Cleanup at Abandoned Hardrock Mines: Issues Raised by "Good Samaritan" Legislation in the 109th Congress

Cleanup at Abandoned Hardrock Mines:
Issues Raised by “Good Samaritan” Legislation
in the 109 Congress
Updated December 15, 2006
Claudia Copeland
Specialist in Resources and Environmental Policy
Resources, Science, and Industry Division
Robert Meltz
Legislative Attorney
American Law Division

Cleanup at Abandoned Hardrock Mines: Issues Raised
by “Good Samaritan” Legislation in the 109th Congress
In the 109th Congress, several bills were introduced to address the legacy of
pollution from inactive and abandoned hardrock mines (IAMs) that degrades the
environment throughout the United States, particularly in the West. The
Environmental Protection Agency has estimated that 40% of headwaters in the West
have been adversely impacted by acidic and other types of drainage from abandoned
sites where gold, silver, copper, lead, and iron ore were mined. The core concept
underlying the bills is that, in order to address the problem of pollution from IAM
sites, it is appropriate to encourage cleanup by so-called “Good Samaritan” entities.
To do so, the bills proposed to establish a process for issuing permits to Good
Samaritans and to provide incentives in the form of reduced liability from
environmental laws and less stringent environmental cleanup standards.
This report discusses four bills introduced in the 109th Congress: H.R. 1266 (M.
Udall), S. 1848 (Salazar), S. 2780 (Inhofe), and H.R. 5404 (Duncan). S. 2780 and
H.R. 5404 were identical bills, introduced at the request of the Administration. Three
House and Senate committees held hearings during the 109th Congress on issues
raised by the legislation. In September, an amended version of S. 1848 was reported
to the Senate, but no further action occurred on any of the proposals. This report
discusses several key issues in these bills:
!eligibility for a Good Samaritan permit (especially at issue is
whether Good Samaritans should be limited to government entities
or may also include the private sector);
!standards applicable to a Good Samaritan cleanup (defining what
standards to apply to a remediation project is often a challenge);
!scope of liability protection (at issue is whether and to what extent
the liability and other requirements of Superfund, the Clean Water
Act, and other laws should be waived for Good Samaritans);
!treatment of revenues from cleanup (one particularly controversial
issue is whether Good Samaritans should be allowed to benefit
economically from minerals that are recovered during a cleanup);
!enforcement and judicial review;
!role for states and Indian tribes;
!funding (none of the bills proposed a comprehensive mechanism to
fund hardrock remediation activities);
!terminating a permit; and
!sunsetting the permit program.
Reviewing testimony from congressional hearings on these issues, it is evident
that, except for witnesses testifying in support of their own bills, no witness endorsed
any of the specific legislative approaches in total. For example, some stakeholders
want an expanded definition of who may be a remediating party and favor
elimination of additional regulatory and legal disincentives. But every effort to
broaden the proposals’ scope seemingly enlarges the complexity of the legislation
and raises stronger opposition from groups who prefer a narrower approach.

Introduction and Overview..........................................1
Selected Issues in the Legislation.....................................4
Eligibility: Who Can Get a Permit?................................4
Eligibility: Consideration of CERCLA Lands for
Good Samaritan Cleanups...................................6
What Cleanup Standard Should Apply to Good Samaritan Remediation?..7
Scope of Liability Protection....................................10
Revenues from Cleanup: Can a Good Samaritan Make a Profit?........13
Enforcement and Judicial Review................................15
Enforcement .............................................15
Judicial Review..........................................17
Role of States and Indian Tribes.................................19
Funding ....................................................20
Terminating a Good Samaritan Permit............................21
Sunsetting the Program........................................22
Conclusion ......................................................22

Cleanup at Abandoned Hardrock Mines:
Issues Raised by “Good Samaritan”
Legislation in the 109 Congress
Introduction and Overview
Congress has recently been presented with legislative proposals to address the
legacy of pollution from abandoned hardrock mines that degrades the environment
throughout the United States, particularly in the West. In the 109th Congress, four
bills were introduced that sought to encourage cleanup of inactive or abandoned
hardrock mining sites by so-called “Good Samaritan” entities:
!H.R. 1266, introduced by Representative Mark Udall,
!S. 1848, by Senator Ken Salazar, and
!S. 2780, by Senator James Inhofe, and H.R. 5404, by Representative
James Duncan, identical bills introduced at the request of the
In September 2006, the Senate Environment and Public Works Committee
reported an amended version of S. 1848 that reflected a number of provisions in the
Administration bill and other modifications (S.Rept. 109-351). The 109th Congress
took no further action on any of the proposals, and the following discussion describes
provisions of the bills as of December 2006. Whether these issues or specific
legislation will be considered in the 110th Congress is uncertain.
Mining has been conducted throughout the country for nearly 150 years, but
most occurred before the advent of environmental regulation. Many historic mining
operations were abandoned without being adequately reclaimed against future
environmental damage. There may be more than 550,000 of these sites on public and
private lands in the United States; there is no single inventory of sites, and thus the
precise number is unknown. Although most sites do not pose environmental
problems, drainage or runoff from some (discharges including sulfate, copper, lead,
arsenic, and mercury, for example) continue to pose a threat to both surface water and
groundwater. The Environmental Protection Agency (EPA) has estimated that
approximately 40% of headwaters in rivers and streams in the West have been
impacted by discharges from abandoned hardrock mines, thus threatening drinking
water and agricultural water supplies, increasing water treatment costs, and limiting
fishing and recreation. The number of mines that are causing or have potential to
cause water-related pollution problems is unknown, but is generally believed to be
a small percentage of the total: perhaps 3%-5% of all inactive or abandoned (IAM)
sites. But even so, 3%-5% of 550,000 possible sites in total still represents a large
number of potential sites (16,000 to 27,000) that concerns many persons.

The principal objective indicated for each of the bills was to help solve some of
the problems of environmental pollution emanating from IAM sites. The core
concept underlying the bills is that, in order to address the problem of pollution from
IAM sites, it is appropriate to encourage cleanup by voluntary entities, third parties
who have no history of polluting at a particular site or legal responsibility for its
pollution, but who step forward to clean up acid mine drainage or other pollution
from an abandoned mine. The bills proposed incentives in the form of reduced
liability from environmental laws (such as strict liability for cleanup costs and
restoring damaged natural resources) and less stringent environmental standards
applicable to cleanup activities. Proponents, who included mining companies and
industry associations, maintained that any degree of cleanup is better than inaction
or the status quo, and they argued that, if not addressed in this legislation, the issues
of liability exposure under environmental law and strict regulatory standards could
stymie voluntary cleanups. Opponents, especially many environmental and
conservation advocates, acknowledged that cleanup would benefit the environment,
but they expressed concern that exemptions and relief such as these bills proposed
might be the first step in dismantling key environmental legislation, because the bills
were vague about standards that would apply to a Good Samaritan cleanup. Other
stakeholders in the debate include states and the federal government.
All four bills proposed to establish a process for issuing permits to those who
would be Good Samaritans. Under all four, permitting authority would have been
vested in EPA, but could have been delegated to qualified states and Indian tribes.
The bills would have allowed a potential remediating party to obtain a permit
authorizing it to take steps to improve water quality without being required to comply
fully with water quality standards that would otherwise apply. In addition to
environmental benefits, an incentive for some Good Samaritans is that once a site is
cleaned up, many mines would have the potential to resume mining operations that
could result in economic gains. The bills would have established a process for
identifying what entities and lands are eligible, specifying goals of cleanup and
conditions for permits, and issuing permits. All four were limited to hardrock mines
— gold, copper, silver, and iron ore, for example — although there are some industry
and state stakeholders who favor similar Good Samaritan authority for cleanup of
abandoned coal mines as well (S. 2780 and H.R. 5404, the Administration proposal,
and S. 1848 as reported had one provision concerning coal mine remediation; it is
discussed below on page 12).
There were differences among all of the bills, as discussed below. Of the four,
H.R. 1266 alone was drafted as a measure that would amend the Clean Water Act
(CWA, 33 U.S.C. §1251 et seq.).1 In H.R. 1266, the permit provision would have
been part of the CWA’s overall regulatory, permitting, and enforcement mechanism.
The CWA prohibits the discharge of pollutants into the nation’s waters without

