Toxic stalemate on the Animas river
April 04, 2013
By Zach
Hively
Eight hundred gallons a minute of toxic custard-yellow water pours out of the mouths of four mines around the ghost town of Gladstone, Colorado. Zinc, copper, cadmium, iron, lead, aluminum, and manganese flow down Cement Creek into the Animas River just south of Silverton. From there, the river runs through Durango to Farmington, New Mexico, where it joins the San Juan River and, subsequently, the Colorado River.
The roughly thirty-mile stretch of the Animas from Silverton to Baker’s Bridge north of Durango seems nearly untouched by human development. The historic steam locomotives chuffing along its banks are often the only trace that this is, if maybe not 2013, at least not 1813. Unlike the Rio Grande and other western rivers, the Animas is indeed underdeveloped; it’s not even allocated beyond capacity—not yet. Were it not for the toxic metal pollution in the water, this part of the river would likely qualify for Wild and Scenic River designation.
Yet this little river’s pollution problem is not as isolated as the river itself. It breathes life into much of southwest Colorado and northwest New Mexico, but what affects it also affects the other five states of the Colorado River Compact. Arizona, California, Nevada, Utah, and Wyoming are all watered by the Colorado River and its tributaries. The people of these states are connected by water as surely as a body is connected by its cardiovascular system.
The toxic metals leaking from the orphan mines do more than complicate the Animas’s scenic river designation—they affect the entire ecosystem, and the small-town economies, that depend on the river.
Life in the upper Animas River is rapidly declining. The water quality at Baker’s Bridge is at its worst point in twenty years, with a definite drop in the number of fish and crucial macroinvertebrates since 2005. Purportedly, the levels of toxins present no danger to humans, only to the macroinvertebrates which the fish eat. What’s bad for the goose is, apparently, just dandy for the gander.
This drop-off in aquatic life is not a universal phenomenon. In the Animas above the confluence of Cement Creek and its neighbor, Mineral Creek, fish numbers have actually improved since the late eighties in small streams were remediation projects have been undertaken. Most of these projects were conducted on mine dumps, and several such projects were conducted by a good Samaritan organization, the Animas River Stakeholders Group (ARSG). Since the ARSG’s founding in 1994, their efforts have helped reduce the average amount of dissolved zinc in Mineral Creek by 50%, and fish are surviving there.
So with all this successful cleanup, what’s the deal with the Animas?
Much of the river’s woe stems from the toxic water coming into Cement Creek. The constant spillage is partly the legacy of old mines, but it is also the result of contemporary stop-gaps. When the Sunnyside Mining Co. closed its Silverton-area operations in 1991, the company had little desire to continue treating the 1200 to 1600 gallons of water per minute running from their mines. So it struck a deal with the state whereby it could plug the outlet tunnels with bulkheads and simply treat the leakage from the bulkheads. Sunnyside continued to do so until 2002, when it passed off responsibility for the treatment plant to another company, which shut it down in 2004—corresponding with the drop in water quality at Baker’s Bridge.
That’s not all. The plugged outlet tunnels also caused the water table to rise. Now, groundwater escapes from the adits of four previously dry orphan mines. These four mines—the American Tunnel, Mogul, Red and Bonita, and Gold King No. 7—issue the approximately eight hundred gallons per minute of contaminated water that goes straight into Cement Creek.
Zinc is the most serious and concentrated of the contaminants. An estimated 28.5 tons of zinc emerge from the four primary draining adits each year, accounting for nearly a quarter of the total amount recorded in the upper Animas. Lead and zinc are more toxic, but their concentrations are lower.
To be sure, some amount of these metals occurs naturally, owing to the bleeding metal-rich rocks in the mountains. Some scientists even suspect that Cement Creek has never sustained aquatic life due to its natural acidity. However, mining has exposed and removed more rock than natural processes. Add water to the equation, and the leaching process in these orphan mines accelerates. Barry Commoner’s second law of ecology says that “Everything must go somewhere.” In this case, the toxic metals go where the Animas flows.
The ARSG exists in large part to ensure the survival of the Animas River through community self-determination. By tackling removal actions on hard rock mine dumps, the group has demonstrated enough initiative for the Environmental Protection Agency (EPA) not to label the entire upper basin as a Superfund site. Instead, the EPA has opted to work in collaboration with the ARSG. Yet even with the support of the government agency, the ARSG will not hazard a remediation effort of the four primary leaking mines around Cement Creek. The group fears liability under (ironically enough) the Clean Water Act.
