By William Simon
It may help to clarify some issues regarding the Environmental Protection Agency’s participation with the Animas River Stakeholders Group and that agency’s potential to put Upper Cement Creek on the National Priorities List under the Comprehensive Environmental Response, Compensation and Liabilities Act – aka Superfund.
The EPA has continuously and actively participated in the stakeholders group since its inception, as has the state of Colorado and the Bureau of Land Management. These agencies have authority to take Superfund “removal action,” but typically, it is the EPA that adds a site to the list.
Thus far, these agencies have used their removal authority to allow the stakeholders to accomplish numerous cleanups of historic mine sites that have led to significant improvements in water quality in Mineral Creek, the Upper Animas River above Silverton and, before 2005, the Animas below Silverton. These projects have been the result of collaboration between many federal, state and local agencies, mining corporations, citizen advocacy groups, landowners and concerned citizens who are voluntarily committing their resources to improve water quality and aquatic habitat by addressing “abandoned” mine sites.
When the stakeholders group formed in 1994, the Sunnyside Mine was an actively “permitted” mine and, as such, was considered to be adequately regulated and enforced by state and federal agencies. In late 1996, Sunnyside Gold and the state entered into a court “consent decree” that allowed Sunnyside to install numerous bulkheads throughout the mine to stop water discharges and to remediate several surface mine spoils. The intent was to reduce acid mine discharges to the point that it would no longer be necessary to operate the then-existing and expensive water treatment plant at Gladstone.
After all terms of the agreement had been met, Sunnyside Gold was released from the consent decree. Unfortunately, soon afterward, several nearby Cement Creek mines began discharging acid mine drainage that is believed to be a result of an increased water table throughout the mountain and a large mine pool captured by the bulkheads. The large amount of increased drainage from these other mines had not been anticipated. We now know water quality from these new or increased discharges have offset water quality improvements made earlier.
Beginning in 2005, the stakeholders group rigorously developed programs to monitor and characterize the sources of these discharges, to be able to design, engineer and estimate the construction, maintenance and operation of individual or combined treatment facilities.
As in the past, the stakeholders rely on scientific investigations performed by experts, including the U.S. Geological Survey, an independent agency lacking a potentially conflicting regulatory agenda. These endeavors have been supported financially and cooperatively by the Superfund authority agencies as well as other participants.
Sunnyside Gold and the EPA have developed reports on traditional treatment construction and operations and maintenance costs, and San Juan County has researched various ways to establish an operation authority for a treatment plant.
The stakeholders group and the BLM have bench tested and on-site pilot tested several new treatment methods. With funds provided by mining corporations, Trout Unlimited, the National Mining Association, the International Network for Acid Prevention and national consulting firms, the stakeholders sponsored a crowd sourcing challenge that searched for “out-of-the-box” innovative treatment methods, which was successful in providing potentially cost-saving solutions.
Still, the costs will be substantial – likely running into the tens of millions of dollars. Because inevitably the public will be picking up a substantial portion of the costs, through long-term operations and possibly unnecessary litigation (i.e. Superfund), the stakeholders group will likely remain committed to finding the most practical solutions by thoroughly investigating alternatives.
No agency has the funds, expertise or inclination to accomplish all that needs to be done, let alone the ability to attain consensus among stakeholders. At this time, the Superfund route would greatly inhibit such collaboration as it explores litigation of all potentially responsible parties.
Litigation of Sunnyside Gold will lead to abandonment of its willingness to participate. The company has currently offered up to $10 million toward treatment, which would instead be used for legal defense. Once hostile legal actions begin, the public is put at arm’s length, at best, because data and solution negotiations are often not open to public scrutiny.
Experience has shown the public will be allowed suggestions about issues openly aired, but final decisions will be made by the EPA. This inhibits the stakeholders’ consensus-driven, collaborative process that leads to local ownership and a sense of community stewardship for the resource. Because the Comprehensive Environmental Response, Compensation and Liabilities Act has not been reauthorized, the numerous listed sites are now dependent on congressional funding rather than the more lucrative surtax on the chemical industry.
With fewer federal funds to go around and the restriction that only the EPA can manage remedial action at a listed site, there is no guarantee and little likelihood that listing will result in a quicker or more cost-effective solution. Experience has shown that collaboration among the many stakeholders has resulted in hard fought, slow, but highly successful, projects.
That approach can maximize funds available for project planning, determination of cost-effective treatment and an equitable sharing of costs among stakeholders. Perhaps Superfund designation will be necessary in the future, but presently, it will only harm a proven method that is not broken and doesn’t need fixing.
William Simon was the coordinator and project manager for the Animas River Stakeholders Group from 1994 to 2010. He is currently retained by the group as a consultant and co-coordinator with Peter Butler and Steve Fearn.
