Winter 2001-2002 Bulletin

EPA Ossies AOC. Aids TAG (i.e. Superfund Agreement Reached)

Just when we thought Superfund wasn’t going to happen at the Questa molybdenum mine, the threatened federal designation – which we believe tipped Molycorp over into accepting state mine cleanup as the lesser of two evils – has suddenly reappeared, albeit in a less dramatic guise. It is as if the proverbial 800-pound gorilla has not only been lurking in the closet but peering out of the For the past year, somewhat behind the scenes, the Environmental Protection Agency has been in negotiations with the mine and the state to agree on an ‘Administrative Order on Consent’ (AOC), which would require Molycorp to undertake the first stage in the Superfund process, the ‘Remedial Investigation/ Feasibility Study’ (RIFS), even though formal Superfund status (placement of the Questa mine on the National Priorities List) has not been invoked. The word “Superfund” (about the only memorable and easily understandable term in the whole bureaucratic business) in fact applies to an entire suite of laws and regulations surrounding the cleanup of America’s most contaminated sites. The overarching statute is the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and this law lays down the primary objectives underlying the recent AOC agreement. CERCLA aims to protect public health & welfare and the environment, and to “expedite effective remedial action and minimize litigation.” Thus the agreement with Molycorp aims to avoid expensive litigation and third party costs, and to move quickly toward restoration, by requiring that the mine do most of the investigative research work, closely supervised by EPA. The RIFS is designed to do two main things: to investigate the threats to human health and the environment from mining contamination (the Remedial Investigation), and to scope out possible treatment technologies (the Feasibility Study). The Remedial Investigation is intended to be an umbrella under which previous and ongoing studies are brought together, so there should be no duplication of the voluminous materials already put together by Molycorp consultants, the state and independent researchers like the US Geological Survey (USGS). The Remedial Investigation should clarify the entire pollution picture, by describing all sources of the known contaminants (including natural sources like hydrothermal scars), their ‘migratory pathways’, and their human and environmental ‘receptors’ – locations, including organisms, where the contaminants end up and cause impacts. This should place much more focus on offsite areas, and their living inhabitants, impacted by the mine: the metal-choked, ‘dead’ six miles or so of the Red River, the pipeline-break tailings deposits throughout the Questa area, the contaminated groundwater that has been used for drinking, the residents of Questa who may have been exposed to contaminated dust from the tailings ponds, even the trout in the lower Red River which have been subjected to chronic metals pollution. Molycorp will collect the relevant data, and EPA will thereby assess the risks to human health and the environment (which is an evaluative rather than purely factual exercise), and will complete a Record of Decision selecting the appropriate cleanup methods (many of which have already been proposed under the state process). CERCLA also has some useful objectives when it comes to the cleanup alternatives. These should be “cost-effective, [and] utilize permanent solutions and alternative treatment technologies [where appropriate]…”, for example. This points to support for ecological source controls to prevent acid mine drainage by reclaiming and revegetating the mine: a permanent solution using an ‘alternative’ technology that should be more robust than conventional pump-and-treat engineering. Amigos Bravos’ plan to introduce a ‘citizens’ design’ for an enclosed mine effluent system, preventing most contaminated seepage to the Red River, could also fit in well here. There may even be opportunities to remove the metal precipitates clogging the river near the mine, plus any tailings spills in the river valley still contributing water or soil pollution. Another valuable feature of the agreement is the high level of oversight it attempts to provide. If Molycorp does inadequate work, EPA will step in, do the work itself, and charge the costs to the company. The mine has been required to put up a $2 million bond to guarantee adequate performance of the RIFS. EPA also imposes numerous quality control and reporting requirements, overseen by its Remedial Project Manager. State and federal experts in a Technical Coordination Group oversee the health and ecological risk assessments, including helping distinguish mine-caused contamination from natural or ‘background’ pollution, which is a major point of possible contention requiring unbiased judgment. The best laid plans, though, can go awry – particularly when the investigation is being conducted by researchers wishing to serve the interests of their employers, which are not necessarily about full disclosure, even as they attempt to uncover the facts. Some of Molycorp’s consultants have exhibited a disturbing pro-mine bias in the past. This problem has been reduced by contracting with independent researchers such as USGS, presently researching background levels of natural pollution; and through oversight by the full range of stakeholders, including citizens’ groups such as Amigos Bravos. At present the AOC contains precious little in the way of public involvement requirements, or recourse to independent experts or dispute resolution, and we believe it should be amended to meet this critical need. The Superfund process will, however, provide funding for and formalize the role of the community Technical Assistance Grant (TAG) group, which Amigos Bravos volunteer Karen Douglas has been helping set up over the past year and which has been named the Rio Colorado Reclamation Committee (in reference to the reddish color that gave the river its name, before it went blue as a result of acid mine drainage). Amigos Bravos visited the TAG group at the notorious Summitville mine near Alamosa, Colorado, last year, and we were impressed with how local citizens and their technical advisers had been able to redress government failures such as bureaucratic excesses and weak enforcement of remediation measures. We are much more confident in government’s ability at Molycorp (Summitville was, in contrast, an unusual ‘emergency’ Superfund designation), but given the amount of oversight that Molycorp’s consultants will require, which will stretch an EPA whose funding is being cut, the role of the TAG group will be critical. We also believe that technical and legal oversight committees, made up of a range of stakeholders including bodies with relevant trust responsibilities such as Taos Pueblo, the NM Natural Resource Trustee, and the US Fish & Wildlife Service, may be needed to ensure additional accountability in meeting the full range of public concerns.

Please return to Winter 2001-2002 Bulletin Index.

Return to the Amigos Bravos Home Page.