Article by Jeffrey Keidel
Environment – January 1995 – Colorado Central Magazine
Several state-run water-quality improvement projects, including one in Central Colorado, have come to a screeching halt because the federal Environmental Protection Agency has changed the rules.
While the EPA and the state attempt to resolve a definition, old mines continue to ooze heavy-metal residues into western rivers, even though in some cases, treatment facilities are in place and ready to go.
But the treatment facilities, set up by the state, will not start operating until the state and the EPA resolve a legal definition: What is the difference between a point source of pollution and a nonpoint source?
If old mines are deemed a point source, then facilities that treat their polluted water require permits, and the state could be held liable to fines and civil damages if untreated water were to escape and flow into the river.
But if old mines are defined as a nonpoint source, then no permits are required, and there’s no liability if untreated water escapes.
Until recently, the EPA had considered old mines a nonpoint source, and so the state launched three voluntary “good Samaritan” efforts to treat mine seepage.
But the projects are on hold now because the EPA has changed the rules; old mines are now deemed point sources, whose treatment facilities require permits and carry liabilities.
The state doesn’t want that potential liability if something goes wrong at a treatment facility. Thus the state won’t start treating the polluted mine drainage water, even though the state has treatment projects at abandoned mine sites near Keystone, Idaho Springs, and Leadville.
“This kills the St. Kevin Gulch project,” said Jim Herron of the Colorado Division of Minerals & Geology, referring to the project at an abandoned mine site near Leadville. “We aren’t going to treat any water until we know about the liability issue.”
In essence, polluted water seeps out of old mines and flows into our rivers. If the state does nothing, it won’t get in trouble. But if the state does try to treat the water, and anything goes wrong, then it could get into trouble with the EPA — if old mines are a point source.
How did this come about?
Go back to the distinction between point sources and nonpoint sources of water pollution.
Point sources are usually easy to identify. They include pipes from factories or sewage treatment plants, ditches or other conduits bringing polluted (perhaps treated, though) water into a stream or lake.
Point sources require a National Pollution Discharge Elimination System permit. Dischargers are required to meet certain effluent cleanup standards. A permitted discharger also assumes financial liability for violations of the permits.
Nonpoint sources of pollution are a little tougher to identify. Runoff from a farm field or construction site, or soil erosion from an overgrazed pasture are typical examples. A direct source of pollution is not obvious, but its effects on water quality may be substantial.
About a quarter of the state’s river miles are affected by nonpoint sources. However, because of the diffuse nature of nonpoint sources and the implications on land-use controls, discharge permits don’t apply. Efforts to reduce nonpoint sources are voluntary.
SOME MINE SITES blur the distinction between point and nonpoint pollution sources. Abandoned mine sites typically include small drainage tunnels or adits with various seeps and leaks from the tailing piles.
Are such sites considered point sources of pollution which require NPDES permits with the accompanying liability? Or do they fall under the nonpoint source definition which requires no NPDES permit and very limited liability?
Although this question may sound like something so arcane that only a bureaucrat would care, it has important implications in an area where so much mining took place a century ago.
Scattered and abandoned mines combine to contribute heavy metal loads to the river. A few state agencies, like the CDM&G, use cost-share funds made available under Section 319 of the Clean Water Act to experiment with ways to treat these pollutants. The EPA administers those funds.
These “demonstration projects” have tried to focus on “innovative, low-cost, significant improvements” to water quality rather than emphasize “high-cost perfection,” according to Randy Leu of the U.S. Bureau of Reclamation.
Many of these operations include Passive Drainage Treatment Systems that use limestone to reduce acidity and constructed wetlands which allow bacteria to reduce heavy metals.
The state could experiment with cheap ways to treat such seepage because the EPA informally treated the old mines as nonpoint sources.
“There was an unwritten understanding that abandoned tunnel discharge was a nonpoint source,” said Herron. The state agencies proceeded with demonstration projects under that assumption. The EPA even approved the funding. “But when it came out in black and white, then the [state] lawyers said ‘whoa’.”
