	Introduction and Overview

On August 5, 2015, an accidental spill from the Gold King Mine, a long-abandoned gold mine site in Colorado, released an estimated three million gallons of acid mine drainage (AMD) wastewater into a tributary of the Animas River. It also raised concern about other inactive or abandoned hardrock mine (IAM) sites on public and private lands in the United States. The Colorado spill has raised interest in facilitating cleanup of legacy pollution at IAM sites in order to prevent similar accidents. One approach that has drawn attention is encouraging remediation by so-called "Good Samaritan" entities, third parties who have no history of polluting at a particular site or legal responsibility for its pollution, but who step forward to clean up AMD or other historic mine residue of pollution. Legislation to authorize Good Samaritan remediation has been introduced regularly since 1999, including H.R. 3843 , and a Discussion Draft bill in the 114 th Congress. These bills propose incentives in the form of reduced liability from environmental laws (such as strict liability for cleanup costs and restoring damaged natural resources) and less stringent environmental standards applicable to cleanup activities. This bill includes a dedicated cleanup fund for abandoned hardrock mines from a royalty fee on minerals taken from public lands. 3843 and the Discussion Draft are stand-alone bills. These bills propose Good Samaritan relief from requirements of the CWA and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund, 42 U.S.C. Senate and House committees have held oversight hearings on the Gold King Mine spill and hearings to review legislative responses to it, including bills that seek to overcome obstacles to potential Good Samaritans. Selected Issues in Good Samaritan Legislation

This report discusses several issues that have drawn attention: eligibility for a Good Samaritan permit, minerals covered by a permit, standards applicable to a Good Samaritan cleanup, scope of liability protection, funding, treatment of revenues from cleanup, enforcement, the appropriate implementation role for states and Indian tribes, terminating a permit, and sunsetting the permit program. 963 and the Discussion Draft in the 114 th Congress would limit Good Samaritan permits to hardrock mineral mines. 963 is to "encourage the partial or complete remediation of inactive and abandoned mine sites for the public good." Under CERCLA, an entity is liable for cleanup costs and natural resource damages resulting from release (or threatened release) of hazardous substances if that entity falls into any of four categories of potentially responsible parties (PRPs). At least two of those categories might apply to the Good Samaritan who attempts an IAM cleanup. The Clean Water Act comes into play chiefly because of its requirement that all point-source discharges into waters of the United States must be authorized by a permit under the act, and the likelihood that a Good Samaritan could be deemed subject to that requirement. A number of courts have held that discharges from abandoned mines are point sources that require a CWA permit. Many are reluctant to engage in activities for which they might incur liability beyond the termination date of a permit, as would be the case with water treatment projects that have continuing discharges long into the future. 963 would exempt a Good Samaritan permittee from "each obligation and liability" under the CWA. Like H.R. The Obama Administration's FY2017 budget proposes a reclamation fee on all hardrock mining, similar to the fee paid by the coal industry, to create an Abandoned Mine Lands Program for abandoned hardrock sites. 963 , H.R. The Discussion Draft would authorize re-mining to fund off-site remediation and to defray the costs of the permitted activities. 3843 do not appear to address either administrative penalties or citizen suits. However, H.R. Because H.R. H.R.
On August 5, 2015, an accidental spill from the Gold King Mine, a long-abandoned gold mine site in Colorado, released an estimated three million gallons of acid mine drainage (AMD) wastewater into a tributary of the Animas River. The Colorado spill has raised interest in facilitating cleanup of legacy pollution at inactive and abandoned mine sites, especially hardrock mines such as Gold King, in order to prevent similar accidents. Several federal agencies have authority to clean up abandoned mines on public lands, but resources are limited, and most sites on private lands are not included. One approach that has drawn attention is encouraging remediation by so-called "Good Samaritan" entities, third parties who have no history of polluting at a particular site or legal responsibility for its pollution, but who step forward to clean up AMD or other historic mine residue of pollution.
Legislation to authorize Good Samaritan remediation has been introduced regularly since 1999. In the 114th Congress, proposals include H.R. 963, H.R. 3843, and a discussion draft bill developed by several Members. These bills propose incentives to potential Good Samaritans in the form of reduced liability from environmental laws and less stringent environmental standards for cleanup activities. Senate and House committees have held oversight hearings on the Gold King Mine spill and to review legislative responses to it, including bills that seek to overcome obstacles to potential Good Samaritans.
This report discusses several issues that have drawn attention: eligibility for a Good Samaritan permit, minerals covered by a permit, standards applicable to a Good Samaritan cleanup, scope of liability protection, funding, treatment of revenues from cleanup, enforcement, the appropriate role for states and Indian tribes, terminating a permit, and sunsetting the permit program. Of all of the issues raised by Good Samaritan proposals, two are most prominent.
One issue is funding. Although inventories of the number of abandoned hardrock mines do not exist, most stakeholders agree that the cost to clean up mines that harm or threaten water quality is likely to be in the tens of billions. But federal funding to carry out remediation projects is limited. The Obama Administration and H.R. 963 propose to assess a fee on active hardrock mining operations to pay for cleaning up abandoned mine sites, similar to a fee on active coal mining operations that is used for remediating abandoned coal mine sites. H.R. 3843 and the discussion draft bill do not propose a fee or royalty on hardrock mining. The mining industry opposes such a new fee, even as they acknowledge that existing cleanup funding for hardrock mine sites is limited.
The second key obstacle is liability under environmental laws, especially the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund) and the Clean Water Act (CWA). Under CERCLA, an entity is liable for cleanup costs and natural resource damages resulting from release (or threatened release) of hazardous substances if that entity falls into any of four categories of potentially responsible parties, at least two of which might apply to the Good Samaritan who attempts cleanup of an inactive and abandoned mine (IAM). The CWA comes into play chiefly because a Good Samaritan could be deemed subject to the act's requirement that all point source discharges into waters of the United States must be authorized by a permit. However, many potential Good Samaritans are reluctant to engage in activities for which they might have continuing obligations beyond the end of a cleanup project and termination of a CWA permit, because water treatment projects typically have ongoing discharges long into the future. The Environmental Protection Agency has attempted to address both CERCLA and CWA liability concerns through administrative initiatives in 2007 and 2012. Stakeholders say that these initiatives are helpful but incomplete. In the 114th Congress, H.R. 963 would exempt Good Samaritans from the CWA, and H.R. 3843 and the discussion draft bill would provide exemption from CERCLA and CWA. The discussion draft bill appears to provide long-term protection from liability (after a project or permit terminates) that some stakeholders seek, while the other two bills do not.