1. Citizens Superfund Workgroup
Understanding the Laws and Regulations Dictating Mine Remediation
2011 TU photo contest
October 25, 2017

2. Ty Churchwell San Juan Mountains Coordinator Durango, CO
or x 11

3. Disclaimer:
Discussions about laws and policies can be challenging, confusing and overwhelming
I am not an attorney!
We have numerous people in the room who are
This information is shared to give a simple overview and in a manner the average non-lawyer can hopefully understand
We’ll have ample time at the end of the presentation for Q&A.

4. Purpose of Presentation
Overview: Further describe the problem of acid mine drainage in the Animas and the laws that govern cleanups
Provide a summary of federal and state laws and policies as tools to assist our workgroup’s effort to create ‘Citizen Goals’ for the BPMD
To understand how these laws set-up the framework for the cleanup of the upper Animas
Outline where we are in the current Superfund process
Review other tools that are not currently available

5. Two Types of Mining Pollution = Different Cleanup Laws
Non-Point-Source
Waste rock pile
No defined point of pollutant release
State & NGOs allowed to perform currently
Point-Source
Draining mine adit
Precise point of pollutant release
States & NGOs disallowed to perform currently
Good Sam needed here

6. The crux of our problem in the Animas basin
Thanks to the work of Peter and the Animas River Stakeholders Group - in collaboration with state and federal agencies and stakeholders - dozens of non-point-source cleanups (waste rock piles) have been performed near Silverton
This leaves mostly draining mines (point-source)
The Clean Water Act calls out point-source differently than waste rock
POINT SOURCE
Where AMD discharges directly from a mine adit
This is considered industrial pollution – not ‘soil runoff’
The Clean Water Act requires:
Operator must obtain a pollution discharge permit
AMD must be treated before discharged
Must meet high EPA standard for discharge
Permit and treatment must be maintained as long as pollution source continues to discharge
If pollution source stops, discharge permit may be discontinued
In most cases, a draining mine will never stop discharging!!! *

7. General Mining Act of 1872 – Where it began
Enacted after the Civil War by President Grant
Authorizes and governs prospecting and mining in U.S.
for economic minerals: gold, platinum, and silver
Other minerals such as copper, iron etc.
on federal public lands
fixed the maximum size of lode claims as 1500 feet long and 600 feet wide
Claims could be patented – makes them private property (much the same as the ‘Homestead Act”)
Did NOT establish a royalty system – only extractive industry that doesn't pay a royalty to US citizens for extraction of public resource
Did NOT include bonding or reclamation

8. Mining is our heritage BUT, impacts are still felt today!!
Established the towns we live in
Encouraged the expansion of the west
Fueled the industrial revolution
Built warships and planes for WWI & II
Responsible for the D&SNGRR
BUT, impacts are still felt today!!

9. Clean Water Act (1972)
Prompted by the Cuyahoga River fire in Ohio, and other environmental disasters
Prior to the CWA, industry could dump waste directly into a river without permit, treatment or standards
To make the waters of the U.S. swimmable and fishable
Established the National Pollutant Discharge Elimination System (NPDES)
Permit system
Set standards for discharge

10. Colorado Mined Lands Reclamation Act (1976)
State law primarily enforced by the CO Dept. of Reclamation, Mining and Safety (DRMS)
It took 100+ years for mining to become regulated
MLRA instituted mining and reclamation standards and regulations for NON-coal operations
Created a ‘Mined Land Reclamation Board’ to oversee
Required to file mining & reclamation permits
Post a reclamation bond to guarantee reclamation

11. Resource Conservation and Recovery Act (1976)
Principal federal law governing the disposal of solid and hazardous waste
Protec human health and the environment from the potential hazards of waste disposal
“Cradle to Grave” concept
Directs EPA to establish controls on the management of hazardous wastes from their point of generation, through their transportation and treatment, storage and/or disposal
stringent recordkeeping and reporting requirements on generators, transporters, and operators of treatment, storage and disposal facilities handling hazardous waste.

12. CERCLA – The “Superfund” Law (1980)
Comprehensive Environmental Response, Compensation & Liability Act
The law that created the “Superfund”
“Polluter Pays” principle (PRP)
Intended for emergency responses and long-term cleanups at toxic spills, industrial and waste sites with high human health risks
Originally funded by tax on the petro-chemical industry
Superfund taxes expired in 1995
It is only funded now by Congressional appropriations with taxpayer money

13. CERCLA Cont. Two types of actions: Short-term removal action:
where actions may be taken to address releases or threatened releases requiring prompt response
Gold King spill response is a removal action
Long-term remedial actions:
permanently and significantly reduce the dangers associated with releases (or threats of releases) of hazardous substances that are serious, but not immediately life threatening
These actions can be conducted only at sites listed on EPA's National Priorities List (NPL)
Establishment of a permanent treatment facility in Gladstone would be remedial action

14. CERCLA Cont. Also used at mining sites – Examples: Butte, MT
Leadville, CO
Summitville, CO
Gives the EPA the authority to assume a site
Gives the authority for the EPA to treat mine discharge
After ten years of operation, the state assumes all expense and permitting

15. The Superfund process The process is linear and defined by law
We are currently at the “Remedial Investigation” phase
Once the ROD is signed, we’ll have little impact on what, when and where actions are taken!!

