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.

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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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