Searching for Good Samaritans

There is something of an aside at the end of a recent story in the Denver Post on attempts to clean up the numerous mines leaking acid waste into rivers in southwestern Colorado; the story quotes Governor Hickenlooper as saying: “Lastly, we continue to support efforts by our congressional delegation to reach consensus around ‘Good Samaritan’ legislation, which is one of the most significant tools at our disposal to allow for voluntary cleanups of draining and abandoned mines.”

You might ask, what is this about? In many ways, the story starts with gold mines in the Sierra Nevada long ago before intersecting with environmental protection laws.

First off, one of the things hard rock miners decided they needed was the ability to own outright the land where they mined as well as land where they milled and processed ore. This was in no small part because of an early court decision that had prevented miners from working a mine located on privately owned property (in this case, the Las Mariposas ranch of John Frémont). And so when Congress finally got around to writing mining law, first in 1866 and then revising it a couple times, the last major rewrite being in 1872, they included a way for miners to patent their land.

The problem arises when the mines eventually are abandoned.  They don’t revert to the government, they sit around as private land.  And sometimes somebody buys that land for other purposes.

Take, for instance, the Penn Mine in the Sierran foothills.  A producer primarily of zinc and  copper, the mine was finally abandoned in the 1950s.  Located on a hillside near the Mokelumne River, it was a property of use to the East Bay Municipal Utility District when it went to build a dam and create Camanche Reservoir on the Mokelumne. Because the mine was leaking waste into the river and lake, the district created some evaporation ponds to capture the waste before it reached the river.

Although this greatly reduced the pollution in the river, it didn’t quite end it; in certain high water conditions, the ponds overflowed.  The Committee to Save the Mokelumne River sued the Utility District for violating the Clean Water Act and won: the court ruled that the utility had acquired ownership of the hazard and ordered them to fully remediate the drainage from the mine. While the utility was able to afford the $10M cost of the remediation, the impacts of the decision were not necessarily positive for the environment.

In Colorado, for example, the Colorado Independent reported that the State Division of Reclamation, Mining and Safety decided to abandon several acid waste mitigation projects because of the risk that these projects would not fully eliminate all pollution and that the state would have to foot the whole bill for remediating old abandoned mines. And more directly in terms of the pollution in southwestern Colorado, earlier attempts to try to remediate some of the pollution from mines near the Gold King Mine were similarly discouraged by the potential legal liability for organizations like Trout Unlimited. Legislation to protect so-called Good Samaritans from increased liability was fought by other environmental groups that feared weakening the Clean Water Act. And so, of course, nothing is happening, except of course that these abandoned mines continue leaking into surface waters.

And so we have the modern conundrum: old mines that are hazards are not cleaned up by the federal government because there are so many that the cost is exorbitant and the ability to find companies responsible for the mines is frequently futile. State governments and citizen groups that are willing to mitigate some of the effects of the mine waste are on the sidelines, fearful of fully owning a problem they cannot afford to fix. Congress, being Congress, cannot find some middle path to allow legitimate Good Samaritans to act while preventing the creation of a loophole so large that mining companies could resume mining in some areas without reducing the pollution from the mines.

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