EXCLUSIVE: EPA Region 8 Admin, Enviro Regulator Support ‘Good Samaritan’ Legislation
The Environmental Protection Agency and state regulators need to aggressively pursue cleanup of sites throughout the West in order to complete their basic mission of protecting the environment without onerous regulations, but need new ‘Good Samaritan’ legislation to help get the job done, a top EPA agency official and a Colorado environmental regulator agreed on Wednesday.
Doug Benevento, EPA’s Region 8 Administrator, said his number one priority for his region and the West was addressing abandoned mines.
“You have to start the list with abandoned mine drainage. They are constantly degrading the water quality, particularly in a state like Colorado, which is a headwater state. It starts here and then flows out into all the states that are downstream from us,” Benevento said.
Martha Rudolph, the Director of the Colorado Department of Public Health and Environment’s air and water quality programs, agreed.
“Here’s the challenge. The issue for in actually doing any work at these abandoned mine sites is the lack of Good Samaritan [laws]. What Gold King spill highlighted was the need for Good Samaritan legislation,” Rudolph said. “Protections to allow for the clean-up of our mines without the liability of Superfund or the Clean Water Act.”
Benevento and Rudolph were speaking at the Environmental Stewardship Awards banquet at the Colorado Mining Association’s 120th National Western Mining Conference this week.
The August 5, 2015 Gold King Mine release dumped 3 million gallons of water into Cement Creek in Southwest Colorado, which then flowed into the Animas River. EPA accepted responsibility for the release, and has added the area to the National Priorities List as part of the Bonita Peak Mining District.
Rudolph said many communities and third-party groups were ready to pitch in on remediating abandoned mines.
“They’re not willing, as you can easily understand, to take on the responsibility or liability for the remediation of the entire site,” Rudolph said. That includes mining companies, Rudolph acknowledged, which she credited for working on the “Good Sam” legislation over the past decades.
“Every year that passes without ‘Good Sam’ is another year that mine waste continues to damage our environment,” Rudolph said. “The perfect ought not to be the enemy of the good.”
Rudolph oversees the agency’s Air Pollution Control, Water Quality Control, and Environmental Health divisions. Rudolph has also served in the Colorado Attorney General’s office for 14 years.
Benevento said some of that responsibility falls on the EPA, to clean up the areas more efficiently and quickly.
“We’ve got to find a way to deal with this. We have to do a better job of implementing Superfund, because you just can’t take 35 years to do some of these projects,” Benevento said, pointing to sites in Colorado and Montana.
“Superfund is not designed to move quickly, but we’re trying to change that,” Benevento said, adding that he wants to take a longer look at the Good Samaritan laws Rudolph described that would help enable the industry to take on the challenges of clean up without the liabilities currently present under the law.
The current legal structure leaves the risk of litigation to the new owners or third-party clean-up entities, even though they are not responsible for the original mining operation and pollution.
“They have to deal with EPA, then they have to deal with Superfund liability, Clean Water Act liability,” Benevento explained. He has asked EPA general counsel to review current law, but said that new legislation would be ideal.
Benevento said the process has been frustrating, as the first proposals for such legislation were introduced more than two decades earlier, with little movement in the intervening years.
“Hopefully we do get legislation passed and hopefully the legislation covers third party lawsuits as well,” he said. But it needs to be the “right” legislation that would encourage companies to come forward and assist with cleanup, he added.
Benevento told Western Wire by phone that while he is prohibited from endorsing or lobbying for specific legislation, he said the language of a ‘Good Samaritan’ bill would definitely benefit water quality in Colorado and Western states.
“What happens in our mountains flows and has an impact on water quality in other states,” Benevento told Western Wire. Benevento agreed with Rudolph that outside groups and industry would be willing to help with the problem if they didn’t have to “own” the problem due to liability.
At the conference, Benevento applauded the environmental initiatives undertaken by the industry using innovative technology and best practices to apply to a modern industry that some view as out of date.