1 Another bill in the 109th Congress that would have amended the Clean Water Act was H.R.
5071, introduced by Representative John Salazar. Like H.R. 1266, it would have authorized
a CWA Good Samaritan permitting process, but its scope was much narrower than the other
bills (it would have established a pilot project for remediation of IAMs in a portion of the
Upper Animas River basin in San Juan County, Colorado), and thus it is not discussed in
this report.

authority under a CWA permit, and H.R. 1266 would have amended the act’s
principal permit provision, called the National Pollutant Discharge Elimination
System permit (NPDES, Section 402, 33 U.S.C. §1342), by adding a new subsection
with requirements specific to Good Samaritan permits.
The Administration bill, S. 2780 and H.R. 5404, was a stand-alone bill. It
proposed Good Samaritan relief from requirements of the CWA and the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA, or Superfund, 42 U.S.C. §9601 et seq.). The fourth, S. 1848, also a
stand-alone bill, proposed that a permitting authority could provide Good Samaritans
with relief from the Clean Water Act and CERCLA, plus other specified federal
environmental laws, as well as state and local laws.
Proponents of Good Samaritan legislation have discussed many of these issues
for nearly a decade, but until recently, congressional committees have given limited
consideration to the concept. In the 106th Congress, the Senate Environment and
Public Works Committee held a hearing on S. 1787, a Good Samaritan bill
introduced by Senator Baucus.2 Another Good Samaritan bill was introduced in the

108th Congress (S. 1660, Senator Campbell), but no legislative action occurred.

In the 109th Congress, three House and Senate committees held hearings on
Good Samaritan issues raised by the legislation.3 The Senate Environment and
Public Works Committee approved a modified version of S. 1848, incorporating
some provisions of the Administration’s proposal and other amendments, in
September 2006 (S.Rept. 109-351).4 Testifying at the hearings were witnesses
representing EPA, states, hardrock mining industry companies and associations, and
environmental groups. Reviewing these recent hearings and the Senate hearing in the
106th Congress, it is evident that, except for EPA and congressional witnesses
testifying in support of their own bills, no witness endorsed any of the specific
legislative approaches totally or wholeheartedly. The proposals have been criticized
as either too narrow or too broad, depending on the witnesses’ perspective. For
example, some stakeholders want an expanded definition of who may be a
remediating party and favor elimination of additional regulatory and legal
disincentives. But every effort to broaden the proposals’ scope seemingly enlarges

2 U.S. Congress, Senate, Committee on Environment and Public Works, Subcommittee on
Fisheries, Wildlife, and Water, “Good Samaritan Abandoned or Inactive Mine Wasteth
Remediation Act,” Hearing, 106 Congress, 2d Session, June 21, 2000 (S.Hrg. 106-955) 119
p. (Hereafter, 2000 Senate Hearing).
3 U.S. Congress, House, Committee on Transportation and Infrastructure, Subcommittee on
Water Resources and Environment, “Hearing on Barriers to the Cleanup of Abandoned
Mines Sites,”March 30, 2006 (unpublished); U.S. Congress, Senate, Committee on
Environment and Public Works, “Oversight Hearing to Consider Whether Potential Liability
Deters Abandoned Hard Rock Mine Clean-Up,”June 14, 2006 (unpublished); U.S. Congress,
House, Committee on Resources, Subcommittee on Energy and Mineral Resources,
“Oversight Hearing on Opportunities for Good Samaritan Cleanup of Hard Rock Abandoned
Mine Lands,” July 13, 2006 (unpublished).
4 In this report, discussion of the provisions of S. 1848 refers to those in the bill as reported.

the complexity of the legislation and raises stronger opposition from groups who
prefer a narrower approach.
Selected Issues in the Legislation
This report discusses several issues that have drawn attention: Eligibility for a
Good Samaritan permit, standards applicable to a Good Samaritan cleanup, scope of
liability protection, treatment of revenues from cleanup, enforcement and judicial
review, the appropriate role for states and Indian tribes, funding, terminating a
permit, and sunsetting the permit program. This discussion does not address every
issue in the bills (for example, it does not analyze procedures for issuing Good
Samaritan permits), nor does it discuss general background on the problem of5
inactive and abandoned hardrock mine sites.
Eligibility: Who Can Get a Permit?
The issue of permit eligibility concerns the universe of parties who may
undertake IAM cleanup under a Good Samaritan permit. It has several aspects,
including whether Good Samaritans should be limited to government entities or may
also include the mining industry and others in the private sector, and how the
legislation specifies that anyone with existing or prior responsibility for
environmental pollution at the site is restricted from eligibility for the liability and
regulatory relief exemptions provided by a Good Samaritan permit.
Some argue that a Good Samaritan should only be working on behalf of the
public welfare, meaning that remediation actions must be entirely governmental.
Government, it is argued, unlike commercial or philanthropic enterprises, seeks to
balance the needs and desires of society’s many competing interests, and government
agencies are accountable to elected politicians and ultimately to the public.
According to this view, there is concern that if private entities are allowed to get
involved in remediation, and profits from the activity are generated, the Good
Samaritan’s motives could be less focused on cleanup. If the point of the legislation
is cleanup, eligibility should be limited, so that questions of monetary awards and
profit do not arise. Further, in practical terms, some argue that the more expansive
the range of possible eligible parties allowed under the legislation (especially if the
private sector is included), the more complicated and controversial the legislation
Industry groups, on the other hand, argue that mining companies have the
resources, knowledge, and technology to assess and remediate IAM sites. Industry
believes that an existing company that is not responsible for creating an abandoned
site should not be precluded from being a Good Samaritan. If such entities are not

5 For background on these issues, see Patricia N. Limerick, Joseph N. Ryan, Timothy R.
Brown, T. Allan Comp, Center of the American West, University of Colorado at Boulder,
Cleaning Up Abandoned Hardrock Mines in the West, Prospecting for a Better Future,
2005, 48 p.; U.S. Environmental Protection Agency, Abandoned Mine Site Characterization
and Cleanup Handbook, EPA 910-B-00-001, August 2000, 129 p.

