Gold King Mine Spill Exposes the Legal Hurdles to Cleaning up Mines

This blog post was written by Katherine “Kate” Sanford who worked with WSMT as a summer intern from June 1 through August 10, 2016.

On August 5, 2015, Environmental Protection Agency (“EPA”) contractors inadvertently broke through a retaining wall at the closed Gold King Mine, causing over 3 million gallons of acidic, metal-laden water to flow into the Upper Animas Watershed in Southwest Colorado. The garish orange plume, which was estimated to contain around 900,000 pounds of heavy metals, made its way from Colorado, through New Mexico, and into Utah’s Lake Powell. Along the way, arsenic, lead, cadmium, copper, mercury, and zinc settled along the riverbeds of the San Juan and Animas Rivers. See Gold King Mine Accident Highlights Risks Posed by Abandoned Mines.

In the weeks and months that followed, downstream communities suffered from the spill: Durango rafting companies lost hundreds of thousands of dollars, and the Navajo Nation shut off two of its major irrigation systems, severing a lifeline for many farmers in the area. Meanwhile, the EPA took full responsibility for the disaster and worked quickly to build a $1.5 million dollar water treatment plant at the mine. Today, the water downstream is clear, but the cleanup is not over. The EPA has already spent $29 million in disaster response and may spend as much as $50 million before the task is complete.

Throughout the past year, the Gold King Mine spill has not only exposed the existence of abandoned mines that are leaking toxic water, but also the legal impediments to cleaning them up. There are an estimated 23,000 inactive mines in Colorado and 500,000 around the West. Federal investigators from the Department of Interior’s Bureau of Reclamation have found that tens of thousands of these abandoned mines are contributing to continuing pollution. But most of the companies that built the mines over the past 150 years have been out of business for so long that no one is around to take responsibility. To make matters worse, environmental statutes are hindering ”Good Samaritans” from mine clean-ups by burdening them with crippling legal liability. Consequently, the EPA is left with the expensive and arduous task of cleaning up almost all of them.

The Clean Water Act (“CWA”) is one example of a well-intentioned environmental law that poses a major hurdle to cleaning up abandoned mines. It affixes liability and responsibility to anyone who attempts to address a leaking mine, even if the owner had no role in creating the pollution and is working to clean it up. Similarly, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) imposes retroactive strict liability, meaning that current owners are liable even if the pollution was not their fault and even if the site was polluted before CERCLA was enacted. As a result, people are reluctant to try to clean up abandoned mining sites.

In the last year, several bills were introduced in Congress in response to the Gold King Mine spill to address these legal deterrents. Several of the bills are new versions of Good Samaritan legislation, which seek to reduce the liability of those who work to clean up abandoned mines. For example, senators from four different states introduced the Hardrock Mining Reform and Reclamation Act, which would reduce liability by amending the CWA so that Good Samaritans can obtain special permits. The Act would require mining companies to pay a 2% to 5% royalty for extracting mineral resources from public lands – a probable deal killer for an industry that pays no royalty. The Act would also create a reclamation fund to help pay for cleaning up abandoned mines. Similarly, the proposed Abandoned Mine Reclamation Safety Act would direct the Secretary of the Interior to create new regulations to facilitate the safe and environmentally responsible cleanup of abandoned mines.