#AnimasRiver: @EPA cites “sovereign immunity” — $1.2 billion in claims set aside

This image was taken during the peak outflow from the Gold King Mine spill at 10:57 a.m. Aug. 5. The waste-rock dump can be seen eroding on the right. Federal investigators placed blame for the blowout squarely on engineering errors made by the Environmental Protection Agency’s-contracted company in a 132-page report released Thursday [October 22, 2015]
This image was taken during the peak outflow from the Gold King Mine spill at 10:57 a.m. Aug. 5. The waste-rock dump can be seen eroding on the right. Federal investigators placed blame for the blowout squarely on engineering errors made by the Environmental Protection Agency’s-contracted company in a 132-page report released Thursday [October 22, 2015]

From The Farmington Daily Times (Magdalena Wegrzyn , Leigh Black Irvin , Joshua Kellogg and Noel Lyn Smith):

Federal lawmakers, tribal leaders and state and local officials presented a rare unified front today as they vehemently denounced the U.S. Environmental Protection Agency’s announcement that it will not pay more than $1.2 billion in claims filed against it in response to the Gold King Mine spill.

The EPA said the Federal Tort Claims Act prevents the agency from paying claims that result from “discretionary” government actions. Congress passed the law to allow government agencies — and in this case, contractors working on their behalf — to act “without the fear of paying damages in the event something went wrong while taking the action,” according to a press release from the EPA.

Three federal lawmakers representing New Mexico denounced the news in a joint statement, calling the agency’s reasoning a “shameful legal interpretation of liability.” Meanwhile, Navajo Nation officials questioned who would take responsibility for reimbursing tribal members hurt by the spill, which on Aug. 5, 2015, released more than three million gallons of toxic wastewater into a tributary that feeds the Animas River, which flows into the San Juan River, ultimately emptying into Lake Powell.

The EPA said the work contractors conducted at the mine near Silverton, Colo., is considered a “discretionary function” under the law.

Sens. Tom Udall and Martin Heinrich, New Mexico Democrats, and Rep. Ben Ray Luján, D-N.M., issued a statement saying they would continue pushing for legislation to hold the EPA accountable. They also said it would be up to the courts to determine whether the EPA’s defense is legitimate.

Heinrich said in a phone interview that he intends to introduce legislation to ensure the EPA pays claims that have already been filed, as well as future claims.

“I’m going to speak to all of the senators from Colorado and Arizona, and we’re going to introduce legislation to do this right,” he said.

An EPA agency official said paying the claims would discourage cleanup efforts — such as the one being conducted at the Gold King Mine when it was breached — in the future…

Navajo Nation President Russell Begaye said the tribe will continue pursuing its lawsuit against the EPA and several other entities. He said the tribe plans to work with president-elect Donald J. Trump’s administration to address claims tied to the spill.

“It doesn’t stop here,” Begaye said shortly after attending an inauguration ceremony in Shiprock for recently elected Northern Agency chapter officials. “This is one step, and we will continue taking the next step and if we have to, we’ll take it all the way to the Supreme Court.”

[…]

An EPA official said 73 claims related to the mine spill were filed under the Federal Tort Claims Act. Four were from governmental agencies and the rest were from individuals and companies…

Joe Ben Jr. served as the Shiprock Chapter’s farm board member when the spill occurred. Ben, a farmer himself, said he did not file a claim but knows several other farmers who submitted claims for lost crops and revenue…

The orange plume flows through the Animas across the Colorado/New Mexico state line the afternoon of Aug. 7, 2015. (Photo by Melissa May, San Juan Soil and Conservation District)
The orange plume flows through the Animas across the Colorado/New Mexico state line the afternoon of Aug. 7, 2015. (Photo by Melissa May, San Juan Soil and Conservation District)

… collecting compensation doesn’t weigh heavily on [Earl] Yazzie. Instead, the farmer said he’s more concerned about whether to plant crops this spring and if he’ll irrigate with water from the San Juan River…

Included in the $1.2 billion is about $154 million in tort claims that are part of a lawsuit filed by the state of New Mexico, according to the EPA official. She said the EPA’s defense will be used in court to deny payment of those claims…

The EPA official acknowledged the announcement was slow in coming, adding “we spent a lot of time trying to see if there was any other way to address this because this is obviously an answer that leaves a lot of people unhappy who have been hurt.”