allowed to participate under a Good Samaritan permit, they say, fewer sites will be
cleaned up, because companies will not risk the potential liability of a voluntary
cleanup (see discussion below). The more the legislation is broadened in terms of
eligibility, the more Good Samaritans will step forward, they say.
The bills offered several different approaches to this issue. H.R. 1266 would
have limited the universe of eligible parties to the U.S. government, states, political
subdivisions including municipalities, or Indian tribes. It would have barred the
federal government from qualifying as a Good Samaritan with respect to IAM sites
on federal land (that is, the federal government could clean up an IAM site on federal
land, but not under the terms, exemptions, and waivers of a Good Samaritan permit).
The apparent rationale for this limitation was that the federal government will always
by considered to be a responsible party on lands that it owns or operates, and
owners/operators are not eligible for Good Samaritan permits. Further, there is a
related belief that federal agencies should be committed to cleanup of sites on lands
that they own or manage in any case and should not, therefore, need Good Samaritan
incentives. Critics argued that these restrictions presented excessive hurdles for
cleaning up the large number of abandoned mine sites in western states that involve
mixed public and private ownership. Under this bill, states would have been treated
differently from the federal government: they would have been allowed to be Good
Samaritans on state-owned land.
S. 1848, S. 2780, and H.R. 5404 included an expansive listing of parties eligible
for a Good Samaritan permit, on the theory that a broader list of eligible permittees
would include more entities with resources and expertise to undertake cleanup.
Under these bills, eligibility would have included individuals, firms, corporations,
partnerships, commercial entities, nonprofit groups, federal and state governments,
political subdivisions of states, interstate entities, commissions, and tribes. These
bills would not have restricted federal or state governments from qualifying as Good
Samaritans on lands that they own or manage.
A related issue in all of these legislative proposals concerns the question of how
to ensure that parties with current or prior legal responsibility for the site may not
receive Good Samaritan permits. This issue arises from the fact that under current
laws, a person who owns or operates a site that is responsible for environmental
pollution continues to be responsible for mitigating that pollution. All of the bills
took the position that an identifiable, financially capable owner or operator should
not be eligible for relief under a Good Samaritan permit and that existing
requirements to clean up according to applicable environmental standards should
apply to an identified owner or operator. However, in the case of the majority of
abandoned and inactive mines, a current owner or operator who could assume
responsibility for cleanup may not exist, or the current owner may be far removed in
time or by legal tie from those who created pollution at the site.
S. 2780 and H.R. 5404 would have barred from eligibility a person or entity who
had an ownership interest in the IAM site or who had had such an interest at any time
during or since the creation of the historic mine residue at the site. Under this bill,
a passive landowner’s land could be cleaned up, but in the Administration’s view, it
would not be appropriate to give liability protection to that landowner. Under S.

1848, a person who had a role in creating the historic mine residue or in creating the

environmental pollution caused by the historic mine residue would not have been
eligible to be a Good Samaritan. However, innocent landowners, bona fide
prospective purchasers, and anyone (other than the current owner) who held title
during the period when hazardous substances were not disposed of at the site, could
potentially have been Good Samaritans. H.R. 1266 did not address the issue of
current or prior ownership.
A closely related issue concerns what efforts permit applicants must make to
search for a responsible owner or operator. All of the bills would have required that
the permit applicant make reasonable efforts to identify current owners or other
legally responsible parties. Some stakeholders have questioned what level of effort
should be required to demonstrate “reasonable efforts” to identify responsible parties,
and they hope to see clarification in legislation. Doing a full search for potentially
responsible parties (PRPs) for a privately funded cleanup is burdensome and costly,
they say. Some also have argued that it would be preferable to put the burden of such
a search on government because, they say, government has the resources and tools
to do a search, which can be complicated. Requiring industry or some other Good
Samaritans (for example, non-profit groups) to expend resources for owner/operator
searches effectively reduces the permittee’s resources for actual cleanup, some say.
However, conducting such searches requires someone’s resources in any case,
whether private or public.
Eligibility: Consideration of CERCLA Lands for
Good Samaritan Cleanups
A related issue concerns whether lands that are currently or potentially listed on
the National Priorities List (NPL) under CERCLA should be eligible for a Good6
Samaritan permit.
CERCLA authorizes the federal government to respond to spills and other
releases (or threatened releases) of hazardous substances, as well as to leaking
hazardous waste sites, through direct action, or by requiring responsible parties to do
so. It also established a trust fund to support federal response actions. Since the
inception of this program in 1980, EPA has catalogued more than 45,000 potentially
contaminated sites in a database called the Comprehensive Environmental Response,
Compensation, and Liability Information System (CERCLIS). To ensure that the
most serious sites are addressed, the law called for EPA to assemble the NPL, a
subset of the larger CERCLIS. As of July 2006, there were 1,244 NPL sites,
including 79 abandoned hardrock mines and mineral processing sites, plus 580 more7
mining and mineral processing sites identified in the larger CERCLIS database.
Placing a site on the NPL does not necessarily mean that EPA will take either a short-
term removal action or long-term remedial action to mitigate the hazardous
substances, nor does it assign cleanup responsibility to any specific owner or party

6 For additional information on CERCLA, see CRS Report RL33426, Superfund: Overview
and Selected Issues, by Jonathan Ramseur.
7 For a list of these sites, see []
and [].

at the site. However, if an NPL site is scheduled for a federal response, there will be
a diligent search for responsible parties, whether or not monies from the Superfund
trust fund will ultimately be used to pay for a cleanup (see discussion of liability,
With respect to the Good Samaritan legislation, some stakeholders contend that
it would be appropriate to include certain IAM hardrock mining NPL sites as eligible
for voluntary cleanups, since they might be cleaned up more quickly than under the
Superfund program, which is widely criticized for excessive costs, bureaucratic
processes, and delays. On the other hand, others argue that NPL sites should not be
eligible for Good Samaritan cleanup, because doing so would likely result in less
stringent cleanup standards than a Superfund cleanup would require. In addition, if
federal Superfund resources are likely to pay for the cleanup, it would be more
efficient for Good Samaritans’ resources to assist non-Superfund lands, particularly
since hardrock mining sites are in many cases much more expensive to clean up than
other NPL sites. However, with the expiration of the Superfund taxing authority on
December 31, 1995, Superfund cleanup funding has become heavily dependent on
general revenue appropriations.
The bills presented different approaches to this issue. H.R. 1266 would have
excluded lands identified for remedial action under CERCLA and lands designated
for remedial action under the Uranium Mill Tailings Radiation Control Act.8 S. 1848
would have excluded sites on the NPL. S. 2780 and H.R. 5404 would have excluded
from eligibility lands that are included on the NPL or lands that are the subject of a
planned or ongoing response or natural resources damage enforcement action under
CERCLA.9 In addition, S. 2780 and H.R. 5404 would have allowed case-by-case
exceptions from these restrictions to be made if the remediation project would
accelerate environmental improvements and would not otherwise interfere with any
other planned remediation reasonably likely to occur at the IAM site.
What Cleanup Standard Should Apply to
Good Samaritan Remediation?
A key element of the Good Samaritan proposals is the concept of providing an
incentive to those who voluntarily clean up IAM sites by not requiring that their
activities meet stringent environment protection standards that would otherwise
apply. The basic concern was explained by an EPA official in House testimony on
March 30, 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

8 The Uranium Mills Tailing Radiation Control Act of 1978 (42 U.S.C. §7901) provides for
the stabilization and disposal of the waste byproducts of the extraction and processing of
uranium and thorium mining to mitigate the hazard of radon diffusion into the environment.
9 CERCLA requires responsible parties to address the environmental harm caused to injured
natural resources by paying to restore or replace the damaged resource and paying damages
for the lost use of a publicly owned resource, including the costs of performing the
associated damage assessment.

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 the10
If most stakeholders agree that adjusted standards are appropriate, then the
issues include what the goals of cleanup are, what standards should apply to Good
Samaritan cleanup over what time frame, and what constitutes success. A report by
the Center of the American West suggests a number of questions to consider in the
context of recalibrating standards, beginning with, what is the intention of cleanup?
If, for example, the intention is to restore fish to a stream, is partial cleanup adequate
for that? Failing that, what cleanup benchmarks are appropriate? Would those goals11
be feasible and economic?
Among stakeholder groups, there is a widely held view that a remediation
project should be required to achieve significant environmental improvement over
existing conditions. Most agree that implementation of a Good Samaritan project
generally should not require achieving specific numeric effluent limitations for
discharges to surface water (as would normally be required under a Clean Water Act
permit). However, legislating definitions that provide sufficient clarity on the
standard so that it can be interpreted and understood by all — the permit issuer,
permit applicant, and the public — is particularly challenging. The challenge
involves stating a standard broadly enough that the permit issuer has flexibility to
tailor it to individual sites, but with sufficient specificity so that the permittee and the
public understand what is required and what level of water quality improvement is
anticipated. There is concern that, if the cleanup standard is loosely defined, it could
permit poorly conceived projects.
Each of the bills attempted to strike a balance between identifying a cleanup
standard and yet doing so flexibly. Each took a slightly different approach to this
issue, but they generally included a broadly stated goal, such as improving water
quality. Several referred to improving water quality to the maximum extent
practicable, considering resources available to the Good Samaritan for use at the site.
H.R. 1266, for example, stated that a permit could be issued if the applicant
demonstrated “with reasonable certainty that the implementation of the [remediation]
plan will meet applicable water quality standards to the maximum extent practicable,
but in no circumstances worse than the baseline water conditions ... taking into
consideration the resources available to the remediating party for the proposed

10 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.

