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Colorado river spill: Fixing the 1872 law that haunts thousands of old mines

Like the Gold King mine, where toxic metals spewed into the Animas River in Colorado, thousands of old mines around the West left behind potentially polluting materials. Changing the 1872 law behind that is likely to be an uphill battle.

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    Mike Wright and Mike Carruthers clear away debris from the Stacey Ditch in Aztec, N.M., Saturday. Federal officials say initial tests on sediments collected downstream of a mine waste spill show no risk to people using Colorado's Animas River.
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The US Environmental Protection Agency says it’s now safe for recreational boaters to use the Animas River following a mine waste spill in Colorado that befouled the river with toxic metals and turned it a mustard yellow.

But the long-term effects of the spill at the Gold King mine are unknown, and the episode points to a much larger environmental problem – many thousands of such mines across the West, many of them abandoned and with piles of potentially polluting materials left behind after the ground had been scraped and scoured and blown up in the search for gold, silver, and other valuable minerals.

The problem has its historical roots in the General Mining Law signed by President Ulysses S. Grant in 1872 and still in effect.

Critics say the law made it too easy for individuals and corporations to obtain the rights (and sometimes the title) to areas claimed for mining on public land, demanded no royalties on the profits from such mining (which are required of other extractive industries, including coal, oil, and natural gas), and made no provision for cleaning up mine waste.

The industry – which has grown from individuals with a pick ax and a dusty mule to large corporations with massive earth moving equipment – denies this, noting modernized means and methods of extracting valuable minerals from the land, most of it in the American West.

The problem in Colorado started on August 5 when EPA contractors inadvertently breached an old, no longer active gold mine, sending three million gallons of toxic sludge containing arsenic, lead, and other substances downstream, polluting the Animas River and threatening water quality in Colorado, Utah, New Mexico, and the Navajo reservation. The contractors had been investigating contaminated wastewater leaking from the mine, which had stopped operating in 1923.

Since then, reports EPA Administrator Gina McCarthy, “The plume of contaminated water has dissipated downstream, and our efforts to trap and treat the discharge are helping to protect communities along the river from further impacts.”

“We’re continuing to monitor and to sample water quality in areas that could be affected by the spill,” Ms. McCarthy wrote on her Facebook page. “We’ll release our analysis as soon as we’re able.”

“We take responsibility for the spill,” she wrote. “We’re working closely with state and local partners and with tribal nations as our efforts progress. We’re going to see this through and get it right.”

Based on past experience, that could mean a very long and very costly effort.

The Associated Press reports two major examples:

California's 150-year-old Iron Mountain mine discharged six tons of toxic sludge a day before a clean-up by the EPA, which declared it a Superfund site in 1983, 20 years after it shut down. The sludge caused massive fish kills in the Sacramento River system, which supplies a fifth of the state's water, more than 30 times. Authorities now spend $5 million a year to remove poisons, and expect to keep at it forever.

At Montana's Berkeley Pit, meanwhile, an acid lake created when Atlantic Richfield Co. turned off the pumps at its copper mine in 1982 grows by millions of gallons every day. The EPA made it a Superfund site, too, planning to keep acid spills from Butte Valley waterways. Meanwhile, the notorious pit grows in infamy: In 1995, an entire flock of migrating snow geese perished after setting down in the water.

“The 1872 Law's legacy includes 550,000 abandoned and inactive mines; 10,000 miles of degraded rivers and streams; hundreds of polluted lakes and reservoirs; and, more than 50 Superfund sites,” reports the Center for Environmental Equity. Mining activity has contaminated the headwaters of more than 40 percent of watersheds in the West, according to the EPA.

Earthworks, another nonprofit environmental organization, estimates that it will cost taxpayers between $32-72 billion to clean up these mines. A congressional report based on EPA figures put the total cleanup costs for such hardrock mines at $20-54 billion.

“Westerners should stand up and take notice: Our communities are at risk,” Earthworks policy director Lauren Pagel wrote in a CNN opinion column. “This is not our first mining disaster and it won't be the last. Until we tackle the root cause of mining pollution and modernize the 1872 mining law, we are gambling away our most precious resource, water.”

In 2007, the US House of Representatives passed the Hardrock Mining and Reclamation Act, which prevented companies from gaining full title to land on which they had established mining claims, set new environmental rules, and established an 8 percent royalty on the gross incomes from mining. The bill died in the US Senate.

Critics of the 1872 mine law are trying again. In February, Rep. Raúl M. Grijalva of Arizona, senior Democrat on the House Natural Resources Committee, introduced the Hardrock Mining Reform and Reclamation Act of 2015.

The bill would: establish an 8 percent royalty on new mines and a 4 percent royalty on existing mines; use those royalties and money raised by newly established pollution fees to clean up abandoned hardrock mine lands; end the patenting system that allows companies to purchase public land containing minerals for as little as $2.50 per acre; establish strong reclamation standards and bonding requirements aimed at companies that cease work at a particular mine or go bankrupt; protect wilderness study areas, roadless areas, and wild and scenic rivers from mining; and allow state, local, and tribal governments to petition federal authorities to withdraw certain areas from mining in order to protect drinking water, wildlife habitat, cultural and historic resources, or other important values.

To date, the bill has 26 cosponsors – all Democrats.

Even if such legislation were to pass – likely an even longer shot in the Republican-controlled Senate, where Democratic leader Harry Reid of Nevada is the son of a hardrock miner – it would still leave those many thousands of old mines leaking toxic waste, threatening wildlife, water quality, and local economies.

“You can expect such failures like the one we had at Gold King,” Ron Cohen, a civil and environmental engineering professor at the Colorado School of Mines, told The Wall Street Journal. “These sites are just sitting there waiting to fail, and most of them are going to fail sooner or later.”

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