109th CONGRESS
2d Session
H. R. 5071
To establish a pilot project for the remediation of abandoned and
inactive hardrock mines in the Upper Animas River basin in southwestern
Colorado.
IN THE HOUSE OF REPRESENTATIVES
March 30, 2006
Mr. SALAZAR introduced the following bill; which was referred to the Committee
on Transportation and Infrastructure
A BILL
To establish a pilot project for the remediation of abandoned and
inactive hardrock mines in the Upper Animas River basin in southwestern
Colorado.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
(a) Short Title- This Act may be cited as the `Animas River Good Samaritan
Mined Land Remediation Pilot Project Act'.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings- Congress finds that--
(1) thousands of abandoned or inactive mines exist in the West and elsewhere
in the United States that often cause acid mine drainage into our Nation's
waters;
(2) often, a person that is responsible for conditions at abandoned or
inactive mined land is not identifiable or economically viable, resulting
in an inability to compel the person to clean up the mine site;
(3) cleanup of these sites is hampered by liability concerns and disagreements
over how those concerns should be addressed;
(4) a pilot program in a small geographic area may demonstrate how best
to address liability issues;
(5) only a small number of the hundreds of inactive mines in the Upper
Animas River basin in San Juan County, Colorado, have been actively mined
since the 1940's;
(6) 29 total maximum daily load allocations have been established pursuant
to section 303(d) of the Federal Pollution Control Act (33 U.S.C. 1313(d))
for particular metals in specific segments of the Upper Animas River basin;
and
(7) the Upper Animas River basin is one of 2 geographic areas nationwide
chosen for intensive study under the Department of Interior's Abandoned
Mine Lands Initiative.
(b) Purpose- The purpose of this Act is to initiate a 10-year pilot program
in the Upper Animas River basin which facilitates the cleanup of abandoned
and inactive mine sites in the basin that negatively impact water quality
by limiting liability under sections 301, 302, and 402 of the Federal Water
Pollution Control Act (33 U.S.C. 1311, 1313, 1342) for third parties not
responsible for the degradation but who take steps to improve water quality.
SEC. 3. ABANDONED OR INACTIVE MINED LAND REMEDIATION PERMITS.
Section 402 of the Federal Water Pollution Control Act (33 U.S.C. 1342)
is amended by adding at the end the following:
`(r) Abandoned or Inactive Mined Land Remediation Permits-
`(1) DEFINITIONS- In this subsection, the following definitions apply:
`(A) ABANDONED OR INACTIVE MINED LAND- The term `abandoned or inactive
mined land' means land located in the Animas River watershed above Elk
Creek in San Juan County, Colorado, formerly hardrock mined for noncoal
resources--
`(i) that is no longer actively mined (and not in temporary shutdown)
as of January 1, 1992;
`(ii) that is not included on the National Priorities List under the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (42 U.S.C. 9601 et seq.); and
`(iii) for which there is no known responsible owner or operator.
`(B) RESPONSIBLE OWNER OR OPERATOR- The term `responsible owner or operator'
means a person, including a governmental entity--
`(i) that is responsible for activities conducted at abandoned or
inactive mined land that created conditions that cause or contribute
to the discharge of pollutants from the abandoned or inactive mined
land; and
`(ii) that is financially capable of compliance with the requirements
of sections 301 and 302 and this section.
`(C) REMEDIATING PARTY- The term `remediating party' means--
`(i) the United States, except with respect to abandoned or inactive
mined land located on Federal land;
`(ii) the State of Colorado or political subdivision thereof; or
`(iii) a person that is not--
`(I) responsible for activities conducted at the site to be remediated
that caused or contributed to the discharge of pollutants from the
site; or
`(II) the owner of the site.
`(D) COOPERATING PARTY- The term `cooperating party' means any person,
including a governmental entity, that is not the owner of the site to
be remediated or responsible for activities conducted at the site to
be remediated that caused or contributed to the discharge of pollutants
from the site--
`(i) participates in the design or implementation of the practices
described in paragraph (3)(B)(viii) with respect to such site;
`(ii) participates in the design or implementation of monitoring or
other forms of assessment described in paragraph (3)(B)(x) with respect
to such site; or
`(iii) raises, contributes, or administers funding or in-kind services
for the purposes described in paragraph (3)(B)(viii) or (3)(B)(x)
with respect to such site.
