New Federal EPA policy works to shield “Good Samaritan” mine cleanups from Clean Water Act liability

The US EPA recently released new guidance for organizations and individuals working to clean up abandoned mines.  This is a big step forward in addressing the liability obstacles to abandoned mine cleanup.  Click here to read the official EPA Memorandum, or read an article from the Denver Post, below.


EPA, Sen. Udall launch push to clean up West’s toxic mines

By Bruce Finley
The Denver Post


A snow-covered tailings heap on Boreas Pass leaks toxic cadmium and zinc, deadly for fish, into creeks that flow down through Breckenridge and, eventually, into Denver’s Dillon Reservoir.

This mining mess from a century ago sat largely ignored until Friday, when national, state and local authorities trudged in and eyed it as a potential demonstration project to jumpstart cleanups of thousands of festering mines around Colorado and the West.

A recent tweak in federal environmental policy — done after years of prodding by U.S. Sen. Mark Udall — aims to break a legal impasse that for decades has let widespread contamination of watersheds continue.

There are more than 100,000 old mines around the West poisoning headwaters of 40 percent of rivers. In Colorado, trickles and seeps from 7,300 mines have tainted 1,300 miles of streams.

“What is at risk, if we don’t clean up these abandoned mines, is our clean water, our clean air, our wildlife, our recreation economy and our very way of life,” Udall said, standing near where cadmium and zinc levels last year were measured many times higher than the state limits.

“We’re going to go to work. I predict we’re going to see projects all over this state, from the Red and Bonita Mine above Silverton to Willow Creek near Creede, to the Pennsylvania Mine, to the Tiger Mine near Leadville,” he said.

For years, community groups and owners of old mine sites dared not embark on cleanups, saying they feared legal liability for miners’ messes.

2007 memo tried to partially shield good-Samaritan cleanup groups, but it was insufficient to spur action. Congress has refused to tackle the problem head-on with legislation, despite efforts by Udall and others.

But now, the new EPA policy says good Samaritans no longer need to obtain federal permits to do cleanups and offers “an extended understanding” from the EPA that groups will not be liable under the Clean Water Act. Only “operators” are to be deemed liable, where they can be located, and groups without ownership or legal access to land are excluded from the operator category.

That change “is going to make a big difference in our ability to partner with a lot of you in doing this work,” EPA Regional Administrator Jim Martin told Summit County leaders Friday.

If cleanups are done in cooperation with the EPA and local governments, “We can protect them from liability under the Clean Water Act and clean up some of these sites, or at least make real progress and end up with cleaner water and recreation opportunities,” Martin said. “We’re talking to everyone and anyone we can to try to find partners for some demonstration projects.”

State attorneys were reviewing the implications because stakes are high if, as a cleanup is launched, toxic runoff gets worse.

“We see this as a positive step intended to give nongovernmental organizations and private parties more comfort to take on projects,” said Loretta Pineda, director of reclamation, mining and safety for the state. Colorado officials “continue to explore how state and local government might participate under this guidance.”

Martin said he hopes there will not be a court challenge.

“But if there is,” he said, “we think the tools we unveiled … provide protection for genuine good Samaritans from that kind of liability.”
The Colorado Department of Public Health and Environment will help fund efforts to address mine pollution, teaming with state mining technicians “to get to the point where we are shovel-ready,” said CDPHE water-quality division chief Steve Gunderson. Funding may enable projects “to put blocks in mines, if the geology is right, so the water doesn’t flow out.”

Conservationists are mobilizing.

Trout Unlimited added staff to help scope out potential cleanups for funding, said Elizabeth Russell, manager of TU’s mine-cleanup work.

“We definitely have some reservations and questions, but we think this needs to be tried,” Russell said. “It could mean more fish. In some places, it will mean fish, period.”

Owners of mine sites still may be liable if cleanups are launched and something goes wrong or cleanup requires treating toxic water — which can cost millions of dollars a year.

For example, state records list Transamerica Realty Services Inc. as the owner of the Iron Springs Mill site where Udall and others met Friday morning.

Summit County officials and town leaders have worked locally for years to improve landscapes around dozens of abandoned mines in the area. They have engaged Transamerica, proposing cleanup help and possible purchase of the site as county open space.

Transamerica officials repeatedly asked, “How do we avoid being financially responsible forever for some sort of cleanup?” said Brian Lorch, county director of open space.

The contamination of waterways can be dramatic.

A few years ago, Breckenridge residents watched toxic heavy metals turn the Blue River orange as it flowed through town parks. (Dilution of water in Dillon Reservoir ensures that Denver’s drinking water is safe.)

The policy change in Washington, D.C., has raised hopes, Lorch said.

“Whether it’s a game-changer,” he said, “we don’t know.”

Bruce Finley: 303-954-1700, or