Panel Transcript: Good Samaritan Proposals

Panel:

Good Samaritan Proposals

 

Moderator: Kirsten Engel[1]

Panelists: Steve Moyer[2], Josh Hoffman[3], Andrew Vecera[4], James Hopkins[5]

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Kirsten: Good afternoon, I am Kirsten Engel, a faculty member at the law school and I teach environmental law, administrative law and related topics that often come into play with mining issues. I am the monitor of this last panel, which is devoted to remediation of abandoned mining sites by Good Samaritans – that is, persons or entities that have not had any previous involvement with the mining site before. I think this panel is going to be very interesting and it is going to go into, mostly from a federal angle, the issues of what a Good Samaritan is, who qualifies as a Good Samaritan, who are they thinking about as Good Samaritans under proposed legislation and does it include mining companies? What are the incentives for Good Samaritans to become involved? Is Congress willing to visit the issue of liability relaxations for Good Samaritans, and under what circumstances? Even if they do that, how do we still hold Good Samaritans accountable?  To address these issues we have a wonderful group of panelists starting with Steve Moyer of Trout Unlimited. We also have on the phone Josh Hoffman who is on the staff of the House Committee on Natural Resources. He is also a past recipient of the Society for Mining, Metallurgy and Exploration Congressional Fellowship. Also separately with him on the phone is Andrew Vecera who is counsel for the House Committee on Natural Resources. And then finally we also have Professor James Hopkins here at the James E. Rogers College of Law at the University of Arizona.  He is an associate clinical professor with the Indigenous People’s Law and Policy program and an affiliated professor of American Indian studies, and Latin American studies.  He has degrees from Harvard and the University of Toronto.

 

Steve Moyer – “Some Thoughts on the Citizen Suit Provision of Good Samaritan Proposals”

 

Steve: Cleaning polluted water from abandoned mines is not an easy job. The list of potentially dangerous mine sites is extensive and the sheer scale of their negative impacts on our streams and rivers can seem daunting at times. Yet the many challenges presented by abandoned mine projects do not represent an impossible task. Trout Unlimited has proven that a sensible, holistic approach makes abandoned mine restoration a feasible endeavor. Simply put: it’s doable. But we have some barriers to overcome and Trout Unlimited wants to be one of the soldiers in the conservation army that does a much better job of effectively cleaning up pollution from abandoned mines.

I’ve been with TU for 24 years, and an awesome thing about being in one organization for so long is that I’ve been able to watch it grow. What began as a dedicated group of 30 full-time staff has over decades, developed into a team of 225 strong, doing restoration work across the US, wherever trout or salmon populations are at risk. The wider body of Trout Unlimited is a member-based organization of roughly 155,000 passionate trout anglers who give back to the resource they love by investing dollars and volunteer hours to conserve streams and rivers. Trout Unlimited also seeks to educate and encourage future generations of anglers and conservationists through extensive youth education programs—get those kids off the couch and into a stream!

TU’s work of aquatic habitat conservation often means tackling the ugliest and most imposing threats to our fisheries. Abandoned mine restoration falls squarely into that category.   Abandoned mine sites are notoriously dangerous to aquatic ecosystems because they can leak a frightening spectrum of acidic water, heavy metals and sediments into our streams and rivers at any given time.  The Gold King mine discharge near Silverton, Colorado is a recent example of the grim potential of abandoned mine sites.  On August 5, 2015, EPA personnel, along with workers under EPA contract to mitigate pollutants from the closed mine, caused a massive release of toxic wastewater. Three million gallons of mine waste were released into Cement Creek, a tributary of the famous Animas River. The event is perhaps best known for its visual effect on the Animas— it flowed orange for several days

Although the environmental impacts on the Animas River were not severe, Trout Unlimited and others in the business of river conservation saw the silver lining after the spill. The Gold King Mine discharge was a highly publicized national and eventually worldwide event, receiving significant journalistic attention and airtime on major media outlets. For the first time ever, abandoned mine clean-up was in the national and international spotlight. Conservationists used the event to bring attention to the problems created by abandoned mines, and to rally for a concerted effort to repair those issues permanently.

It was astonishing to see how significant the Gold King event became.  Weeks after it happened I looked over our clip sheet of news stories from publications and radio TV spots from all across the world. While the Gold King mine discharge displayed the danger of full-scale, catastrophic abandoned mine failures, it failed to call attention to the day-to-day, slow leakage of millions of gallons of contaminated mine water from abandoned mines.