`(A) IN GENERAL- The Administrator shall conduct beginning on the 90th
day following the date of enactment of this subsection a 10-year pilot
project under which the Administrator, with the concurrence of the State
of Colorado, may issue, modify, enforce, or terminate a permit issued
under this section to a remediating party for discharges associated
with remediation activity at abandoned or inactive mined land and that
modifies the otherwise applicable requirements of any other subsection
of this section or section 301, 302, or 401.
`(B) DELEGATION- The Administrator may delegate all or part of the authority
under subparagraph (A) to the State of Colorado.
`(A) SCOPE- A remediating party may apply for a permit under this section
for remediation activities at abandoned or inactive mined land from
which there is or may be a discharge of pollutants to waters of the
United States.
`(B) REMEDIATION PLAN- A remediating party that seeks a permit under
subparagraph (A) shall submit an application for the permit that includes
a remediation plan that--
`(i) identifies the remediating party and any cooperating parties
with respect to the plan;
`(ii) identifies the geographic boundaries of the abandoned or inactive
mined land addressed by the plan, including a verification that the
land is abandoned or inactive mined land;
`(iii) identifies the waters of the United States affected by past
mining activities at the abandoned or inactive mined land;
`(iv) describes the baseline conditions of the waters at the time
of the permit application (including the nature and extent of any
pollutant causing an adverse water quality impact);
`(v) describes the physical and chemical conditions at, and pollutants
from, the abandoned or inactive mined land that are causing adverse
water quality impacts;
`(vi) describes the applicant's reasonable efforts to identify--
`(I) current owners and lessees of the abandoned or inactive mined
land; and
`(II) any persons, including mine operators, whose activities at
or on such land after October 18, 1972, created conditions that
cause or contribute to the discharge of pollutants from such land;
`(vii) describes the remediation goals and objectives of the plan,
including the pollutant or pollutants to be addressed by the plan;
`(viii) describes the practices, including a schedule and estimated
completion date for implementing the practices, that are proposed
to reduce, control, mitigate, or eliminate the adverse water quality
impacts described in clause (v), including--
`(I) in the case of a new remediation project, the preliminary system
design and construction, operation, and maintenance plans; and
`(II) in the case of an existing remediation project, available
system design and construction, operation, and maintenance plans
and any planned improvements to the project;
`(ix) explains how the practices described in clause (viii) are expected
to result in furthering the objectives of existing total maximum daily
load allocations under section 303(d) for the identified waters;
`(x) describes the monitoring or other forms of assessment that will
be undertaken to evaluate the success of the practices described in
clause (viii) during and after implementation of such practices, relative
to baseline conditions;
`(xi) describes a mechanism or method that will ensure the full net
environmental benefits of the project are realized in the future even
if ownership of the land changes;
`(xii) describes contingency plans for responding to foreseeable,
unplanned, adverse events;
`(xiii) provides a schedule for periodic reporting on progress in
implementing the plan;
`(xiv) provides a budget for the plan and identifies the funding sources
that will support the implementation of the plan;
`(xv) describes the applicant's legal authority to enter and conduct
activities at or on the abandoned or inactive mined land to be addressed
by the plan;
`(xvi) contains any additional information requested by the Administrator
to clarify the plan and activities covered by the plan; and
`(xvii) is signed by the applicant.
`(C) REVIEW OF APPLICATION-
`(i) IN GENERAL- The Administrator shall review each permit application
submitted under subparagraph (B), and determine whether the application
meets the requirements of subparagraph (B) and contains all the information
required by the Administrator, within 90 days of the date of such
submittal.
`(ii) DISAPPROVAL- If the Administrator determines that an application
submitted under subparagraph (B) does not meet the requirements of
subparagraph (B), the Administrator, shall notify the applicant that
the application is disapproved, explain the reasons for the disapproval,
and allow the applicant to submit a revised application.
