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Three years after the Gold King Mine spill there’s no fix to leaky abandoned mines. What’s the holdup?

Today, the problem of mines leaching heavy metals into bodies of water remains, for the most part, unaddressed

Jason Willis, Trout Unlimited's mine restoration field coordinator, standing in August near a stream outside of Empire stained orange by mine runoff. (Jesse Paul, The Colorado Sun)
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CLEAR CREEK COUNTY — When the Gold King Mine spill sent a plume of yellow sludge cascading down the Animas River in southwest Colorado three years ago, environmentalists and conservationists saw an opportunity to educate the public about a problem that’s been around for decades.

They also saw it as a way to draw new support and urgency for a law to allow for more widespread cleanup of the thousands of mines constantly leaking wastewater into rivers and streams across the nation.

The Environmental Protection Agency-caused disaster was bad, but incomparable to the broader issue.

“I’m grateful that my river didn’t die,” said Trout Unlimited regional coordinator Ty Churchwell, who works for the advocacy group in Durango, where the Gold King plume traveled through during high tourist season. “But it did bring much-needed attention to the problem.”

Today, the problem of mines leaching heavy metals into bodies of water remains, for the most part, unaddressed. Combined, the sites represent a massive, constant faucet of Gold King Mine-level spills across the West, quietly gurgling danger into nearly every watershed.

Remnants of an abandoned mine just outside the town of Empire in Clear Creek County. Sites like these can cause major water pollution because of heavy metals that leach from them. (Jesse Paul, The Colorado Sun)

The hold up? There’s no agreement on the right way to address the estimated $50 billion problem.

One of the most-debated policies aiming to address the problem is a proposed “good Samaritan law” that would allow advocacy groups to help. But for decades it’s been a sticking point between feuding stakeholders, some of whom say it allows polluters to sidestep liability.

This year there is renewed hope that a legislative compromise on a good Samaritan bill can be reached with the leadership of Colorado’s congressional delegation.

But the road ahead is bumpy and very steep.

What’s a good Samaritan law?

When the broader mining industry shriveled up in in the first half of the 20th century, thousands of mining sites were abandoned in Colorado and elsewhere in the nation, leaving deep holes in the ground spilling heavy metals into nearby streams.

The metals leach out of the mines through a process where sulfur in the minerals mixes with ground water to create sulfuric acid. That acid causes metals like zinc, cadmium, lead and other dangerous elements to flow out.

The eerie orange-yellow color synonymous with the Aug. 5, 2015, Gold King spill — and easy to spot at abandoned mines across the West — comes from iron in the water.

Video from the Aug. 5, 2015, Gold King Mine spill in southwest Colorado. (U.S. House Committee on Natural Resources, via YouTube)

Many conservation groups want to tackle the perpetual pollution from these abandoned mines, but they can’t because of liabilities written into the Clean Water Act. Essentially, if “good Samaritans” try to address water leaking from mines by working in the mine openings themselves, they can become responsible for its quality.

If the fluid doesn’t meet strict standards, the do-gooders could be on the hook.

“Applicable water quality standards, in many cases, are impossible to meet,” said Dustin Sherer, a legislative assistant for U.S. Sen. Cory Gardner, R-Colorado, who is working on the issue.

That’s what the potential good Samaritan law would seek to address: Allowing people to work on improving the quality of water spilling from the mines without being liable for meeting strict water quality standards.

Organizations like Trout Unlimited have led the way in calling for a good Samaritan law in the hopes of getting to work on solving the problem. But other environmental groups say the prospective legislation is problematic and provides a way to skirt the Clean Water Act.

One concern is that mining companies might try to remine tailings, for instance, for profit at abandoned sites in the name of conservation but not have to comply with water quality standards because they have received a good Samaritan waiver.

“The question really is: Who qualifies as a good Samaritan? How broad is the waiver of liability?” said Aaron Mintzes, senior policy counsel for Earthworks. “We believe that any kind of improvement is a good improvement. What we want to avoid is a situation where a good Samaritan receives the liability waiver but ends up making the problem worse. And then what happens if they make the problem worse?”

Clear Creek Watershed Foundation project development coordinator Diane Kelty, center, talks about work her organization has done to mitigate impacts from contaminated mine runoff near the town of Empire. Groups like the Clear Creek Watershed Foundation would like to see a good Samaritan law passed that would limit their liability on cleanup projects and allow them to widen the scope of their work. (Jesse Paul, The Colorado Sun)

More fundamentally, though, Mintzes and his organization feel that a good Samaritan law just scratches the surface of the problem. Earthworks and some members of Congress would prefer major reforms to the 1872 Mining Act, including some kind of royalty system for existing mining companies that would pay into a fund specifically to address abandoned mines — a political moonshot with the current Congress and President Donald Trump.

“We know that ultimately there are not enough good Samaritans out there in the world who have $50 billion or who have the capacity to cleanup 500,000 mines,” he said. “The notion that good Samaritan legislation is going to solve the problem of abandoned mines is nonsensical.”

