Water Quality, Abandoned Mine Cleanup and Liability: Help Wanted!

Thanks to Terry Seyden for finding this.. I saw it in the Denver Post, I think, Sunday but didn’t get around to posting.

This is a serious environmental problem and perhaps “Something We Can All Agree On” as you can see, with an obvious solution. What I don’t get from this story, is “who could possibly be against it?” and “why on earth hasn’t the legislation passed?”. If anyone out there knows, please share…

Colorado mining authorities have dug through a mountainside and reopened the dark granite shaft of an abandoned mine that turned deadly – trying to find options for dealing with one of the West’s worst environmental problems.
The Pennsylvania Mine, perched above timberline, discharges an acidic orange stream moving 181 pounds per day of toxic metals into Peru Creek and the Snake River, which flow into Denver Water’s Dillon Reservoir.
The poisoning of the watershed has gone on for more than 60 years.
Yet state officials say the risk of lawsuits prevents cleanup of this mine and thousands of other abandoned mines that have impaired 1,300 miles of Colorado streams and, according to federal estimates, the headwaters of 40 percent of Western rivers.
Today’s digging reflects growing frustration. Colorado county governments recently resolved to lobby for congressional action as water quality and healthy mountain fisheries are increasingly important to the Western economy.
“The idea is to just get ourselves in there and see what the remedy might be,” said Bruce Stover, director of Colorado’s Office of Active and Inactive Mines, who was peering into the Penn Mine last week.
Orange slime – containing iron, cadmium, aluminum, mercury, zinc and lead – coats the walls of the mine 4 inches thick. The U.S. Forest Service and the Environmental Protection Agency paid for the use of heavy machinery to dig through 200 feet of collapsed mountainside to open the mine shaft.
Stover and contract workers are trying to unravel an underground spaghetti of side tunnels and fissures. If the main shaft were plugged, would toxic water back up inside the mine, where it could be neutralized? Or would the mine drain through other openings and spew toxic metals at multiple points across fragile tundra? That information could help determine how a cleanup could be done most efficiently.
But, for years, congressional leaders have refused to address the problem of legal liability at abandoned mines – despite repeated efforts by U.S. Sens. Michael Bennet and Mark Udall, both Colorado Democrats.
The EPA’s current interpretation of the Clean Water Act says “good Samaritans” and state governments embarking on projects to reduce the contamination of watersheds could be held liable for costs of full-scale cleanups costing millions of dollars a year to treat toxic water forever. This has prevented partial cleanups that, while not stopping all pollution, could improve water downstream.
“What we need in Colorado and across the country is federal legislation that enables the state and other parties to take smart and affordable steps at these sites,” said Loretta Pineda, state director of reclamation, mining and safety. “Right now, under the language of the Clean Water Act, we cannot take those steps without risking enormous financial liability.”
At the Penn Mine over the past year, state inspectors measured a boggling array of toxic metals discharged into Peru Creek. They counted 186 pounds of cadmium, 4,496 pounds of copper, 21,529 pounds of manganese, 21 pounds of lead and 39,896 pounds of zinc. These metals have left Peru Creek and much of the Snake River devoid of aquatic life.

This is what one person thought the reasons were: fear of environmentalist lawsuits.. and pushback by environmentalists.. could that possibly be true? And if so, what groups, and could they possibly be influenced?

From the Telluride Watch here:

But certain provisions in the federal Clean Water Act create major stumbling blocks to such efforts. The Clean Water Act likes big, perfect fixes – like permanent water treatment pants that cost millions to build and millions more annually to operate, and which convert toxic water into potable stuff that fish can cruise around in.

So-called Good Samaritans have had to walk away from more modest mine cleanup projects for fear that if they don’t bring the discharge water all the way up to CWA standards, they may be sued by a third-party citizen or even another environmental group.

Pat Willits, the executive director of the Ridgway-based Trust for Land Restoration, which helps communities deal with a myriad of issues related to abandoned mining, explains the liability problem like this: “Good Samaritans are spooked by the ‘citizen suit’ provision of the Clean Water Act, which says that if someone suspects a violation of the Clean Water Act, a citizen may begin a legal action and if successful, the defending party will have to pay all of the legal expenses of the citizen’s group. If they are unsuccessful, the defendant does not have recourse to countersue.”[…]

Two decades’ worth of efforts to shield would-be Good Samaritans legislatively by creating a new provision in the Clean Water Act (including, most recently, U.S. Senator Mark Udall’s Good Samaritan Cleanup of Abandoned Hardrock Mines Act of 2009), have floundered in Congress, due to fears from environmentalists about opening up the Clean Water Act, even for such benign and altruistic purposes as protecting Good Samaritans…

Additional note: the GMUG National Forest was recognized for its leadership in the Abandoned Mines program at the 2012 Regional Forester’s Honor Awards.

