At the behest of corporate actors in the west, for the past few years Congress has been nipping at the edges of one of the thornier environmental policy issues in the west — abandoned mines. Today the Senate Environment and Public Works Committee marked up S.1848 — the “Cleanup of Inactive and Abandoned Mines Act” — sponsored by Colorado Senators Salazar and Allard (neither of whom sit on EPW — Allard did in the last Congress).

Abandoned mines are a contentious issue out west. You can get a sense of the issues here, here or here. (Or maybe since there’s no wikipedia page on it, it’s not such an important issue?)

Congress originally dealt with AM’s in the 1999 Water Resources Development Act (WRDA) bill. Sec. 560 of S.507 allowed the federal government to “to address water quality problems caused by drainage and related activities from abandoned and inactive noncoal mines.” (Note the word “noncoal.”) It demanded a 50-50 federal/non-federal cost-share when the AM was not on Federal land. But in the end the provision was doomed to be ineffective from the start as it only authorized a total of $5M.

In 2004 the Senate moved AML in Section 4401 of S.2773, the Water Resources Development Act of 2004. That provision moved a bigger portion of the clean-up to the non-federal party (now a 25-75 split) and directed that the non-federal interest pay 100% of the operation and maintenance of the site, but it increased the authorization for the program almost ten times to $45M. One of the more interesting additions in that provision, however, was the “No effect on liability” provision: “The provision of assistance under this section shall not relieve from liability any person that would otherwise be liable under Federal or State law for damages, response costs, natural resource damages, restitution, equitable relief, or any other relief.”

In the end, the AML in the 2004 WRDA bill was not contentious, but WRDA has had trouble passing for other reasons. But the AML issue has remained and
gained enough traction to warrant its own bill.

Today’s markup of S.1848 moves forward a new wrinkle in the AML situation: exempting “good Samaritans” from liability when they move toward cleaning up a mine problem not of their own making. (Background needed: in American law when a party buys land they are assuming the liability of the former owners for any environmental problems that exist or were caused downstream. In some cases companies have purchased such tainted property anyway, but in others it prevents sale. When the original party goes bankrupt the land becomes abandoned and this usually leaves taxpayers in the lurch for cleaning up the mess.) In the proposed bill, a “good Samaritan”:

(A) is unrelated, by operation or ownership (except solely through succession to title), to the historic mine residue to be remediated under this section;

(B) had no role in the creation of the historic mine residue;

(C) had no significant role in the environmental pollution caused by the historic mine residue; and

(D) is not liable under any Federal, State, or local law for the remediation of the historic mine residue.

The contentious part of the bill is the exemptions it gives to good Samaritans in mine clean-up. Sect 3(g)(1)(C), “provides to the permittee, in carrying out the activities authorized under the permit, protection from actions taken, obligations, and liabilities arising under the environmental laws specified in the permit.” Where “environmental laws” are defined in Sect 3(a)(3)(A-J) as:

(A) the Toxic Substances Control Act (15 U.S.C. 2601 et seq.);
(B) the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.);
(C) the Safe Drinking Water Act (42 U.S.C. 300f et seq.);
(D) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);
(E) the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.);
(F) the Clean Air Act (42 U.S.C. 7401 et seq.);
(G) the Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. 7901 et seq.);
(H) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.);
(I) applicable environmental laws of a State; and
(J) applicable environmental ordinances of a political subdivision of a State.

Concern over blanket exemption from liability under these law seems reasonable. However, the bill also sets out a very strict permitting process in which a mine may only be cleaned up in a state which has a “State Remediation Program” and any good Samaritan must apply through this program. Fines for violating the permit are set at $10K/day. Permits must also run through the EPA and may only be granted if the EPA determines, “the project will not degrade any aspect of the environment in any area to a significant degree” and “the project will meet applicable water quality standards, to the maximum extent reasonable and practicable under the circumstances.” [Sect 3(f)(1)(A)(i-iv)]

According to Congressional Quarterly, Senator Boxer (CA) offered a substitute amendment that would have created a federal grant program for clean-up without the liability waivers, but it was rejected 7-11 (that would be party-line with one D voting against her, for those keeping score at home).

It’s not clear to me where this legislation is going from here, but I suspect it’ll be fairly non-contentious and get through the Senate. Enviro groups have their concerns (see this article) but to my eye the EPA permitting provisions seem a pretty solid backstop to the liability relief provisions. I have no idea where the House will take this, but I expect the western reps will try to run it through.