Udall’s Good Samaritan water-cleanup bill drawing support

U.S. Sen. Mark Udall‘s new streamlined Good Samaritan legislation, designed to encourage volunteer water cleanup projects, may yet become law. It is the 11th piece of Good Samaritan legislation to be introduced in Congress in the last 15 years. Udall’s bill, however, is drawing more support and less opposition than the previous bills, all of which failed to gain traction on Capitol Hill.

Arkansas River acid mine drainage (photo: USGS)

Arkansas River acid mine drainage (photo: USGS)

The bill by the Democratic senator would provide legal protection for non-profit and other groups who would clean up water contamination from the thousands of abandoned mines across Colorado.

Proponents say it could dramatically increase clean-ups of abandoned hardrock mines across the West.

Despite the support of many of those living near the mines, cleanup groups, and the Western Governor’s Association, all previous similar bills have been defeated.

Opposition, ironically, has come from both major environmental groups, which worry that extraction companies could abuse the law, and from the mining industry, which has lobbied for larger loopholes.

Chances of passing

With so many previous versions defeated, proponents of Udall’s new version laugh wryly when asked if the bill will pass this time around. In fact, there are indications that this time may be different.

Having Udall in the Senate, where he’s been able to attract the attention of the Environment and Public Works Committee, will help, according to Cathy Carlson, policy adviser for the Washington, D.C.-based nonprofit Earthworks.

“He’s met a few times with Sen. [Barbara] Boxer, who chairs the Environment and Public Works Committee, and she’s expressed interest in trying to do something with this bill,” Carlson said.

Carlson also believed the bill has a friend in the Obama administration.

“It’s a priority for the secretary of the Interior, Ken Salazar, who is from Colorado,” she said.

Carlson — who recently returned from meeting with the staff of the Senate Environment and Public Works Committee about the bill — said she hopes the committee will hear the bill by spring.

Legislative changes

The bill has also been narrowed and tightened in order to cut down on the chances that it could be misused, which has brought more supporters on board.

Both Carlson and Roger Flynn, director and managing attorney for the Lyons, Colo.-based Western Mining Action Project said their organizations opposed the 2006 version of this bill — as did many of the major environmental groups — because it waived liability from nearly every landmark piece of environmental legislation.

Both have since worked with Udall to narrow the bill, and both support the recently introduced version of the bill, which exempts Good Samaritans and no one else from lawsuits under the Clean Water Act.

Asked about the potential for the bill to be misused by mining companies, Paul Frohardt, administrator of the Colorado Water Quality Control Commission, pointed out that the bill can only be used to clean up abandoned mines — not sites where the responsible party continues to operate.

Carlson also noted that the bill prohibits so-called “re-mining.” That is, the bill doesn’t allow anyone to profit from the extraction of minerals from these clean-up sites. Environmental groups worry that if re-mining is allowed, mining companies will try to re-mine existing mine waste with Good Samaritan permits, under the premise that are cleaning up the site.

Flynn also points out that would-be Good Samaritans must apply to the state for a permit — and that permitting has a public hearing process.

“So if a mining company did try to use the law to set up a “dummy nonprofit” to clean up its mess, said Flynn, “a quick review of that dummy nonprofit would show that it’s not a real organization.”

The bill also makes Good Samaritans liable if they make the pollution worse, said Carlson — thereby addressing the concern that a well-intentioned Good Samaritan might actually make a bigger mess of the site, due to poor planning or inexperience.

“Although anything is possible, the bill is certainly not designed to [let mining companies abuse it], and there are some safeguards in there,” said Flynn.

Still, he warns that the environmental community will have to be vigilant to make sure that mining companies aren’t successful in pushing loopholes for the industry, like re-mining permits, into the bill.

“You can be sure that people will be watching out to make sure the mining companies don’t do an end run around this,” he said.

Less opposition

So far, many of the groups that opposed the controversial 2006 version of the legislation don’t appear to be firing off letters about this one.

“I don’t believe it’s something we’re working on,” said Nick Berning, spokesman for Friends of the Earth.

A spokesman for the National Resources Defense Council said the organization has no position on the new bill.

Meanwhile, at the Clean Water Network, which has not yet taken a position, Colorado Watershed Assembly executive director and Good Samaritan proponent Jeff Crane recently joined the board of directors, in part to convince the group to support Good Samaritan legislation this time around.

‘Largely irrelevant’

The Pew Environment Group said it doesn’t oppose the bill, but in a statement, Jane Danowitz, U.S. public lands program director, called the legislation “largely irrelevant” and called instead for a focus on creating a severance tax for the hard rock mining industry.

“We understand that volunteer organizations have no desire to take on open-ended permit obligations, and we appreciate Senator Udall’s attempt to address without overriding the safeguards of the Clean Water Act,” she said.

“But there is a critical, larger fix to be accomplished,” she continued. “Colorado and the West will get a lasting solution when we prevent mining’s toxic waste from being left behind in the first place and require the mining industry to help fund cleanup of hardrock mining’s legacy of waste and water pollution. That’s best done by reforming the nation’s 1872 law that makes it legal for multinational corporations that mine on U.S. public lands to leave U.S. taxpayers holding the bag for cleanup.”

Of the groups that opposed the 2006 legislation, so far only one, Earthjustice, has indicated to The Colorado Independent that it would not support Udall’s current Good Samaritan legislation.

“We will not support a bill that makes exemptions from environmental laws,” said spokewoman Jessica Ennis. “The Clean Water Act is a landmark environmental law. Waiving environmental laws to clean up the environment just does not sound like the best approach.

This post has been updated to reflect the fact that Sen. Mark Udall has decided to support the Western Hardrock Mining Bill of 2009.

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Katie Redding

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