New EPA Good Samaritan guideline, ‘does not provide as much liability protection as we would like’ — Peter Butler

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From The Telluride Watch (Samantha Wright):

“I think it is helpful. I know the EPA put a lot of effort into it and I’m glad that they did,” said Animas River Stakeholders Group co-director Peter Butler of Durango. “It helps define what the EPA can do, but it does not provide as much liability protection as we would like.”

The new initiative seeks to give Good Samaritans assurances they will be free from Clean Water Act liability if they undertake a project to improve water quality at an abandoned draining mine adit.

Specifically, the policy clarifies that Good Samaritan agreements with the EPA can include extended time periods that give Good Sams legal liability protection and that they are generally not responsible for obtaining a clean water permit during or after a successful clean-up…

Butler, however, spelled out three specific concerns he has with the new policy.

First, he said, the regulations merely provide guidance, and do not come down in the form of rules or statutes.

Second, there is not much in that guidance to help protect Good Samaritans from third party lawsuits stemming from the ‘citizen’s suit’ provision of the federal Clean Water Act. This provision says that if someone suspects a violation of the Clean Water Act, a citizen may begin a legal action and if successful, the defending party will have to pay all of the legal expenses of the citizen’s group. If they are unsuccessful, the defendant does not have recourse to counter-sue.

It’s the bugaboo that has always spooked potential Good Samaritans from taking action to directly treat point-source discharge at abandoned mines. Good Sams have walked away from many mine cleanup projects for fear that if they don’t bring the discharge water all the way up to CWA standards, they may be sued by a third-party citizen or even another environmental group.

Third, Butler said, under the new EPA guidelines, the main protection offered defines Good Samaritans as non-operators. “Not everyone will fit that criteria very well,” he said. “It may rule out all state agencies” from engaging in Good Samaritan clean-up projects.

In short, Butler said, the policy “is somewhat helpful but doesn’t solve the issue. It probably won’t make a difference.”

However, he allowed, ARSG works closely with Colorado’s Division of Reclamation, Mining and Safety on mine clean-up matters and is still waiting for state officials from that agency to weigh in the EPA memo.

More water pollution coverage here.

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