to meet clean
water standards in order to support wildlife, habitats, and
healthy overall environment? Is there some mediation in there,
some flexibility?
Mr. Wood. Well, we are pretty much full-throated advocates
for the Clean Water Act at Trout Unlimited--big fans of cold,
clean, fishable water. But I think when you are talking about
these seriously impacted sites where things are so bad, the
streams are orange, where you have lead, zinc, cadmium,
arsenic, and all kinds of bad stuff, do we prefer to get to 100
percent of Clean Water Act standards? Absolutely. But the scope
and the magnitude of the problem is so great that any increment
of improvement should be allowable.
Dr. Gosar. So, we could find a mediation in which improving
the water quality would actually support wildlife and habitats?
Mr. Wood. Without question.
Dr. Gosar. Gotcha. Mr. Graves, in your written testimony,
you discuss various treatment plans to mitigate acid mine
drainage. Could you elaborate on the difference between passive
and active treatment systems, and the associated cost of
installation and long-term maintenance?
Mr. Graves. OK. An active treatment system typically has a
large infrastructure associated with it. It has personnel that
operate that treatment system to ensure that the discharged
water meets Clean Water Act standards on a consistent basis, so
it typically has quite a bit of manpower associated with it.
Those plants often cost in excess of $20 million dollars to
construct, and on occasion cost up to $1 million dollars a year
to operate.
A passive treatment system relies on biological processes
to mitigate the contaminants and the discharge. Those systems
can be constructed and may only require limited or occasional
maintenance to maintain discharge, but the discharge may or may
not meet Clean Water Act standards on a consistent basis. So,
it is an incremental improvement at a much lower cost than
construction of a full-scale facility that would meet those
standards.
Dr. Gosar. Could you imagine a potential to have a
flexibility of standards to use passive as a first step and
then the active later on for cost savings?
Mr. Graves. Certainly. I think that would be a good option,
attempting to get something done on site to see how achievable
meeting those standards might be with some type of passive
system.
Dr. Gosar. So, let me ask you a question. Are mining and
clean water mutually exclusive?
Mr. Graves. Absolutely not.
Dr. Gosar. Mr. Wood?
Mr. Wood. They don't need to be.
Dr. Gosar. Yes. Ms. Coleman?
Ms. Coleman. I would agree with both Jeff and Chris.
Dr. Gosar. How about you Mr. Strohmaier, are they mutually
exclusive?
Mr. Strohmaier. They do not need to be mutually exclusive
in all cases.
Dr. Gosar. The gentleman behind you, I hope he took
inventory of that answer because that was not your answer last
time here in front of the Committee.
The gentleman from California is recognized for his 5
minutes.
Dr. Lowenthal. Mr. Strohmaier, in the Majority's memo for
this hearing, it says that it must also be emphasized that
modern mining activities do not create the kinds of hazards
present at some historic AML sites. And it also says, ``Modern
instruments enable today's hardrock industry to comply with all
appropriate environmental regulations, laws, and permits.'' Do
you agree with these statements?
Mr. Strohmaier. Yes and no. Without a doubt, today's
regulatory environment technological capabilities are very
different than the late 19th century, early 20th century when
it comes to mining, but I think there are some counter-examples
in my home state that lend some credence to the view that even
in those conditions with better technology, with better
regulation, things can go very much awry.
In the late 1980s, at the Butte Mountain Mine near
Anaconda, Montana, cyanide heap-leach mining was permitted. It
ceased operation about a decade later, and shortly thereafter
in the late 1990s, Pegasus Gold declared bankruptcy. In 2004,
the U.S. Forest Service took over management of the reclamation
of the site.
This is a site where it has created significant ground
water, surface water contamination. It is an example of a
modern era mine that has gone bad, and there might be many
reasons for that, but clearly it is not a clear-cut case that
all mining today is environmentally sensitive or sound.
Dr. Lowenthal. Thank you. Mr. Wood, do you have anything to
add to that or any take on take?
Mr. Wood. Well, we are very much in the business of
repairing damage from the past and trying to avoid damage in
the future. So, there is absolutely no question that modern
engineering and mining practices are vastly superior 200 years
ago, but that doesn't mean that every landscape is appropriate
for mining. There are some places that the natural resources
that are present are just so rich and so important that they
should be left intact and left alone. One landscape that we
care very deeply about is a place called Bristol Bay, Alaska,
where a very large mine has been proposed in the headwaters of
that system, and we think that would be a travesty to build
that mine. But generally, around the West, most modern mines
are permitted much more effectively than they were in the past.
Dr. Lowenthal. Thank you. It seems like there are two
issues that we are dealing with here, the lack of Clean Water
Act liability protection and the lack of funding to complete a
lot of projects with or without the liability waiver. I would
like to ask each witness to tell me which they think is the
more pressing need. Is the lack of funding the primary problem
and the Clean Water liability secondary, or is it the other way
around, and does this depend on whether you are a potential
Good Samaritan, a state, a country, and so forth?
Mr. Strohmaier, let us start with you. Of those two, where
do you see the critical issue, if there is a critical issue of
the two?
