To improve water quality on abandoned and inactive mine land, and for other purposes.

September 25, 2003

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

To improve water quality on abandoned and inactive mine land, 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 `Good Samaritan Abandoned and Inactive Mine Remediation Act'.

SEC. 2. FINDINGS AND PURPOSE.

(a) FINDINGS- Congress finds that--

(1) the Federal Government has encouraged, through various laws and policies, the development of gold, silver, and other minerals, especially in the West;

(2) development of the resources referred to in paragraph (1) has--

(A) helped create a strong economy; and

(B) provided strategic materials to achieve maximum production of the metals that were essential to victory in World War I and World War II;

(3) during World War I and World War II, the Federal Government actively encouraged mining and milling operations, including the design and placement of mine tailings and waste rock piles, practices--

(A) that were not governed by any Federal or State environmental laws during that period;

(B) the impact of which on the environment and public health were unknown; and

(C) that since that period, have been--

(i) found to be harmful to the environment; and

(ii) made illegal;

(4) the result of the practices is a legacy of abandoned and inactive mine sites, many of which are on Federal land, that--

(A) have been unreclaimed or, based on existing environmental standards, inadequately reclaimed; and

(B) continue to pose environmental and safety hazards;

(5) the cleanup of the abandoned and inactive mine sites is hampered primarily by concerns about the potential liability associated with the cleanup.

(b) PURPOSE- The purpose of this Act is to facilitate the cleanup of abandoned and inactive mine sites by limiting the potential liability of persons cleaning up the sites.

SEC. 3. ABANDONED AND INACTIVE MINE 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 AND INACTIVE MINE REMEDIATION PERMITS-

`(1) DEFINITIONS- In this subsection:

`(A) ABANDONED OR INACTIVE MINE LAND-

`(i) IN GENERAL- The term `abandoned or inactive mine land' means land--

`(I) that was actively mined for noncoal resources;

`(II) that is not--

`(aa) being actively mined for noncoal resources; or

`(bb) subject to a temporary shutdown; and

`(III) with respect to which there is no identifiable or economically viable owner or operator of record for the mine or mine facilities.

`(ii) EXCLUSIONS- The term `abandoned or inactive mine land' does not include--

`(I) a site listed on the National Priorities List under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.); or

`(II) a brownfield site (as defined in section 101 of that Act (42 U.S.C. 9601).

`(B) PERMIT- The term `permit' means an abandoned or inactive mine remediation permit described in paragraph (2).

`(C) PERMITTING AGENT- The term `permitting agent' means--

`(i) the Administrator; or

`(ii) the head of a State program that is authorized by the Administrator to issue and administer permits under this subsection.

`(D) REMEDIATING PARTY-

`(i) IN GENERAL- The term `remediating party' means any of the following persons or entities that carries out the remediation of an abandoned or inactive mine land:

`(I)(aa) The United States, a State, a political subdivision of a State, or an Indian tribe; or

`(bb) any officer, employee, or contractor of the United States, a State, a political subdivision of a State, or an Indian tribe.

`(II) A corporation.

`(III) Any person or entity acting in cooperation with the permittee with respect to the abandoned or inactive mine land.

`(ii) EXCLUSIONS- The term `remediating party' does not include a person or entity described in clause (i) that, with respect to the abandoned or inactive mine land that is being remediated, has been determined to be legally responsible or in material noncompliance with section 301(a).

`(E) UNANTICIPATED EVENT OR CONDITION- The term `unanticipated event or condition' means an event or condition that was not contemplated by the permit.

`(2) IN GENERAL- The permitting agent may issue an abandoned or inactive mine remediation permit for the conduct of remediation activities on abandoned or inactive mine land from which there is or may be a discharge of pollutants to bodies of water of the United States.