11 Center of the American West, University of Colorado at Boulder, Cleaning Up
Abandoned Hardrock Mines in the West, Prospecting for a Better Future, 2005, p. 37.

S. 1848 stated that the principal purpose of a project would be reduction of
pollution caused by historic mine residue. A permit could be issued if the permitting
authority determined that the project would improve the environment of the mine site
“to a significant degree” and would meet applicable water quality standards “to the
maximum extent reasonable and practicable under the circumstances.” S. 2780 and
H.R. 5404 stated that the purpose of a project would be to mitigate effects of historic
mine residue to improve the environment. A permit could be issued if the project
“will result in improvement to the environment, including water quality, in the area
of, or downstream from, the mine site.” The Administration bill also required the
permit applicant to “minimize any short-term environmental impacts from the
remediation, to the maximum extent practicable.”
In congressional testimony, stakeholders expressed a range of concerns about
how this issue was addressed in legislation, but all seemed to recognize that defining
“significant improvement” is difficult. Environmental groups and states
acknowledge that it is not always possible to achieve applicable water quality
standards, but they worry (environmentalists, especially) that if the goal of meeting
water quality standards is totally discarded for Good Samaritans, it has the effect of
accepting that there is no realistic hope that standards will ever be met at those sites.
This concern can be somewhat addressed, they say, by including “maximum extent
practicable” language.12 Industry groups, on the other hand, contend that “maximum
extent practicable” language is too restrictive. Including such a term, they assert, will
lead to delay in getting cleanup started because of protracted debate about its
It is unclear whether any of the bills discussed here fully satisfied these varied
concerns, especially because none of the bills included definitions of terms such as
“maximum extent practicable,” thus potentially giving considerable discretion to the
permitting authority and those responsible for enforcing permits. The Administration
bill, for example, stated that a permit could be issued if the permitting authority
determined that the project “will result in improvement to the environment,” leading
to the question of what that term might mean — 10% improvement? 50%? 90%? or
some other?
The National Research Council observed in a 2004 report on hardrock mines
that the goal of IAM remediation (especially at very large mine sites) should perhaps
be stated in terms of achieving characteristics of a healthy aquatic ecosystem (based,
for example, on biological performance goals such are derived from habitat indices),
not on achieving a specified concentration of a contaminant. In doing so, the NRC
said, it is important to specifically define what is necessary to achieve protection of
the environment and what monitoring information is necessary to evaluate progress.13
This approach would complement states’ existing efforts to attain specific designated
uses (such as fishing, swimming, and drinking) for their surface waters.

12 Sara Kendall, Western Organization of Resources Councils, in 2000 Senate Hearing, p.


13 National Research Council of the National Academies of Science, Board on
Environmental Studies and Toxicology, Superfund and Mining Megasites, Lessons from the
Coeur D’Alene River Basin, Washington, D.C., 2004, p. 426. (Hereafter, 2004 NRC Report).

Scope of Liability Protection
Proponents of Good Samaritan legislation contend that liability under existing
environmental laws is a major obstacle to voluntary cleanup of IAMs, citing in
particular CERCLA and the CWA.
Under CERCLA, an entity is liable for cleanup costs and natural resource
damages resulting from release (or threatened release) of hazardous substances if that
entity falls into any of four categories of potentially responsible parties (PRPs). At
least two of those categories might apply to the Good Samaritan who attempts an
IAM cleanup. First, such an entity might, by virtue of its involvement at the mine,
be deemed an “operator” of the “facility” where the release occurred. Second, a
Good Samaritan might constitute an “arranger” — someone who arranged for
transport of hazardous substances from the IAM facility to another site. A Good
Samaritan could face a stringent liability scheme if designated a PRP under
CERCLA. It is strict (does not require negligence) and joint and several (a single
liable party among several can be held responsible for the entire liability). And
liability may attach even though the Good Samaritan does not cause or contribute to
the hazardous substance release. Finally, a Good Samaritan-PRP could not choose
to deal with only certain aspects of an IAM’s pollution, cleaning up only part way
(i.e., the easiest or most cost-effective problems). Rather, CERCLA requires that
cleanups meet all applicable or “relevant and appropriate” federal and state standards.
CERCLA’s expansive liability scheme was intended to embody Congress’s
policy decision to adopt a “polluter pays” approach in the act, as is already provided
in some other federal environmental statutes. Aside from its perceived fairness,
“polluter pays” holds down the public funding needed for cleanups. Many
stakeholders in the Good Samaritan debate argue, however, that holding those who
voluntarily clean up IAMs to the same liability rules will, by inhibiting cleanup
activity, only add to government costs. Mining companies have been the biggest
supporters of providing broad liability exemptions to Good Samaritans — arguing
strongly for explicit release from both the CWA and CERCLA. Without exemptions,
according to one industry witness in 2000, “...we are afraid that a number of
remediating parties will be fearful of the draconian liability system [in CERCLA] and
the fact that liability could attach to any person who owned, operated, or otherwise
controlled activities at the sites.” Further, this witness said, “there is no guarantee
that today’s non-CERCLA site won’t be a CERCLA site tomorrow,” making the
prospect of being subject to that law a strong disincentive to remediation.14
The Clean Water Act comes into play chiefly because of its requirement that all
point-source discharges into waters of the United States must be authorized by a
permit under the act, and the likelihood that a Good Samaritan could be deemed
subject to that requirement. CWA permits impose liability in two senses that are
somewhat different from CERCLA liability. First, they contain conditions requiring
the permit holder to comply with effluent limitations and water quality standards in
streams that are already violating these standards. Thus, there is “liability” for the

14 Jack Lyman, Executive Director, Idaho Mining Association, in 2000 Senate Hearing, p.


necessary expense. Second, noncompliance with permit conditions may result in
civil and criminal penalties. In addition, the CWA contains an “emergency powers”
authority, rarely used, under which EPA can seek a court order requiring such action
as may be necessary to remedy an imminent and substantial endangerment. But
while CERCLA allows EPA to either order PRPs to clean up, or clean up itself and
then seek reimbursement from PRPs, the CWA authorizes only the former.
Some have argued that it is unnecessary to include CERCLA in the legislation,
because if the Good Samaritan’s remediation activity is covered by a CWA permit,
it would be immune from CERCLA liability under CERCLA Sections 107(j) and
101(10). These sections bar any person (including EPA) from recovering response
costs or damages when the release was authorized by a CWA permit. (One can easily
envision IAM remedial actions, however, that do not call for CWA permits, or
releases to other environmental media in addition to surface waters, negating this
argument in those cases.) Separately, CERCLA Section 107(d) exempts from the
act’s liability scheme those rendering care or advice on a cleanup in accordance with
the National Contingency Plan.15 Under these provisions, actions taken under
Superfund generally must provide protection equivalent to those under environmental
laws, such as the CWA. Some argue that Good Samaritans may take advantage of
this exemption, which is available to a private party who is not otherwise liable at the
site and whose actions or omissions are not considered negligent. Critics of
including an exemption from CERCLA say that it would raise other questions as
well. For example, it is unclear whether the remediating party would still be shielded
from CERCLA liability after the Good Samaritan permit expires, and not all
stakeholders believe that post-remediation exemption from liability is appropriate,
in any case.
Environmental groups urge caution in granting Good Samaritans exemptions
from existing laws, as they worry that such exemptions might be the first step in
dismantling key environmental legislation (although the CERCLA liability scheme
already contains many exemptions). Lowering the floor for the mining industry is
unwise, they say, because doing so could promote opportunities for environmental
conditions to worsen. Stringent liability may have occasional adverse consequences,
some in those groups say, but at the large majority of sites, such consequences are
offset by the liability scheme’s value in driving and achieving cleanup. According
to this view, if Congress reaches too broadly to encourage cleanup of the most easily
remedied sites, it will put at risk the current liability leverage that leads to cleanup
of difficult and expensive mining sites. Proponents of the legislation, on the other
hand, argue that actual or potential liability under existing environmental laws is a
major obstacle to voluntary cleanups of IAM sites.
Some also have argued that Good Samaritan legislation is not needed, because
IAM cleanup projects can be authorized by EPA using its inherent enforcement
discretion (model orders or consent agreements under Superfund) that tailor liability
relief and environmental requirements to a project and obviate the need for additional

