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Colorado’s Senatorial team thinks so. Formerly as a representative and now as a senator, Mark Udall has long pushed for good Samaritan legislation. Senator Michael Bennet has also thrown his weight behind Udall’s efforts. With opposition from all sides, these legislative attempts consistently fail in Congress. Some opponents say that such legislation would offer miners a chance to elude responsibility for cleanup, and others say that it could irrevocably damage and weaken the Clean Water Act.
Though Congress has failed to act, in December 2012 Udall’s persistence resulted in an EPA memo clarifying the agency’s position on good Samaritans. The memo seeks to better define the term “operator.” It intends to demonstrate that good Samaritans are non-operators of orphan mine sites, and thereby are exempted from NPDES permits and potential long-term liability.
Udall hails this clarification as a victory—yet good Samaritan groups are still not convinced of their immunity. In the ARSG’s published comments, the group recognizes that “Any treatment system for a draining mine will need maintenance,” and “It is hard to imagine that anyone doing maintenance at a site is not going to be considered an operator.” Even the EPA’s own FAQ page about the memo states that “The factors listed in this latest memorandum are not meant to be applied as if they were rules.”
Such fuzzy guidelines are as useful to the ARSG as half an umbrella. “Our feeling is, the EPA’s memorandum doesn’t really give full protection, because it’s guidance. It’s not regulation, it’s not legislation,” Peter Butler of the ARSG said in a phone interview. Agreements with regulatory agencies like the EPA can be undermined by citizen suits. A third-pary suit could force the EPA to issue NPDES permits to anyone who has, or ever has had, anything to do with treating or impacting environmental damage from a draining mine.
That doesn’t just mean the mining companies. It means anyone who actively attempted to reduce the pollution, too.
“We certainly appreciate the EPA’s efforts,” Butler said. But he questions how the EPA’s guidance would hold up in court. “It’s really going to take legislation. It would have to be on a Congressional level. That’s our thinking at this point.”
Even though its ability to address toxic runoff is stymied, the ARSG is not sitting on its collective haunches. “We’re still trying to figure out what the best option would be to deal with all those mines, regardless of what the liability issues are,” Butler said. “In a perfect world, what could [we] do, what would [we] do? Then we figure out how we can do it.”
The EPA is also keeping active. According to Butler, the EPA has opened up the Red and Bonita mine and will be contracting out the investigation of its insides. A better understanding of the mine could aid future cleanup strategies. Butler says the investigation is “a big deal, because it may be nobody’s been in there for a hundred years.”
While all this exploration and planning is underway, Cement Creek has one other possible hope that avoids Congressional legislation: waste removal actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). (Superfund falls under the CERCLA banner, but CERCLA removal actions are not Superfund actions.)
Removal actions protect the group in question from a third party lawsuit. However, they are typically for short-term hazard cleanup with a definite finish line. When the ARSG treats mine dumps, it works under CERCLA removal actions. Leaking mines are different. “In the case of treating a mine,” Butler pointed out, “you have a continuous removal action that goes on for years and years and years and years. Forever, basically.” So the begged question is: can a CERCLA removal action be long-term?
The Bureau of Land Management (BLM) seems to think so. BLM, as well as the EPA and the Forest Service, has CERCLA authority, and Butler knows of two smaller mine sites on BLM land that have passive treatment systems using CERCLA removal actions. So far, no one has challenged these actions.
If BLM can legitimately conduct removal actions on these smaller mines, they might also be able to apply their CERCLA authority to the American Tunnel, which is on BLM property. The other three leaking mines are on private land; however, “their discharge directly affects BLM property,” Butler said, so the bureau could “take [the treatment] on themselves if they wanted to. It’s really a question of where they want to put themselves.”
“At this point BLM has been reluctant to use that CERCLA removal action on private land,” Butler said. However, “People [would] feel more comfortable with a BLM CERCLA action on Cement Creek” than with Superfund.
Unfortunately, this isn’t the first time human activities have decimated a portion of the Animas. For much of the latter half of the twentieth century, fifty miles of the river south of Durango were a “biological desert.” These dead reaches owed their sorry state to radioactive and chemical waste from uranium milling. However, this earlier instance also provides hope. When the Durango mill stopped dumping waste and its riverside tailings were relocated to Bodo Canyon, the river started to recover, and fish repopulated the formerly dead stretch.
The solution for the upper Animas is more complex, because almost any course of action would be continuous. Still, some folks have organized under a common willingness to shoulder that load. But the risk of a third-party lawsuit forcing those groups to take on legal liability for as long as the pollution lasts—and considering how much metal-laden rock lives in the San Juan Mountains, it could outlast humanity—is too great for good Samaritans like the ARSG. The ultimate victim here is the river, and the ecosystem that depends on it.
The ARSG members’ dedication to their wider ecological community and to the tourism economy of tiny Silverton is admirable. Their stated fear, “that Superfund will lead to unwarranted actions, higher costs, litigation and the withholding of information, reduced property values and fewer opportunities for community self-determination,” is understandable. Yet even the group acknowledges Superfund’s superior resources. Federal money might not result in a quick or efficient cleanup, but it would achieve more results than the current stalemate.
Something has got to give if the Animas River is going to return to the health it had in 2004, never mind its pre-mining condition. The ARSG needs ironclad Congressional assurance that it cannot be sued for environmental malpractice for merely partially solving the watershed’s pollution. The BLM should look seriously at testing the waters of a continuous CERCLA removal action. If those hopes dry up, how long until the people along the upper Animas swallow their civic pride and allow Superfund to take over at the helm?
(CC feature image courtesy of Bill Dayton on Flickr)
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