By Duggan Flanakin
Five years after the infamous blowout, EPA finally settles with Utah over Gold King pollution
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 at the Committee For A Constructive Tomorrow (www.CFACT.org)
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