Open-File Report 1998–0297
Science for Watershed Decisions on Abandoned Mine Lands: Review of Preliminary Results, Denver, Colorado, February 4-5, 1998
Amidst incremental successes, the watershed approach confronts ongoing challenges. These challenges include aspects of existing institutional structures and norms, communication barriers, decisions about scientific methods, and components of the broader regulatory and legal context. In this concluding session of the workshop, representatives from State and Federal agencies and others discussed ways to approach these challenges in order to successfully implement a watershed approach. We have supplemented what emerged from these presentations with other points to consider based on our experiences and perspective as a non-profit organization. The Colorado Center for Environmental Management provides coordination, neutral facilitation, and information assistance to watershed groups in four western States working on this issue, and has produced more general policy and regulatory analysis information (Broetzman, 1998).
The success of a watershed project is dependent on a fair and open process that enables systematic analyses for prioritizing problem sites and on a well-defined investigative process that includes comprehensive water-quality information. Successful outcomes often depend upon the identification of quantifiable goals and the selection of specific remedial actions for attaining the identified goals. In addition, a follow-up surveillance plan is essential for documenting environmental results and for determining subsequent plan adjustments.
Science provides the basis for understanding the problem, for regulation, for remediation, and for monitoring remedial effectiveness. Remediation, the activity of correcting, curing, or ameliorating an unwanted problem, is directed at specific sites with specific issues for which both specific and general scientific knowledge is needed within a specific legal-political agenda. In choosing remedial activities, questions in risk assessment need to be asked, such as: Are the problem and objectives well-defined? Has the right science been applied? Have we developed balanced and informative syntheses? Is there a defensible and consensual goal?
Generating a scientific base for decisions and striving for data consistency and compatibility are two of the challenges that are often encountered. These challenges are particularly difficult because the watershed approach calls for scientists with various scientific disciplines from different agencies as well as private entities working together towards this goal. Pilot watershed projects can provide a valuable learning experience for developing the scientific basis on this issue in a collaborative manner. They can be valuable for the information they provide and for helping to keep expectations in check. At the same time, there is a need for more collaborative research of this kind in other problem watersheds because many sites are in need of more immediate attention.
It is important to note that an optimum cleanup solution for a watershed needs to take into account all important sites (both on Federal and non-Federal lands) in order to achieve optimum cost-effective environmental improvement. In addition, implementation of remediation activities often should proceed despite lack of assurance of success, rather than having scientific studies proceed indefinitely. By monitoring and taking adaptive measures based on that monitoring, both scientific understanding and cleanup can be furthered.
Watersheds provide a framework for using scientific information to make informed decisions. Scientific knowledge must be pooled as the issue of cleanup of abandoned mine land (AML) sites crosses jurisdictional boundaries. Time and effort are required to build the necessary relationships within which the exchange of data can occur. There is a need for the information to be synthesized and for it to be presented in an understandable format, using consistent terminology, so that everyone can communicate with each other. This kind of communication of the science will hopefully enable an easier marriage between the scientific community and land management practitioners.
The scientific process conducted under the watershed approach needs to stay out in front of policy and incorporate the realities of contemporary political and social factors as a way to facilitate buy-in to the process. For example, all stakeholders cannot be expected to understand all the scientific details, and complex scientific language can be exclusionary of group members and discourage continued involvement. Efforts need to be made to explain technical information such that it can be understood by all participants. In addition, scientific studies cannot continue indefinitely. As long as there are contaminant discharges, citizens can file lawsuits and if courts dictate the actions, cleanup may end up occurring at low priority sites. Therefore, to keep both concerned citizen groups involved and to maintain decision-making leverage in the watershed, the parties involved must together establish a timeline and a data sharing and communication process which is sensitive to each individual watershed context.
For complex sites, remediation is often experimental and requires focused scientific study. The rationale, as far as the results of this study, also must be communicated clearly to managers, politicians, and the public. Technical advisory committees, consisting of both scientists and engineers with broad multi-disciplinary expertise, are essential to avoid undesirable or disastrous remediation consequences.
