The liability issue for Good
Samaritans working on draining mines began in
1994 when U.S. EPA determined that draining
mines are point sources and require National
Pollution Discharge Elimination System permits (NPDES
permits). To resolve the liability issue, most
Good Samaritan legislation has centered on
proposed amendments to section 402 of the Clean
Water Act. The amendments would create a new
NPDES permit specifically for accomplishing
abandoned mine cleanups. There has been a great
deal of variation in different proposals as to
who can be Good Samaritan and as to what lands
are eligible for cleanup.
In 1995, legislation was
introduced to re-authorize the Clean Water Act
which included amendments to numerous parts of
the Act. Part of the bill added a new type of
NPDES permit to section 402. The “remediating
party” was a governmental entity, or a person
cooperating with the governmental entity
excluding anyone who directly benefitted from or
participated in mining at the site. The only
restriction on eligible lands was that the mine
was closed and not in temporary shutdown. The
legislation passed the House (H.R. 961.RFS) but
never made it through the Senate.
106th Congress
In 1999, Sen. Max Baucus (MT)
introduced an amendment (S. 1787) to section 402
of the Clean Water Act. The legislation was a
product of numerous discussions by a number of
stakeholders facilitated by the Western
Governors Association. It created a NPDES
permit program for Good Samaritans remediating
abandoned mines. The Good Samaritans were
limited to governmental entities. Lands were
ineligible for permits if they were listed or
proposed to be listed on the National Priorities
List under CERCLA (Superfund). In addition, if
there existed a party responsible for conditions
at the mine site who was financially capable of
meeting the conditions for a typical NPDES
permit, the site was ineligible for this new
type of permit. There was also a ten year
sunset provision on issuing permits so that
Congress would have to re-authorize the program.
Hearings were held on the legislation, but it
failed to make it out of committee.
108th Congress
In 2003, three bills were
introduced. Rep. Scott McInnis (CO) introduced
a pilot project Good Samaritan bill (H.R. 2835)
which would apply only to the upper Animas River
Basin in Southwestern Colorado. The legislation
closely followed the language in the Baucus bill
(S. 1787) except that private parties could be
Good Samaritans if they were not responsible for
activities at the site that created the problems
and/or they were not owners of the site.
Rep. Mark Udall introduced a bill
(H.R. 504) with two distinct sections. One
section created a funding mechanism for cleaning
up abandoned mines by requiring a royalty on
profits of active mining operations. The second
section created a permitting program under
section 402 of the Clean Water Act which was
more restrictive than the either the Baucus or
McInnis bills. Good Samaritans were limited to
governmental entities and lands were not
eligible for permits if the current owner or
operator or anyone who was responsible
for actions on the site that created the
discharge were financially capable of meeting
the conditions for a typical NPDES permit. In
addition, mine sites were only eligible for
permits “for which no
evidence exists that the lands contain minerals
which could economically be extracted through
the mining, reprocessing, or remining of such
lands.” Lands
identified for remedial action under CERCLA
(Superfund) were also not eligible.
Sen. Ben Nighthorse Campbell
introduced legislation (S. 1660) that was less
restrictive than the two other bills. Good
Samaritans could be governmental entities or
private parties that have not been determined to
be legally responsible for mine discharges.
Lands would be eligible if there were “no
identifiable or economically viable owner or
operator of record for the mine” and the land
was
not listed on the National Priorities List under CERCLA(Superfund).
Both the McInnis and Udall bills
had ten year sunset clauses and the Campbell
bill did not. Hearings were never held for any
of these bills and none of them moved out of
committee.
109th Congress
Four Good Samaritan bills were
introduced in the 109th Congress.
Rep. Udall split his previous bill into two
separate pieces of legislation, funding (H.R.
1265) and Good Samaritan permits (H.R. 1266).
Together, these bills were very similar to the
legislation Udall introduced in the 108th
Congress.
Rep. John Salazar (CO) introduced
a pilot project Good Samaritan bill (H.R. 5071)
which would apply only to the upper Animas River
Basin in Southwestern Colorado. While there
were several modifications, the bill was overall
quite similar to one introduced by Rep. McInnis
in the previous session. No hearing were held
on either the Udall bills or the Salazar bill.
On the Senate side, two other
bills were introduced that took a very different
approach. Both created a stand alone permit
program for Good Samaritans which would preclude
the need for permits under several environmental
statutes. One bill (S 1848) was introduced by
Sen. Ken Salazar (CO) and the other (S. 2780) by
James Inhofe (OK) for the Bush Administration.
(A bill (H.R. 5404) identical to S. 2780 was
introduced in the House by Rep. John Duncan (TN)
for the Bush Administration.)
Parts of the
Administration bill were incorporated into the
Salazar bill which passed committee but was not
voted upon by the full Senate. The amended
Salazar bill (S. 1848.RS) provided Good
Samaritans with liability protection from the
Toxic Substance Control Act, Clean Water Act,
Solid Waste Disposal Act, and Comprehensive
Environmental Response, Compensation and
Liability Act (CERCLA. Any entity could be a
Good Samaritan as long as they had no role in
creating the problems on the site. Any
abandoned or inactive site was eligible for a
permit as long as it was not listed on the
National Priorities List. There was no test as
to whether or not a liable, financially capable
party for the site existed. Generally, a permit
under this legislation would not be terminated.
By holding the permit, the Good Samaritan would
not be liable under the above listed environmental
laws. There was no sunset clause in the
legislation.
110th Congress
Rep. Mark Udall (CO) has
introduced Good Samaritan legislation (H.R.
4011) during the current Congress. For the most
part, it is based upon a proposal drafted by the
Western Governor’s Association after
facilitating discussions among different
interests in 2007. The bill amends section 402
of the Clean Water Act by creating a special
permit for Good Samaritans cleaning up abandoned
mine sites. Any entity can be a Good
Samaritan if it had no role in creating
pollution at the mine site and if it is not
liable for cleanup at the site. Lands that
are eligible for cleanup under this new type of
permit cannot be listed on the National
Priorities List under CERCLA (Superfund).
In addition, eligible lands cannot have an
“identifiable owner or operator” – defined as a
person legally responsible for discharges from
the site and financially capable of treating
those discharges. The bill has a ten year
sunset clause.
