Cat on a Hot Stove-Lid: What We Should Learn from the Gold King Mine Spill

Posted on December 22, 2015 by Zach C. Miller

Mark Twain once wisely warned:

We should be careful to get out of an experience only the wisdom that is in it -- and stop there; lest we be like the cat that sits on a hot stove‑lid.  She will never sit on a hot stove-lid again -- and that is well; but also she will never sit down on a cold one any more.

While trying to clear the collapsed entrance to the inactive Gold King Mine in Colorado, EPA contractors in August 2015 inadvertently released over 3 million gallons of metal-laden wastewater into a tributary of the Animas River.  Partly because of EPA’s involvement, and partly because high iron levels turned the Animas River orange for several days, the incident generated considerable controversy and attention.

Subsequent views about what we should learn and do as a result of this spill have been quite divergent and, in this writer’s view, off the mark. 

As might be expected during this election season, one response was protracted administration-bashing Congressional hearings, aimed at the heads of both EPA (criticizing the Agency for not better controlling its contractor at this remote mountain site) and the Department of the Interior (which has no responsibility for the site but issued a requested report on the spill).  Not surprisingly, these blame-and-shame hearings were not focused on, and did not produce, constructive information or plans for preventing such events in the future.  However, they did cause EPA remedial efforts and related U.S. transactions at inactive mine sites to be put on hold, which was counter-productive for dealing with this problem. 

At the other extreme, some environmental advocates have asserted that this wastewater release from an inactive mine supports their view that U.S. mining law should be fundamentally overhauled, including to provide for substantial royalty payments to the government and imposition of major financial assurance requirements on miners under CERCLA Section 108.  Those calls ignore the fact that this historic site pre-dates subsequently adopted mine reclamation and bonding requirements imposed on current mines under state and federal law.  They also represent a sea-change in mining law that goes far beyond this inactive mine issue, would occur at a difficult economic time for the mining industry, and is unlikely to gain traction in this polarized political climate. 

Congressional reactions reflect those widely disparate positions, with new proposed bills ranging from a narrow proposal for grants to mining colleges to study the problem (H.R. 3734) to a broad mining reform act that imposes substantial new fees and royalties (H.R. 963).  One other proposed bill would freeze DOI’s Abandoned Mine Lands (AML) Program at $17 million per year and institute a “Good Samaritan” program to encourage third-party volunteer clean-ups at AMLs (H.R. 3843), and another would create a foundation to accept donations for AML cleanups, with one-time matches from the federal government of up to $3 million per year (H.R. 3844). 

Many of these proposals are either political posturing or over-reaching, and others do not focus on or effectively address the problem of abandoned mines.  Moreover, they either are unlikely to go anywhere in Congress, or would accomplish little if they do.  

However, there are effective steps we should take if we learn the following key lessons provided by the Gold King spill:   

·         There are tens of thousands of abandoned mines like Gold King that are already discharging polluted wastewater to thousands of miles of streams.  If we do nothing, such discharges will continue and worsen, and occasional blow-out releases like Gold King are inevitable. 

·         The damage and economic impacts caused by these abandoned mine sites are real and will increase. 

·         These mine sites are very complex and expensive to fix. 

·         Some states and volunteer entities are willing to address these sites if existing liability disincentives can be removed.

Given these circumstances, we should focus on practical approaches that will achieve real, near-term, on-the-ground remedial actions.  Furthermore, the approaches must be backed by meaningful sources of funding, and be politically achievable in the current, polarized political climate. 

A good start would be adopting an effective “Good Samaritan” law addressing the existing disincentives for third parties to remediate abandoned and inactive mine sites, coupled with meaningful federal funding initiatives.  The Keystone Policy Center is currently working to achieve consensus on such an approach. 

A second practical approach would be to use CERCLA National Priority List (NPL) designation at select sites to provide funding where no viable mine operators remain.  The Gold King incident has served as a catalyst for removing past local opposition to NPL listing for the upper Animas River drainage.  That’s a good beginning. 

We should heed Twain’s advice and use the real lessons of Gold King to move beyond politics and take practical steps like those noted above to start fixing these old mine sites.  And we should stop getting mired in the same, currently dead-end debates that lead to doing nothing and can be put aside for another day – lest we be like the cat that will never sit on a cold stove-lid.

Encouraging the Use of Abandoned Coal Mine Drainage for Hydraulic Fracturing in Pennsylvania through a Good Samaritan Statute

Posted on June 21, 2012 by Chester Babst

The development of natural gas shale formations, such as the Marcellus and the Utica in Pennsylvania, Ohio and West Virginia, requires reliable sources of water for hydraulic fracturing that makes gas extraction from tight shale possible.  In Pennsylvania―a state with relatively plentiful ground and surface water sources―there are water sourcing challenges presented by various regulatory frameworks as well as withdrawal limitations in sensitive headwater areas of the state that coincide with current oil and gas activities. 

One alternative to using fresh water for hydraulic fracturing is the use of water supplies affected by acid mine drainage (AMD), which are also plentiful in Pennsylvania.  While the use of AMD by the oil and gas industry offers many potential benefits, operators are reluctant to become entangled in long-term liabilities created by the current legal framework for such pre-existing contamination.

Recognizing the need to encourage the treatment of abandoned AMD, Pennsylvania adopted the Good Samaritan Act, 27 Pa. Cons. Stat. §§ 8101 et seq., in 1999 to provide liability relief for various stakeholders, volunteers and watershed groups to undertake cleanup efforts of pre-existing contamination from AMD.  One recent legislative proposal would amend the Act to allow relief from liability for the use of mine drainage, mine pool water, or treated mine water for the development of a gas well.  This amendment, which has bi-partisan support in the Pennsylvania legislature, provides relief from third party claims as well as enforcement under various liability schemes.

On a parallel track, the Pennsylvania Department of Environmental Protection (PADEP) has been investigating means by which it could encourage the use of AMD by oil and gas operators.  See PADEP’s draft White Paper: Utilization of AMD in Well Development for Natural Gas Extraction, November 2012.  PADEP is engaging in ongoing discussions with stakeholders regarding possible processes and solutions for the treatment, storage, and liability issues associated with such an undertaking. 

At the federal level, the United States Environmental Protection Agency (EPA) has developed a Good Samaritan Initiative to protect volunteers from liability for the remediation of drainage from abandoned hard rock mines.  EPA’s program, however, does not encompass coal mine drainage, which is the primary source of AMD in Pennsylvania.  Short of legislative changes to the Clean Water Act or CERCLA to protect operators from potential liability, an expansion of EPA’s initiative to encourage the use of AMD for hydraulic fracturing in Pennsylvania would provide greater confidence to the oil and gas industry that both state and federal agencies are willing to provide appropriate relief to encourage the use of AMD.

While it seems like a win-win-win for the environment, industry and the Commonwealth, it remains to be seen if workable solutions will be found to encourage the use of AMD while limiting long-term liability related to that use.