Category: S. 1777: Good Samaritan Cleanup of Abandoned Hardrock Mines Act of 2009

Uncompahgre River Watershed: ‘Good Samaritan’ clean up of Red Mountain Creek in the offing?

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From The Telluride Watch (Samantha Wright):

The Uncompahgre Watershed Partnership, a grassroots coalition of citizens, nonprofits, local and regional governments, and federal and state agencies dedicated to understanding the Uncompahgre Watershed, would like to do something about this caustic problem child. Red Mountain Creek is, after all, a tributary of the Uncompahgre River, and one of the main reasons why the southernmost portion of the river is deemed “impaired” – or, as some would say, dead, because it cannot support aquatic life.

The coalition has recently identified its top priority as improving water quality so as to remove impaired segments of the Uncompahgre River from the State of Colorado’s list of impaired streams.

Thus, Przeszlowska is watching with interest current efforts headed up by U.S. Senator Mark Udall (D-Colo.) to find a way to allow so-called Good Samaritans (ranging from individuals to citizen groups like UWP to governmental and nongovernmental agencies) to take on projects to improve water quality in areas where there are abandoned mines, without fear of incurring liability under the Clean Water Act.

Reclamation experts have found plenty of ways to shore up leaky old mines and reduce acid mine drainage flowing into impaired watersheds. These range from simple fixes, like reducing the amount of water entering into the mine by building plugs or diverting the water around old workings, to treating drainage with settling ponds, wetlands, limestone drains, or some other form of passive or active treatment.

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…

Fed up with past efforts, Udall is now taking a new approach. He believes that updating, or even simply clarifying, Environmental Protection Agency policy may accomplish pretty much the same thing as legislation in terms of affording legal protection to Good Samaritans.

The agency already has some existing guidance that encourages potential Good Samaritans to enter into voluntary agreements with EPA or federal land management agencies that helps to facilitate certain kinds of Good Samaritan cleanups.

As they stand, these protections are considered good enough protection for Good Samaritans to undertake reclamation projects that do not include direct attempts to improve water quality beyond, for example, rerouting a stream so it does not flow through a mining waste dump, or preventing water from flowing into old mine workings.

More water pollution coverage here.

Should there be a Clean Water Act exemption for ‘Good Samaritan’ efforts at cleaning up abandoned mines?

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The idea is catching on in some circles. Here’s a report from Gus Jarvis writing for The Telluride Watch. From the article:

After nearly 20 years of inaction, the creation of a Good Samaritan policy with regard to the cleanup of abandoned mine drainage flows has gained broad support across the West. There is now hope that it might gain traction with federal legislators and policy makers in Washington, D.C…

According to Ouray County Commissioner Lynn Padgett, the liability issue for Good Samaritans working on draining mines goes all the way back to 1994, when the EPA determined that draining mines are point source discharges and require National Pollution Discharge Elimination System permits.

All too often, no viable financially responsible party exists for the abandoned mines. While the water quality in the vicinity of the mine continues to be impaired, no one can be held responsible for cleaning it up. Good Samaritans, be it state or federal agencies, watershed groups, environmental groups, or mining companies, often have programs in place to implement a mine cleanup but the liability issue prevents them from going forward with the cleanup.

“This is something people have been asking for 20 some years,” Padgett said in an interview on Tuesday. “There are some examples in Colorado of filtration systems that have been built but not turned on because of the liability piece. I think there has to be a common sense answer here.”

U.S. Senators Barbara Boxer (D-Calif.), Mark Udall (D-Colo.) and Michael Bennet (D-Colo.) have addressed the issue with the EPA, asking it to use its authority to create a Good Samaritan policy that would allow them to improve water quality without fear of liability or citizen lawsuits under the Clean Water Act. Udall has been in favor of a Good Samaritan policy during his tenure in the Senate and has continued to push the idea. In 2009, Udall introduced the Good Samaritan Cleanup of Abandoned Hardrock Mines Act, which has not yet passed. Last month, after writing a letter to the EPA, Udall again took the issue to the Senate floor to gain support from his colleagues.

“Good Samaritans are too valuable of a resource to keep on the sidelines,” Udall said on Feb. 14. “Congress should do what is necessary to bring their efforts to bear on the cleanup of abandoned mine pollution…Good Samaritans can’t solve all of our abandoned mine pollution problems, but we can’t afford to turn away those willing to help any longer.”

More water pollution coverage here. More Good Samaritan coverage here and here.

Restoration: Hope Mine biochar application has yielded surprising results

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From the Colorado Independent (Troy Hooper):

What was once a wasteland of arsenic, cadmium, lead and zinc on a steep mountainside that abuts Castle Creek is now a haven for natural grasses and wildflowers that have stabilized the slope and drastically reduced the risk of the heavy metals crashing into the city’s main water supply.

