BARRIERS TO THE CLEANUP OF

ABANDONED MINE SITES

(10962)

HEARING
BEFORE THE

SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT
OF THE

COMMITTEE ON
TRANSPORTATION AND
INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION

MARCH 30, 2006

Printed for the use of the

Committee on Transportation and Infrastructure

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2006

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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

DON YOUNG, Alaska, Chairman
THOMAS E. PETRI, Wisconsin, Vice-Chair
JAMES L. OBERSTAR, Minnesota
SHERWOOD L. BOEHLERT, New York
NICK J. RAHALL, II, West Virginia
HOWARD COBLE, North Carolina
PETER A. DEFAZIO, Oregon
JERRY F. COSTELLO, Illinois
JOHN J. DUNCAN, JR., Tennessee
WAYNE T. GILCHREST, Maryland
ELEANOR HOLMES NORTON, District of
JOHN L. MICA, Florida
Columbia
PETER HOEKSTRA, Michigan
JERROLD NADLER, New York
VERNON J. EHLERS, Michigan
CORRINE BROWN, Florida
SPENCER BACHUS, Alabama
BOB FILNER, California
STEVEN C. LATOURETTE, Ohio
EDDIE BERNICE JOHNSON, Texas
SUE W. KELLY, New York
GENE TAYLOR, Mississippi
RICHARD H. BAKER, Louisiana
JUANITA MILLENDER-MCDONALD,
California
ROBERT W. NEY, Ohio
ELIJAH E. CUMMINGS, Maryland
FRANK A. LOBIONDO, New Jersey
JERRY MORAN, Kansas
EARL BLUMENAUER, Oregon
GARY G. MILLER, California
ELLEN O. TAUSCHER, California
ROBIN HAYES, North Carolina
BILL PASCRELL, JR., New Jersey
LEONARD L. BOSWELL, Iowa
ROB SIMMONS, Connecticut
TIM HOLDEN, Pennsylvania
HENRY E. BROWN, JR., South Carolina
TIMOTHY V. JOHNSON, Illinois
BRIAN BAIRD, Washington
TODD RUSSELL PLATTS, Pennsylvania
SHELLEY BERKLEY, Nevada
SAM GRAVES, Missouri
JIM MATHESON, Utah
MARK R. KENNEDY, Minnesota
MICHAEL M. HONDA, California
BILL SHUSTER, Pennsylvania
RICK LARSEN, Washington
JOHN BOOZMAN, Arkansas
MICHAEL E. CAPUANO, Massachusetts
JIM GERLACH, Pennsylvania
ANTHONY D. WEINER, New York
MARIO DIAZ-BALART, Florida
JULIA CARSON, Indiana
JON C. PORTER, Nevada
TIMOTHY H. BISHOP, New York
TOM OSBORNE, Nebraska
MICHAEL H. MICHAUD, Maine
KENNY MARCHANT, Texas
LINCOLN DAVIS, Tennessee
MICHAEL E. SODREL, Indiana
BEN CHANDLER, Kentucky
CHARLES W. DENT, Pennsylvania
BRIAN HIGGINS, New York
TED POE, Texas
RUSS CARNAHAN, Missouri
DAVID G. REICHERT, Washington
ALLYSON Y. SCHWARTZ, Pennsylvania
CONNIE MACK, Florida
JOHN T. SALAZAR, Colorado
JOHN R. RANDY KUHL, JR., New York
JOHN BARROW, Georgia

LUIS G. FORTUNO, Puerto Rico

LYNN A. WESTMORELAND, Georgia
CHARLES W. BOUSTANY, JR., Louisiana
JEAN SCHMIDT, Ohio

(II)

SUBCOMMITTEE

ON

WATER RESOURCES

AND

ENVIRONMENT

JOHN J. DUNCAN, JR., Tennessee, Chairman

SHERWOOD L. BOEHLERT, New York
EDDIE BERNICE JOHNSON, Texas
WAYNE T. GILCHREST, Maryland
JOHN T. SALAZAR, Colorado
VERNON J. EHLERS, Michigan
JERRY F. COSTELLO, Illinois
STEVEN C. LATOURETTE, Ohio
GENE TAYLOR, Mississippi
SUE W. KELLY, New York
BRIAN BAIRD, Washington
RICHARD H. BAKER, Louisiana
TIMOTHY H. BISHOP, New York
ROBERT W. NEY, Ohio
BRIAN HIGGINS, New York
GARY G. MILLER, California
ALLYSON Y. SCHWARTZ, Pennsylvania
HENRY E. BROWN, JR., South Carolina
EARL BLUMENAUER, Oregon
BILL SHUSTER, Pennsylvania
ELLEN O. TAUSCHER, California
JOHN BOOZMAN, Arkansas
BILL PASCRELL, JR., New Jersey
RUSS CARNAHAN, Missouri
JIM GERLACH, Pennsylvania
NICK J. RAHALL, II, West Virginia
TOM OSBORNE, Nebraska
ELEANOR HOLMES NORTON, District of
TED POE, Texas
Columbia
CONNIE MACK, Florida

JOHN BARROW, Georgia

LUIS G. FORTUNO, Puerto Rico
JAMES L. OBERSTAR, Minnesota
CHARLES W. BOUSTANY, JR., Louisiana,
Vice-Chair
(Ex Officio)
JEAN SCHMIDT, Ohio
DON YOUNG, Alaska
(Ex Officio)

(III)

CONTENTS
TESTIMONY
Page

Frohardt, Paul, Administrator, Colorado Water Quality Control Commission ..

Limerick, Patricia Nelson, Ph.D, Professor of History and Faculty Director,
University of Colorado at Boulder ......................................................................
Mudge, John, Director, Environmental Affairs, Newmint Mining Corporation .
Grumbles, Benjamin H., Assistant Administrator for Water, U.S. Environmental Protection Agency ....................................................................................
Pizarchik, Joseph G., Director, Bureau of Mining and Reclamation, Pennsylvania Department of Environmental Protection ...............................................
Smith, Velma M., Senior Policy Associate, National Environmental Trust .......
Williams, Dave, Director, Wastewater, East Bay Municipal Utility District,
Oakland, California ..............................................................................................
Wood, Chris, Vice President for Conservation Programs, Trout Unlimited .......

5
19
19
5
5
19
5
19

PREPARED STATEMENT SUBMITTED BY MEMBERS OF CONGRESS

Carnahan, Hon. Russ, of Missouri .........................................................................
Costello, Hon. Jerry F., of Illinois ..........................................................................

31
32

PREPARED STATEMENTS SUBMITTED BY WITNESSES

Frohardt, Paul ..........................................................................................................
Grumbles, Benjamin H. ...........................................................................................
Limerick, Patricia Nelson .......................................................................................
Mudge, John .............................................................................................................
Pizarchik, Joseph G .................................................................................................
Smith, Velma M .......................................................................................................
Williams, Dave .........................................................................................................
Wood, Chris ..............................................................................................................

34
51
59
71
83
107
118
131

SUBMISSION FOR THE RECORD

Pizarchik, Joseph G., Director, Bureau of Mining and Reclamation, Pennsylvania Department of Environmental Protection, responses to questions .......

(V)

103

BARRIERS TO THE CLEANUP OF ABANDONED

MINE SITES
Thursday, March 30, 2006,

HOUSE

OF REPRESENTATIVES, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, SUBCOMMITTEE ON

WATER RESOURCES AND ENVIRONMENT, WASHINGTON,

D.C.
The committee met, pursuant to call, at 10:00 a.m., in Room
2167, Rayburn House Office Building, Hon. John J. Duncan, Jr.
[chairman of the committee] presiding.
Mr. DUNCAN. I want to first of all welcome everyone to our hearing today. This hearing is on barriers to the cleanup of abandoned
mine sites around the Country. Hopefully we will hear about potential ways to encourage volunteers to help clean up these sites.
Past mining activities which occurred when mining practices
were less sophisticated than today have disturbed hundreds of
thousands of acres of land, altered drainage patterns and generated
substantial amounts of waste scattered around the landscape.
Today there are several hundred thousands of these old mine sites
in the U.S., staff briefing memo say about half a million. Many of
these mines were abandoned by the owners or operators a long
time ago, when the remaining minerals became too difficult or costly to extract.
Although operated consistent with the governing laws at the
time, many of these abandoned mines now pose environmental and
health threats to surrounding surface and groundwaters and to
downstream interests. Nationally, tens of thousands of miles of
streams are polluted by acid mine drainage and toxic loadings of
heavy metals leeching from many of these old mines, impacting
fisheries and water supplies.
State and Federal agencies have worked to remedy these problems, but the number of sites and the expense involved has made
progress very slow. A lot of these old mine lands lack a viable
owner or operator with the resources to remediate them. Many others are truly abandoned, with no identifiable owner or operator to
hold responsible. As a result, few of these old mine sites are getting
cleaned up.
Public or private volunteers are Good Samaritans, have been
willing to partially remediate many of these sites. These Good Samaritans may be driven by a desire to improve the environment,
others may want to improve water quality at their water supply
source. Still others may want to clean up an old mine site for the
purpose of re-mining the area or developing it in some other way.
(1)