15 The National Oil and Hazardous Substances Pollution Contingency Plan, or NCP,
contains the procedures and regulations for implementing the Superfund programs. It is
codified at 40 CFR Part 300.

federal, state, and local permits for cleanup. One such project is being undertaken
by the conservation group Trout Unlimited (TU) to clean up an abandoned mine in
Utah’s American Fork canyon. Working with a private landowner, TU is involved
in a multi-year effort to improve the watershed’s water quality and restore habitat of
a rare cutthroat trout population. EPA and others acknowledge that using such
enforcement mechanisms is an option, but say that doing so is cumbersome and does
not guarantee public participation. Trout Unlimited testified in support of improving
environmental quality at IAMs, either through new legislation or creation of a new
permitting system at EPA under existing law.16
All four of the bills included in their stated purposes the limitation of liability
for those who clean up IAMs, as a way of encouraging remediation. H.R. 1266
limited liability only, or primarily, for compliance with CWA standards. It stated that
a Good Samaritan permit would require compliance with CWA Sections 301 and 302
(both concerning effluent limitations) and Section 402 (including the NPDES permit
program) “to the maximum extent practicable,” as specified in the permit. It also
made clear that no immunity from CWA Section 504 (EPA emergency powers) was
conferred. Nor did H.R. 1266 appear to confer liability protection in connection with
CWA sections other than those listed, such as CWA Section 311 (liability for
hazardous substance spills into navigable waters) or Section 404 (wetlands permits).
Section 404 of the CWA prohibits the discharge of dredged or fill material into
navigable waters of the United States without a permit. It is likely that some IAM
remediation projects would involve dredging or filling activities.
H.R. 1266 also explicitly addressed Section 401 of the CWA. Under Section
401, applicants for a federal permit must obtain a state certification that the project
will comply with state water quality standards. H.R. 1266 waived Section 401 for
a Good Samaritan permit. However, in a somewhat circular manner, this bill stated
that in a case where Section 401 would otherwise apply, the state must concur, or no
permit could be issued. Finally, H.R. 1266 included a provision requiring that states
and Indian tribes not be relieved of obligations under CWA Section 303 to see that
water quality standards are attained. Some states have been critical of this provision,
since under that bill, the permitting authority could authorize a discharge that does
not meet water quality standards.
S. 1848, S. 2780 and H.R. 5404 were broader in their liability exemptions than
H.R. 1266. S. 2780 and H.R. 5404 conferred on Good Samaritan permittees a
categorical exemption from CWA requirements and liabilities (avoiding the point
made above as to noncoverage of unlisted sections of the act) and added an
exemption from CERCLA. Moreover, the same liability protections were afforded,
without the need for a Good Samaritan permit, for IAM remediation pursuant to a
coal mine reclamation plan approved under the Surface Mining Control and
Reclamation Act (SMCRA). On the other hand, the bill contained an exemption
from its liability protection for government use of the emergency authorities in the
CWA and CERCLA, or, for that matter, in any law at all. Such authorities could be

16 Chris Wood, Trout Unlimited, Testimony before the Subcommittee on Water Resources
and Environment, Committee on Transportation and Infrastructure, U.S. House of
Representatives, March 30, 2006, p. 6.

used to compel extra measures by the Good Samaritan. In addition, the
Administration bill exempted actions of a permitting authority or any other person
under this legislation from compliance with the environmental assessment provisions
of the National Environmental Policy Act (NEPA).
S. 1848 offered the possibility of the broadest liability protections of all. It
declared that the permittee receives protection from liability under the environmental
laws listed in the permit, and then enumerated, apparently nonexhaustively, laws that
may be listed there: the Toxic Substances Control Act (TSCA), Solid Waste Disposal
Act (or, the Resource Conservation and Recovery Act, RCRA), CWA, CERCLA,
and state, local, and tribal environmental laws and ordinances. In this bill, which
laws and which requirements of the laws were exempted would be entirely at the
discretion of the permit issuer, unlike in S. 2780 and H.R. 5404. While this bill
authorized exemptions from TSCA and RCRA, it also stated that a Good Samaritan
permittee still must comply with TSCA and RCRA when treating or disposing of
materials removed from the mine site, such as hazardous wastes or PCB-bearing soils
that must be removed off-site.
Some argue that exemption from an extensive list of federal, state, and local
requirements is appropriate, so as to eliminate all uncertainty about the scope of the
bill’s liability exemption and to give flexibility to the permitting authority. Others
have criticized the potential exemptions as being unnecessarily broad, and the
reported bill dropped some exemptions in the bill as introduced (the Clean Air Act
and Safe Drinking Water Act). A further concern raised by critics is that waiving
state, local, and tribal requirements could generate significant controversy in federal-
state/local relations, but supporters pointed out that under S. 1848, a Good Samaritan
permit could not be issued if the state or Indian tribe, or a political subdivision if its
requirements were to be waived, was not a permit signatory. S. 1848 incorporated
two provisions from the Administration bill: the same exemption from NEPA, and
the same liability protection for IAM remediation pursuant to a coal reclamation plan
under SMCRA.
Revenues from Cleanup: Can a Good Samaritan
Make a Profit?
At issue is how the legislation addresses the disposition of any revenues that
may result when a Good Samaritan recovers mineral content from historic mine
residue as part of a remediation project. This issue is especially relevant to S. 1848,
S. 2780, and H.R. 5404, proposals which contemplated that the mining industry and
others in the private sector would be eligible for a Good Samaritan permit, and it is
one of the most controversial topics in the debate.
The legislation would have permitted incidental reprocessing or recycling of
wastes directly related to cleanup of an IAM. This would differ, however, from re-
mining at IAM sites, which involves the re-opening of an abandoned mine to develop
remaining mineral reserves. While many stakeholders are greatly interested in
opportunities for re-mining, most acknowledge that this larger issue brings into play
policy considerations, stakeholders, congressional committees, and statutes beyond
those in Good Samaritan remediation. Because of these greater complexities,

