New mining office sparks concern over authority, loopholes

By Ariel Wittenberg, Kevin Bogardus | 09/03/2020 01:45 PM EDT

Critics fear EPA’s creation of a “new office to clean up old mines” in the West will let at least some mining companies off the hook.

EPA has established an Office of Mountains, Deserts and Plains.

EPA has established an Office of Mountains, Deserts and Plains. NeedPix

Critics fear EPA’s creation of a "new office to clean up old mines" in the West will let at least some mining companies off the hook.

And key lawmakers say EPA doesn’t have the authority to reorganize without Congress’ prior approval.

Doug Benevento, EPA’s associate deputy administrator, announced the new Office of Mountains, Deserts and Plains yesterday during a press conference at Colorado Springs’ Western Museum of Mining and Industry. Also in attendance were officials from Idaho, Arizona and Oklahoma, states home to some of the nation’s most sprawling Superfund sites caused by hardrock mining.


Careful to explain the importance of hardrock mining to the nation’s economy, Benevento said cleaning up legacy mines is "uniquely Western work" that must take place in the region, with an office based in Lakewood, Colo., rather than Washington.

"Addressing these issues requires an office with a singular focus and senior leadership who don’t see these issues in the abstract but are actually located in the West and accessible to the communities impacted by them," he said.

Having one office of five to nine staff members addressing hardrock mine cleanups will allow experts in different regions to learn from one another about which technologies work best and will help accelerate cleanup of the 63 Superfund sites created by mining and mineral processing operations in EPA regions 6 through 10, Benevento said. Though the office will receive no new funding and will not allow any Superfund site to "jump the line" ahead of another, Benevento said the increased focus will help move projects along.

‘Good Samaritans’

The office is the brainchild of EPA Office of Land and Emergency Management chief Peter Wright. It will also have oversight over the hundreds of thousands of abandoned mining sites in the West that need to be cleaned up.

In particular, the office will work with and encourage "third parties who are good Samaritans" and "entities that are interested in cleaning up a site in conjunction with remining," EPA spokeswoman Molly Block said.

That could be controversial.

"There are so many mine pollution problems in the country and in the West, so on the one hand, anything that can make a serious dent in it is something to be considered, but it depends on the details," said David "D.J." Janik, a former Region 8 supervisory enforcement attorney. "But if this is a site a mine company is already liable for, it’s basically [public relations], they are calling it a cleanup but really profiting."

Superfund law holds actual polluters liable for cleaning up toxins at sites, as well as landowners who came in after the pollution took place and did not contribute to it.

Since 2007, EPA has attempted to encourage third parties without pollution histories to engage in "good Samaritan" restorations of old mine sites by limiting or waiving their liability under the Clean Water Act and Superfund laws.

As of January 2020, EPA has used this authority just seven times total, according to a Government Accountability Office report in March on the issue. The watchdog found that states and stakeholders have generally not helped address abandoned hardrock mines "because they are concerned about becoming legally responsible for the entire cost of addressing contamination at an abandoned mine if they attempt partial cleanup."

"Some state officials and stakeholders we interviewed said they have not pursued using EPA’s administrative tools because, in part, these tools do not sufficiently alleviate liability under the Clean Water Act" because they only ensure EPA would not sue a "good Samaritan" but do not offer protection from lawsuits from outside parties, the report said.

Many of those waivers have gone to conservation groups like Trout Unlimited, which has used them to restore cold-water habitat for fish streams.

Trout Unlimited CEO Chris Wood said EPA’s waiver process is slow and costly, and the group has spent roughly $50,000 on the process in the past.

"It’s slow and time-consuming, in part because they are a regulatory agency — they aren’t used to permitting this work," he said.

Bills have been introduced in Congress attempting to address these issues — including one 2018 bill from Colorado Republicans Sen. Cory Gardner and Rep. Scott Tipton — but they have yet to pass.

Now, Benevento said the new Office of Mountains, Deserts and Plains will help ease good Samaritan cleanups as it awaits legislative fixes.

