When the nation’s new “Good Samaritan” abandoned mine cleanup bill was signed into law on Dec. 17, it was the fulfilment of an idea that people had been trying to make a reality for a long, long time.
In 1999, U.S. Sen. Max Baucus of Montana stood on the floor of the Senate and talked about a bill that would help people who wanted to clean up abandoned hardrock mines.
“The settlement of the mountain west was driven, in large part, by mining,” Baucus said. “Take my home state of Montana. At the center of Helena is Last Chance Gulch, where gold was discovered in 1864. Butte was called the Richest Hill on Earth, because of its huge veins of copper. Our state’s motto is ‘Oro y Plata’ — gold and silver.
“Mining has long been critical to our development. It’s created jobs, it’s part of our culture, of our community. But mining, like many other economic activities, can have severe environmental consequences,” he said.
The abandoned mine cleanup bill he was talking about never made it out of committee.
Chris Wood, the president and CEO of Trout Unlimited, recently said TU has been working on trying to get a bill like this passed since he joined the organization, about 23 years ago.
“I thought would be a layup,” he said with a laugh. “I truly thought it would be easy.”
The bill which finally made it to President Biden’s desk for his signature on Dec. 17, called the Good Samaritan Remediation of Abandoned Hardrock Mines Act, has had very broad support from Republicans and Democrats in the Senate and House and from environmental groups and mining groups.
“It’s hard to believe it actually happened,” said Robert Ghiglieri, the administrator of the Nevada Division of Minerals, and the chair of the Hardrock Committee for the National Association of Abandoned Mine Land Programs. “I’ve been talking about it for 12 years, and it came fast this year, and it got a lot of momentum and bipartisan support.”
The Good Samaritan Act makes a lot of sense. There are hundreds of thousands of abandoned mine sites across the U.S. — they are especially prevalent in the American West — and many of them still pour toxic chemicals into our waters, and many are physical hazards. The Department of the Interior says it is estimated that abandoned hardrock mines have contributed to the contamination of 40% of rivers and 50% of all lakes in the United States. Trout Unlimited says its analysis has found that more than 110,000 miles of streams in the lower 48 states are listed as impaired for heavy metals and/or acidity, and abandoned mines are a major source of these impairments due to acid mine drainage.
But when groups want to do some work on an abandoned mine site to protect the environment or keep people safe, often they steer clear of the project because of the serious liability issues they could face.
Without the protections of this Good Samaritan law, there are all kinds of liability consequences which a group can face if they do a cleanup of an abandoned mine site.
Wood said, as an example, that a group might go to a site with seeping tailings and decide to spend a couple hundred thousand dollars on a relatively simple fix involving a French drain, which significantly improves the water quality in the area, bringing it up to about 90% of the Clean Water Act standards. But the group then has responsibility for the site, and someone could file a citizen’s suit and compel the group to bring the water up to 100% of the Clean Water Act standards — and that could involve building a wastewater treatment system that costs millions of dollars.
“What this law does, it allows you to say, ‘We’re not going to let the perfect be the enemy of the good,’” Wood said. “That’s the gist behind it. As long as the Good Samaritan does what he or she said they would do, and they do make things better and they don’t make it worse, then they get to walk away.”
Rep. Susie Lee, D-Nev., was one of the sponsors of the bill in the House, and a press release from her office explained that “state and local agencies and non—profit organizations that have no legal or financial responsibility for these abandoned hardrock hazards — true Good Samaritans — actively want to volunteer to clean up some of these sites, but they currently risk incurring the same liability that would have applied to the original and often long-defunct polluters who can no longer be held to account. To date, this has deterred would-be Good Samaritans from moving ahead with cleanup efforts.”
Praise for the law
Many legislators and organizations issued statements in praise of the newly passed Good Samaritan law.
“After years of red tape and unnecessary barriers, Good Samaritans willing to clean up long-abandoned mine sites can finally move forward with meaningful remediation,” said Sen. Jim Risch, R-Idaho, one of the sponsors of the bill in the Senate.
“This victory belongs to every single person who rolled up their sleeves to fix this longstanding roadblock,” said Sen. Martin Heinrich, D—New Mexico, the other sponsor in the Senate.