`(3) APPLICATION FOR PERMIT-

`(A) COMPONENTS-

`(i) IN GENERAL- To be eligible to receive a permit under this subsection, the remediating party shall submit to the permitting agent an application that includes a remediation plan that--

`(I) identifies--

`(aa) the remediating party;

`(bb) any agents or contractors of the remediating party; and

`(cc) any persons cooperating with the remediating party with respect to the remediation plan;

`(II) describes the reasonable efforts of the remediating party to identify current owners, lessees, and claimants of the abandoned or inactive mine land addressed by the remediation plan;

`(III) certifies that the remediating party qualifies as a remediating party under paragraph (1)(D);

`(IV) identifies that the site addressed by the plan is--

`(aa) abandoned or inactive mine land; and

`(bb) eligible for a permit under this Act;

`(V) identifies the bodies of water of the United States affected by the abandoned or inactive mine land;

`(VI) describes the baseline condition of the bodies of water identified under subclause (V), in accordance with requirements established by the permitting authority, as of the date of the permit application (including any conditions that make numeric monitoring of a baseline preexisting discharge physically or economically infeasible);

`(VII) describes the physical conditions at the site that are causing or believed to be causing adverse water quality impacts;

`(VIII) describes the goals and objectives of remediation, including the pollutant or pollutants to be addressed by the remediation plan;

`(IX)(aa) describes the practices that are proposed to reduce, control, mitigate, or eliminate the impacts of adverse water quality, including the preliminary system design and construction, operation, and maintenance plans; and

`(bb) includes a schedule and estimated completion date of the practices;

`(X) applies site-specific best available technology, using best professional judgment, to explain how the practices described in subclause (IX) are expected to improve the quality of the bodies of water identified under subclause (V);

`(XI) describes--

`(aa) site-specific monitoring or other forms of assessment to be used to evaluate the success of the practices during and after implementation of the remediation plan in improving the quality of the water identified under subclause (V); and

`(bb) the duration of the monitoring or assessment;

`(XII)(aa) describes any extraction, processing, or removal of minerals for remediation or commercial sale; and

`(bb) states that 100 percent of the net profits generated through the use or commercial sale of minerals under item (aa) that will be--

`(AA) used for future remediation; or

`(BB) deposited in a designated remediation fund;

`(XIII) provides a schedule for periodic reporting on progress in implementing the remediation plan; and

`(XIV)(aa) provides a budget for the remediation plan; and

`(bb) identifies any potential funding sources for carrying out the remediation plan.

`(ii) CERTIFICATION BY CORPORATION-

`(I) IN GENERAL- In addition to the requirements under clause (i), an application submitted by a corporation shall include a certification in accordance with paragraph (1)(D)(ii) that, based on the knowledge and belief of the officers and directors of the corporation, neither the corporation nor any wholly owned subsidiary of the corporation is legally responsible for or in material noncompliance with section 301(a) or an equivalent State law for the site proposed to be remediated.

`(II) LIMITATION- If at any time the permitting agent determines that the certification under subclause (I) is incorrect, the corporation--

`(aa) shall not be entitled to the protection under this subsection; and

`(bb) shall be subject to liability under this section or section 301, 302, or 402.

`(B) APPROVAL OR DISAPPROVAL OF APPLICATION-

`(i) IN GENERAL- Not later than 120 days after the date of receipt of an application under subparagraph (A), the permitting agent shall approve or disapprove the application.

`(ii) PUBLIC PARTICIPATION- Before approving or disapproving an application under clause (i), the permitting agent shall provide to the public--

`(I) notice of the application; and

`(II) an opportunity for public comment on the application.

`(iii) APPROVAL- The permitting agent shall approve an application under clause (i) and issue a permit to the remediating party if the permitting agent determines that--

`(I) the remediating party has made a reasonable effort (relative to the resources available to the remediating party for the proposed remediation activity) to identify persons under subparagraph (A)(i)(II);

`(II) the implementation of the remediation plan would improve the quality of the water identified under subparagraph (A)(i)(V); and

`(III) any Indian tribe with jurisdiction over the abandoned or inactive mine land subject to the permit consents to the issuance of the permit.

`(iv) ACTION FOLLOWING DISAPPROVAL-

`(I) REVISION- If the permitting agent disapproves an application under clause (i), the permitting agent shall--

`(aa) notify the applicant of the reasons for disapproval; and

`(bb) allow the applicant 30 days in which to submit a revised application.

`(II) DEADLINE FOR REVISION- Not later than 30 days after the date on which a revision is submitted under subclause (I)(bb), the permitting agent shall approve or disapprove the revision.

`(4) CONTENTS OF PERMIT-

`(A) IN GENERAL- A permit shall--

`(i) provide for compliance with and implementation of the remediation plan; and

`(ii) establish a schedule for review by the permitting agent of compliance with and implementation of the remediation plan.