The trick here is that the Clean Water Act requires a one-hundred-percent cleanup of a point-source hazard. (Point-sources are uncontained origins of pollution traceable to a mathematical point. A jet engine is a point-source of noise pollution. The San Juan Mountains are not a point source of runoff pollution, because naturally-occurring zinc comes from the entire watershed rather than a single identifiable point—such as an orphan mine’s adit.)
The requirement exists to prevent corporate polluters from getting off the hook, but a likely consequence is that anything less than absolute cleanup opens a good Samaritan to a lawsuit. No one has yet to actually sue a good Samaritan group, perhaps only because no group is willing to take the gamble.
In the EPA’s eyes, the solid waste from a hard rock mine is contained in a way that a leaking mine is not. So, in effect, the ARSG may clean up all the solid-waste mine dumps along Mineral Creek that it likes, but it does not have a clear green light for remediation of leaking mines along Cement Creek. Or rather, it does—but if any polluted water should escape from the mines after the commencement of treatment procedures, the group may be held liable for that contamination in perpetuity.
In 1994, the EPA determined that draining mines require National Pollutant Discharge Elimination System (NPDES) permits. Any agency who works, or has worked, with a leaking mine is required to obtain a NPDES permit for the site. The permit requires its holder to use the best available technology for removing toxic substances from the water. Best available technology is great from an environmental standpoint, like finding the best cancer doc, but it’s also untenable from a financial standpoint—like actually hiring the best cancer doc. Groups like the ARSG lack the millions of dollars necessary for implementation and indefinite operation of such technology.
NPDES permits are designed not for stakeholder’s groups, but for owners and operators of polluting sites. Too often in the case of orphan mines, though, no party can be found responsible for cleanup and prevention. The original owners are decades out of the picture, so they cannot be smacked with permits. This is why good Samaritan groups exist in the first place. They may not be able to come up with seven-figure funds annually, but partial treatment of mine damage is both practical and feasible for small organizations.
Partial treatment still has a positive if less than absolute impact on the environment. If a group is willing to work to reduce water pollution from leaking mines, should its government not enable it to contribute in any way possible? Just as other good Samaritan laws offer legal protection to bystanding doctors who attempt to help injured persons, should we not have legal shields for those able and willing to help the environment?
Colorado’s Senatorial team thinks so. Formerly as a representative and now as a senator, Mark Udall has long pushed for good Samaritan legislation. Senator Michael Bennet has also thrown his weight behind Udall’s efforts. With opposition from all sides, these legislative attempts consistently fail in Congress. Some opponents say that such legislation would offer miners a chance to elude responsibility for cleanup, and others say that it could irrevocably damage and weaken the Clean Water Act.
Though Congress has failed to act, in December 2012 Udall’s
persistence resulted in an EPA memo clarifying the agency’s
position on good Samaritans. The memo seeks to better define the
term “operator.” It intends to demonstrate that good Samaritans
are non-operators of orphan mine sites, and thereby are exempted
from NPDES permits and potential long-term liability.
Udall hails this clarification as a victory—yet good Samaritan groups are still not convinced of their immunity. In the ARSG’s published comments, the group recognizes that “Any treatment system for a draining mine will need maintenance,” and “It is hard to imagine that anyone doing maintenance at a site is not going to be considered an operator.” Even the EPA’s own FAQ page about the memo states that “The factors listed in this latest memorandum are not meant to be applied as if they were rules.”
Such fuzzy guidelines are as useful to the ARSG as half an umbrella. “Our feeling is, the EPA’s memorandum doesn’t really give full protection, because it’s guidance. It’s not regulation, it’s not legislation,” Peter Butler of the ARSG said in a phone interview. Agreements with regulatory agencies like the EPA can be undermined by citizen suits. A third-pary suit could force the EPA to issue NPDES permits to anyone who has, or ever has had, anything to do with treating or impacting environmental damage from a draining mine.
That doesn’t just mean the mining companies. It means anyone who actively attempted to reduce the pollution, too.
“We certainly appreciate the EPA’s efforts,” Butler said. But he questions how the EPA’s guidance would hold up in court. “It’s really going to take legislation. It would have to be on a Congressional level. That’s our thinking at this point.”
