With Superfund Status On The Way, What's Next For Silverton's Polluting Mines?

Mar 2, 2016

Gov. John Hickenlooper has formally requested that a set of abandoned mines above Silverton be listed as a Superfund site. The request comes nearly seven months after an Environmental Protection Agency cleanup crew triggered a massive spill of polluted water from the Gold King Mine, turning the Animas River orange.

A Superfund listing may seem like a solution to the area's long-standing problem of mine pollution, but getting a site on the National Priorities List, EPA's official compendium of Superfund sites, is just the first step in a lengthy process.

Travis Stills, a Durango-based environmental lawyer who has worked with other Colorado communities on Superfund cleanups, said the idea behind Superfund is recognizing "that companies, individuals, businesses, industries that created a mess may or may not be there to clean them up. And a lot of times they weren't."

"It's very, very science-based. It was developed in a way that really went after finding out what was going on and letting the facts and the evidence lead you to the cleanup that was necessary."

Under federal law, the EPA can require companies or people who cause pollution to clean it up, even without listing a site as eligible for Superfund.

In the case of the mines found above Silverton, though, many of the companies that caused the pollution have been out of business for decades. Those that are still around may not have deep pockets. The agency has yet to designate what's called "potentially responsible parties," or companies or individuals they might seek funds from to help pay for a cleanup.

In the meantime, a Superfund listing opens up federal funds to pay for cleaning up a polluted area. It also brings in federal authority and expertise.

Once a site has been listed under Superfund, the EPA-run program starts at the beginning: finding out just how much pollution there is, and what it's doing.

"It's very, very science-based. It was developed in a way that really went after finding out what was going on and letting the facts and the evidence lead you to the cleanup that was necessary," said Stills.

The law creating Superfund was passed in 1980, in response to the Love Canal disaster and the realization that there were many toxic waste sites around the country that had been abandoned by companies and were leaking their toxins into the environment.

Originally, the money for the cleanups came from a tax on polluting industries. That tax expired in 1995 and has not been extended. Since then Congress has appropriated taxpayer dollars to fund cleanups.

Getting access to that cash via a Superfund listing is key to cleanup, said Christine Canaly. She worked closely with the local community and the EPA during a cleanup of the Summitville Mine in Rio Grande County, overseeing a technical assistance grant the community had received.

In terms of Superfund cleanups, Summitville is largely viewed as a success. The process, however, was lengthy and expensive, said Canaly.

"By the time Summitville ended up getting what it needed I think we were talking about the tune of $200 million," she said. "I mean that's how serious it was up there."

The vast majority of that money came from the federal government. Without it, Canaly said, local communities and the state could have never completed the cleanup.

Being involved in such a long, involved process with state and federal agencies can be tough on the community, she noted, but it is key for area residents to form a local advisory group and apply for the technical assistance grants the EPA provides. That allows them to get an informed second opinion on cleanup options.

Working closely with the agency is also important. Canaly stressed the need to try and keep relationships civil, regardless of inevitable frustration.

"People that are going to approach the EPA and have this antagonistic attitude towards them are not going to get information, they are not going to get buy-in. You just create defensiveness," she said.

On the EPA side, the agency knows it is important to get local participation. Bill Murray, the head of the Superfund Remedial Program for the agency's Denver office, said Superfund is, at its core, a community-based program. It requires good partnerships between the agency, state health departments, and the local community.

"That's very important to our success," said Murray.

One of three proposed cleanup areas for the Bonita Peak Mining District Superfund site, which currently lists 48 proposed mines and mine sites for cleanup. The town of Silverton is at the bottom of the map.
Credit U.S. Environmental Protection Agency

That's why it's EPA policy not to list sites for a cleanup without approval of state officials. In this case, that was Gov. Hickenlooper. And since the governor was waiting to get buy-in from the town of Silverton, the EPA had to wait too, and negotiate with the town.

Over the course of these negotiations, the agency agreed to name the site the Bonita Peak Mining District, instead of after the town, or after San Juan County, where the mines are located. Town leaders had long feared the stigma of being associated with a Superfund site, one of the reasons they had shied away from earlier cleanup efforts.

The agency also agreed to specify 48 sites within the cleanup area, none of which are in the town of Silverton. The EPA's Murray said he didn't anticipate adding sites within town boundaries, and that some sites might drop off the preliminary list depending on what researchers find. Yet, he also acknowledged the agency could get some unexpected results.

"At this time we don't expect to add anything to the site as we move forward. But you never know what we may find when you get out in the field," Murray said.

The first couple of years of the cleanup will likely be focused on uncovering where the pollution is, and how bad it is. After that, the agency will craft a cleanup plan and take public comment.

If past mine cleanups are any gauge, the process will likely take over a decade, perhaps much longer. That's because the scale of the problem is so large, said Murray.

"I can tell you that the problem took many many decades to create and it doesn't lend itself to a speedy completion."

One thing is certain, the cleanup effort above Silverton will go a whole lot faster now with a Superfund listing, said Justin Pidot, a law professor at the University of Denver who has worked on Superfund cleanups with the Justice Department. Listing the site means it's now a federal priority.

"It's going to be jumping to sort of the front of the queue."

Pidot added a note of caution, though. While the spotlight is currently shining on the mines in Southwest Colorado, the bigger problem is mine waste leaking into creeks and rivers all across the West.

"I think it's really easy for people to focus on this incident. The river turned orange. And that kind of focus is really missing the point. The point is moving ahead making sure mines like this aren't causing these kinds of problems in the future," Pidot said.

One way to address this issue is to enact so-called "Good Samaritan" legislation that allows groups to conduct cleanup work without being held liable for cleaning up the entire site in the future. That's been proposed in the past by several members of Congress, including recently by Colorado lawmakers. Such legislation has yet to pass.

In the meantime, in the mountains above Silverton, the EPA plans to begin sampling and scoping out the Bonita Peak Mining District as early as spring 2016. The date for the formal proposal for listing the district is expected in the third week of March. It will be followed by a 60-day comment period.

As for the total potential cost of the cleanup, in an email, agency spokesperson Laura Jenkins said the EPA has "no way of knowing as we have only limited site data."

The way Superfund law works, the agency tries to recover cleanup costs from those who created the mess in the first place -- the "potentially responsible parties" -- rather than making taxpayers foot the bill. Jenkins also wrote that the "EPA has initiated a search for potentially responsible parties for some of the mines in the proposed Bonita Peak Mining District," but added the agency did not know when that process would be complete.