The video was created by Biscuit Boy Productions and Tom Schillaci, a member of the Animas River Stakeholders Group–in support of Senator Mark Udall’s recently-introduced Good Samaritan legislation.

One of the best moments in the video is an explanation of how impractical it would be to put in treatment plants at the base of Colorado’s many remote abandoned mines:

Voice over: Under section 402 of the Clean Water Act, draining mines are considered to be point sources for pollution, which require an NPDES (National Pollutant Discharge Elimination System) permit for any remediation projects.

Peter Butler, Animas River Stakeholders Group: And for the most part what that means is that for a draining mine, you have to have an active treatment plant. It’s just like a treatment plant that an industrial complex might have or a municipality might have, like a sewer plant. It’s the same kind of thing.
Well, in many places where you have these abandoned mines, you can’t do that. You can’t put that treatment plant in there. There’s no space. There’s no power. Often road access is pretty minimal, especially in the winter. You can’t get to it. And it just doesn’t make a lot of sense to put a treatment plant in there.

(Cut to topographical map of mountainside, with spot halfway up a steep slope circled.)

Unfortunately, if somebody does some kind of clean up on that draining mine, for example, they might put in a limestone drain just to raise the pH, which might drop out some of the heavy metals. You’re improving the water quality in the stream, but it’s not up to Clean Water Act standards.

A regulator might not necessarily want to regulate that and require that you have a point-source permit. But you could have a citizen suit which would force the regulator to issue a point-source permit.

Watch the video here:

Got a tip? Freelance story pitch? Send us an e-mail. Follow The Colorado Independent on Twitter.

Abandoned mine works above Gamble Gulch (Video still: Kimo; YouTube)

A design for a proposed cleanup project has been completed, but the state won’t bid it out because officials worry that if it does, it open itself up, in perpetuity, to a lawsuit under the Clean Water Act.

Poisoned Gamble Gulch — and likewise toxic waterways around the state and country — are at the center of a legislative tug of war.

So-called Good Samaritan laws seek to lift liability so clean-up work can begin. Those laws, however, are opposed by environmentalists who argue they might erode the strong federal Clean Water Act. The better approach, they say, is to make mining companies pay to properly clean up the messes they have made and are making by revamping the nation’s 1872 Mining Law, which has let the extraction industry off the hook for more than a century.

Two bills presently before Congress suggest the best option might be an all-of-the-above approach. Colorado U.S. Sen. Mark Udall has placed himself at the heart of the battle by introducing new Good Samaritan legislation that he hopes will win over traditional opponents.

It’s not about Boy Scouts; it’s about money

The fear of being sued is not the main reason rivers and streams are not being cleaned, D.C.-based Clean Water Network’s Natalie Roy told The Colorado Independent in October. Roy said that concern is mostly a distraction.

“Good Samaritans — whether the state, a mining company or the Boy Scouts — being fearful they cannot clean a site up to the levels required in the Clean Water Act is disingenuous,” Roy said. “Getting sued isn’t the issue, money is the issue. The government is not allocating the funds necessary to clean up the sites and is hoping to have other people — new mining companies interested in re-mining or other organizations — pay for the cleanup, [meaning] cleanup not up to CWA standards.”

Proponents of Udall’s Good Samaritan legislation, however, argue that the legislation is not meant to substitute for the new 1872 Mining Law reform bill introduced in the U.S. Senate by fellow Democrat Jeff Bingaman of New Mexico, a bill that would at last set up severance taxes to pay for cleanups. Good Sam legislation, they argue, is a necessary corollary to Bingaman’s legislation.

“You need all the pieces,” said Peter Butler of the Animas River Stakeholders Group. “Even if you did set up a fund with severance taxes, you’ve got to have someone who is going to use that money, and they’re not willing to use it if they’re going to be liable.”

