EPA

While they’re a step in the right direction, the federal administrative rules changes for abandoned hard rock mines don’t address the most important issues keeping “good Samaritans” from cleaning them up, according to several experts.

At a Wednesday press conference, Environmental Protection Agency administrator Stephen L. Johnson announced a new set of “tools” designed to reduce liability under the federal CERCLA law — better known as Superfund — for citizens and volunteers to clean up abandoned mine sites.There are about 22,000 abandoned mine sites in Colorado contributing to water pollution, especially heavy metals.

“What we see is that this doesn’t do all that much,” says Jeff Crane, executive director of the Colorado Watershed Assembly. The Superfund law doesn’t present much of a liability threat from third party lawsuits, he said. The new regulations “don’t provide any more protection from liability than was already there in the first place,” he says. “It hasn’t done very much. Not that it isn’t a good move in the right direction, but I don’t think it’s getting there.”

What’s needed, he says, is liability protection under the Clean Water Act, an issue that can’t be addressed administratively. New legislation is required.

Crane says that there are people all around Colorado “chomping at the bit” to get these abandoned mine sites cleaned up, but who are slowed by liability questions in the CWA.

“We haven’t been that worried about CERCLA,” says Peter Butler, whose group Animas River Stakeholders has cleaned up a number of abandoned mine sites. “The main issue out there is the Clean Water Act,” Butler says. “It’s relatively easy to go in and move waste pile sites around because the Clean Water Act generally doesn’t affect those sites.

“But the biggest problem around Colorado is draining mines, and those are considered point sources under CWA. As such they need a point source permit, and EPA can’t simply waive those requirements.”

This is where the Clean Water Act requirements get tricky on the liability issues. For instance, if a mine is draining water into a nearby stream and degrading the water, a “Good Samaritan” might go in an put in a drain that reduces the load by half, but still doesn’t bring the water up to Clean Water Act standards. A third party could then sue, requiring the Good Samaritan to meet clean water standards, which might require building a waste water treatment plant, and then operating it forever.

This is very expensive. So under CWA, you can’t just do a little bit of good, you have to fix everything, or you may be liable for the damage that you didn’t fix.

It’s this liability problem that’s got to be dealt with before all those people chomping at the bit to clean up the streams can be set loose.

This requires legislation by Congress. Four bills of varying breadth were considered last year, one of which was written by Butler and introduced by Rep. John Salazar (D-Colo.). None of them passed. New legislation may be considered in the current Congress.

But Elizabeth Russell, Mine Restoration Project Manager for Colorado Trout Unlimited, says, “We’ve been holding our breath for these EPA documents for a long time. Our lawyers haven’t reviewed them yet, but we’re hoping the language is good and will help us do more cleanup.”

One of Trout Unlimited’s major efforts is the abandoned Pennsylvania mine on Peru Creek in Summit County. The mine opened in 1879 and closed in the 1940s. It was one of Summit County’s most profitable mines, producing gold and silver but it is now abandoned and leaking  zinc, manganese into the  watershed and it has low pH.

The history of the Pennsylvania mine demonstrates the problems with the current liability setup. The state of Colorado actually built a water treatment facility at the mine in the late 1980s. But when a court case resulted in the potential for the state to be held liable for all future pollution from the mine, the state simply walked away from the project.

Russell says that EPA used a document they negotiated with Trout Unlimited to come up with the new regulations. “It took us about a year to reach this settlement agreement. This rulemaking will cut out all these legal negotiations, because there is already a template to work from. They wanted to make this easier. We commend EPA. They really want to get these sites cleaned up.”

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Dan Whipple

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