Herron refers to a letter, written by the EPA to the state of Montana, which states: “Mine adits are quite clearly point sources as defined under Section 502 (14) of the CWA … discharges from mine adits at historic or active mines are point sources and are required to have an NPDES permit.”
Because of this letter, Herron has refused to turn on a passive treatment system recently completed on Peru Creek, near Keystone. He is concerned that his agency could be sued by a third party for not having a NPDES permit on what was originally a nonpoint source project.
A case in California confirms his fears: A municipal water provider voluntarily captured polluted water from an abandoned mine site and contained it in evaporative reservoirs, thus protecting a nearby stream.
Occasionally the captured, polluted water spilled over the containment reservoirs and into the stream. An environmental group sued on the grounds that the reservoir release was a point source and the municipality did not have an NPDES permit. The environmental group won, even on appeal.
Therefore, with NPDES requirements in effect, an agency voluntarily cleaning up an abandoned mine site could incur liability and have the maintenance responsibilities for a very long time.
“That letter put the fear of God in everybody,” said Greg Parsons of the Colorado Water Quality Control Division. “Colorado is heavily invested in these good-faith, mine cleanup projects. We saw the 319 program as a real opportunity. I only hope this issue gets resolved quickly, so that projects like St. Kevin Gulch can move forward.”
According to EPA officials, this situation arose because some active mines were “trying to weasel their way out of NPDES permits.”
Apparently, pollutants at some active mining sites are moving into the ground water and then resurfacing nearby as seeps or other ground water discharges, sometimes at abandoned properties, thereby skirting NPDES regulations.
Therefore the EPA’s new position is that “seeps and ground discharges hydrologically connected to surface water from mines, either active or abandoned, are discharges from point sources and are subject to regulation though an NPDES permit.”
The negative impact of this change on the good Samaritan, passive operations at abandoned mine sites was not anticipated.
The EPA classifies inactive mine sources that have no other nearby mining, as point sources with a low priority for clean up. So, the Section 319 nonpoint program was seen as a more readily available source of funds for remediation.
DESPITE THE STATE’S apprehension, the EPA intends to continue to fund abandoned mining projects under the Section 319 wording: “The [EPA] Administrator may give consideration to … programs which will control particularly difficult or serious nonpoint source pollution problems, including but not limited to problems resulting from mining activities.”
Or, according to Dale Vodehnal, the EPA’s regional chief of the Water Quality Branch, his agency would be receptive to modifying a general NPDES permit for passive mine projects, perhaps thereby allaying the state agency’s liability fears. State officials are considering the offer.
“The whole thing is tragic,” said Pat Davies, a fishery biologist with the Colorado Division of Wildlife. He has been doing extensive research on impacts of heavy metal pollution on trout throughout the state. “It seems like the EPA is shooting itself in the foot.” He feels that every effort should be made to streamline the bureaucratic processes involved in cleaning up rivers.
The long-term resolution rests with the congressional reauthorization of the Clean Water Act, which may be more than a year away. A team of state and federal officials has drafted a new section to the CWA that specifically addresses Good Samaritan efforts to remediate abandoned and inactive mines. It will be forwarded to Washington.
In the meantime, there are well-intentioned efforts to explore inexpensive ways to clean up polluted water from abandoned mine sites, and the efforts now sit idly on bureaucratic shelves.
“I think people should get angry about this,” said Dave Bucknam, director of the Inactive Mine program at the CDM&G. “EPA is working with us, but I encourage people to call their congressmen so that this issue can get resolved and we can get back to the business of cleaning up streams.”
For more information, contact Dave Bucknam, Colorado Division of Minerals & Geology, 303-866-3567, or Greg Parsons, Colorado Department of Health, 303-692-3585, or Dale Vodehnal, EPA, 303-392-1572.
This is adapted from an article which originally appeared in the Fall 1994 edition of the Upper Arkansas Watershed Journal, which Jeffrey Keidel edits. For subscription and other information, you can reach him at P.O. Box 938, Buena Vista CO 81211, or 719-395-6035. He’s planning a second annual Upper Arkansas Watershed Forum on April 19 and 20 in Cañon City.