industry agrees with critics that Good Samaritan remediation and re-mining (or, new
mining of virgin ores and minerals) should be addressed separately.17
Mining industry stakeholders would like to be allowed under a Good Samaritan
permit to engage in practices such as processing ore that remains as waste on an
abandoned mine site in order to extract valuable materials. If such practices are
allowed, industry says, waste material can be safely removed to ameliorate
environmental problems, while also reducing net cleanup costs by the value of the
recovered materials, saving costs of remediation by others, and benefitting the
company’s economic bottom line. Processing and recovering minerals and ore in the
waste material, these groups say, may often be the most efficient and least costly
means of cleaning up an IAM site, and the potential for making a profit would
provide an added incentive to companies to become involved in cleanup and
accelerate the process of cleaning up abandoned mines.
On the other hand, others including some states and many environmental groups
oppose the idea that cleanup might be part of a commercial, for-profit enterprise,
even incidentally. In their view, mineral recovery should be secondary to reclaiming
the site, and Good Samaritans should not profit from their activities (in keeping with
the view held by many of these groups that qualifying as a Good Samaritan is
inherently only a governmental activity). Any proceeds from the site should be
redirected back to remediation of that site to a higher standard or to another IAM site,
they say. Critics worry that mining companies could abuse liability exemptions and
reduced cleanup requirements provided under the Good Samaritan permit to escape
from liabilities of their own operations, by engaging in mineral processing and new
mining without complying with applicable environmental laws and standards.
Industry responds that such concerns are misplaced, because, in an open permitting
process, the permit issuer and the public will know precisely what the Good
Samaritan intends to do. They agree that new mining activity would require a mining
permit in accordance with applicable environmental laws. Environmental critics also
point out that the practice of processing mine waste that remains at a site has its own
potential environmental complications, especially when it involves the use of cyanide
heap leaching to extract minerals, and might simply exchange one environmental
problem for another. Thus, language in H.R. 1266, requiring no worsening of
baseline water quality conditions, could have become more significant.
Addressing these issues legislatively involves a number of complexities,
especially how to craft a Good Samaritan permit that provides desired liability and
other relief only for the specified voluntary cleanup activity, but then distinguishes
and ceases to provide those protections when economic activity at the site changes
from remediation to development and broader re-mining that might occur. H.R. 1266
was more restrictive than the other bills by requiring that proceeds of recovered
materials must be used to defray remediation costs at the same site or other IAM
sites. Under this bill, the Good Samaritan permit would have terminated when

17 Joan Card, Director, Water Quality Division, Arizona Department of Environmental
Quality, Testimony on behalf of the Western Governors’ Association and the Western States
Water Council before the House Resources Subcommittee on Energy and Mineral
Resources, July 13, 2006, p. 4.

activity at the site changed from remediation to development (defined in the bill to
include mineral exploration, processing, beneficiation, or mining), meaning that
discharges associated with the site would then have been subject to the standard non-
Good Samaritan requirements of the CWA and other environmental laws.
The remaining bills, S. 1848, S. 2780, and H.R. 5404, did not directly address
the revenue or profit issue. They did not appear to preclude revenue-generating
activity, nor did they specify how any proceeds must be used. S. 1848 stated that a
Good Samaritan permit would only authorize activities directly required for
remediation of historic mine residue at the site, while other activities (e.g., additional
mining or processing, which could presumably generate proceeds or profits) could
be authorized under otherwise applicable laws, including the CWA and other
environmental laws. Advocates of these three bills hoped that the revenue-generating
potential that they would allow might attract potential Good Samaritans.
S. 2780 and H.R. 5404 similarly provided that a Good Samaritan permit could
only authorize activities directly related to the remediation of historic mine residue
at or from the site, and this legislation explicitly prohibited authorization of new
mining activity under a Good Samaritan permit. This legislation also required that,
among other things, a permit application should describe the proposed remediation
“including any proposed recycling or incidental reprocessing of historic mine residue
at the site and how it relates to the remediation.” Some have suggested that this
language could be interpreted as potentially restricting opportunities for Good
Samaritans to reprocess mine residue and is thus a concern to certain stakeholder
groups, such as those in the mining industry.
Enforcement and Judicial Review
Enforcement. A number of stakeholders contend that a different set of
enforcement tools is warranted for Good Samaritans who, they argue, are not
polluters and so should not face the possibility of citizen suits or large financial
penalties for their activities. Many of these stakeholders focus particularly on citizen
suits, which have long been a concern of regulated entities, but which are equally
vigorously supported by others, including environmental groups, who view citizen
suits as critical tools to enforce federal environmental laws, especially in light of
what they see as a drop in government enforcement. At issue is whether activities
associated with voluntary cleanup do justify alternative procedures for enforcement
and if so, what mechanisms are appropriate.
A review of the CWA’s existing enforcement authorities, typical of federal
pollution-control statutes, is useful here. CWA Section 309 is the act’s federal
enforcement provision, authorizing EPA to enforce the substantive requirements in
the act or permit terms embodying them. Section 309 gives EPA a broad array of
tools. It may, on its own, issue administrative orders or impose administrative
penalties. Or it may go through a court, filing civil actions (for injunctive relief or
civil money penalties) and criminal actions (based on negligent or knowing
violations, or “knowing endangerment”). The CWA also authorizes citizen suits, in
Section 505. A citizen suit is a civil action brought by any person (who meets

constitutional standing requirements18) against (a) any person violating effluent
standards or limitations under the act, or (b) EPA, for its failure to perform a duty
that is nondiscretionary under the CWA. In the former instance, EPA may intervene
as a matter of right. Remedies include injunctions and civil penalties.
Finally, Section 504 empowers EPA to deal with “imminent and substantial
endangerments” to public health and welfare — whether or not any CWA
requirements are being violated — by seeking a court order requiring the offending
polluter to stop the discharge or take other necessary action. Section 504 is rarely
invoked, possibly because CERCLA Section 106 gives EPA similar abatement
authority without the need for the agency to go to court.
The enforcement approaches in the Good Samaritan bills fell neatly into two
groups — those in the free-standing bills (S. 1848, S. 2780 and H.R. 5404), and those
in the bill that would have amended the CWA, H.R. 1266.
The free-standing bills, perhaps reflecting the view that Good Samaritans are not
polluters and hence should be subject to lesser penalties, afforded fewer enforcement
tools than those available against violators of CWA permits. While CWA permit
violations may be addressed by EPA-imposed administrative penalties and citizen
suits, Good Samaritan permit violations under the free-standing bills did not appear
to address either administrative penalties or citizen suits. S. 2780 and H.R. 5404
allowed the EPA Administrator a choice between only an administrative “order to
comply” or a civil action (penalties and injunctions). S. 1848 authorized civil
enforcement (penalties and injunctions) or enforcement by the permitting authority
through “appropriate administrative or judicial proceedings.” Possibly intended to
further embody the view that Good Samaritan permit violators deserve leniency, the
caps on daily court-imposed civil penalties in the bills ($10,000/day in S. 1848;
$5,000/day in S. 2780 and H.R. 5404, absent “willful or wanton conduct”) were
considerably less than that in CWA Section 309 ($32,500/day, as adjusted by EPA
pursuant to the Debt Collection Improvement Act). And, unlike the CWA, the bills
did not authorize criminal penalties.
Effective enforcement, of course, requires that the enforcer have access to
pertinent information. Like the CWA (Section 308), S. 2780 and H.R. 5404
explicitly conferred upon the permitting entity a right of entry to the premises to
inspect and collect information, and the power to require the permittee to maintain
records and conduct monitoring. S. 1848 contained no such provisions, although by
broadly allowing the permitting authority to insert into Good Samaritan permits any
conditions deemed appropriate, it could potentially have achieved the same thing.

