UPDATE: New EPA Rules for Superfund ‘Good Samaritans’

The Environmental Protection Agency has issued some new regulations designed to make it easier for citizens and volunteers — called Good Samaritans — to clean up abandoned mining sites and improve water quality.

There are 22,000 abandoned mines sites in Colorado contributing in varying degrees to pollution of the state’s streams and lakes. In many cases, the parties responsible for them no longer exist, or are bankrupt. Some of the sites date back to the gold rush.

But citizens and private groups who are willing to clean the sites up themselves can be held liable for pollution from the sites under the Clean Water Act and CERCLA (better known as Superfund). Congress is currently considering legislation to deal with these issues, but it has languished.EPA today released administrative measures, which they called “a set of policies and model tools,” which will allow Good Samaritans to clean up abandoned mine sites without liability under Superfund. The liability issues in the Clean Water Act cannot be remedied administratively because of the language of the law.

In a press conference Wednesday, EPA administrator Stephen L. Johnson said, “The tools, called Good Samaritan administrative tools, will reduce legal uncertainties under the Superfund law. These laws have deterred Good Samaritans from voluntarily cleaning up these sites.”

Anthony Poponi with the Coal Creek Watershed Association in Crested Butte said that while he wasn’t familiar with the specifics of the Bush administration proposal, some sort of Good Samaritan reform could have a significant impact in Colorado.

“In the state there are 22,000 abandoned mine causing different degrees of degradation of the environment. For example, up here we have some sites that would not qualify for Superfund listing,  or would score to make a listing, but probably would not be very competitive for funding through the EPA. So they would wind up becoming issues to be handled by the state or they would fall under some sort of a volunteer cleanup.

“It seems that with the restrictions in place that some of these volunteer cleanups couldn’t happen, even if there was money available, because no one would allow for the released liability. It could be a huge boon to the environment for some of these smaller sites.”

But the administrative changes go only part way. Several member of the Colorado congressional delegation — especially Sens. Wayne Allard (R), Ken Salazar (D) and Rep. John Salazar (D) — have all supported legislation to make cleanup less onerous.

Allard told the Senate Committee on Environment and Public Works last year:

“Because these sites do not have an identifiable and financially viable owner or operator, their cleanup most likely falls to the government–or the pollution continues unabated because state and federal resources are limited. Sometimes, though, ‘Good Samaritans,’ volunteers who have no connection to the mining activity and no liability for the cleanup are interested in voluntarily restoring the body of water affected by pollution from the site.

“Good Samaritans may be nonprofit groups, municipalities, states, tribes, or private corporations interested in restoring these sites. However, concern about liability under the nation’s environmental laws has prevented these potential Good Samaritans from moving forward to remediate these legacy mines. The nation’s environmental laws have provided benefits to our society that one cannot begin to calculate. But in this instance they also have had an unforeseen consequence that may be having the opposite effect on the environment.”

And John Salazar told the House Transportation Committee in March of 2006:

“Good Samaritans are willing to help clean up the Animas River basin so we can all enjoy clean water. These are the kinds of local efforts government should support and encourage, but the rules in place create unnecessary roadblocks preventing efforts to clean up these sites.”

A number of environmental groups and legislators — including presidential hopefuls Hillary Clinton and Barack Obama — have raised objections to legislation changing the liability requirements. A September 2006 senate committee report on their views noted:

“Clearly, the tools exist in the law to formulate settlements that are protective of innocent parties who wish to cleanup an abandoned mine site. At the same time, environmental standards are clear but flexible, ensuring that the sites are not made worse despite a party’s good intentions. The notion that the environmental laws stand in the way of environmental protection is a fallacy. The large number of organizations across the country who have raised serious concerns about the broad waivers of environmental laws and lack of standards, among other concerns, in S. 1848 makes clear that the notion that this bill is a step forward for environmental protection is unfounded. In fact, it presents a serious threat of taking environmental conditions backwards.”

UPDATE: And Gov. Bill Ritter said in a news release late Wednesday:

“Today’s action by EPA provides a broad array of administrative tools that can be used to insulate Good Samaritans from liability, and that’s a very good thing,” Gov. Ritter said. However, Good Samaritans continue to face liability under the Clean Water Act, and even the potential of a citizen lawsuit. “To get the rest of the way, Congress needs to enact a targeted law that protects people and groups doing voluntary cleanups under the Clean Water Act,” Gov. Ritter said. “I am encouraging our delegation to do whatever they can to make that happen.”

Ritter said the Western Governors’ Association has been working on “Good Sam” legislation for more than a decade. “Just a few weeks ago, Gov. Janet Napolitano of Arizona, Gov. Mike Rounds of South Dakota and I wrote to the EPA Administrator to urge rapid action on these administrative tools as an essential step in getting Good Sam legislation adopted, and EPA responded.  That shows there is terrific bipartisan support for getting a start on cleaning up thousands of mining sites that are polluting streams and rivers in our state and across the West.”