Even though its ability to address toxic runoff is stymied, the ARSG is not sitting on its collective haunches. “We’re still trying to figure out what the best option would be to deal with all those mines, regardless of what the liability issues are,” Butler said. “In a perfect world, what could [we] do, what would [we] do? Then we figure out how we can do it.”
The EPA is also keeping active. According to Butler, the EPA has opened up the Red and Bonita mine and will be contracting out the investigation of its insides. A better understanding of the mine could aid future cleanup strategies. Butler says the investigation is “a big deal, because it may be nobody’s been in there for a hundred years.”
While all this exploration and planning is underway, Cement Creek has one other possible hope that avoids Congressional legislation: waste removal actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). (Superfund falls under the CERCLA banner, but CERCLA removal actions are not Superfund actions.)
Removal actions protect the group in question from a third party lawsuit. However, they are typically for short-term hazard cleanup with a definite finish line. When the ARSG treats mine dumps, it works under CERCLA removal actions. Leaking mines are different. “In the case of treating a mine,” Butler pointed out, “you have a continuous removal action that goes on for years and years and years and years. Forever, basically.” So the begged question is: can a CERCLA removal action be long-term?
The Bureau of Land Management (BLM) seems to think so. BLM, as well as the EPA and the Forest Service, has CERCLA authority, and Butler knows of two smaller mine sites on BLM land that have passive treatment systems using CERCLA removal actions. So far, no one has challenged these actions.
If BLM can legitimately conduct removal actions on these smaller mines, they might also be able to apply their CERCLA authority to the American Tunnel, which is on BLM property. The other three leaking mines are on private land; however, “their discharge directly affects BLM property,” Butler said, so the bureau could “take [the treatment] on themselves if they wanted to. It’s really a question of where they want to put themselves.”
“At this point BLM has been reluctant to use that CERCLA removal action on private land,” Butler said. However, “People [would] feel more comfortable with a BLM CERCLA action on Cement Creek” than with Superfund.
Unfortunately, this isn’t the first time human activities have decimated a portion of the Animas. For much of the latter half of the twentieth century, fifty miles of the river south of Durango were a “biological desert.” These dead reaches owed their sorry state to radioactive and chemical waste from uranium milling. However, this earlier instance also provides hope. When the Durango mill stopped dumping waste and its riverside tailings were relocated to Bodo Canyon, the river started to recover, and fish repopulated the formerly dead stretch.
The solution for the upper Animas is more complex, because almost any course of action would be continuous. Still, some folks have organized under a common willingness to shoulder that load. But the risk of a third-party lawsuit forcing those groups to take on legal liability for as long as the pollution lasts—and considering how much metal-laden rock lives in the San Juan Mountains, it could outlast humanity—is too great for good Samaritans like the ARSG. The ultimate victim here is the river, and the ecosystem that depends on it.
The ARSG members’ dedication to their wider ecological community and to the tourism economy of tiny Silverton is admirable. Their stated fear, “that Superfund will lead to unwarranted actions, higher costs, litigation and the withholding of information, reduced property values and fewer opportunities for community self-determination,” is understandable. Yet even the group acknowledges Superfund’s superior resources. Federal money might not result in a quick or efficient cleanup, but it would achieve more results than the current stalemate.
Something has got to give if the Animas River is going to return to the health it had in 2004, never mind its pre-mining condition. The ARSG needs ironclad Congressional assurance that it cannot be sued for environmental malpractice for merely partially solving the watershed’s pollution. The BLM should look seriously at testing the waters of a continuous CERCLA removal action. If those hopes dry up, how long until the people along the upper Animas swallow their civic pride and allow Superfund to take over at the helm?
- See more at: http://newmexicomercury.com/blog/comments/toxic_stalemate_on_the_animas_river/P1#sthash.IuxGD9uX.dpuf
Udall hails this clarification as a victory—yet good Samaritan groups are still not convinced of their immunity. In the ARSG’s published comments, the group recognizes that “Any treatment system for a draining mine will need maintenance,” and “It is hard to imagine that anyone doing maintenance at a site is not going to be considered an operator.” Even the EPA’s own FAQ page about the memo states that “The factors listed in this latest memorandum are not meant to be applied as if they were rules.”