`(iii) APPROVAL- If the Administrator determines that a permit application
submitted under subparagraph (B) meets the requirements of subparagraph
(B) and contains all the information required by the Administrator,
the Administrator shall notify the applicant of the proposed issuance
of the permit being applied for, provide to the public notice in the
San Juan County, Colorado, and La Plata County, Colorado, newspapers
of, and an opportunity to comment on, such proposed issuance and hold
a public hearing on such proposed issuance in the Animas River watershed,
Colorado.
`(i) DECISION TO ISSUE- After notice and opportunity for public comment
on a permit proposed to be issued for mined land under subparagraph
(C)(iii), the Administrator may issue the permit to the applicant
remediation party if the Administrator, with the concurrence of the
State of Colorado, determines that--
`(I) relative to the resources available to the remediating party
for the proposed remediation activity, the remediating party has
made a reasonable effort to identify persons under subparagraph
(B)(vi);
`(II) no responsible owner or operator exists for the mined land;
and
`(III) the remediation party has demonstrated with reasonable certainty
that the implementation of the remediation plan will result in an
improvement in water quality and will further the goal of meeting
existing total maximum daily load allocations applicable under section
303(d) taking into consideration the resources available to the
remediating party for the proposed remediation activity.
`(ii) DECISION NOT TO ISSUE- If the Administrator decides not to issue
the permit to the applicant, the Administrator shall notify the applicant
of the reasons for not issuing the permit not later than 30 days after
the date of the decision.
`(i) IN GENERAL- Not later than 15 days after the date of receipt
of a written request for modification of a permit issued under subparagraph
(D), the Administrator shall provide to the public notice of such
request. Not later than 30 days after the last date on which such
notice is provided, the Administrator shall approve or disapprove
the modification, unless a public hearing is requested by a person,
Indian tribe, State agency, or local governmental agency during such
30-day period.
`(ii) PUBLIC HEARING- If a public hearing is requested under clause
(i), the Administrator shall have 90 days beginning on the date of
such request to hold in the Animas River watershed a public hearing
on the modification and approve or disapprove the modification.
`(iii) APPROVAL- The Administrator may only approve a permit modification
under this subparagraph if--
`(I) the State of Colorado concurs in such approval; and
`(II) the Administrator determines that the modified remediation
plan will comply with subparagraph (D)(i)(III).
`(iv) ADMINISTRATIVE PROVISION- The Administrator shall ensure that
a permit modification approved under this subparagraph is immediately
reflected in, and applicable to, the permit.
`(A) IN GENERAL- A permit issued or modified, or both, under this subsection
shall--
`(i) include a remediation plan approved by the Administrator and
any additional requirements that the Administrator establishes under
paragraph (10);
`(ii) provide for compliance with and implementation of the remediation
plan and the additional requirements;
`(iii) establish a schedule for review by the Administrator of compliance
with the conditions and limitations of the permit; and
`(iv) exempt the remediating party or any cooperating parties with
respect to the remediation plan from complying with any other subsection
of this section or with section 301 or 302.
`(B) RECOVERABLE VALUE- A remediation party for a permit issued or modified,
or both, under this subsection is not prohibited from selling or using
materials recovered during the implementation of the remediation plan
under the permit, but the proceeds of any such sale must be used to
defray the costs of remediation of the mined land addressed in the permit
or the costs of remediation of other abandoned or inactive mined lands.
`(5) FAILURE TO COMPLY- If, during a review conducted under paragraph
(4)(A)(iii), on the receipt of a petition from any person, or for any
other appropriate reason, the Administrator determines that the remediating
party for a permit issued or modified, or both, under this subsection
has failed to comply with the provisions of the permit, the Administrator
may bring an enforcement action under section 309.
`(6) STATE CERTIFICATION- To the extent that this subsection relates to
water quality standards, a certification under section 401 shall not apply
to a permit issued or modified, or both, under this subsection.
`(A) MANDATORY- The Administrator, with the concurrence of the State
of Colorado, shall terminate a permit issued or modified, or both, under
this subsection if--
`(i) the remediating party completes the implementation of the remediation
plan; or
`(ii) a discharge covered by the permit becomes subject to a permit
issued under the other subsections of this section that is not part
of the implementation of the remediation plan.