16. Bonita Peak Mining District
Considered (again) after the Gold King spill
Town of Silverton and San Juan County requested in winter of 2016
Governor Hickenlooper took the request to D.C.
Officially listed on the National Priorities List (NPL) in September of 2016
There are over 1300 sites on the NPL
48 individual sites listed in the upper Animas
46 mine sites
2 study areas

17. Superfund Process Cont.
Biological Technical Assistance Group (BTAG) formed and working
State & Federal agencies, tribes, NGOs, PRPs and key stakeholders
Performing:
Habitat assessments
Baseline Ecological Risk Assessment
Ecological Risk Assessment
Terrestrial BERA
Aquatic Insect Assessments

18. Other tools?? We are not the only watershed in America impacted by AMD
Only the most egregious hardrock mining sites are good candidates for a Superfund cleanup
EPA does not have the capacity, man-power or funding to address the massive cleanup of abandoned mine sites across the nation
Currently proposed Congressional budget cuts to EPA could exasperate the problem
These other tools may or may not assist us in the upper Animas

19. Good Samaritan Legislation (national)
Primary objective:
To provide much-needed capacity to EPA cleanups nationwide
To remediate the ‘little bleeders’ that are very low on EPA’s priority, or that do not meet Superfund standards
Secondary objectives:
Bring private resources to the effort to address abandoned mines
Bring private funding for cleanups (foundations, not taxpayer money)
Utilize NGO capacity, expertise and resources
Avoid a federal action where it may not make sense

20. Good Sam – The Need
Estimated 500,000 abandoned hardrock mines in the western U.S.
40% of western headwater streams impacted by acid mine drainage (AMD)
Only the EPA is suited to address abandoned draining mines
Funding/man power for cleanups is minimal
Often pervasive in small, rural and high mountain counties
Estimated cleanup costs of $9.6 to $21 billion dollars

21. What sites for Good Samaritan Cleanups?
NO Potentially Responsible Party (PRP)!!!!
Gold King, American Tunnel, Mogul and Grand Mogul NOT an option
Abandoned & orphaned sites ONLY
Smaller discharges: <100 GPM
The “little bleeders” that are not high on EPA’s radar
Bandora and Kohler prime examples
Employ engineered wetlands & settling ponds (less expensive than active)
Little maintenance needed
Little to no input of lime
Little to no creation of sludge
Where no electricity is needed or where it’s not available

22. Good Samaritans
Entities who had no role in creating the pollution, but want to fix it
Could include county governments, watershed groups, state mine remediation agencies, non-profits and environmental organizations
Often a collaborative effort between entities (ex: non-point source)

23. What does Good Sam do…or not do?
Increase capacity for cleanups – adds to EPA’s efforts
Gives liability relief of permanent responsibility of discharge permit
Requires significant EPA/CDPHE oversight and coordination
Stringent permitting process
Significant bonding requirements
Proper engineering and mitigation plan
Safety/emergency plan
Allows a partial cleanup (high EPA standard relaxed)
“Any improvement to water quality over any time period is better than none at all”
Note: Collapsed adits or blockages not likely addressed by Good Sams
Does not:
Give anyone with a backhoe willy-nilly access to cleanup or treat water
Give liability relief in the event of an accident, spill or worsening impairment

24. Good Sam Today??? Draft legislation introduced in 2016 (Tipton/Bennet)
Negotiations between Tipton and Bennet have stalled
Citizen’s Lawsuit provision the sticking point
Ability of citizens to file suit for damages or permit violations
CWA/CERCLA covers this
Suits are always an option
Concern: further disincentive for Good Sams
Resolution: covered under permitting
Challenging Congressional climate
Sen. Gardner has stepped up with interest
CERCLA approach?

25. 1872 General Mining Act Reform
Bill introduced in 2017 by Senator Bennet (D-CO) and Senators Tom Udall (D-NM), Martin Heinrich (D-NM), Ron Wyden (D-OR), and Edward Markey (D-MA)
Set a royalty rate for new operations of 2% to 5% of gross income of new production on federal land
Create a Hardrock Minerals Reclamation Fund for abandoned mine cleanup
Require an expedited review of areas that may be inappropriate for mining

26. Pending State legislation:
Being pursued by Conservation CO, San Juan Citizens Alliance and Earthworks
Seeking input from stakeholders now
Engaging possible bill sponsors
The bill does:
Eliminates ‘self bonding’
Limits or prevents new mining operations where perpetual water treatment is likely
Requires complete cleanup after operations have concluded with mitigation plan at permitting stage

27. Questions or comments?
Thank you! Support Good Samaritan legislation and follow along with the Animas’ Superfund cleanup at: