A new bipartisan bill would help conservation groups, nonprofits and local governments mitigate pollution from abandoned mines across the West.
The Good Samaritan Remediation of Abandoned Hardrock Mines Act introduced in the U.S. Senate on Thursday would allow “Good Samaritan” groups to assist in the cleanup of abandoned mines by limiting their legal and financial liability for mine pollution. Sen. Michael Bennet, D-Colo., co-sponsored the bill, which would drastically expand the capacity for communities to address toxic mine waste from hundreds of thousands of abandoned mines in the U.S.
“There are thousands of abandoned mines in Colorado and across the West that are a constant source of pollution and a threat to our watersheds,” Bennet said in a news release. “Our Good Samaritan legislation will encourage states, local governments, nonprofits and corporations to clean up these old abandoned mines, helping to reduce pollution and improve water quality.”
The bill establishes a pilot program of 15 sites in which Good Samaritans – anyone from state mine reclamation agencies to local conservation groups – receive permits from the U.S. Environmental Protection Agency to carry out cleanups at abandoned mine sites.
The legislation has a seven-year sunset and is meant to test a more constructive approach to limiting the pollution from the hundreds of thousands of mines that don’t qualify for the EPA’s Superfund status.
For years, conservation groups and local governments have argued that the Clean Water Act, though critical for protecting water, limits their involvement in mine cleanups.
The Clean Water Act characterizes the pollution from abandoned mines in two different ways. One is “nonpoint source,” which means there is no single identifiable source actively emitting pollution. Solid waste rock at an abandoned mine would qualify as a nonpoint source because it releases toxic materials only when rain and snow wear down the rock.
Nonprofits and other Good Samaritans have been able to clean up nonpoint source abandoned mine pollution since at least 2007 after the EPA issued a policy that protected these groups from any liability for the pollution.
The Clean Water Act also identifies “point source” pollution, which is actively emitted by a single source such as a pipe. Under the Clean Water Act, any entity that wants to clean up the infrastructure of an abandoned mine that discharges pollution, such as a tunnel, must assume liability for that pollution permanently.
To comply with the Clean Water Act, these entities would have to undertake costly efforts to ensure that any water released by the mines during their work meets stringent standards.
“Whoever has responsibility for that mine, they are responsible under the Clean Water Act for cleaning up their (polluted) water to a very, very high degree of purity, almost perfectly pure, before they can discharge that industrial waste back into a creek to run down river,” said Ty Churchwell, mining coordinator for Trout Unlimited. “That’s all well and good until you have an abandoned mine where there is no miner, there is no mining company.”
This issue of liability prevented state agencies, local governments and conservation organizations from cleaning up tens of thousands of abandoned mine sites that spew toxic chemicals.
“Really what this is about is providing a mechanism by which volunteers or third parties can go deal with one of these abandoned draining mines and not be responsible for liability forever for pollution that they didn’t cause in the first place,” Churchwell said.
In addition to granting Good Samaritans limited liability, the legislation also removes the barrier of the Clean Water Act’s strict water standards, allowing organizations to release water according to the standards outlined in their permit and approved by the EPA.
“Our contention is any improvement in water quality is better than none at all,” Churchwell said. “Right now, it’s 100% or zero. You either clean it up 100% or you’re in violation of the Clean Water Act.”
Sens. Martin Heinrich, D-N.M., and James Risch, R-Idaho, are the lead sponsors of the bill. They are backed by a bipartisan coalition of co-sponsors, including Bennet and Sens. Ben Ray Luján, D-N.M., Steve Daines, R-Mont., Jon Tester, D-Mont., Mike Crapo, R-Idaho, and John Barrasso, R-Wyo.
Good Samaritan legislation for abandoned mines has been introduced in Congress for more than a decade, but has yet to gain traction.
Bennet has been involved in past efforts and has introduced the bill before, said Kate Oehl, a spokeswoman for Bennet.
According to a March 2020 report by the U.S. Government Accountability Office, there are more than 140,000 abandoned hardrock mine features like toxic waste piles or mine tunnels across the U.S. About 22,500 pose environmental risk.
Hardrock mines are where heavy metals like gold, copper and lead are extracted.
But according to the report, officials with federal land agencies such as the U.S. Forest Service estimated they could be missing another 390,000 features.
Abandoned mines can spew waste, but many of them never rise to the level of pollution of a Superfund site, which is the problem, Churchwell said.
“The only legal mechanism right now by which anybody can address one of these abandoned draining mines is through a Superfund action,” he said. “... Unfortunately, Superfund (designation) is not well-suited for the vast majority of the bleeding mines all over this country. Superfund is for the absolute worst case scenarios.”
In the Animas River watershed, there are about 180 draining mines, only 48 of which were included in the Bonita Peak Mining District, he said.
That leaves dozens of mines that do not qualify for Superfund designation, which prevents the remediation of those sites; the EPA does not have the legal authority to clean up sites that are not Superfund.
The Good Samaritan Remediation of Abandoned Hardrock Mines Act would begin to address those shortcomings.
“Superfund works at these really, really bad sites like in Bonita Peak,” Churchwell said. “But there are other sites in Bonita Peak that didn’t qualify as a Superfund site, and Good Samaritan (legislation) is intended to fill that void.”
ahannon@durangoherald.com
