By Varshini Parthasarathy
Across the nation, thousands of abandoned mines remain nearly as they were left when they ceased to be operational. In many cases these mine sites continue to pollute the environment for decades as acid mine drainage flows into rivers and streams. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was enacted in 1980 to enable the federal government to manage such industrial pollution. But through lack of funding and enforcement, the public has been stuck with the cleanup bills.
The law mandates that special accounts financed by responsible parties facilitate the cleanup of contaminated sites. In instances where responsible parties do not agree to reclamation, the EPA is granted the authority to assess penalties, administer the cleanup, or refer the case to the Department of Justice for further enforcement. If the funds cannot be secured, the EPA uses the Superfund trust fund to facilitate cleanup.
CERCLA additionally requires that EPA promulgate regulations requiring mining companies to prove they have the financial resources to clean up their own mess. In the 35 years since the enactment of CERLCA, however, EPA failed to fulfill this duty. At the beginning of this year, in response to a lawsuit brought by a consortium of environmental organizations in the D.C. Circuit, the EPA agreed to finally create financial assurance rules for the mining industry. As a result of this decades-long delay, most of the costs of cleanup have been relegated to the public through the Superfund.
In previous years, the Superfund’s primary revenue was generated through three excise taxes and an environmental corporate income tax. The excise taxes were on crude oil and refined oil products, certain hazardous chemicals, and imported substances manufactured with the use of those hazardous chemicals. The Superfund taxes expired in December 1995 due to congressional opposition, but the number of contaminated sites has not declined over the years. As a result, the unobligated money in the fund declined to zero in 2003.
The EPA’s Toxic Release Inventory indicates that that the metal mining industry is the nation’s most significant toxic polluter, accounting for 40 percent of toxic releases in 2011 with chemicals such as arsenic, lead and mercury. In 2013, the EPA’s superfund budget was only about $775 million, but the agency had identified 156 mining sites with potential cleanup costs of up to $24 billion. As of Oct. 3, 2016, the EPA has identified over 1,000 sites as belonging to the National Priorities List, a collection of polluted sites warranting further investigation. Due to lax financial enforcement, taxpayers may be forced to shoulder the primary burden of cleanup costs rather than the culpable mining companies.
For example, companies declaring bankruptcy or restructuring their corporate relationships have exploited the current assurance mechanisms to avoid cleanup costs. In May 2016, the Indianapolis chemical company Vertellus filed for bankruptcy and received a sale offer from its lenders. The EPA filed an objection to this sale on the grounds that there were insufficient funds for cleanup, but withdrew this objection after agreeing to engage in an alternate remediation method.
It took several years of litigation with environmental groups before EPA signed on to a legally binding agreement laying out a schedule for issuing financial assurance requirements for the metal mining industry. As early as 2006, the U.S. Government Accountability Office recommended that the EPA prioritize developing financial assurance mechanisms for the metal mining industry, because “it presents taxpayers with an especially serious risk of having to pay cleanup costs for thousands of abandoned, inactive, and operating mines in the United States.”
In addition to the financial burden taxpayers face, the lack of Superfund rule enforcement poses serious implications for the environment and human health. Insufficient EPA funding has led to significant time delays in cleanup, exposing local communities to toxic contaminants for extended periods of time. One example of such a Superfund site is the Big River Mine Tailings and St. Joe Minerals Corp. in Missouri, which was used until 1958 to dispose of lead mine tailings. Missouri found in 1997 that blood-lead concentrations in 17 percent of children under the age of 7 were higher than acceptable levels. These levels dropped following EPA cleanup, but the surrounding biodiversity was significantly impacted, showing traces of lead and hazardous metals.
In August 2015, the EPA was assessing the abandoned Gold King mine in Colorado when they mistakenly shook a debris dam and released a stream of toxic, bright yellow water. Local officials claim that due to the EPA’s role in the incident, there will be prioritized reclamation efforts. As of 2016, the EPA’s press releases on the Gold King mine response include a report describing the reclamation efforts over the past year, a database of water monitoring samples, and reimbursements of more than $5.2 million to states, tribes and local governments for response costs. When examining the long-term effectiveness of these response actions, however, even the EPA recognizes that its financial resources for such incidents are limited. In fact, the Superfund has declined by almost 50 percent since the 1990s.
What can be done to optimize the Superfund program? Well, a simple answer is to increase the EPA’s funding to mitigate such events. This can be accomplished by the implementation of stringent financial assurance requirements within the metal mining industry, as well as the re-enactment of Superfund taxes.
The EPA just recently released proposed financial assurance requirements for the mining industry and is under a court order to finalize these requirements by the end of 2017. These requirements alleviate the burden on taxpayers for Superfund cleanup, and force the mining industry to assume more responsibility for cleanup.
In a press release on Dec. 2, 2016, the National Mining Association challenged the new requirements as faulty, redundant and posing an “exorbitant price tag on an already comprehensively regulated industry.” Despite such industry opposition, the hopes of the environmental advocacy community are high that these new requirements will reduce the growing toxic burden on the nation’s waterways.
Varshini Parthasarathy is an undergraduate student in Earth and Environmental Engineering. For more on water issues, visit the Columbia Water Center website.