Given the coverage we’ve seen, it’s easy to think of abandoned mines solely as a “Western issue.” But I assure you, abandoned mine discharge events are not restricted to the Western United States.  One of the great things about the East is that we have plenty of water. But we also have a lot of abandoned mines—coal-mining operations in the Eastern U.S. were conducted as early as the 1740’s. Unfortunately, the combination of a lot of water and a lot of coal mines means a lot of polluted rivers and streams. Thousands of watersheds and sub-watersheds in the East are adversely impacted by abandoned mine pollution.

I’ve see the devastating effect of coal mines on these waterways, way back in the hills of Pennsylvania, and in other remote regions of Appalachia,  I think of what would happen if these types of events occurred in my home county, Fairfax County, Virginia, just outside of DC. If toxic orange sludge was running through the creek nearby my house, heaven and earth would be moved to fix it within in a week. But in the Clearfield County, Pennsylvania, out of sight of politicians and lobbyists, contaminated water has been a reality of life for decades. The people who live in these affected regions suffer from abandoned mine pollution every single day. It’s our job as conservationists to fix this problem, and to remember that “out of sight, out of mind” is not a legitimate excuse if we fail to correct these issues.

The Superfund Act and the Clean Water Act are two laws designed to address issues created by events like the Gold King discharge and others across the country. Although Trout Unlimited often utilizes these laws to restore rivers and streams nationwide, both laws are lacking when it comes to the particular issue of mine reclamation and clean-up. Thus Congress has taken action, and Good Samaritan bills have been introduced to incentivize landowners and others to reclaim abandoned mine lands and abate water pollution caused by abandoned mines and wells.

Pollution from abandoned mine tailings runs into rivers and streams every time it rains. To mitigate the problem under the Superfund law, restoration workers can collect the contaminated tailings, move it away from the stream, contain it safely, and resolve the problem. Mine tailing removal is an intensive and difficult process, but more often than not it is a doable job. TU has conducted mine tailing remediation on three sites, working alongside the EPA and state agencies to get good Samaritans policy permits underway.

Our major remaining problem is the liability risk posed by the Clean Water Act. Some background: we have found that one way to treat water flowing out of contaminated mine sites is to build natural wetlands that operate as treatment facilities. The water that flows out of these wetlands is far cleaner than it was prior to entrance. But because, under EPA designation, the wetland treatment facility is considered a “point source” discharge, the outflow must meet all the standards of the Clean Water Act. For Good Samaritans these water quality standards are unrealistic and unachievable goals. For an entity like Trout Unlimited, running a wetland facility like the one I’ve described may be a liability; even though the treatment would dramatically improve water quality, we would still be at risk of violating Clean Water Act regulations.

There have been numerous attempts over the last 15 years to pass Good Samaritan legislation. In 2006 Senator Ken Salazar of Colorado created a stand-alone permit program bill for Good Samaritans which would have precluded the need for permits under several environmental statues.  The bill passed out of the Senate Environment Public Works committee, but died shortly thereafter.

Since then there have been a number of other good bills introduced, but none have passed out of committee.  With the attention that the Gold King mine spill has yielded, we hope that this year will be different.

The Colorado Senators and Representative Lamborn, also from Colorado, have drafted bills which are strong attempts to find the “sweet spot” – legislation that provides sufficient legal protection to legitimate Good Samaritans like Trout Unlimited, but also satisfies environmentalists who are worried that Good Samaritan remediation could actually make matters worse on streams.

We are really excited that both chambers are taking action, and we are hopeful something can actually move in the 114th Congress, although there is not much time left.

One the most interesting things about Gold King is not only that it has become fuel for the Good Sam legislation, but that it has also made the environmental community more worried about Good Samaritans.  Some fear more Gold King disasters will occur if Good Sam legislation passes.

            Hoffman:  Andrew and I work at the House Committee on Natural Resources Subcommittee on Energy and Mineral Resources where we handle the bulk of our committee’s issues of mining. Our committee is one of the few Committees with jurisdiction over how Good Samaritan legislation is framed currently. The Committee on Transportation and Infrastructure and the Committee on Energy and Commerce are the other two House committees with jurisdiction over it.

Right now our committee is really the only one moving on the House side. The concept of Good Samaritan legislation for legacy mine sites has been around for a while and we have seen proof of this concept in Pennsylvania state legislation, which warranted going ahead and taking it to the national level. Current congressional interest spawned from the Animus River spill back in August 2015, and is really what is driving our current efforts. There is a senate discussion draft that is being discussed, but I can’t really talk to that in detail.