2
However, most Good Samaritans have been deterred from carrying out these projects by the risk of becoming liable for complete
cleanup required by various environmental laws. This is because
current Federal law does not allow for partial cleanups. For example, if a Good Samaritan steps in to partially clean up an abandoned mine site, that party could become liable under the Clean
Water Act or Superfund for a greater level of cleanup and higher
costs than the party initially volunteered for. Because they could
face the legal consequences if they fall short of complete cleanup,
most potential Good Samaritans refrain from attempting to address
a sites pollution problems at all.
Federal policy should encourage and not discourage parties to
volunteer themselves to clean up abandoned sites. We should consider whether in some circumstances environmental standards
should be made more flexible in order to achieve at least partial
cleanup of sites that otherwise would remain polluted.
This is not about letting polluters off the hook. They should remain responsible under existing law. However, if a party
unconnected to an abandoned mine site steps forward to help with
remediation, everyone wins. I believe there is little disagreement
that encouraging volunteers to clean up abandoned mine sites is a
worthwhile policy.
However, in exploring the details of such a policy a number of
issues arise, such as who should be eligible for a lower standard
of cleanup; how should new standards be applied; and how should
potential re-mining of these sites be addressed. To help us identify
and address these and other issues, we have assembled a number
of parties who have been actively involved in the debate over how
to address the abandoned mines problem in the Country. I hope
our witnesses will bring forward ideas on how we can remove impediments to abandoned mine cleanups and get more Good Samaritans to step forward.
When I chaired the Aviation Subcommittee, we produced the first
Good Samaritan law for the skies. In addition, we have done some
movements in this direction in brownfields legislation that we
passed through this Subcommittee a few years ago. I look forward
today to an educational and enlightening hearing. I appreciate very
much the witnesses who have come here today, all of our witnesses. Our most distinguished and prestigious witness, Mr. Grumbles, from the EPA, who has been with us many times before and
of course, the other State witnesses who have come long distances
to be here in some cases.
Let me now turn to my distinguished Ranking Member, Ms.
Johnson, for any opening statement she wishes to make.
Ms. JOHNSON. Thank you very much, Mr. Chairman, and thank
you for holding this hearing.
Today we receive testimony from a wide spectrum of parties and
interests who all have a common goal of improving the environmental situation associated with abandoned and inactive mines. I
share that goal.
I must say that I find it somewhat ironic that we are considering
legislative proposals to scale back environmental standards in
order to achieve improvements in water quality. But that is where

3
we find ourselves. Existing programs that could address mine runoff are either inadequately funded or inadequately enforced.
The Administration and the Republican-led Congress have reduced funding for water quality under the Clean Water Act both
for point and non-point pollution controls. They have also refused
to reinstate funding for cleanup of toxic releases under the Superfund program, so now we look to volunteers where the Government
will not help.
Within this reality, I believe that we can fashion a legislative
proposal that focuses upon areas of common ground and avoids
areas that are divisive. Todays hearing will help identify those
areas of common ground.
But in all of our years of examining this issue, I believe that
some common themes are already apparent. We should make the
focus water quality improvement and let other laws address mining
operations. We will need to define who can be a Good Samaritan.
But other than excluding responsible parties, we should encourage
all volunteers. A threshold level of remediation should be a measurable improvement in water quality, with no diminishing of water
quality allowed. We must recognize the legitimate role of States
and Tribes in implementing the Clean Water Act and ensure that
the rights of the public to fully participate in the permitting process are preserved.
Abandoned, inactive mines are a major source of uncontrolled
pollution in Americas waters, particularly in the western States.
This Committee has been talking about doing something to encourage volunteer efforts to improve water quality for nearly 15 years.
Hopefully, this is the year we can get something enacted. I look forward to the testimony today.
Ms. JOHNSON. Mr. Chairman, before I relinquish the mic, I want
to ask unanimous consent to put into the record a statement by
Congressman Tim Holden, who has a conflict and could not be here
this morning. But he has a very complete statement.
Mr. DUNCAN. Thank you very much, Ms. Johnson, and Congressman Holdens full statement will be placed into the record.
Dr. Boozman.
Mr. BOOZMAN. Thank you, Mr. Chairman, and thank you to you
and the Ranking Member for holding this hearing. The title of our
hearing today is Barriers to the Cleanup of Abandoned Mine Sites.
I would like to go on the record that I think one of the barriers will
be if this effort to make chicken litter meet the definition of hazardous waste succeeds. You would be surprised, your grandfather
would be surprised, Chairman Duncan, that the farm that he lived
on, with the barnyard manure, was a hazardous waste site.
We have limited resources to address cleanup sites, such as
abandoned mines. So I hope that we can address the problem with
trying to make manure a hazardous waste at some time. And
again, not waste our resources in efforts like that that are totally
ridiculous. We should not use the funding, the resources that we
have, in ways like this. Instead, we should try to use them in logical ways to actually deal with legitimate problems, such as abandoned mines.
Thank you.

4
Mr. DUNCAN. Well, I certainly agree with you there. Good statement.
Mr. Salazar.
Mr. SALAZAR. Thank you, Mr. Chairman. I want to thank both
you and the Ranking Member for holding this hearing today.
Since enacting the Clean Water Act, our Nation has made significant progress in improving our water quality around this Country.
One are that we need to make significant improvements, I believe,
is in the pollution of abandoned mine sites. As you know, the settlement of the west was driving by mining. Mining has and continues to be a critical part of our development across the west.
We also have to remember that severe environmental consequences can accompany mining. This rings true especially in the
earlier ways that mining activities were conducted. I believe that
the current system in place creates a disincentive for parties from
attempting to voluntarily clean up these mine sites.
Today, I plan on introducing legislation that would form a pilot
project that would allow Good Samaritans to clean up the Animus
River Basin. This bill will be introduced with the support and comments of local communities in the Animus River Basin.
The objective of the bill is to allow those parties the necessary
tools to attempt to clean up the waters of the Animus River as well
as using it for a model for our Nation to see what works and what
does not work. I would urge my colleagues to support this bill and
help make it a reality. I think we need to go forward with some
piece of legislation. This problem has been around for a very long
time and the public is looking to Congress for answers.
In closing, I look forward to hearing testimony from the two panels, and I want to thank the panel participants and once again, the
Chairman and the Ranking Member.
Mr. DUNCAN. Thank you very much, Mr. Salazar. We will be
happy to work with you on that, your proposed legislation, too.
Our first panel this morning is led off by the Honorable Benjamin H. Grumbles, who is Assistant Administrator for Water from
the U.S. Environmental Protection Agency. We also will have testimony from three State witnesses. Representing the Western Governors Association is Mr. Paul Frohardt, Administrator of the Colorado Water Quality Control Commission from Denver, Colorado.
We have representing the Interstate Mining Compact Commission Mr. Joseph Pizarchik. Mr. Pizarchik is the Director of the Bureau of Mining and Reclamation of the Pennsylvania Department
of Environmental Protection from Harrisburg, Pennsylvania.
And we have representing the East Bay Municipal Utility District Mr. Dave Williams, Director of Wastewater for Oakland, California.
Gentlemen, we are happy and pleased that all of you are here
with us. Administrator Grumbles, you may begin your statement.
All of your full statements will be placed in the record. The rules
of the Committee are you are given five minutes, but in this Subcommittee we give you six minutes. But in consideration of the
other witnesses, if you see me start to wave this, that means to
bring your statement to a close.
Thank you very much. Administrator Grumbles.

5
TESTIMONY OF THE HONORABLE BENJAMIN H. GRUMBLES,
ASSISTANT ADMINISTRATOR FOR WATER, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY; PAUL FROHARDT,
ADMINISTRATOR, COLORADO WATER QUALITY CONTROL
COMMISSION; JOSEPH G. PIZARCHIK, DIRECTOR, BUREAU
OF MINING AND RECLAMATION, PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; DAVE WILLIAMS,
DIRECTOR, WASTEWATER, EAST BAY MUNICIPAL UTILITY
DISTRICT, OAKLAND, CALIFORNIA

Mr. GRUMBLES. Thank you, Mr. Chairman. And thank you also,
Congressman Boozman and Congressman Salazar, for your interest
and your leadership on Good Samaritan efforts and holding this
hearing. I was very encouraged by Congresswoman Johnson, her
statement that she was looking forward to legislation this year,
moving forward with legislation.
So on behalf of EPA, I am very honored to appear before the Subcommittee to discuss the barriers and also talk about some of the
solutions and things that can be done to incorporate cooperative
conservation and common sense into what has been over the decades a very complex issue. So there is great opportunity to accelerate environmental protection and watershed restoration through
cooperative conservation and common sense, as applied to clean
water and other liabilities.
Mr. Chairman, I just wanted to mention that behind me is the
Deputy Assistant Administrator for Water, Brent Fewell, who has
been the fuel, the driving force behind a lot of the Agencys Good
Sam work over the last year. I remember sitting over on the other
side over a decade ago, when this Subcommittee was listening to
the problem about Good Samaritan, the need for cleanup of abandoned mines throughout the West and other places in the Country.
The main message is that we are committed to working with the
Committee on a bipartisan basis to really make this the year where
legislation moves forward. We also are committed administratively
to do everything we can to advance cooperative conservation and
common sense in the content of cleaning up these abandoned mine
sites.
As you and others have stated, the problem is large and complex.
There are hundreds of thousands of abandoned or inactive mine
sites across the Country, and there are thousands that are contributing to water quality impairments and degrading watersheds.
So the real issue is, how can we move forward in a responsible
way to accelerate the progress in environmental restoration? A lot
of experts speaking after me will highlight some of the legal and
bureaucratic complications when Good Samaritans want to move
forward. We view a Good Samaritan as a good steward who is acting because he is inspired, not because he is required to do so.
We see that there are challenges under the Clean Water Act
when it comes to the permitting responsibilities and the liabilities
and the standards. So what I wanted to do, Mr. Chairman, in the
remaining amount of time, was to focus on first the threat of liability. It is a barrier, a barrier to Good Samaritans stepping forward.
It is a barrier under the Superfund laws because of the operator
liability or arranger liability.

6
Those who do not own the land and want to step forward to help
remediate these legacy sites face the very real threat that they
wont be able to rely on protections under the Superfund law. They
face the very real threat that they will be liable under the Clean
Water Act for permitting responsibilities. That is why we think
both administrative and legislative efforts are important to have a
targeted and responsible approach to reduce or remove some of the
liability.
Partial cleanups by Good Samaritans will result in meaningful
environmental improvements. In many cases the impaired 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. So in addition to the barrier of liability under CERCLA or the Clean Water Act, there is also the
barrier of water quality standards that are not appropriate for this
precise situation when volunteers, Good Samaritans are stepping
forward.
We are not supporting, we are not talking about decreasing the
level of protection, the water quality standards, as much as we are
talking about injecting some common sense. If the Good Samaritan
is going to be improving water quality, that is the real measure,
and that is what we wanted to ensure occurs, but not have a barrier where they are held to the same standard as the industrial
polluter or the other polluter who created the problem in the first
place.
In August of 2004, there was an executive order on cooperative
conservation. In August of 2005, Administrator Steve Johnson announced a Good Samaritan initiative by the U.S. EPA to really
make progress in cleaning up these abandoned hardrock mine sites
across the Country. What we are doing, Mr. Chairman, administratively, is advancing a tool kit that will provide an array of tools,
a model covenant or agreement with Good Samaritans to help reduce the threat of liability, also letters, comfort letters to give them
signals to move forward, also guidance with other Federal agencies.
We also have an innovative project we are working on with Trout
Unlimited at the American Fork Canyon.
Mr. Chairman, the thing I really wanted to emphasize in the remaining amount of time is on the legislative front. We applaud the
efforts, the bipartisan efforts of members of Congress, both sides of
the aisle and both chambers. But we ourselves are also aggressively moving forward with developing legislation on behalf of the
Administration that will bring together and help add momentum to
the effort to get legislation across the finish line. We would be delighted to share that when we can, hopefully in the very near future. But it is focused on streamlined permitting processes, a targeted approach, realistic and common sense standards and really
accelerating watershed restoration and protection.
Mr. Chairman, I just want to commend the Committee and Congresswoman Johnson for their interest in this, and pledge to work
with all of the members of the Committee in moving forward responsibly with targeted legislation for Good Samaritans.

