To promote remediation of inactive and abandoned mines, and for other purposes.

October 6, 2005

Mr. SALAZAR (for himself and Mr. ALLARD) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works

To promote remediation of inactive and abandoned mines, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Cleanup of Inactive and Abandoned Mines Act'.

SEC. 2. FINDINGS AND PURPOSES.

(a) Findings- Congress finds that--

(1) the Federal Government and State governments encouraged hard rock mining in the United States through a wide variety of laws, policies, and actions;

(2) the mining activities that took place disturbed public and private land, and those disturbances led to considerable environmental pollution;

(3) many areas in which hard rock mining took place in the United States are now inactive and abandoned mine sites;

(4) many inactive and abandoned mine sites pollute the environment today and will continue to do so indefinitely unless remediated;

(5) adits and other tunnels will continue to drain pollutants to surface and ground water through gravity flow;

(6) surface runoff will continue to pick up pollutants as the runoff moves over disturbed ground and transports pollutants to surface waters;

(7) tailings and other materials left exposed to the elements will continue to blow in the wind and pollute the atmosphere and soils;

(8) many of the individuals and corporate owners and operators of those mines, who caused this pollution, are no longer alive or in existence;

(9) some of the remaining owners and operators who remain do not have resources that are adequate to conduct remediation properly under applicable environmental laws, for all practical purposes leaving no one responsible for the cleanup of pollution from those sites;

(10) inactive and abandoned mine sites are located in areas of known economic mineralization;

(11) modern mining activities often take place on or in the vicinity of the area in which historic hard rock mining activities took place;

(12) from time to time, individuals and companies are willing to remediate historic mine sites for the public good as Good Samaritans, despite the fact that these individuals and companies are not legally required to remediate the mine sites;

(13) Good Samaritan remediation activities may--

(A) vary in size and complexity;

(B) reflect the myriad ways that mine residue may be cleaned up; and

(C) include, among other activities--

(i) the relocation or management of tailings or other waste piles;

(ii) passive or active water treatment;

(iii) runoff or run-on controls; and

(iv) the use or reprocessing of, or removal of materials from, mine residue;

(14) the potential environmental liabilities that may attach to those Good Samaritans as a result of the remediation can dissuade those Good Samaritans from acting for the public good;

(15) it is in the interest of the United States, the States, and local communities to remediate historic mine sites, in appropriate circumstances and to the maximum extent practicable, so that the environmental impacts of the sites are lessened into the future; and

(16) if appropriate protections are provided for Good Samaritans, Good Samaritans will have a greater incentive to remediate those sites for the public good.

(b) Purposes- The purposes of this Act are--

(1) to encourage partial or complete remediation of inactive and abandoned mining sites for the public good by persons who are not otherwise legally responsible for the remediation;

(2) to provide appropriate protections for Good Samaritans under applicable environmental laws;

(3) to ensure that remediation performed by Good Samaritans creates actual and significant environmental benefits;

(4) to ensure that remediation by Good Samaritans is carried out--

(A) with the approval and agreement, and in the discretion, of affected Federal, State, and local authorities and with review by the public; and

(B) in a manner that is beneficial to the environment and all affected communities;

(5) to create an efficient permit process under which the cost and complexity of obtaining a permit are commensurate with the scope of remediation work to be completed and the environmental benefits from the work;

(6) to avoid permitting for ongoing, for-profit businesses that specialize in multiple Good Samaritan projects that are designed to be permitted outside otherwise applicable Federal, State, and local environmental laws; and

(7) to ensure that the protections for Good Samaritans provided in this Act are interpreted in accordance with the purposes of this Act and to enhance the public good.

SEC. 3. REMEDIATION OF INACTIVE OR ABANDONED MINES BY GOOD SAMARITANS.

(a) Definitions- In this section:

(1) ADMINISTRATOR- The term `Administrator' means the Administrator of the Environmental Protection Agency.

