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.

High Country News Classifieds
  • CLEAN ENERGY PROGRAM ATTORNEY, NEVADA
    Position Summary: Western Resource Advocates (WRA) is seeking a Staff Attorney who is passionate about Western communities and the protection of the natural environment to...
  • EXECUTIVE DIRECTOR
    Deschutes River Conservancy in Bend, Oregon
  • WATER POLICY ANALYST WITH WRA (BOULDER)
    Position Summary: Western Resource Advocates seeks a passionate Water Policy Analyst with knowledge of western water issues to join our Healthy Rivers Team to strengthen...
  • GILA NATIONAL FOREST
    9+ acre inholding. Passive solar strawbale off the grid and next to the Continental Divide Trail in ponderosa pine/doug fir forest at 7400.
  • HIRING BEARS EARS EDUCATION CENTER DIRECTOR
    Conservation nonprofit Friends of Cedar Mesa in Bluff, Utah is hiring an Education Center Director to oversee the operation of the Bears Ears Education Center....
  • PROGRAM MANAGER, SUSTAINING FLOWS
    Friends of the Verde River, Cottonwood, AZ. Apply at https://verderiver.org/employment-opportunities/
  • PROGRAM ASSOCIATE - VERDE RIVER EXCHANGE
    Verde River Exchange - Friends of the Verde River, Cottonwood, AZ. Apply at https://verderiver.org/employment-opportunities/
  • CODE COMPLIANCE OFFICER
    Teton County Planning & Building is hiring! Our ideal candidate is a team-player, a problem-solver, pays attention to detail, and can clearly communicate technical material...
  • ARCHITECTURE DRAFTSPERSON/PROJECT MANAGER
    Studio Architects is seeking a full time Architectural drafts-person/project manager with1-3 years of experience to join our firm. At Studio Architects our mission is to...
  • ASSISTANT MANAGER/TRAINEE, COLORADO RANCH
    needed for 16,000+ acre conservation property in south central Colorado. Qualified candidate would have experience working on a ranch or wilderness property, general forestry/fire management...
  • FARM HAND &/OR NANNY IN ESCALANTE
    Nanny for 18-mnth-old. Yearly salary, vacation, health insurance. Spanish/other foreign-language native spkr prefrrd.
  • EXECUTIVE DIRECTOR
    Washington Association of Land Trusts seeks an ED to build on WALTs significant success & to lead the association to new levels of achievement. See...
  • BEAUTIFUL CUSTOM STRAWBALE HOME IN WESTERN COLORADO!
    Secluded, energy efficient Southwestern home on 40 wooded acres. Broker - Rand Porter - United Country Real Colorado Properties. 970-261-1248, $425K
  • FORMER RETREAT CENTER/CONSERVATION PROPERTY FOR SALE
    57 acres in Skull Valley, AZ, 17 miles from Prescott, year-round creek, swimming holes, secluded canyon, hiking/meditation trails, oaks, pines, garden, greenhouse. House, office building,...
  • ARIZONA PUBLIC LANDS ORGANIZER
    Title: Public Lands Organizer About the Arizona Wildlife Federation (AWF) The AWF is a non-profit organization dedicated to educating, inspiring, and assisting individuals and organizations...
  • HISTORIC RANCH HOME W/ 20 ACRES
    Historic 1893 Ranch Headquarters. 4 Bdrm, 3.5 Ba, 4000 ft2. Remodeled 2002. Includes 2 studio apts, stables, arena, workshop, 5 RV hookups. Chirachua & Peloncillo...
  • VICE PRESIDENT OF RETAIL OPERATIONS
    The Vice President of Retail Operations will provide overall leadership and accountability for purchasing, product development, merchandising planning, visual merchandising, retail operational excellence, oversight and...
  • ASSOCIATE DIRECTOR
    Grand Staircase Escalante Partners seeks an experienced fundraiser with excellent communication and organizational skills.
  • PROGRAM MANAGER
    position in Phoenix with the Babbitt Center for Land and Water Policy.
  • ROADS END CABIN NEAR YELLOWSTONE
    Vaulted ceilings, two fireplaces, two bedrooms, loft, jetted tub, wifi. Forest, mountain views. Wildlife. [email protected]