“The National Wildlife Federation appreciates the strong bipartisan leadership that delivered on this long-overdue initiative,” said Abby Tinsley, vice president for conservation policy for the NWF.
“This legislation will ensure significant progress in our efforts to clean up abandoned mines in Nevada and across the United States,” said Nevada Gov. Joe Lombardo.
“Too often, government red tape prevents good work from getting done — that’s why passing our Good Samaritan bill is huge for mine cleanup throughout Alaska!” said Mary Peltola, D-Alaska.
“I’m grateful for the bipartisan support of my colleagues and the many stakeholders across the country who helped us achieve this milestone,” said Rep. Celeste Maloy, R-Utah.
“AEMA celebrates today’s passage of the bipartisan Good Samaritan Remediation of Abandoned Hard Rock Mines Act, the culmination of nearly three decades of work by a broad range of stakeholders,” said Mark Compton, the executive director of the American Exploration & Mining Association. “Our members are proud to collaborate with the conservation community, states, and the federal government to address the cleanup of historic, pre-regulation sites.”
“This bill, which passed the Senate unanimously, has been more than a decade in the making and will encourage the involvement of mining companies, conservation groups and local stakeholders in abandoned mine cleanup without fear of incurring additional legal liability,” said Rich Nolan, president and CEO of the National Mining Association.
“Western Governors have supported the creation of legal protections for Good Samaritans since at least 1995,” said Jack Waldorf, executive director of the Western Governors’ Association.
“This legislation will improve water quality and landscape health, necessary for hunters and anglers to pursue our outdoor traditions in a natural setting,” said Kaden McArthur, government relations manager for Backcountry Hunters & Anglers.
“Clean water and healthy fish and wildlife habitat are values that unite us,” said Corey Fisher, the public policy director at Trout Unlimited. “This commonsense law will give us a critical tool to turn the tide, restoring clean water to watersheds across the West and beyond.”
“I’m proud to see my commonsense legislation to clean our abandoned mines signed into law by the President — this is huge for Montana communities,” Sen. Steve Daines, R—Montana, said in a statement to the Daily Montanan.
What took so long?
If this kind of liability limitation for mine cleanup is such a great idea that is supported by such a wide range of people, how come it has taken so long to get a law like this passed?
Ghiglieri said that some environmental groups thought that a Good Samaritan mine cleanup act could be a way to get around mine permitting, “which is not true. You’re not allowed to come in and process any new material.”
Wood agreed that in the past there have been some people who worried that a bill like this would be a “camel’s nose under the tent,” that there would be “mining companies who say ‘Oh, no, really, we’re Good Samaritans, we just want to make things better,’ but it’s a stalking horse for going in and being able to mine.’”
He said, however, that the new Good Samaritan law has been designed to make sure it is only for Good Samaritans, people who want to clean up a site but don’t have a profit motive.
“That’s why the legislation is called what it is,” he said.
Ghiglieri said some people also thought a law like this could be a way for companies to get a liability waiver from the Clean Water Act, which also is not true.
Leave it to the EPA?
Ghiglieri commented that there also is a representative on the East Coast who feels that the Environmental Protection Agency should be the only ones doing this kind of abandoned mine cleanup work, and that the Superfund projects are sufficient to deal with the problem.
However, with multitudes of abandoned mines across the nation’s landscapes, with many of them presenting a wide range of different kinds of challenges with their pollution and hazards, government agencies are only working on a small percentage of the problem.
The Nevada Division of Minerals estimates that there are around 300,000 historic mining-related features and sites in Nevada alone. Ghiglieri said they estimate that around 40,000 to 50,000 of these are physically dangerous. He said, however, that they do not have a good estimate of the number of sites with environmental issues, because there has never been dedicated funding to work on figuring that out. The EPA has a list of couple hundred abandoned mine sites in Nevada with environmental issues, Ghiglieri said, but he said the Nevada Division of Minerals is sure that the number of sites that need environmental cleanup is actually in the thousands, or maybe in the tens of thousands.
