On June 26, the US Supreme Court denied New Mexico’s petition seeking to institute an original action against Colorado for the 2015 Gold King Mine spill. An original action in the US Supreme Court is a lawsuit between states. Invoking that rarely used procedure, New Mexico sought to hold Colorado liable for the Gold King Mine spill. New Mexico asserted claims under the intricate provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Resource Conservation and Recovery Act of 1976 (RCRA). New Mexico also sought analogous relief against Colorado under federal interstate common law.
Attorneys assisting the State of Colorado, successfully argued that the US Supreme Court should not entertain New Mexico’s novel lawsuit. As explained in Colorado’s briefing, New Mexico’s RCRA claim failed because a CERCLA response action had been initiated to address the relevant hazardous substance release. New Mexico’s CERCLA claim failed, Colorado argued, for a number of reasons, including that once a site is under investigation under CERCLA authority, several of New Mexico’s claims are barred because they would interfere with the CERCLA investigation and remedy decision making. Colorado additionally argued that Congress displaced New Mexico’s putative federal common law claims through its enactment of comprehensive environmental statutes, most importantly the Clean Water Act, but also CERCLA and RCRA. Finally, Colorado’s briefing also explained that Colorado should not be held liable for its regulatory activities in remediating and managing abandoned mines…
Colorado’s victory at the US Supreme Court protects Congress’s carefully constructed statutory scheme for the effective management and remediation of water pollution across the country. It also protects Colorado’s sovereign ability to remediate abandoned mines.
From the Associated Press (Dan Elliott) via The Aurora Sentinel:
The total now appears to be about $420 million. A single law firm that originally filed claims totaling $900 million for a handful of New Mexico property owners told the AP it had lowered their claims to $120 million
Farmers, business owners, residents and others initially said they suffered a staggering $1.2 billion in lost income, property damage and personal injuries from the 2015 spill at the Gold King Mine, which tainted rivers in Colorado, New Mexico and Utah.
But the total now appears to be about $420 million. A single law firm that originally filed claims totaling $900 million for a handful of New Mexico property owners told the AP it had lowered their claims to $120 million.
It’s still uncertain whether the White House and Congress — both now controlled by the GOP — are willing to pay for any of the economic losses, even though Republicans were among the most vocal in demanding the EPA make good on the harm.
Under former President Barack Obama, a Democrat, the EPA said it was prohibited by law from doing so.
Now that they’re in charge, Republicans have vowed to slash spending on the environment, leaving the prospects for compensation in doubt…
The EPA said it received 73 claims for economic damage or personal injuries. The AP obtained copies of the claims through an open records request, although many details were redacted.
The Albuquerque, New Mexico, law firm Will Ferguson & Associates filed claims totaling $900 million for about a dozen residents of Aztec, a town of about 6,100 on the Animas River in northwestern New Mexico. The residents say the contaminated water damaged their wells, soil and plumbing and caused health problems including chronic intestinal pain, rashes and memory loss.
Will Ferguson, the firm’s managing partner, said the $900 million represented an opening position, and the attorneys never expected to recover that much.
Kedar Bhasker, another lawyer with the firm, said the claims were refiled in December. Bhasker called the lower amount “more reasonable.”
In January, the EPA was still using the $1.2 billion total for all the claims, which didn’t reflect the law firm’s revisions. EPA officials didn’t immediately provide an explanation in response to emails seeking comment.
The other claims ranged from river guides asking for a few hundred dollars in lost wages to the Navajo Nation seeking $162 million for environmental and health monitoring, among other things. The state of New Mexico asked for $130 million in lost taxes and other revenue. The state and tribe also are suing the EPA separately in federal court.
Ten tourist-dependent businesses filed claims, saying they lost money when travelers stayed away. Farmers and ranchers said crops died because the river couldn’t be used to irrigate and that they had extra expenses from hauling untainted water to livestock.
