On August 1, 2024, the U.S. Senate unanimously passed the bipartisan Good Samaritan Remediation of Abandoned Hardrock Mines Act (“Good Samaritan Act” or “Act”).[1] The House followed suit by passing the Act on December 10, 2024[2], and President Biden signed it into law on December 17, 2024.[3]
The Act is a response to the threat of ongoing contamination from historic abandoned mine lands (“AMLs”), which are often more than one hundred years old—so they predate modern cleanup and remediation requirements and frequently the companies responsible for the contamination no longer exist.[4] However, because AMLs pose environmental and health hazards, individuals and groups have long wanted to clean up these sites—despite having no legal or financial responsibility to do so. Until now, these well-intentioned Good Samaritans have been deterred from doing so because under existing environmental laws like the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.) (“Clean Water Act” or “CWA”) and the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq.) (“CERCLA”), they would become legally responsible for all the pre-existing pollution from a mine site, even if they played no role in causing it. The Act seeks to address this problem by offering limited permits and legal protections for Good Samaritans willing to clean up these sites.[5]
According to the Government Accountability Office, there are at least 140,000 abandoned hardrock mine features across the country—over 60% of which pose or may pose safety or environmental hazards.[6] While this figure is staggering, federal officials estimate there could be more than 390,000 additional features on federal land they have yet to account for.[7] While federal agencies will often intervene to shoulder remediation costs when the mining company responsible for the mine no longer exists, there are more abandoned mines than funds to clean them up—which is where these Good Samaritans come in.[8]
Who can be a “Good Samaritan”?
A “Good Samaritan” can be any person—including a state agency, local government, nonprofit, and private organization (including a mining company)—so long as it: (i) is not a past or current owner or operator of the abandoned site (or a portion thereof); (ii) had no role in the creation of the historic mine residue; and (iii) is not potentially liable under any law for the remediation, treatment, or control of the historic mine residue under any federal, state, local, or Tribal law.[9]
Eligible Sites
The Act applies to “abandoned hardrock mine sites,” which are defined as abandoned or inactive hardrock mine sites (including any facility associated with the mine site) that were used for the production of a mineral (excluding coal) on non-federal land or on federal land under the Mining Law of 1872 (Revised Statutes §§ 2319–2352) and for which there is no responsible owner or operator who is potentially liable for environmental remediation under applicable laws.[10] This includes sites that were previously subjected to a final CERCLA response action or similar federal or state cleanup programs, including brownfields revitalization.[11] However, the Act excludes mines and associated facilities that: (i) are in a temporary shutdown; (ii) are on the National Priorities List; (iii) are undergoing planned or ongoing CERCLA or similar state or federal cleanup actions; (iv) have a responsible owner or operator[12]; or (v) actively mined or processed minerals after December 11, 1980.[13]
Available Permits
The Act creates a seven-year pilot program during which the EPA Administrator (“Administrator”) may issue two types of permits: (i) Good Samaritan permits and (ii) investigative sampling permits.[14] However, during the pilot program period the Administrator may not grant more than 15 Good Samaritan permits in total and 15 investigative sampling permits at any one time.[15]
Good Samaritan Permit
To be eligible for a Good Samaritan permit, a person must submit an application containing detailed information on the site; plans for remediation, post-remediation, contingencies, and health and safety; the work schedule; a budget; and a list of the parties involved, including their legal rights to the site and expertise.[16] The applicant must also demonstrate that: (A) the site is located in the United States; (B) the purpose of the permit is remediation; (C) the proposed activities are designed to result in partial or complete remediation within the permit term; (D) the proposed project poses a low risk to the environment; (E) the applicant possesses the financial, other resources, experience, and capacity required to complete the permitted work and address any and all contingencies as identified in the permit; (F) the person meets the definition of a Good Samaritan (i.e., not liable for the contamination); (G) the person has made “reasonable and diligent efforts to identify” all responsible owners or operators; and (H) no responsible owner or operator exists.[17] By obtaining a Good Samaritan permit, the permittee is excused from obtaining other permits that would otherwise be necessary under the CWA, CERCLA, and state or tribal law.[18] Permits may be transferred if the transferee qualifies as a Good Samaritan, agrees to be bound by the permit terms and any additional conditions imposed by the Administrator, and the head of the relevant federal land management agency approves.[19]
Investigative Sampling Permit
Prior to seeking a Good Samaritan permit, an interested person may apply for an investigative sampling permit to conduct an investigation of historic mine residue, soil, sediment, or water to determine baseline conditions and whether it is willing to perform remediation to address the historic mine residue.[20] The application requirements are less fulsome than those required for a Good Samaritan permit, but still require a description of the site, a list of the parties involved and their legal rights to the site and expertise, previously documented water quality data (if reasonably known), and health and safety and contingency plans.[21] An investigative permit may not allow reprocessing of mining residue, but it may authorize metallurgical testing of historic mine residue to determine whether reprocessing is feasible.[22] An investigative permit does not obligate the person to remediate the site, and the person will still receive the legal protections for the work conducted under the investigative permit.[23] However, if the permittee wishes to convert its investigative sampling permit to a Good Samaritan permit, it must do so within a year.[24]
Reprocessing / Recycling
The Act prohibits mining activities (i.e., mineral exploration, processing, and beneficiation).[25] However, the reprocessing or recycling of historic mine residue (i.e., re-mining) may be permitted if the materials only include historic mine residue, the reprocessing is approved as part of the remediation plan, the proceeds from the sale of the materials are used to defray the costs of the remediation and (if required by the permit) to reimburse the EPA or other federal land management agency, and any remaining proceeds from the sale are deposited into the Good Samaritan Mine Remediation Fund.[26]
Liability Protections
The Act provides protection from liability under the CWA and CERCLA—for both Good Samaritan permits and investigative sampling permits—during and after the permit term, so long as the permittee only carries out activities authorized under the terms of its permit.[27] And as noted above, investigative sampling permits that are not converted to a Good Samaritan permit still enjoy liability protections.[28] Good Samaritans and cooperating persons carrying out actions pursuant to and in compliance with a permit are also excused from compliance with several requirements under the CWA, including the need to obtain a permit under CWA §§ 402 or 404, as well as the remediation permit requirement of CERCLA § 121(e).[29] Thus, a Good Samaritan permittee does not need to obtain a federal, state, or local permit for any removal or remedial action conducted entirely onsite.