`(B) LIMITATION- A permit shall not--

`(i) require the remediating party to comply with any other subsection or section 301, 302, or 402; or

`(ii) except in a case in which the net profits (as stated under paragraph (3)(A)(i)(XII)(bb)) generated through such use or sale of minerals are used for present or future remediation activities, authorize any discharge associated with the extraction, processing, or removal of minerals for commercial use or sale.

`(5) MODIFICATION OF PERMIT-

`(A) IN GENERAL- Not later than 90 days after the date of receipt of a written request by a permittee to modify a permit, the permitting agent shall approve or disapprove a modification to the permit.

`(B) APPROVAL- A modification to a permit approved by the permitting agent under this subsection shall--

`(i) be made by agreement of the permittee and the permitting agent and with the concurrence of any applicable State or Indian tribe with jurisdiction over the abandoned or inactive mine land subject to the permit;

`(ii) be made in accordance with subparagraphs (2)(B) and (3); and

`(iii) take effect on approval.

`(6) FAILURE TO COMPLY- If a remediating party fails to comply with any term or condition of a permit under this subsection, the failure shall be considered to be a violation subject to enforcement under sections 309 and 505, except in a case in which--

`(A)(i) based on information submitted to the permitting agent by the permittee, the permitting agent determines that the noncompliance was the result of an unanticipated event or condition; and

`(ii) not later than 30 days after the date on which a determination is made under clause (i), the permittee establishes, to the satisfaction of the permitting agent, that the permittee is in compliance with the permit; or

`(B)(i) the permitting agent determines that compliance with the permit is infeasible because of reasons not contemplated at the time at which the permit was issued; and

`(ii) the permitting agent and the permittee modify the permit in accordance with paragraph (5).

`(7) TERMINATION OF PERMIT-

`(A) IN GENERAL- The permitting agent shall terminate a permit if--

`(i) the remediating party completes the implementation of the remediation plan;

`(ii) the discharges covered by the permit become subject to a permit that is issued--

`(I) under another subsection; and

`(II) for the extraction, processing, or removal of minerals for commercial sale, the net profits of which shall be used for purposes other than the purposes described in paragraph (3)(A)(i)(XII)(bb)--

`(aa) that is not part of the implementation of the remediation plan; and

`(bb) with respect to which the remediating party is not a participant;

`(iii) an unanticipated event or condition is encountered that is beyond the control of the remediating party; or

`(iv) the permitting agent determines that remediation activities conducted under the permit have resulted in surface water quality conditions that are equal to or better than the baseline condition of the water as of the date of the permit application.

`(B) NO ENFORCEMENT LIABILITY- If a permit is terminated under subparagraph (A), the remediating party shall not be subject to enforcement under section 309 or 505 for any subsequent discharges from the abandoned or inactive mine land subject to the permit.

`(8) LIMITATIONS-

`(A) IN GENERAL- A remediating party issued a permit under this subsection and, for purposes of conducting a preliminary investigation of a site to determine whether to pursue a permit application, a potential applicant for a permit, for a period of not more than 120 days unless otherwise stated by the permitting authority, shall not be considered to be an owner or operator for purposes of--

`(i) this Act;

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

`(iii) the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.).

`(B) PRIOR VIOLATIONS- With respect to violations of this section, or sections 301, 302, and 402 that occur before the date on which a permit is issued under this subsection, nothing in this subsection--

`(i) precludes an action under section 309 or 505 for such violations; or

`(ii) affects the relief available under section 309 or 505.

`(9) REGULATIONS- Not later than 1 year after the date of enactment of this subsection, the Administrator, in consultation with State, tribal, and local officials and after notice and opportunity for public comment, shall promulgate regulations that--

`(A) establish requirements for remediation plans under this subsection; and

`(B) provide guidance for the development of State programs for the issuance and administration of permits under this subsection.

`(10) FUNDING- A remediating party that implements a remediation plan under a permit issued under this subsection shall be eligible for grants under section 319(h).

`(11) EFFECT- Nothing in this subsection--

`(A) limits the liability associated with any mining or processing activities in existence before, on, or after the date of enactment of this subsection; or

`(B) affects any obligation of a State or Indian tribe under section 303.'.

END