Gold King Mine Release: An Overview and Update

During late summer 2015, activity by the U.S. Environmental Protection Agency (“EPA” or “Agency”) triggered a catastrophic release of three million gallons of acidic mine drainage from the Gold King Mine north of Silverton, Colorado into Cement Creek, a tributary of the Animas River.  The yellowish-orange Release, consisting of arsenic, cadmium, iron, and zinc flooded into the creek.  The acidic release then travelled down the river over the course of a few days, crossing several states and communities in the process. Over a year later, the Gold King Mine spill has left many questions and impending legal battles in its wake.

On August 5, 2015, the EPA began digging at the Gold King Mine Level 7 Audit. At 10:51 A.M, a worker stopped when he discovered a “spring.”  Within minutes, the water increased flow and turned from clear to red to orange.  The EPA immediately took action by stabilizing the mine entry and creating various treatment ponds.  Though the EPA took immediate measures, it could not remove the sediments from the water that had already mixed with the waters of Cement Creek. Several metals were dissolved in the release—such as lead, arsenic, and cadmium—resulting in orange-yellow river flows. The EPA’s report on the release can be found here.

One year later, surface water has returned to pre-release levels.  In addition to avoiding discolored water and soil, the EPA suggested some guidelines for health and safety issues associated with spills.  Moreover, the EPA has assured the public that downstream sources are safe for irrigating farms and for watering livestock, as the region’s livelihood relies heavily on agriculture.  Fish from the Animas River are even safe to eat; however, the EPA has authorized continued monitoring of metals in local fish, since contaminants may concentrate over time.

The EPA listed Gold King Mine Remediation on its National Priorities List for Superfund Cleanup in September 2016, despite local concerns over marketing for tourism. The superfund program uses federal money to investigate and clean up after disasters. The Agency hopes to collaborate with all relevant entities, including private, public, tribal, and non-profit, to stimulate remediation and change in the area.  Later in September, the EPA granted an additional $260,000 for cleanup costs to both tribal and state authorities, including the Southern Ute Indian Tribe, the City of Durango, and La Plata and San Juan Counties. The EPA hopes that Gold King’s superfund designation will help not only the immediately-impacted areas surrounding the mine, but also downstream water users, including states like New Mexico and Utah as well as the Native American tribes of the Navajo Nation and Southern Ute Tribe. Colorado’s Department of Public Health and Environment mirrored these sentiments, has worked to facilitate collaboration between state and federal actors and community involvement.

Despite Superfund designation, environmental lawyer Thaddeus Lightfoot believes listing Gold King Mine will do little to resolve the ongoing lawsuits against the EPA. Most significantly for Lightfoot, the Superfund designation green-lights funding to investigate the release’s cause and to begin actual cleanup. Finally, the government’s role, according to Lightfoot, will help answer a long-debated question regarding the head of environmental cleanup in favor of the federal government.

The release also spurred awareness about inactive mine seepage and long-resisted cleanup. For instance, the Impacted Streams Task Force has plans to evaluate the draining mines inventory and, hopefully, prevent or reduce toxic drainage from inactive mines. Moreover, the town of Silverton and San Juan County have embraced the federal program, despite an argument that, through its slow-moving process, the EPA is holding the region hostage.

As of October 2016, Navajo Nation farmers adjacent to the Animas River have not received compensation for their losses associated with the Gold King Mine Release.  Navajo Nation President Russell Begaye said he believes the Navajo farmers deserve reimbursement and the San Juan River deserves cleaning, neither of which the federal government has done.  President Begaye called the inaction “shameful,” especially following two instances in which the U.S. Senate accepted responsibility for the release. In fact, Navajo Nation has filed suit against the EPA and other entities, alleging the release could have been prevented. Politicians have commented on the suit, including Arizona Congressman Raúl Grijalva, who believes the EPA should make efforts to mitigate the losses the release triggered.

During December 2016, the Navajo Nation filed a complaint against the EPA seeking over $160,000,000 in damages resulting from the Release. Navajo Nation claims the release injured the Navajo’s longstanding confidence on the San Juan.  This is the second lawsuit from Navajo Nation, the first being civil suits against mining companies for incurred response costs with the release. Navajo Nation’s Attorney General, Ethel Branch, commented that the release transformed their sacred river from a source of life into a threat to life. The Navajo complaint alleges the EPA knew Gold King was at risk to a blowout and failed to notify the Navajo residents for two days after the release. Moreover, the Navajo claim the contamination will continue to pollute the Navajo Nation and its resources.