Mr. Strohmaier. Thank you, Mr. Lowenthal, Mr. Chairman.
While neither are mutually exclusive, I would say without a
doubt from my local government standpoint, funding. In our
county, Missoula County, 53 percent of our county is public
land, Federal land, and U.S. Forest Service Bureau of Land
Management. We have, as I mentioned, 186 abandoned mines in our
county. Even if we have NGOs, and we certainly do have great
partnerships with organizations such as Trout Unlimited, the
bandwidth is only so large for that.
Dr. Lowenthal. I am going to cut you off, thank you, to see
where the others--Ms. Coleman, do you have any thoughts about
it?
Ms. Coleman. Thank you, Congressman Lowenthal. I think
everyone on this panel acknowledges that the gap between the
funds needed and what we need to do to clean up is almost an
impossible divide. In Montana, we do have some limited funds
for abandoned hardrock reclamations, so even with additional
funding, we are still going to need our Good Samaritans to help
extend that.
Dr. Lowenthal. OK, so you say the funding. Mr. Wood?
Mr. Wood. I think the politics of getting Good Samaritan
done are so much easier than the funding issues. I would say
tackle that one first.
Dr. Lowenthal. You tackle the funds?
Mr. Wood. We need both.
Dr. Lowenthal. Mr. Graves?
Mr. Graves. We do need both, and I do think that the
liability concerns related to CERCLA and the Clean Water Act
are the more pressing need.
Dr. Lowenthal. All right. So, three funding, one liability
act. Thank you, and I yield back.
Dr. Gosar. Well, I intercede because it has always been a
proven aspect that good process builds good policy builds good
politics, and you can't throw money at the situation when you
don't have a process. That is what I was trying to get to.
Dr. Lowenthal. That is why I said we need to reform the
1872----
Dr. Gosar. I think we need to do something else besides
that.
Dr. Lowenthal. Thank you.
Dr. Gosar. The gentleman from Colorado, Mr. Lamborn, is
recognized for 5 minutes.
Mr. Lamborn. Thank you, and thanks for this important
hearing. There are a lot of issues here. One thing that seems
to be coming out from your testimony is that it is possible to
let the perfect be the enemy of the good. In Summit County,
Colorado, for instance, we could have been doing something for
20 years. Even though it wasn't perfect, it would have been a
big advance over the status quo.
So, I have had Good Samaritan legislation pass, not a
global solution, a more modest step that would take us part way
down the road, and I am hoping we can still at least make that
kind of advance here soon until that day comes when we have a
global solution.
Mr. Wood, modern mining operations invest significant
resources to meet the strict requirements of the Clean Water
Act. Because of those efforts, I believe modern mining
companies have the expertise and technology necessary to
improve water quality at abandoned mine land sites. Do you
believe that Good Samaritan legislation should allow modern
mining companies that did not create the environmental problems
at the identified legacy site to qualify as Good Samaritans?
Mr. Wood. As long as they don't have a legal interest in
the abandoned mine, in other words, if they have not acquired
it as part of a broader acquisition, I do. I feel very
strongly. The mining industry has a tremendous amount to
contribute in terms of knowledge, machinery, and technology to
cleaning up abandoned mines. I wouldn't want to give them a get
out of jail free card if they have acquired a property that has
historic mining waste that they are legally obliged to clean
up, but if they are just working next door to abandoned mines
and they have no legal interest in those mines and they want to
help clean them up, I think they should be Good Samaritans.
Mr. Lamborn. OK. Excellent. And in light of their expertise
and their ability to improve water quality, do you think that
the incentives should be allowed so as to encourage mining
companies to be good Americans, like removing and processing
valuable minerals contained in the waste prior to the
environmentally sound disposal of those wastes?
Mr. Wood. I am not sure I understand the question, sir.
Mr. Lamborn. Should a Good Samaritan be allowed to process
the tailings for mineral content while they are disposing of
the tailings?
Mr. Wood. I see what you are saying. Well, the original
Good Samaritan, there was no profit motive involved in helping
him on the road to Samaria. But I think that by all means they
should make a profit and they should plow that profit back into
an AML fund that we can reinvest in cleaning up additional
abandoned mines.
Mr. Lamborn. OK. But whatever happens to that money, you
are not opposed to extracting the minerals at some point along
the way?
Mr. Wood. I would not be if the proceeds went into an AML
fund.
Mr. Lamborn. OK. You would want them to be earmarked
somehow. And I am glad you know your Bible, that is a good
thing.
[Laughter.]
All of the witnesses today have identified Clean Water Act
liability as a significant hurdle to Good Samaritan efforts. In
particular, both meeting stringent CWA water quality standards
and having perpetual eternal liability under the CWA for point
source discharges are issues that have discouraged Good
Samaritan efforts in the past.
So, for Mr. Graves or Ms. Coleman, do you think that
providing state and Federal regulators with the flexibility to
adjust CWA requirements and standards for Good Samaritan
projects is necessary to achieve successful nationwide Good
Samaritan programs? Either one of you.
