WESTERN SAN JUANS – 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.
There are currently more than 160,000 abandoned hardrock mines in the U.S., which potentially contribute high amounts of toxic metals into waterways. Certain provisions in the federal Clean Water Act prevent the mines and their related water quality issues from being addressed through active or passive remediation. As a result, a fear of liability often deters cleanup efforts because the water quality may not be brought back to Clean Water Act standards.
Good Samaritans, defined as third-party groups that have no connection to or responsibility for the activities resulting in the pollution, have had to walk away from mine cleanup projects, fearing they may be sued by a third-party citizen or environmental group if the resulting water quality does not meet EPA standards.
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.”
Here in southwestern Colorado, resolutions supporting Good Samaritan policy have been approved in Ouray, San Miguel and La Plata counties with commissioners from each of those counties sponsoring a National Association of Counties resolution (policy statement). With support garnered for the NACo resolution from Nevada counties, the resolution has been submitted to NACo for possible adoption at its March legislative conference.
“We absolutely need this,” said San Miguel County Commissioner Art Goodtimes. “What happens at a lot of these old mining sites, the companies are all gone and then a community group wants to clean it up, yet they are responsible for the damage. It’s a very unusual situation.”
For Padgett, the Good Samaritan liability issue could be solved in one of two ways. She believes it could go the route of a piece of legislation where a bill is introduced to resolve the liability issue or it can be solved administratively within the EPA.
“The can do an internal review and find out if they have the authority to change their policy,” she said.
While he agrees in theory that a Good Samaritan policy must be passed, Peter Butler, a member of the Silverton-based Animas River Stakeholders Group’s coordinating steering committee, believes the liability issue must be resolved legislatively.
“This is really important,” said Butler, who has been working on the issue for over 12 years. “Without it, essentially people are unwilling to do work on undrained mines without some kind of liability protection. Personally, I don’t think there is an administrative solution. The issue revolves around getting sued by a third party. I don’t think you can reduce that exposure without legislation. Part of the issue is that we haven’t gotten other states involved in the past. Trying to get other congressional delegations is really the key.”
With support of local governments, a long list of supporters in Colorado, and support from Nevada’s county officials, perhaps this will be the year the issue is resolved. Padgett is on her way to Washington, D.C. next week to see that the NACo resolution is adopted and will then bring a list of supporters to Capitol Hill, particularly to get support from U.S. Rep. Scott Tipton (R-Colo.).
“We think that after a 20 year conversation, this is just essential,” Padgett said. “This is a win-win-win-win.”
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