(2) COOPERATING AGENCY- The term `cooperating agency' means any Federal, State, or local agency or other person (other than the Administrator) that--

(A) is authorized under Federal or State law, or local ordinance, to participate in issuing a permit under this section; and

(B) elects to participate in the process of issuing the permit.

(3) ENVIRONMENTAL LAW- The term `environmental law' includes--

(A) the Toxic Substances Control Act (15 U.S.C. 2601 et seq.);

(B) the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.);

(C) the Safe Drinking Water Act (42 U.S.C. 300f et seq.);

(D) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);

(E) the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.);

(F) the Clean Air Act (42 U.S.C. 7401 et seq.);

(G) the Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. 7901 et seq.);

(H) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.);

(I) applicable environmental laws of a State; and

(J) applicable environmental ordinances of a political subdivision of a State.

(4) GOOD SAMARITAN- The term `Good Samaritan' means a person that--

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

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

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

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

(5) HISTORIC MINE RESIDUE-

(A) IN GENERAL- The term `historic mine residue' means mine residue or conditions at an inactive or abandoned mine site that pollute the environment.

(B) INCLUSIONS- The term `historic mine residue' may include, among other materials--

(i) ores;

(ii) minerals;

(iii) equipment (or materials in equipment);

(iv) wastes from extractions, beneficiation, or other processing; and

(v) acidic or otherwise polluted flows in surface or ground water.

(6) INACTIVE OR ABANDONED MINE SITE; MINE SITE- The terms `inactive or abandoned mine site' and `mine site' mean the site of a mine and associated facilities that--

(A) were used for the production of a mineral other than coal;

(B) have historic mine residue; and

(C) are abandoned or inactive as of the date on which an application is submitted for a permit under this section.

(7) INDIAN TRIBE- The term `Indian tribe' has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b).

(8) PERSON- The term `person' includes--

(A) an individual;

(B) a firm;

(C) a corporation;

(D) an association;

(E) a partnership;

(F) a consortium;

(G) a joint venture;

(H) a commercial entity;

(I) a nonprofit organization;

(J) the Federal Government;

(K) a State;

(L) a political subdivision of a State;

(M) an interstate entity; and

(N) a commission.

(9) STATE- The term `State' means--

(A) a State; and

(B) an Indian tribe.

(b) Permits- The Administrator may issue a permit to a Good Samaritan to carry out a project to remediate all or part of an inactive or abandoned mine site in accordance with this section.

(c) Eligibility for Permits-

(1) IN GENERAL- To be eligible for a permit to carry out a project to remediate an inactive or abandoned mine site in a State under this section--

(A) the mine site shall be located in the United States;

(B) the principal purpose of the project shall be the reduction of pollution caused by historic mine residue;

(C) the mine site may not be a mine site included on the national priorities list under section 105(a)(8)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9605(a)(8)(B)) except in a case in which the Administrator determines, on a case-by-case basis, that--

(i) the remediation project proposed to be carried out at the mine site is minor as compared to all remediation activity needed at the listed mine site;

(ii) the conduct of the proposed remediation project at the listed mine site will not interfere with any other remediation at the mine site that is reasonably likely to occur; and

(iii) except for the remediation project proposed by the Good Samaritan at the mine site under this Act, there is not likely to be remediation of the historic mine residue that is the subject of the project at the listed mine site in the reasonably foreseeable future;

(D) the permit shall authorize only those activities that are directly required for the remediation of historic mine residue at the mine site;

(E) the person obtaining the permit shall be a Good Samaritan; and

(F) a State remediation program described in subsection (d) shall be in effect for remediation of the mine site.

(2) OTHER ACTIVITIES- Any activity other than the activities described in paragraph (1)(D) conducted by the permittee or any other person at the mine site (including, without limitation, any mining or processing in addition to that required for the remediation of historic mine residue for the public good)--

(A) shall not be authorized under a permit issued under this section; and

(B) may be authorized under other applicable laws, including environmental laws.

(d) State Remediation Program-

(1) IN GENERAL- Before a permit may be issued to carry out a project in a State under this section, the State shall have in effect a State remediation program that meets the requirements of this subsection.