Mr. Graves. Absolutely, I would agree with that. I think it
is critical to provide states with that type of liability
protection to implement projects where the end result may not
be meeting Clean Water Act standards but is an improvement to
water quality downstream.
Mr. Lamborn. OK. Since you have taken that question, I will
ask you the next question.
Ms. Coleman. OK.
Mr. Lamborn. While significant improvements to water
quality are obviously one of the goals of Good Samaritan work,
do you think flexibility is needed with respect to water
quality improvement requirements so as not to discourage
efforts that while improving water quality may not be able to
achieve the ``significant'' water quality improvements?
Ms. Coleman. Congressman Lamborn, I want to make sure I
have your question correct. Are you asking, do I agree that
Clean Water Act standards should be allowed flexibility to
allow improvements?
Mr. Lamborn. Yes, even if they can't get up to the
significant category.
Ms. Coleman. Yes, absolutely. I think that the purpose of a
Good Samaritan law would be to allow that flexibility. And I
would also like to add that the AML programs in states acting
as Good Samaritans would like to be afforded that opportunity
as well to clean up abandoned mines, to improve water quality,
but not achieve perfection.
Mr. Lamborn. Thank you all for being here today. Thank you,
Mr. Chairman, for having this hearing. I yield back.
Dr. Gosar. I thank the gentleman.
The gentleman from Florida, Mr. Soto, is recognized for 5
minutes.
Mr. Soto. Thank you, Mr. Chairman. There was a premise that
the polluters are long gone, so I wanted to sort of confirm
this first. We will start out with you, Mr. Graves. Are the
polluters, a.k.a. the owners of the abandoned rock mines, long
gone in Colorado? And if so, how did your state allow that to
happen?
Mr. Graves. What we typically term as a legacy site or an
abandoned site in Colorado is that mining took place prior to
environmental laws being enacted in Colorado. At the time,
there was no regulatory authority requiring operators to post a
bond or to complete reclamation prior to that point in time.
So, for the most part, on the abandoned mine sites that we work
at, there is no operator that was under regulation by the state
at the time that they stopped operation.
Mr. Soto. And has your state implemented an abandoned rock
mine fee going forward?
Mr. Graves. We don't have a specific fee associated with
abandoned hardrock mines, but we do receive state severance tax
dollars from the production of oil and gas, coal, and hardrock
that does go back into the Department of Natural Resources to
be used on natural resource issues, which abandoned mines are
one of those.
Mr. Soto. Ms. Coleman, same question. Are the polluters
long gone in Montana? And if so, how did that happen?
Ms. Coleman. Thank you, Congressman Soto. Yes, they are. In
fact, the Abandoned Mine Lands Program is restricted to only
work on true abandoned mines and that is where no potentially
liable parties still exist, so a lot of our mines were
abandoned around the 1950s, prior to environmental regulations.
Mr. Soto. And does your state now have an abandoned
hardrock mine fee?
Ms. Coleman. Thank you, Congressman Soto. Yes, they do. It
is a fee on mineral production in Montana, and I guess we will
be expecting that revenue to come in in 2018.
Mr. Soto. Commissioner Strohmaier, what would the uses be
in some of these abandoned mines? Would it be predominantly
fishing, or would there be swimming or other activities?
Mr. Strohmaier. Thank you, Mr. Soto. All of the above. As I
mentioned in my testimony, we have now over $7 billion in
consumer spending going on in Montana related to recreation. It
is our largest economic driver in the state, and that runs the
gamut of folks who recreate in our waters, related to fishing,
boating, but also simply clean water. Folks come to Montana,
actually, Missoula, Montana, to set up business because of the
quality of life, because we do have clean water across the
board.
Mr. Soto. Thank you, Commissioner. Mr. Wood, if we allowed
fishing and swimming, do we know what safe increments are of
all these various leftover minerals and toxins?
Mr. Wood. I think the states do know those things.
Mr. Soto. Already?
Mr. Wood. Yes, I think so.
Mr. Soto. And do we know what the health effects would be
for fishing or swimming? I mean, would you recommend swimming
in some of these places?
Mr. Wood. You mean places pre-cleanup?
Mr. Soto. No, post-cleanup.
Mr. Wood. I would, yes. We have participated in a number of
those projects, and I can tell you, the fish response is
astonishing.
Mr. Soto. So, for the liability protection, going back to
Mr. Graves and Ms. Coleman, would this extend just to
liabilities related to water pollutants, or are you asking that
we extend it to dangerous conditions such as old equipment that
may have never been picked up or unstable rock foundations? Is
this just going to be a water liability thing, or are you
asking for a blanket liability for everything? We can start out
with you, Ms. Coleman.
Ms. Coleman. Thank you, Congressman Soto. I think, Number
one, more important would be the Clean Water Act liability
protection and also CERCLA liability protection. But, I think,
in order to engage our Good Samaritans and allow states to be
Good Samaritans as well, they need to be assured of
comprehensive liability protection, but I think it would be on
case-by-case basis to be determined.
Mr. Soto. Mr. Graves?
Mr. Graves. I would agree with Ms. Coleman that, really,
the bigger issue is the Clean Water Act and CERCLA liability
protection.
