Five years after the infamous blowout, EPA finally settles with Utah over Gold King pollution
Duggan Flanakin
On
the fifth anniversary of the notorious spill of 3 million gallons of heavily
contaminated acid mine water from the Gold King Mine in southwestern Colorado,
the U.S. Environmental Protection Agency and State of Utah announced
an agreement that ends the state’s lawsuit.
Neither the EPA nor the
contractors involved at the Gold King spill site are entirely off the hook for their
alleged missteps that resulted in downstream damages. Lawsuits filed by the
Navajo Nation, the State of New Mexico, and a group of Navajo farmers and
ranchers have been consolidated, and discovery is proceeding, with a projected
trial date sometime in late 2021.
Pursuant to the
agreement, Utah will dismiss
its legal actions against the EPA and the United States; mining companies Kinross Gold Corporation,
Kinross Gold U.S.A., Inc., Sunnyside Gold Corporation, and Gold King Mines
Corporation; and EPA’s
contractors: Environmental
Restoration, LLC, Weston Solutions, Inc. and Harrison Western Corporation. EPA also agreed to strengthen
Utah’s involvement in the EPA’s work to address contamination at the Bonita
Peak Mining District Superfund Site, which includes the Gold King Mine and
other abandoned mines.
The agency further agreed
to act on the Utah Department of Environmental Quality’s application for $3
million in Clean Water Act funds for various projects, including the
development of water quality criteria for Utah Lake, septic density studies,
nonpoint source pollution reduction projects, and nutrient management plans for
agricultural sources.
The agency also agreed to
initiate Superfund assessments by the end of 2021 at the Rico Argentine Mine
Site, the Camp Bird Mining Site, the Carribeau (or Caribou) Mine Area, all
located in Colorado, and possibly other sites that have the potential to impact
downstream waters in Utah. Coupled with its work at the recently established
Bonita Peak Mining District Superfund Site (which includes Gold King), the EPA
expects to conduct and oversee more than $220 million in abandoned mining site
work that will potentially improve Utah’s water quality by reducing the flow of
heavy metals and other pollutants from old mines in the state’s waterways.
EPA Administrator Andrew
Wheeler called
the agreement “a win-win for EPA and Utah” that “will bring environmental
benefits to Utah, avoid protracted litigation, and hopefully serve as a lesson
for the future to avoid repeating the mistakes of the past.” EPA General Counsel
Matthew Leopold promised that the agency’s “partnership with Utah will be
stronger as we continue to support the State in addressing its water quality
needs.”
Utah Attorney General
Sean Reyes said
the state is
“very pleased that millions of dollars can now be spent towards mitigation,
remediation and assuring water quality in Utah, rather than years of more
litigation, trials and appeals.” This,
he added, “is what cooperative federalism looks like – a true federal and state
partnership” that protects the people, public health and the environment.
The
relationship between the EPA and Utah was not always so amicable. Within days
after Cement Creek and the Animas River were turned yellow all the way from
Colorado through New Mexico and Utah all the way to Lake Powell, Utah Governor Gary
R. Herbert declared a state of emergency and
added that he was “deeply disappointed by the actions of the Environmental
Protection Agency. It was a preventable mistake, and they must be held
accountable.”
CFACT
Senior Policy Analyst Paul Driessen described the incident this
way: A contractor under EPA supervision used a backhoe to dig away tons of rock
and debris that were blocking the entrance portal of the Gold King Mine, which
had been mostly abandoned since 1923. Because of steady seepage, the EPA should
have known that the water was highly acidic (pH 4.0-4.5) and laced with heavy
metals. It could and should certainly have checked.
Eventually,
the greatly weakened portal burst open, unleashing at least 3 million gallons
of toxic water that contaminated the Animas and San Juan Rivers all the way to
Lake Powell, which straddles the Utah-Arizona border on the Colorado River. The
EPA waited an entire day before notifying downstream mayors, health officials,
families, farmers, ranchers, fishermen and kayakers of the toxic spill.
Driessen
lambasted the Obama Administration, other Democratic Party officials, and
eco-activists for their initial response to the incident, which also caused
major damage to Navajo Indian lands. But while EPA’s own internal report called
the incident “likely inevitable,” an Interior Department review released in
October 2015 found it was both “preventable: and also “emblematic” of the
federal government’s “inconsistent and deeply flawed approaches to reopening
shuttered mines.” Driessen and others agreed.
Specifically, the Interior Department
said that contractors at the Gold King site chose not to bore a hole to
physically check water levels and contamination inside the mine before digging
– a protocol established in 2011 during a successful mine reopening. “Had it
been done, the plan to open the mine would have been revised, and the blowout
would not have occurred.” Before undertaking its incompetent cleanup, EPA had threatened Gold
King property owner Todd Hennis with a $35,000 per day fine unless he granted
them access to the property (which the agency and its contractors then turned
into a disaster zone).
In a
follow-up article,
Driessen found the testimony of
Interior Secretary Sally Jewell shocking, as she stated she was unaware of
anyone being fired, fined or even demoted – and that federal investigations and
reports refused to hold anyone
responsible for the ensuing disaster. Even worse, while then-EPA Administrator
Gina McCarthy said she EPA “absolutely, deeply sorry,” she disavowed any
personal or agency responsibility and sent the Navajo emergency water tanks contaminated
with oil. Then FEMA denied the Navajo any disaster relief,
which prompted nearly 300 affected farmers and ranchers to file a separate (now
consolidated) lawsuit.
(Driessen’s
in-depth September 2015 MasterResource.org articles (here, here and
here)
provide extensive details – and damning conclusions – about the scope of EPA
and contractor incompetence, negligence, double standards, whitewashing ... and
refusal to accept responsibility, compensate victims, or even observe the very
rules that EPA typically imposes with an iron fist on corporations,
municipalities and citizens. (Most of the damning photographs of activities
leading up to and after the blowout appear to have been scrubbed from the
internet. However, quite a few can still be found here and
elsewhere.)
In
the early days of the Trump Administration (while Obama holdovers were still
running the show), the EPA finally released an Inspector General’s report on
the Gold King incident. Rob Gordon, longtime head of the National Wilderness
Institute and currently an advisor to the director of the U.S. Geological
Survey, said the IG’s report was yet another whitewash, more for its omissions
than its inclusions.
Gordon
noted, for example, that the IG’s report had omitted EPA’s critical, erroneous
and indefensible assumption that the mine was only partially full of water, and
failed to mention that the EPA crew reburied the natural plug after unearthing
it. His final assessment was that there are “gaping holes in the EPA’s fiction”
which, if allowed to stand, will send a message that “misleading, deceiving and
lying works, and that bureaucrats need not follow the laws they enforce on
others.”
Navajo
and New Mexico officials were equally dissatisfied with the EPA’s initial
response to their cries for just compensation for immediate and future losses
of both revenue and their traditional use of land and water impacted by the
spill. New Mexico Attorney General Hector Balderas lambasted the EPA for
seeking to “impose weak testing standards in New Mexico.” That litigation is
still ongoing.
(Part
2 of this article will report on the issues and progress of their now-combined
lawsuit.)
Duggan Flanakin is director
of policy research for the Committee For A Constructive Tomorrow (www.CFACT.org)
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