It's a hardrock life

South of Ouray, Colorado, dozens of abandoned gold and silver mines litter the valley below Red Mountain’s pyrite-stained slopes. Tourists clog the pullouts of US 550, the highway running through the mineral-rich San Juan Mountains, to gawk at the weathered wooden head frame of the Yankee Girl mine and the eggshell tailing piles beneath it, or wander through decaying houses in the ghost town of Ironton.

But just down the valley, the not-so-scenic effects of the mines are visible in Red Mountain Creek, which runs orange and is devoid of life. The creek's woes are caused primarily by toxins and heavy metals that leach from mining waste, although naturally-occurring acid drainage from mineral-laden Red Mountain contributes as well. For years, environmental groups have wanted to clean up the creek, and the many other streams polluted by the nation’s estimated 160,000 abandoned hardrock mines, but the fear of getting sued has scared them away. Under the Clean Water Act, any party that tries to clean up a stream polluted by an old mine but doesn’t succeed in bringing it to minimum water quality standards could be held liable. Repeated attempts to amend the Act to shelter these groups from lawsuits have failed, and now lawmakers are taking a new approach: lobbying the Environmental Protection Agency to make the change internally.

“If we can’t make it perfect, we can’t do it at all,” Elizabeth Russell, a mine restoration project manager for Trout Unlimited told The Watch, a weekly newspaper covering the Ouray area.

That precedent was set in a 1994 court case, Committee to Save the Mokelumne River vs. East Bay Municipal Utility District, when the nonprofit group sued the East Bay water authority for discharging acid mine drainage into California’s Mokelumne River without a Clean Water Act permit. The court ruled in the nonprofit’s favor, finding that any discharge of pollutants from a point source—even though in this case the point source was a dam built to impound the toxic mine waste—required a permit.

Ironically, this lawsuit, brought by an environmental group, has been the barrier to cleaning up polluted waterways around the country ever since. To address this problem, lawmakers—mostly from Colorado—have introduced 10-plus bills over the past 18 years to allow groups like Trout Unlimited to clean up water polluted by abandoned mines without the fear of being sued, but every effort has died in Congress.

Some bills were opposed by environmental groups like Earthjustice, which viewed proposed Good Samaritan policies as a quick fix to a problem that mining companies should be held responsible for. Others worried that any amendment to the Clean Water Act would open the door to a complete gutting of the law’s protections. And still others criticized bills that would have allowed mining companies acting as Good Sams to re-mine the site if they discovered ore during the clean-up process, or dig through tailings piles for anything of value. “All of this could legally proceed without a single environmental protection in place,” worried Heather Hansen at the Red Lodge Clearinghouse, an environmental resource center affiliated with The University of Colorado’s law school. “So-called Good Sams could then conceivably leave a mineland in worse shape than they found it.” (full disclosure: Heather Hansen is an occasional contributor to High Country News Range blog.)

There have been minor improvements over the years, like a 2007 EPA initiative that provides some protection to Good Sams under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). But only indirect water quality improvements are covered, said Lynn Padgett, a Ouray county commissioner and environmental consultant who has lobbied for Good Sam legislation.

Under the current law, pollution controls can’t, ironically, remove pollution from the water. Groups can re-route streams around tailings piles to prevent acid and heavy metals from leaching into waterways, but they couldn’t, say, add a basic compound to reduce the acidity of the water flowing through the tailings. “The trick is, you can’t actually touch the water itself,” Padgett said.

What’s more, the 2007 CERCLA initiative only affords third-parties legal protection during the clean-up, not afterwards. Sen. Mark Udall, D-Colo., who introduced a failed 2009 Good Sam bill, is hoping to change that. But instead of going back to Congress again, he’s trying something different.

In June 2011 and February 2012, Senators Barbara Boxer, D-Calif., Michael Bennet, D-Colo., and Udall co-authored letters to EPA Administrator Lisa Jackson asking the agency to reassure Good Sams that they won’t be sued over the long-term or immediate effects of mine clean-up efforts.

“We believe that there is flexibility under current law to help incentivize cleanups at abandoned hardrock mines,” they wrote in February. “We ask EPA to provide clarity to those qualified non-governmental organizations, while continuing to ensure that responsible parties are held liable for the harmful environmental legacy at abandoned mines.”

In response to the request, the EPA is drafting a guidance, a policy change that is less forceful than a new regulation but easier to get through, that will address Good Sam’s legal concerns. The guidance is expected soon, but Sen. Udall’s office wasn’t sure when it would come out or how it would read.

While Sen. Udall is encouraged by the move, the first progress on the problem since the 2007 CERCLA initiative, he’s under no illusion it will solve the problem entirely.

“Even once EPA (issues a guidance), we will still benefit from additional measures that enable Good Samaritan cleanups,” he wrote in an email, like funneling more money into abandoned mine remediation or passing a law—assuming anyone has the stomach to try that again.

Emily Guerin is an intern at High Country News.

Photo of Red Mountain and Yankee Girl Mine tailings pile courtesy United States Geological Survey.

Hipstamatic photo of Red Mountain Creek courtesy Flickr user Purblind.