WESTERN SAN JUANS – A new policy issued by the Environmental Protection Agency last week aims to give Good Samaritans additional protections so they can help clean up the thousands of abandoned hardrock mine sites in Colorado and throughout the West.
But many potential Good Samaritans in the region say they aren’t entirely comfortable that the new policy provides the kind of legal protections they need when entering into clean-up projects.
“I think it is helpful. I know the EPA put a lot of effort into it and I’m glad that they did,” said Animas River Stakeholders Group co-director Peter Butler of Durango. “It helps define what the EPA can do, but it does not provide as much liability protection as we would like.”
The new initiative seeks to give Good Samaritans assurances they will be free from Clean Water Act liability if they undertake a project to improve water quality at an abandoned draining mine adit.
Specifically, the policy clarifies that Good Samaritan agreements with the EPA can include extended time periods that give Good Sams legal liability protection and that they are generally not responsible for obtaining a clean water permit during or after a successful clean-up.
“This new policy means that true Good Samaritans that are simply interested in cleaning up pollution that they are not responsible for can feel comfortable pursuing clean-up work in partnership with the EPA knowing that they will not incur legal responsibility for the site once they are done,” said Colorado Senator Mark Udall, the policy’s main champion, in a press conference last week.
Butler, however, spelled out three specific concerns he has with the new policy.
First, he said, the regulations merely provide guidance, and do not come down in the form of rules or statutes.
Second, there is not much in that guidance to help protect Good Samaritans from third party lawsuits stemming from the ‘citizen’s suit’ provision of the federal Clean Water Act. This provision says that if someone suspects a violation of the Clean Water Act, a citizen may begin a legal action and if successful, the defending party will have to pay all of the legal expenses of the citizen’s group. If they are unsuccessful, the defendant does not have recourse to counter-sue.
It’s the bugaboo that has always spooked potential Good Samaritans from taking action to directly treat point-source discharge at abandoned mines. Good Sams have walked away from many mine cleanup projects for fear that if they don’t bring the discharge water all the way up to CWA standards, they may be sued by a third-party citizen or even another environmental group.
Third, Butler said, under the new EPA guidelines, the main protection offered defines Good Samaritans as non-operators. “Not everyone will fit that criteria very well,” he said. “It may rule out all state agencies” from engaging in Good Samaritan clean-up projects.
In short, Butler said, the policy “is somewhat helpful but doesn’t solve the issue. It probably won’t make a difference.”
However, he allowed, ARSG works closely with Colorado’s Division of Reclamation, Mining and Safety on mine clean-up matters and is still waiting for state officials from that agency to weigh in the EPA memo.
In a press conference last week, Udall listed a number of abandoned mines that he thought would benefit from the new EPA guidance, including the notorious Red and Bonita mine near Silverton that gushes out hundreds of gallons per minute of heavy-metal laden water and has been used as a poster child for the Good Samaritan cause.
Butler said that most likely, it will take more than a Good Samaritan’s efforts to address the problems at the Red and Bonita and other orphaned mines in the polluted Upper Cement Creek drainage.
Current talks with a former mine operator in the area are veering toward a water treatment plant, “but there are still a lot of discussions and a lot of studies going on,” Butler said. “We will see by next summer if people are moving in that direction or not.”
Elizabeth Russell, a policy expert with Trout Unlimited, is also less than exuberant about the new EPA policy. TU issued a policy analysis earlier this week that spells out many concerns.
“Our general idea is that the policy could potentially give us the protection we need, but it would have to be the right site,” Russell said.
TU is currently in the process of evaluating potential sites where the policy could be tested. “In Colorado we don’t have anything that fits the bill,” she said. “It’s a great step forward. It’s not perfect for sure, but it raises other questions about what a land owner’s responsibility would be” after an outside Good Samaritan group has conducted a cleanup project.
Another issue not addressed in the new EPA policy is funding, Russell said. Private funders of Good Samaritan clean-up projects may still be exposed to legal liability, and there are currently no government grant sources available to address point-source discharge.
“It is definitely a great step forward, but we are not ready to go out the door,” she said of the policy. “We are not going to get legislation any time soon and this is better than nothing at this point, and that’s a good thing. I hope we can show that it’s workable and something we can use.”
The Uncompahgre Watershed Partnership, meanwhile, is still looking at three potential cleanup sites in the Red Mountain area including the Atlas Mill. None of these projects, however, involves direct treatment of polluted mine drainage, so the new EPA rules will not affect that group’s efforts in the short term.
“There is a lot of uncertainty still,” said UWP director Agnieszka Przeszlowska. “The main provision in the new policy is that if an entity takes on a mine reclamation project, ultimately they wouldn’t be held liable for the water quality results post-project, because they wouldn’t have to apply for discharge permit.”
“It’s something that still needs to be hashed out in the courts, whether or not the new policy provides reliable protection. But it seems like an advance to me,” UWP member and Good Samaritan expert Pat Willits added.
Udall himself has stressed there is still work to do on the matter. He and a handful of other legislators suggested a “procedural fix” to the Good Samaritan problem in a letter they sent to the EPA in February 2012, after years of failed attempts to get meaningful Good Samaritan legislation passed.
"I am glad the EPA has partnered with me to develop this policy, which will free up Good Samaritans – like Trout Unlimited, the Animas River Stakeholders Group and the Willow Creek Reclamation Committee – to help protect our streams, waterways and drinking supplies,” Udall said last week.
Samantha Wright at firstname.lastname@example.org or Tweet @iamsamwright