Advisories & Insights

EPA's "Good Samaritan" initiative encourages voluntary cleanups of abandoned hard rock mine sites

June, 2007

The Environmental Protection Agency ("EPA") recently published interim guidance that will provide certain parties who voluntarily clean up orphan mine sites with protection from EPA enforcement and third-party contribution suits under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). EPA intends for the Interim Guiding Principles for Good Samaritan Projects at Orphan Mine Sites[i] ("Guidance") to encourage the cleanup of abandoned hard rock mine sites by non-liable "Good Samaritans." The Guidance, which permits limited recycling of mine waste during cleanup, may encourage action by mining companies with the resources and expertise to perform voluntary cleanups, individually or in partnership with non-profits or state, local, or tribal governmental entities interested in abandoned mining sites in their jurisdictions.

Background

According to the EPA, drainage and runoff from abandoned hard rock mines is among the largest sources of water pollution in the western United States, with an estimated 500,000 orphan mines impacting thousands of watersheds and stream miles.[ii] Some of these sites are abandoned leases on federal lands, and many others are orphan sites, with no viable responsible parties available to clean them up. Given the sheer number of sites, these orphan mines are unlikely to be remediated without encouragement or incentives.

The Guidance encourages parties which are (1) neither past or current property owners or operators (and do not intend to acquire the property), and (2) not liable for remediation of existing contamination under CERCLA or other federal, state, or local law, to perform cleanups of abandoned hard rock mine sites.[iii] It does so by affording enforcement and contribution protection to parties performing voluntary cleanups without acquiring an ownership interest in the site, and permits partial cleanups without imposing liability for remediating the entire site. Good Samaritan parties may include individuals, private corporations, non-profit organizations, states, local governments, and municipalities.[iv]

The Guidance is a second effort to implement EPA's Good Samaritan Initiative. The first effort was the failed Good Samaritan Clean Watershed Act, a cooperative conservation[v] measure introduced last year at the Bush administration's request. The Good Samaritan Clean Watershed legislation was opposed by environmental groups and House Natural Resources Committee Chairman Nick Rahall, and has not been reintroduced.[vi] The new Guidance is effective immediately.

Good Samaritan Cleanups

Under the Good Samaritan Initiative, so called "Good Samaritans"[vii] (parties who are not past or current owners or operators of the mine who are not liable for cleanup) can voluntarily agree to clean up orphan mine sites that are neither listed nor proposed for listing on the National Priorities List ("NPL"). Good Samaritans will be deemed by EPA to be "rendering care or advice" at the site in accordance with CERCLA § 107(d)(1), which provides that such parties are not potentially responsible parties.[viii]

In addition, EPA has created two administrative tools that may be used to shield a qualifying Good Samaritan from potential liability that could arise as a result of conducting the cleanup: a model Good Samaritan Comfort/Status Letter,[ix] and a Model Good Samaritan Settlement Agreement and Order for Removal Actions at Orphan Mine Sites.[x] Comfort Letters and Settlement Agreements for Good Samaritan cleanups will only be issued where the proposed cleanup is consistent with the National Contingency Plan.[xi]

According to EPA, a model Comfort Letter is intended to be a straightforward, non-negotiable document that may be issued relatively quickly at the Regional level without requiring review and approval by the Department of Justice. The Good Samaritan Comfort Letter provides that if a third party brings or threatens to bring a contribution action, EPA will discuss entering into a Good Samaritan Settlement Agreement providing for, among other things, contribution protection. It is similar to a letter EPA provides for cleanup of Brownfield sites,[xii] which has been effective at promoting redevelopment of contaminated property.

A Good Samaritan Settlement Agreement and Order for Removal Actions at Orphan Mine Sites provides a CERCLA covenant not to sue and contribution protection for Good Samaritans in exchange for cleanup work. Such agreements are particularly appropriate for cleanups that are technically complicated, or where there is a significant possibility of third-party litigation. Good Samaritan Settlement Agreements must be approved by the Department of Justice, and require evidence of the Good Samaritan's financial responsibility to complete the cleanup. Acceptable forms of financial responsibility may include a surety bond, an irrevocable letter of credit, a trust fund established for the benefit of EPA, an insurance policy naming EPA as a beneficiary, or a written commitment or grant or other similar funding from a governmental entity, non-profit or not-for-profit foundation, or trust.

The Guidance also encourages EPA Regions to prepare Action Memoranda and Administrative Records for Good Samaritan cleanup projects. Action Memoranda document EPA's approval of removal activities to be conducted at a site. An Administrative Record consists of all documents that EPA considers or relies on in selecting a response action at a site, culminating in the record of decision for remedial action or, an action memorandum for removal actions.[xiii]

Cleanups conducted by a Good Samaritan are required, "to the extent practicable as determined by EPA considering the exigencies of the situation," to attain applicable or relevant and appropriate requirements ("ARARs") under federal or state environmental or facility siting laws.[xiv] The Guidance directs the Regions to consider such factors as the urgency of the situation and the scope of the removal action to be conducted to determine whether attaining ARARs is practicable at a site. If the Region determines that an ARAR is not practicably attainable, the determination must be documented in the site's Action Memorandum/Administrative Record. For sites where the Region determines that attainment of water quality standards is not practicable, the Good Samaritan will be required to meet site-specific work plan requirements for water quality.

The process of developing a work plan is critical for the success of a Good Samaritan cleanup. Because Good Samaritan cleanups may be limited in scope or duration, the work plan will measure when the Good Samaritan's cleanup is complete (which may be less than a complete cleanup of the site). The work plan may also provide for future uncertainties to the extent they may be anticipated.

Finally, the Guidance permits limited recycling of historic tailings and waste piles during cleanup to the extent those actions are necessary for, and directly related to, the cleanup.[xv] However, the Guidance prohibits new extraction of the remaining reserves unless the Good Samaritan complies with all permit and other regulatory requirements applicable to such mining.

The ability of Good Samaritans to recycle mine waste was a point of contention with the failed Good Samaritan Watershed Act. Opponents of the legislation criticized provisions allowing Good Samaritans to be shielded from liability while, at the same time, profit from remediation by engaging in the types of operations that led to the contamination in the first place.[xvi] The National Mining Association contended that the legislation should broadly define the types of activities that constitute "remediation" because processing and reuse of historic mining materials could be the most efficient and least costly means of cleaning up an abandoned mine site. Moreover, the potential to make a profit could add a financial incentive for mining companies to perform Good Samaritan cleanups.[xvii] It remains to be seen whether the recycling activities permitted under the Guidance are sufficiently broad enough to create a financial incentive for mining companies to perform Good Samaritan cleanups.

Conclusion

Although the Good Samaritan Initiative tools are similar to those that EPA has used successfully to encourage redevelopment of brown fields, a possible limiting factor for encouraging Good Samaritan cleanups will be the financial ability of potential Good Samaritans, most likely citizens' groups, environmental groups, non-profits, or local governmental bodies. However, the liability protections and the ability to recycle tailings and mining residue left at abandoned sites may provide a financial incentive to mining companies to perform a Good Samaritan cleanup. As a result, the Good Samaritan Initiative may encourage otherwise unlikely partnerships between governmental bodies with the desire to clean up orphan mine sites in their jurisdictions, and mining companies with the financial means and the expertise, to perform Good Samaritan cleanups.

For more information about CERCLA cleanups and the Good Samaritan Initiative, contact Connie Sue Martin.

Related Practice Areas

• Environmental