U.S. EPA Policy Protects Good Samaritans from Liability under CERCLA
By Samantha Simmons, J.D. Candidate, Vermont Law School, Simmons.Samantha at epa.gov

New policies at the U.S. Environmental Protection Agency (EPA) will make it possible for “Good Samaritan” volunteers to clean up orphan mine sites without incurring liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Non-profit organizations, state and local governments and other groups have expressed a willingness to undertake voluntary cleanup efforts of environmentally harmful orphan mine sites. However, in the past, the fear of potential CERCLA liability has discouraged volunteers from going forward with these cleanup efforts. The new policies at EPA are expected to accelerate the pace of cleanups and advance the ethic of cooperative conservation.

Orphan mine sites are responsible for significant levels of pollution. Runoff from mines is one of the largest sources of water pollution in the western region of the United States. Over 500,000 orphaned mine sites exist across the country, most of which are former hard rock mines located in the western states.

The disturbed rock and waste piles at orphan mines contain high levels of sulfides and heavy metals. When these piles are exposed to air and water they undergo physical and chemical reactions that create acid drainage. As rainfall permeates the mineral-rich rock it collects metals such as arsenic, cadmium, lead, mercury, and zinc. The runoff degrades water quality and can damage or destroy insect, plant, and animal life. According to the EPA, approximately 40% of headwaters in the West have been adversely impacted by acids and other types of drainage from orphaned sites where gold, silver, copper, lead, and iron ore were mined.

CERCLA provides authority for federal response to releases of hazardous substances. Under CERCLA several parties may be held liable for clean-up costs of sites contaminated with hazardous wastes. Such potentially responsible parties include: current owners or operators, owners or operators at the time of disposal, generators and parties that arrange or arranged for disposal, and/or transporters that select or selected disposal sites. In the case of orphaned mines, however, the potentially responsible parties no longer exist or are no longer financially viable. Thus, voluntary efforts are necessary to improve water quality in those areas.

The EPA’s new policy is not the first attempt to protect volunteers from liability in exchange for cleaning up orphan mine sites. In 2006 four bills were introduced in the 109 th Congress that sought to encourage cleanup of inactive or orphan hardrock mining sites by otherwise non-liable volunteers, or “Good Samaritans.” However, none of the proposed bills ever materialized into law.

The EPA’s Good Samaritan Initiative accomplishes through administrative action what was not accomplished in the legislature in 2006. The Good Samaritan Initiative is an Agency-wide effort to encourage Good Samaritans to clean up watersheds affected by orphan mine sites. In order to assist the EPA regional offices in implementing the Initiative, the EPA published the “Good Samaritan Administrative Tools” on June 6, 2007 .

The Tools include a model comfort letter and a model settlement agreement. The Good Samaritan “Comfort Letter” encourages Good Samaritans to perform work that complies with federal standards at orphan mine sites and assuages any concerns about potential liability. The Good Samaritan “Settlement Agreement” provides a federal CERCLA covenant not to sue and protection from third-party contribution suits in exchange for cleanup work by a Good Samaritan at an orphan mine site. Additionally, a memorandum containing guiding principles was sent to the EPA regional offices instructing them on what types of projects qualify for liability protection.

While the Tools are a significant step forward in encouraging voluntary cleanup efforts, the EPA cannot remove all legal uncertainties associated with orphan mine sites. Ultimately, legislation is needed that will protect volunteers against liability under the Clean Water Act if even more Good Samaritan cleanups are to proceed.

For more information, please visit CRS Report for Congress, Cleanup at Abandoned Hardrock Mines: Issues Raised by “Good Samaritan” Legislation in the 109th Congress (Dec. 2006) and EPA, Interim Guiding Principles for Good Samaritan Projects at Orphan Mine Sites and Transmittal of CERCLA Administrative Tools for Good Samaritans (June 2007).