Bill Protects Volunteers Who Clean Mine Waste

In an attempt to ensure that one particular good deed goes unpunished, legislation has been introduced to provide legal exemptions for persons volunteering to clean rivers and streams polluted from runoff from old mines. This has been a perennial concern that has prompted various bills for over a decade, thus far without success.

Supporters of the “Good Samaritan Clean Watershed Act” S.2780 hope for success this time around, with legislation that will shield volunteer organizations from potential liability for efforts undertaken to restore watersheds damaged by drainage from mines. The act was introduced by Sen. James Inhofe (R-Okla.) on behalf of the Bush administration. Similar bi-partisan legislation was introduced earlier in the year by Sens. Wayne Allard (R-CO) and Ken Salazar (D-CO).

As it is now, volunteers who work at reducing such pollution could find themselves liable for more than they willingly took on. The Clean Water Act and the Comprehensive Environmental Response, Compensation and Liability Act do not permit partial cleanups; volunteers whose efforts result in partial cleanup on a mining site could end up liable for all remaining pollution.

Environmental Protection Agency Administrator Stephen L. Johnson says the bill will equip “America’s eager army of citizen conservationists with the essential tools to protect our shared environment.”

The proposed law’s permit process outlines who is eligible for a permit, the sites for which permits may be issued, and what must be included in the permit. The process allows local citizens and communities an opportunity to provide input on Good Samaritan projects. The applicant must submit a clean-up plan indicating a schedule, financial resources, and the waste disposal strategy.

The House of Representatives is working on similar legislation, with Rep. Mark Udall (D-CO) having introduced a companion bill to the Allard and Salazar bill. Rep. John Duncan Jr. (R-TN), Chairman of the House Subcommittee on Water Resources and Environment plans to introduce a companion to Sen. Inhofe’s bill. The bills are pending before respective committees.

There are hundreds of thousands of abandoned mines throughout the United States now leaching acid, mercury, arsenic, copper and other heavy metals into streams, with most located in the West. Trout Unlimited figures there are tens of thousands of miles of streams polluted and about 40 percent of stream headwaters in the West.

Responsibility for the pollution is difficult to ascertain, with mine ownership at times going back over a hundred years and involving various private and public organizations. Companies responsible for the pollution may have long been out of business. Identifying responsible parties is thus fraught with complications and uncertainties.

The bill garnered mixed reviews, with one advocacy group having encountered the first Bush administration initiative it could support while Rep. Nick Rahall (D-W.Va) was appalled saying that owners of hard rock mines would be getting a “free pass” from liability under the Superfund and the Clean Water Act requirements. Others found the bill lacking for not proposing a funding source and not establishing standards for clean up.

More information on the Good Samaritan Clean Watershed Act is available at http://www.epa.gov/goodsamaritan/

Justices Affirm States’ Power to Regulate Rivers

A 9-0 U.S. Supreme Court ruling affirmed the right of states to set environmental requirements for hydropower dams. In effect, the decision was based on an interpretation of “discharge,” whether water passing through a hydroelectric dam is discharge. If water moved from one side of dam to the other is discharge, state regulatory agencies could require Clean Water Act permits.

S.D. Warren, a paper company operating five dams in Maine, objected to having to obtain water quality certificates from state authorities as specified by the CWA when it applied to the Federal Energy Regulatory Commission to renew its licenses. It claimed its dams did not result in any discharge into the river, that nothing was added to the stream.

The company argued that federal regulations were sufficient and that state-administered permits are redundant. Daniel Adamson representing the Edison Electric Institute said, “If the state has the authority then the federal power act becomes an anility.”

This posed a rather broad threat to states’ ability to apply the CWA to require hydroelectric dams to mitigate any detrimental effects on water quality. Environmentalists argued that water passing through a dam undergoes chemical, biological and physical changes that warrant applying CWA regulations. Further, such changes could affect habitat value and fish health.

The Supreme Court sided with the environmental position. “The alteration of water quality ... is a risk inherent in limiting river flow and releasing water through turbines,” Justice David Souter wrote. “Changes in the river like these fall within a state’s legitimate legislative business and the Clean Water Act provides for a system that respects the states’ concerns.”

Souter noted that “Warren itself admits that its dams can cause changes in the movement, flow, and circulation of a river.”

The decision has implications to more than 1,500 hydroelectric dams in 45 states and whether they may be regulated under the CWA. The opinion is available at http://www.eswr.com/306/sdwarrenopscotus.pdf

The opinion upheld a Maine Supreme Judicial Court decision that “water that has left its natural state and has been subjected to man-made control” could be regarded as discharge. The case is S.D. Warren Co. v. Maine Board of Environmental Protection, 04-1527.