Law prevents work to clear pollution By R. SCOTT RAPPOLD


November 27, 2007

In the mountains above the Keystone ski resort, a legacy of the past continues to pollute the future.

From the 1880s through the 1940s, the Pennsylvania Mine was one of Summit County's most profitable. Today, all it produces is acidic and metal-laden drainage water that poisons creeks, kills fish and confounds local officials.

For nearly 15 years, the federal law meant to clean sources of water pollution such as the Pennsylvania Mine has actually prevented work to improve the water.

A 1993 court ruling said that, under the Clean Water Act, anyone who tries to remediate water at an abandoned mine becomes legally liable for discharges there forever. The ruling halted efforts by the state to clean drainage from the Pennsylvania Mine and ensured that little water cleanup was done at any of Colorado's other 23,000 abandoned mines.

A decade of efforts to pass a socalled "good Samaritan" law, legal protection for groups and government agencies who want to clean up mines, has failed, mainly because of resistance from environmental groups. Both of Colorado's U.S. senators backed such a measure last year.

"The Clean Water Act was written and designed to clean up problems like this, and it's the only thing stopping us from doing it, and it's so unfortunate," said Elizabeth Russell, mine restoration coordinator for Trout Unlimited, which wants to be a good Samaritan at the Pennsylvania Mine.

A recent report on Colorado water quality pointed to abandoned mines as a major cause of heavy metal contamination in creeks running down from the high country. Most of the mining companies no longer exist, so there is nobody to hold responsible.

There are a host of nonprofit organizations, local governments and state agencies that would like to get involved in cleanup efforts, particularly in areas such as Summit County where dead, brown waterways like Peru Creek at the Pennsylvania Mine could be bad for tourism. But assuming the legal liability for all future discharges - in today's litigious society - is a risk none will take.

While it may seem a good Samaritan law may be a nobrainer, like most issues of environmental law, it is not.

When Colorado's U.S. senators, Republican Wayne Allard and Democrat Ken Salazar, backed a bill in 2006 to remove parts of the law that discourage cleanup, it drew opposition from environmental groups.

The groups worried changes could allow mining companies to come back into the mines and renew operations and not be responsible for discharges. The opposition was enough to kill the legislation, and it looks unlikely any will advance in 2007.

It's an issue dividing environmentalists.

Russell said she recognizes the concern other environmental groups have about weakening the law. But, she said, "We're the only ones out there trying to do the darn cleanup."

At the Pennsylvania Mine, the lack of legislation has forced cleanup advocates to get creative.

Plans are in the works to create a nonprofit organization, the Snake River Water Foundation, that will take over ownership of a water treatment facility outside the mine. The foundation will have little cash or assets, so it is hoped no one would bother to sue it under the Clean Water Act.

"Nobody's going to sue them because they don't have anything to be sued for. There's no money," Russell said.

Numerous groups, government agencies and ski resorts are involved in the effort, though not Denver Water, because there are no human health issues for Lake Dillon reservoir downstream of the mine, which serves the water supplier.

It's not the ideal way of doing cleanups - it's taken 15 years to reach this point, and plans for the treatment facility still haven't been drawn up. It will cost from $500,000 to $1.5 million, Russell said.

But, for now, it's the only way of cleaning up the polluted water rolling down from the mines of yesteryear.