Trout Unlimited has held fast that any improvement is worth pursuing. It also rejects the idea that carefully eliminating liability in the name of trying to remedy this situation is dangerous. (The group argues, too, that it would be difficult to persuade current mining companies to pay for a problem created by miners who have long been dead.)

“We’re not weakening the Clean Water Act,” said Corey Fisher, Trout Unlimited’s public lands policy coordinator. “We are strengthening it to make more clean water.”

The problem’s scope

Through the mountains west of Empire in Clear Creek County winds Lion Creek — a stream that’s fed by tributaries polluted by a never-ending faucet of heavy metals flowing from abandoned mines.

“It’s this perpetual contamination,” said Jason Willis, a mine restoration field coordinator for Trout Unlimited, as he stood next to a flow in the watershed in August.

That water heads into Clear Creek, which winds its way down into Golden and the broader Denver metro area, eventually emptying into the South Platte River.

There are estimated to be hundreds of thousands of abandoned mines across the U.S. (23,000 in Colorado alone), many of which are polluting some 110,000 miles of streams, like the contaminated ones in Clear Creek County.

Across Colorado, these sites and their pollution are easy to spot by their telltale orange-yellow stain.

A stream contaminated by mine waste runoff near Empire in Clear Creek County. (Jesse Paul, The Colorado Sun)

The metal contamination prevents wildlife — like trout and bugs — from populating waterways and can be problematic for drinking water. Mitigation becomes more important as water becomes more scarce amid drought and western population growth.

Right now, non-profits like Trout Unlimited and the Clear Creek Watershed Foundation are doing what they can to ease the problem — rerouting water from tailings (piles of rocks with heavy metals removed from ground during mining), digging up contaminated areas and planting grasses to settle the metals.

Those are projects addressing so-called non-point source pollution, which they can work on without getting into the muddy and potentially costly arena of water quality liabilities.

They cannot work on or just outside of the actual mines themselves (point-source pollution sites) without coming into conflict with the Clean Water Act, which is why they are pushing so hard for the good Samaritan law.

“We might not be able to meet table-value standards on cleaning this up,” Willis said as he stood next to a draining mine, yellow water cascading out. “We might be able to meet 80 percent with the technique that we might employ here. But the risk of not being able to attain those standards is really what’s going to keep us from doing the work here.”

Jason Willis, a mine restoration field coordinator for Trout Unlimited, explains the work they could do under a good Samaritan law. (Jesse Paul, The Colorado Sun)

The proposed legislation

Good Samaritan laws have been debated — and failed — in Congress over about 20 years.

Former Colorado U.S. Sens. Mark Udall and Ken Salazar, both Democrats, are among those who brought such measures but were unsuccessful.

(Colorado state lawmakers even recently tried to urge Congress to pass a good Samaritan law.)

In the coming weeks, Gardner is likely to introduce another, pared-back good Samaritan measure that he hopes can cut through the differences and pass Congress.

The chance of that bill becoming law appears daunting as lawmakers race against the waning legislative days this year.

The bill would OK a limited number of pilot projects, maybe a dozen, that groups who meet certain qualifications would be able to apply for through the Environmental Protection Agency. Companies actively mining likely would not be among those eligible to seek projects.

“I think it’s just a matter of finalizing the language,” Gardner said during the recent tour of abandoned mines in Clear Creek County with Trout Unlimited.

U.S. Sen. Cory Gardner, second from left, during a recent tour of an abandoned mine site in Clear Creek County. He is surrounded by members of Trout Unlimited who would like to do more expansive cleanups of pollution leaking from mines in Colorado, but say they need the help of a good Samaritan law that would limit their liability.  (Jesse Paul, The Colorado Sun)

The staff of U.S. Sen. Michael Bennet, D-Colorado, is engaging with Gardner’s office on the legislation.

“There’s no question we should pursue all avenues to clean up abandoned mines in Colorado and across the West,” Bennet said in a statement to The Colorado Sun. “The community affected by the Gold King Mine spill knows this all too well. A comprehensive solution should include a good Samaritan policy that expands partnerships and cleans up abandoned mines, while still holding participants accountable if they fail to comply with their permits. It also must include reforming the outdated Mining Law of 1872 so we finally provide the resources necessary to clean up these mines, improve water quality, and protect the health and safety of downstream communities.”

(Bennet and Gardner have worked on legislation to address abandoned mines before.)

There are signs, too, that the environmental community is coalescing around this latest effort — or at least the bones of it.

“Generally, the notion of creating a pilot program, a series of good Samaritan pilot projects, is just fine,” said Mintzes, with Earthworks.

Fisher, with Trout Unlimited, said years and years of failed bills have brought them closer to success.

“We’ve definitely put many, many years into finding the sweet spot,” Fisher said. “I think we’re getting close.”