18 Standing is a threshold question that asks whether a plaintiff is a proper person to be
seeking a judicial determination of the issues he or she raises. To satisfy constitutional
standing requirements, a plaintiff must allege a personal injury that is fairly traceable to the
alleged unlawful conduct by the defendant and that is likely to be redressed by the requested

Under these free-standing bills (S. 1848, S. 2780 and H.R. 5404), government
enforcement could have been carried out by EPA, or by a state that issued the permit
under an EPA-approved Good Samaritan permit program.
The enforcement approach in H.R. 1266 was to use that already in the CWA,
seemingly rejecting the idea that Good Samaritans warrant special treatment. It
provided that a permittee’s failure to comply with permit terms relating to water
quality would be subject to enforcement under CWA Section 309. Thus, this bill
brought in enforcement by EPA administrative penalty and by criminal penalties,
approaches in Section 309 that were left out of the free-standing bills. H.R. 1266
also made explicit that permit violators would be subject to CWA citizen suits, which
was not contemplated under the free-standing bills. Many states and environmental
groups believe that the citizen suit enforcement tool is a useful incentive to
encourage compliance with environmental laws and rules. On the other hand,
proponents of the free-standing bills favor a different set of enforcement tools that
do not include citizen suits, on the theory that a Good Samaritan permittee is not a
Because it would have amended the CWA, presumably H.R. 1266 also partook
of the existing record keeping, monitoring, and inspection authorities in CWA
Section 308. This bill further allowed government enforcement by EPA and,
seemingly, by the states (since it expressly contemplated delegation of the permitting
program to the states; see discussion below).
Finally, all of the bills explicitly disclaimed any implication that a Good
Samaritan permit abridges the government’s authority to invoke emergency
Judicial Review. At first blush, the bills appeared to differentiate by form
into free-standing and CWA-amending.
The free-standing bills contained narrow, very targeted judicial review
provisions. The full extent of S. 1848’s judicial review provision was that a court
may set aside the permitting authority’s action in issuing a permit (or a state’s action
in signing one) only on clear and convincing evidence of an abuse of discretion.
Likewise, the entirety of S. 2780 and H.R. 5404’s judicial review provision was that
review of EPA issuance or denial of a permit may be had in the federal circuit in
which the petitioner resides or transacts business directly affected by the issuance or
denial, and that application for review shall be within 120 days of such issuance or
denial. The likelihood is that the many aspects of judicial review of permit issuance
and denial left unaddressed by these provisions would have been governed by the
Administrative Procedure Act (APA), which contains procedures that govern federal19
agency rulemaking. In addition, EPA actions other than permit issuance or denial
presumably would have been judicially reviewable under the APA.20

19 5 U.S.C. §§ 701-706.
20 The Supreme Court has said: “From the beginning ‘our cases [have established] that
judicial review of a final agency action by an aggrieved person will not be cut off unless

A key difference between the free-standing bills was that as applicable, S.
1848’s provisions for judicial review of EPA-issued permits appeared to vest original
jurisdiction in the federal district courts, while those in S. 2780 and H.R. 5404
expressly vested such jurisdiction in the circuit courts. To be sure, S. 1848 did not
actually say in which court original jurisdiction would lie for federal judicial review,
but by default the federal-question statute appeared to vest jurisdiction in the district
courts.21 Historically, federal environmental statutes have required that review
petitions be filed initially in the circuit courts, rather than the district courts, when
Congress determines that the period of litigation-induced uncertainty following
agency action should be as short as practicable. Possibly for the same reason, S.
2780 and H.R. 5404 also mandated that filing occur within 120 days of permit
issuance or denial. S. 2780 and H.R. 5404 appear to have taken the judicial review
provisions verbatim from CWA Section 509(b), which includes original circuit-court
review and a 120-day deadline for review of EPA action in issuing or denying any
permit under CWA Section 402.
These free-standing bills authorized EPA to delegate permit-issuing authority
to qualified states or Indian tribes (see discussion below), and all three provided that
judicial review of state- or tribal-issued permits or of permit denial would be vested
in state court, or in the tribal body that exercises judicial functions of an Indian tribe.
H.R. 1266 contained no separate judicial review provisions. Because it amended
CWA Section 402, however, one presumes that the CWA’s judicial review
provisions governing Section 402 would have applied. As just noted, these
provisions, in CWA Section 509(b), require that a petition for review of permit
issuance or denial be filed in circuit court within 120 days.
In light of the above, one could say that substantively, if not by form, the bills
differentiated into S. 1848 on the one hand, and S. 2780 and H.R. 5404 together with
H.R 1266 on the other. S. 2780 and H.R. 5404 can be grouped with H.R. 1266 in
their common use of the APA standard of review22 and common vesting of original
jurisdiction for review of EPA issuance and denial of permits in the circuit courts.
By contrast, S. 1848 used a more deferential to government, non-APA standard of
review (“clear and convincing evidence of an abuse of discretion”) in some
circumstances, and appeared to contemplate legal challenges being filed initially in
the district courts. Supporters of S. 1848 maintained that the provisions of that bill,
by virtue of encouraging early public input in the permitting process, were intended
to minimize litigation that could delay cleanups.

20 (...continued)
there is persuasive reason to believe that such was the purpose of Congress.’” Bowen v.
Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986), quoting Abbott
Laboratories v. Gardner, 387 U.S. 136, 140 (1967).
21 28 U.S.C. § 1331.
22 5 U.S.C. § 706.

Role of States and Indian Tribes
At issue is the role that states and tribes should play in the Good Samaritan
permit process, and whether the responsibility to authorize permits should be
delegated from EPA to qualified states and tribes.
Each of the bills gave EPA the primary responsibility to issue permits, and each
had provisions requiring that states and tribes consent or concur before the permit
could be issued. S. 1848 had some additional provisions, requiring that a state or
Indian tribe must be a signatory on the EPA-issued permit. Under S. 1848, if the
EPA-issued permit waived any local environmental requirements, the locality would
also have to concur and be a signatory to the permit. Likewise, if a project were on
federal land, the state or locality within which the federal land is located would have
to concur and be a signatory.
All of the bills had procedures for public involvement in the permit process, but
they differed regarding a role for adjacent states that might be affected by an IAM
remediation project. None of the free-standing bills (S. 1848, S. 2780, and H.R.

5404) explicitly gave adjacent affected states a role in that process. For example,

even if discharges from an IAM site affected downstream waters in another state,
none of these bills gave such a downstream state any special rights to comment on
the permit application. This contrasts with the regular process for issuance of
NPDES permits, which presumably would have applied to a Good Samaritan permit
under H.R. 1266. The CWA requires that other states whose waters may be affected
receive notice of each permit application, allows such states to submit written
recommendations on the permit, and requires written notification if the permit issuer
fails to accept such recommendations.
Under all four of these bills, EPA could delegate Good Samaritan permitting to
qualified states and tribes, as is allowed for CWA NPDES permits (EPA has
delegated this authority to 45 states, and EPA issues permits in the remaining states).
Accompanying the delegation authority provisions, S. 1848, S. 2780, and H.R. 5404
also had several related provisions detailing the process for approval of a state or
tribe’s permitting program, transfer of permitting authority from EPA to the qualified
state or tribe, oversight by EPA (EPA would have retained the right to review and
could object to a proposed state or tribal permit), and procedures for termination or
withdrawal of a delegated program.23
In the past, EPA had expressed the view that to ensure national consistency in
the application of an innovative approach to the environment, like the Good
Samaritan proposals, it is appropriate to have EPA in the decisionmaking role. At
the time, the agency’s view was that EPA would be in the best position to establish
criteria, for example, defining terms such as “maximum extent practicable.”24
However, as reflected in the Administration’s proposal, that view has apparently

23 None of the bills appears to allow the EPA Administrator to delegate his authority to
another agency official, such as a Regional Administrator.
24 J. Charles Fox, Assistant Administrator for Water, U.S. Environmental Protection Agency,
in 2000 Senate Hearing, p. 17.