(2) REQUIREMENTS- To meet the requirements of this subsection, under the State remediation program, the State shall--

(A) agree to participate, as a signatory, in each project for a which a permit for remediation in the State is issued under this section;

(B) agree that a permittee shall comply with the terms and conditions of the permit in lieu of compliance with applicable environmental laws specifically described in the permit in accordance with subsection (h)(1)(B);

(C) authorize State agencies and political subdivisions of the State to participate in the permit process under this section, as appropriate, and assist in providing the resources to enable that participation; and

(D) designate a lead State agency that is responsible to carry out permitting responsibilities of the State under this section.

(e) Application for Permits- To obtain a permit to carry out a project to remediate an inactive or abandoned mine site under this section, an applicant shall submit to the Administrator an application, signed by the applicant, that provides--

(1) a description of the mine site (including the boundaries of the mine site);

(2) an identification of--

(A) any current owner or operator of the mine site; and

(B) any person with a legal right to exclude other persons from the mine site or affect activities on the mine site, with a description of those legal rights;

(3) evidence satisfactory to the Administrator that the applicant has or will acquire all legal rights necessary to enter the mine site and to perform the remediation described in the application;

(4) a description, based on the conduct of an inquiry that is reasonable under the circumstances, of--

(A) all persons that may be legally responsible for the remediation of the mine site; and

(B) any relationship between those persons and the applicant;

(5) a certification that the applicant knows of no other person that (as of the date of submission of the application)--

(A) is potentially legally responsible for the remediation of the mine site; and

(B) has sufficient resources to complete the remediation;

(6) a detailed description of the historic mine residue to be remediated;

(7) a description of the baseline conditions (as of the date of submission of the application) of the environment affected by the historic mine residue to be remediated;

(8) a description of--

(A) the nature and scope of the proposed remediation; and

(B) detailed engineering plans for the project;

(9) a description of the manner in which the remediation will assist the mine site in meeting, to the maximum extent reasonable and practicable under the circumstances, water quality standards;

(10) a schedule for the work to be carried out under the project;

(11) a budget for the work to be carried out under the project;

(12) a description of financial assurances, if any, to be provided by the permittee to ensure that the permitted work, including any operation and maintenance, will be completed;

(13) a description of a monitoring program following remediation (if any) that will be implemented to evaluate the effects of the remediation on the environment;

(14) a detailed plan for the required operation and maintenance of any remediation; and

(15) a list of all environmental laws for which the applicant seeks the protection described in paragraphs (1) and (2) of subsection (g).

(f) Permit Issuance-

(1) IN GENERAL- The Administrator may issue a permit under this section to carry out a project for the remediation of an inactive or abandoned mine site in a State only if--

(A) the Administrator determines that--

(i) the project will improve the environment on or in the area of the mine site to a significant degree, as determined by the Administrator;

(ii) the project will not degrade any aspect of the environment in any area to a significant degree;

(iii) the project will meet applicable water quality standards, to the maximum extent reasonable and practicable under the circumstances;

(iv) the permittee has the financial and other resources to complete, and will complete, the permitted work; and

(v) the project meets the requirements of this section;

(B) the State concurs with the issuance of, and signs, the permit;

(C) if the permit provides protection for the permittee under an environmental law of a political subdivision of a State in accordance with paragraphs (1) and (2) of subsection (g), the political subdivision concurs with the issuance of, and signs, the permit; and

(D) if the proposed project is to be carried out on Federal land, each State (or political subdivision) within which the Federal land is located meets the requirements of subparagraphs (B) and (C).

(2) DISCRETIONARY ACTIONS- The issuance of a permit by the Administrator, and the concurrence of the affected State and political subdivisions of a State to participate in the permit process, shall be discretionary actions and shall be taken in the public interest.

(3) FUNCTIONAL EQUIVALENCY- No action of the Administrator or any other person pursuant to this section shall constitute a major Federal action significantly affecting the quality of the human environment under the National Environmental Policy Act (42 U.S.C. 4321 et seq.).

