AN EPHEMERAL LANDSCAPE: TRAVERSING THE ......DYNAMICS SURROUNDING ABANDONED MINES AND MINING...

by Anthony Edwardsand Paul Nazaryk

AN EPHEMERAL LANDSCAPE: TRAVERSING THE FRACTURED REGULATORY DYNAMICS SURROUNDING ABANDONED MINES AND MINING DISTRICTS

PresenterPresentation NotesPaul: Anthony and I for the 1st time about one month after the Gold King spill. Bob Arnott and I were giving a presentation to the Animas River Stakeholders Group in Silverton on possible federal programs out there that could be used as a source for abandoned mine cleanup. Along with Superfund we discussed Clean Water Act, § 319 program and the Abandoned Mine Land program under SMCRA (Surface Mining Control and Reclamation Act). This was before the community finally came together and accepted albeit reluctantly to the county becoming home to a Superfund site. So anyway, we met Anthony who was both the Communication Director for the County and the San Juan County Judge. He have since become friends and fellow collaborators or perhaps co-conspirators.

So let me introduce Anthony Edwards. He s a partner with Sholler Edwards, LLC in Silverton, Colorado. His practice focuses on real estate transactions, environmental law, and natural resources matters. Anthony worked with the New Mexico Environment Department’s Surface Water Quality Bureau and holds a Master of Water Resources degree from the University of New Mexico with an emphasis in Environmental Policy. He was awarded the Dean’s Award at the University of New Mexico School of Law upon graduation. He is authorized to practice in the U.S. District of Colorado, U.S. District of New Mexico, U.S. Court of Appeals (D.C.), the U.S. Board of Contract Appeals, and in the State Courts of Colorado.

SAN JUAN WATERSHEDENCOMPASSES THE SAN JUAN AND ANIMAS RIVERS AND LAKE POWELL, WHICH ARE ESSENTIAL FOR RECREATIONAL, AGRICULTURAL, CULTURAL, AND RESIDENTIAL USES.

THE JURISDICTIONS (Tribal & State)

• Navajo Nation• Southern Ute Indian Tribe• Ute Mountain Ute Tribe• Arizona • Colorado• New Mexico• Utah

PresenterPresentation Notes

Anthony: Paul Nazaryk is an environmental consultant and attorney with Ramboll in Durango, Colorado with experience in environmental permitting, compliance, and remediation projects. He possesses an expert level understanding of several major statutory programs including the Resource Conservation & Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation & Liability Act (Superfund). His private sector experience includes serving as corporate counsel for environmental regulatory affairs for BHP Billiton, a major international mining company. Within the public sector, Paul has worked for the Colorado Department of Public Health & Environment handling hazardous waste enforcement. He also worked for the U.S. Water Resources Council and a former Congressman on environmental and natural resource policy issues. He earned his J.D. from the University of Denver and a Master’s degree in Environmental Policy from Colorado State University. He is licensed as an attorney in Colorado, New Mexico, and Montana.

AN EPHEMERAL LANDSCAPE: TRAVERSING THE FRACTURED REGULATORY DYNAMICS SURROUNDING ABANDONED MINESAND MINING DISTRICTS

Our Agenda: Focus on the Bonita Peak Mining District Superfund Site

1. The Past Before Gold King

2. The PresentCurrent Developments

3. The FutureReimagining Superfund (or maybe something better)

PresenterPresentation NotesPaul: Anthony and I organized our discussion around a number of key themes that we consider important to the problem of abandoned mines historic mine districts. These themes are structured around a general timeline. We are going to be using our experience with the Upper Animas River Basin and the Bonita Peak Mining District as an example. We anticipate that many, if not most of these themes, will apply to other historic mining districts in the West.

First, we are going to provide a little history to put things in context.

Next, we are going to talk about more recent events – really events and activities that have occurred since the Gold King blow-out.

And finally, we want to talk about the future.

And this is where we need your help. In my experience, Superfund is clumsy and clunky program. It’s like using a sledge hammer where you may need a wrench. It may solve the problem but that solution may be decades away, way too expensive, and may be fundamentally unfair to the parties involved.

It’s great to talk about Superfund reform and Good Samaritan legislation is definitely needed. But in reality, I’m not sure that’s enough. So at the end of our discussion, we want to open the door to Reimaging Superfund - or maybe coming up with something better to deal with the problem of abandoned mines.

