EPA Defends Authority To Create Mining Office Amid Potential Legal Limits

September 21, 2020

EPA is defending its authority to create a new western office aimed at speeding cleanups of former hardrock mining sites from Democrats’ criticism that it lacks merit, while observers claim the office will likely face limits due to long-running obstacles rooted in legal liabilities under waste and water laws that have impeded such cleanups.

An EPA spokeswoman says that the agency “notified Congress” of the plan to create the Office of Mountains, Deserts and Plains (OMDP) against attacks from some Democratic lawmakers. “It’s unfortunate Democratic committee leadership doesn’t support finding solutions to longstanding western-lands cross-cutting issues and expediting the remediation of abandoned mine lands across the country,” the spokeswoman says.

But Sen. Tom Udall (D-NM) in a statement to Inside EPA says, “[G]iven this administration’s terrible environmental record, I am skeptical that environmental cleanup is their top priority here."

EPA on Sept. 2 announced the creation of OMDP, indicating its formation is aimed at speeding the cleanup of former hardrock mining sites through closer oversight of hardrock mines west of the Mississippi, promoting “Good Samaritan” remediation, serving as a technology transfer hub, and overseeing the cleanup of abandoned uranium mines in the Navajo Nation. The office is located in Lakewood, CO, but reports directly to EPA’s waste chief in its headquarters Office of Land & Emergency Management (OLEM), rather than the nearby Region 8 office.

The agency faced criticism from Udall and Rep. Betty McCollum (D-NM) for creating OMDP, with the two congressional appropriators asking EPA Administrator Andrew Wheeler to halt its implementation until House and Senate Appropriations committees can approve the plan. The lawmakers question the agency’s power to launch the office without Congress’ backing. Udall is ranking member on the Senate interior appropriations panel overseeing EPA’s budget, while McCollum is chair of the House interior spending subcommittee.

Udall and McCollum wrote to Wheeler on Sept. 2, reminding him that section 426 of Public Law 116-94 requires “advance approval” from the congressional appropriations committees before the agency can reorganize or reprogram funds, adding that “[t]his reorganization is a significant departure from how hardrock mining remediation is currently handled at the Agency and therefore must first be evaluated by the Appropriations Committees.”

The EPA spokeswoman in response to questions from Inside EPA points to a statement from Udall’s constituents, in which Navajo Nation President Jonathan Nez says the tribe backs EPA’s formation of the new office, which will be focused on speeding cleanup of abandoned uranium mines on the Navajo Nation.

A spokeswoman for Udall’s office says the senator has not received an EPA response to his letter.

Further, in his statement to Inside EPA, Udall says, “I would welcome any legitimate and meaningful effort to improve cleanup programs, but major changes like this -- which will affect New Mexicans and indigenous communities dealing with the adverse legacy of hardrock mining -- need to be reviewed by the Appropriations Committee, as required by law.

Any changes to existing cleanup programs must ensure the full engagement of states, local entities, Tribes, and other affected groups and ensure that cleanup standards are fully maintained.”

Mine Cleanups

The West contains hundreds of thousands of abandoned hardrock mining sites, with 63 mining sites listed on Superfund’s National Priorities List, Acting EPA Deputy Administrator Doug Benevento said in announcing the new office.

EPA has long struggled to secure agreements for Good Samaritan mine cleanups -- where a non-liable voluntary party agrees to remediate contamination at one of the many thousands of abandoned hardrock mines, often to improve water quality by reducing acid mine drainage. The issue has been difficult to resolve because of the threat of potential liability for voluntary parties under the Clean Water Act (CWA) or Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), the latter of which imposes strict, joint and several liability for contamination.

While the new office plans to facilitate Good Samaritan cleanups and provide incentives for them, Benevento acknowledged some of the current CWA liability concerns hampering such past cleanups will require congressional action to solve. “There are things we can’t fix” with regard to Good Samaritan cleanups, but the office can “make it run as smoothly as possible,” he said.

But D.J. Janik, a former supervisory attorney in EPA’s Region 8 office up until 2011, says the new office will have the exact same problems as before with mining cleanups, as the law has not changed. “I just don’t see what it brings,” he says. “A reorganization -- I just don’t follow how it helps,” he says, noting one fear with reorganizations is that they suck a large amount of time away from environmental work, instead focusing on the reorganization set-up.

Steve Moyer, vice president for government affairs at Trout Unlimited, which advocates for conserving freshwater streams, says the office may be useful and appears to be a “positive,” but it is unclear that the office has the resources and the will to speed cleanups. Trout Unlimited has long been involved in Good Samaritan efforts.

Moyer believes the agency can “only do so much” because of the limitations of the law, particularly due to CWA.

Because the agency lacks authority to shield voluntary parties from citizen suit enforcement, EPA has generally been unsuccessful in developing guidance sufficient enough to allay the liability fears that have stymied outside Good Samaritan parties from taking on mining cleanups. And years of congressional attempts to try to pass legislation to provide liability relief have failed.

Janik notes the importance of hardrock mining cleanup. But it does not appear that EPA is adding new resources to address the issue, he says.

Senior EPA officials told reporters Sept. 2 that the agency expects all the positions will be filled with current OLEM staff, some of whom will take their existing portfolios with them to the new office.

In a Sept. 2 statement on the opening of the new office, the agency said that the current diffused deployment of EPA’s resources in remediating hardrock mining sites creates challenges, and the fact there are many mining sites for which there are no viable current or former owners or operators can make it difficult for these sites to compete with Superfund sites across the country for funding from the annual Superfund appropriation, the agency says.

On funding, Moyer sees the possibility that the new office will have a greater chance of getting funds for hardrock cleanups, as in his experience it is usually easier to persuade Congress to appropriate money for specific projects, rather than a bureaucratic program.

Moyer speculates on two possible plusses that could come from the OMDP creation, citing the potential for increasing technical capabilities related to cleanup of hardrock mine sites as well as improved efficiency in Good Samaritan agreements governing mining cleanups. Such cleanups are rare but typically require lengthy and costly efforts in order to reach a settlement agreement.

In one of those rare agreements, the Justice Department announced earlier this month that it was proposing an administrative settlement agreement and order on consent (ASAOC) for a Good Samaritan project led by Trout Unlimited, which plans to perform a removal action under CERCLA at the Atlas Mill Site in Ouray County, CO.

Moyer called the ASAOC at the site a positive step, but noted such tools have not been used enough, and the process for securing such agreements are not as efficient as they should be. Jason Willis, a program manager with Trout Unlimited, says the Atlas accord is the first between the U.S. Fish & Wildlife Service and a Good Samaritan organization, noting the group worked for a year in navigating “the proper legal pathway to complete reclamation work” at the site. -- Suzanne Yohannan (syohannan@iwpnews.com)

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