"Existing law says if you do a little at a site, you have to do it all," Benevento explained at the press conference. "We have some programs in place to help good Samaritan cleanups avoid that outcome, but we want to make that process as unbureaucratic as possible, so more people want to do it."

In particular, the new office will continue to offer waivers in the form of comfort letters and administrative settlements, while providing closer oversight of these projects and allowing "for more efficient elevation of issues and subsequent policy revisions, if needed," Block said

Critics like Janik, however, fear EPA’s new office could also ease the way for mining companies to escape legal liability, passing off remining projects as cleanup projects in order to get off the hook for any new pollution.

"The problem with mining companies doing good Samaritan cleanups is they would not clean it up; they are mining, not remediating, and there is no way to hold them accountable for making it worse if they get a liability waiver," said Earthworks Senior Policy Counsel Aaron Mintzes. "The worry is you are giving liability waivers to bad Samaritans purporting to be cleaning up when they are really mining for profit. The pollution will last forever, but they won’t be liable."

Block pushed back on those concerns, saying it is "inaccurate to state that this would allow [responsible parties] to avoid liability for contamination they caused or contributed to, and it does not protect mining companies from liability for the cleanup of future contamination."

She pointed to a former cobalt mine in Fredericktown, Mo., at the former Madison County Anschutz Mines Superfund site that was reopened by new owners. The site had been on EPA’s Superfund "emphasis" list to promote timely implementation of a propertywide cleanup but was removed last spring.

"Restoring mining operations demonstrates how economic and environmental revitalization go hand in hand," she said. "Again, the cleanup done by the new owner would not limit liability for environmental damage."

But Mintzes said he is concerned about how the Trump EPA could use good Samaritan waivers for projects like Idaho’s Stibnite mine, which he called the "poster child" for the issue.

The Nez Perce Tribe has filed a Clean Water Act lawsuit against Midas Gold Corp. in an attempt to force the company to begin curbing heavy metals and other pollutants that have been leaching from the site near Yellow Pine, Idaho, which was first mined in 1899.

Mining of the site for antimony reached a height during World War II, and the previous owners abandoned it in 1996, leaving behind a toxic pit polluting key tributaries of the Salmon River.

Midas Gold took over the mining claim in 2009 and says it will clean up the site as it remines it — a solution the Nez Perce opposed.

EPA began moving forward on a good Samaritan waiver for the site this summer.

"This new office would take over that permit, and the company will essentially be permitted for what is ostensibly a remediation project but that’s actually a mining operation," Mintzes said. "The fear is that the liability waiver will be forever, even after they are done mining, just as the pollution will last forever."

Neither Midas nor the Nez Perce Tribe immediately responded to requests for comment.

Support for new office

But the mining industry has already applauded EPA’s new Office of Mountains, Deserts and Plains, specifically for its focus on good Samaritan cleanups.

"We have long supported changes to improve the good Samaritan program so more pre-regulation sites can be cleaned up faster, and we will continue to be partners in that effort," American Exploration and Mining Association Executive Director Mark Compton said in a statement. "We applaud President Trump and [EPA] Administrator [Andrew] Wheeler for taking decisive steps to move these issues forward."

Misael Cabrera, director of the Arizona Department of Environmental Quality, also applauded how the creation of the office could help mining companies clean up old sites, saying the state has a similar program.

"We have two projects being done at the state level with mining companies who are modern and have current cleanup operations where they are taking over legacy sites, taking them over for cleaning them up and putting them to use," he said. "I’m encouraged by EPA’s intent to concentrate on innovative yet practical solutions that respect local concerns."

Wood, at Trout Unlimited, said he did not see a problem with remining projects being considered under the good Samaritan program, as long as it’s not for sites companies are already legally liable for.

"In some ways, you could argue that they are best suited to do it because they have the knowledge, the technology and the equipment," he said, noting that bills his group has supported in Congress would require profits from remining to go into a fund to help pay for additional abandoned mine cleanups. He also said he’s skeptical that EPA can do much to remove liability for either mining or conservation groups without Congress’ help.