Mr. Soto. It seems that if we are talking about extending
liability protections because you cannot make the water perfect
under the Clean Water Act, there may be some wiggle room there,
but extending it to conditions that should be fixed up before
the public goes in--I could imagine some old rusty equipment
that was never pulled out or rock formations that are unstable
that could collapse on people. Those seem to be things that I
don't personally think the liability should extend to, but
there are always arguments about the water issue knowing that
we cannot get the full clean water attainment. I yield back.
Dr. Gosar. I thank the gentleman.
The gentleman from Virginia, Mr. Wittman, is recognized for
5 minutes.
Dr. Wittman. Thank you, Mr. Chairman. Mr. Wood, I wanted to
ask you a specific question. From Trout Unlimited's standpoint
as you pursue these reclamation projects, first of all, how do
you do that? Do you use subcontractors to do that, or do you
have folks within there that are project managers--give me a
little idea about how that comes about?
Mr. Wood. We do both. One of the first things we did was in
a place called American Fork Canyon in Utah. In that case, this
was a true Good Sam project. There was a landowner, Snowbird
Ski and Summer Resort, that didn't have any historic interest
in the mine waste, but they also didn't want to touch it. And
it wasn't a high-enough priority for EPA to go after them, so
it just sat there leeching out, these tailings piles. So, it
was largely a CERCLA issue.
And, in that case, we hired an engineer who effectuated the
cleanup. It took 2 years for us to work with EPA to get a Good
Sam agreement which fixed the CERCLA problem, from our
perspective anyway, and we still maintain that position. So, we
are really mostly concerned about the Clean Water Act. And it
took about 8 days to do the actual restoration, it was a very
straightforward restoration.
Dr. Wittman. That is great. Let me ask you about, again,
extending from the idea of liability, if you are a project
manager versus just subcontracting with somebody, does the
liability extend to the subcontractor if you subcontract with
them versus if you are the project manager yourself?
Mr. Wood. I am not an attorney, so I don't want to get out
over my skis here, but in the case of that project I just
mentioned, the American Fork, the solution was we came up with
an AOC, an administrative order of consent, from the EPA. And
basically, they said, ``We will hold you harmless if you do
everything that is stated in this contract.'' So, our engineer
had subs come in, and we assume the liability for the subs, and
they have their own liability protection obviously as a
professional engineering company.
Dr. Wittman. Gotcha, so it is kind of a tiered liability;
you have overall liability for the projects, they have
liability for their actions on the job?
Mr. Wood. Exactly.
Dr. Wittman. OK. Very good. Thank you, Mr. Chairman. I
yield the balance of my time to Mr. Tipton.
Mr. Tipton. Thank you, Mr. Wittman. And I thank the panel
for being here. Mr. Chairman, thank you for holding this
hearing. I think it is incredibly important.
Mr. Wood, I do want to be able to compliment you on your
site that you just put up, something on the Animas River,
obviously critically important, the 3rd Congressional District
of Colorado, and something we are proud to be able to play a
role with our Hermosa Creek legislation which went through this
Committee and through the Full House as well.
As you know, in the past, we have had some discussions with
Trout Unlimited in regards to pilot projects, to be able to
prove that something can actually work, and the liability has
always been the sticking point. And I am really gratified to be
able to hear with our colleagues on both sides of the aisle,
the recognition that it is important to really actually start
addressing this.
And would you say from Trout Unlimited's standpoint, if we
do make some incremental gains, is that a positive for the
river?
Mr. Wood. Without question, yes. And I think it is not just
a positive for the river, but for those people who are afraid
of making any changes to the Clean Water Act. If we can model
the kind of behavior that we are all talking about in this room
over a 5- or a 10-year period and people can see that, wow, you
actually can see a response in the aquatic vegetation, you can
see a response in the water quality, you can see better
fishing, there will be more of these projects that will pop up
around the country.
Mr. Tipton. Right. And I think we are all in agreement,
nobody is talking about a wholesale change on the Clean Water
Act, but to be able to make sure that it is flexible enough to
be able to address the challenges that we are finding
particularly in the Mountain West as it pertains to hardrock
mining from abandoned mines. Would that be accurate?
Mr. Wood. From our perspective.
Mr. Tipton. Great. Would you concur with that, Mr. Graves?
Mr. Graves. Absolutely.
Mr. Tipton. Great. I think we have some great ideas. And
some, as my colleague from Colorado, Mr. Lamborn, had pointed
out, through our delegation we have made several stabs at
trying to get Good Samaritan legislation to be able to move
through. But, specifically, to what you were targeting, the
liability issue has always been the sticking point. How long,
and to whom is it going to be applied? When we are looking at
that actual liability, when we are going to have that tailored
a little bit, perhaps to Mr. Soto's point, would you see that
as something that would be acceptable to the broader
environmental community as well?
Mr. Wood. Is that for me, sir?
Mr. Tipton. Yes, sir.
Mr. Wood. Could you just repeat the question for me?
Mr. Tipton. Yes. When we are saying liability from falling
rocks or rusting equipment, we will make this targeted?
