Colorado Lawmakers Fine-Tune Orphan Mine Cleanup Bill

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By Brian Dabbs

April 11 — Lawmakers on Capitol Hill are preparing to take another stab at legislation to facilitate good Samaritan remediation of abandoned and contaminated mining sites, or “orphan mines.”

Sens. Michael Bennet (D-Colo.) and Cory Gardner (R-Colo.), along with Rep. Scott Tipton (R-Colo.), are fine-tuning the draft legislation, dubbed the Good Samaritan Cleanup of Orphan Mines Act of 2016, to optimize its chances of passage.

The bill would allow entities with no record of contamination on a specific site to remediate with limited liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), known as the Superfund law, and the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act.

Orphaned mines are those for which the owner cannot be found or is financially unable or unwilling to carry out a cleanup.

Poised to Moved Forward

The Senate Environment and Public Works Committee considered the draft in early March. Now the proposal is poised to move forward with broad support, Bennet told Bloomberg BNA.

“I do see [introduction] on the horizon,” Bennet said April 7 before the Senate departed Washington for the weekend. “Both the chairman and the ranking member have both said they'd like to move forward, so I'm optimistic.”

Bennet said the sponsors are going to continue to deliberate with Sens. Jim Inhofe (R-Okla.), the committee chair, and Barbara Boxer (D-Calif.), the ranking member, as well as local environmental groups, to “see if we can get this thing on the [Senate] floor in a way that's satisfactory to everybody.”

Bennet spokesman Adam Bozzi told BNA his office is “optimistic” that lawmakers would be able to pass the bill.

Tipton, the only sponsor in the House, echoed those assessments.

“When all three offices have agreed on the language of the bill, identical language will be introduced in both chambers,” Tipton told Bloomberg BNA in an April 11 e-mail. “My office remains closely involved with the drafting of this legislation, and we have been involved in all discussions with stakeholders and others.”

Gardner declined Bloomberg BNA requests for comment on the draft, as did his spokesman, Alex Siciliano.

In 2011, the Government Accountability Office estimated there were 161,000 orphan hardrock mine sites in the Western U.S. and Alaska, and that 33,000 of those sites damaged or continue to damage the environment. Orphan mines often contaminate local water sources with chemicals and hazardous heavy metals.

Modifications in the Pike

The draft bill marks the culmination of more than a decade of orphan mine legislative conceptualizing. The Good Samaritan Cleanup of Abandoned Hardrock Mines Act of 2013 and the Cleanup of Inactive and Abandoned Mines Act of 2005, which the Senate Environment Committee approved a year after introduction, provide much of the foundation for the 2016 version.

Despite the long-running negotiations between lawmakers and environmental groups on the language of the bill, the sponsors are still modifying some provisions.

“I do expect there to be differences in the final language, compared to the version that was discussed at the Senate [Environment and Public Works] legislative hearing back in March,” Tipton told BNA. “That is the nature of negotiations on tough issues like this one.”

In testimony at the hearing, Bennet said his staff relied on environmental groups Trout Unlimited and Earthworks to craft the draft. Spokesman Bozzi pointed Bloomberg BNA to the Animas River Stakeholders Group as another interlocutor.

The three groups continue to work closely with Bennet's office, as well as staffers for the other two lawmakers, the groups told BNA.

Liability, Litigation Concerns

The draft is an impressive and compelling product, but some revisions will help boost its value, those groups told Bloomberg BNA in interviews.

Trout Unlimited and Animas River Stakeholders Group spokesmen said the bill must safeguard well-intentioned good Samaritans from prohibitively costly liability and litigation. The draft exempts good Samaritans, described as those with no ties to orphan mine contamination, from Superfund and Clean Water Act liability related to past, present or future contamination in line with the terms of a cleanup permit.

The bill's sponsors did, however, tack on a $10,000-per-day fine under Superfund and the Clean Water Act for permit violations.

“We're trying to find the right balance, the sweet spot of an appropriate amount of accountability, but not too high of a burden so good Samaritans don't even attempt cleanups,” Steve Moyer, Trout Unlimited vice president for government affairs, told BNA. “Making sure liabilities are not too high and permitting programs are at various risks levels … a lot of that has been pretty much settled. Folks probably won’t want to change much there.”

Peter Butler, Animas River Stakeholders Group coordinator, also told Bloomberg BNA that hefty fines would deter participation in the permitting and cleanup program.

“If [good Samaritans] are concerned about big penalties or whether they have to put up a bond, they'll just say ‘this is too much, we’re not going to do it,' ” he said.