Some property owners said the value of their land plummeted because of the stigma attached to the spill…
The agency noted it had already spent more than $31.3 million on the spill, including remediation work, water testing and payments to state, local and tribal agencies for their emergency response to the disaster.
But lawmakers were infuriated — especially Republicans, some of whom portrayed the spill as a glaring example of EPA mismanagement. They have pressed the new EPA chief, Scott Pruitt, to reconsider the decision not to pay damages.
At his confirmation hearings, Pruitt promised to review it. The EPA didn’t immediately respond to emails and a phone call seeking comment on whether he had done so.
Republican Sen. Cory Gardner of Colorado said he believes Pruitt “will make good on his promise to work with me and my colleagues in resolving the outstanding issues that remain from the Obama administration’s EPA.”
Colorado Democrats introduced a measure in Congress in 2015, shortly after the spill, intended to allow federal compensation for economic damages, but the bill died.
Now, Congress appears to be waiting on President Donald Trump’s administration to make its intentions known.
“We don’t know what to expect from this administration in regard to that,” said Liz Payne, a spokeswoman for Republican Rep. Scott Tipton of Colorado, whose district was hurt by the spill.
“It’s still a waiting game for us at this point,” she said.
FromColoradoPolitics.com (Peter Marcus) via The Colorado Springs Gazette:
The man who led transition efforts for President Trump at the EPA said the administration’s proposed budget signals a commitment to abolish the agency.
But Myron Ebell, a Colorado College graduate and an outspoken climate change skeptic who leads energy and environment policy at the conservative Competitive Enterprise Institute, said it is not an overnight effort.
The administration’s preliminary 2018 budget proposal released Thursday charts a course that could lead to the end of the federal environmental agency, Ebell said, speaking to a conservative group at the libertarian-leaning Independence Institute in Denver on Thursday.
Ebell had proposed Trump make a 10 percent cut to the EPA in his first budget request. The proposal unveiled Thursday would cut the agency by significantly more, up to 31 percent. It represents about a $2.6 billion cut to the agency’s relatively small, when compared to other federal agencies, $8.2 billion budget.
The cuts would result in about 3,200 employees being laid off in the initial wave, which could include many regional staff. Denver is home to Region 8 headquarters, a multi-state jurisdiction that covers much of the Intermountain West, which employs about 500 people.
“I think there’s a serious commitment here to draining the swamp,” Ebell, calling upon a popular Trump campaign mantra, said to applause.
The preliminary budget request would eliminate as much as a fifth of the agency’s workforce, which stands at around 15,000. More than 50 programs would be eliminated, including energy grants that help to fight air pollution. Scientific research would also face massive cuts.
Environmental interests had feared Trump’s budget proposal would start to chip away at the EPA, ultimately leading to closure. News of the preliminary budget sent many into a tailspin, as it potentially signals a much faster outcome.
Trump also proposed a 12 percent cut to the Interior Department and a 5.6 percent cut to the Department of Energy.
“The president’s budget is a moral document, and President Trump has shown us exactly where he stands. These unprecedented cuts will hamper the ability of our park rangers, scientists, those who enforce the law against polluters, and other Coloradans from doing their important work,” said Jessica Goad, spokeswoman for Conservation Colorado.
“This is not just cutting the fat, this is a complete butchering of programs and jobs that are critical to Colorado.”
The move leaves specific uncertainty in Colorado, where the EPA has promised to cleanup toxic leaking mines that are spilling into the Animas River in Durango. The Gold King Mine spill in August 2015 was triggered by an EPA engineering error, causing about 3 million gallons of mustard yellow sludge to pour into the river.
In the aftermath of the spill, the EPA declared the area a Superfund site, which allows it to spend significant resources to implement a long-term water quality cleanup effort. Some worry those efforts would be diminished by reductions at the EPA.
But Ebell said a pushback to the EPA’s “regulatory rampage” does not mean that environmental controls would go away. He said regulations would still be enforced – especially on the state level – including around Superfund sites and clean drinking water.