7
Thank you, Mr. Chairman.
Mr. DUNCAN. Thank you very much, Administrator Grumbles.
Your statement points up clearly that, as in most things, nothing
is as simple as it appears on the surface. It is a complex problem
and I applaud you for going forward with the initiative that you
have described administratively. We appreciate your offer to help
on the legislation. I think you always approach these issues in a
very sensible, intelligent way.
I appreciate your comments. In almost no legislation can we ever
go as far as people who work full time on that particular problem
to the exclusion of all other problems. But hopefully we can make
some progress.
Our next witness is Mr. Frohardt. I have already introduced Mr.
Frohardt and you may begin your statement.
Mr. FROHARDT. Thank you, Mr. Chairman, members of the Committee. I appreciate the opportunity to be in front of you today to
talk about this issue, which is of great importance to the Western
Governors Association and western States.
Abandoned and inactive mines are responsible for many of the
greatest threats to water quality in western States. We do have
thousands of stream miles that are impacted by drainage from
these mines and runoff. And we have encountered a situation
where there is often no identifiable financially responsible party to
clean up these sites.
In view of the significant impacts that are caused and the difficulties in finding a responsible party that can be required to clean
up the sites, States are very interested in undertaking and encouraging Good Samaritan remediation initiatives; that is, initiatives
by States and other third parties who are not legally responsible
for the existing conditions to try to improve the situation.
However, as has been pointed out, there is currently no provision
in the Clean Water Act that protects a Good Samaritan that attempts to improve conditions at these sites from becoming legally
responsible for any continuing discharges after completion of a
cleanup project. We believe that this potential liability under the
Clean Water Act is the major barrier currently to cleanup of these
sites.
The western States greatly appreciates recent efforts by EPA to
examine and enhance administrative tools to facilitate Good Samaritan remediation efforts. But we do believe that only a legislative solution can fully address liability concerns, particularly for
sites with draining adits.
Our written testimony addressees several principles that WGA
believes are important for any Good Samaritan legislation. This
morning in the brief time that we have, I would just like to highlight two of those principles. First, the definition of a remediating
party or Good Samaritan. The western States believe that participation in Good Samaritan cleanups should not be limited solely to
governmental entities, since there are many other persons that are
likely willing to contribute to Good Samaritan cleanup initiatives.
However, the States believe that statutory provisions should be
carefully crafted. In particular, that they should broadly exclude
those with prior involvement at abandoned or inactive mine sites;
they should broadly exclude those with current or prior legal re-

8
sponsibility for discharges at a mine site, and they should assure
that any non-remediation related development at a site is subject
to the normal Clean Water Act requirements, rather than the Good
Samaritan provisions.
Secondly, the standard for cleanup under a Good Samaritan
project. We believe that EPA should approve a Good Samaritan
permit only if it determines that a remediation plan demonstrates
with reasonable certainty that the actions will result in an improvement in water quality to the degree reasonably possible with
the resources available to the remediating party for the proposed
project.
However, we think it is particularly important that analysis of
a proposed project, that that analysis needs to occur at the front
of a project. It is very difficult to always predict exactly what is
going to be achieved and therefore, a Good Samaritans responsibility should be defined as implementing an approved project, rather
than, for example, meeting specific numerical effluent limitations.
So the western States urge Congress to proceed quickly on this
issue and in addressing the issue, we would recommend that Congress avoid expanding the Good Samaritan proposal toe extraneous
issues, such as re-mining or a general fee on mining. The western
States are concerned that efforts to expand the scope of this issue
are likely to generate significant opposition that may further delay
or frustrate the ability to get this needed and widely supported proposal adopted into law.
Now I would like to turn for just a minute to a few comments
separately specifically on behalf of the State of Colorado. Governor
Owens is on record in support of S. 1848, the Cleanup of Inactive
and Abandoned Mines Act, which was introduced by Senators Allard and Salazar. Colorado believes that this bill provides a
thoughtful and balanced approach to the range of issues and options that have been discussed, and urges Congress to move forward with S. 1848 as the basis for Good Samaritan legislation.
For us, this is not an academic debate about appropriate legislative language. We have a number of projects in the pipeline that
have been put on hold for many years, and if a Good Samaritan
bill is enacted, water quality in Colorado will begin to improve during the next construction season.
Finally, I want to just provide a brief personal note. I first testified before this Committee on this issue on behalf of the Western
Governor Association 11 years ago. At that time, we worked with
a very helpful young Committee staffer named Ben Grumbles.
Unfortunately, sine then, in spite of a lot of efforts by a lot of
people, we still dont have a Good Samaritan Act, and we still do
have the same water quality impacts to the streams in our mountains. Please work to get this legislation adopted quickly, so that
real progress can be made without substantial further delay.
Thank you for your time.
Mr. DUNCAN. Thank you very much, Mr. Frohardt. Somebody
told me a couple of months ago that the days are long but the years
are short. And I am sure you would say that 11 years has probably
gone by very, very quickly.
Mr. Pizarchik.

9
Mr. PIZARCHIK. Thank you, Chairman, members of the Committee.
As part of my discussion today, in regard to the barriers to the
cleanup of abandoned mines, I would like to talk about our experiences in Pennsylvania regarding the reclamation of abandoned
mine lands under Pennsylvanias Environmental Good Samaritan
Act and under our re-mining program.
In my home State, we have had over 200 years of mining that
have left a legacy of over 200,000 acres of abandoned mine lines.
These abandoned sites include open pits, water-filled pits, spoil
piles, waste coal piles, mine openings and subsided surface areas.
The water-filled pits shown on the easel there in that photo covers
40 acres and is 238 feet deep. All that water is acid mine drainage.
It will cost over $20 million to reclaim it.
We also have thousands of abandoned mine discharges with
varying degrees of acid, iron, aluminum, manganese and sulfates
in the water. Some of the discharges are small and some are quite
large. One such large discharge is a tunnel that drains over a 20
square mile area and discharges 40,000 gallons per minute.
According to an EPA Region III list from 1995, there were 3,158
miles of Pennsylvania streams affected by mine drainage. Over the
last 60 years, Pennsylvania has spent hundreds of millions of dollars on abandoned mine problems. It became clear that without
help from others, Government efforts alone would take many decades and billions of dollars to clean up all of the problems. Additional options were needed.
One option was re-mining. We found that operators were obtaining mining permits for abandoned sites and were mining the coal
that was previously economically and technologically impossible to
recover. However, such re-mining and reclamation was not occurring on sites that contained mine drainage.
When Pennsylvania officials tried to leverage the States limited
resources by working with citizen and watershed groups to accomplish more reclamation, we met significant resistance. Citizen
groups and mine operators alike would not tackle sites that had
mine drainage on them, because State and Federal law imposed liability on them to permanently treat that discharge.
With the advances made in science, technology and in our understanding of mine drainage, we in the Pennsylvania mining program
knew that there were many abandoned discharges that could be
eliminated or improved at little or no cost to the Commonwealth
if we could address the potential liability issue. In Pennsylvania,
we took two different approaches to limit the liability.
First, for re-mining of sites with pre-existing discharges, we
worked to change the mining laws to eliminate mine operators liability. Second, we enacted the Environmental Good Samaritan Act
to provide protections and immunities to people who were not legally liable, but who voluntarily undertook reclamation of abandoned mines.
For the re-mining, we only approved permits that are likely to
improve the discharge. While the law limits a permittees potential
liability, it does not provide absolute liability. Potential liability for
making things worse helps weed out those sites that cannot suc-

10
cessfully be re-mined, and helps ensure that the operator follows
the special measures needed to improve or eliminate the discharge.
Our re-mining program has been very successful. Of 112 abandoned surface mines containing 233 pre-existing discharges that
were re-mined, 48 discharges were eliminated, 61 were improved,
122 showed no significant improvement and 2 were degraded.
Thousands of tons of metals deposited into the streams annually
were removed. Approximately 140 miles of our streams were improved. Treatment would have cost at least $3 million a year every
year to remove that through conventional measures.
The benefits of re-mining are not limited to our water quality improvements. Significant amounts of Pennsylvanias abandoned
mine lands have been reclaimed at no cost to the Government.
Over the past 10 years, 465 projects reclaimed over 250,000 acres
and eliminated 140 miles of dangerous high wall. Abandoned waste
coal piles were eliminated. Abandoned pits were filled. And lands
were restored to a variety of productive uses, including wildlife
habitat.
On the photo that you see there, those are elk. They are Pennsylvania elk, and they are feeding on a site that was re-mined and
reclaimed pursuant to our re-mining program. The estimated value
of the reclamation that was accomplished through re-mining in the
past 10 years exceeds $1 billion.
Separate from our re-mining laws is Pennsylvanias Environmental Good Samaritan Act. Like re-mining, only projects approved
by our Department are eligible for the protection. Approval is required to ensure that the project is likely to make things better.
The project must be an abandoned mine land or abandoned discharge for which there is no liable party. And protections are provided to the land owners, as well as those who are doing the work
or providing materials or services.
Pennsylvania has undertaken 34 Good Samaritan projects. Some
projects are simple, low-maintenance treatment systems. Others
are more complex, like the project in Bittendale, Pennsylvania that
transformed an abandoned mine into a part that treats acid mine
drainage, celebrates the coal mining heritage and provides recreation facilities for the residents and serves to heighten public
awareness about the importance of treating mine drainage.
While Pennsylvanias Good Samaritan Act has been successful,
there are concerns. First, the Federal Clean Water Act citizen supervision still poses a potential liability to these Good Samaritans.
Recent developments portend action by some who hold a strict, literal view of the permitting requirements and the total maximum
daily load requirements of the Federal Clean Water Act. Without
Federal Good Samaritan Act or an amendment to the Clean Water
Act providing that Good Samaritan projects and abandoned mine
discharges are not point sources or not subject to the permitting requirements, the potential good work of the volunteers in Pennsylvania throughout the Country is at risk.
People who would undertake projects to benefit the environment
in America could be personally liable for making things better just
because they didnt make them perfect.
Thank you.