Such fuzzy guidelines are as useful to the ARSG as half an umbrella. “Our feeling is, the EPA’s memorandum doesn’t really give full protection, because it’s guidance. It’s not regulation, it’s not legislation,” Peter Butler of the ARSG said in a phone interview. Agreements with regulatory agencies like the EPA can be undermined by citizen suits. A third-pary suit could force the EPA to issue NPDES permits to anyone who has, or ever has had, anything to do with treating or impacting environmental damage from a draining mine.
That doesn’t just mean the mining companies. It means anyone who actively attempted to reduce the pollution, too.
“We certainly appreciate the EPA’s efforts,” Butler said. But he questions how the EPA’s guidance would hold up in court. “It’s really going to take legislation. It would have to be on a Congressional level. That’s our thinking at this point.”
Even though its ability to address toxic runoff is stymied, the ARSG is not sitting on its collective haunches. “We’re still trying to figure out what the best option would be to deal with all those mines, regardless of what the liability issues are,” Butler said. “In a perfect world, what could [we] do, what would [we] do? Then we figure out how we can do it.”
The EPA is also keeping active. According to Butler, the EPA has opened up the Red and Bonita mine and will be contracting out the investigation of its insides. A better understanding of the mine could aid future cleanup strategies. Butler says the investigation is “a big deal, because it may be nobody’s been in there for a hundred years.”
While all this exploration and planning is underway, Cement Creek has one other possible hope that avoids Congressional legislation: waste removal actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). (Superfund falls under the CERCLA banner, but CERCLA removal actions are not Superfund actions.)
Removal actions protect the group in question from a third party lawsuit. However, they are typically for short-term hazard cleanup with a definite finish line. When the ARSG treats mine dumps, it works under CERCLA removal actions. Leaking mines are different. “In the case of treating a mine,” Butler pointed out, “you have a continuous removal action that goes on for years and years and years and years. Forever, basically.” So the begged question is: can a CERCLA removal action be long-term?
The Bureau of Land Management (BLM) seems to think so. BLM, as well as the EPA and the Forest Service, has CERCLA authority, and Butler knows of two smaller mine sites on BLM land that have passive treatment systems using CERCLA removal actions. So far, no one has challenged these actions.
If BLM can legitimately conduct removal actions on these smaller mines, they might also be able to apply their CERCLA authority to the American Tunnel, which is on BLM property. The other three leaking mines are on private land; however, “their discharge directly affects BLM property,” Butler said, so the bureau could “take [the treatment] on themselves if they wanted to. It’s really a question of where they want to put themselves.”
“At this point BLM has been reluctant to use that CERCLA removal action on private land,” Butler said. However, “People [would] feel more comfortable with a BLM CERCLA action on Cement Creek” than with Superfund.
Unfortunately, this isn’t the first time human activities have decimated a portion of the Animas. For much of the latter half of the twentieth century, fifty miles of the river south of Durango were a “biological desert.” These dead reaches owed their sorry state to radioactive and chemical waste from uranium milling. However, this earlier instance also provides hope. When the Durango mill stopped dumping waste and its riverside tailings were relocated to Bodo Canyon, the river started to recover, and fish repopulated the formerly dead stretch.
The solution for the upper Animas is more complex, because almost any course of action would be continuous. Still, some folks have organized under a common willingness to shoulder that load. But the risk of a third-party lawsuit forcing those groups to take on legal liability for as long as the pollution lasts—and considering how much metal-laden rock lives in the San Juan Mountains, it could outlast humanity—is too great for good Samaritans like the ARSG. The ultimate victim here is the river, and the ecosystem that depends on it.
The ARSG members’ dedication to their wider ecological community and to the tourism economy of tiny Silverton is admirable. Their stated fear, “that Superfund will lead to unwarranted actions, higher costs, litigation and the withholding of information, reduced property values and fewer opportunities for community self-determination,” is understandable. Yet even the group acknowledges Superfund’s superior resources. Federal money might not result in a quick or efficient cleanup, but it would achieve more results than the current stalemate.
Something has got to give if the Animas River is going to return to the health it had in 2004, never mind its pre-mining condition. The ARSG needs ironclad Congressional assurance that it cannot be sued for environmental malpractice for merely partially solving the watershed’s pollution. The BLM should look seriously at testing the waters of a continuous CERCLA removal action. If those hopes dry up, how long until the people along the upper Animas swallow their civic pride and allow Superfund to take over at the helm?