“The question is, why do we need 15,000 people working for the EPA?” asked Ebell. “I understand why we need some … Maybe abolishing the agency is something that President Trump … would want to have a discussion about … I personally think it’s a good idea.”
Busting up the EPA is not a good idea, Myron.
California Gulch back in the day
Summitville Mine superfund site
Rocky Mountain Arsenal back in the day
Rocky Flats circa 2007
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
At the Animas River Stakeholders Group meeting in Silverton on Thursday, Superfund site project manager Rebecca Thomas told the 20 or so attendees the EPA has laid out a work plan for the summer.
Thomas said much of the work will be a continuation of last year’s activities, including collecting data and water samples, as well as looking at flow control structures at the Gold King Mine, the site of the EPA-triggered mine spill in August 2015.
The EPA also will install a pressure gauge system to monitor the bulkhead at the Mogul Mine, adjacent to the Gold King, which are both significant contributors of heavy metals into Cement Creek, a tributary of the Animas River.
The EPA wants to install a ground monitoring well between the inner and outermost bulkheads at the American Tunnel, the drain for the Sunnyside Mine workings. It’s suspected the American Tunnel’s water level has reached capacity and could be responsible for increased discharges out of adjacent mines, such as the Gold King.
Thomas said crews will compile more data for the possible closure of the bulkhead at the Red & Bonita Mine, another contributor into Cement Creek. Specifically, EPA wants to better understand the water hydrology of the mine workings.
As for the EPA’s interim water-treatment plant at Gladstone that treats discharges out of the Gold King Mine, Thomas said the agency is looking at about six sites to store the mine waste.
“This is increasingly more important for us as we start to run out of room for sludge management (at Gladstone),” Thomas said.
She said there may be more than one location for the mine waste, and that the agency hopes to have that finalized by May.
Thomas added that the EPA is planning a few quick-action remediation projects at sites within the Superfund listing where there is an immediate benefit to the environment, water quality and managing adit discharges.
She said 27 of the 48 sites qualify for early-action remediation, which could include fixing mine waste ponds, remediating waste rock dumps or redirecting clean surface water away from known polluted areas.
“There’s no way we’re going to get all the work done, but the hope is to get some of the work done,” Thomas said.
The Bureau of Land Management, Colorado Department of Public Health and Environment and the U.S. Forest Service – all working on the Superfund site – also listed a few projects they have planned for this year.
Most notably, the BLM has permission to undergo a pilot project with Texas-based Green Age Technologies to test a new treatment on mine wastewater that many in the stakeholders group have said holds promise for low-cost water treatment.
The BLM and Green Age will spend 21 days treating discharges out of the American Tunnel and Gold King Mine with a technology known as cavitation, which separates metal ions from water.
The EPA had promised the town of Silverton before the community supported Superfund designation that the agency would embrace new technologies for mine-waste treatment.
Cement Creek aerial photo — Jonathan Thompson via Twitter
Photo via the @USGS Twitter feed
Cement Creek remains lined with orange sediment after the Gold King Mine spill. The Environmental Protection Agency accidentally triggered the release of orange wastewater laced with heavy metals into Cement Creek on Aug. 5. The creek flows into the Animas River at Silverton, and eventually crosses into New Mexico and Utah
The EPA’s wastewater treatment plant near Silverton, Colorado, on Thursday, Oct. 16, 2015 — photo via Grace Hood Colorado Public Radio
The Environmental Protection Agency’s temporary water-treatment facility at Gold King Mine, October 2015, via Steve Lewis/The Durango Herald.
The confluence of Cement Creek, at right, and the Animas River, left, as seen September 2015 in Silverton, Colo. This is where the plume of contaminated water from the Gold King Mine entered the Animas River. (Jon Austria — The Daily Times)
Acid mind drainage Cement Creek watershed
Cement Creek August 8, 2015 — Bruce Finley via Twitter
Confluence of Cement Creek and the Animas River from the Coyote Gulch archives (11/21/2010)
FromThe 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…
… 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.”
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
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
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.
“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.
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.