Though the florescent orange runoff from the Gold King Mine has long since faded from the Animas River, the effort to prevent similar, future environmental disasters from happening at the thousands of abandoned mines that dot the West has endured.
In the wake of this terrible release of toxic mine water and vivid reminder of the enduring problem of abandoned mines, a number of lawmakers have quickly introduced proposals to help prevent future such disasters. Rightly, these efforts have centered on helping tribes, states, and other volunteers embark upon mine cleanup efforts.
The legislative proposals include reforming the 1872 Mining Law to ensure cleanup efforts are fully funded through fees and royalties. Other proposals have focused on reviving efforts to modify the Clean Water Act to help spur the cleanup of contaminated waters draining from these old mines. Still others resurrect approaches to create state permitting programs. All of these may be legitimate approaches, but each have been attempted before and encountered problems.
That’s because the objections to these past approaches — like abandoned mines — still dot the political landscape. Some have objected to reopening the Clean Water Act, others have fought relaxing the traditional requirements of water quality treatment, and still others have opposed assessing new fees or excluding mining industry expertise to perform cleanups.
It’s also essential to remember that the only proposal to spur mine cleanup efforts to make any headway in the last two decades was a bipartisan bill from U.S. Senators Ken Salazar (D-Colo.) and Wayne Allard (R-Colo.). It received a single hearing before the U.S. Senate Energy and Public Works Committee and then stalled in the full U.S. Senate due to objections regarding its proposed waiver of all environmental laws and the lack of other provisions designed to ensure robust oversight.
And yet nearly everyone agrees that to truly promote voluntary cleanups, Congress needs to act to protect these volunteers — so-called Good Samaritans — from full legal liabilities and requirements under our environmental laws. Although these laws have been successful in improving our environment and protecting the public, they present barriers to voluntary cleanup of contaminated waters as they treat volunteers the same way as the entities who created the problem in the first place.
It’s understandable to resurrect old approaches in the wake of a Gold King mine event. But we need a new way to move this forward — an approach that avoids the objections and pitfalls of past ideas, enjoys broader consensus support, and yet still removes the obstacles to full voluntary cleanups. Luckily our nation’s Superfund law, under the legal acronym CERCLA, provides such an avenue for meaningful reform.
The abandoned mines that discharge toxic, acidic heavy metal-laden runoff already fall under CERCLA, even if they are not designated Superfund sites. As a result, Congress could amend this law to expand liability protections to Good Samaritans while still ensuring that any cleanup work is effective and reduces toxic water contamination.
It’s important to note that reforming CERCLA to create a Good Samaritan program would not necessarily result in sites being listed as Superfund sites. Although such listings can bring needed resources to the problem, they can also negatively affect nearby communities’ images and hurt local businesses, such as those dependent on tourism. By working through CERCLA, communities may in fact be more welcoming of having sites cleaned up under a Good Samaritan approach without the Superfund designation and yet still see the significant cleanup work under CERCLA authorities.
Even with this roadmap to reform, policymakers and stakeholders need to be on the same page. That’s why the Keystone Policy Center, where I work, is partnering with a bipartisan and broad-based coalition to chart a course forward. Already we are in the process of drafting a model bill that not only avoids the well-worn battles of yesterday, but also provides Good Samaritans with the tools and legal protections to reduce toxic discharges from abandoned mines and help prevent what happened at the Gold King Mine.
The toxic release from Gold King Mine was hardly the start of these types of conversations about the need promote Good Samaritan work. However, this latest effort hopefully will provide a collaborative way to tackle this long overdue issue and effectuate cleaning polluted waters emanating from abandoned mines.
Young, a former natural resources adviser to Colorado Governors Roy Romer and John Hickenlooper and U.S. Senator Mark Udall, is a senior policy director at the Keystone Policy Center.