11
Mr. DUNCAN. Thank you very much, Mr. Pizarchik. Very fine
statement. It has been a wonderful thing to see some of these reclamation projects where people have put golf courses, retirement
communities, green spaces and parks. I particularly enjoyed the
picture of the elks feeding there. Thank you very much.
Mr. Williams.
Mr. WILLIAMS. Thanks for the opportunity to address you this
morning.
I think we need Good Samaritan legislation and what I wanted
to do is touch on an example that we had at our district, and then
give you some of my thoughts on how the POTW, the publiclyowned treatment works, could play a role in this.
Abandoned mines are a big problem. There are over 39,000 alone
in California. A lot of waste rock goes along with that, and the acid
mine drainage. The East Bay MUD story is that we are a wastewater district serving 1.3 million people in the East San Francisco
Bay. Our water supply is on the Mokelumne River in the Sierra
Foothills. We have a couple of reservoirs there.
We have a reservoir, and the south shore of that reservoir has
an abandoned mine. It is called Penn Mine. It was a major copper
producer during World War II, and it was abandoned in the 1950s.
When it was abandoned, there were 400,000 cubic yards of waste
rock left in piles on the site. That resulted in 100,000 pounds of
copper being discharged in the Mokelumne River every single year
from acid mind drainage and massive fish kills.
We were asked by the State in 1978 to help implement an abatement plan. We said okay. Our part of the plan was to build a berm
about 100 feet long, 15 feet tall, to basically keep the acid mine
drainage from entering the river. We did that on our land. It resulted in dramatic improvements in the reduction of acid mine
drainage and reduction in fish kills.
We were then sued in 1990 by the Committee to Save the
Mokelumne. They said that it represented a potential to discharge,
the spillway on this berm, into the Mokelumne. We argued that in
court and lost. When we lost, we were then ordered by EPA to restore the entire site to the pre-mining condition. So we did that at
a cost of $10 million. That was completed in 2000.
The story spread like wildfire throughout California, put a
chilling effect on any efforts to clean up abandoned mines and little
has happened since then.
I think that is a good example, but I think there is a lot of potential for benefits. And I think the POTW community could play a
role in that. I wanted to give you an example of how that might
work. Currently, San Francisco Bay is impaired for mercury. So
how did all the mercury get there? Well, it came from mining operations, 26 million pounds of mercury was used to extract gold during the Gold Rush days. Eight million pounds of mercury found its
way down into the sediment into San Francisco Bay.
So you have sediment and you have the continued runoff from
the abandoned mines. The total maximum daily load report for San
Francisco Bay identified the major sources. Two major sources:
sediment and abandoned mines. Publicly-owned treatment works
were also a contributor. We contribute, total, all 40 treatment
plants in the Bay Area, 17 kilograms out of a total of 1,220 kilo-

12
grams that find its way into San Francisco Bay every year. We are
viewed as a de minimis source.
Nonetheless, the TMDL is proposing that we cut back the mercury discharge from treatments by 40 percent in 20 years. You can
do a little bit with pollution prevention. But you cant make the 40
percent. So we need some assistance there.
What we are faced with is installing costly tertiary treatment facilities at a cost of an estimated $200 million to $300 million per
year on the ratepayers, in addition to what they are currently paying in the San Francisco Bay area. Doesnt it make sense to spend
much less than that and get much more bang for the buck by creating a mechanism where you could go in and relieve some liability
and do some good by cleaning up abandoned mines? It seems to
make sense to me.
Let me give you some thoughts on what I think a Good Samaritan legislation should address. One is, it should provide for a process to assure that projects make sense and a reasonable expectation that you are going to get the environmental benefit that you
are expecting. There should be assurances that the project will be
done without imposing some of the typical NPDES permit requirements as Mr. Grumbles mentioned that may be unnecessary and
inapplicable.
It should limit long term responsibility once the remediation is
done. And of course, it should not negate existing liability of those
who have caused the problem.
There are just a few other considerations, whether they be addressed in legislation or policy or guidance. But that is, the effort
should be voluntary. There should be cost certainty, so that someone is not writing a blank check.
And the cleanup effort should be reasonably related to that
which a discharger would otherwise have to do and have an incentive built in it. If you are going to spend $50 million on treatment
facilities and you would have to spend the same amount to clean
up an abandoned mine, you are going to build the treatment facilities, because you have control over that. There needs to be some
incentive there. Also, it needs to be documented in the permit, because the permit does give a shield.
In summary, I think that efforts on mine cleanup are stalled.
The time is right. You have the power, and I urge you to act.
Mr. DUNCAN. Thank you very much, Mr. Williams. Four very fine
statements, very informative and I think very helpful.
Mr. Grumbles, you mentioned and I mentioned the Good Samaritan initiative that the EPA is presently attempting. Can you do
enough, can you provide adequate legal protection through your
initiative administratively without legislation?
Mr. GRUMBLES. Mr. Chairman, we believe legislation would be
extremely important and helpful. It is very hard to accelerate watershed restoration at the pace we want to accelerate it, based solely on administrative authorities. We will use those to the fullest extent, but legislative guidance and direction from Congress is really
what is needed.
Mr. DUNCAN. Are there other major laws or obstacles besides the
Clean Water Act and the Superfund law that would get in the way
of potential environmental Good Samaritans?

13
Mr. GRUMBLES. Mr. Chairman, I would say on a case by case,
watershed by watershed basis, there may be times when another
law creates a barrier that needs to be worked out, worked through.
But we feel that based on the evidence and some of the work that,
in the report, that you will hear more about--cleaning up abandoned hardrock mines in the west, Patty Limericks efforts--the evidence is that those are two of the primary obstacles, and certainly
the Clean Water Act, the permitting and the liability and the right
standards question are ones that we think merit the greatest
amount of attention and focus, and focus in a targeted way so that
a decade from today there is not another hearing urging movement
on legislation. The barriers, the pitfalls to legislation in the past,
have been trying to solve or respond to too many other ancillary
issues. So we support focused activity on the Clean Water Act and
some of the Superfund-related issues.
Mr. DUNCAN. Do we need to treat public or private lands differently in any way?
Mr. GRUMBLES. Well, I think that one of the challenges and opportunities for moving forward smartly is to ensure that Federal
land management agencies are very much involved in these Good
Samaritan projects, as cooperating agencies. And we do need to
keep in mind, on a site by site basis, the different factors that play
in having a successful bill. We think it is important to focus on the
status of the Good Samaritan and make sure that that person or
organization is in fact a Good Samaritan and that it is not about
profit, but it is about environmental protection.
Mr. DUNCAN. Are there other measures that you think we need
to take in addition to Good Samaritan legislation to speed up our
assist in the cleanup of these abandoned mine sites?
Mr. GRUMBLES. Certainly the whole spirit of the executive order
on cooperative conservation is, work with all parties to facilitate cooperation and conservation as opposed to confrontation. I would say
that pilot projects are very important, they are very good, and we
are using our authorities to carry out pilot projects under the Clean
Water Act and non-point source programs and the targeted watershed grants. But it requires more than just pilot projects. There
needs to be, from the top, a strong message providing legal protection and inserting common sense into the standards process.
Mr. DUNCAN. Administrator Grumbles needs to leave here in just
a few minutes. I have questions for the State witnesses but I am
going to turn to Ms. Johnson now for any questions she has for Administrator Grumbles.
Ms. JOHNSON. Thank you very much, Mr. Chairman. I really
dont have in particular for Mr. Grumbles, but I appreciate your
being here and making yourself available.
Mr. GRUMBLES. Thank you.
Mr. DUNCAN. All right, thank you very much, Mr. Grumbles, you
are free to go. Thank you very much for being with us.
Mr. Frohardt, what is your best estimate of how many abandoned mine sites there are in the U.S. and how many in the State
of Colorado?
Mr. FROHARDT. Mr. Chairman, I dont have those numbers specifically. There have been widely varying estimates and it really depends on what people are looking at. We have a lot of abandoned

14
sites, and then you get different estimates of what subset of those
sites are specifically causing water quality impacts. But throughout
Colorado, we have sites, in each of the headwaters of each of our
river basins that continue to cause significant impacts. We have
local groups in each of those basins that are anxious to undertake
efforts to clean them up if we can get this issue addressed.
Mr. DUNCAN. How many States are there in the Western Governors Association?
Mr. FROHARDT. Eighteen.
Mr. DUNCAN. Eighteen? And do you have any kind of rough estimate as to how many abandoned mine sites there are in those
western States? Do you think this is primarily an eastern problem
or primarily a western problem or about the same all over the
whole Country?
Mr. FROHARDT. The western States have been focused in particular on the hardrock sites, are where we are seeing the greatest impacts from the historic activities. I would assume that those problems occur much more frequently in the western States.
Mr. DUNCAN. Have you found, or do you believe there are quite
a few Good Samaritans that would be willing to perform abandoned
mine site cleanups?
Mr. FROHARDT. Absolutely. Again, we have over a dozen groups
in Colorado in different locales, different river basins, different specific historic impact sites that have really over the last decade gotten themselves organized and interested in undertaking projects.
They are at varying degrees in terms of their analysis or how ready
a specific project is to go forward. But I believe that if this liability
issue can be addressed we have quite a few instances where
progress could be made quickly.
Mr. DUNCAN. You have been involved in this for a long time, because you mentioned testifying 11 years ago, and I assume you
were involved in it for at least a few years prior to that. What laws
do you think have been the greatest obstacles to getting these
abandoned mines cleaned up?
Mr. FROHARDT. Again, the Western Governors Associations focus
has always been to principally on the Clean Water Act. Within the
State of Colorado, when we first started looking at actually using
some Section 319 non-point source funds under the Clean Water
Act for our Division of Minerals and Geology to clean up some sites
in the late 1980s, the first thing we worried about was CERCLA
liability, because that is usually much broader and scarier liability.
We found some mechanisms under CERCLA that appeared to us
to be workable. Our State entered into a memorandum of understanding with EPA and using on-scene coordinator provisions of
CERCLA, felt that we had a mechanism which was maybe not
ideal but at least workable to move forward, until in the early
1990s, thanks to the unfortunate experience of East Bay MUD, we
all became aware of these concerns under the Clean Water Act for
which we were unable to find an administrative solution.
So I think it starts with the Clean Water Act. I think there are
some complications in CERCLA. As Ben Grumbles said, there may
well be instances where there could be issues that come up under
other statutes as well, but we believe those are the primary concerns.