Here’s the write-up.

For demonstrated sustained superior eff ort or action.
GMUG Abandoned Mines Lands Program
Over the last fi ve years the Grand Mesa, Uncompahgre and Gunnison National Forests (GMUG) have successfully obtained funding for Environmental Compliance and Protection (ECAP) and Abandoned Mine
Lands (AML) Programs. The Forest is recognized as highly effective, knowledgeable and accomplished
in project work and has leveraged funding through partnerships and potentially responsible parties to
have a implemented a 5-year mine reclamation/restoration program of over $8.4 million dollars. As a
program leader in the Region, these accomplishments and the expertise aff orded on the Forest are worthy of Regional Forester special recognition.

Here’s the link to the Regional Forester Honor Awards. If you run into folks from the GMUG, you might want to say “thank you” or “we heard about the great work you’re doing.”

9 thoughts on “Water Quality, Abandoned Mine Cleanup and Liability: Help Wanted!”

  1. This has been and is an issue in other states with a legacy of hard rock mining like CO and MT and in the East with coal mining like PA. The opposition comes from environmental groups who fear a weakening of Superfund liabiloity provisions. The CU Center for the American West did an excellent study on the issue and Prof. Patty Limerick testified in 2006 on the issue for “good Samaritan” clean up of abandoned mines. An example of the perfect getting in the way of the good. http://centerwest.org/projects/mining/

    • Rebecca, thank you for the excellent and well-written testimony.

      I find it fascinating that our elected officials are stopped from doing something sensible by apparently unseen forces.

      Are there any records of who opposes it and why? From the organizations who are worried about something?

      Just from my simple, dirt-kickin’ Forest Service retiree perspective, the public should be able to openly see what the issues and fears of the people who don’t like it are, and then we can jointly craft something to move us forward.

      If Professor Limerick wrote this in 2006, we seem to be stuck in a policy quagmire, which I find unacceptable for something where there is so much support.

  2. “who could possibly be against it?”

    “This is what one person thought the reasons were: fear of environmentalist lawsuits.. and pushback by environmentalists..”

    These are important questions to answer — prior — to making another post openly and speculatively vilifying environmental groups for what they might do.

    So, who IS this “one person”? Where’s the evidence upon which her/his “fear” is based?

    Most importantly, since addressing the problem (toxic effluent) cannot be adequately addressed without understanding the cause of the problem, why isn’t the “fear” of predatory corporate practices aided and abetted by an absence of governmental accountability the focus of this issue here? This is but one of many instances of how profits get privatized and costs get socialized. We can bet the perpetrators will never see jail time.

    Are we to passively accept this outrageous lack of accountability as “just how things are”? The similarities between this, Deepwater Horizon, Exxon Valdez, and countless other regulatory failures leading to environmental disasters and the environmental disasters leading up to the collapse of the Soviet Union are most striking.

    Even with the storied record — 57 official posts officially tagged “litigation” this year alone on NCFP– I’m struck by the lengths to which you’ll go to demonize citizen responses to an utterly dysfunctional regulatory system borne of agency capture and federal mining legislation that is celebrating its 120th anniversary this year.

    Why is the focus here on the clauses in the Clean Water Act and not the clauses and revisions to the 1892 Mining Act? What of Regulatory Capture, the neoliberal machinations which have eviscerated funding for regulatory functions resulting in a corporate takeover and outsourcing of those governmental functions?

    The tags which you have assigned to this post (“21st Century Problems, Water”) reveal a great deal of how such framing leads to Steve Rayner’s thesis of “Uncomfortable Knowledge”, in which he identifies “four implicit strategies which institutions use to keep uncomfortable knowledge at bay: denial, dismissal, diversion and displacement.”

    Unfortunately, this phenomenon is not just a 21st Century problem, nor will the problem be solved by willful dismissal of agency capture and regulatory failure while employing the speculative and baseless diversion of how we are going to solve these persistent problems. The solutions will not be found in oversimplifying why a suit is brought to court, and vilifying and fear mongering against citizen activists.

    This constitutes Rayner’s “Diversion”: by focusing the issue upon the problem of someone’s speculative fear of environmental litigants. It will surely maintain the status quo of governmental corruption and dysfunction, while greatly enabling the neoliberal agenda.

    • David- I don’t know about the evidence. But read what Professor Limerick wrote in the testimony that Rebecca posted above.. Professor Limerick does not work for an agency, so she is not “captured”..