There is high-level management support in the Department of Interior (DOI) and Department of Agriculture (USDA) for an interagency watershed approach and for interagency partnerships, particularly those involving teaming and cooperation among Federal and State agencies. This type of cooperation has begun under the DOI/USDA interagency Abandoned Mine Lands (AML) Initiative, where there is a desire to focus watershed efforts primarily towards efficient site cleanup measures for achieving clean streams, with a secondary focus on clean sites. DOI agencies have taken a leadership role in watershed efforts through activities by the Bureau of Land Management (BLM) and U.S. Geological Survey (USGS), expanding on watershed activities which had been initiated by Region VIII of the U.S. Environmental Protection Agency (EPA) and the Colorado Department of Public Health and Environment. More recently, the USDA Forest Service (USFS) has been giving increased attention to watershed initiatives in coordination with the BLM.
Policy successes emerging from this focus on abandoned mine lands include the Western Mine Lands Restoration Partnership, the Western Governor's Association/National Mining Association (WGA/NMA) Joint Abandoned Mine Lands Initiative (AMLI), and the EPA National Hardrock Mining Framework.
Financial support for these Federal agency initiatives continues to grow. Last year, $1 million was available within the DOI for addressing AML problems. This year, that amount was increased to $3 million, with the funds focused on the Animas and Boulder River watersheds and on the early activities for another pilot project in Utah. Although the State of Arizona recently chose not to support a similar pilot project to be funded by DOI, additional pilot projects are being considered for watersheds in other states, including California, Idaho, Nevada, and South Dakota.
In October 1997, Vice President Gore announced a Clean Water Initiative and thereby added additional emphasis for watershed efforts. The 1999 Initiative budget will have an AML component, with about $9 million earmarked for the BLM, $0.5 million earmarked for the National Park Service, and $4.7 million for the USFS. The Initiative contains three principles: 1) cooperative and interagency approaches to achieve enhanced protection and runoff control on a watershed basis; 2) emphasis on collaboration with a role for the public; and 3) innovative approaches to watershed cleanup strategies, including liability incentives. Numerous work groups were formed to develop the Clean Water Action Plan, which was submitted to the White House in mid-February 1998, and released to the public in March as part of the Clean Water Initiative.
The USFS/BLM interagency work group currently working on the issue of abandoned mine sites on Federal lands is focusing strategically on: (1) analysis and watershed ranking; (2) site ranking and risk analysis; (3) development of a mitigation plan; and (4) follow-up monitoring. The details of the action plans consistent with funding limitations need to be worked through, and it is important for project-level managers of the different agencies to be forward thinking and plan together. This is now a focus of Gore's Clean Water Initiative.
Agencies are targeting watershed efforts as a means to strive for cost-efficient cleanup and to emphasize a voluntary approach. Through the use of combined resources, cooperative cleanup efforts can achieve effective solutions. The lack of comprehensive funding for addressing AML sites, however, continues to be a major issue. The continued limited availability of funds reinforces the ongoing need to be creative in sharing those funds and in looking for other sources.
Most of the funds to date are from Federal sources, although only about five percent of the overall metal loading from AML are believed to be coming from lands managed by the USFS and BLM (one can rationalize, however, that most of the non-Federal sites result from the Federal policies associated with the 1872 Mining Law). EPA has recently initiated cleanup of a few problem AML sites using Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) removal-action authorities and funds. However, the Federal government will not be able to cover the costs alone, hence the need for broader contributions to cleanup costs (including the potentially responsible parties (PRPs). Montana is one of the few states that is focusing its available funds for AML cleanup, utilizing a combination of federal Surface Mining Control and Reclamation Act (SMCRA) funds and State funds.
There is an option for creative use of existing funds through the Superfund program, though misperception exists that utilizing Superfund money is equivalent to creating a Superfund site. Superfund dollars are actually going to non-National Priority List (NPL) sites in the form of removal actions and can be applied to watershed work. Of all the sites that the USFS is working on, only one is on the NPL list, despite the fact that the USFS is emphasizing CERCLA authority in its remedial activities. The funds are there, and it may be beneficial for groups to find out more about how to access them.