15
Mr. DUNCAN. Well, thank you very much.
Mr. Pizarchik, you have described the Pennsylvania program,
and I commend you for what you have been able to do so far. Do
you feel that your State program has been able to give adequate
legal protection to the people who want to clean up or redevelop
these sites? Or do you think it would help for additional Federal
legislation to be passed?
Mr. PIZARCHIK. Additional Federal legislation would be very
helpful, Mr. Chairman. We have a number of folks who have been
reluctant to undertake some of these cleanup projects because of
their concern for the Federal legislation. We have had some other
folks who were willing to proceed and take the risks on somebody
suing them on that point, and we have been fortunate to date that
we havent had that happen.
But I believe a Federal assistance, Federal legislative fix for that
potential liability would go a long way to encouraging more people
to undertake these projects.
Mr. DUNCAN. Have you had a difficult time or an easy time trying to determine what level of cleanup a potential Good Samaritan
should be required to achieve?
Mr. PIZARCHIK. We have not had that problem, Mr. Chairman.
Based on the long history that we have had with our re-mining
program, we have learned a lot about what can be accomplished
through certain best management practices or activities out on the
site. We work with the watershed groups who are wiling to take
these projects to undertake those.
I would strongly recommend against the establishment of a numerical number, because the sites vary so much in the quantity
and the quality of the pollutants and the problems that are out
there that what can be achieved by a Good Samaritan can vary significantly. Sometimes we can get total elimination of the discharge,
other times we can only get an incremental improvement.
So something that was more along the lines of a best management practice approved by the State agency that was likely to
make things better would be much better suited to the problem
than establishing numerical limits.
Mr. DUNCAN. Thank you very much.
Mr. Williams, you mentioned the gigantic problem that you face
in the Bay there, but you are a de minimis participant, as you said,
a very small part of the problem. What do you think we need to
do? What approach would you recommend that would, you think,
facilitate or speed up this mine cleanup process?
Mr. WILLIAMS. One thing I think that is needed is some sort of
an offset program. Right now there isnt an offset program in California and
Mr. DUNCAN. How does that work?
Mr. WILLIAMS. It could work in a number of different ways. But
an example would be that if you are looking at reducing a discharge from your treatment works by a kilogram, you might go and
clean up 10 kilograms of a same pollutant or a similar pollutant,
a toxic pollutant at a different site. You could set up some sort of
a mitigation bank, where you could actually pay into that and reap
the benefits of that leveraging there.

16
One of the fundamental problems is the liability issue. EPA has
a trading policy, but it doesnt allow for going outside the watershed. It also states that if you trade, and this is where somebody
is in business, so you trade with somebody, so it is much more cost
effective to reduce their pollutant loading than to reduce yours.
That is kind of a trading policy.
But the way the policy reads is if they do not uphold their end
of the bargain, then you are still on the hook. Well, that doesnt
work very well for abandoned mines, right? So it is kind of that
blank check type of thing.
So I think having legislation that addresses the liability issue
would be a major step forward to allowing States to begin to tackle
this offset type of concept.
Mr. DUNCAN. How long have you been in the utility business?
Mr. WILLIAMS. Thirty-three years.
Mr. DUNCAN. Thirty-three. And I assume you know, you go to a
lot of utility meetings and know a lot of people in this industry.
Mr. WILLIAMS. I do.
Mr. DUNCAN. Do you think that a lot of utilities would consider
engaging in Good Samaritan projects if they had adequate liability
protections?
Mr. WILLIAMS. If it was adequate liability and if it was voluntary, I think they would certainly consider that. They would be
looking at meeting TMDLs, and it doesnt matter if it is a TMDL
for mercury or PCBs or legacy pesticides, anything where they are
a very small contributor and it is going to be very difficult for them
to meet. If there was liability protection and it was voluntary, you
would certainly have people looking at that very carefully.
Mr. DUNCAN. How would you respond to statements that if your
utility district only had sought a permit from the State, the district
would not have been held liable for cleanup and subsequent monitoring action?
Mr. WILLIAMS. Thats an interesting question. You go back 20
some years, at the time, 1978, massive fish kills on the Mokelumne
River, which is a reservoir that we owned. It is a huge recreational
resource in the Sierra foothills. Unabated discharges of acid mine
drainage, high in copper loadings, into this reservoir. And we get
approached by the State regulatory body that actually issues permits. And they say, you dont need a permit for this, would you
participate in this abatement effort and build this berm that would
keep the acid mine drainage from running into the river.
With 20-20 hindsight, but at the time, on the ground, we said,
yes, we will. Obviously we were wrong, because a court ultimately
determined that the fact that periodically in heavy rain types of
situations there was a spillway on that berm and that spillway
could overflow. And what overflowed was going to receiving water
in the United Sates, and it did not meet water quality standards.
So we got burned.
Mr. DUNCAN. All right, well, thank you very much.
Ms. Johnson.
Ms. JOHNSON. Thank you very much, Mr. Chairman.
Mr. Pizarchik, from Pennsylvania, you have a State legislative
action on Good Samaritans. Tell me exactly how that works. How
do you go about encouraging people?

17
Mr. PIZARCHIK. At the time we had that legislation enacted, we
also had a bond sale that was approved, and where it has raised
$650 million for watershed improvements projects, spring cleanup
projects. Our agency used that money for grants to watershed
groups to do cleanup streams, but also helped to encourage the construction of watershed groups.
As part of the Environmental Good Samaritan Act, we have a
fact sheet out that we distributed to watershed groups, we have
watershed coordinators in our various district mining offices that
attend these types of meetings. We have a formal guidance document that lays out the process about how a group can come in
under the protections of that particular statute.
They submit their proposal to our agency. We review it for the
purposes of determining whether or not it is going to make the
water quality better, to improve water quality. We also get all the
participants identified. We track that information in a data base.
And for whatever sources these folks are using for their money,
they go out and will complete the project. We work with them on
that particular project.
Our Good Samaritan Act provides them protections under any
citizen suit provisions under our State laws, or State Clean Water
act. And it also protects those folks should anybody be injured
while the project is occurring. It allows for future protection as
well, if that project should fail at some point in the future, if their
treatment system failed, they would not have liability under at
that point as well.
In addition, we also undertake a public notice provision where
we notify the adjacent property owners and downstream riparian
landowners and give them an opportunity to have input on the
project, to make sure that any concerns that they may have would
be considered in the approval or incorporated into the plan, in
order to help project them from any adverse consequences.
In essence, what we have for those approved projects, it is set up
pretty much as an affirmative defense if someone were to try to
challenge or to sue those people for anything that happened out on
that project, or for something that might happen in the future. And
we maintain a data base that lists the participants, the location of
the projects, et cetera, so it is accessible to any members of the
public to be raised as that type of an affirmative defense.
Ms. JOHNSON. Thank you very much.
Anyone else with a program that might not be codified yet? All
codified?
Mr. FROHARDT. Thank you, Representative Johnson. In Colorado,
we have not adopted any State law at this point. There has been
some consideration of that. But because the ultimate liability concern really is the Federal law, and obviously we cant affect that
liability, we have made the decision at this point not to do anything especially with our State law until Federal law hopefully gets
addressed.
Ms. JOHNSON. Mr. Williams, do you have anything similar?
Mr. WILLIAMS. In terms of a State law?
Ms. JOHNSON. Well, whether you have a law or not, whether you
have maybe a volunteer program, and how it works.

18
Mr. WILLIAMS. No, there is concern right now with respect to
adoption of the TMDLs. That is something that many POTWs are
concerned about. And that is that absent a framework of any kind
of an offset program, and absent any fix with respect to liability
issues, the concern is that if you are a de minimis source and the
TMDL gets adopted, and you are at a point where the only thing
that you could possibly do aside from adding very expensive treatment facilities is try to do source control.
And you do that, but you know that the source control isnt going
to get you to the end point, the concern is that you will be
ratcheted down because you are a point source, and be leveraged
to go out and do something. The situation is, do something until
we tell you it is enough. And that is the concern that we have as
a POTW community.
Ms. JOHNSON. Thank you very much, Mr. Chairman.
Mr. DUNCAN. All right, thank you, Ms. Johnson.
There are so many parts of this that we havent covered, and we
are going to be getting into some votes in just a few minutes, and
we are going to have to move on to the next panel. But just for a
few examples, our staff, when we were discussing this yesterday,
we came up with some of these things, whether Good Samaritan
legislation is necessary, who should be allowed to remediate with
reduced liability, whether and to what extent anyone should try to
find the original responsible parties, whether in some circumstances environmental standards should be made more flexible
in order to achieve at least partial cleanup, what and how cleanup
benchmarks or standards should be applied in Good Samaritan
cleanups, whether citizen suits should be allowed against a party
acting as a Good Samaritan, what are the restrictions on these
suits? That is a difficult question there.
Whether to extend Good Samaritan protections to abandoned
coal as well as hardrock mines, whether to extend Good Samaritan
protections to public as well as private lands, what incentives
should be extended to encourage Good Samaritan cleanup? That is
a potentially interesting thing, too. Whether and what circumstances and by whom re-mining of abandoned mine sites
should be allowed. Re-mining could be a big question. Whether and
how to set up a funding mechanism to pay for cleanup of abandoned mine sites. Who should administer a Good Samaritan program.
I mean, these are just a few of the questions. And the reason I
covered these things, very quickly, like I said, we are going to have
to move on to this next panel. But to help us, if there is anything
that I havent covered here or anything that I have mentioned
there that creates some thoughts in your minds, I wish that you
would, I hope you would be willing to submit an additional statement or comments that we can place in the record. You would have
to do that within the next few days, if you could do that. But that
would be very helpful to go into the final report of this hearing.
So we thank you very much for being with us today and for coming long distances to be here. You have been really outstanding
witnesses, in my opinion. Thank you very much.
We will proceed with the next panel, and hopefully we can get
in their statements before the votes occur. We have as the second