The striking change of scenery around Hope Mine is the result of the first whole-scale reclamation project ever attempted in the United States, and possibly the world, using biochar — a type of charcoal produced through the thermal treatment of organic material in an oxygen-limited environment.

how aggressive the regrowth was,” said John Bennett, executive director of For The Forest, which teamed up with Carbondale-based Flux Farm Foundation at the request of the U.S. Forest Service, which is exploring new ways to partner with private groups to reclaim landscapes. “We did not expect waist-high grass in the very first summer. We thought it would take longer.”

Not only is biochar restoring the ecology and containing the mine tailings that fan down toward Castle Creek but experts say it is also immobilizing the heavy metals long enough so that they naturally degrade and it is sequestering carbon that would otherwise escape into the earth’s atmosphere.

Click through for the rest of the article and the cool before and after photos.

More coverage from Chadwick Bowman writing for The Aspen Times. From the article:

“This project is going better than I would have dared hoped,” John Bennett, executive director of For the Forest, an Aspen-based nonprofit focused on forest health, said Thursday during a press conference at the site.

The reclamation of the slope, south of Aspen in the Castle Creek Valley, became more pressing when it was discovered that very low levels if toxic metals had been sliding into the creek, a source of Aspen’s drinking water.

Even though the levels of toxins were minute, the reclamation plan was intended to prevent a potential landslide on a mine tailings pile — debris left from mineral extraction — that could add poisons into the creek.

“The Forest Service turned us on to the project because it’s their land,” said Kate Holstein, program director of For the Forest. “They told us there is a situation where this big slope is continually eroding into Castle Creek. … If a large erosion were to occur where the whole slope slid into the creek, it could be catastrophic.”

Holstein said such a landslide could shut down the Castle Creek water source potentially for years…

Forty-two test plots were laid out at the site; each contains different variations of biochar mixed with soil and seeds, as well as control plots that contain no biochar. Williams said there are significant differences between the plots, and that biochar is making growth happen.

More restoration coverage here.

Congressional mining reform legislation update

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From the Associated Press via the San Jose Mercury News:

Among proposals to reform the 1872 Mining Law are plans to implement royalties on mining profits for the first time and reclamation fees for cleaning up abandoned mines. Interior Secretary Ken Salazar had testified to a Senate committee in July 2009 that he wanted reform that protects mining, protects the environment and provides for the cleanup of such mines. Sen. Jeff Bingaman, the New Mexico Democrat who chairs the Senate Energy and Natural Resources Committee, is shepherding the broadest plan, which calls for an adjusted 2 percent to 5 percent royalty after transportation and processing costs are taken out. It also gives the Interior Department more discretion on environmental matters and calls for the money raised under the bill to be used for reclaiming abandoned mine lands. The proposal has the support of a number of conservation groups, including the Washington D.C.-based Earthworks. Cathy Carlson, an adviser to Earthworks, said Bingaman told conservationists who recently met with him that he hoped to move the bill out of committee in April…

Republican Reps. Doug Lamborn, of Colorado, and Rob Bishop, of Utah, have introduced a good Samaritan bill that allows mining companies and nonprofit organizations to clean up old mines without liability for old environmental damage. Bills introduced by Sen. Dianne Feinstein, D-Calif., and Sen. Mark Udall, D-Colo., also focus on abandoned mine provisions. Carlson said Udall’s bill, which reduces cleanup liability under the Clean Water Act, has “broad support.”[…]

Lamborn and Bishop’s proposal calls for a 2 percent net proceeds royalty on new mines on public land, an approach that leaders of the National Mining Association believe is a better fit with mining industry interests. Eklund-Brown said she emphasized in NBC interview yet to air that any royalty must be industry-specific and not compared with those paid by industries such as oil and gas.

More General Mining Act of 1872 coverage here, S.1777 coverage here, S.787 coverage here and S.796 coverage here.

S. 1777: Good Samaritan Cleanup of Abandoned Hardrock Mines Act of 2009

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This video about Good Samaritan cleanups has been making the rounds in the blogosphere. Click through and watch it. It takes about 6 minutes.

More S. 1777 coverage here.

ASARCO parent Grupo Mexico ponies up $1.79 billion for mining cleanup

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From the Environmental News Service:

ASARCO LLC is a mining, smelting, and refining company based in Tucson, Arizona that mines and processes primarily copper. Parent corporation Grupo Mexico is providing the $1.79 billion to resolve the ASARCO’s environmental liabilities from operations that contaminated land, water and wildlife resources on federal, state, tribal and private land in 19 states. “Through this historic settlement, the American public is compensated for the damage and loss of natural resources resulting from ASARCO’s past mining, smelting and refining operations,” said Secretary of the Interior Ken Salazar. “Were it not for this agreement, these injured resources would either remain impaired for future generations or require taxpayer expenditures to achieve environmental restoration.” The money from environmental settlements in the bankruptcy will be used to pay for past and future costs incurred by federal and state agencies at the more than 80 sites contaminated by mining operations in 19 states, said federal officials…

The contaminated Superfund sites are in Arizona, Alabama, Arkansas, California, Colorado, Idaho, Illinois, Indiana, Kansas, Missouri, Montana, Nebraska, New Jersey, New Mexico, Ohio, Oklahoma, Texas, Utah, and Washington.