Mr. Wood. Yes, I think that is right. I think people would
be afraid of an over-reach. And if there are physical hazards
on site that need to be taken care of, they should be taken
care of.
Mr. Tipton. Great. Mr. Wittman's time has expired. I hope I
am next.
Dr. Gosar. You will be after Mr. Beyer.
Mr. Tipton. Great. Thanks.
Dr. Gosar. Mr. Beyer.
Mr. Beyer. Thank you, Mr. Chairman. And thanks for coming.
This Committee is usually so bipartisan and we get along so
well, it is really fun to have this--so thank you for coming to
have something we can agree on.
[Laughter.]
I just want to associate myself with the idea that Good
Samaritan legislation is good, especially if carefully written.
I think Ms. Coleman, your line here where it says, ``This means
that even where these projects are conducted under established
procedures, condoned by the EPA and/or the state NPDES
authority, and are improving water quality by reducing
pollution loading, they could still be sued by a third party
and be assessed immense, perpetual liability.''
And Mr. Chairman, I just want to point out that my father-
in-law retired from medicine at age 65 and moved to Florida as
he had always dreamed to play golf every day. He lasted 3
weeks. He was bored out of his mind, and came back to Virginia
and began practicing medicine in clinics all over the state
where they had essentially Good Samaritan laws, where he didn't
have to carry this huge burden of liability insurance and was
able to help thousands of people over that 5-year period
because he had something like this in place. Many people, it
was only their first or second time they had seen a physician
in their life, so I associate myself with this in the balancing
of rights.
But moving on, I am concerned that there are 500,000
abandoned hardrock mine sites, and I suspect that a Good
Samaritan will address only a fraction of those. I think about
my experience as an automobile dealer where we pay a fee for
every tire we buy and dispose of, a fee for all of our Freon
titling fees for every car we sell. I have personally had to
supervise the digging up of at least 12 underground gasoline
tanks that I had inherited rather than that I installed.
And I wonder, is there anyone on the panel who thinks it
would be unfair, or a bad idea, or counterproductive, to have a
fee on hardrock mining that mirrors what we do on coal mining?
I am hoping this is someplace we can be bipartisan also.
This might help us do the rest of those 500,000. No, I am not
going to ask you. Thank you.
[Laughter.]
I will note for the record that our panel thinks that they
have no strong objections to that.
And finally, Mr. Graves, you talked about 30 underground
coal mine fires, or later managing 33 underground coal mine
fires. Are these ongoing?
Mr. Graves. They are ongoing, and they change. We have had
new ones crop up this year based on wildfires that ignited some
surface coal waste.
Mr. Beyer. So, they come and they go. Well, let me ask you
a harder question here. There seems to be a fundamental
disconnect in a lot of the testimonies about the Good Samaritan
projects. You have listed all the tremendous work that has
already been done by Good Samaritans, but then talk about all
the Good Samaritan projects that you cannot do because of
CERCLA and the Clean Water Act. What is the difference between
one and the other?
Mr. Graves. I think in my testimony the sites that I did
list that have been done typically are SMCRA sites who are
working on physical hazards, fewer of the environmental hazards
where the CERCLA liability or Clean Water Act liability comes
into play. There are some sites where we have partnered with
Federal agencies when they have exercised their CERCLA
authority, thereby providing protection for all those people
that participate in those projects. So, there is some work that
has been done under the guise of Federal actions, removal
actions by various entities, including the Forest Service, BLM,
and the EPA, where we have had multiple partners together to
implement projects.
Mr. Beyer. One last question for Ms. Coleman and/or Mr.
Graves. You both talked about the 3,800 miles of streams just
in those two states impacted by acid mine drainage or metal
contamination from abandoned mines. Do you have any idea what
the volume is of acid mine drainage entering the waterways
every year, in thousands of gallons, billions of gallons?
Ms. Coleman. I am sorry I don't know that number, but I
could try to look into it and get you an answer.
Mr. Beyer. And Mr. Graves?
Mr. Graves. I don't have that number. I could look into it,
but that would be relatively difficult to establish because it
does vary seasonally.
Mr. Beyer. If you could try at least. One of the things we
are trying to do is, we had a lot of hearings last year about
the Gold King Mine spill, which was 3 million gallons, and it
was a big deal and is incredibly ugly. It makes for great
video. I am trying to sense how big was that relative to what
is going on in your states year after year after year, perhaps
not in a course of a couple of hours, but over the course of a
year. It would be nice to get that in perspective. And with
that, Mr. Chairman, I yield back.
Dr. Gosar. I thank the gentleman. I thank the gentleman for
his analogy with health care because I think that was a very
good example. Thank you.
The gentleman from Colorado is acknowledged.
Mr. Tipton. I thank you again, Mr. Chairman. And I am glad
Mr. Beyer, my colleague, brought up the Gold King Mine. When
the adit was breached in 2015 with the EPA breach, we did see
the 3 million gallons go in. And I would concur over the long
haul, you will see gallons that are flowing in, that massive
impact at that one time, flowing in and making the river flow
gold was dramatic literally to our local communities. In the
state of Colorado, we have a pretty good track record of trying
to be able to move forward on this.