      Could it be that it is uncomfortable knowledge for you that we are all captured not only by corporate interests but by unelected interest groups that may not have our own best interests at heart? Regardless of who provides the financial support to them; foundations or …?

      Are these groups, in fact, accountable for their actions of keeping people from cleaning up poisoned streams? Who would be holding them accountable, and how? Should we figure out who they are and attempt to do so?

      • “Could it be that it is uncomfortable knowledge for you that we are all captured not only by corporate interests but by unelected interest groups that may not have our own best interests at heart?”

        Clearly, we occupy opposite ends of the political spectrum, however, this should not be confused or conflated with your misunderstanding of our political system.

        Your grievances are with the structural foundation of our constitutional republic, the separation of powers, and the rights of citizens and (unelected) corporations alike, to demand our government follow duly established laws voted upon by duly-elected representatives of the people. Remedial courses in government and the rights of the citizenry could be helpful in your misunderstanding of these basic premises.

        “Are these groups, in fact, accountable for their actions of keeping people from cleaning up poisoned streams? Who would be holding them accountable, and how? Should we figure out who they are and attempt to do so?”

        Hopefully, comment #8 will make clear where I see the greatest threat, in considerable contrast to (apparently) where you see the greatest threat.

        My uncomfortable knowledge arises from an understanding of what Benito Mussolini had to say (pertinent to the dominant trends of this New Century of Forest Planning’s collaborationism and corporate partnering):

        “Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power”
        ― Benito Mussolini

  3. I was in coal country in southern Ohio last summer and saw some of the acid mine drainage reclamation work being done on National Forest lands. The coal mines had been long closed down, and dated from the late 19th to early twentieth century. They were not doing a total cleanup of the acid mine drainage, but were doing the best they could with the funds available. Some of the practices included; constructing settling ponds, and adding limestone to the drainages to neutralize the acidity. They had been making progress as one of my “tour guides” noticed a fish in the creek , and said that 10 years ago there were no fish there. It was far from pristine water but had improved. I think it would be unrealistic and impractical to do a total cleanup due to the expense. Putting the blame on a company from a 100 years ago that is long defunct is one thing, but they are not going to get any funds or fines from a company that doesn’t exist. Doing the best they can with the funding available and continuing to make improvements makes sense to me.

  4. Here is a link to the EarthWorks site on the issue and explaining why they favor a limited liability waiver (no private clean-ups and no remining) and instead more Federal funding for abandoned mine clean-ups. http://responsiblegold.com/AMLBills.cfm EarthWorks and the National Mining Associatin also testified at the 2006 hearing, as did EPA. The 2006 Hearing Report has all the testimony and is a fair representation of the issues and interests that have thus far prevented much in the way of abandoned mine clean up. That said, as noted above, there have been some good volunteer efforts in WVA and PA that have worked with VOA volunteers and others to begin to clean up some mine sites. Inspirational work making a difference on the ground and in the rivers.

  5. Thanks Rebecca! I will spend more time on this and report back – maybe the folks on this blog can bring their creative juices and we can think up a clever way to get everyone supporting something that helps our good folks move forward.

  6. Thanks to Rebecca for providing an explanation and a link to Professor Patty Limerick’s 2006 testimony in support of (then Senator, now DOI Secretary) Ken Salazar’s “ Good Samaritan Clean Watersheds Act. (S. 1848).

    Thanks also, for providing the link to testimony by Lauren Pagel, Policy Director of EarthWorks, who pointed out Salazar’s “Good Samaritan” legislation consisted of a “laundry list of blanket exemptions from our nation’s most important environmental laws” which, “would effectively create a new mining regulatory program with few environmental controls, and would not produce much restoration activity at abandoned sites around the West.”

    This helps shed light on Sharon’s fascination around how, “our elected officials are stopped from doing something sensible by apparently unseen forces.” Those unseen forces, were not so much EarthWorks, but rather Salazar’s fellow members of Congress who understood Salazar’s legislation could not be easily defended in front of constituents back home perhaps.

    This “laundry list” corroborates and further illuminates the mechanism of agency capture to which I’ve previously referred. It also helps illuminate how a colloquial phrase like Good Samaritan, with well-reasoned, well-established law in other areas of public interest had been co-opted by Salazar and others for the purposes of eliminating corporate accountability by seeking to eliminate the environmental regulations those corporations are supposedly regulated by.