THE PAST: BEFORE GOLD KINGUPPER ANIMAS WATERSHED

• Silverton Caldera was the site of volcano 27 million years ago

• Heavy mineralization attracted miners in the 1870s, primarily gold and silver

• Gold King Mine closed in 1922

• Last active mine, Sunnyside Mine, closed in 1991

• About 400 abandoned mines in watershed

• Today federal government is largest landowner in San Juan County, Colorado, owning about 88.6% of land within county

• EPA and Colorado became concerned water quality in 1990s and began considering NPL listing under Superfund

• Formation of Animas River Stakeholders Group (ARSG) in 1994 at urging of State of Colorado

PresenterPresentation NotesPaul: Silverton, Colorado, San Juan Country and the Upper Animas is an interesting place.

San Juan County, Colorado and the Upper Animas watershed is located within a collapsed volcano known as the Silverton Caldera which was last active about 27 million years ago. It is a highly mineralized area with significant natural background levels of metals.

Those metals include gold and silver the ones that the miner’s want and also include metals like iron, aluminum, cadmium, and zinc which find there way to our rivers. Note that two of the major tributaries have names like Mineral Creek and Cement Creek. That’s significant. (ferricrete).

The federal government is the big landowner in the county. We will discuss the importance of this fact later.

San Juan County is the smallest county in terms of population in Colorado. San Juan County has highest mean elevation of any county in U.S at 11,240 feet. The Town of Silverton’s elevation is 9,317 feet. It’s a land of long winters, deep snowpack, and avalanches.

THE PAST: BEFORE GOLD KINGUPPER ANIMAS WATERSHED

• State of Colorado and Sunnyside Gold Consent Decree signed in 1996

• Upper Animas River Use Attainability Analysis (UAA) in 2001 projected that 33 draining adits and 32 waste piles responsible for 90% of mine-related metals loading

• It is estimated that four discharges adits are responsible for up to 50% of metal loading from 160 mine adits

− Gold King, American Tunnel, Red and Bonita, and the Mogul

• About 60 voluntary mine tailings clean-ups focus on mine tailings because of concerns over perpetual liability under Clean Water Act

• Water quality improved until 2004 and EPA again began public discussing an NPL listing and conducting investigations

• There have been many “blow-outs” in the Upper Animas and Gold King is not the largest.

− Collapse of “Lake Emma” into American Tunnel on Sunday, June 4, 1978 - 500 million gallons vs. 3 million for Gold King

PresenterPresentation NotesPaul

THE GOLD KING SPILL

August 5, 2015

PresenterPresentation NotesAnthony

THE PRESENT: CURRENT DEVELOPMENTSBONITA PEAK HISTORIC MINING DISTRICT

• Bonita Peak Historic Mining District was listed as a Superfund NPL site on September 9, 2016

• Consists of 48 historic mining sites within Mineral Creek, Cement Creek, and the Upper Animas River

The NPL does not describe releases in precise geographical terms… Indeed, the precise nature and extent of the site are typically not known at the time of listing”.

- “Bonita Peak Mining District” listing at 81 Federal Register 62399 (September 9, 2016).

PresenterPresentation NotesPaul: So let’s talk about the nuances of Bonita Peak Superfund site. After the Gold King spill, Silverton and the County entered discussions with EPA and Colorado over the proposed listing. A requirement for listing is that the Governor requests that EPA lists the site and the Governor relied upon the Town and County to work things out with EPA. The Town and County requested several things. One, was not to call it the Silverton or San Juan County Superfund site. Two, was not to list the entire watershed. Of course, working things out with EPA is a moving target.

The Town and County advocated a “chocolate chip” cookie approach where the “chips” were listed but not the rest of the “cookie”. As result, the listing includes 46 sites and 2 study areas.

Of the 48 sites, only 19 were actually scored by EPA using the hazard ranking system (HRS).

Imagine that the listed mining sites contaminated with hazardous substances are chocolate chips. We don’t know how big the chips are or the extent of the listing. They could be “mini chocolate chips” others could be “chocolate chunks”. Keep in mind these are three-dimensional chips so they could be small aboveground and large below the surface. The chips may be smeared throughout the cookie.

Also keep in mind the natural background issue. Our chocolate chip sites are already in an area of high natural background concentrations of metals. So what we may have is a “chocolate”, chocolate chip cookie.

Throughout the Superfund remedial Investigation (RI) process chips may be added or removed. With this complexity a key questions is, how will remediation goals be determined and success of cleanup measured and what location will the measured?

• The Bonita Peak Mining District is at the headwaters of the Animas River, a tributary to the San Juan and Colorado rivers

• EPA describes the Bonita Peak site:

“… as being centered within headwaters of the Animas River watershed in the San Juan and Silverton calderas in southwestern Colorado and potentially extending to wherever contamination from these sources comes to be located… contamination from the Gold King Mine release has come to be located in Lake Powell.”