From the Associated Press (Dan Elliott):

The EPA said the claims could be refiled in federal court, or Congress could authorize payments.

But attorneys for the EPA and the Justice Department concluded the EPA is barred from paying the claims because of sovereign immunity, which prohibits most lawsuits against the government.

“The agency worked hard to find a way in which it could pay individuals for damages due to the incident, but unfortunately, our hands are tied,” EPA spokeswoman Nancy Grantham said.

The EPA said it has spent more than $31.3 million on the spill, including remediation work, water testing and payments to state, local and tribal agencies.

#Animas River: @EPA releases final analysis for #GoldKingMine spill

This image was taken during the peak outflow from the Gold King Mine spill at 10:57 a.m. Aug. 5. The waste-rock dump can be seen eroding on the right. Federal investigators placed blame for the blowout squarely on engineering errors made by the Environmental Protection Agency’s-contracted company in a 132-page report released Thursday [October 22, 2015]
This image was taken during the peak outflow from the Gold King Mine spill at 10:57 a.m. Aug. 5. The waste-rock dump can be seen eroding on the right. Federal investigators placed blame for the blowout squarely on engineering errors made by the Environmental Protection Agency’s-contracted company.

Here’s the release from the Environmental Protection Agency (Christie St. Clair):

Today, the U.S. Environmental Protection Agency (EPA) posted the final fate and transport report for the Gold King Mine (GKM) release. The report focuses on understanding pre-existing river conditions, the movement of metals related to the GKM release through the river system, and the effects of the GKM release on water quality. The research supports EPA’s earlier statements that water quality in the affected river system returned to the levels that existed prior to the GKM release and contamination of metals from the release have moved through the river system to Lake Powell.

“This report is a comprehensive analysis of the effects on water quality from the Gold King Mine release,” said Dr. Thomas A. Burke, EPA’s Science Advisor and Deputy Assistant Administrator of EPA’s Office of Research and Development. “While data indicate that water quality has returned to pre-event conditions, EPA is committed to continue our work with States and Tribes in the river system affected by the Gold King Mine release to ensure the protection of public health and the environment.”

The area affected by the Gold King Mine release consists of complex river systems influenced by decades of historic acid mine drainage. The report shows the total amount of metals, dominated by iron and aluminum, entering the Animas River following the release — which lasted about nine hours on August 5, 2015 –was comparable to four to seven days of ongoing GKM acid mine drainage or the average amount of metals carried by the river in one to two days of high spring runoff. However, the concentrations of some metals in the GKM plume were higher than historical mine drainage. As the yellow plume of metal-laden water traveled downstream after the release, the metal concentrations within the plume decreased as they were diluted by river water and as some of the metals settled to the river bed.

There were no reported fish kills in the affected rivers, and post-release surveys by multiple organizations have found that other aquatic life does not appear to have suffered harmful short-term effects from the GKM plume. The concentrations of metals in well-water samples collected after the plume passed did not exceed federal drinking water standards. No public water system using Lake Powell as a source of drinking water has reported an exceedance of metals standards since the release.

Some metals from the GKM release contributed to exceedances of state and tribal water quality criteria at various times for nine months after the release in some locations. Metals from the GKM release may have contributed to some water quality criteria exceedances during the spring 2016 snow melt. Other exceedances may reflect longstanding contributions of metals from historic mining activities in the region and natural levels of metals in soils and rocks in the area. EPA will continue to work with states and tribes to interpret and respond to these findings.