Specifically our legislation is HR 3843, which was introduced by Mr. Lamborn and co-sponsored by Mr. Young from Alaska and Mr. Tipton from Colorado.  Title III of that bill includes our Good Samaritan provisions.  Primarily it provides limited liability protection for individuals cleaning up abandoned mine lands – both coal and hard rock. This liability relief provided is for the Clean Water Act and the Comprehensive Environmental Response Compensation Liability Act of 1980 (“CERCLA”).  Our legislation compels the Environmental Protection Agency (“EPA”) to create a permitting process for Good Samaritans, with an option for states and Tribes to gain primacy as the permitting agency.

The EPA has the responsibility to develop the initial permitting process guided by the outline provided for in our legislation. The Good Samaritan through the permitting process will go out there and document baseline conditions before any remediation or clean up takes place – taking a snap shot in time of what is really out there on the ground. If the Good Samaritans improve conditions they’re good, they don’t have to achieve clean water standards when they leave that site. If they are negligent or don’t comply with their permits then they are held liable for those actions. As long as they improve conditions at the site while following the terms and conditions of their permit, then the Good Samaritan can’t be held responsible under CERCLA and the Clean Water Act.

Furthermore, we allow the reprocessing of tailings if that is the best way to clean up the site. If there is a huge tailings pile  directly adjacent to a creek then, you, as the Good Samaritan, will want to scoop it up and take it off somewhere – if that somewhere happens to be a mill or processing plant, then so be it.  The bill explicitly allows for that.

To ensure affected communities will not be shutout, we allow for public input on the project. The Good Samaritan and permitting authority should determine how the community feels about the project as often it is the community who is raising the money and the community who acts as the Good Samaritan.

Additionally, we explicitly allow efforts to count as offside mitigation, thereby incentivizing industry to serve as Good Sams. We see industry as a important player because these are the people with capital, the equipment and the technical expertise.  But, we do put side bars on industry seeking to obtain Good Samaritan permits, preventing entities  that may have caused the abandoned mine residue at the site from applying to be Good Samaritans.

Another thing is HR 3843 provides resources to the USMIN project which is an interactive data base of mining features and districts in the U.S. We keep hearing numbers concerning the 400-500 thousand abandoned mine features in the U.S. But not all features are equal threats and this database really informs about the true nature of the problem. You can’t manage it, until you can measure it and this program will really help us be able to measure it.

One final point I would like to make in regards to HR 3843 is the lack of a citizen suit provision in our language. I think the whole citizen suit situation is exactly why we are here today having to generate this language, and by preventing such activities we are ensuring abandoned mines will actually be remediated.

In addition to H.R. 3843 we have 2 other bills responding to the Animus River spill.  One is H.R. 3844 which creates a BLM Foundation and the other is HR 3734 the Mining Schools Enhancement Act. Our response to the Animus River spill is: Give Good Sam’s is the shield that they need to go out there and do good work, Create a foundation that can solicit public funds to clean up AML, and let’s invest in creating the technical expertise based on the mining engineering site while it is promoting research on the best way to acquire.

            Vecera:  I would like to highlight, as our chairman so often does, that at the time of the Gold King mine spill we had more mining engineers working for the committee than the EPA did.  This is a crucial point, and I would like to highlight the importance of having the Mining Schools Enhancement Act work in tandem with the Good Samaritan legislation to ensure qualified, technical individuals are working at federal agencies.

James Hopkins – “Collaborative Federalism: Can Incentives be Provided?”

A significant feature of the proposed Senate Bill for Good Samaritan remediation of orphaned mines is the inclusion of federally recognized Indian tribes and their tribal governments.  For my discussion I will be referencing the Gardner-Bennett Senate proposal in my comments and observations on collaborative federalism.  Not surprisingly, the architects of the proposal have experience working with Native American tribes and natural resources development.  The drafters recognize the role of tribal governments and are strategic in regards to incentivizing tribal participation.  For example, State and tribal governments are equally recognized as permitting authorities and likewise, each are required to have a voluntary Good Samaritan program approved by the Department of the Interior in order to meet the funding eligibility requirements. Similarly, the proposal allows tribal government to seek judicial review of the federal administrator’s determination with respect to conferring or withdrawing a program permit.  From the perspective of tribal law, recognition at the outset of tribal jurisdiction is a prudent strategy in getting tribal governments to participate as well as putting State governments on notice that they also have an interest in abandoned mine site remediation.

Of course the Senate proposal leaves open the question of harmonization with NEPA’s consultation requirements – often a source of criticism in the remediation process.  And yet, one could see a situation where some of the most potentially acrimonious consultation requirements are preemptively settled because the Senate proposal treats tribal governments as equal stakeholders at the planning stage.  I think this fact mitigates criticism that Good Samaritans are somehow going to be exempt from CERCLA’s liability coverage in all circumstances.  Keep in mind that federal permitting is only the beginning to the planning process.  Conservation groups are not going to suddenly appear on reservations with scrub suits – the parties will have longstanding relationships or at a minimum will have strategized within the planning process prior to federal permitting.

