Last month, TSF’s Community Organizer Mike Thornton attended a meeting organized by Trout Unlimited, bringing together legislators, experts and groups working on abandoned mine reclamation across the country. Mike reports:
“It’s not easy to be a Good Samaritan”
When it comes to cleaning up abandoned mines, how do well meaning people who want to do the right thing for the right reasons protect themselves from financial liability and the possibility of being sued by other well meaning people (or maybe some who aren’t so well meaning)?
That was the question on the table when some 50 activists, scientists, regulators and governmental representatives came together in Denver, Colorado September 2-3, 2010 for a meeting organized by Trout Unlimited. TU is helping to lead the way in abandoned mine cleanup efforts in Rockies. They organized the meeting to discuss the chilling effect that the federal “Clean Water Act” (CWA) has on organizations and individuals willing to take on the huge task of trying to clean up abandoned mines that are contaminating creeks and rivers.
The environmental community and legislators are wrestling with this issue. One proposal on the table is Senate Bill 1777 introduced by Colorado Senator Mark Udall, whose staff attended the meeting. As the Colorado Examiner website reports:
“S.B. 1777 the Good Samaritan Cleanup of Abandoned Hardrock Mines Act of 2009. U.S. Senator Mark Udall introduced the act a while back. The main point of contention is over the exemption that would allow good Samaritans a way out of ownership of the problem if they come in and make things worse. The liability — a requirement of the Clean Water Act — keeps many groups from attempting a cleanup. The battle pits local watershed groups against national interests. The locals want to try to clean acid mine drainage and other problems but don’t have deep enough pockets to take on large scale mitigation. Opponents question exemptions to environmental laws and requirements. National environmental group Earthjustice spokeswoman Jessica Ennis told the Colorado Independent, “We will not support a bill that makes exemptions from environmental laws “One concern is making sure that the current owners of the pollution are not allowed a way out of their liability. Udall contends that sufficient safeguards are in place in his bill to prevent fraud.”
Liability Concerns Driving No-Action
As demonstrated to meeting participants in the case study of the Tiger Mine (described below), cleaning up abandoned mines sites can be incredibly complex, due to geology, hydrology, technology, topography, land ownership, the unique and sometimes unpredictable characteristics of a given mine site, the toxics involved, the ability to get funding for cleanup, and the labyrinth of regulations and regulatory agencies that have to be complied with.
Each and every one of these complexities makes abandoned mine cleanups difficult, but the one that can and often does stop a project dead in its tracks is the fear of being sued after the remediation is done.
The meeting in Denver underscored what TSF’s own legal analysis had discerned: there are a number of ways to structure cleanup efforts and enter into agreements with State and Federal regulators that can provide protection from liability and lawsuits to a large degree, but there is noting that can protect against a lawsuit under the Clean Water Act (CWA). Once a cleanup action is completed even the most creative agreement designed to provide legal protection will fail to do so in the face of a CWA-based lawsuit.
Call for Action
With a half a million abandoned mines in the United States, many of them creating serious pollution problems that pose danger to fish and other wildlife as well as human beings, there is no doubt that an effective and adequately funded program for abandoned mine remediation is needed. Such a program needs to have strict environmental protections and at the same time allow “Good Samaritans” to do work that will make improvements in water quality, recognizing that in many cases CWA standards are impossible to meet.
The current regulatory framework can and does cause situations where the only choice is to do nothing. The agreement between the parties in Denver was to find a way to move forward on AML cleanups using existing regulations and legal protections, while working to find something in the form of federal legislation such as the Udall bill so that these necessary and worthwhile projects can move forward.
People agreed that the most important way for this to happen is to work diligently to educate the public about how serious the problems posed by abandoned mines actually are. It is clear that no one involved in the “Good Samaritan” mine cleanup effort is looking for a way to weaken environmental protections. To the contrary what is being sought is real improvement in environmental conditions, water quality and public health.
The Tiger Mine: A Case Study in Remediation
One example of such an abandoned mine is the “Tiger Tunnel” located at nearly 11,000 feet above sea level outside Leadville, CO. The Tiger Mine was abandoned in the mid 1950s and remediation work is already in progress including settling ponds that will allow metals to be removed from the acid laden water draining out of the mine. In addition approximately 26,000 cubic feet of mine tailings having been moved into an onsite repository that will prevent water from leeching through the toxic material and flowing offsite into other waters.
What makes the Tiger Mine project attractive is its relatively low cost (about $500,000), a willing and cooperative landowner, the involvement of Natural Resources Management students from the nearby Colorado Mountain College and its Natural Resource Management Student Internship Program. According to the college, “Natural Resource Management students at CMC gain experience by working for governmental and private clients. The Natural Resource Management Student Internship (NRMI) program at Colorado Mountain College serves the environmental assessment needs of a variety of governmental and private clients.”
Much of this work is completed near the Timberline Campus in Leadville, but several projects are currently underway in other parts of Colorado. These environmental assessment and remediation projects are completed by staff and student interns. In addition the Colorado School of Mines will lend some of its expertise to the design of a bio-reactor to treat the AMD coming out of the Tiger Tunnel.
The Tiger Mine is just one example of the 500,000 abandoned mines in the United States. Nearly 10% (an estimated 47,000) of those abandoned mines are in California. This has been a key focus of The Sierra Fund’s “Mining’s Toxic Legacy” Initiative over the last several years. TSF went to Denver to learn about furthering mine cleanup efforts in the Golden State, as well as to share some of the unique problems facing California such as the 13 million pounds of Gold Rush-era mercury contaminating many of our own creeks, streams and rivers from the Sierra to the Sea.
The Tiger Mine is a project where all the pieces (including funding) are in place to successfully remediate an abandoned mine site, but the fear of possible litigation hangs over the heads of the “Good Samaritans” who are willing and ready to do the job—even though what they are doing and will do can only improve the situation.
Partnerships that Work
The Tiger Mine is just one example of a remediation project being undertaken by “people doing the right thing for the right reasons.” When it comes to cleaning up abandoned mine sites there are creative and unusual partnerships being formed in other places that have come together to tackle these often very tough problems.
One of the most successful examples of partnership and a participant in the Denver meeting is the Animas River Stakeholders Group in Colorado. According to their website, “The mission of the Animas River Stakeholders Group (ARSG) is to improve water quality and habitats in the Animas River through a collaborative process designed to encourage participation from all interested parties.”
Participants in ARSG include mining companies, elected officials, local citizens and interest groups, environmental organizations, and landowners including federal and state agencies. Their process includes open meetings allowing all parties to participate at a level suited to their interest and need.
The Upper Animas Watershed has a long history of extensive metal mining as an economic mainstay dating back to the 1880s. Headwaters contamination in the Silverton vicinity is from both mining activities and natural sources. In 1995 the Colorado Water Quality Control Commission adopted stricter standards for certain segments of the upper Animas with a delayed effective date at the Stakeholders’ request. The Commission then empowered the Animas River Stakeholders to locate and evaluate sources of metals contamination, determine potential improvement, and prioritize sites for remediation in order to recommend achievable water quality standards and use classifications.
One key message of the meeting: from the coal fields of Pennsylvania to the mercury mines of California, abandoned mine cleanup efforts are happening. Regular citizens, conservation groups, philanthropic organizations and foundations, governmental regulators and decision makers, college students and the mining industry are playing positive roles in remediating mining toxins.