- EPA Declaration (September 28, 2017)

• So where does the NPL boundary end?

THE PRESENT: CURRENT DEVELOPMENTSSUMMARY OF GOLD KING LITIGATION

Gold King Mine (Consolidated Cases)

New Mexico v. EPA, et al., Navajo Nation v. EPA, et al., Utah v. EPA, et al., and Private Party Class Action


GKI:

STATE & TRIBAL CLAIMS

GKI:

SUPERFUND CLAIMS

GKI: FEDERAL

TORT CLAIMS

REPRESENTATION OF THE CURRENT AND ANTICIPATED LITIGATION/LEGAL NEGOTIATIONS RELATED TO THE GOLD KING SPILL AND BONITA PEAK MINING DISTRICT

THE PRESENT: CURRENT DEVELOPMENTSLEGAL CHALLENGES


THE PRESENT: CURRENT DEVELOPMENTSSUPERFUND PROCESS STATUS

Remedial Investigation Phase

• Risk Assessments – Human Health, Aquatic Baseline Ecological, and Terrestrial Risk Assessments

• Administrative Order on Consent with Sunnyside to Conduct Remedial Investigation of Mayflower Mill Tailings

• EPA Groundwater Investigation Model Development

• Unilateral Order to Sunnyside to Investigate Bonita Peak Groundwater System

Removal Action / Interim Action

• Gladstone Interim Water Treatment Plant

• EPA proposed plan for Interim Remedial Actions published on June

Other

• State of Colorado Assessment of Bulkheads

• USGS / USFS High Resolution LiDar Data

• USFS / BLM Investigations

PresenterPresentation NotesBoth

I’m not crazy about this slide but it is important because it describes the Superfund process.

THE PRESENT: CURRENT DEVELOPMENTS PROBLEM OF NATURAL BACKGROUND

• Bonita Peak Mining District located within a highly mineralized area and “natural background” is a significant factor in metal loading in streams

− Extent is variable depending upon stream segment, season, and year (drought v. wet year)

• Superfund states at 42 U.S.C. § 9604(a)(3):

“The President shall not provide for a removal or remedial action under this section to a release or threat of release –

(A) of a naturally occurring substance in its unaltered form, or altered solely through naturally occurring processes or phenomenon, from a location where it is naturally found…”

• Clean Water Act states at 33 U.S.C. § 1251 that its goal is:

“…to restore and maintain the chemical physical and biological integrity of the Nation’s waters.”

In Sierra Club v. Leavitt 488 F.3rd 904 (2007), the Federal Court of Appeals for the 11th Circuit stated: “The phrase “restore and maintain” indicates that Congress sought to return waterbodies to their natural conditions, not modify waterbodies’ natural conditions.”


THE PRESENT: CURRENT DEVELOPMENTSFEDERAL GOVERNMENT AS “POTENTIALLY RESPONSIBLE PARTY”?

Molybdenum mine near Questa, New Mexico. Activities conducted on private and unpatented lands.

• Chevron Mining v. United States

− July 19, 2017 decision by 10th Circuit Court of Appeals

− Chevron filed suited against federal government arguing that USFS was “potentially responsible party” (PRP) as “owner” and “arranger”

• 10th Circuit held that:

− Held that because federal government was “owner” of land where hazardous substance was disposed, it was liable under Superfund for “equitable” portion of remediation costs

− Not “arranger” because USFS did not own or possess the hazardous substance disposed of on site

− Suggested that “bare legal title” holder could be liable for a small, or even no, share of remediation costs

− However, also noted that federal government directly encouraged exploration and mining in the DefenseProduction Act of 1950 to supply necessary “materials and services for the national defense”


THE PRESENT: CURRENT DEVELOPMENTS HISTORIC MINING LAND RECORDS

• Conflicting and overlapping mining claims

− Accuracy of both San Juan County and federal historic land ownership records

− Surveys may be based upon natural features that no longer exist

− New improvements in survey technology (GPS, GIS software, drones, 3D modeling)

Patented mining claims in Gladstone area


THE PRESENT: CURRENT DEVELOPMENTS COMPLEX GROUNDWATER HYDROLOGY

• Fractures and tunnels allow for easy communication of contaminated and uncontaminated groundwater

• What are the implications of bulkheads (e.g., raising groundwater table)?

PresenterPresentation NotesPaul: Fractures, tunnels may allow for the easy communication between contaminated and uncontaminated groundwater.

Also bulkheads change the groundwater regime by raising the groundwater table. Once that happens water will another way out.

You may recall that owner of the Gold King Mine after the blow-out blamed EPA and Sunnyside Mine for the event because they installed bulkheads at the American Tunnel.

