The U.S Environmental Protection Agency (EPA) and state environmental agencies occasionally work together to encourage local governments, non-profit organizations, companies, and other entities to voluntarily clean up contaminated sites, particularly orphan mine sites. These parties, called Good Samaritans, are justifiably concerned about any liability they may incur by undertaking such a project.

The EPA has addressed this concern in several memoranda, the most recent issued in December 2012, which discussed conditions under which a Good Samaritan would not be required to obtain a National Pollutant Discharge Elimination System (NPDES) permit covering discharges either during the cleanup project or after the project is completed.

Qualifying Good Samaritans

A 2007 memo from multiple EPA offices, including the Office of Enforcement and Compliance Assurance, Office of Solid Waste and Emergency Response, Office of Water, and Office of General Council, presents guiding principles for Good Samaritan projects at orphan mine sites. The guidance notes that nothing in the Good Samaritan initiative alters the Comprehensive Environmental Response, Compensation, and Liability Act’s (CERCLA) polluter-pays principle. Also, according to the guidance, to qualify as a Good Samaritan, an entity would need to meet certain criteria, including:

  • Not being a past owner or current owner of the property and having no intention of purchasing the property in the future,
  • Not being potentially liable under CERCLA for remediation of the existing contamination, and
  • Not being potentially liable under any other federal, state, or local law for remediation of the existing contamination.

CERCLA Tools

The 2007 guidance also emphasizes the need for CERCLA tools. These are comfort/status letters or settlement agreements that spell out the government’s assurances that legal action will not be taken against the Good Samaritan except in circumstances specifically stated in the tools. These tools will also describe the cleanup goals the Good Samaritan agrees to work toward. The memo states that the CERCLA tool will, “as a general matter,” require the Good Samaritan project “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 facility siting laws.”

NPDES Permitting

In the 2012 follow-up memo, the same four EPA offices attempt to resolve concerns Good Samaritans raised about the possible obligation to obtain NPDES permits for work at orphan hard rock mining sites. As a general matter, the memo notes that Good Samaritans performing work under a CERCLA tool would be exempt from NPDES permitting requirements both during the cleanup and after it is completed. The exemption holds provided the Good Samaritan does not perform additional work at the mine.

The memo specifically addresses the Clean Water Act provision that states that any person who discharges or proposes to discharge pollutants has the duty to apply for a NPDES permit. In its regulations the EPA has elaborated on this provision by clarifying that permitting obligations apply to either owners or operators of sites. The 2007 memo already clarified that a site owner may not be a Good Samaritan. However, could a Good Samaritan meet the definition of an operator and therefore be required to obtain a permit? The EPA states that the CERCLA tool should specify the Good Samaritan’s exemption from permitting during the project. The question after the CERCLA action is satisfactorily completed is whether the Good Samaritan would be considered an operator of any discharges that continue at the site.

Five Questions

“The initial question to be considered is whether the Good Samaritan successfully completed the work described in their CERCLA tool,” says the EPA. If the answer is “yes,” the Agency then provides the following five questions, answers to which determine whether the Good Samaritan is an operator for NPDES permitting purposes.

  • Does the Good Samaritan have access and authority to enter the site?
  • Does the Good Samaritan have an ongoing contractual agreement or ongoing relationship with the owner of the site to control any remaining discharge(s)?
  • Does the Good Samaritan have the power or responsibility to make timely discovery of any changes to the discharge(s)?
  • Does the Good Samaritan have the power or responsibility to direct any activities of persons who control the mechanisms, if any, causing the ongoing discharge(s)?
  • Does the Good Samaritan have the power or responsibility to prevent and abate the environmental damage caused by the remaining discharge(s)?

If the Good Samaritan answers “no” to each of these questions, the Good Samaritan should not be considered an operator responsible for obtaining NPDES permit coverage even where a discharge continues from a passive treatment system.

For assistance with your environmental or safety regulatory compliance needs, contact Ralph Carito at Total Environmental & Safety, LLC (Total) at 908-442-8599 or rcarito@TotalEnviron.com