    There is hardly any clearer demonstration of Salazar’s interests in rewarding his principal constituency — by providing the mining industry’s laundry list of deregulatory desires. Salazar falling just short of having been caught literally, in bed with the mining industry, but was certainly caught neatly folding their bedsheets. Nonetheless, Salazar’s MMS staff were caught in bed with the oil industry they were supposed to be regulating — and that occurred on Salazar’s watch as DOI Secretary.

    Before I go any farther, I would like to say I have been a Good Samaritan more than once in my life and take seriously the duty to administering first aid in any form to any desperate condition. There are countless groups and individuals also at the ready to do such honorable things. But over time, the chronically desperate are by definition beyond receiving the standard level of care known as first aid. More importantly, over time the chronic condition of desperate victims requires intervention on the level of causation of the desperate condition. Otherwise, an essential rule to first aid becomes meaningless: that rule is “prevent further harm.”

    Let’s be clear what the harm is here. It is chronic, and represents over 550,000 abandoned mines with a persistent toxic legacy which affects, “according to Environmental Protection Agency, at least 40 percent of the stream reaches in the headwaters of western watersheds…” The issue is clearly, the Clean Water Act is not being enforced, and the violations which occurred previous to its passage have been willfully ignored by our government.

    Originally, the parable of the Good Samaritan was about a crime victim who was beaten and robbed and left near death in a ditch. After a priest and others consciously ignored and walked around the victim, the Good Samaritan saved the victim’s life and provided for his further care. Almost all of us have heard or can recount from personal experience, just such an example of criminality or life threatening injury occurring in public while passersby pretended to ignore — or worse, just stood there staring while a person slowly died or was being criminally accosted.

    Indeed, most citizens expect their government and/or society to save their lives, and protect their best interests, health and safety. Good Samaritans, according to the parable, were celebrated because they helped strangers in need with no expectation of a profit incentive, a reward, or other opportunistic motive for self-enrichment. This is not the case with Salazar’s notion of a Good Samaritan Law.

    Let’s be clear on this: “Good Samaritan laws are laws or acts in some cases obliging people to give reasonable assistance to those who are injured, ill, in peril, or otherwise incapacitated (duty to rescue), and in all cases protecting people who do so against legal action. The protection is intended to reduce bystanders’ hesitation to assist, for fear of being sued or prosecuted for unintentional injury or wrongful death.” (Wiki)

    Salazar’s Good Samaritans however, are an entirely different breed which can include the corporate criminal class — the class from which the original perpetrators of the environmental crimes arose. Yes, AND there are Good Samaritans who have genuine interests in remediating the damages of environmental crimes — but largely, because their government refuses.

    Because of this refusal by government to defend the best interests, health and safety of its citizens, many members of the public have abandoned the expectation of either governmental or corporate accountability.

    In the absence of accountability, many members of the public have embraced the free market notion that “market based solutions” will actually serve as a cure to our multitudinous societal and environmental crimes.

    The perpetrators and disseminators of these crimes are now being nominated by some members of the public to fulfill the role of the (new) “Good Samaritans”. This, however, is the essence of Disaster Capitalism — a book by journalist and author Naomi Kline, who documented Milton Friedman’s radical economic theories known as free market fundamentalism and the neoliberal strategy. That strategy being, there’s as much or more profits to be taken from creating and or capitalizing upon an environmental disaster as there are profits to be taken from supposedly fixing the environmental disaster.

    Professor Limerick’s free market rhetoric in her testimony is diagnostic: “Mining companies, after all, know how to work the sites. Government processes, on the other hand, do not enjoy a reputation for efficiency.”

    Professor Limerick’s Conclusion to her testimony:

    “I urge you to work toward the passage of a simple, restricted bill to allow Good Samaritans the ability to conduct mine cleanups without fear of Clean Water Act liability. We need to remain vigilant in ensuring that current mining operations would not conduct new mining activity under relaxed regulatory standards, but we feel that such a risk is acceptable next to the potential environmental benefits produced by such a law.”

    That’s right, Professor Limerick said, “we feel that such a risk is acceptable.”

    It is not immediately clear who the “we” is, but it’s safe to assume she speaks for the proponents of the neoliberal agenda — and that agenda being to deregulate environmental laws, accept the defunding of governmental regulatory agencies, and outsource those governmental functions to corporate interests in the name of “efficiency.”

    When remediation of our disastrous externalities become a profit taking opportunity, we can be assured there will be no incentive to meaningfully address the causes of the disasters. Or put another way, when the “fear of Clean Water Act liability” eclipses the fear of an unaccountable corporatocracy, no amount of Good Samaritans can save us.

    There is of course, no moral to this story (nor rational basis), because there is no morality or logic in the reasoning.


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