I would like to add too that tribal trust lands and Indian country generally have a well documented history of federal and state right of way planning that was harmful to the overall well being of Indian tribes.  Simple examples include natural gas lines developed in the early 1960s over part of heavily allotted Indian lands.  The Crow Tribe in Montana is as good example of the right of way or ROW situation that I am describing.  And like the conservation partnerships, Indian tribes have a pretty good account of what power lines here and there.  Focusing on their own history and stories in the context of tribal participation may assist in sweeping and cleaning up related unknowns in and around abandoned hardrock mining sites that were once dependent on access within the boundaries of a reservation.  This is certainly the legacy prior to the regulatory consultation developments that begin in 1962 and come to full effect with the passage of NEPA.  Finally, I would say the funding commitment in any proposal has to recognize that many Indian tribes are going to be approaching reclamation for the first time and the federal support system ought to this.

To conclude, I think in some respect the technocrats win in the Senate proposal because it envisions tribal consultation designed to build a long term reclamation commitment as a requirement to federal approval.  Note too, federal oversight and the power to withdraw Good Samaritan permitting is not limited under the Senate proposal.  If one considers the international human rights standard of indigenous rights consultation on the basis of free, prior, and informed consent, the practical application of the Senate proposal in my view offers an instructive guide; that is appears to be a graduated approach to collectively learning about complex environmental situations and subsequently making an informed decision. Lastly, it is often overlooked that local and tribal governments share a common relationship relative to the in situ nature of abandoned mines and there is a clear pragmatic preference embedded in the Senate proposal that seeks to take advantage of localized interests in conservation and remediation.

Question:       As for any Good Samaritan who has some kind of proposal to take a step forward in cleaning up the site, is there any more guidance here in the size of the investment or anything before they can get a permit to go ahead?

Vecera:  While our legislation establishes a permitting outline that a Good Samaritan would have to go through, much of the details will be flushed out by the EPA and state or tribal permitting agencies.   Our legislation seeks to take steps in the right direction – and if we limited what could qualify as a project, based on size of investment for example, we could be unnecessarily removing specific projects from consideration.

One thing we do dictate is the requirement that those seeking permits obtain benchmark assessments. A potential Good Samaritan is required to go on-site and take water or soil samples and obtain a snapshot of the conditions that exist. The language is mute as to the appropriate threshold above that baseline a Good Samaritan would need to improve the site.  Instead, the permitting agencies are authorized to determine the feasibility of levels of improvement.

At the end of the day, our legislation provides a robust process for interested third parties to remediate abandoned mine sites, without discriminating against projects for size of investment or scope.

Question: Will NEPA apply to this because it is a federal permit?

Vecera: If the approval of a Good Samaritan permit arises to the level of a major federal action, then NEPA will be implicated.  For instance, if a major project is proposed on federal land that requires EPA approval, it is likely that NEPA would be triggered.  .

Question: As we look at off-site mitigation, mitigation for what? And in what program? Is it the Clean Water Act mitigation or something else? How would you apply that credit to what program?

Vecera: The legislation is not specific as to what program or statutory authority offsite mitigation would be permitted.  Merely, we want to authorize a third party that does have a requirement for offsite mitigation, due to a legal settlement or other binding action, the ability to remediate abandoned mine lands.  If the third party was able to qualify for a Good Samaritan permit, we want to ensure any such Good Sam work would be able to qualify as satisfying offsite mitigation requirements.

Question: If a citizen decides to do a $40 million fix and you were willing to spend $20 million does that mean you won’t get a permit?

Vecera: That is going to be up to the permitting agency to evaluate the funding levels, and to consider public input before making a final decision on whether or not they grant a permit. Again, our language is mute on establishing a monetary threshold. We realize there are going to be many different remediation proposals, and as Congress we don’t want to establish arbitrary benchmarks that would discourage potential Good Samaritans. It is not really Congress’s duty to establish thresholds – rather we want to enable capable parties to remediate land.  We don’t want to prohibit them from investing in the improvement of abandoned mine sites.

Question: Why would you only allow reprocessing of tailings and not of anything on the site?

Hoffman: To go back into the hole and dig up new, undisturbed mineralization has never been proposed – or even asked for by industry. We want to stay away from the concept of re-mining or new mining, while enabling the processing of tailings to prevent waste.  So if there is an out cropping of mineralized material or if there is a seam there we don’t envision new mining under a Good Samaritan permit.

