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Passage of federal abandoned mine legislation likely faces uphill battle

Experts raise doubts over bill’s viability, but say it’s a step in the right direction
Water flowing down the mountainside out of the Red and Bonita Mine in 2014 contains high levels of manganese, zinc, copper, lead, cadmium, aluminum and iron that will make its way into Cement Creek, which flows into the Animas River. (Jerry McBride/Durango Herald file)

A group of bipartisan senators, including U.S. Sen. Michael Bennet, introduced legislation last month to make it easier for volunteers to clean up abandoned mines left to pollute rivers and streams. But similar bills have been introduced since 1999, often with bipartisan support, and none have crossed the finish line to be signed into law.

There are about 23,000 abandoned mines in Colorado, hundreds of which are likely polluting nearby watershed environments, according to the Colorado Division of Reclamation, Mining and Safety. Bureaucratic red tape often prevents volunteer organizations such as environmental nonprofits and mining companies from lending a hand.

At its core, the Good Samaritan Remediation of Abandoned Hardrock Mines Act would lower the jurisdictional and regulatory hurdles that can make cleanup projects too costly for volunteers to tackle. State Sen. Don Coram, a Montrose resident, said efforts to clean up uranium mines on his property a decade ago were stymied by a lawsuit from environmentalists.

“There was a lawsuit suing the Department of Energy that put the (effort) in limbo for like four to five years, so you know, had that not happened, we would probably have those completed by now,” Coram said.

Coram, who is running for Congress to defeat Rep. Lauren Boebert, said his experience with cleaning up mines informs his approach to mine cleanup, but he declined to provide specific policy proposals.

Doug Young, a policy expert who has worked on iterations of good Samaritan legislation for several decades, said lawsuits over cleanup efforts have been a major reason many volunteers avoid getting involved. Efforts to find funding and disagreements over what water-quality standards volunteer groups should be held to have also discouraged cleanup work and passage of good Samaritan legislation.

“There’s sort of a menu of topics that have been difficult for (stakeholders) to reach consensus around,” Young said.

Under the 1972 Clean Water Act, parties that assume responsibility for cleaning up an abandoned mine are also assigned legal and financial liability for any further pollution they might inadvertently cause during the remediation process. The act enables “citizen supervision,” allowing individuals to sue a good Samaritan party for violating federal water-quality standards.

“If you see somebody injured on the sidewalk, and they’re bleeding, and you’re not an EMT, and you try to help them, you’re not to be held to the standard of a doctor or a surgeon,” Young said. “That’s the same concept here (with good Samaritan legislation), where if you’re going to do this work, you’re going to improve things but you are not necessarily going to meet state water-quality standards.”

There are many reasons an organization might decide to clean up an abandoned mine. Environmental nonprofits may want to improve the quality of Colorado rivers, while mining companies may view remediation as a philanthropic way to fix legacy pollution issues caused by their industry, Young said.

The other primary issue that has stopped good Samaritan legislation in the past is funding. Billions in revenue would be needed to help pay for mine cleanup and regulatory oversight, which can make bills less politically palatable, Young said.

“My theory has been if you deal with the liability issues, you incentivize more of this work and then funding might flow from that, private funding or other; but you never know, that’s a big speculation on my part,” Young said.

Despite historical challenges that have faced similar legislation, the newest bill is different, said Jeff Graves, director of Colorado’s abandoned mine reclamation program. For one, the bill was introduced in the Senate with bipartisan support, whereas previous bills have primarily been introduced in the House, he said. The bill also proposes a seven-year pilot program, which narrows the scope of the legislation and might make it easier to pass.

Even so, passing the legislation is likely a low priority for a busy Senate, and “it would be a difficult lift,” Graves said. At the very least, the current bill may provide a convenient framework for a similar bill to be reintroduced in the next session of Congress, he said.

Bennet said he’ll look for any path forward in the Senate for his good Samaritan legislation. The thousands of abandoned mines scattered across Colorado and the West pose a threat to watersheds, he said in a prepared statement to The Durango Herald.

“It’s our responsibility to protect downstream communities by cleaning up these dangerous mines, and good Samaritan legislation is a central part of the solution,” he said. “We also need to reform our antiquated mining laws to ensure there is sufficient funding to get the job done as well as prevent future environmental effects.”

Ginny Brannon, director of the state Division of Reclamation, Mining and Safety, emphasized that though her agency supports good Samaritan legislation in concept, the sticking points always come down to the nitty-gritty details.

“One of the phrases we use here is there’s a graveyard of good Sam laws in D.C., and it will be really nice to see one survive,” she said.

Skye Witley, a senior at American University in Washington, D.C., is an intern for The Durango Herald and The Journal in Cortez. He can be reached at switley@durangoherald.com.

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