THE PRESENT: CURRENT DEVELOPMENTSSUPERFUND IS NO LONGER A “FUND”

• About 1,350 National Priority List (NPL) sites

− Many are in larger states and urban areas

• Superfund process takes decades

− Many sites have been on NPL since the early 1980s

• Superfund Trust Fund Tax on petrochemicals expired in 1995

− From 1981 to 1995 tax generated $12.7 billion which was used for site remediation

− Fund has been exhausted since 2003

− Funding now relies on uncertain Congressional appropriations, FY 2019 budget request of $1.089 billion

− Compare to estimated $1 billion cleanup for Questa Mine site

• If nothing changes, just the cleanup of existing sites under Superfund may take centuries


Key here is that Superfund is no longer a fund. Relies on annual appropriations.

If nothing changes, the cleanup of existing sites will take centuries.

Right now, Bonita Peak has been elevated to one of the top 21 sites nationwide. But that’s this administration which will change in 2 or 6 years.

THE FUTURE: REVISITING SUPERFUNDWESTERN WATER AND HISTORIC MINING DISTRICTS

Historic mining districts are often located found in the headwaters of our major river systems and are the

ultimate source precious water supplies in the arid West.

“Anyone who can solve the problems of water will be worthy of two Nobel prizes, one for

peace and one for science.”- John F. Kennedy


THE FUTURE: REVISITING SUPERFUNDPRIVATE PARTY CLEAN-UPS & GOOD SAMARITAN LEGISLATION

• The term “Good Samaritan” refers to a party who undertakes clean-up actions and is not responsible for property’s environmental condition

• A Good Samaritan may be potentially liable under -

− Clean Water Act for any discharge to surface water in perpetuity

− Superfund as a potentially responsible party

• EPA has adopted “Good Samaritan” protection policies but these -

− Do not offer any real legal protection against 3rd party lawsuits by NGOs or a change in policy by EPA

• Efforts to enact Good Samaritan legislation since 1998 have failed

− Despite bipartisan support and endorsement by the Western Governors Association

• Most recent bills in 115th Congress

− S. 3727: Good Samaritan Remediation of Orphan Hardrock Mines Act of 2018

− H.R. 7226: Good Samaritan Remediation of Orphan Hardrock Mines Act of 2018


THE FUTURE: REVISITING SUPERFUNDENCOURAGING USE OF INNOVATIVE TECHNOLOGIES

• Management of acidic mine water traditionally requires construction of water treatment plant

− Proven, effective technology

− High plant construction and ongoing O&M costs requiring commitment to treatment in perpetuity

− The problem of sludge disposal

• Use of innovative, alternative technologies under Superfund?

− Passive systems (wetlands, etc.)

− Other


Mountain Studies Institute founded the Silverton Innovation Expo. Both Anthony and I have been involved in it.

One of its focuses is the treatment of mine water.

THE FUTURE: REVISITING SUPERFUNDHOW CLEAN IS “CLEAN” IN WORLD OF HIGH NATURAL BACKGROUND?

• How clean is “clean”? An old quandary with a new twist

• Baseline ecological and health risk assessments

− Part of the Remedial Investigation / Feasibility Study (RI/FS) phase

• Superfund “borrows” cleanup standards from other federal and state statutes and regulations

− Applicable or relevant and appropriate requirements (ARARs)

• May include stream standards, MCLs, and lifetime cancer risk exposure levels of between 10¯4 and 10¯6

• Natural background not addressed in Superfund regulations or National Contingency Plan

− Addressed in EPA guidance documents

“No risk is the highest risk of all.”- Aaron Wildavsky


THE FUTURE: REVISITING SUPERFUNDCAN’T WE JUST FOCUS ON THE “BIG STUFF”?

• What are the clean-up goals?

• Ongoing tension between

− Full Remedial Investigation v. Relying on Existing Information

− National Contingency Plan Requirements v. Quick, Cost Effective Solutions

- Natural Loading v. Anthropogenic Impacts

- EPA Approach v. Federal Land Manager’s Approach to Goal Setting

“… [T]here is clearly sufficient knowledge in hand to make the decisions necessary to successfully address the major remaining sources of metals loading to the Animas River … many sources of metals loading have already been successfully addressed through reclamation and bulkheading. The remaining significant source of metals loading to the Animas River is point sources in the Cement Creek drainage. It is clear that targeting these point sources should be the priority. Addressing the flows from these point sources would substantially reduce metals loading to the Animas River and demonstrably benefit the trout fishery downstream from Silverton…”

- From “There is More Than Sufficient Knowledge to Tackle Bonita Peak Today and Improve Water Quality in the Animas River,” Sunnyside Gold Corporation (SGC), February 2018


THE FUTURE: REVISITING SUPERFUNDOTHER APPROACHES?