19
panel, representing the Center of the American West, Ms. Patricia
Nelson Limerick, Ph.D, Professor of History and Faculty Director
at the University of Colorado at Boulder; representing the National
Mining Association, we have Mr. John Mudge, who is the Director
of Environmental Affairs of the Newmont Mining Corporation from
Reno, Nevada; we have representing Trout Unlimited Mr. Chris
Wood, who is Vice President for Conservation Programs, and he is
based here in Arlington, Virginia; and we have representing the
National Environmental Trust Ms. Velma M. Smith, Senior Policy
Associate, and she is here in Washington.
We are very pleased and appreciative that all of you would take
time out from your busy schedules to come here. You have probably
heard me say that your full statements will be placed in the record.
You will be given six minutes, but I stick strictly to that. If you
see me wave this, I do that to try to be polite to the other witnesses
and in consideration of members schedules, so that they can hopefully get to some questions.
But we will start with Dr. Limerick.
TESTIMONY OF PATRICIA NELSON LIMERICK, PH.D, PROFESSOR OF HISTORY AND FACULTY DIRECTOR, UNIVERSITY OF
COLORADO AT BOULDER; JOHN MUDGE, DIRECTOR, ENVIRONMENTAL AFFAIRS, NEWMONT MINING CORPORATION;
CHRIS WOOD, VICE PRESIDENT FOR CONSERVATION PROGRAMS, TROUT UNLIMITED; VELMA M. SMITH, SENIOR POLICY ASSOCIATE, NATIONAL ENVIRONMENTAL TRUST

Ms. LIMERICK. Thank you very much, Mr. Chairman and members of the Subcommittee. I thank you for your public service, as
an historian and as an American citizen, I have a two-fold appreciation for what you do in your offices.
It is a great honor and privilege to appear before you. I feel particularly fortunate to be speaking on behalf of a good cause, to be
discussing a problem that comes with a solution and a practical
and pragmatic solution at that. We were fortunate to write a report
at the Center of the American West called Cleaning Up Abandoned
Mines, Hardrock Mines in the West, with the support of EPA, with
the participation of Trout Unlimited and with a big debt to the
Western Governors Association.
I must say that writing that report was a spirit-lifting exercise
for us at the Center, because this is not an intractable problem.
This is one of the few environmental issues in which a clear and
workable solution sits before us, a solution carrying bipartisan
sponsorship and support.
Abandoned mines and acid mine drainage present the opportunity for a rewarding, inspirational and I hope precedent-setting
exercise in legislative problem solving. I believe it also represents
an alternative to the polarization and condemnation that I know
wears on you, as it wears on others of us.
Two historical reckonings are involved in this. The first reckoning, obviously, with the legacy of hardrock mining. No one in the
field of history, no one who lives in the west can be in denial for
a moment of the significance and value of mining in building the
west and indeed, building the Nation, winning the Civil War, Nevada silver, I will not give a lengthy historical lecture there, but

20
no one can mistake the importance of mining in building the region
and the Country. So this is not a matter of blame and regret, dealing with these mines. It is instead a realistic reckoning with consequences, and a reckoning that can lead us to an important and
inspirational precedent for other reckonings with the environmental legacy from our national past.
The dimensions of the legacy of abandoned mining and unfortunate mentions are obvious to everyone here, the loss of recreational
opportunities, the impediment to economic development and diversification in western communities, the threat to wildlife, especially
endangered fish species, the impairment of water supplies to downstream municipalities and other users, and even airborne pollution
from the dust from tailings.
It is a daunting matter when you look at the number of abandoned mines. The estimates are of course uncertain. There is no
exact record of this. Numbers as high as 500,000 for the American
west have been given.
But the good news, and often not noted, I think, sufficiently, is
that there is a comparatively small number of abandoned mines
that could be a priority for cleanup. There is no need to treat all
500,000 or whatever the number is. In fact, there would be significant, enormously significant gains from the treatment of a small
percentage of these sites.
Now, the second aspect of reckoning with history comes with our
reckoning with the environmental laws of the 1970s, I know a matter that comes before Congress in all sorts of forums. In this case,
we reckoned with the legacy of the Clean Water Act, and the unforeseen and unintended consequences of that Act as it was written
and then put into practice.
The goals and intentions of the Clean Water Act have proven in
a sense counterproductive in the matter of abandoned mines. We
quote in our report from a man, John Whitacre, one of my favorite,
favorite public officials, the Environmental Policy Advisor to President Nixon and then the Under Secretary of Interior after that,
who was present at the creation of the Clean Water Act and who
says, I think quotably and memorably in our report, We did not
envision at the time that the day would come when the zero charge
instruction would prevent Good Samaritans from cleaning up acid
mind drainage. So here we have one statement, I am sure we
could get many others from people present at the time of the passage of the law that the effect on discouraging Good Samaritans
was not an intended part of the passage of that Act.
So honoring the core values of the Clean Water Act requires a
modification of one regulatory element of the original Act. I believe
that, speaking as an historian, an important demonstration of flexibility and a willingness to make sure that an important act of legislation achieves its goals.
The west is well populated with Good Samaritans waiting to get
to work on this issue. These are people, groups of dedicated citizens
currently stymied by an unnecessary obstacle. When they are unleashed they are people with a creative capacity to cobble together
funding resources to find a spectrum of local revenues, Federal
grants programs and even private funding.

21
There is also a significant role potentially for companies and for
the mining industry to play in this. We are talking about local people trying to act responsibly and even heroically to address local
problems and being unnecessarily stymied. This is in other words
a force for good that is easily unleashed. When Good Samaritans
are released from the penalty, I believe we will see material, visible, measurable improvements in many western locations.
The issue of re-mining is, as a number of people have noted, including the Chairman, a difficult issue. But it is my judgment that
there are a limited number of sites involved in the issue of re-mining. It would be interesting to have an investigationmaybe the
Congressional Research Service could help with thisto put this
problem in perspective.
What seems most likely to us at the Center of the American
West is that re-mining, as a possible abuse of the flexibility of the
provisions and requirements that would reduce the penalty on
Good Samaritans, that re-mining poses a marginal risk and should
not be an obstacle to the good that would come from new arrangements on behalf of Good Samaritans.
It seems to me also that adaptive of management flexibility in
appraising the results of particular efforts could play a part in setting the standards in terms of how much improvement in water
quality should be mandated for Good Samaritans.
I conclude with the well-known reality of American life. The
American west is associated with the spirit of optimism and hope.
We are challenged, we are challenged every day, we are called
every day to match the enterprise, pluck and determination of
those who came before us in the west and the cleanup of the abandoned mines as a providential opportunity to demonstrate that we
have that enterprise, that pluck, that determination.
The timing of your considerations also seems to me as an historian to be promising and providential. The stars are coming together. Many of you have ben in meetings on this subject for a long
time. But I think the moment has begun to appear before us when
change can happen.
I ask you as an historian to think of our relationship to posterity,
the American citizens of the future. Good Samaritan legislation
would be a clear and concrete way to court the good opinion of our
descendants. I cannot deny myself what a professional and personal pleasure it would be for me to act as an historian and to
write the history of the creative and positive actions of all of you
as you solve this problem.
Thank you.
Mr. DUNCAN. Thank you very much, Dr. Limerick. Very interesting to say that there would be a significant number that would be
unleashed for this force for good. That is a very hopeful statement.
Mr. Mudge.
Mr. MUDGE. Thank you, Mr. Chairman, Congresspersons. It is a
pleasure to be here today, and especially to work on what appears
to be a win-win situation here.
My name is John Mudge. I am the Director of Environmental Affairs for Newmont Mining Corporation. Newmont is a large, multinational mining company, with extensive operations in the west,
gold and copper primarily, as well as operations on five continents

22
around the world. I have been with Newmont for 24 years, working
in mining and environmental protection aspects associated with
mining, and recognize the importance of doing it right in todays
world, mining-wise, with environmental protection and reclamation.
But also through that, I recognize the hazards that have been
created out there from past mining, turn of the century mining,
and the abandoned mines that have been associated with that effort. Newmont in our effort really strives to do things right. We
have received a number of reclamation awards over the years. Most
recently we received a 2005 award from the Bureau of Land Management for 40 years of mining on the Carlin Trend in North Central Nevada and sustainability, reclamation and rehabilitation
projects that we have carried out in association with that.
Despite the good work that we have done and our peers do, there
are problems out there that have been discussed in fair detail here.
I am here on behalf of the National Mining Association to endorse
Good Samaritan legislation as we are discussing here today. We
would like this to be a framework for incentives for Government
entities, mining companies, citizen groups, non-profit organizations,
to go forward and voluntarily remediate these problem abandoned
mine lands.
As has been discussed, there are definitely limits and concerns
about voluntarily cleaning up under the current statutes. Clean
Water Act is one. RCRA may be a problem resource, Conservation
and Recovery Act. A third of course is CERCLA. As we have discussed the possibility of entering old mine sites and doing cleanup,
it has really been the Superfund liability under CERCLA that has
dissuaded us from going into those properties.
The possibility of having to face another entity like a State or
Federal Government coming in, cleaning up a property and then
billing us because we spent any time on the property, is a deterrent
that we just havent got around to date. The Clean Water Act, and
it has been discussed here today, but the stringent requirement on
discharges and the stringent standards just may not be doable at
some of these abandoned mine sites in any practical way.
This has been pointed out by the Western Governors Association,
National Academy of Sciences and the Center of the American
West in their review of legal impediments to cleaning up abandoned mine lands. We believe that there are five key concepts that
should be in legislation going forward for Good Samaritan cleanup
of abandoned mines. One is that mining companies that are active
today that did not create this disturbance should be allowed to go
in and clean up and it should be authorized under this Good Samaritan language. We have the know-how, the technology and in
some cases the processing facilities nearby to carry out this work.
These projects should be authorized by a permit issued by the
EPA. The EPA has the knowledge and the authority to set standards and to work with the permittee.
Mr. DUNCAN. You can keep going.
Mr. MUDGE. My time never came up here, so
Mr. DUNCAN. You are fine.
Mr. MUDGE. I am in good shape? Good.