(4) DEADLINE-

(A) IN GENERAL- The Administrator shall issue or deny a permit for the remediation of a mine site not later than--

(i) the date that is 180 days after the date of receipt by the Administrator of an application for the permit that, as determined by the Administrator, is complete; or

(ii) such later date as may be determined by the Administrator with the agreement of the applicant.

(B) CONSTRUCTIVE DENIAL- If the Administrator fails to issue or deny the permit in accordance with subparagraph (A), the application shall be considered to be denied by the Administrator.

(5) REVIEW FOR CERTAIN PROJECTS- A project that, as determined by the Administrator, would be less complex, or pose less risk, than other projects under review by the Administrator for a permit under this section, may be reviewed, at the discretion of the Administrator, under a more simple and rapid review process under this subsection.

(g) Effect of Permits-

(1) IN GENERAL- A permit issued under this section to carry out a project for the remediation of an inactive or abandoned mine site--

(A) authorizes the permittee to carry out the activities described in the permit;

(B) authorizes enforcement under this section; and

(C) provides to the permittee, in carrying out the activities authorized under the permit, protection from actions taken, obligations, and liabilities arising under the environmental laws specified in the permit.

(2) CROSS-COMPLIANCE- A permittee shall comply with the terms and conditions of a permit issued under this section in lieu of compliance with the environmental laws specified in the permit with respect to the work authorized under the permit.

(h) Content of Permits-

(1) IN GENERAL- A permit issued under this section shall contain--

(A) a detailed description of the engineering and other work that is authorized under the permit;

(B) a specific list of environmental laws, or selected provisions of environmental laws, with respect to which compliance with the permit will operate in lieu of compliance with the laws;

(C) a provision that states that the permittee is responsible for securing, for all activities authorized under the permit, all authorizations, licenses, and permits that are required under applicable law, other than the environmental laws described in subsection (g)(2); and

(D) any other terms and conditions that are determined to be appropriate by the Administrator.

(2) INVESTIGATIVE SAMPLING-

(A) IN GENERAL- A permit may identify an appropriate program of investigative sampling to be completed prior to remediation, as determined by the Administrator upon application.

(B) OPTION TO DECLINE REMEDIATION- In the event that investigative sampling is authorized, the permit may allow the permittee to decline to undertake remediation based upon sampling results.

(C) PERMIT MODIFICATION- Based upon sampling results, a permittee may apply for a permit modification using the permit procedures in this Act.

(3) TIMING- Work authorized under a permit shall--

(A) commence not later than the date that is 18 months after the date of issuance of the permit; and

(B) continue until completed, with temporary suspensions permitted during adverse weather or other conditions specified in the permit.

(4) SIGNATURE BY PERMITTEE- The signature of the permittee on the permit shall be considered to be an acknowledgment by the permittee that the permittee accepts the terms and conditions of the permit.

(5) TRANSFER OF PERMITS- A permit may be transferred to another person only if--

(A) the Administrator determines that the transferee will satisfy all of the requirements of the permit;

(B) the transferee signs the permit; and

(C) the Administrator includes in the transferred permit any additional conditions necessary to meet the goals of this section.

(6) TERMINATION OF PERMIT- The authority to carry out work under a permit issued under this section shall terminate if the work does not commence by the date that is 18 months after the date of issuance of the permit.

(i) Role of Administrator- In carrying out this section, the Administrator shall--

(1) consult with prospective applicants;

(2) accept permit applications under this section;

(3) convene, coordinate, and lead the application review process;

(4) maintain all records relating to the permit and the permit process;

(5) provide an opportunity for cooperating agencies and the public to participate in the permit process;

(6) issue the permit under this section, if appropriate; and

(7) enforce and otherwise carry out this section.

(j) Cooperating Agencies- If the Administrator learns that an application for the remediation of a mine site under this section will be submitted to the Administrator, the Administrator shall (as soon as practicable) provide a notice of the application to--

(1) the lead State agency designated under subsection (d)(2)(D);

(2) each local government located within a radius of 20 miles of the mine site; and

(3) each Federal and State agency that may have an interest in the application.