changed. Some also argue today that, because it is likely that only a small number
of Good Samaritan permits will be issued, and only a limited number of states are
likely to be involved, it makes little sense to complicate the permitting process by
authorizing delegation to states and tribes. States, regardless of location or political
leanings, tend to favor program delegation — the position reflected in all four bills.
The traditional argument in support of delegation is that states are closer to the actual
situation, and therefore are more likely to make appropriate individual decisions than
can the national government.
Beyond providing Good Samaritans with relief from environmental liability and
related regulatory requirements, some stakeholders say that the other major
impediment — and an overriding concern — to encouraging voluntary cleanups is
how to fund those types of activities. While no single source provides information
on remediation costs, EPA estimated in 2004 that the cost of remediating all hardrock
mines is between $20 and $54 billion, and that CERCLA NPL sites account for about
$3.5 billion of this amount. However, EPA also stated that at current funding levels
(averaging from $100-$150 million annually by federal, state, and private sources),
no more than 8%-20% of all the cleanup work could be completed in 30 years.25
While other resource extraction sectors (coal, oil, gas, forestry on public lands)
have a dedicated fee-based fund to support site reclamation and remediation,
hardrock mining has no such funding mechanism. Abandoned hardrock mines have
been cleaned up with assistance from an array of private, state, and federal sources,26
but stakeholders contend that the large number of IAMs that pose environmental
pollution problems and that may require cleanup argues for a dedicated source of
funding. The NRC observed in its 2004 report that without a source of secured
funding, there are serious concerns about how a remediation program that is expected
to last for decades, if not centuries, can be successfully implemented.27 In past
Congresses, legislation has been introduced that would establish a reclamation fee
on hardrock mineral producers and create a trust fund from those fees to help pay for

25 U.S. Environmental Protection Agency, Office of Solid Waste and Emergency Response,
“Cleaning Up the Nation’s Waste Sites: Markets and Technology Trends,” 2004, EPA-542-
R-04-015,pp. 11-12 to 11-13. Note that the estimated cost for NPL sites in this EPA report
is less than one-half of the total presented in a 2004 EPA Inspector General report ($7.8
billion). See, U.S. Environmental Protection Agency, Office of Inspector General.
“Nationwide Identification of Hardrock Mining Sites,” Report No. 2004-P-00005, March

31, 2004, 91 p.

26 A large number of IAMs are located on public lands that are owned or managed by federal
agencies, including the Bureau of Land Management, U.S. Forest Service, and National Park
Service. For example, the Forest Service estimates that there are 25,000 to 35,000
abandoned mines on its lands. The Bureau of Land Management estimates that about 5%
of the 100,000-500,000 abandoned mines on its lands have caused or could cause
environmental damage. Using appropriated funds, these agencies are able to clean up
historic mine residue at a few sites — generally a few dozen — each year.
27 2004 NRC Report, p. 417.

cleanup of abandoned hardrock mines.28 Those bills have been highly controversial,
and none has been enacted. The industry has argued, for example, that a fee on
hardrock mining would have an adverse effect on pricing of their commodities in
international markets. However, with current record high prices for some
commodities, such as gold, some observers find that this argument has lost some
None of the Good Samaritan bills proposed a comprehensive, secured
mechanism to fund remediation activities,29 but all of them included provisions that
addressed one source of current funding for IAM cleanup projects: grants under
CWA Section 319. The CWA authorizes these grants to states for a range of
activities under the states’ EPA-approved programs to manage nonpoint source water
pollution by restoring impaired waters and protecting threatened and good-quality
waters. Abandoned mine land reclamation projects that are designed to restore water
quality are eligible for Section 319 funding except where funds are used to
implement specific requirements in an NPDES permit. For example, Section 319
funds cannot be used to build treatment systems required by an NPDES permit for
an inactive mine, but they may be used to fund a variety of other remediation
activities at the same mine. According to EPA, about $1 million per year in Section
319 grants (out of total funding that has averaged about $225 million annually in
recent years) has gone to abandoned mine land projects, for activities such as
education, technical assistance, project demonstration, and groundwater protection.
All of the bills would have clarified that projects to implement IAM remediation
are eligible for Section 319 grants. H.R. 1266 also had a separate provision
authorizing EPA to make a grant (unspecified) to any remediating party for activity
covered by a Good Samaritan permit.
Terminating a Good Samaritan Permit
Another issue is whether the proposed legislation should specify conditions for
terminating a Good Samaritan permit, to determine when liability relief and
regulatory exemptions provided by a Good Samaritan permit would cease.
Under the Clean Water Act, NPDES permits are authorized for up to five years
and thereafter must be renewed. Thus, a Good Samaritan permit issued under the
umbrella of the NPDES program (as in H.R. 1266) would likewise be expected to
expire in no more than five years. H.R. 1266 addressed the issue of permit
termination beyond normal expiration by generally including these factors: a permit
would terminate when remediation was done, when EPA determined that water
quality conditions were no worse than baseline conditions, or when an unanticipated

28 For example, in the 106th Congress, H.R. 395 was such a bill, and bills in the 105th
Congress were H.R. 780 and S. 326.
29 Representative Mark Udall introduced separate legislation, H.R. 1265, to establish a fee-
based hardrock mineral reclamation fund. In past Congresses, he also introduced bills that
combined Good Samaritan permit provisions with fee provisions to support an abandonedth
mine reclamation fund. These bills were H.R. 504 in the 108 Congress and H.R. 4078 inth
the 107 Congress.

event or condition occurred beyond the control of the permittee. In addition, H.R.
1266 stated that the permit would terminate when activity at the site changed from
remediation to development, meaning that discharges associated with the site would
be subject to non-Good Samaritan requirements of the CWA and other environmental
Because the free-standing bills would not have amended the CWA, none of
these bills had the regular five-year expiration of NPDES permits. Under S. 2780
and H.R. 5404, a permit could be terminated if work did not commence within one
year of issuance, if work were not completed by the date specified in the permit
(unless extended by the permitting authority), or for cause, including
misrepresentation or a violation of a permit. S. 1848 provided that a permit would
terminate if work did not commence within 18 months of permit issuance, and it
required that projects be completed by 10 years after enactment of the legislation or
four years after issuance of the applicable permit, whichever was later.
Sunsetting the Program
Beyond the question of whether and under what circumstances a Good
Samaritan permit should be terminated is the question of whether authorization for
the permit program itself should be terminated. A few stakeholders have addressed
this issue, stating that sunsetting after a specific period of time (such as 10 years)
leaves room for Congress to extend the legislation, but also ensures that the act will
automatically lapse if the program does not succeed. Others agree that there does
need to be a time for Congress to review the program to assess the need for changes
or improvements. Including a specific sunset period would give focus to that need
for congressional review, they say. Others may argue, however, that a sunset is
unnecessary, as Congress can review ongoing programs at any time.
H.R. 1266 included a 10-year sunset requirement and, nine years after
enactment, a report to Congress by EPA on Good Samaritan-permitted activities. S.
1848 would have sunset the permit program on September 30, 2016, and would have
required a report to Congress evaluating the permit program on January 1, 2016. The
Administration proposal had no provisions for sunsetting the program or a report to
In congressional testimony in 2006, some witnesses expressed a certain
frustration about the continuing debate over Good Samaritan issues. An EPA witness
said that the issue has been discussed for over a decade and suggested that “action,
not continued debate on this issue, is the only way to clean up what has been
described as a very fixable mess.”30 While most witnesses at these hearings agreed
on the basic point of liability relief to remove some of the obstacles to voluntary
remediation of inactive and abandoned mine sites, others do not yet agree that a

30 “EPA Official Urges Congress to Take Action On Legislation to Expedite Voluntary
Cleanups,” Daily Environment Report, No. 135, July 14, 2006, p. A-3.

legislative solution like any of the 109th Congress bills is needed or appropriate.
Further, as this report has described, these proposals differed in many key and
controversial respects — including scope of liability protection, revenue and profit
questions, and applicable standards — that may still require discussion and debate
before consensus emerges.