23
So the third component, Good Samaritan projects should be allowed to go forward as long as they will benefit the environment,
even if they wont meet necessarily the stringent standards of acts
like the Clean Water Act. The perfect should not be the enemy of
the good in this case.
The fourth point, the EPA and the States should be given really
the discretion and the authority to establish what the provisions
would be in this Good Samaritan permit and the cite-specific conditions need to be taken into consideration. What are the issues,
what are the sources of pollutants, what are the various bodies of
water and such that might be impacted.
The fifth point is, the types of remedial activities that can be authorized under the Good Samaritan permit must include the processing and the re-use of ores, minerals, wastes, mineral processing
wastes, and the like. It is that aspect that the mining industry has
the knowledge, has the capability and has the ability and the
equipment to deal with.
In conclusion, legislation that embodies these five points that I
have mentioned, and that will provide incentives to mining companies and other entities to go forward voluntarily, to remediate
these AMLs, while fully protecting the environment and the interests of the public, should go forward. We commend the Subcommittees attention to the Senate bill, S. 1848, introduced by Senators
Allard and Salazar. We believe the Salazar-Allard legislation contains the elements necessary to remove the existing legal impediments that currently deter mining companies and others from undertaking investigations and remediations at these AMLs.
We also believe that it fully protects the public interest by requiring EPA and States to sign off on any Good Samaritan permit
and by only allowing such permits in situations where the environment will be significantly benefitted.
I would be happy to answer questions at the appropriate time.
Thank you.
Mr. DUNCAN. Thank you very much, Mr. Mudge.
Mr. Wood.
Mr. WOOD. Thank you, Mr. Chairman, Ranking Member Johnson, and other members of the Subcommittee. It is an honor to be
here today to talk about abandoned mine cleanup and to share
with you some of what we have learned on our own on the ground
work cleaning up abandoned mines throughout the east and the
west.
Trout Unlimited has about 160,000 members in 36 States across
the Country. We have a long history of engaging in watershed restoration projects that improve fisheries and water quality and otherwise improve watershed health. In fact, each of our more than
400 chapters donates well more than 1,200 hours a year in volunteer service doing stream cleanups, including a number of abandoned coal and hardrock mine projects.
Since the creation of the Office of Surface Minings Abandoned
Mine Reclamation Fund in 1977, more than $7.5 billion has been
collected from the coal industry to help heal Appalachian and western coal fields. In places such as Kettle Creek watershed of North
Central Pennsylvania, our work provides an example of how you

24
can use those resources to both accomplish ecological restoration as
well as achieve economic opportunities.
In some of the places that we work in that State, thanks in large
part to Pennsylvanias Good Samaritan legislation, which you
heard about earlier, coal contributing to acid mine drainage is
mined as part of a remediation plan. And then follow-up reclamation work can virtually eliminate abandoned mine drainage. Trout
Unlimited is working with the Commonwealth of Pennsylvania, the
Office of Surface Mining and other partners to extend this combination of active and passive treatments, habitat restoration and
community education to the Broader West Branch watershed,
which is a watershed that drains 20 percent of the State of Pennsylvania and many, many miles of which are essentially lifeless
due to acid mine drainage.
From a fisheries and watershed health perspective, issues associated with abandoned gold and silver mines and copper mines are
very similar to those of coal mines. The enormity and scope of the
abandoned mine problem in the western United States has led to
a collective sense of futility which I think you have heard a fair
amount about today, that has fostered inactivity in many landscapes.
In 2003, Trout Unlimited decided to restore the American Fork
Creek which is in Utah. This is an area that is visited by about
a million and a half people or so a year. The Forest Service had
reclaimed much of the landscape that was degraded by abandoned
minds on public land. Those areas that were remained were largely
on private lands that were owned by the Snowbird Ski and Summer Resort.
After reaching an agreement with EPA called an administrative
order on consent, Trout Unlimited is now in the midst of removing
the single largest sources of pollution from the private lands in the
watershed. When complete this summer, fisheries and water quality will be significantly improved.
In our view, the two greatest needs for increasing the scope and
scale of abandoned mine cleanup are creating a dedicated funding
source, and establishing a Federal permitting process that encourages Good Samaritan restoration projects. Lack of money and liability concerns are significant barriers to local restoration.
In the coal fields, as I mentioned earlier, the Federal Abandoned
Mine Land Reclamation Fund has collected over $7.5 billion for the
recovery of mine-scarred areas. That legislation needs long-term reauthorization, and the Appalachian Clean Streams Program needs
increased funding.
Mr. DUNCAN. Mr. Wood, I apologize, let me interrupt you there.
I had hoped we could get your full statement in, but we will just
have to interrupt at this point. We have two votes going on. I wish
we didnt have to do this, but we are going to have to break to do
these votes. We should be back in about 15 minutes, and we will
let you conclude your statement at that time. We will give you
some extra time. Thank you very much.
[Recess.]
Mr. DUNCAN. I am sorry, they drag these votes out sometimes,
and Mr. Wood, we caught you in the middle of your statement. You
may resume your statement.

25
Mr. WOOD. Thank you, sir.
On the American Fork, we were able to cobble together some private and Federal funding, in particular, from the Tiffany and Company Foundation and through the Natural Resource Conservation
Service to initiate our restoration. It is important to note that
cleaning up private lands on the American Fork is not a particularly expensive proposition. To finish doing the job that the Forest
Service started will only cost about $150,000 to $200,000.
There are hundreds if not thousands of other cleanups across the
west that could be conducted if liability issues and funding issues
were addressed. Every commodity developed off public lands has
dedicated funding to pay for cleanup associated with production,
except for hardrock minerals. Communities and organizations such
as ours could get a lot more done if the resources were more readily
available and in more obvious places than they are today.
The other impediment that we have talked a lot about this morning to making progress on the ground is a clear permitting process
for Good Samaritans who wish to recovery abandoned mines. While
CERCLA and the Clean Water Act are outstanding mechanisms for
preventing pollution and holding polluters accountable, on many
sites those polluters are long gone. Liability concerns can prevent
Good Samaritan cleanups, as you have heard already today from
taking place.
Our experience is that using existing tools to facilitate cleanup
by Good Samaritans sometimes feels like pounding a square peg
into a round hole. We are making progress, however. For example,
the agreement that we reached with EPA on the American Fork
can serve as a model for other cleanups across the Country. Our
agreement protects Trout Unlimited by making our essential obligation the completion of an agreed-upon cleanup plan. In exchange
for raising the money and doing the work, we get from EPA a covenant from the EPA not to sue us if they decide to go after a polluter; protection from other potentially responsible parties suing
us, if EPA goes after them; a cap on our own liability if EPA chooses to step in and complete the work itself; and an expedited permitting procedure for meeting State and Federal legal requirements.
Once we complete the cleanup to the specifications of the plan
and the satisfaction of EPA, we walk away. Too often, trailing liability concerns from the Clean Water Act and CERCLA are seen
as impeding this kind of agreement.
Our administrative order on consent with EPA provides a model
that can be replicated and alleviate many, if not all, the liability
impediments to cleaning up abandoned mines. The fact is, though,
that we never would have completed this agreement were it not for
the direct involvement of Ben Grumbles shop, Brent Fewell and
the rest of the Office of Water and Administrator Johnson himself.
Such extraordinary intervention should not be required for projects
as small in scale as the American Fork. Now that the first one is
complete, we expect and hope that future cleanups and future
agreements will be easier to obtain.
In closing, the position of Trout Unlimited is that whether
through new legislation or the creation of a new permitting system
at EPA under existing law, a lot of good work can be done to im-

26
prove the quality of peoples lives and the health of our lands.
Thank you for inviting me to testify today.
Mr. DUNCAN. Thank you very much, Mr. Wood.
Ms. Smith.
Ms. SMITH. Thank you, Mr. Chairman. Since I am last in the
lineup here, I am going to try to help your deliberations by getting
straight to the point. You have heard this morning a number of
speakers focus their concerns on the chill that the Clean Water Act
seems to have on those who might opt to get in mine cleanups. We
fully understand that parties, be they local governments, water
utilities, or groups like Chriss may be hesitant to become holders
of Clean Water permits.
We actually have some sympathy with their cautions, but we also
believe that the concerns that have been raised can and in fact
have, as Chris was just talking about, been addressed by working
closely with regulators, carefully planning and tailoring cleanup
projects to the appropriate scale and type, sometimes avoiding any
discharge at all and working out appropriate consent agreements
where necessary.
The folks from Pennsylvania earlier talked about a program that
is working. Chris talked about cleanup that is working. And we believe that others can follow using that model consent agreement.
We think that caution is important. When it comes to mine
cleanup, some significant caution is warranted. I would just draw
your attention back to the case of the Penn Mine. It is actually one
of those examples where, although conducted with the best of intentions, a mine cleanup actually went back and created new problems. I think that is what you need to guard against.
More importantly, we dont believe that the Good Samaritan
projects are the real crux of the problem. There are down sides in
trying to craft, it is difficult, as you drew out, Mr. Chairman, trying
to figure out how craft legislation so you dont have projects that
make mistakes and you dont weaken liability and stop cleanup at
sites like Arrington, Nevada or Kennecott in Utah.
The inescapable fact is that there is an enormous universe of
abandoned mines, perhaps in the range of half a million total, and
neither industry nor Government is spending enough money to
make a serious dent in the problem. Money is the single most important barrier to cleanup. Congress needs to appropriate more
funds for cleanup. States need to contribute more to cleanup. And
the hardrock mining industry needs to follow the approach of their
coal mining brethren picking up a share of the cost of cleaning up
legacy mining problems.
The other part of the problem is that not all of minings problems
are in the past. There are many mines, like those in the Copper
Basin of Tennessee, Mr. Chairman, that do fit that image of the
legacy or historic mine. But there are many more that are far more
recent vintage. The west is dotted with abandoned mines that date
from the 1980s, not the 1880s, but the 1980s when gold, copper and
uranium mining were booming. Too many of those boom projects,
once touted as environmental models and economic windfalls, have
left large and costly messes.
These messes exist today, threats to public health and the environment and drains on the Federal Treasury, because the pro-