Results from this analysis will inform future federal, state and tribal decisions on water and sediment monitoring. EPA will continue to work with states and tribes to ensure the protection of public health and the environment in the river system affected by the Gold King Mine release.
Read the final report, “Analysis of the Transport and Fate of Metals Released From the Gold King Mine in the Animas and San Juan Rivers”: https://cfpub.epa.gov/si/si_public_file_download.cfm?p_download_id=530074

Read the report’s executive summary: https://cfpub.epa.gov/si/si_public_file_download.cfm?p_download_id=530075

More information on the Fate and Transport analysis: https://www.epa.gov/goldkingmine/fate-transport-analysis

More information on the 2015 Gold King Mine incident: https://www.epa.gov/goldkingmine

Cement Creek aerial photo -- Jonathan Thompson via Twitter
Cement Creek aerial photo — Jonathan Thompson via Twitter

From The Durango Herald (Luke Perkins):

The 2015 Gold King Mine spill deposited nearly 540 tons of metals over a 9-hour period into Cement Creek, which feeds into the Animas River, the Environmental Protection Agency said Friday in it final report on the scope and ongoing effects of the spill.

The EPA estimated that roughly one percent of the metals, mostly iron and aluminum, contained in the spill came from the mine, with the rest coming from the waste piles on the hillside below the mine adit and the stream bed of Cement Creek.

The study states “the volume of the GKM release was equivalent to four to seven days of ongoing GKM acid mine drainage,” or “one to two days of high spring runoff.”

But, as indicated in previous tests, the river returned to pre-spill levels.

There have been no reported fish kills or significant impacts on other aquatic life, but the EPA will continue to monitor the waterways impacted by the spill, the agency said Friday in a release.

The study also looked at water quality in the Animas to see if it had returned to pre-event conditions and if the impacts of the spill itself had long-term detrimental ramifications on the river given the history of mining in the region…

“The research supports EPA’s earlier statements that water quality in the affected river system returned to the levels that existed prior to the GKM release and contamination of metals from the release have moved through the river system to Lake Powell,” the release said.

Following Aug. 5, 2015 spill, the concentration of contaminants exceeded water quality standards in multiple locations impacted.

This necessitated the building of an interim water treatment plant at Gladstone that was mandated to operate through November 2016, said Cynthia Peterson, community involvement coordinator for the Bonita Peak Mining District. The EPA concluded a public comment session on Dec. 14 regarding the future of the treatment plant, and will release a final decision by the end of January, Peterson said. But the EPA has a preferred course of action.

“EPA’s preferred plan for the water treatment plant is for its continued operations and to look at additional options in the future as we understand more about the nature and spread of the contamination,” she said.

The agency also is conducting remedial investigation to understand the impact of the 48 sites in the mining district, which was named a Superfund site in September, on river contamination, Peterson said. This represents the first step before clean-up operations can begin.

From the Associated Press (Matthew Daly) via The Farmington Daily Times:

Agency says only 1 percent of the metals came from inside the mine and the rest were “scoured” from waste piles on nearby hills and stream beds

Health and environmental officials in San Juan County are evaluating the Animas River after roughly 1 million gallons of mine waste water were released Wednesday. August 6, 2015. (Photo courtesy San Juan Basin Health Department)
Health and environmental officials in San Juan County are evaluating the Animas River after roughly 1 million gallons of mine waste water were released Wednesday. August 6, 2015. (Photo courtesy San Juan Basin Health Department)

Nearly 540 tons of metals — mostly iron and aluminum — contaminated the Animas River over nine hours during a massive wastewater spill from an abandoned Colorado gold mine, the Environmental Protection Agency said today in a new report on the 2015 blowout that turned rivers in three states a sickly yellow.

The total amount of metals entering the river system was comparable to levels during one or two days of high spring runoff, although the concentration of metals was significantly higher at the spill’s peak, the report said.

In February, the EPA estimated the amount of metals in the release at 440 tons. The agency said additional data and improved analysis resulted in the higher final estimate.

The EPA said its research supports earlier statements that water quality in the affected river system has returned to pre-spill levels…

The EPA said in its report that only 1 percent of the metals came from inside the mine, while 99 percent were “scoured” from waste piles on nearby hills and stream beds. The iron and aluminum reacted with the river water to cause the eye-catching mustard color that was visible for days as the plume traveled down the river system into Lake Powell, the EPA said.

Besides iron and aluminum, the spill released manganese, lead, copper, arsenic, zinc, cadmium and a small amount of mercury into the river, the EPA said…

New Mexico Environment Secretary Butch Tongate accused the EPA of using the taxpayer-funded report to try to defend its actions. The state has sued the agency over the spill.