- See more at: http://newmexicomercury.com/blog/comments/toxic_stalemate_on_the_animas_river/P1#sthash.IuxGD9uX.dpuf
Toxic stalemate on the Animas river
April 04, 2013
Eight hundred gallons a minute of toxic custard-yellow water pours out
of the mouths of four mines around the ghost town of Gladstone,
Colorado. Zinc, copper, cadmium, iron, lead, aluminum, and manganese
flow down Cement Creek into the Animas River just south of Silverton.
From there, the river runs through Durango to Farmington, New Mexico,
where it joins the San Juan River and, subsequently, the Colorado River.
The roughly thirty-mile stretch of the Animas from Silverton to Baker’s Bridge north of Durango seems nearly untouched by human development. The historic steam locomotives chuffing along its banks are often the only trace that this is, if maybe not 2013, at least not 1813. Unlike the Rio Grande and other western rivers, the Animas is indeed underdeveloped; it’s not even allocated beyond capacity—not yet. Were it not for the toxic metal pollution in the water, this part of the river would likely qualify for Wild and Scenic River designation.
Yet this little river’s pollution problem is not as isolated as the river itself. It breathes life into much of southwest Colorado and northwest New Mexico, but what affects it also affects the other five states of the Colorado River Compact. Arizona, California, Nevada, Utah, and Wyoming are all watered by the Colorado River and its tributaries. The people of these states are connected by water as surely as a body is connected by its cardiovascular system.
The toxic metals leaking from the orphan mines do more than complicate the Animas’s scenic river designation—they affect the entire ecosystem, and the small-town economies, that depend on the river.
Life in the upper Animas River is rapidly declining. The water quality at Baker’s Bridge is at its worst point in twenty years, with a definite drop in the number of fish and crucial macroinvertebrates since 2005. Purportedly, the levels of toxins present no danger to humans, only to the macroinvertebrates which the fish eat. What’s bad for the goose is, apparently, just dandy for the gander.
This drop-off in aquatic life is not a universal phenomenon. In the Animas above the confluence of Cement Creek and its neighbor, Mineral Creek, fish numbers have actually improved since the late eighties in small streams were remediation projects have been undertaken. Most of these projects were conducted on mine dumps, and several such projects were conducted by a good Samaritan organization, the Animas River Stakeholders Group (ARSG). Since the ARSG’s founding in 1994, their efforts have helped reduce the average amount of dissolved zinc in Mineral Creek by 50%, and fish are surviving there.
So with all this successful cleanup, what’s the deal with the Animas?
Much of the river’s woe stems from the toxic water coming into Cement Creek. The constant spillage is partly the legacy of old mines, but it is also the result of contemporary stop-gaps. When the Sunnyside Mining Co. closed its Silverton-area operations in 1991, the company had little desire to continue treating the 1200 to 1600 gallons of water per minute running from their mines. So it struck a deal with the state whereby it could plug the outlet tunnels with bulkheads and simply treat the leakage from the bulkheads. Sunnyside continued to do so until 2002, when it passed off responsibility for the treatment plant to another company, which shut it down in 2004—corresponding with the drop in water quality at Baker’s Bridge.
That’s not all. The plugged outlet tunnels also caused the water table to rise. Now, groundwater escapes from the adits of four previously dry orphan mines. These four mines—the American Tunnel, Mogul, Red and Bonita, and Gold King No. 7—issue the approximately eight hundred gallons per minute of contaminated water that goes straight into Cement Creek.
Zinc is the most serious and concentrated of the contaminants. An estimated 28.5 tons of zinc emerge from the four primary draining adits each year, accounting for nearly a quarter of the total amount recorded in the upper Animas. Lead and zinc are more toxic, but their concentrations are lower.
To be sure, some amount of these metals occurs naturally, owing to the bleeding metal-rich rocks in the mountains. Some scientists even suspect that Cement Creek has never sustained aquatic life due to its natural acidity. However, mining has exposed and removed more rock than natural processes. Add water to the equation, and the leaching process in these orphan mines accelerates. Barry Commoner’s second law of ecology says that “Everything must go somewhere.” In this case, the toxic metals go where the Animas flows.
The ARSG exists in large part to ensure the survival of the Animas River through community self-determination. By tackling removal actions on hard rock mine dumps, the group has demonstrated enough initiative for the Environmental Protection Agency (EPA) not to label the entire upper basin as a Superfund site. Instead, the EPA has opted to work in collaboration with the ARSG. Yet even with the support of the government agency, the ARSG will not hazard a remediation effort of the four primary leaking mines around Cement Creek. The group fears liability under (ironically enough) the Clean Water Act.