`(B) DISCRETIONARY- The Administrator, with the concurrence of the State
of Colorado, may terminate a permit issued or modified, or both, under
this subsection if--
`(i) an event or condition is encountered that was not contemplated
by the remediation plan and is beyond the control of the remediating
party; or
`(ii) the remediating party fails to conduct the remediation according
to the approved remediation plan.
`(C) NO ENFORCEMENT LIABILITY- If a permit is terminated under this
paragraph, the remediating party and any cooperating parties with respect
to the remediation plan shall not be subject to enforcement under section
309 or 505 for any remaining discharges from the abandoned or inactive
mined land described in the permit.
`(A) EMERGENCY POWERS- Nothing in this subsection limits the authority
of the Administrator under section 504.
`(B) PRIOR VIOLATIONS- Nothing in this subsection or a permit issued
or modified, or both, under this subsection precludes an action under
section 309 or 505 or affects the relief available in an action under
such section, with respect to a violation of this section or section
301(a) or 302 that occurred prior to the issuance of a permit under
this subsection.
`(C) OBLIGATION OF STATES AND INDIAN TRIBES- Except as expressly provided,
nothing in this subsection limits any obligation of a State or Indian
tribe under section 303.
`(D) OTHER DEVELOPMENT- Nothing in this subsection affects the applicability
of this Act (other than this subsection) to any development of abandoned
or inactive mined land (including mineral exploration or mining) not
described in a permit issued by the Administrator under this subsection.
`(9) LIABILITY OF OTHER PARTIES- Nothing in this subsection limits the
liability under this Act (other than this subsection) or any other law
of any person (other than the remediating party and any cooperating parties)
with respect to the remediation plan for a permit approved or modified,
or both, under this subsection.
`(10) REGULATIONS- Not later than 1 year after the date of enactment of
this subsection, the Administrator, in consultation with the State of
Colorado, tribal, and local officials and after providing notice, an opportunity
for comment, and a hearing, shall issue regulations establishing generally
applicable requirements for remediation plans described in paragraph (3)(B)
and such other regulations as the Administrator considers necessary to
carry out this subsection
`(11) FUNDING FOR IMPLEMENTING REMEDIATION PLANS-
`(A) IN GENERAL- There is authorized to be appropriated to the Administrator
$30,000,000 to pay 85 percent of the costs of designing and implementing
remediation plans for which permits are issued under this subsection.
The remaining share of such costs may be provided with funds or in-kind
services by private, local, State, or other Federal sources, including
grants under section 319.
`(B) PRIORITY- The funds appropriated under this paragraph shall be
allocated first to proposed remediation plans that are comparatively
more likely than other proposed remediation plans to further the objectives
of the existing total maximum daily load allocations under section 303(d)
with respect to discharges from abandoned or inactive mined land.
`(A) IN GENERAL- Not later than the last day of each of the 2nd, 5th,
7th, and 10th years of the pilot program conducted pursuant to this
subsection, the Administrator shall submit to Congress a report on the
activities carried out under this subsection.
`(B) CONTENTS- The report under subparagraph (A) shall, at a minimum--
`(i) identify each permit issued under this subsection and associated
remediating party;
`(ii) identify the abandoned or inactive mined land addressed by each
permit issued under this subsection (including the water bodies and
baseline water quality of the water bodies affected by the land);
`(iii) summarize the remediation plan associated with each permit
issued under this subsection, including the goals and objectives of
the plan, the plan budget, and the practices to be employed according
to the plan to reduce, control, mitigate, or eliminate adverse water
quality impacts on such water bodies;
`(iv) identify the status of the implementation of each remediation
plan associated with each permit issued under this subsection (including
specific progress that permitted remediation activities have made
toward achieving the goals and objectives of the remediation plan);
`(v) identify and describe any enforcement action taken by the Administrator
or any civil action brought by a citizen concerning a permit issued
under this subsection (including the disposition of the legal action);
and
`(vi) include recommendations by the Administrator for any modifications
to this subsection, or regulations issued under paragraph (10) to
implement this subsection, that would facilitate the improvement of
water quality through remediation of abandoned or inactive mined land.
`(13) TERMINATION OF PERMITTING AUTHORITY- The authority granted to the
Administrator under this subsection to issue an abandoned or inactive
mined land remediation permit terminates on the date that is 10 years
after the date of enactment of this subsection.'.
END
