Mulhall column: Call on God, but row away from the EPA |

Mulhall column: Call on God, but row away from the EPA

“The earth lies defiled under its inhabitants; for they have transgressed the laws, violated the statutes, broken the everlasting covenant.”

— Isaiah 24:5

Stewardship of Earth’s natural beauty is important, and as the verse from Isaiah suggests, this is no recent revelation.

The Gold King Mine spill in southern Colorado demonstrates the frailty of the idea that through science, we can govern our way to a clean environment. Where does this come from?

A good start is Lyndon Johnson’s 1965 Special Message to the Congress on Conservation and Restoration of Natural Beauty, wherein he said, in part, “Faulty strip and surface mining practices have left ugly scars which mar the beauty of the landscape in many of our states.“ He also spoke of the impact of dams and reservoirs on the nation’s waterways, and the need for pollution control programs to restore America’s rivers.

Signed into law by Richard Nixon in 1970, the Environmental Protection Agency arose from Johnson’s Great Society. Like motherhood — er, that really doesn’t work anymore … like free-range chickens, no one opposes nature’s beauty, so on the face of it, few oppose the EPA’s mandate.

Yet on the morning of Aug. 5, 2015, while conducting reclamation activities at the Gold King Mine north of Silverton, an EPA contractor poked a hole near one of the mine’s portals, triggering an uncontrolled release of about 3 million gallons of highly acidic mine water.

That acidic water was a curry-colored mishmash of chemical elements and compounds. The flow found its way to Cement Creek, continued to the Animas River and then to the San Juan. On Aug. 14, 2015, it steeped into Lake Powell.

Thirteen months after the release, the EPA declared the Gold King Mine and 47 other locations in the area Superfund sites. The fiction about a Superfund is that it’s a congressional set-aside of taxpayer dollars for cleaning environmental messes — a sort of Social Security fund for the environment. The truth is, a Superfund designation declares open season for litigation against individuals, groups and companies that the EPA thinks has pooped in the public nest.

On Jan. 13, 2017, the EPA announced it would not pay damage claims totaling more than $1.2 billion. According to the EPA, the Federal Tort Claims Act says government agencies act “without the fear of paying damages in the event something went wrong while taking the action.”

As if to validate Ronald Reagan, who once said, “The most terrifying words in the English language are: ‘I’m from the government and I’m here to help,’” the EPA’s Superfund designations surely come as bad news for individuals and businesses who ran the Gold King in the decades before its 1992 closure, including, perhaps, the heirs of Olaf Arvid Nelson, who staked the Gold King claim in 1887.

To be sure, however, the EPA, won’t look farther back than Olaf, for if they do they’ll run squarely into the federal government. The General Mining Law of 1872 gave federal land, royalty free, to guys like Olaf who showed proof of the land’s mineral content.

Suppose the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 is right in saying people responsible for creating conditions that contributed to environmental damage are financially liable for the cost of remediation. This “you break it, you buy it” proposition stands the U.S. government in line right alongside mining.

Consider Aspen. The Sherman Silver Purchase Act of 1890 gave way to a time when the Smuggler mine produced more silver than Leadville. Then, almost as quickly, the boom went bust when Congress repealed Sherman in 1893. Ninety-seven years after Aspen’s silver mining heyday, the EPA declared Smuggler Mountain a Superfund site. Nowhere on the list of responsible parties was the federal government, even though the mining brought about by Sherman almost single-handedly turned a small settlement called Ute City into the town of Aspen.

Nature’s beauty is given neither by a U.S. president nor the EPA. It existed before we walked the Earth, and it will exist when we’re all gone. Moreover, the elements that made up the toxic sludge that in 2015 polluted the waters of the U.S. Southwest existed before the Constitution, the Magna Carta, or even the Ten Commandments.

“But Mitch, that liquid pollutant would never have existed if mining hadn’t disrupted those elements in their natural states.”

If mining is that agent, a government that incentivized mining stands in the same class as the guy who sank a pick into rock.

“But Mitch, we are so much more enlightened now about the delicate nuances of nature’s beauty than our predecessors ever were.”

No we’re not. What, because we have Earth Day?

If we’re so enlightened, why would an EPA contractor stick a track hoe bucket into an abandoned mine adit? Human imperfection? A momentary lapse in judgment? So much for the virtue of science-based governance. Add to that invoking Superfund status while minimizing responsibility — or avoiding it altogether — and you get a real low-set stewardship bar.

That’s not enlightened.

Mitch Mulhall is a husband, father and longtime valley resident. His column appears on the second Friday of each month.

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