Mine reclamation: Why calls to allow Good Samaritans to clean up old mines is a bad idea

Posted: Dec 15, 2019

In a narrow canyon, not far above where I live in Boulder, is the old, abandoned Captain Jack Mill. In its heyday in the late 19th century, gold and silver were processed there, after being blasted from their hiding places in several area mines.

Nowadays, contaminants from those efforts, including lead, arsenic and thallium find their way into the headwaters of the Lefthand Canyon Watershed, a source of drinking water for 15,000 people. Elevated metal concentrations in the water and sediments that enter Lefthand Creek also damage its aquatic life.

Thankfully, Captain Jack is one of 18 active Superfund sites in Colorado, and was added to the National Priorities List in 2003, which means that cleanup at the site is required by the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The Environmental Protection Agency (EPA) expects the mop-up of Captain Jack to be complete next fall.  

But thousands of similar sites in Colorado, and throughout the West, are not getting the attention they—and their watersheds—desperately need. There are an estimated 160,000 abandoned hardrock mines in 12 western states (and South Dakota), says the Government Accountability Office. Thus, according to the EPA, thousands of stream miles and watersheds are polluted from “mine water,” which is formed when rain and snowmelt pick up poison in abandoned mines and tailings, and carry it downstream.

In Colorado, 2,751 abandoned mine sites have possible impacts on water quality in 20 watersheds. According to the Bureau of Land Management (BLM), the three highest priority watersheds impacted by abandoned mines on public lands include the Upper Animas, Arkansas and Lake Fork of the Gunnison rivers. Other rivers in the southwest corner of the state—including the Dolores, the Mancos, the La Plata and the San Miguel—are also heavily tainted with toxic discharge. And that’s just skimming the surface of the problem.

Since over 22 million people now live within 25 miles of public lands in the West, once remote sites are now in close proximity to population centers. In the midst of our growth spurt, when we need as much clean water as possible, remediation is a must. And human lives are not the only ones in trouble; aquatic life has taken a hit in many waterways, and has been completed annihilated in others.

This makes the recent rhetoric around devoting more resources to our endangered waterways a welcome sound. But talk of how this painstaking and costly work will get done raises some concerns.

Earlier this month, Senators Mark Udall and Michael Bennet sent a letter to the EPA, asking the agency to redouble its efforts to facilitate the cleanup “by clarifying existing agency guidance and expanding outreach to stakeholders who work to restore water quality in the West by helping to clean up old mining sites.” These ‘stakeholders,’ are third-party actors who bear no responsibility for the actual pollution but, ideally, are invested in restoring environmental integrity.

The idea is that, while there’s not enough money in the public coffers for remediation, watershed groups and mining companies that have cash burning through their pockets should be able to take a whack at it. At issue is whether or not so-called “Good Samaritans” will be held liable for additional environmental damage done during attempts to tidy up the toxins. While there is some guidance under CERCLA (aka the Superfund Law), the Clean Water Act (CWA) seems to leave do-gooders, who screw up inadvertently, vulnerable to federal prosecution. Think of it as a ‘you break it, you buy’ kind of rule.

Two years ago, the Obama administration talked about breaking the Good Sam gridlock and, back then, Udall tried to push through legislative reform with a bill called the Good Samaritan Cleanup of Abandoned Hardrock Mines Act of 2009. It focused on addressing liability issues under the CWA, which requires an act of Congress. At the table were environmental organizations, the mining industry and the Western Governors' Association, among others. At the time, Udall said of the bill, “There are several groups in Colorado who care about their communities and want to protect them and who are ready to go as soon as we have legislation to help them get started. I'm dying to turn them loose so they can get to work."

The bill required applicants to submit a detailed plan for remediation of a given site. After opening the plan to public comment, the EPA or other permitting authority would determine whether or not implementing the plan could possibly worsen water quality. The legislation died in committee.

Udall’s bill wasn’t the first attempt to support private groups wanting to get in on the thankless job of remediation. In 2006, then-Senator Ken Salazar introduced the Cleanup of Inactive and Abandoned Mines Act.
The bill, which had strong support from legislators, a handful of non-profits and several major mining companies, died in the Senate.

Orphaned mines are a menace to our environment, no doubt about that, and the frustration of well-intentioned groups that want to make their communities safe is well-founded, but there is a red flag flapping over these efforts to force through Good Sam legislation that’s gone unnoticed.

However benevolent it may seem, the interest that mining companies have in seeing the CWA circumvented through a Good Sam Act may actually be acting in their own self-interest. Salazar’s bill, in particular, would have allowed companies that discovered ore during the cleanup process to re-mine the site. Other bills permitted sifting through the mine tailings for any valuable leftovers. All of this could legally proceed without a single environmental protection in place. So-called Good Sams could then conceivably leave a mineland in worse shape than they found it. 

Instead of giving companies carte blanche to pollute, adequate funds have to be made available to make remediation a public priority. There are a couple of different ways this could be accomplished.

First, by establishing a national program for hardrock mining, modeled on the Surface Mining Control and Reclamation Act of 1977, which levies a per-ton reclamation fee on all coal produced in the U.S. and returns a portion of that to states, based on the fees paid to mine coal in each respective state. In the 2011 fiscal year, the Abandoned Mine Lands (AML) fund made millions available to states to remediate former coal-mining sites (Wyoming received over $133 million; Colorado, $7.3 million; and Montana, $12.2 million). While U.S. companies alone may not mine enough minerals to foot the bill for past contamination, contributions from huge international mining companies, including Barrick Gold and Newmont, would be significant.

Another option (that will also having hardrock mining companies kicking and screaming), is to amend the 1872 Mining Law to require hardrock mining companies to pay taxes and a portion of their royalties for reclamation at abandoned mines. Currently, extracting valuable minerals from public lands costs companies no more than a paltry claim fee. Again, pursuing international companies that mine on U.S. soil would be key.

The fiscal year 2012 federal budget incorporates and expands on these concepts by proposing "a new abandoned mine lands fee on the production of hardrock minerals on public and private lands, and allocating funds through a competitive process to reclaim the highest priority abandoned mine sites across the nation." It also suggests, "instituting a leasing program under the Mineral Leasing Act of 1920 for certain hardrock minerals including gold, silver, lead, zinc, copper, uranium, and molybdenum currently covered by the General Mining Law of 1872. After enactment of legislation, new mining for these metals would be subject to bonus bids, annual rental payments, and a royalty of not less than five percent of gross proceeds." These changes to bygone mining laws should be fought for in the Congress and Senate.

Not only would the resulting cleanup be a boon to our landscape, it would likely cause a job boom. A 2009 Department of the Interior economic study showed that, when state and tribal AML (coal) programs invested the $298 million available during that fiscal year, the cumulative economic impact in the communities where projects were completed was estimated at $733 million. The same study credited AML funding with creating nearly 3,300 jobs.

Hardrock mining companies have profited personally from our unique resources long enough. If they’d like to continue, it’s time they contribute to restoring ecosystems and to ensuring our safety.

Instead of getting their hands dirty, citizens' groups could contribute significantly to cleanup efforts by hounding their congressional members to go after the big money by passing the federal budget with the hardrock mining language intact. They can focus their extraordinary resources on bringing some of these fat cats out of the shadows by finding out which hardrock companies make the most off of our public lands (in particular) and telling our lawmakers who they are.

-Heather Hansen

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