Mr. Graves, I had a couple of questions, maybe they are a
little specific to our state. Would you maybe go through a
little bit of the process that is required for projects under
Colorado law for the Inactive Mine Reclamation Program? What is
the approval process that you have to be able to go through?
Mr. Graves. For our process for inactive mine work that we
do, it kind of falls into various categories.
For the physical safety closure work that we do throughout
the state, that is sealing shafts and adits and other physical
safety features where the public can get injured, the process
we go through is we receive grants from the Office of Surface
Mining, and then we propose projects throughout the state to
address the highest priority physical safety hazards, and then
we have an advisory council where we bring those projects to
them, and they then approve it for presentation to our Mine
Land Reclamation Board where it gets final approval for those
projects to proceed.
With respect to the environmental side of the work that we
do, that is typically organized through what we call our mixed
ownership group, which is coordination between Federal, local,
and state agencies that meet together and propose projects
based on each individual agency's funding levels and their
specific authorities that they could use to implement projects,
like the Forest Service or the EPA. So, it varies depending on
the types of projects.
Mr. Tipton. OK. Great. And are there any sort of
qualifications necessary for the third-party participation in
the cleanups, any criteria by the state?
Mr. Graves. There is no specific criteria.
Mr. Tipton. No specific criteria. Pretty much the same
circumstances in Montana, Ms. Coleman?
Ms. Coleman. Yes, the same. Most of our Good Samaritan
partners are partners in funding. So, they bring funding to us,
and we do the work with them and incorporate their designs and
our designs at the same time.
Mr. Tipton. And for the both of you, is the third-party
eligibility as Mr. Wood had described, where they were the
principal, are they the ones who determine who can be the third
party? Is that to the principal of person, say in this case
Trout Unlimited as an example, who is going to determine
eligibility for third parties or is that left strictly up to
the principal who is going to clean up?
Mr. Graves. Usually, it is a function of the principal that
is doing the cleanup, but a lot of times it is driven by who is
receiving the funding and who has the funding to actually do
the work.
Mr. Tipton. OK. The same thing in Montana?
Ms. Coleman. I am not sure I quite understood the question
that you are asking.
Mr. Tipton. You will have a third party, as Mr. Wood had
described, it was not necessarily Trout Unlimited, with the
equipment on the ground to be able to start the cleanup. Some
third-party people came in, they were the over-arching. Are
there any eligibility requirements in Montana or is that just
left up to the principal for the third party?
Ms. Coleman. Not that I know of.
Mr. Tipton. OK. Again, I appreciate the panel so much and I
am pleased to hear some good common ground on a critical
important issue for the West. And for our state of Colorado,
Mr. Graves, I appreciate you taking the time to be here. I will
yield the balance of my time to the Chairman.
Dr. Gosar. Thank you. I thank the gentleman. I am going to
save that time until the end of the discussion, because I think
there are some important summaries that we need to get.
The gentleman from Georgia, Mr. Hice, is recognized for 5
minutes.
Dr. Hice. Thank you, Mr. Chairman. And thank each of you
for being here today.
Mr. Graves, I would like to begin with you. So far as it
relates to public/private partnerships, there has been great
success in Colorado and Montana, other examples that are very,
very encouraging regarding the abandoned hardrock mines. With
that in mind, what kind of guidance or assistance would you
need from us, from the Federal Government, to help enable
reclamation projects at the state level?
Mr. Graves. I guess it is less guidance, it is more
protection. We have been talking about Good Sams as a whole and
I think what sometimes gets lost in that broader discussion is
that states really are a Good Sam in most of these cases. And,
also, because we are acting as a Good Sam, we need those same
kind of liability protections. Just because we are a state
doing a cleanup doesn't mean that we are free from long-term
liability associated with the cleanup.
Dr. Hice. So, that would apply to states whether they
already have programs, that type of thing, or not?
Mr. Graves. Correct.
Dr. Hice. The Number one issue would be protection?
Mr. Graves. Correct.
Dr. Hice. OK. Assuming that is kind of across the board,
would most of you agree with that?
OK. One other question for you. What factors do you think
should be taken into account when delegating responsibilities
of program oversight to the states?
Mr. Graves. That is an excellent question. I think it needs
to be a well thought out program, in terms of oversight and
recognizing that the work that is being conducted obviously
comes with certain risks associated with it. So, sufficient
review of projects by appropriate people, I am sure there are
other things I can think of in the future, but----
Dr. Hice. All right. Would anyone else like to address
that?
Ms. Coleman. Thank you, Congressman Hice. I think in
Montana, we feel that because we have primacy on the Clean
Water Act in Montana and also we have other regulations that
would be over these Good Samaritan projects that the Federal
guidance that comes down, we would also like primacy on that in
Montana to determine who is and who is not a Good Samaritan.
And we really like the process in the Pennsylvania example
of community reclaimers where these Good Samaritans come to the
state, form a partnership with the state, and then in that, the
liability protections would be extended.
Dr. Hice. OK. Good.