The trick here is that the Clean Water Act requires a one-hundred-percent cleanup of a point-source hazard. (Point-sources are uncontained origins of pollution traceable to a mathematical point. A jet engine is a point-source of noise pollution. The San Juan Mountains are not a point source of runoff pollution, because naturally-occurring zinc comes from the entire watershed rather than a single identifiable point—such as an orphan mine’s adit.)
The requirement exists to prevent corporate polluters from getting off the hook, but a likely consequence is that anything less than absolute cleanup opens a good Samaritan to a lawsuit. No one has yet to actually sue a good Samaritan group, perhaps only because no group is willing to take the gamble.
In the EPA’s eyes, the solid waste from a hard rock mine is contained in a way that a leaking mine is not. So, in effect, the ARSG may clean up all the solid-waste mine dumps along Mineral Creek that it likes, but it does not have a clear green light for remediation of leaking mines along Cement Creek. Or rather, it does—but if any polluted water should escape from the mines after the commencement of treatment procedures, the group may be held liable for that contamination in perpetuity.
In 1994, the EPA determined that draining mines require National Pollutant Discharge Elimination System (NPDES) permits. Any agency who works, or has worked, with a leaking mine is required to obtain a NPDES permit for the site. The permit requires its holder to use the best available technology for removing toxic substances from the water. Best available technology is great from an environmental standpoint, like finding the best cancer doc, but it’s also untenable from a financial standpoint—like actually hiring the best cancer doc. Groups like the ARSG lack the millions of dollars necessary for implementation and indefinite operation of such technology.
NPDES permits are designed not for stakeholder’s groups, but for owners and operators of polluting sites. Too often in the case of orphan mines, though, no party can be found responsible for cleanup and prevention. The original owners are decades out of the picture, so they cannot be smacked with permits. This is why good Samaritan groups exist in the first place. They may not be able to come up with seven-figure funds annually, but partial treatment of mine damage is both practical and feasible for small organizations.
Partial treatment still has a positive if less than absolute impact on the environment. If a group is willing to work to reduce water pollution from leaking mines, should its government not enable it to contribute in any way possible? Just as other good Samaritan laws offer legal protection to bystanding doctors who attempt to help injured persons, should we not have legal shields for those able and willing to help the environment?
- See more at: http://newmexicomercury.com/blog/comments/toxic_stalemate_on_the_animas_river#sthash.mVRgNnsM.dpufThe roughly thirty-mile stretch of the Animas from Silverton to Baker’s Bridge north of Durango seems nearly untouched by human development. The historic steam locomotives chuffing along its banks are often the only trace that this is, if maybe not 2013, at least not 1813. Unlike the Rio Grande and other western rivers, the Animas is indeed underdeveloped; it’s not even allocated beyond capacity—not yet. Were it not for the toxic metal pollution in the water, this part of the river would likely qualify for Wild and Scenic River designation.
Yet this little river’s pollution problem is not as isolated as the river itself. It breathes life into much of southwest Colorado and northwest New Mexico, but what affects it also affects the other five states of the Colorado River Compact. Arizona, California, Nevada, Utah, and Wyoming are all watered by the Colorado River and its tributaries. The people of these states are connected by water as surely as a body is connected by its cardiovascular system.
The toxic metals leaking from the orphan mines do more than complicate the Animas’s scenic river designation—they affect the entire ecosystem, and the small-town economies, that depend on the river.
Life in the upper Animas River is rapidly declining. The water quality at Baker’s Bridge is at its worst point in twenty years, with a definite drop in the number of fish and crucial macroinvertebrates since 2005. Purportedly, the levels of toxins present no danger to humans, only to the macroinvertebrates which the fish eat. What’s bad for the goose is, apparently, just dandy for the gander.
This drop-off in aquatic life is not a universal phenomenon. In the Animas above the confluence of Cement Creek and its neighbor, Mineral Creek, fish numbers have actually improved since the late eighties in small streams were remediation projects have been undertaken. Most of these projects were conducted on mine dumps, and several such projects were conducted by a good Samaritan organization, the Animas River Stakeholders Group (ARSG). Since the ARSG’s founding in 1994, their efforts have helped reduce the average amount of dissolved zinc in Mineral Creek by 50%, and fish are surviving there.
So with all this successful cleanup, what’s the deal with the Animas?