In March 2020 the U.S. Government Accountability Office released a report on the government’s expenditures to address the hazards of abandoned hardrock mines. The report said that from 2008 through 2017 the EPA, BLM, Forest Service, Office of Surface Mining Reclamation and Enforcement, and the National Park Service spent a total of $2.9 billion to address abandoned hardrock mines throughout the country. The majority of that amount, $2.3 billion, was spent by the EPA.
Montana was at the top of the list of states where the biggest amounts were spent during this time to deal with abandoned mines. During that decade the EPA and the other agencies spent about $479 million to deal with issues involving abandoned mines in Montana — about 17% of the total amount spent throughout the country.
Still, the amount being spent by the agencies is just a small fraction of what it would take to clean up all the abandoned mines sites in the country.
Looking toward the future
Wood said one of the reasons that a Good Samaritan abandoned mine law finally got passed in December after many years of discussions is that the new law has been carefully designed to address concerns that people have had in the past.
The possibility of a profit motive was removed with the rule that if a Good Samaritan extracts and sells minerals from the tailings at a site they are cleaning up, they can only keep enough of these earnings to cover their cleanup expenses. Any profit has to go into an abandoned mine lands fund which will be used to fund future projects.
The current Good Samaritan law is also quite limited in scope. Those who have plans for Good Samaritan projects they would like to be part of the program will apply, and the EPA will select a total of 15 projects which are to be worked on within the next seven years. As these projects are completed successfully, that can be a proof of concept, which could make it possible for another, bigger Good Samaritan abandoned mine remediation law to get approved.
Many are hoping that it won’t take another 20 years to get an additional bill approved.
“This pilot project program provides an opportunity to demonstrate that the process can work so we can progress to a broader Good Sam bill in the near future,” said AEMA Executive Director Mark Compton.
Having a Good Samaritan law in place could open up a variety of possibilities for expanding the number of abandoned mines sites that get remediated. Nevada Gov. Joe Lombardo wrote in a letter to the U.S. Senate Committee on Environment and Public Works that “By providing liability protections for Good Samaritan projects, state agencies will be able to leverage IIJA (Infrastructure Investment and Jobs Act) funding to accomplish more remediation projects with Good Samaritan partners.”
Wood said the Good Samaritan law could also help non-governmental organizations get funding for their abandoned mine remediation projects. Without liability protection, a donor who wants to pay for a cleanup project might decide not to make the donation out of fear that the people involved with the project might get sued and be required to do a much more expensive cleanup at the site.
“So I do think this will help,” Wood said. “I think it will open doors that have otherwise been closed for funding.”
Trout Unlimited has done a lot of abandoned mine cleanup projects through the years, but Wood said almost all of the work they have done has been on public land, because they can get the public land agencies to agree not to hold them liable.
“But that precludes us working on private lands,” Wood said.
The Good Samaritan law can now open the possibility of working with private landowners, Wood said, “who had nothing to do with the creation of the pollution, but who want to make things better.”
Trout Unlimited has also worked primarily with dry waste rock piles at abandoned mine sites rather than with draining mine openings, since liability issues are much more likely at wet sites. The Good Samaritan law could now make it possible for more work to be done with abandoned mine drainage.
Some of the specifics of the new Good Samaritan law are not known yet – the EPA is working on the details, and will at some point announce information about the project application process.
Once the initial Good Samaritan abandoned mine remediation projects are selected, Wood said, some of the projects may not take that long to accomplish. Some mine cleanup projects are fairly straightforward, he said, and it can take just a few weeks to a couple of months to deal with an issue that has been damaging the environment for many years.
Wood commented that another hopeful sign he sees in the success of the Good Samaritan bill is that it shows it can be possible to open lines of communication between different groups.
He said it makes sense to him that hardrock mining should pay some kind of a royalty which would go into a fund to help pay for cleaning up some of the legacy issues of the mining of the past.
“My hope is that we can begin to have a reasonable conversation with the industry about coming up with a fair royalty that still provides the certainty that the industry needs, but also provides a funding source that state agencies, Trout Unlimited, and local communities can tap into to start to clean up some of these sites across the West.”
“Frankly, I think the fact that the conservation community was able to work so well with the mining industry in getting this bill passed, it gives me hope that we can begin to have those conversations about, what is a sensible royalty, and are there other changes that we can make to help accelerate the mining of these critical minerals while also safeguarding really special places?”`