Colorado officials said they had no comment on the report. Utah officials didn’t immediately respond to a request for comment.

From The Denver Post (Jesse Paul):

“While data indicate that water quality has returned to pre-event conditions, EPA is committed to continue our work with States and Tribes in the river system affected by the Gold King Mine release to ensure the protection of public health and the environment,” Dr. Thomas A. Burke, EPA’s science adviser and deputy assistant administrator in its office of research and development, said in a statement…

The disaster, which turned the Animas River a toxic-looking yellow-orange, prompted concern and anger downstream, particularly in the Navajo Nation and New Mexico, where officials have been continually complaining about the spill’s water-quality impacts and have filed lawsuits against the EPA. The concentrations of some metals in the Gold King mine plume were higher than historical mine drainage, the EPA said in a news release announcing the report’s findings, but the impacts on water quality were not long lasting as some had worried…

There were no reported fish kills in the Animas or San Juan rivers, and the EPA says surveys have round that other aquatic life does not appear to have suffered any short-term impacts…

Also, the agency says the concentrations of metals in well-water samples collected after the 3 million-gallon spill’s plume passed through areas did not exceed federal drinking water standards. No public water system using Lake Powell as a source of drinking water has reported an exceedance of metals standards since the release, according to the EPA.

“Some metals from the GKM release contributed to exceedances of state and tribal water quality criteria at various times for nine months after the release in some locations,” the release said. “Metals from the GKM release may have contributed to some water quality criteria exceedances during the spring 2016 snow melt.”

However the EPA says other metal-level exceedances may reflect the longstanding mine drainage from the region’s historic sites as well as natural levels of metals in southwest Colorado’s soils and rocks. Silverton and its surroundings are now slated to get a federal cleanup of their leaching, historic mines under the EPA’s Superfund program.

The mines and mining sites in Silverton’s surroundings — including the Gold King — pour an estimated 5.4 million gallons of metal-laden waste into the Animas’ headwaters each day.

“Results from this analysis will inform future federal, state and tribal decisions on water and sediment monitoring,” the EPA release said, though it did not immediately elaborate.

Bonita Mine acid mine drainage. Photo via the Animas River Stakeholders Group.
Bonita Mine acid mine drainage. Photo via the Animas River Stakeholders Group.

#coleg: @CWCB_DNR hopes to score $25 million for watershed plans @COWaterPlan

Yampa River
Yampa River

From The Denver Post (Bruce Finley):

A Colorado Water Conservation Board proposal, sent to state lawmakers last week, recommends the stream-saving action to meet state environmental and economic goals. It remains unclear who would enforce the community watershed plans.

But there’s little doubt streams statewide are strained by thirsts of a growing population expected to double by 2060, according to state officials. And a Denver Post look at the latest water quality data found that 12,975 miles of streams across Colorado (14 percent of all stream miles) are classified as “impaired” with pollutants exceeding limits set by state regulators.

Creating local watershed plans to save streams is essential, said James Eklund, the CWCB director and architect of the year-old Colorado Water Plan. Eklund pointed to low-snow winters and drought in California’s Sierra Nevada, where 2015 snowpack at 5 percent of average forced a declaration of a state of emergency requiring 25 cuts in urban water use.

“When our Colorado mountain snowpack drops below 60 percent of average, we get nervous. If it happens in the Sierras, it can happen in the Rockies,” he said. “We need to protect certain streams before a crisis. We have got to get on this quickly.”

No single agency oversees waterway health. State natural resources officials monitor flow levels in streams and rivers. They run a program aimed at ensuring sufficient “in-stream flow” so that, even during drought, streams don’t die.

Meanwhile, the Colorado Department of Public Health and Environment sets standards on maximum levels of pollutants that people and companies are allowed to discharge into waterways. In 2015, only 51.6 percent total stream and river miles in Colorado met quality standards, and 30.1 percent of lake surface acres met standards, according to a CDPHE planning document.

“If stream flows are low, there is less dilution in the stream to handle the addition of pollutants through permitted discharges,” CDPHE water quality director Pat Pfaltzgraff said in responses sent by agency spokesman Mark Salley.

Yet CDPHE officials do not make recommendations to natural resources officials about water flows necessary to improve stream health.