The EPA announced January 13, 2017 that it would not reimburse residents—including the Navajo—for the spill. The Agency, in a press release, said that an independent claims officer ruled that the EPA and its actions leading up to the spill were protected under the Federal Tort Claims Act, which protects government actions that constitute a “discretionary function or duty” if done with due care.  Those who have filed claims, however, may challenge the EPA’s decision.

More than a year after the Gold King Mine spill, remediation efforts are ongoing, and metallic levels in the affected waters has returned to normal. Despite these environmental efforts, residents must bear their own individual costs associated with the spill. As long as individuals remain uncompensated, fully resolving the spill might become arduous and drawn out.

Connor Pace

Image: The Animas River between Silverton and Durango, Colorado. Wikimedia Commons User Riverhugger.

Sources:

Alysa Landry, Navajo Nation seeks $160 Million in damages for EPA spill, NAVAJO-HOPI OBSERVER (Dec. 27, 2016),  http://www.nhonews.com/news/2016/dec/27/navajo-nation-seeks-160-million-damages-epa-spill/.

Bruce Finley, EPA puts Gold King Mine, other Colorado sites on priority list and pegs acid muck flow at 5.4 m gallons a day, DENVER POST (Sept. 7, 2016), http://www.denverpost.com/2016/09/07/gold-king-animas-mining-sites-disaster-declaration/.

Bruce Finley, Gold King one year later: Colorado’s mustard-yellow disaster spurs plans for leaking mine, DENVER POST (Aug. 5, 2016), http://www.denverpost.com/2016/07/24/gold-king-mine-spill-animas-river-one-year-later/.

Darryl Fears, Colorado gold mine is one of EPA’s new Superfund pollution sites, WASH. POST  (Sept. 7, 2016), https://www.washingtonpost.com/news/energy-environment/wp/2016/09/07/colorado-gold-mine-is-one-of-the-epas-new-superfund-pollution-sites/?utm_term=.b6bb50d49f84.

Encouraging News from the EPA on the Gold King Mine, DENVER POST (Sept. 9, 2016), http://www.denverpost.com/2016/09/09/encouraging-news-from-the-epa-on-gold-king-mine/.

Kieran Nicholson, EPA awards $260,000 more in grants in wake of Gold King Mine spill, DENVER POST (Sept. 29, 2016), http://www.denverpost.com/2016/09/29/epa-grants-gold-king-spill/.

Chase Olivarius-Mcallister, Superfund: A dirty word to some in Silverton, DURANGO HERALD (Aug. 3, 2013 1:14 PM), https://durangoherald.com/articles/2026-superfund-a-dirty-word-to-some-in-silverton.

Navajo Nation Sues EPA Over Gold King Mine Disaster, INDIAN COUNTRY TODAY MEDIA NETWORK (Aug. 18, 2016), http://indiancountrytodaymedianetwork.com/2016/08/18/navajo-nation-sues-epa-over-gold-king-mine-disaster-165510.

Navajo President Slams EPA, NAVAJO POST (Oct. 3, 2016), http://navajopost.org/navajo-president-slams-epa/.

Sara Randazzo, Navajo Nation Seeks More Than $160 Million From EPA in Colorado Mine Disaster, WALL ST. J. (Dec. 5, 2016 7:09 PM), http://www.wsj.com/articles/navajo-nation-seeks-more-than-160-million-from-epa-in-colorado-mine-disaster-1480982978.

U.S. Dep’t. of the Interior, Bureau of Reclamation Technical Service Center, Technical Evaluation of the Gold King Mine Incident, https://www.usbr.gov/docs/goldkingminereport.pdf (last visited Feb. 9, 2017).

U.S. EPA, Frequent Questions Related to Gold King Mine Response, https://www.epa.gov/goldkingmine/frequent-questions-related-gold-king-mine-response (last updated Dec. 13, 2016).

Press Release, U.S. EPA, Press Releases and Updates for Gold King Mine Response, https://www.epa.gov/goldkingmine/press-releases-and-updates-gold-king-mine-response (last updated Jan. 13, 2017).

Federal Tort Claims Act, 28 U.S.C. § 2680(a) (2017).