Animas River Spill Renews 1872 Mining Law Debate and Fears About Uranium Mining

As more than 3 million gallons of heavy metal-laden sludge from a spill at the Gold King Mine in Colorado has worked its way down the Animas River and toward the San Juan River and Lake Powell, many have asked how something like this could happen and what could prevent it in the future.

Politicians, from Navajo Nation President Russell Begaye to Arizona State Representative Bob Thorpe, point fingers at the Environmental Protection Agency – which oversaw the cleanup crew that accidentally caused the mess. And Thorpe said in a statement e-mailed to New Times earlier this week that “this tragedy once again highlights the need for the states, and not the Federal government, to have full and complete control and autonomy over the environmental policies and practices within their borders."

But others, like Arizona Congressman Raúl Grijalva and environmental advocates across the country, say the root of the problem, and thus the solution, is elsewhere. They believe the main issue is what they consider to be an antiquated federal statute: the 1872 Mining Law.

The name alone gives you a sense of how old it is.

The United States was like a different world back then – Arizona didn’t exist as a state until 1912 – and when President Ulysses S. Grant signed the bill into law, its supporters were hoping to encourage economic development through hard-rock mining. Any negative effects it could have on the environment were either not considered or not known.
In short, the law allows private companies to purchase federal lands at absurdly cheap prices with no strings attached. Upon payment, the land becomes largely free from regulatory oversight, and unlike non-hard-rock mining industries like coal and natural gas, companies are not required to make lease payments or direct payments for the materials extracted. Also, there are no provisions for cleaning up a depleted or abandoned mine.

While over the years small tweaks have been made to the a language of the law, it essentially allows hard-rock mining companies to “get the minerals and walk away,” says Roger Clark of the Grand Canyon Trust. “There is no obligation for them to do anything else.

He adds that mines are bought and sold quite often so it would be extremely difficult after the fact to pinpoint which corporation did what and what its clean up or fiduciary responsibilities should be.

“Holding a [corporation] accountable for something like what happened at the Gold King Mine is just not going to happen," he said. "The people who made all the money off it are long gone, and it’s fallen on the taxpayers and the federal agencies like the EPA to clean it up.”

Clark doesn’t think the existence of the mining law exonerates the EPA from any responsibility for last week’s mess but thinks it imperative to remember that “the people or companies responsible for contaminating the water [in the first place] are not being held accountable. That needs to change. Before any new mine is developed, there has to be an obligation to make sure that it’s cleaned up to the best extent possible…and the cost of clean up needs to be factored into the price of minerals” and the land itself.

As Sandy Bahr of the Arizona Sierra Club points out: “The river was already being polluted and already had issues before the spill. This spill was huge, but these mines are all over the place. It’s not like it’s the only river that is being polluted by former mines or abandoned or current mine operations…There needs to be more emphasis on prevention.”
By most accounts, there is little political will in Congress to change the 1872 Mining Law – “It’s a sacred cow to some members of Congress because they’ve taken so many donations from the mining industry,” says Clark — but still, Congressman Grijalva is leading the charge to reform it with legislation.

“The toxic mine spill in Colorado’s Animas River brings attention to the fact that we have to do more to address the toxic legacy of mining in the West,” Grijalva wrote in a statement to New Times. “While this particular incident was a mistake by the EPA, the underlying problem is the huge number of abandoned hard-rock mines that are effectively ticking time bombs threatening our rivers and our lands. Congress must provide robust funding to clean up these mines, which is exactly what my Hardrock Mining Reform and Reclamation Act does.”

If passed, Grijalva’s bill would:

-Establish an 8 percent royalty on new mines and a 4 percent royalty on existing mines to bring a fair return to American taxpayers.
-Use those royalties and money raised by newly established pollution fees to clean up abandoned hard-rock mine lands across the country.
-End the antiquated patenting system that allows companies to purchase mineral-containing public land for as little as $2.50 per acre.
-Establish strong reclamation standards and bonding requirements to make sure taxpayers don’t pay for cleanups if a company skips town or goes bankrupt.
-Provide clear authority to federal land managers to reject a proposed mine if it would unduly degrade public lands or resources.
-Protect wilderness study areas, roadless areas, and wild and scenic rivers from mining.
-Empower state, local, and tribal governments to petition federal authorities to withdraw certain areas from mining to protect drinking water, wildlife habitat, cultural and historic resources, or other important values.

The diluted plume of the Animas River spill may no longer be visible as much of the sediment has settled along river bottoms, but Bahr and Clark say this disaster should be a wakeup call for the entire west — especially for Arizona.
“The Gold King mine is just one of hundreds that need our attention now,” Clark says. “And it’s not just gold mines, it’s uranium mines, copper mines — all of those are a liability to the future” and fall within the 1872 mining law.

As New Times has written about before, the Grand Canyon Trust and Sierra Club are actively fighting uranium mining in the Grand Canyon, the legacy of which, they say, could be permanent toxicity.

“Uranium mines up by Grand Canyon, they were allowed to move forward under general permits that don’t require things like bonding and additional groundwater monitoring,” Bahr says. “I find that particularly outrageous. The time for action is well before you spilled or have contamination… Cleanup is difficult, and there tends to be major errors like there were with [the Animas River spill]. And it costs a lot; prevention is nearly always cheaper.”

If anything, Clark concludes, “We’re going to do everything we can to get it out there that this spill is one more example of why we need to tighten up regulations [because] the time has run out to kick the cost of pollution down the road to the next generation. We are that next generation; we’re there already.”