The health department has made separate “watershed plans.” CDPHE officials “are considering broadening the division’s watershed plans to include ecosystem health that might be more consistent with stream management plans.”

Pfaltzgraff declined to discuss stream health…

CWCB chairman Russ George supported the push to create local watershed plans, to include detailed maps covering every stream.

“Every stream and tributary needs to be inventoried. … It should have been done a long time ago,” George said in an interview last week.

“We have kind of hit the population and demand place where we have to do it. We didn’t have to do it for the first part of history because the population was small and there wasn’t the impact of all the issues we are getting into now,” he said.

The CWCB voted unanimously last month to ask lawmakers to approve $5 million a year for up to five years to launch local stream planning.

Basin roundtable boundaries
Basin roundtable boundaries

The plans are to be developed within the eight river basin “roundtable” forums that Colorado has relied on for addressing water challenges. These groups draw in residents with interests in stream health who helped hash out the Colorado Water Plan, which was finalized last year and calls for statewide cuts in per person water use by about 1 percent a year.

Conditions along Colorado streams vary, said Bart Miller, healthy rivers program director for Boulder-based Western Resource Advocates. “There are plenty of streams that have problems.”

While state natural resources officials run the program aimed at keeping at least some water in heavily tapped streams, survival in a competitive environment is complex. Leaving water in streams for environmental purposes often depends on timing, when the mountain snowpack that serves as a time-release water tower for the West melts, the amount of snowpack, and needs of cities, pastures and farms.

Collaborative local forums to find flexibility to revive streams “is a great approach.” However, state officials eventually may have to play a central role converting plans into action, Miller said.

“The state should help both in funding the planning but also in implementing the plans,” he said. “We have a lot of work to do. This matters because this is about ‘the Colorado brand.’ Everyone depends on healthy rivers.”

The roundtable forums in communities draw in diverse stakeholders from cattlemen to anglers.

Irrigators and other water users west of Aspen already have created a “stream management plan,” for the Crystal River, seen as a model local effort. Their planning included an assessment of watershed health that found significant degradation above the confluence with the Roaring Fork River. They set a goal of reducing the estimated 433 cubic feet per second of water diverted from the river by adding 10 to 25 cfs during dry times. They’re developing “nondiversion agreements” that would pay irrigators to reduce water use when possible without hurting agriculture, combined with improving ditches and installation of sprinkler systems designed to apply water to crops more efficiently.

Enforcement of plans hasn’t been decided. “We’d like to see more enforcement” of measures to improve stream health, Rocky Mountain Sierra Club director Jim Alexee said. “We definitely think there’s room to do more. We also want to be respectful of the governor’s watershed process.”

Colorado has no history of relying on a central agency to enforce water and land use, CWCB chairman George pointed out.

“When you have a system designed to have everybody at the table, what you’re doing is recognizing there is a finite resource that is shared by everybody. And impacts are shared by everybody statewide. In order to keep from having some force dominate in ways that would not account for all statewide impacts, you need to diffuse the conversation into all areas. That is what roundtables do,” he said.

“When you do that, you’re going to get a better statewide result over time. … It is a process that is designed to get as many interests into the decision-making as you can. … It gets harder, of course, as the supply-demand makes pinches. For the rest of our lives, it is going to be that way.”

Denver: Long slog ahead for Platte to Park Hill stormwater project

Storm drain and open channel improvements between the East Rail Line (38th & Blake Station) and the South Platte River (Globeville Landing Outfall), Stormwater detention/conveyance between the East Rail Line (38th & Blake Station) and Colorado Blvd, (Montclair Basin) Stormwater detention/ conveyance immediately east of Colorado Blvd. (Park Hill Basin).
Storm drain and open channel improvements between the East Rail Line (38th & Blake Station) and the South Platte River (Globeville Landing Outfall), Stormwater detention/conveyance between the East Rail Line (38th & Blake Station) and Colorado Blvd, (Montclair Basin)
Stormwater detention/ conveyance immediately east of Colorado Blvd. (Park Hill Basin).

