‘Good Samaritan’ legal battle pits greens against greens

In the last 15 years, Washington lawmakers have introduced no fewer than 10 pieces of so-called Good Samaritan legislation — the majority of those laws introduced by Colorado legislators. The legislation is designed to provide legal protection for groups who take it upon themselves to clean up toxic waste. In Colorado, that means cleaning up acid mine drainage.

Why has none of the legislation passed? Good Samaritan groups say the most stringent opponents include major environmental groups with Washington lobbyists.

Arkansas River (CC photo, Kahunapulej, Flickr)

Arkansas River (CC photo, Kahunapulej, Flickr)

“The environmental groups in Washington, D.C, surprisingly enough, are the biggest impediment to passing this legislation,” explained Jeff Crane, executive director of the Colorado Watershed Assembly. “It completely baffles my mind. I just don’t get it.”

For their part, environmental groups like the Washington, D.C.-based Clean Water Network and Oakland, Calif.-based Earthjustice, argue that waiving compliance with the Clean Water Act, for any reason, is a dangerous precedent.

“Waiving environmental laws that are meant to protect people’s health defeats the purpose of having environmental laws to begin with,” said Jessica Ennis, spokeswoman for Earthjustice, a prior opponent.

10 bills in 15 years

Although previous legislation has varied in the details, most bills would have amended the Clean Water Act to develop a special permit exempting Good Samaritans from the very strict requirements of the Clean Water Act.

Lacking the funds to build and maintain million-dollar treatment plants, most Good Samaritan remediation projects employ lower-cost, lower-maintenance methods that succeed in stopping the lion’s share of toxic flows. But they 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. That “discharge” opens up the groups to citizen lawsuits under the Clean Water Act, according to a precedent set by the 1994 case Committee to Save the Mokelumne River v. East Bay Municipal Utility District.

Since the 1994 case, fear of litigation has stopped entities including nonprofit Animas River Stakeholders, the Colorado Division of Reclamation, Mining and Safety and private landowners from cleaning up acid mine drainage in Colorado.

Proponents of Good Samaritan legislation, like Crane, argue it would correct “a glitch in the Clean Water Act” that has halted Colorado acid mine drainage clean-ups in their tracks. But opponents see a dangerous weakening of the Clean Water Act.

“What’s happened, it’s been a very interesting and frustrating process because it’s one of those things where when you first talk about [Good Samaritan legislation] pretty much everybody says, ‘yeah, sounds like a great idea,’” explained Paul Frohardt, who has worked on the problem for 15 years, and currently deals with it as the administrator of the Colorado Water Quality Control Commission and director of Colorado’s Office of Environmental Integration and Sustainability. “But when you get down to the details it has become a real challenge.”

Frustration on the ground

But many of those trying to clean up abandoned mine sites say they’re frustrated with environmentalist opposition — particularly since it often comes from groups who aren’t involved in on-site clean-up.

“We need to go back and look at what is happening on the ground,” said Crane. “There are citizen groups all over Colorado who want to work on cleaning up the bad legacy of mining… These are not the Earthjustices and the Sierra clubs who are talking about it in D.C. These are people in these communities.”

But environmental groups are equally frustrated with a plan that they say creates loopholes instead of assigning responsibility and funding.

“We really need to address this problem from the beginning. So responsible parties — that is, the mining companies — need to be held responsible for their sites,” said Earthjustice’s Ennis.

But Good Samaritans point out that their work is on historically mined sites, where the responsible party is long gone.

In those cases, said Natalie Roy, at the Clean Water Network, her group believes clean-up should be a government responsibility.

“Sites causing water contamination need to be cleaned up and CWA [Clean Water Act] standards, which protect public health and the environment, need to be met” wrote Roy in an email.

“A key ingredient to making this happen is adequate funding as well as promulgating new regulations requiring that these sites be cleaned up. The issues about being sued under the CWA because Good Samaritans (whether it is the state, a mining company or the boy scouts) are fearful they cannot clean the site up to the levels required in the CWA is disingenuous. Getting sued isn’t the issue, money is. The government is not allocating the funds necessary to clean up the sites and is hoping to have other people (who could be new mining companies interested in re-mining or other organizations) pay for the cleanup — cleanup not up to CWA standards.”

But Elizabeth Russell at nonprofit Trout Unlimited, which is currently working on several acid mine drainage clean-up projects in Colorado, worries that expecting government to clean up the countless draining mines on private property isn’t feasible.

“The government is just not going to do it,” she said. “They don’t want the liability either.”

Going forward

Asked what solution might bring the two sides together, Frohardt said he doesn’t know.

“If I had a good idea of a magic solution we would have suggested that a few years ago.”

Meantime, he said those working on new legislation — which Democratic U.S. Sen. Mark Udall of Colorado, is expected to introduce this fall—have tried very hard to narrow the law so it can’t be abused. He cites examples like a 2006 Good Samaritan bill introduced by then-U.S. Sen. Ken Salazar that would have waived compliance not only with the Clean Water Act but also Superfund, the Toxic Substances Control Act, the Solid Waste Disposal Act, as well as state, Tribal and local environmental laws. The bill earned an angry letter of opposition from the American Bird Conservancy, Clean Water Action, Earthjustice, Friends of the Earth, Greenpeace, the National Environmental Trust, the Natural Resources Defense Council, the Sierra Club, and the U.S. Public Interest Research Group.

“A narrower approach, I think would develop more consensus,” Frohardt said.

For their part, environmental groups say they’re open to compromise but have few specifics about what kind of Good Samaritan legislation they might support.

We’re very open to talking to other stakeholders to come up with a solution,” said Ennis. “[But] I don’t have any specific examples of possible compromises.”

Natalie Roy, executive director of the nonprofit Clean Water Network, also agreed that a compromise was possible: “We did not support legislation in 2006—that’s not to say there isn’t some sort of legislation that could come down the road,” she explained.

But she added that the nonprofit couldn’t support what is basically the foundation of Good Samaritan law — waiving environmental protection for non-responsible parties voluntarily cleaning up contaminated sites.

“You can’t have exemptions for major environmental laws,” she said.

Crane, though is hopeful that compromise is out there, and he has vowed to travel to Washington in order to talk to opponents in advance of legislation.

“We need to pull together a meeting at the Clean Water Network and go to Washington and sit down and talk about this before they come up and misrepresent the facts of what is happening,” he said. “What I think the problem has been is that I don’t think the pros have met with the cons.”

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