Moyer pointed to citizen suit language as a potential sticking point. The draft carved out a section for citizen suits, but left it blank.

Penalty Discretion

The legislation would allow the Environmental Protection Agency, states and tribes to issue cleanup permits and, in turn, the terms of potential liability. Moyer called on lawmakers to clarify the connection between liabilities and penalties with scale of damage and violation.

“There is discretion in this language, and there would be discretion by EPA, it's just not perfectly clear,” Moyer told BNA. “That’s one of the thoughts on the minds of people. Are there ways to be more clear, and to make penalties commensurate with harm? That would provide some assurances to good Samaritans and lower concerns about financial risk.”

Butler agreed. “There's no need to have big financial assurances for small sites,” he said. “It’s a little hard to make the bill fit all circumstances.”

Moyer said Trout Unlimited would like to clean up mines by funneling contamination into wetlands and ponds, then treating the water before releasing it back into a river via a point source. Liability concerns, however, hinder their ability to do that, he said.

Earthworks Pushes Penalty Sureties

The environmental group Earthworks also is collaborating with Bennet's office to improve the bill, executive director Jennifer Krill told Bloomberg BNA. Krill advocated for ensuring that good Samaritans are held accountable for damage.

“We believe if water quality is made worse, then the liability protection for the good Samaritan should be removed,” she said. “We believe that if the good Samaritan is acting outside of the boundaries of the permit, then liability protection should be removed.”

Krill said cleanup projects should be reserved for simpler projects, such as the removal of waste rock pile at the headwater of a river, rather than more complicated ones like unplugging mine shafts. The legislation should also include more funding for cleanup projects and prohibit remining for profit, Krill said.

The draft provides grant opportunities in accordance with the Clean Water Act.

All the environmental representatives pointed to the Gold King Mine wastewater spill in 2015 in Colorado as evidence of the perils at stake in remediation. The EPA and a long-time contractor released a deluge of waste into an Animus River tributary. The EPA added the vicinity to the Superfund National Priorities List on April 6 .

EPW Leaders on Board

Lawmakers and their staffers didn't specify the changes they'd prefer in communications with BNA. Still, Moyer said the bill reflects an unprecedented level of bipartisanship.

“The three offices have really put a lot of work into it,” he said. “It is bipartisan in nature, which was lacking too much in the past, where one party was pushing one way and the other pushing another way.”

Senate Environment Committee leaders signaled a drive to push the bill forward.

Inhofe told BNA he is aiming to mark up good Samaritan legislation following committee work on Toxic Substances Control Act reform and the Water Resources Development Act. Boxer expressed some concerns with the draft during the March hearing, but touted the bill in remarks to Bloomberg BNA as viable.

“I’ve discussed it with my staff. I think there’s good opportunity there,” she said. “I think there’s light at the [end of the] tunnel on that one.”

To contact the reporter on this story: Brian Dabbs in Washington at bdabbs@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The draft legislation to promote remediation of orphan mines is available at http://src.bna.com/d1V.

The GAO report on abandoned mines is available at http://src.bna.com/d2l.

Good Samaritan Bill Drawn From Previous Versions

The current draft legislation on abandoned mine cleanups is the culmination of more than a decade of legislative conceptualizing. The 2013 and 2005 bills summarized here are the foundations for the 2016 draft.

Good Samaritan Cleanup of Orphan Mines Act of 2016: Sens. Bennet and Gardner, along with Rep. Tipton, aim to allow entities unaffiliated with orphan mine contamination to remediate sites with limited CERCLA and Clean Water Act liability. This legislation does not amend CERCLA or the water act.

Good Samaritan Cleanup of Abandoned Hardrock Mines Act of 2013: Bennet, Tipton and then-Sen. Mark Udall (D-Colo.) failed to advance this bill, which would have amended the Clean Water Act to authorize the Environmental Protection Agency, states and tribes to issue good Samaritan cleanup permits. The legislation would have shielded participants from liability concerns in line with the permit.

Cleanup of Inactive and Abandoned Mines Act of 2005: Former Sens. Ken Salazar (D-Colo.) and Wayne Allard (R-Colo.) sought to authorize the EPA to develop a remediation permit process, which would have issued such permits to good Samaritans. Compared to its 2016 successor, the legislation lacked the full CERCLA and water act liability protections and didn’t include citizen suit language. The 2005 bill, which would not have amended CERCLA or the water act, moved out of the Senate Environment Committee but then stalled.