| Across the West, thousands
of old mine sites continue to leach toxic heavy metals
into streams and other waterways, while environmentalists,
agency officials and just about everyone else does little
more than put up fences and "keep out" signs.
How is it that these sites continue to
pollute? With water so valuable in the region that cities
are willing to put farmers and ranchers out of business
for it; companies are figuring out how to pump it hundreds
of miles, over watershed divides, for growing communities;
and conservationists are paying top dollar to leave
it where it is, you'd think someone would be after every
last drop of the stuff.
They are, but a funny little paradox has
kept the lid on efforts to clean up the dirty water.
The Federal Water Control Pollution Act, also known as the Clean Water Act, was written in 1972 to protect the nation's water from industrial pollution. That act contains a provision that says any entity that wants to discharge or affect the discharge of any pollutant into a waterway must acquire a permit. That permit comes bound with a liability clause saying that the holder of the permit is responsible for ensuring the water meets Clean Water Act standards.
This permit system was meant to tie polluters to the responsibility of mitigation: if you take on this situation, you are responsible for leaving it cleaned up. For the most part, the system has worked quite well. But where it fails is with abandoned mines that leach heavy metals into streams and other waterways.
Past skeletons
Once upon a time, when the West was not yet a region
and barely a territory, packs of hardscrabble men (and
a few similar women) roamed the vast open landscapes
in search of valuable minerals. Many traveled by foot
or horse with little more than a handful of picks and
shovels. The land was harsh, big, dry, dangerous and
theirs for the taking. Stake a claim; find some gold
or silver; carry it back to town and make a profit.
Railroads, cities, homesteads and timber operations followed from there. While the gippo mining operations continued, many grew more sophisticated, employing steam and gravity powered machines to rip apart the earth and dig out the minerals. When miners were finished with an area, they simply packed up and moved onto the next area.
As the West became settled, it wasn't
so big any more. The skeletons of past mining operations
began to reappear, along with a host of associated problems,
perhaps the most important being a loss of water quality.
Today, an estimated 500,000 abandoned mines are scattered around the nation. Almost 40,000 are on national forest land. Colorado alone has about 17,000. Arizona may have as many as 100,000. One estimate says that 40 percent of all headwaters streams in the West are affected in some way by acid mine drainage. Another estimate says that 2,000 miles of streams in Montana are negatively affected by mining waste.
Most of these mines are from a bygone era, where few records were kept. The responsible parties in many cases are dead, out of business, or lost great-grandchildren. In other words, there is no "responsible party."
States, counties and environmental groups are chomping at the bit to be "Good Samaritans" and clean up those mines, but to do so would mean acquiring a permit under the Clean Water Act. Liability concerns have left them standing behind the fences.
Fixing the problems
About 12 years ago, the idea of "Good Samaritan" legislation was introduced, which allows third parties to tackle mine reclamation projects for which there was no identifiable responsible party, with many of the liability issues under the Clean Water Act waived. During the past few years, the national conservation group Trout Unlimited (PDF), several Colorado environmental groups and the Western Governors' Association have spearheaded that push. In many cases, the Environmental Protection Agency has provided assistance in developing programs and legislation.
Currently, there are four bills in front of Congress that address "Good Samaritan" legislation: one introduced by Sen. James Inhofe, R-Okla., and supported by the Bush administration; another by Senators Ken Salazar, D-Colo., and Wayne Allard, R-Colo., and two more, (sometimes considered one) by Rep. Mark Udall, D-Colo.
Inhofe's bill has attracted the most attention, because of its support by the Bush administration. Environmentalists' opinions about the bill are mixed. Many are glad to see the legislation, but feel this one, and the Salazar-Allard version, are too lenient with liability waivers.
According to the environmental group Earthworks, formerly the Mineral Policy Center, these two bills waive up to eight environmental laws — too many for some environmentalists to support — and don't provide any baseline criteria that defines what is meant by "cleaned up". The other issue with the bills, some say, is that they provide no funding source.
"The biggest problems with the
legislation," said Rob Roberts, Western Field Coordinator
for TU who specializes in abandoned mine reclamation,
"is that they waive more environmental laws than we
need and don't provide any funding — they're not
really addressing the concerns that need to be addressed."
Testifying in front of the U.S. Senate's Committee on Environment and Public Works, Terry Harwood, a former official with the United States Department of Agriculture's Hazardous Materials Policy Council and a retired engineer for the Forest Service, said, "One of my major concerns is while attempting to deal with alleged impediments to voluntary action, we hide from public discussion and consideration the really important issue, the lack of adequate funding and commitment by government and industry."
Mining for money
Rough estimates to clean up all of the abandoned hardrock
mines in the country range from $32 billion to $72 billion,
and as of now, there is no single, secure source of
funding. The coal industry is required to pay into a
national fund, under the
Surface Mine Control and Reclamation Act (SMACRA),
which funds coal mine reclamation projects. Much of
that money stays in the East, where coal mining has
been more prevalent and a bigger environmental problem.
Some money does go toward efforts in a few western states.
But the hardrock mining industry has no such fund.
Some have proposed remining – a process by which mining companies re-enter a mine and, using the latest technology and tools, remine an area and, in some cases, its tailings piles, spending a portion of that revenue to fund reclamation. The idea is that the mine will eventually be cleaned, but the risk to water quality is greater than if the mine were just cleaned. The Western Governors Association does not support remining, and Montana law currently doesn't allow it.
Bonnie Gestring, of the Missoula office of Earthworks, says her organization supports Udall's bill because it provides a means for funding projects. This bill, she says, puts the funding onus back on hardrock mining companies, requiring them to pay into a fund, similar to what the coal industry does. Nevada already has a similar mine reclamation fund. That bill would bring millions back to states, with amounts based on current mining activity.
In the meantime
Congress seems fairly preoccupied now with a summer recess, the war and upcoming mid-term elections. It may be some time before the "Good Samaritan" bills are addressed. States, too, are working on their own solutions, both legislative and programmatic. But with state Legislatures off for another four months, nothing new is likely to happen in that regard until the new year.
In the meantime, citizen groups and state and federal agencies are working together to clean up what messes they can, working around the current lack of legislation. The EPA also offers several routes for third-party, volunteerism work.
"There are other things that can be done with existing laws," said Carol Russell, an abandoned mine reclamation expert with the EPA. Russell noted that several provisions within the "Good Samaritan Initiative" allow third parties to clean up many abandoned mines, such as an "administrative order on consent," which Trout Unlimited used on the American Fork project, detailed in the sidebar.
Still, none address Clean Water Act liabilities. As for the mines that continue to violate Clean Water Act provisions, don't fall under Superfund legislation and don't have a clear responsible party, "they're basically left alone," Russell said.
Read more on projects in the accompanying sidebar.
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