From Westword (Alan Prendergast):

The city of Denver’s $300 million stormwater diversion project has already generated significant community resistance, from complaints over the sharp hike in stormwater fees needed to finance the plan to protests over the impacts the construction will have on north Denver neighborhoods and the City Park Golf Course to heated debates over who truly benefits from the project.

But as more details of the plan become public, opponents of the Platte to Park Hill Stormwater Systems are increasingly focusing on a little-discussed aspect of the project: the decision to direct storm runoff to the South Platte River through a heavily polluted Superfund site, a process that some fear could expose the river and nearby neighborhoods to a toxic brew of contaminants from arsenic-laced groundwater and a long-buried landfill.

“This is authentically nuts,” says civil engineer Adrian Brown, who’s raised questions with city engineers about the viability of the storm runoff outfall design. “If this thing fails, it’s just going to deposit the whole landfill into the river.”

Public works officials say the project is safe and will actually improve river quality. They have touted Platte to Park Hill (or “P2PH”) as a necessary fix for long-festering drainage problems in the northeast part of the city — water that flows north and west from Fairmount Cemetery through the Montclair, Park Hill, Cole and Whittier neighborhoods to Elyria, Swansea, Globeville and ultimately the South Platte River. Officials have stressed that some of the city’s poorest neighborhoods will benefit from the improvements, which include a fifteen-block channel along East 39th Avenue, an expanded outfall area at Globeville Landing Park, and a thirty-acre detention “pond” at the golf course, which won’t fill up except in the worst storms.

#AnimasRiver: @EPA wants to continue operations at [Cement Creek] water-treatment plant — The Durango Herald

The EPA's wastewater treatment plant near Silverton, Colorado, on Thursday, Oct. 16, 2015 -- photo via Grace Hood Colorado Public Radio
The EPA’s wastewater treatment plant near Silverton, Colorado, on Thursday, Oct. 16, 2015 — photo via Grace Hood Colorado Public Radio

From The Durango Herald (Jonathan Romeo):

The Environmental Protection Agency announced Monday it would prefer to continue operations at the temporary water-treatment plant that handles discharges out of the Gold King Mine while the agency continues to evaluate long-term options.

Before the EPA makes that decision final, a public comment period that began Monday will run to Dec. 14.

“As EPA understands more about the hydrology of the area, and how various sources of contamination are affecting water quality, the Agency will consider any number of options, including potential expansion of the IWTP, to address the contamination,” Chris Wardell, of U.S. EPA Region 8, said in a news release.

The second option considered in the report released Monday was to mothball the $1.5 million water-treatment plant, which was built two months after an EPA contracted crew on Aug. 5, 2015, breached the portal of the Gold King Mine, releasing 3 million gallons of mine waste down the Animas River.

The treatment plant’s high cost of operation, as well as the need to deal with the lime-heavy metal sludge by-product, led officials tasked with improving water quality in the Animas River watershed to find other options.

As of last week, the average flow rate into the treatment plant was 712 gallons per minute, and it costs about $16,000 per week to operate.

If EPA, after reviewing public comments, formally decides to continue operations, the agency will move the plant from “emergency removal action” funding to “Non-Time Critical Removal Action,” which falls under the proper Superfund process.

This fall, the EPA officially declared 48-mining sites around Silverton as the Bonita Peak Mining District Superfund site.

Cement Creek aerial photo -- Jonathan Thompson via Twitter
Cement Creek aerial photo — Jonathan Thompson via Twitter

#AnimasRiver: Navajo Nation to court, Sunnyside a key contributor #GoldKingMine

On April 7,  2016, the Environmental Protection Agency proposed adding the “Bonita Peak Mining District” to the National Priorities List, making it eligible for Superfund. Forty-eight mine portals and tailings piles are “under consideration” to be included. The Gold King Mine will almost certainly be on the final list, as will the nearby American Tunnel. The Mayflower Mill #4 tailings repository, just outside Silverton, is another likely candidate, given that it appears to be leaching large quantities of metals into the Animas River. What Superfund will entail for the area beyond that, and when the actual cleanup will begin, remains unclear. Eric Baker
On April 7, 2016, the Environmental Protection Agency proposed adding the “Bonita Peak Mining District” to the National Priorities List, making it eligible for Superfund. Forty-eight mine portals and tailings piles are “under consideration” to be included. The Gold King Mine will almost certainly be on the final list, as will the nearby American Tunnel. The Mayflower Mill #4 tailings repository, just outside Silverton, is another likely candidate, given that it appears to be leaching large quantities of metals into the Animas River. What Superfund will entail for the area beyond that, and when the actual cleanup will begin, remains unclear.
Eric Baker

From The Farmington Times (Noel Lyn Smith):

In a lawsuit filed earlier this year in U.S. District Court of New Mexico, the tribe named Sunnyside Gold Corp. as a responsible party for the spill on Aug. 5, 2015.

