Posted on September 30, 2019 by Kevin Murray
Depending on your source, abandoned mine lands across the United States number over 100,000 sites. Some, but not all, pose a threat to human health and the environment. The magnitude of the issue engulfs the resources of federal and state agencies. Moreover, responsible parties are most often dead and buried companies, leaving the need for options outside of routine scenarios and traditional regulatory programs relying on viable responsible parties.
The need for otherwise non-liable parties to voluntarily agree to study and remediate troubled sites seems the most likely path to success. Industry and public interest groups alike are needed if the issue of abandoned mine lands is to be addressed. The Good Samaritan program was intended to encourage private voluntary action. While there are some successes to date, the program has not received a robust welcome but has struck-out for several reasons—most significantly the lack of statutory authority to legalize the program and the inability of current agreements to protect well-meaning Good Samaritans from increased environmental liability.
Recently legislation was proposed that attempts to address deficiencies in the program, starting from shoring up statutory authority under CERCLA and the CWA and continuing with the proposal of some new structural elements. In short, the new Act would create a Good Samaritan permitting structure. Good intentioned citizens, groups, and companies would apply for and obtain a Good Samaritan permit. The permit would outline the activities to take place with certain protections written into the permit. While the effort is not a home run, the Act goes a long way toward improving the program; however, many are fearful that several issues may still impede successful implementation of a robust program. To encourage Good Samaritans to step up and address abandoned mines without fear of uncertain liability, the Act would benefit from the following revisions:
- To address liability concerns, a Good Samaritan willing to undertake remedial activities under a permit is pronounced via the permit to be in compliance with all requirements under CERCLA and the CWA. This is probably not enough. The Act will need to state that a party will not be considered a Potentially Responsible Party (PRP) under CERCLA nor will the party be subject to long term obligations under the CWA.
- The mechanism for discontinuing operations in the event circumstances or facts are discovered that reduces the feasibility of the project or significantly increases costs is a positive development; however, it is unclear whether the permit will contain language similar to the current EPA Good Samaritan model Administrative Order on Consent (AOC) that empowers the EPA to expand or modify the scope of work. The historic AOC provision has been a significant impediment for industry participation. Simply put, many will remain unwilling to accept a permit that allows EPA to expand the permit scope of work. Certainty with regard to the nature of the work and a defined end point are critical.
- The Act contemplates judicial challenge prior to permit approval. While this sounds like a good idea, it will serve to chill many from engaging in the process. The prospect by a Good Sam of investing significant administrative expenses that may then be met (or have the potential to be met) with significant legal and administrative costs and delays will discourage parties from engaging in the first instance.
- The Act still contemplates long-term involvement through operation, maintenance and sampling. While this might work on select parties, for most the perpetual involvement will signal the inning is over.
The success of the effort will depend on the language of the permit. If the permit borrows from or is based on the current Good Samaritan model AOC, the program will languish. The permit must offer clear and unambiguous liability protection, a thoroughly and accurately defined scope of work, and an exit point for a robust program. The private sector requires certainty of entry and exit, and the assurance that by engaging in a Good Samaritan activity, they will not be drug into decades of CERCLA actions.