27
grams for regulating hardrock mining have failed. There is a desperate need for improvement of mining regulation, for a reasonable
and enforceable program to govern disposal of mine waste, for financial assurance rules that actually assure that cleanup funds are
available when mining operations cease.
In our view, the pressing need today is not to hurry along modest
cleanup projects. Some of those will do good, but others, hurried,
will go wrong and themselves have to be remedied. The pressing
need is for improved regulation. The pressing need is for scrutiny
and controls that recognize that perpetual pollution can occur at facilities like the Zortman Landusky Mine in Montana. The pressing
need is for a regulatory system that deals with the vast amount of
toxic waste produced by this industry.
Now, while the industry is on the crest of a boom, action to assure that this new generation of mining projects does not yet yield
another generation of mining messes is what is needed. If as apparently you are anxious to legislate something to aid Good Samaritans, we urge you to look on the model of a demonstration
project with funds, a demonstration project that looks at it on a
watershed basis, that makes sure that there is appropriate baseline
data, that engages mining reclamation experts, that includes a
bond pool or other mechanisms to underwrite financial assurances
for projects, and that doesnt undermine the liability that governs
cleanup at other sites and that excludes re-mining.
We look forward to working with you, Mr. Chairman, and I look
forward to your questions. Thank you.
Mr. DUNCAN. Ms. Smith, I am interested in your last few words
there. You said that excludes re-mining. Do you think it would ever
be possible to re-mine at an abandoned site in an environmentally
safe way? Or do you think that is impossible?
Ms. SMITH. I dont know that the act of re-mining itself couldnt
be done in an environmental way. I dont think it should be part
of a waiver or exclusion. The fact is that many mining projects, especially in the west today, most all of them are probably at some
level of re-mining. They are going back into old mining districts.
Summittville, Colorado, which was one of the sort of poster children of bad mine problems, actually was back in an area that had
been mined before. There are a whole variety of mining projects
that are going back into old areas. Which is not to say that you
wouldnt want to go in and re-mine, just dont handle those, as a
matter of a Good Samaritan project, with a streamlined permitting
process. Just let them be mining projects.
Mr. DUNCAN. Since you say that some of the 1980s projects or
areas that were mined, and they were described as environmentally safe at that time, and now they are disasters or harmful
areas in your opinion, do you feel that mining companies should be
excluded from any Good Samaritan legislation?
Ms. SMITH. I think the best way to get, if you want to move on
this, is to get going with local governments, watersheds, water utilities, non-profit groups. I dont imagine, I think that the contribution that the mining industry could make would be like the coal
mining industry has made under SMCRA, which is to contribute a
certain percentage of profits or gross to a mine cleanup fund. I
think that could be the primary role for the mining industry.

28
Mr. DUNCAN. Mr. Mudge, what do you say? When you heard Ms.
Smith say that we should exclude re-mining, what is your position
on her response to those last two questions?
Mr. MUDGE. I think in terms of re-mining, re-mining needs to be
defined. If re-mining is going into an abandoned mine site and
picking up mineralized materials that were left at the site and
processing those, most likely to remove the metals, then re-mining
absolutely should be allowed.
If re-mining means not only doing that, but then developing a
new deposit of ore that may underlie that, then the myriad of State
and Federal permits that are in place now would cover that activity
outside of this legislation.
Mr. DUNCAN. Ms. Smith referred to the gold and copper mining
boom of the 1980s and said that many of those areas are environmental problems at this point. Do you know what she is talking
about there? Has new mining, do you have any projects from the
1980s that were described as environmentally safe at that time
that are hazardous or problem areas now?
Mr. MUDGE. Well, a couple of examples. We have been mining on
the Carlin Trend since 1965, and continue to develop those deposits. The rules and the regulations have changed over time. We have
helped manage those changes, and we have brought our facilities
up to todays standards over that time.
We have one facility that started up in the 1950s under old
Atomic Energy Commission contracts. As we got into the 1980s, we
built it according to more like todays standards, but there are
some issues that date back way prior. But for the most part, our
facilities that have been going since the 1960s, 1970s, 1980s are in
very good shape environmentally.
Mr. DUNCAN. Dr. Limerick and Mr. Wood, do most of these
projects, can they be done without very, very large amounts of
money, or do you think that most of these projects would be, that
it is very, very expensive to clean up these mine sites? Lets just
go with that. What has your experience been in that regard?
Mr. WOOD. Our experience is that it varies. But I can use the
American Fork as an example. The engineering involved on the
American Fork was really straightforward. We essentially dug a
pit, created a repository, moved some tailings that were leaching
into the American Fork Creek and harming Bonneville Cutthroat
trout, moved those tailings into the hole, actually this work is
going to be conducted this summer, and then we are putting a liner
over it, re-vegetating and then recontouring the land to keep the
drainage away.
It will have a significant effect on water quality in the river, and
it will cost us between $150,000 to $200,000 for the project.
Ms. LIMERICK. I would simply add that the goal of perfection is
very expensive, that the pursuit of perfection would be prohibitive.
But the pursuit of significant change and significant improvement,
I think that is within the reach of manageable.
And again, I have been really struck by the pluck and spirit and
originality of some of these groups in fighting multiple sources,
whether that is a local sales tax or a district bond or something
like that. It is really quite remarkable to me how many different
funding sources can open up on that.

29
But what I wouldnt want is, well, that is exactly why we are
here to have this discussion, is a standard of something close to
perfection which is prohibitive in cost.
Mr. DUNCAN. What other incentives could we come up with or
could communities come up with to encourage abandoned mine
cleanup other than the Good Samaritan legislation that we are
talking about?
Ms. LIMERICK. The matter of incentives, as an historian, to me
is very interesting. I personally am privately a supporter of getting
as many incentives into play as possible. But I do understand that
there is, in some circles in the environmental community, a real
anxiety that opening the door to financial profit from companies
could return us to the late nineteenth century in a free-for-all. That
seems to me as an historian an exaggerated fear.
But I do understand that we have to walk very carefully when
we seem to be opening the door to market incentives for companies
and re-mining is of course the trigger point for that.
My feeling is that there is an enormous financial benefit to companies who take part in this in public relations, and a really good
set of community relations and good feelings from citizens, public
officials, regulators. But I really come from our work to have a
deep recognition of how jumpy that subject of market incentives
and other financial rewards for people doing the right thing.
I am struck, one of the few people I know in this whole discussion who went back and read the Bible and read the Good Samaritan parable and thought, who is this Good Samaritan, it is very
striking to see that the Good Samaritan not only helped the poor
soul by the road, but then puts a lot of money into it, says to the
innkeeper, I will be back here on my return trip and if you need
more money I will give it to you. So if we go by the Bible, and I
know Im speaking in the wrong framework here, but there is a financial investment.
But I just think for the purposes of getting things moving, decoupling the Good Samaritan relief from the matter of funding that it
is probably best not to read Luke at this point in time in our discussion.
Mr. DUNCAN. I think Mr. Mudge and Ms. Smith want to make
comments. Mr. Mudge?
Mr. MUDGE. Frankly, the incentive for us is good will. We are always looking for good projects that we can show to the community
and to really improve minings reputation. We have done a project
on the Carlin Trend, actually working with Trout Unlimited to improve the habitat for a threatened trout. There happens to be an
abandoned mine also in this same drainage on BLM property.
There has been some discussion about how we can help on that
abandoned mine.
In an effort to holistically improve this whole drainage, it is
something that we would be very interested in doing. And the good
will and the reclamation awards we get out of it go a long way in
our organization. But as we have talked before, there is the impediments and deterrents to doing that.
Mr. DUNCAN. Ms. Smith?
Ms. SMITH. Yes, Mr. Chairman. I think programs like Pennsylvania where there is transparency, there is planning, there is prior-

30
ity setting, they are looking on a watershed basis, they are engaging the public in mine cleanups, engaging experts, keepingand
doing that, I believe you can do that within the framework of consent agreements and within the framework of the Clean Water Act.
Mr. DUNCAN. So you believe the Pennsylvania program is a pretty good program?
Ms. SMITH. I think that might a model to learn from for other
States. To look at a watershed basis, to prioritize, not to do a little
bit over here, a little bit over there, but try to prioritize where
small projects can get you the best result.
I also think that in some projects, and where you can identify
ones that will be really truly small, where you are moving some
waste, where you perhaps are not touching the water itself. I think
for the ones that deal with discharges, then what the States, the
Feds could do is step up to the plate and have someone who will
be the keeper of the permit for perpetuity, because many of these
sites, you are going to have to treat the acid mine drainage forever.
You cant just build a facility and walk away.
That is one of the issues in terms of Penn Mine, was the best
of intentions, but the facility they built was not engineered correctly, and it wasnt maintained. Then you ended up with more
problems.
But if someone, if the State, if the local government wants to say,
we will take the responsibility for the ongoing discharge, but we
will take the help for the revegetation, the planting, the other kind
of work, then those are the kinds of programs that you can have
within the framework of the Clean Water Act now.
Mr. DUNCAN. All right. Mr. Woods.
Mr. WOOD. Perhaps for slightly different reasons than Velma
mentioned, I think Pennsylvania also provides an outstanding
model. We have done a lot of work there in the Kettle Creek watershed extending now into the West Branch. The two incentives that
the State provides are, or three incentives, are the liability relief,
which is real and significant, technical resources to help out these
groups with planning, design planning and such, and then the last
incentive, which is, it just cant be overstated, is financial resources. The State has made available, I think it is over $650 million for their Growing Greener program to fund a lot of these cleanups.
Mr. DUNCAN. All right. Well, let me apologize to you once again.
I am running late for another meeting now. You have been very
helpful. I will say the same thing to you that I said to the first
panel, that if you have additional comments or suggestions that
would be helpful to us, we will keep the record open for just a few
days, if you could get those to us by some time next week, they will
be included in the record of the hearing. We will refer to them
when we work on this legislation.
Thank you very much for being with us and that will conclude
this hearing.
[Whereupon, at 12:17 p.m., the subcommittee was adjourned.]

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