The lawsuit also names the U.S. Environmental Protection Agency, Environmental Restoration LLC, Harrison Western Corp., Gold King Mines Corp., Kinross Gold Corp., Kinross Gold USA Inc. and John Does 1-10.

Sunnyside filed a motion on Oct. 17 to dismiss its involvement in the lawsuit, and the tribe filed its response on Monday.

In the tribe’s response to Sunnyside’s motion, it called the company a “key contributor” to the toxic water buildup at the Gold King Mine near Silverton, Colo.

The buildup led to a blowout, triggering the release of more than 3 million gallons of toxic wastewater into the Animas and San Juan rivers.

“It knew that its actions in bulk heading its mine would shift the flow of contaminated water to other mines in the Upper Animas Watershed and pose a substantial threat of a future blowout into downstream communities,” the response states…

Sunnyside argued the state of Colorado should be named in the lawsuit since the mine and associated activities at the mine site are within the state.

In the tribe’s response, it stated the federal court can provide “complete relief” for damages incurred as a result of the spill among the defendants already named in the lawsuit. It adds that Colorado’s role as a mine regulator is of “no consequence” because the tribe is not challenging how the state regulates mining nor is it asking for an injunction only the state could provide.

Sunnyside also argued for a dismissal using a section of the Comprehensive Environmental Response, Compensation and Liability Act, which is commonly known as the Superfund Act.

The section Sunnyside cited states that no federal court has jurisdiction to review any challenges when remedial action is taking place at a Superfund site.

In response, the tribe argues Sunnyside cannot use that section of the Superfund Act because the Bonita Peak Mining District, which includes the Gold King Mine, was designated a Superfund site only after the mine spill.

The EPA declared the area a Superfund site in September.

The orange plume flows through the Animas across the Colorado/New Mexico state line the afternoon of Aug. 7, 2015. (Photo by Melissa May, San Juan Soil and Conservation District)
The orange plume flows through the Animas across the Colorado/New Mexico state line the afternoon of Aug. 7, 2015. (Photo by Melissa May, San Juan Soil and Conservation District)

Clear Creek: New water treatment under construction on the North Fork

Photo from Paul Winkle (CPW) slide show at the South Platte Forum October 26, 2016.
Photo from Paul Winkle (CPW) slide show at the South Platte Forum October 26, 2016.

From 9News.com (Next with Kyle Clark):

There’s another orange, rusty flow of water coming from our Colorado mountains, this one on the North Fork of Clear Creek near Black Hawk.

A viewer sent Next a question about this, asking what was going on.

We found out that environmentalists know about it, and have known for a few years.

It happens when rocks, which have been buried for years in Colorado’s mines, reach ground water. These rocks have likely never been exposed to oxygen because of that. Once rocks touch groundwater, iron is oxidized and acid is formed. The oxidized iron turns the water orange, but the acid is the concern. Acid dissolves necessary metals in the water, and can kill off wildlife in a stream.

The substance dilutes once reaching the main stem of Clear Creek, but there is not currently wildlife living in that fork.

The water treatment plant being built will take care of all that by treating the water with lyme, which will neutralize the acid in the water. The plant opens in January.

The good news is we won’t have a repeat of the Animas River incident from 2015.

“The two point sources that are contributing to this right now have been open and they are just openly leaking into the stream continuously, and so there’s not that build up like we saw with the Animas River,” said Elizabeth Traudt, from the Colorado School of Mines. “Instead, since these have been continuously leaking, that’s why this stretch of the stream has been continuously orange and continuously contaminated.”

That’s right. The water has been orange for a while.