Much of the river’s woe stems from the toxic water coming into Cement Creek. The constant spillage is partly the legacy of old mines, but it is also the result of contemporary stop-gaps. When the Sunnyside Mining Co. closed its Silverton-area operations in 1991, the company had little desire to continue treating the 1200 to 1600 gallons of water per minute running from their mines. So it struck a deal with the state whereby it could plug the outlet tunnels with bulkheads and simply treat the leakage from the bulkheads. Sunnyside continued to do so until 2002, when it passed off responsibility for the treatment plant to another company, which shut it down in 2004—corresponding with the drop in water quality at Baker’s Bridge.
That’s not all. The plugged outlet tunnels also caused the water table to rise. Now, groundwater escapes from the adits of four previously dry orphan mines. These four mines—the American Tunnel, Mogul, Red and Bonita, and Gold King No. 7—issue the approximately eight hundred gallons per minute of contaminated water that goes straight into Cement Creek.
Zinc is the most serious and concentrated of the contaminants. An estimated 28.5 tons of zinc emerge from the four primary draining adits each year, accounting for nearly a quarter of the total amount recorded in the upper Animas. Lead and zinc are more toxic, but their concentrations are lower.
To be sure, some amount of these metals occurs naturally, owing to the bleeding metal-rich rocks in the mountains. Some scientists even suspect that Cement Creek has never sustained aquatic life due to its natural acidity. However, mining has exposed and removed more rock than natural processes. Add water to the equation, and the leaching process in these orphan mines accelerates. Barry Commoner’s second law of ecology says that “Everything must go somewhere.” In this case, the toxic metals go where the Animas flows.
The ARSG exists in large part to ensure the survival of the Animas River through community self-determination. By tackling removal actions on hard rock mine dumps, the group has demonstrated enough initiative for the Environmental Protection Agency (EPA) not to label the entire upper basin as a Superfund site. Instead, the EPA has opted to work in collaboration with the ARSG. Yet even with the support of the government agency, the ARSG will not hazard a remediation effort of the four primary leaking mines around Cement Creek. The group fears liability under (ironically enough) the Clean Water Act.
The trick here is that the Clean Water Act requires a one-hundred-percent cleanup of a point-source hazard. (Point-sources are uncontained origins of pollution traceable to a mathematical point. A jet engine is a point-source of noise pollution. The San Juan Mountains are not a point source of runoff pollution, because naturally-occurring zinc comes from the entire watershed rather than a single identifiable point—such as an orphan mine’s adit.)
The requirement exists to prevent corporate polluters from getting off the hook, but a likely consequence is that anything less than absolute cleanup opens a good Samaritan to a lawsuit. No one has yet to actually sue a good Samaritan group, perhaps only because no group is willing to take the gamble.
In the EPA’s eyes, the solid waste from a hard rock mine is contained in a way that a leaking mine is not. So, in effect, the ARSG may clean up all the solid-waste mine dumps along Mineral Creek that it likes, but it does not have a clear green light for remediation of leaking mines along Cement Creek. Or rather, it does—but if any polluted water should escape from the mines after the commencement of treatment procedures, the group may be held liable for that contamination in perpetuity.
In 1994, the EPA determined that draining mines require National Pollutant Discharge Elimination System (NPDES) permits. Any agency who works, or has worked, with a leaking mine is required to obtain a NPDES permit for the site. The permit requires its holder to use the best available technology for removing toxic substances from the water. Best available technology is great from an environmental standpoint, like finding the best cancer doc, but it’s also untenable from a financial standpoint—like actually hiring the best cancer doc. Groups like the ARSG lack the millions of dollars necessary for implementation and indefinite operation of such technology.
NPDES permits are designed not for stakeholder’s groups, but for owners and operators of polluting sites. Too often in the case of orphan mines, though, no party can be found responsible for cleanup and prevention. The original owners are decades out of the picture, so they cannot be smacked with permits. This is why good Samaritan groups exist in the first place. They may not be able to come up with seven-figure funds annually, but partial treatment of mine damage is both practical and feasible for small organizations.
Partial treatment still has a positive if less than absolute impact on the environment. If a group is willing to work to reduce water pollution from leaking mines, should its government not enable it to contribute in any way possible? Just as other good Samaritan laws offer legal protection to bystanding doctors who attempt to help injured persons, should we not have legal shields for those able and willing to help the environment?
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