(k) Public Participation-

(1) POTENTIAL SUBMISSION OF APPLICATIONS- If the Administrator learns that an application for the remediation of a mine site under this section will be submitted to the Administrator, the Administrator shall (as soon as practicable) provide to the public a notice that describes--

(A) the location of the mine site;

(B) the scope and nature of the proposed remediation; and

(C) the name of the Good Samaritan that will be carrying out the proposed remediation.

(2) RECEIPT OF APPLICATION- If the Administrator receives an application for the remediation of a mine site under this section, the Administrator shall (as soon as practicable) provide to the public a notice that provides the information described in paragraph (1).

(3) HEARING-

(A) IN GENERAL- Not later than 45 days after the date of receipt of a complete application for the remediation of a mine site under this section, the Administrator shall hold a hearing in the vicinity of the mine site to be remediated.

(B) COMMENTS- At the hearing, the Administrator shall provide the applicant, the public, and cooperating agencies with the opportunity to comment on the application.

(4) NOTICE OF PENDING ISSUANCE- Not less than 14 days before the date of issuance of a permit for the remediation of a mine site under this section, the Administrator shall provide to the public and each cooperating agency notice of the pending issuance of the permit.

(5) PUBLIC RECORDS- All records relating to the permit and the permit process shall be considered to be public records, except to the extent the records are subject to a legal privilege.

(l) Monitoring-

(1) IN GENERAL- The permittee shall take such actions as the Administrator determines are necessary to ensure appropriate baseline and post-remediation monitoring of the environment under paragraphs (7) and (13) of subsection (e).

(2) ADMINISTRATION- When selecting the type and frequency of the monitoring requirements to be included in a permit, if any, the Administrator shall--

(A) balance the need for monitored information against the cost of the monitoring, based on the circumstances relating to the remediation; and

(B) take into account the scope of the project.

(3) MULTIPARTY MONITORING- The Administrator may approve in a permit the conduct of monitoring by multiple parties if, as determined by the Administrator, the multiparty monitoring will effectively accomplish the goals of this section.

(m) Enforcement-

(1) CIVIL PENALTY- Any person who violates a permit issued under this section shall be subject to a civil penalty of up to $10,000 for each day of the violation.

(2) INJUNCTIONS-

(A) IN GENERAL- A court may issue an injunction--

(i) mandating that a person comply with a permit or take action to abate a permit violation; or

(ii) prohibiting a person from violating a permit.

(B) MINIMUM REQUIREMENT- In the event of a permit violation, and absent extraordinary circumstances, the court shall, at a minimum, require--

(i) the permittee to repair the damage to any part of the environment that is caused by an action of the permittee in violation of the permit; and

(ii) the environment to be restored to the condition of the environment prior to the action of the permittee in violation of the permit.

(3) AGENCIES- Any government agency that signs a permit issued under this section may enforce the permit through appropriate administrative or judicial proceedings.

(n) Judicial Review- A court may set aside or modify an action of the Administrator in issuing a permit under this section, or an action of a State or political subdivision of a State in signing a permit, only on clear and convincing evidence of an abuse of discretion.

(o) Savings Provisions-

(1) EMERGENCY AUTHORITY- Nothing in this section affects the authority of a Federal, State, or local agency to carry out any emergency authority, including an emergency authority provided under any environmental law listed in a permit.

(2) LIABILITY- Except to the extent that a permit provides protection under an environmental law specified in a permit in accordance with subsection (g)(1)(C), nothing in this section or a permit issued under this section limits the liability of any person (including a permittee) under any other provision of law.

(p) Regulations-

(1) IN GENERAL- The Administrator may promulgate such regulations as are necessary to carry out this section.

(2) EFFECTIVENESS- This section shall be effective regardless of whether regulations are promulgated by the Administrator under paragraph (1).

END