“It’s important to recognize the good environmental work that is happening in the mining industry,” Benevento said. “The perception among the general public when they think of mining is still the perception that’s probably cutting edge of 50 years ago, and that’s not what you do today.”
“It is not only appropriate but necessary that you recognize the work that’s being done,” Benevento continued.
“I came from Xcel Energy—you energize the economy. You make it possible for the devices that we use to work,” Benevento said, citing the wide range of modern technology that would not exist without the natural resources accessed through mining.
“Colorado is the number one molybdenum producer in the nation, we’re number four in gold. The impact to the economy is approximately $7 billion including severances and royalties,” Benevento said.
Molybdenum is used in making steel alloys and as a catalyst in various chemical processes. In addition to its primary uses in jewelry and as an investment, gold’s industrial application in electronics, cables, and electrical contacts due to its properties as a non-toxic, conductive, and corrosion-resistant metal.
Benevento also pointed to the 57,000 jobs in Colorado alone directly related to mining.
“That impact is something that needs to be talked about as well,” Benevento said, saying that the industry should take more credit for the jobs it provides across the West.
“I’m part of the new management at EPA. With the change in administration there was a change in management at EPA,” he continued. Benevento credited EPA Administrator Scott Pruitt for providing a set of priorities with a broad application so that each regional administrator could have the flexibility to approach unique circumstances and challenges presented in the states and territories they oversee.
EPA’s Region 8 administers six states in the West—Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming—along with 27 Tribal Nations.
“The administrator said that he wants to go back to basics. We have an extraordinarily important mission and we need to focus on that mission. We’re supposed to protect, under the statutory guidelines given to us by Congress, the air, water, and land of the United States,” Benevento said.
That includes ensuring clean drinking water and cleaning up Superfund sites across the country, he added. It also means not seeking so-called mission creep in stepping outside Congressional authorization.
“We’re not an agency that is supposed to roam the countryside looking for good things to do. We have a very specific statutory mission and we want to focus on that because it means something to the people,” Benevento said.
“Second, we want to follow the rule of law. Our job is to make sure we are interpreting the law in a reasonable fashion,” Benevento said, and do that in a way that is clear to both regulated entities and the general public alike. It wouldn’t be fair, he argued, to regulate in a way that is “opaque.”
“We intend to be very clear about what the law means and what compliance looks like,” Benevento said.
Finally, Benevento stressed that the EPA would look increasingly to a cooperative federalism model to interact with the states it regulates.
“We believe that local decisionmakers understand their state and their jurisdiction better than we do and that we have an important role of oversight, but it’s not a role of telling the states how to do their job,” he said. That includes a shared responsibility, with the state’s responsibility to implement and the agency’s responsibility to ensure that the implementation is faithful to the law, according to Benevento.
After six months at the helm of Region 8, Benevento told Western Wire, as he emphasized in his speech, that the need for moving forward with cleaning contaminated and Superfund sites more efficiently and quickly was paramount.
“We’ve got Superfund sites that have been sitting for 30 plus years. We’re starting to make progress on them, and I would point to Butte, Montana,” Benevento said.
“In that time period, America fought World War I, went through the Roaring ‘20s, went through the Great Depression, and fought and won World War II. It’s taken us longer to clean up this site than go through those experiences,” Benevento told Western Wire. “We can do a better job. We will do a better job.”
Benevento also touted the Gillette, Wyo. hearing on the Clean Power Plan. “I found the interaction to be powerful and informative,” he said, as Wyoming residents and others provided comment on how the previous administration’s regulation would affect their livelihoods. “We need to do more reaching out to areas in the middle of country,” Benevento added.
He listed drinking water quality as a “crisis” in many areas, and one that EPA under his tenure has been directed to re-prioritize the issue so as to meet current standards.
Before joining EPA, Benevento worked for Xcel Energy and practiced environmental law for Greenberg Traurig. From 1999 to 2002, he served as Director of Environmental Programs for the Colorado Department of Public Health and Environment, and from 2002 to 2005 was CDPHE’s Executive Director under former Colorado Gov. Bill Owens.