Question: Can a watershed group earn a mitigation and then sell it?

Vecera: I don’t know. That is a new one for me. I would say that I don’t have the answer for that. That said, I can’t think of anything in the bill that would allow that.

Question: Regarding projects with Native Americans, how are you going to manage timelines under NEPA and consultation? How do you think that will shorten NEPA?

Hopkins: Under the proposed reforms, Good Samaritans are going to look for opportunities with tribal governments on the assumption that federal policy would not unilaterally impose the project on tribal governments, but rather make them active stakeholders in partnership with conservation groups.  This approach is consistent with current federal consultation policy and there is no suggestion the reforms would change this.  The potential breakthrough case is a location that will immediately benefit tribal water quality – a major concern on tribal trust lands – and strengthen tribal capacity to govern reclaimed natural resources.  This situation will occur more readily in situations where the tribe identifies the blighted site within its traditional territory.  Regarding the NEPA consultation timeframes and what we think of as the the public consultation process generally, the experience of Trout Unlimited in this area demonstrates that it can indeed be done although you need to have the technical and professional skills to navigate regulatory hurdles.  In my view if the abandoned mine is on a site that the tribe culturally identifies with, it could be a case where tribal governments want to move faster than the prescribed NEPA-based consultation timeframes.  The development of tribal capacity is important in this example because the co-management model of governance ought to provide a transparent relief system to diffuse tribal concerns when these situations arise.  Interestingly, this kind of functioning stakeholder model is already a well-established practice in many regions of the country.  Using technical advisory groups in the context of tribal governance and reclamation partnerships would not be a difficult task given that it closely follows current practices.  The EPA has a number of tribal participatory models in this regard.  Finally, the scope of the proposed reforms would limit CERCLA exemptions but in the case of tribal governnments they will invariably the well documented abandoned hardrock mine sites – take for instance the Brownsfield project on the Tohono O’odham Reservation.  Good Samaritan exemptions are not going to be the result of the Interior Department snapping its finger and suddenly a CERCLA exemption appears.  Likewise, there is the risk of derailing with NEPA related delays and so absent cross-referencing CERCLA based reforms, we cannot assume that the federal framework for remediation would have NEPA expediting the process.  Maybe an interim regulatory reform as a de minimis standard would help, but the assumption ought to be that NEPA’s timeframes apply.  Federal Indian law generally works best when we can point to specific acts that show Congressional intent and it is hard to imagine that these proposals would not trigger a larger effort to harmonize the federal framework.

End of Conference

Lacy:  This brings our first Summit to a close. Thank you for attending and special thanks is due to our presenters and the administrative support from the James E. Rogers College of Law.

 

 

 

[1] Kirsten Engel is the Charles E. Ares Professor of Law at the University of Arizona James E. Rogers College of Law.

[2] Steve Moyer is the Vice president of Government Affairs of Trout Unlimited and has worked for Trout Unlimited for the past 24 years.  Prior to that time he was a legislative representative for the National Wildlife Federation where he worked on fisheries and wetlands issues.   He holds a bachelor of science in wildlife management at the University of Maine and Masters in Science from Virginia Tech.

[3] Joshua Hoffman obtained his B.S. in mining engineering, with minors in explosives and chemistry, from Missouri University of Science and Technology (formerly University of Missouri-Rolla). He received his Ph.D. in mining engineering from the University of Kentucky with his dissertation, A Framework for Understanding the Public’s Perspectives of Mining Applied to the Kentucky Coal Industry.  He was the inaugural SME-AAAS Congressional Fellow and served on the US House Committee on Natural Resources, Subcommittee for Energy and Mineral Resources.  The committee retained him as Professional Staff where he works on mining and mineral related policy.  Joshua is a licensed Professional Engineer in the Commonwealth of Kentucky whose technical area of expertise is blasting and explosives engineering.

[4] Andrew Vecera obtained his B.A. in political science from Texas Christian University.  He received his J.D. from the American University, Washington College of Law, and is admitted to the state bar of Texas.  He has worked with the Committee on Natural Resources since March 2013, initially serving as counsel to the Committee’s oversight operations throughout the 113th Congress.  In the 114th Congress, he transitioned into a policy role, serving as counsel to the Subcommittee on Energy and Mineral Resources, where he has worked on a range of legislation from Good Samaritan and abandoned mine remediation to Puerto Rico’s debt crisis.

[5] James Hopkins is Associate Clinical Professor of Law at the University of Arizona James E. Rogers College of Law.  He received his LL.B. from the University of Toronto and his LL.M. from Harvard Law School.

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