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Colorado official requests immunity for environmentalists cleaning up mines

Tipton wants law to provide flexibility
A heavy machine works, left, as wastewater flows down a trough, right, at the site of the blowout at the Gold King Mine outside Silverton on Aug. 13, 2015. It will take years, if not decades, and many millions of dollars to clean up and manage the toxic wastewater from this Colorado mine that unleashed a 100-mile-long torrent of heavy metals, affecting the livelihoods of residents in three states, according to some experts.

WASHINGTON – A Colorado Department of Natural Resources representative told Congress on Thursday that the federal government needs to grant immunity from liability to groups that try to clean up abandoned mines before their hazards can realistically be eliminated.

About 23,000 mines – many of them abandoned – dot Colorado’s landscape, said Jeff Graves, who oversees active and inactive mines for the Department of Natural Resources.

The chemical residue often left over from mining operations pollute the state’s rivers and streams, creating risks for wildlife and humans, he said.

He blamed the health hazards mostly on mining operations before environmental laws were enacted in the mid-to-late 20th century. The residue can leak into waterways for decades after the mines shut down.

State agencies and private organizations are concerned about cleaning up the pollutants because of risks of “long-term liability,” Graves said.

Graves was one of four witnesses at a hearing of a House Natural Resources subcommittee on energy and mineral resources. Congress solicited their opinions as it considers Good Samaritan legislation that would protect environmentalists who want to clean up mine residue from lawsuits or government fines.

“These liabilities deter motivated, well-intentioned volunteers from undertaking projects to clean up or improve abandoned sites, thereby prolonging the harm to the environment and to the health and welfare of our citizens,” Graves said in his testimony.

Much of the liability would come from the Clean Water Act and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, also known as the EPA Superfund.

Current federal laws make any company, individual, nonprofit group or government agency that does reclamation of an abandoned mine potentially liable for chemical discharges created by the original mining activity, some of which is more than a century old.

CERCLA’s “polluter pays” provisions were intended to remove the cost of environmental cleanup from the government and put it back on the people doing the polluting.

However, some congressmen from Colorado and elsewhere say it has backfired when it comes to abandoned mines.

Instead, CERCLA deters voluntarily remediation of abandoned mines and increases the burden on the government, according to its critics. In addition, CERCLA’s standardized rules ignore differences in geology, geography and mineral composition of hardrock mines.

Other potential liability for voluntary remediation of mines comes from the Clean Water Act’s provisions banning the discharge of contaminants into waterways from “point sources.”

Discharges from mines are considered “point sources” under the Clean Water Act. As a result, the mine cleanup would require permits. The law also could authorize private lawsuits against anyone doing the cleanup.

“Colorado believes the pursuit of Good Samaritan protections will be immensely helpful in our efforts to remediate the vast quantities of abandoned mine sites in our state,” Graves said.

The House Natural Resources Committee tried in 2016 to pass a similar law, called the Good Samaritan Cleanup of Orphan Mines Act. It was introduced by three members of the Colorado delegation to Congress.

One of them, Rep. Scott Tipton, R-Cortez, said during the hearing Thursday that he did not foresee a need for a massive overhaul of environmental law to remediate abandoned mines. Instead, he wants “to make sure it is flexible enough to address the challenges,” particularly in the Mountain West states, he said.

He mentioned the 2015 Gold King Mine wastewater spill near Silverton as an example of the hazards mines can create. EPA contractors accidentally damaged the plug holding contaminated water trapped in the mine.

About 3 million gallons of wastewater and tailings, which contained cadmium, lead, arsenic and other toxins, spilled into the Animas River watershed. Damage was estimated at $1.2 billion.

The spill resulted in “making the river flow gold,” Tipton said.

Rep. Doug Lamborn, R-Colorado Springs, asked whether private groups that remediate mines might be able to make money from the cleanup by processing the tailings.

Tailings refer to the residue from mining operations. They often contain valuable minerals such as gold or silver that miners discarded as they pursued more profitable sources of precious stones and minerals.

Chris Wood, president of the environmental group Trout Unlimited, agreed people or groups that remediate mines should be able to make a profit. He added that some of the money should be used to fund additional cleanup.

He also said mining does not need to cause pollution if the miners follow environmental regulations.

The regulations are enforced through the EPA, the Bureau of Land Management, the U.S. Forest Service and state agencies under a sometimes confusing mix of authorities. State officials have complained to Congress they lack the resources to remediate all of the nation’s abandoned mines, which are estimated as high as a half-million.

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