Importantly, however, if a violation of either permit causes a worsening of environmental conditions, the permittee must return the site to its prior condition or all liability protections will be revoked and the permittee will be subject to all applicable environmental laws, including citizen lawsuits under the CWA.[30] Additionally, if the Good Samaritan commingles the permitted discharge or waste with other mining waste or discharge that is not covered under the Good Samaritan Permit, the other waste or discharge is not protected, and full federal, state and local permitting requirements apply to that waste or discharge.[31]
Remediation Fund
The Act creates a Good Samaritan Remediation Fund for each federal land management agency that authorizes a Good Samaritan project, as well as the EPA, to assist with funding for approved projects.[32] In addition to the excess proceeds from reprocessing materials, the Fund is comprised of appropriated monies, collected financial assurance monies, any monies collected for long-term operations and maintenance of a completed project under an agreement with the applicable federal land management agency, and any donated monies.[33]
Public and Government Participation
The Act contains numerous requirements for public involvement, environmental review, public hearings and state, local, and tribal government consultation.[34] Additionally, the issuance or modification of a Good Samaritan permit (but not an investigative sampling permit), is considered a “major Federal action” for purposes of the National Environmental Policy Act (“NEPA”),[35] and such permits may only be issued for projects for which the NEPA lead agency issues a Finding of No Significant Impact (“FONSI”).[36]
Future of the Act
While the pilot program is limited to 15 lower-risk projects, when it sunsets, the Administrator must prepare a comprehensive report on the results of the program for Congressional review.[37] This report must incorporate recommendations on whether the program should be continued, including a description of any program modifications and amendments to existing law that should be made to continue the purposes of the Act.[38] Thus, while the 7-year pilot program will likely only achieve modest gains in cleaning up AMLs, given the magnitude of the AML issue and long-standing appetite for cleanup liability protection, it is likely that we will see some form of the program continue into the future.
If you have any questions, please contact Lindsay Dofelmier, Adam Cohen, or Joel Benson.
[1] S. 2781, the “Good Samaritan Remediation of Abandoned Hardrock Mines Act of 2024.”
[2] H.R. 7779
[3] Pub. Law 118-155 (Dec. 17, 2024).
[4] The U.S. Environmental Protection Agency estimates that hardrock mines have contributed to the contamination of 40% of the country’s rivers and 50% of all lakes. Gov’t Accountability Office, From Gold Rush to Rot—The Lasting Environmental Costs and Financial Liabilities of Hardrock Mining (Feb. 22, 2023), https://www.gao.gov/blog/gold-rush-rot-lasting-environmental-costs-and-financial-liabilities-hardrock-mining.
[5] See Pub. Law 118-155.
[6] U.S. Gov’t Accountability Office, Abandoned Hardrock Mines: Information on Number of Mines, Expenditures, and Factors that Limit Efforts to Address Hazards 15 (Mar. 2020).
[7] Id. at 17.
[8] U.S. Gov’t Accountability Office, supra note 4.
[9] Pub. Law 118-155, § 2(8).
[10] Pub. Law 118-155, § 2(1)(A).
[11] Id. § 2(1)(B).
[12] A “responsible owner or operator” includes any person that is legally responsible under the CWA and financially able to comply with the CWA’s requirements, or a present or past owner or operator or other liable party under CERCLA who is financially able to comply with CERCLA’s requirements. Id. § 2(16).
[13] Id. § 2(1)(C).
[14] Id. § 2(6).
[15] Id. § 4(a)(1), (a)(3)(A), (d)(2).
[16] Id. § 4(c).
[17] Id. § 4(b), (m).
[18] Id. § 4(f)(1)(B).
[19] Id. § 4(i).
[20] Id. § 4(d)(1).
[21] Id. § 4(d)(3).
[22] Id. § 4(d)(4).
[23] Id. § 4(d)(6).
[24] Id. § 4(d)(5).
[25] Id. § 4(f)(4)(A).
[26] Id. § 4(f)(4)(B).
[27] Id. § 4(n).
[28] Id. § 4(d)(6)(B)(i).
[29] Id. § 4(n)(1)(B), (C).
[30] Id. § 4(d)(6)(B)(ii), (n).
[31] Id. § 4(f)(4)(C).
[32] Id. § 5(a).
[33] Id. § 5(b).
[34] Id. § 4(j)-(l), (m)(1)(B)-(D).
[35] Id. § 4(l)(2)(A).
[36] Id. § 4(l)(2)(F).
[37] Id. §§ 4(a)(1), 4(b)(1)(D); 4(l)(2)(F), 6.
[38] Id. § 6(b)(5).