A Congressional bill would make it easier for state agencies or nonprofit organizations to clean up abandoned mines that have polluted streams for decades. Some nonprofits, including Trout Unlimited, hope the bill’s bipartisan sponsors have more success than Sen. Max Baucus did more than 20 years ago.

Recently, Sens. Martin Heinrich, D-N.M., and James Risch, R-Idaho, introduced the Good Samaritan Remediation of Abandoned Hardrock Mines Act of 2022 to allow states or organizations to step in to reduce the water pollution caused by abandoned mines while avoiding the liability of a polluter. Eight other senators representing six states of the intermountain West have signed on as cosponsors, including Jon Tester and Steve Daines of Montana.

Montana’s mining past has left numerous scars upon the land, some for more than a century. Up until 50 or 60 years ago, miners and mining companies often extracted what ore or metal they could and then moved on. Some of the open shafts they left behind eventually filled with groundwater and now leach damaging chemicals into nearby streams.

Because the miners just up and left, it’s often difficult to tell who’s responsible for the mess. In other cases, some mining companies declare bankruptcy before they’ve done the cleanup they’re supposed to do, so the state can’t hold anyone accountable. Such mines are considered orphaned or abandoned.

The same routine played out across much of the West, producing an estimated 500,000 abandoned mines. Of those, about 33,000 are close enough to streams to be major sources of water pollution due to drainage laden with toxic metals.

Montana alone has about 6,000 abandoned mines, and about 245 have open shafts within 100 feet of a stream. Several dot the tributaries of the Upper Clark Fork River and many contribute metals such as mercury, lead and arsenic that leave 2,500 miles of streams unable to support healthy populations of fish or other aquatic life.

But in this era of the Clean Water Act and growing recognition of the need to protect Montana’s streams, how can such pollution still exist?

In 1999, when Baucus introduced his Good Samaritan Act, he used the Alta Mine between Boulder and Helena to explain the sticky problem. That same year, the Montana Department of Environmental Quality had finished a remediation project to clean the mine up by removing waste rock piles and revegetating the area.

But that’s where it stopped. Nothing was done about the water in the mineshaft, which continues to carry arsenic, cadmium and mercury down to Corbin Creek and eventually to Prickly Pear Creek.

The state had ideas of how to treat the mine water using wetlands or other methods that would help the creek run far cleaner than it does.

“The engineers say that it will work. But the lawyers say it won’t,” Baucus said in 1999.

Under the Clean Water Act, a point-source polluter must apply for a permit and keep its water discharge cleaned to the permit’s standards. But with an abandoned mine, once an entity starts trying to clean up contaminated water, the law then treats the entity like a polluter. The entity must get a permit and achieve high water quality standards or the entity can be held liable, even though they didn’t create the problem.

That threat has prevented states or groups from attempting to clean up spills from any abandoned mines. Corbin Creek is still polluted 22 years later.

“It’s like all or nothing,” said Corey Fisher, Trout Unlimited Public Land Policy Director.

The abandoned Mikehorse mine near Lincoln.
The abandoned Mikehorse mine near Lincoln.

As part of her Congressional testimony in 2018, Autumn Coleman, DEQ Abandoned Mine Lands program manager, told a similar story about a cleanup effort working with Trout Unlimited and the local conservation district at the Lilly Orphan Boy Mine in Powell County. Although a lot of work was done to remove toxic mine waste from the area and restore the floodplain of Telegraph Creek, acid mine drainage still leaks into the creek because groups are afraid to do any work involving the water.

“Both our Good Samaritans and the Montana AML Program have no choice but to walk away from these straining mines because of liability concerns,” Coleman testified.

Heinrich’s and Risch’s bill could change that. It would establish a pilot program for a new federal permitting process that would allow qualified groups to clean the water coming from abandoned mine sites and set limits on the amount of liability the groups assume.

Fisher said the bill faces some opposition, similar to Baucus’ bill. Some worry that some mining companies might get off the hook if people assume a mine is abandoned when it isn’t.

“There’s language in the bill to prevent that. And there are requirements for what groups can qualify as a Good Samaritan too,” Fisher said. “And some might have concerns about weakening the Clean Water Act. But the purpose of the Clean Water Act is to clean up waters. If we don’t do that, the Clean Water Act isn’t doing a lot of good.”

The only other mechanism for cleaning mine sites is the Superfund process. But the Superfund program is overtaxed to begin with, so only the biggest or most polluted sites tend to be listed. An isolated abandoned mine shaft doesn’t always rise to meet the bar.

In 1999, Baucus summed up his bill saying he hoped it could proceed quickly to become law because “If we solve the problem, our grandchildren won’t have to.” His grandchildren are still waiting.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.