More superfund coverage here.

Uncompahgre River: ‘Examining Abandoned Mine Lands in the Uncompahgre Watershed’ December 11

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From The Telluride Watch (Gus Jarvis):

The Uncompahgre Watershed Planning Partnership will be hosting a daylong workshop titled “Examining Abandoned Mine Lands in the Uncompahgre Watershed” on Friday, Dec. 11 from 9:30 a.m. to 3:30 p.m. at the Ouray Community Center. Various representatives from state and local organizations will be attending the workshop, which will focus on reclamation activities and abandoned mine lands in the upper Uncompahgre watershed. The workshop’s organizer, Andrew Madison, who is an AmeriCorps VISTA (Volunteers in Service to America) volunteer working in Ridgway to develop a mine reclamation strategy for abandoned mine lands in the watershed, said that while there has already been a lot of mine reclamation work completed in the area, the work has just begun…

The Uncompahgre Watershed Planning Partnership is a volunteer group seeking to involve citizens and organizations in the Uncompahgre watershed. Its mission is to protect and restore water quality in the Uncompahgre River through coordinated community and agency efforts. “I am really looking forward to the workshop,” Madison said. “I have had a great response so far and I am looking forward to getting people to talk to each other on these issues.” For more information about “Examining Abandoned Mine Lands in the Uncompahgre Watershed” contact Madison at 413/297-7232 or at ridgway.vista@gmail.com.

More Uncompahgre River watershed coverage here and here.

S.1777 and S.796: What do the bills mean for acid mine drainage cleanup efforts?

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From the Colorado Independent (Katie Redding):

…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…

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.”[…]

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.

More S.1777 coverage here and S.796 coverage here.

S.B. 1777: Good Samaritan Cleanup of Abandoned Hardrock Mines Act of 2009

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From the Colorado Independent (Katie Redding):

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 expects the committee will hear the bill by spring…

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 extract minerals for commercial use 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…

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…

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.

More S.B. 1777 coverage here.

S.B. 1777: Good Samaritan Cleanup of Abandoned Hardrock Mines Act of 2009

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From The Pueblo Chieftain (Matt Hildner):

“What my proposal has this time is the advantage of simplicity,” Udall said during a Wednesday press call. The bill would deal only with water pollution, unlike past measures that included waivers to other environmental laws, he said…

The measure would amend the Clean Water Act and create a permitting program for groups that can produce a cleanup plan.

Any mine owners responsible for polluting sites would not be eligible to apply for a permit. Nor would sites currently involved in Superfund cleanup be eligible.

More coverage from the Colorado Independent (Katie Redding). From the article:

This will be the 11th piece of Good Samaritan legislation introduced in Congress in the last 15 years. Despite the support of many of those living near the mines, cleanup groups, as well as the Western Governors’ Association, all previous bills have been defeated. The most vocal opponents of the legislation have often been major environmental groups, who worry that such bills weaken environmental legislation…

The Good Samaritan Cleanup of Abandoned Hardrock Mines Act of 2009 would introduce a “Good Samaritan permit” for those cleaning up abandoned mines they had no part in creating. The Good Samaritan permit would protect such groups from Clean Water Act liability.

“This is an elegant and common sense solution to one of the biggest obstacles Good Samaritans face when they want to get these abandoned mines cleaned up,” Udall said. “There are several groups in Colorado who care about their communities and want to protect them and who are ready to go as soon as we have legislation to help them get started. I’m dying to turn them loose so they can get to work.”

To apply for the permit, applicants would submit a clean-up plan to the U.S. Environmental Protection Agency. If their application is approved, Good Samaritans could then clean up waterways without incurring liability under the Clean Water Act.

More coverage from the Cortez Journal (Joe Hanel):

Colorado has 23,000 abandoned mines – far more than the state government can afford to clean up. But private organizations like the Animas River Stakeholders Group can do little to help, because under the current law, they would take all legal liability for the abandoned mine. “Any time you get your hands wet, you’ve triggered the Clean Water Act and Clean Water Act liability issues,” said Udall, D-Colo. His solution is Senate Bill 1777, which he introduced Tuesday. It would shield “Good Samaritans” from lawsuits under the Clean Water Act…

Elizabeth Russell of Trout Unlimited agreed. Her group reluctantly supported earlier Good Samaritan bills, but it is firmly behind Udall’s latest bill. “It would make a big, big difference in our state,” said Russell, manager for Trout Unlimited’s abandoned mine project in Colorado…

Groups in Durango, Leadville and Keystone have been blocked from cleaning up mines because of their fear of legal liability, Udall said. “I have a great deal of trust in these citizens who have seen the damage done to water quality and fisheries,” Udall said. “I’m dying to turn these groups lose.”

S. 1777 has been assigned to the Senate Committee on Environment and Public Works.

More good samaritan coverage here.