Udall’s bill, which he introduced in October, is the most recent version of Good Samaritan legislation. Indeed, it is the 11th piece of Good Samaritan legislation to be introduced in the last 15 years. 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.

Ironicaly, opposition has come from both major environmental groups, which worry mostly that extraction companies could abuse the law, as well as from the mining industry, which has lobbied for larger loopholes.

Gambling on the state’s Gamble Gulches

Meantime, versions of the story of Gamble Gulch are playing out across Colorado, according to the DRMS, which in June produced a list of 10 high-priority sites ready to be remediated if Good Samaritan legislation were passed. The DRMS works with local watersheds to remediate mines in Colorado, providing technical assistance and funding.

DRMS Abandoned Mine Program Manager Loretta Pineda said fear of legal liability is real and a major stopping point in clean up projects. Pineda said the state is stymied by fear of incurring the Clean Water Act financial burdens that currently faces any third party that would take it upon itself to drain an abandoned mine.

“There are several projects we’d like to work on, but we’re unable to do so because of liability,” said Pineda flatly.

In the Animas River Watershed, the Animas River Stakeholders Group has determined that of the 1,500 historic mine sites contributing cadmium, copper, aluminum, manganese, zinc, lead and iron to the watershed, about 34 waste sites contribute roughly 90 percent of the waste-site pollution, and about 33 draining mines contribute 90 percent of the draining-mine pollution.

Bill Simon, a member of the group, explained that the group can address the waste sites without incurring liability, because no water is involved. But work on most of the 33 draining mines  — apart from 5 addressed by a mining company and several that are on federal land — await some kind of liability waiver, said Simon. Even if the group had funding, neither the Animas River Stakeholders Group nor any other agency is willing to risk being sued for a problem not of their making, according to Simon.

“No one is willing to take the liability on,” he said.

Moreover, Simon actually argued that if the group had liability relief to allow a project to go forward, it might have a better chance of tapping into funding sources.

“If we had the liability relief, then we could generate the money,” said Simon. “Not enough, I don’t mean that. But we could start addressing some of the projects.”

Steering away from the most critical projects

According to Butler, some Good Samaritan groups have been willing to remediate mines when and where they’ve been able to get any environmental groups likely to sue on board with the project.

But he worries that such a strategy is a risky proposition.

“The problem is,” said Butler, “you don’t know where those lawsuits might come from.”

And Butler says such suits do happen — pointing to two such cases this year. In January, environmental organizations initiated two citizen suits under the Clean Water Act in West Virginia, alleging that the agency was violating the Clean Water Act by not obtaining a discharge permit (which would require it to treat the water to the standards of the Clean Water Act) for its clean-up of an abandoned mine. The state lost the case.

Meanwhile, in Oregon, an environmental group sued the U.S. Forest Service for not obtaining a discharge permit for remediation work it was doing on its land. The environmental group lost, explained Butler, but largely because it sued while the work was in progress, and CERCLA law has very narrow rules under which a lawsuit can be filed while such work is in progress.

Currently, say proponents, the available reclamation money available isn’t always going to the most critical projects — because even the federal government is often reluctant to clean up the worst draining mines in a watershed, if it doesn’t already have liability for those mines.

“We’ve tried to push [the federal government] a little bit to try to spend money on sites that are affecting Forest Service and BLM land but are on private land, and they’re not that interested — because they feel they’re taking on more liability,” Butler said.

For example, as part of the American Recovery and Reinvestment Act, the federal government pledged nearly $100 million to clean up abandoned mines, including 14 in Colorado, according to Cathy Carlson, policy advisor for Earthworks.

But all of that money went to mines on public lands, where the federal government already has liability, regardless of whether or not the publicly-owned mines were the worst-polluting mines in a watershed.

Got a tip? Freelance story pitch? Send us an e-mail. Follow The Colorado Independent on Twitter.

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 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.

Got a tip? Freelance story pitch? Send us an e-mail. Follow The Colorado Independent on Twitter.