Mr. Wood, let me ask you this because your organization has
certainly been a part of these reclamation projects in states
across the country. With what you all have done, what elements
of the state program make public/private partnerships
effective? What do we need to know that makes this whole thing
work?
Mr. Wood. We were commenting earlier before the hearing
that the relationships that we have in the two states that are
represented here are phenomenal. There is no daylight between
the work that we are doing with our partners in Colorado or in
Montana. I think that sort of partnership needs to be a really
strong and maintained.
And I think, as was just said, leaving as much discretion
to the state to set the kind of standards they want to set I
think is appropriate.
Mr. Tipton. All right. Do you think the states need to have
a more powerful voice than the Federal Government?
Mr. Wood. In places where the Clean Water Act authority has
been delegated to the state, it is probably appropriate that
they would set the standards.
Dr. Hice. Which makes sense. They are closer to the
problem, so their interest is--and one size doesn't fit all.
This can't just be a cookie cutter thing. Is that more or less
what you are saying?
Mr. Wood. More or less.
Dr. Hice. OK. Anyone else on that? Anybody want to add to
it?
Mr. Strohmaier. Yes. One of the impediments that we found
with working with the Federal Government in particular is from
a contracting standpoint it has been much easier working
contractually with an NGO like Trout Unlimited than it has been
with the U.S. Forest Service. Our local government entity
receives grant monies from Montana DEQ, Department of Natural
Resources in Montana, and then enters into--at least on some of
our CERCLA projects with the U.S. Forest Service--contracts
with them and they administer the actual work. But the
contracting for those projects is a significant burden and
impediment, so I would say engaging local government in the
discussion would be important.
Dr. Hice. Excellent. And, again, I want to say thank you to
each of you. This has been very insightful and informative, and
I appreciate it. I yield back, Mr. Chairman.
Dr. Gosar. I thank the gentleman. They just called votes,
but we will have time.
Mr. Gianforte, you are recognized for 5 minutes.
Mr. Gianforte. OK. Thank you, Mr. Chairman. And thank you
all for your testimony today.
Ms. Coleman, in your testimony, you highlighted the great
work that Trout Unlimited did with Montana AML, specifically on
the Lilly Orphan Boy project on Telegraph Creek. And I commend
your work there getting it cleaned up, but was disappointed to
hear that you were not able to complete the project, that there
was a section that you couldn't touch, and you point out the
irony. But Ms. Coleman, could you elaborate on why you had to
step away from the project and not actually complete it?
Ms. Coleman. Thank you, Congressman Gianforte. We jokingly
refer to that as Phase 2 of Lilly Orphan Boy. We did this
cleanup and we have significant water quality, but there is
still a draining adit in the middle of that site. We have
talked about exploring options, but with so little funds
between not only our program but our Good Samaritan partners,
our hands are kind of tied. And then on top of that, we are
both adverse to accepting that liability from the Clean Water
Act, so----
Mr. Gianforte. So, suffice to say, you cleaned up the whole
site except where it drained out of the adit into the stream?
Ms. Coleman. Exactly. The conversations around the design
were, ``Leave the adit alone, don't touch it,'' because, again,
we are concerned about the ``you touch it, you bought it,'' so
it stays where it is.
Mr. Gianforte. Are there things you could have done to
improve the water quality coming out of the adit and into the
stream?
Ms. Coleman. I think so. We have not done an extensive
geochemical investigation there, but I think so. I think we
could have done a series of ponds to slow that water down and
let the chemistry equilibrate. We could have redirected flow.
We could have done a few things. We didn't do an extensive
study, but I believe we could do more.
Mr. Gianforte. And based on your experience working on
projects like this, if you had done those ponds or some other
passive approach, would that have improved the water quality?
Ms. Coleman. Again, without extensive geochemistry and
modeling, I do think so based on what we have seen.
Mr. Gianforte. OK. And just to put a sharp point on it,
what was it about the adit that caused the working group to not
want to touch it?
Ms. Coleman. Again, it would be that liability risk that
either us or our partners in Trout Unlimited would accept or
would not accept, I guess.
Mr. Gianforte. OK. Just as a follow-on, is there anything
else we should do in this legislation beyond curbing liability
that would allow us to preserve this goal of cleaning up these
mines?
Ms. Coleman. I think it is important to recognize that
Water Quality Act liability is huge, but also CERCLA liability
is significant for the states and Good Samaritans, so that
would be a good place to start. Good Samaritan could get very
big very fast, so I think starting with those two would be a
very good place.
Mr. Gianforte. OK. And then for Mr. Wood. You recommended a
series of pilots, and I am just curious, what would the
qualifications for these projects be? How should they be
chosen? How would you measure success?
Mr. Wood. Well, I would frankly leave that up to the states
working with the EPA to choose where the pilot should be. And
the measures of success--again, I am not a biologist--but I
think improvements in water quality, certainly in trout waters,
improvements in trout populations. I think they are fairly
measurements that we could take.
Mr. Gianforte. OK. Thank you to the panel again for your
testimony. This was very informative. Mr. Chairman, I yield
back.
Dr. Gosar. I thank the gentleman. I have just a couple of
summaries here.
