Colo. water cleanups hobbled by ‘Good Samaritan’ legal risks

A mine waste pile near the Tiger Tunnel site. (Photo by Kristin Hettich)

A mine waste pile near the Tiger Tunnel site. (Photo by Kristin Hettich)

LEADVILLE — It’s a fall morning in the mountains just outside this Lake County town. Contractors in yellow earthmovers are cleaning up acid mine drainage in the Sugarloaf Mining District. They’re part of a unique government-nonprofit-college collaboration that has made great strides in improving water quality in the Lake Fork of the Arkansas River.

Everyone involved in this feel-good project, however, is a target of potential lawsuits under the Clean Water Act.

A Clean Water Act suit has been filed successfully only once against a voluntary mine drainage cleanup project, in 1993 in California, but it was enough to scare off so-called Good Samaritan clean-up groups across Colorado, according to Elizabeth Russell, mine restoration project manger for Trout Unlimited, one of the groups involved in the Lake Fork restoration project.

“The risk is low, but there is risk,” she said.

In the case, Committee to Save the Mokelumne River v. East Bay Municipal Utility District, the court found that a landowner who attempts to clean up pollution from an abandoned mine can be found liable if the treated water does not meet Clean Water Act standards.

Lacking the funds to build and maintain million-dollar treatment plants, most Good Samaritan remediation projects succeed in stopping the lion’s share of toxic flows but fail to prevent relatively small amounts of acid drainage into the watershed, enough to be considered “a discharge of pollutants” under the Clean Water Act.

According to environmental law author Sean McAllister, the Colorado Division of Reclamation, Mining and Safety (formerly the Colorado Division of Minerals and Geology) abandoned countless clean-up projects for fear of incurring liability after the 1993 ruling.

The DMG stopped maintaining a wetland it built on Thompson Creek in Pitkin County in 1987, for example; declined to activate a wetland it built in 1991 near Creede; never fully activated a wetland it built at the Pennsylvania Mine in Summit County in the early 1990s; and decided against fixing a wetland overwhelmed by acid coal-mine drainage at the Boston Mine in La Plata County.

Wary nonprofits and private landowners in Colorado stop cleanups for the same reason.

In Silverton, a nonprofit community group known as the Animas River Stakeholders has decided against directly treating mine drainage. At the Marshall #5 Mine in Boulder County, a DMG-built wetland was never made operational because a nearby landowner refused to sell water rights for fear of legal action.

The Clean Water Act, in effect, is crushing local efforts to clean the water. Russell says protection from liability would spur clean up projects across the state.

“Without a doubt,” she said in an interview. “We would see a huge increase in water quality in Colorado. It really is the single-most important, least-addressed issue in the state as far as mine drainage is concerned.”

Good Samaritan legislation

Russell advocates for federal “Good Samaritan legislation,” laws that would relieve groups like Lake Fork Watershed from liability. She said that in Pennsylvania, the only state with such laws, “clean ups are happening left and right.”

Although federal Good Samaritan legislation, in varying forms, has been introduced, no bill has ever passed, ironically in part due to opposition from environmental groups who worry about weakening the Clean Water Act.

The most recent bill, H.R. 4011, was introduced by U.S. Sen. Mark Udall when he represented Colorado’s 2nd Congressional District, and was based on a proposal drafted by the Western Governors Association. It would have amended the Clean Water Act to create a special permit for Good Samaritans to clean up abandoned mine waste.

Udall plans to re-introduce Good Samaritan legislation in the U.S. Senate “sometime before December,” according to spokeswoman Tara Trujillo.

Slim sources of funding

Local clean-up efforts would also benefit from a reserve of cash.

“There’s just no pot of money” at the federal or state level for mine drainage clean-ups, explained Russell. “It’s very hard to scrape together money for projects, and almost impossible to scrape together money for mine-drainage projects.”

The Dinero Tunnel area in 2003 before cleanup began. (Photo courtesy Kristin Hettich)

The Dinero Tunnel area in 2003 before cleanup began. (Photo courtesy Kristin Hettich)

The bulk of the money for the Lake Fork project, which has cost about $750,000 so far, has come from the Bureau of Land Management, which owns some of the land, explained project manager Craig Bissonnette.

The money available under the Clean Water Act, according to Russell, is for pollution that has no specific source — and mines are clearly a specific source of pollution.

Some hope, however, that reforming the 1872 Mining Law will generate cash. Currently, hard rock mines pay no royalties to the state (unlike oil and gas mining), and so there are no reserve funds available to clean up mines. Advocates for reform of the mining law point out that 28 percent of the toxic pollution in the United States comes from mining and that the industry should help fund that clean up.

Setting to work

Meantime, members of the Lake Fork Watershed Working Group point out the strides they have taken to improve the watershed.

Before the group started its clean-up efforts, the water at the confluence of the Lake Fork River and the Arkansas River did not meet Colorado water quality standards, even though the EPA had spent millions of dollars cleaning the river just upstream.

Data showed the heavy metals from the Sugarloaf Mining District were carried up to 100 miles downstream along the Arkansas River, a waterway popular among boaters and fishermen, and used as a water source for Aurora, Pueblo and Colorado Springs.

Since then, members of the watershed group have moved many tailing piles out of drainage paths and into repositories. This fall, they plugged the Dinero Tunnel, to keep it from continuing to release toxic water. At the Tiger Tunnel, where the rock isn’t strong enough for a plug, the group has plans to build a “sulfate-reducing bioreactor” next summer — an artificially constructed wetland that will reduce the heavy metals and acidity of the water.

But the true benefits may not be apparent for a few more years, as insects, fish and wildlife start to return to drainages formerly too toxic for them.

“It takes time for rivers to improve themselves,” Russell said.

Disclosure: This fall, reporter Katie Redding will be teaching a class for the Colorado Mountain College, one of the entities in the Lake Fork Watershed Working Group. She will not be working on the Lake Fork project or in the department involved.

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Katie Redding

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