In considering other potential funding sources, there are currently no details on funding through NMA/WGA AMLI sponsored projects. Funds available under the EPA Brownfields program also do not pose much promise for AML cleanup because they are aimed for land use conversions, typically for urban areas. In light of this, State funding help may need further emphasis. In Montana, for example, State funds are generated from a metal and mineral tax and an oil and gas tax. Some opportunities may also exist in some States for use of revolving water quality loan funds to play an important role to encourage voluntary cleanup.
In all the watershed efforts, the remedial plans will need to incorporate a funding strategy that covers remediation and follow-up water quality monitoring. The current lack of a multi-year Federal resource commitment restricts movement towards expensive active-treatment technologies. The focus has therefore been on stabilizing and capping mine-waste piles and on passive-treatment activities for mine drainage—activities that do not involve long-term cost commitments.
A "polluter pays"/cost recovery approach is being applied by the Federal land management agencies in order to hold those parties with defined interest in a site responsible for cleanup. Through an Executive Order and the provisions of CERCLA, those agencies have both the authorities and directives to seek cost recovery for site cleanup on Federal lands. The BLM and USFS, however, differ in their emphasis towards cost recovery. The USFS has been giving greater importance in selecting those sites for cleanup actions where cost recovery can be accomplished from viable PRPs. The BLM, however, uses a more environmentally focused approach. It pursues the selection of those sites which can most efficiently achieve environmental results, while seeking cost recovery from PRPs of those sites, where viable. If PRPs are not identified, the BLM continues to pursue cleanup options at the selected sites.
Federal land management representatives described the difficulty of being perceived as the "heavy-handed government" and some have stated that this approach is not working well in this issue area. Many experience being confronted with the defensive posture of local citizens, especially when the citizens are presented with a CERCLA section "104(e) letter," an initial step for beginning to identify PRPs. Therefore many Federal agency representatives are supportive of finding means of motivating private landowners to take action without utilizing 104(e) letters. At the same time, it is recognized that no one likes to be regulated. There will most likely always be a sector of the population that considers all authority illegitimate, even with a less intensive regulatory approach.
It is unlikely that a regulator will go after an owner of property that has been in the family through generations and where the regulated action would cause a lifestyle change. Increased emphasis is being given to pursuing those PRPs that are larger companies or are readily capable of financing a solution. There are some attempts at different enforcement techniques. For example, participants from EPA described one approach where the community was asked (before utilizing a 104(e) letter) whether they wanted EPA to spend their tax dollars without the PRPs contributing their fair share of the cleanup costs. In that instance, the citizens volunteered to help identify PRPs in their community. It was noted however that it can be difficult to gain this kind of local support in identifying potentially responsible parties, and there is no guarantee that all PRPs will be identified through this approach. More pragmatically, there are examples of processes emerging where PRPs are identified, become involved in a collaborative process, and become willing (either through enhanced understanding or peer pressure) to clean up his/her site with possible help from the process participants (one example is the cleanup activities occurring in the Animas River basin).
Overall success in cleaning up AML sites depends upon a collaborative partnership in which all key parties work together to develop an efficient, supportable cleanup strategy while striving to overcome the common cleanup barriers of funding and coordination. Watershed initiatives are a logical and important approach for gaining this involvement and for focusing decision-making within the framework of natural hydrologic systems.
Factors that improve the chances for success include: getting a local group organized, gaining involvement of the regulatory agencies, working within timeframes and schedules, maintaining momentum through activities of the group, accessing funds, and having a good sense of when it is appropriate to call in "the law."
For watershed projects to work, it is important to make informed decisions even in the face of political uncertainties. Montana was cited as an example where the state worked with other interests in prioritizing sites statewide and is continuing with site cleanup even with the prospects of potential citizen suits. At the same time, it is important to keep in mind the potential political repercussions of a Federal management approach for public lands being opened up to influence from State and local interests, when they may differ from national public interests.