• Superfund was not designed for historic mining sites

• Landfills and urban sites

• Love Canal and Valley of the Drums

• Federal Surface Mining Control and Reclamation Act (SMCRA) Model

• Abandoned Mine Land (AML) Program funded by severance tax on coal

• $0.28/ton (surface) and $0.12/ton (underground)

• May be used for hard rock mining sites once all abandoned coal mines have been remediated

• Western Australia Mining Rehabilitation Fund

• 1% levy on new mines to fund abandoned mine remediation, disturbances below rehabilitation threshold of $50,000 AUD are exempt

Funding of upstream water treatment by downstream water users who benefit from improvements?


I did a quick search to see how many Superfund sites were coal mines. I couldn’t find any although I did find two coal gasification plants.

This doesn’t mean that coal mines don’t pose environmental problems but it may mean that these problems are better under control.

FOUR PENDING U.S. SUPREME COURT CASES THAT COULD CHANGE THE ENVIRONMENTAL REGULATORY LANDSCAPE

• Gundy v. United States

- Supreme Court will rule whether a Congressional delegation of authority to an agency to develop regulations violates the “nondelegation doctrine.” The case could resolve how much decision-making power Congress can delegate to administrative agencies.

• Kisor v. Wilkie

- Supreme Court will decide whether to overturn the “Auer” agency deference standard. Under this standard, courts currently defer to an administrative agency’s interpretation of its own regulations except where the interpretation is clearly inconsistent with language in its regulations.

• Atlantic Richfield v. Christian

- Supreme Court will decide whether property owners within a National Priorities List (NPL) site can bring common law claims for contamination and damage to their property after EPA has already approved of a remedy and cleanup standards under Superfund.

• County of Maui, Hawaii v. Hawaii Wildlife Fund

- Supreme Court will rule on whether the federal Clean Water Act applies to a discharge of a pollutant to ground water where the pollution reaches “waters of the U.S” in this case, the ocean.

REIMAGINING SUPERFUND

THE FUTURE: REIMAGING SUPERFUND(OR MAYBE SOMETHING BETTER)

• What reforms should be considered to make Superfund more efficient, equitable, and cost-effective?

• How can we and assist communities in moving through the Superfund process?

• What would be the best way to actually “fund” Superfund?

• What alternatives to Superfund should be considered to cleanup abandoned mines and historic mining districts?

• What would be the best way to facilitate the cleanup of historic mining districts?

• What alternatives to Superfund should be considered?

• What is the best way to facilitate a national dialogue on more effective and efficient ways to deal with the problem of abandoned mines and historic mining districts?

“Gold King” focused attention on the problem of historic mining districts and resulted in a renewed interest in Good Samaritan legislation and pilot programs.

PresenterPresentation NotesBoth: This is where we need your help.

Slide Number 1San Juan watershed��encompasses the San Juan and Animas Rivers and Lake Powell, Which are essential for recreational, agricultural, cultural, and residential uses. An ephemeral landscape: traversing the fractured regulatory dynamics surrounding abandoned mines�and Mining Districts�The Past: Before gold king�UPPER Animas watershedThe Past: Before gold king�UPPER Animas watershedThe Gold King SpillThe Present: current developments�Bonita peak historic mining districtThe Present: current developments�Summary of gold king litigation Slide Number 9The Present: current developments�Superfund Process statusThe Present: current developments �problem of natural backgroundThe Present: current developments�federal government as “Potentially Responsible Party”? The Present: current developments �Historic Mining land recordsThe Present: current developments �complex groundwater hydrologyThe Present: current developments�superfund is no longer a “fund”The future: Revisiting superfund�Western water and historic mining districtsThe future: Revisiting superfund�private party clean-ups & good Samaritan Legislation The future: Revisiting superfund�Encouraging use of innovative technologiesThe future: Revisiting superfund�How clean is “clean” in world of high natural background?The future: Revisiting superfund�can’t we just focus on the “big stuff”?The future: Revisiting superfund�other approaches?Four Pending U.S. Supreme court cases that could change the environmental regulatory landscapeREIMAGINING SUPERFUNDThe future: Reimaging superfund�(Or maybe something better)

AN EPHEMERAL LANDSCAPE: TRAVERSING THE ......DYNAMICS SURROUNDING ABANDONED MINES AND MINING...

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Transcript of AN EPHEMERAL LANDSCAPE: TRAVERSING THE ......DYNAMICS SURROUNDING ABANDONED MINES AND MINING...