Mr. Wood, you have been involved with some of these
demonstrations or some of these projects. In these projects,
what do you consider kind of that threshold of change? Is it a
simple project, is it a complex process pilot? Where is the
first problem in the pilot?
Mr. Wood. Where is the first problem, sir?
Dr. Gosar. Yes. I mean, some of the simple mitigations are
pretty simple. I get that. Where is that next threshold for our
pilot?
Mr. Wood. To get to the more----
Dr. Gosar. I am trying to define where we need to go as a
solution. Where do we need to pick the fight so that we can
emulate--once again, one of the things I am going to tell you
is trust is a series of promises kept. There is not a lot of
trust, not only from your side, but from this side to this
side, this side to that side. I think you replicate function by
replicating success.
Mr. Wood. I think that is right. And for that very reason,
my recommendation would be that we keep it simple initially,
and pick high-visibility sites that are in big population areas
where we can ballyhoo and hold up to success so a lot of people
can see it, and then begin to do more of them.
Dr. Gosar. And would you oversee that with a coordination
director, how would you go about that? Would there be one
entity? Because what you are trying to build is trust between
the Federal, state, local NGOs, all the way across the board.
So, how would you put that, who would head that?
Mr. Wood. I think the way it works right now is good and I
wouldn't mess with it. I wouldn't create any over-arching
bureaucracy or apparatus. I think the trust issue is probably
more prevalent with people who are concerned that we are going
to create too many get out of jail free cards and we are going
to start exempting people from various environmental laws. I
think that once we demonstrate that that is not at all our
intent and we see improvements in the environment, that fear
will go away, that trust will be gained, and we can take it to
the next level.
Dr. Gosar. How many pilots do you think we should initiate
so that we can build that trust? What do you think it would
take?
Mr. Wood. Ten is a good number.
Dr. Gosar. Ten? Describe the 10.
Mr. Wood. Well, half of them come through Trout Unlimited.
They are all in watersheds that we pick.
[Laughter.]
I mean, I was in jest, but I am actually partly serious. I
would look for projects where you have a diverse array of
stakeholders and partners because it is going to help to build
that trust that you are talking about. And I would look for
where you are going to see the highest return on investment,
whether it is from a trout response which is what I care about,
or helping endangered species, or reducing downstream water
filtration costs for the local community. I would build an ROI
into the selection of the pilots.
Dr. Gosar. Mr. Graves, do you agree with that?
Mr. Graves. Completely. Yes, I think it is taking advantage
of projects where you have lots of potential partners and
parties. That way, you can show off the work that you have done
and demonstrate the fact that we can all work together to
achieve a common good, which is cleanup on these sites. I think
selecting sites that are relatively simple gives you the best
possibility of achieving that success in a pretty short period
of time.
Dr. Gosar. And coming from Colorado, you could identify a
site within Colorado that you think that----
Mr. Graves. I think we could identify a couple of sites in
Colorado that would provide a good opportunity to demonstrate a
pilot program.
Dr. Gosar. Ms. Coleman?
Ms. Coleman. Thank you. I think it would be important to
work in a watershed where there is other abandoned mine land
work going on, so that you would see substantial improvements
to the whole watershed or the whole drainage. So, I think a
pilot program where there is adjacent work going on would be
really key.
Dr. Gosar. I like the idea, in particular, of leveraging
active mine sites within the geographic area. Because they may
not own the mine site, but when you have a mine presence there,
you actually have a bunch of the infrastructure there that will
facilitate some of the mediation. Would you agree?
Ms. Coleman. I think that could be possible within the
constraints of the pilot.
Dr. Gosar. Yes. I am referencing some areas that are
happening in Arizona.
Mr. Strohmaier, would you agree?
Mr. Strohmaier. I would agree entirely. And I am positive
we could come up with a site in Missoula County, Montana to
participate in the pilot.
Dr. Gosar. The reason I am going there is because you are
going to see some questions from me to you to try to outline
how do we build a pilot program. Because I think we can't go
forward without building some trust through some types of
pilots, and we want a vast array of them so that we can show
from the very easy to the very complicated and how do we
mitigate that.
I see you agreeing, Mr. Minces. Would you agree? Would your
group be behind something like that?
Voice. In consultation with our friends at Trout Unlimited,
of course.
Dr. Gosar. Perfect. I thank the folks, I thank the
witnesses for their valuable testimony, and the Members for
their questions.
The members of the Committee may have some additional
questions for the witnesses, and we ask that you respond to
those in writing.
Under Committee Rule 3(o), members of the Committee must
submit witness questions within 3 business days following the
hearing by 5 p.m., and the hearing record will be held open for
10 business days for these responses.
If there is no further business, without objection, the
Committee is adjourned.
[Whereupon, at 3:31 p.m., the Subcommittee was adjourned.]
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
Rep. Gosar Submissions
--Policy Resolution 2016-07, Cleaning Up Abandoned Mines in
the West, submitted by Western Governors'
Association.
--Policy Resolution 2017-06, Financial Assurance
Regulation, submitted by Western Governors'
Association.
[all]