Key participants need to be willing to work together and to educate each other and the community of the problems and possible actions. Within the groups, there can sometimes be a tendency to want to rush forward with independent activities (including activities by Federal agencies). However, the nature of the problem (and the solution) are such that no one can accomplish these goals independently, which again demonstrates the value of proceeding in a coordinated fashion involving all watershed interests. Usually the environmental problem and/or the local fear of Superfund drive the process, at least from the outset. When these concerns becomes less pervasive, there remains a challenge to maintain participation over a long time within a collaborative atmosphere and to retain a balance of power between national, State, and local entities.
The advantage for the local community to initiate a local process is that local involvement provides an opportunity to overcome a dominance of national top-down management by cultivating an overall sense of stewardship and self determination. Traditionally, locals have perceived a heavy-handedness on the part of Federal and State governments in implementing laws and environmental regulatory requirements. Ideally, a collaborative process would convert that scenario into one where those laws and regulations can be used more efficiently and appropriately to move solutions along. More recently, local interests involved in watershed processes have seen their collective abilities help shape solutions and have begun utilizing the different legal authorities and regulatory programs to achieve those solutions.
Although the term "watershed approach" may come and go, the concept of community-based efforts will continue because it make sense. Federal and State agencies can play a role in empowering locals, and can continue to find ways to adjust their way of doing business in order to work with the local conditions and collaborative structures that emerge.
A watershed process is particularly suitable for addressing multiple mine sites because of their pervasiveness, unique characteristics, enormous waste volumes, perpetual flows, remote locations, and diverse ownership. Unfortunately, the regulatory framework is not well suited for an overall watershed approach. The watershed initiatives underway, in fact, face considerable challenges from the current regulatory structure. Clean Water Act liability (for example, lack of a Good Samaritan provision whereby an independent party is protected from liability associated with voluntary cleanup of a site); CERCLA liability (for example, blocks to creating a voluntary cleanup approach); land ownership/management difficulties (for example, mixed ownership of waste piles); and the technical complexity of mining sites, contribute to this difficulty. For example, the use of Section 319 funds was deferred in the remediation of sites in the Animas River basin due to fear of citizen suits under the Clean Water Act. Despite such kinds of problems, groups are encouraged to work within the scope of what is in place because of the uncertainty of changing regulations in Washington.
The "tool box" concept was put together to avoid conflicts over which regulatory tool should be used when and to focus on applying the right tool in the right situation. This concept involves conducting a comparative evaluation of all regulatory (and non-regulatory) options relevant to a watershed and accessing the views of locals in applying those options for cleanup. The tool box does not imply that one way will be used rather than another. Rather, it may offer some creative opportunities to apply one or more regulatory tools. A general watershed permit is viewed as a possible regulatory solution for providing a balance between point and nonpoint sources and for enabling pollutant trading. There are experimental approaches being initiated within the NPDES program, for example, North Carolina is attempting to use a watershed approach for permitting. All tools are available and each situation determines which tools can best achieve implementation of a desired solution. It is important to have key interests at the table in this decision-making process. CERCLA can be viewed as the fallback tool if all else fails (although in some cases use of CERCLA removal action authorities and funds may be an appropriate up-front tool to use). Pilot projects can provide a means to test this approach and to address not only the problems associated with regulatory and financial issues but also with formulating an integrated plan for cleanup of sites on both public and private lands.
Liability for cleanup by Federal land management agencies on non-Federal lands is of major concern. Although there are situations where it makes sense to take risks in that regard, legal staff within the Federal agencies often advise against it. Limitations of use of available funds also work against implementing optimum solutions. For example, BLM is allocating money for selected non-Federal lands. In contrast, USFS currently does not allow such expenditure. As a related issue, development of joint repositories for the disposal of mine wastes is a timely and important issue that needs the integrated input of legal, policy, and scientific information.
Part of the question-and-answer session held at the conclusion of the afternoon is included in the text above since it was a continuation of the themes of the presentations. The remaining portion of the question- and-answer session is below.
Q: What is the Required or Perceived Role of the Public in AML Cleanup?
Q: Define "Stakeholder": Are all Created Equal?
Q: Given That a Functioning Ecosystem is Essential, Where do Other Species fit in as Stakeholders?
Q: In What Areas Should Additional Research be Focused?
Some of the areas worth additional attention include:
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