"We need to pass a bill in Congress, and we need a funding source to help clean up more of those mines, it’s that simple," he said. "Until we do those two things, we are just frittering around the edges."

In the meantime, questions have arisen about whether EPA is legally able to create an office without congressional approval and whether a new office would even be effective at cleaning up old mines.

Congressional, EPA reaction

The agency informed House and Senate Interior and environment appropriations subcommittees that oversee EPA of the change the same day it announced the new office.

But subcommittee Democratic leaders Rep. Betty McCollum of Minnesota and Sen. Tom Udall of New Mexico say EPA needs congressional approval for the change and that EPA must "suspend the implementation of this reorganization pending our Committee’s review and approval."

"This reorganization is a significant departure from how hardrock mining remediation is currently handled at the agency and therefore must be first evaluated by the Appropriations Committees," the pair wrote in a letter to Wheeler.

EPA employees, too, say they were blindsided by the news yesterday.

Britta Copt, president of the American Federation of Government Employees Local 3607 union, said she heard about the new office from "a source outside the agency several hours before an announcement was made to Region 8 staff."

A copy of that announcement obtained by E&E News shows it was sent to staff after op-eds from Wheeler about the new office had appeared in multiple Colorado newspapers and that even Deb Thomas, deputy regional administrator for Region 8, said she did not know many details about the initiative.

"There are many questions regarding what this means operationally and the timing of impacts this new office will have on [Region 8] work," she wrote. "I do not have answers beyond what we are seeing in the press releases this week."

Public Employees for Environmental Responsibility Executive Director Tim Whitehouse also said the announcement "has come as a surprise to most EPA employees working on these issues."

Block, at EPA, said the agency "followed congressional notification requirements" and that "the appropriate union contacts were informed at the appropriate time."

"It’s unfortunate Democratic committee leadership doesn’t support finding solutions to long-standing Western lands cross-cutting issues and expediting the remediation of abandoned mine lands across the country," said Block, referring E&E News to a statement of support from one of Udall’s constituents, Navajo Nation President Jonathan Nez.

In the meantime, former EPA officials told E&E News they are worried the new office may actually complicate the cleanup process out West.

"The regional offices already have the expertise to deal with cleaning up these old mining sites," said Kerrigan Clough, who served 37 years at EPA, including five as deputy regional administrator in Region 8. "This little office looks a little bureaucracy in the middle. It could add more confusion."

Clough, who retired from EPA in 2008, added, "It could terribly delay any cleanups that are about to get started."

Clough also noticed that EPA’s press release announcing the office only identified Republican lawmakers.

"Politics are at play," Clough said. "Everything you do at EPA is supposed to be bipartisan, but I’ve only seen Republicans associated with this, which is disturbing."

Joel Mintz, a former EPA official who’s now an environmental professor at the Nova Southeastern University College of Law, said he was also concerned that the new office could "undermine" EPA regional offices’ current work to address toxic risks from abandoned mines.

"I think the devil is in the details," he said.

Max Dodson, who served 36 years at EPA, including 12 as an assistant regional administrator in Region 8, and helped handle the Superfund program, said the new office may not be followed by other parts of the agency if it’s not given real authority.

"I would tell the agency to be careful out there," said Dodson, who retired from EPA in 2007. "If you don’t have the ability to make the hard decisions, everybody is going to look at this small office and say it has no portfolio."

Clough said there wasn’t discussion in prior administrations about setting up a separate office, considering EPA depended on its regional offices to clean up hardrock mining sites. The ex-EPA official said it was good the agency was drawing attention to "a large, chronic environmental problem like orphan mine sites" but questioned whether resources would be committed.

"Are they going to add staff? Actual resources? Five to nine employees are not a lot of people," Clough said. "Is this just a big PR splash with a pebble?"

Reporters Kelsey Brugger and James Marshall contributed.