Clean-up moves forward after spill: Entities vie for government funding in wake of 2015 Gold King Mine disaster

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San Juan County is one of the five smallest counties in Colorado – only 388 square miles – but it undulates with some of the most rugged mountain terrain in the Rocky Mountains, and has the highest mean elevation of any county in the United States, 11,240 feet. Majestic topography surrounds the 635 residents who live in the only town, Silverton, located in the snowy heart of three watersheds where water melts each spring into Cement Creek, Upper Animas and Mineral basins and flows into the Animas River.

It is also home to the toxic August 2015 Gold King Mine spill, when contractors for the Environmental Protection Agency accidentally dislodged an adit plug a few miles above Silverton that held back mining wastewater.

The blowout sent 3 million gallons of yellow water contaminated with heavy metal plummeting into the waterways that nourish fisheries, agricultural and ranching land, backyards, parks, swimming holes and native tribal communities.

EPA director Gina McCarthy accepted full responsibility for the calamity and put into place emergency responses to mitigate immediate damage, including delivering potable water to residents and farms around the Animas River in Durango and Farmington, N.M., and communities along the San Juan River in the Navajo Nation.

McCarthy also entered into a course of action addressing long-term solutions to the breach and measures to prevent future damage in the mining landscape around the Gold King site.

Bonita Peak

A 13,000-foot mountain, Bonita Peak, has become the namesake for the proposal to place the area around the Gold King spill on the National Priorities List for Superfund designation. The Bonita Peak Mining District proposal asserts that the EPA has confirmed that 48 of the 300 mining sites in the county fit the criteria for Superfund designation.

The Region 9 Economic Development District reported in 2015 that San Juan County has the smallest year-round population and lowest total personal income in Southwest Colorado and is “almost entirely dependent upon tourism, primarily during the summer months when the Durango & Silverton Narrow Gauge Railroad is running.” If the region were to become a Superfund site, the county and the city would need certain guarantees. Highest on the list was assurance from the EPA that the project name would not reflect negatively on the Silverton community. “Bonita Peak Mining District” mostly alleviated those concerns.

The EPA also agreed to provide technical-assistance grants, establish and fund a citizens advisory group, and consider new technologies and alternative approaches to remediation. It also promised to incorporate local involvement in all phases of the project.

After the spill, property owners began to sense that banks and lending institutions felt uncertain about the value of properties in the county. U.S. Rep. Scott Tipton understood their concerns. Tipton Communications Director Liz Payne told the Free Press that from his experience with the community within the potential Pueblo Smelter Superfund site, Tipton saw that even the consideration of the designation has a negative impact. Many homeowners are having trouble getting an appraisal on their homes and can’t find real estate agents to list their properties.

Landowners asked the EPA to provide letters confirming that any property in question lies outside the boundaries of the Superfund site and is not meaningfully affected by the project. Citizens included a request for clarification from the agency, if they need it, to satisfy requirements of state and federal agencies and programs such as HUD, FHA, Fannie Mae or Freddie Mack.

There can be other drawbacks to the Superfund listing. One – dust – has obvious human health impacts, since the road to the site contains tailings from various mines. Even with limited traffic, CR 110 is dusty in dry weather. With traffic from EPA workers and contractors, it is clear that dust will increase, potentially “impacting the sensitive electronic circuitry of our chair lift and other equipment located at the base area of Silverton Mountain,” wrote the executive director of Silverton Mountain Ski Area, Aaron Brill.

The only communication resource at the north end of CR110 is a pair of barely functional analogue phone lines. In case of an emergency, an EPA worker would need to drive 8 miles down the road from Gladstone to make a cell call. “From a safety standpoint,” wrote Brill in a letter confirming support for the Superfund designation, “for both EPA workers and the town of Silverton it seems obvious that there is a need for a cellular tower.”

The current proposal utilizes a horn as a warning system for Silverton Mountain’s guests and the town of Silverton. A modern, cellular-based communications system is required, Brill says. It is not funded yet, but a request for the communications solution was described in the comment letter of support from Silverton Mountain Ski Area.

By February 2016 the community began to feel confident that their needs were being heard and that in the long term the Superfund designation will improve their community. The San Juan County Board of Commissioners and Colorado Gov. John Hickenlooper gave their official support, along with Ed Morlan, director of Region 9, on behalf of the 17 local government and nine private-sector members of the economic district.

“The Gold King mine spill has had a huge economic impact on the communities downstream,” Morlan wrote. “The impacts are continuing and the event has pointed out additional potential disasters from the scores of other abandoned mine sites in the drainage. A public investment now to mitigate the situation could avoid much higher financial and environmental costs in the future.”

The city of Durango, La Plata County, the Navajo Nation, Colorado Sen. Michael Bennet of Colorado, New Mexico Senators Tom Udall (Dem.) and Martin Heinrich (Dem.) and New Mexico Rep. Ben Lujan (Dist 3 Dem) are also on board.

Follow the money

Just prior to the close of the comment period June 13, the EPA held a community meeting in Farmington, N.M. The sparsely attended get-together attracted representatives of the Navajo Nation EPA and the Office of the Navajo President and Vice-President, local tribal agricultural and ranching stakeholders, NGO conservation representatives, a filmmaker, independent geologists, hydrologists, and scientists from the New Mexico Environment Department.

Superfund Project Manager Rebecca Thomas, EPA Region 8, explained the process that led to the selection of the 48 mining-related sites included in the proposal. Each contains waste rock, tailings piles and/or mine discharge out of adits.

Their findings indicate that contaminants from these sites had been released into Mineral Creek, Cement Creek and the Animas River prior to the spill as well as after. They found that stretches of the Animas River and Mineral Creek support fisheries that are harvested for human consumption and that wetlands are found near those waters.

The EPA Superfund Emergency Response Program has been active within the study area. In 2015 the agency installed a bulkhead at two of the mines in the Cement Creek drainage, and is treating the Gold King Mine adit drainage. Parties involved in past responses to the environmental issues in the district include the Bureau of Land Management, U.S. Forest Service, State of Colorado Division of Reclamation, Mining and Safety, private parties and a local stakeholder group. They have complemented the EPA work with analytical sampling, rerouting of adit discharge, installing bulkheads and waste pile consolidation within the mining district.

The BPMD project includes 35 mines, seven tunnels, four tailings impoundments and two study areas where additional information is needed to evaluate environmental concerns.

In May, the New Mexico Environment Department filed suit against the EPA and a mine-owner in the district. The lawsuit contends that residents in New Mexico, Utah and tribal lands suffered catastrophic harm from the spill because it “damaged water that is the lifeblood of downriver communities’ economy and culture.”

The heart of the allegations concentrated on water-quality testing and the demand that the highest testing standards be used and be done by an independent monitor outside the EPA. Additionally, the suit seeks nearly $7 million to reimburse communities for the spill-related emergency expenditures, and long term water monitoring.

The suit followed months of exchanges between the EPA and NMED over compensation. It also came after NMED was denied the full $6 million it requested in March for a comprehensive work plan to evaluate the long-term impacts of the spill. NMED was granted just 8 percent of the request.

In an April email from the Water Protection Division, the NMED demanded the EPA “provide access to the funds necessary to address these time sensitive matters now.” It alluded to the imminent spring runoff and people’s concern about the safety of their water supply. “We understand that … further federal funds may be forthcoming, [but] such a piecemeal allocation will not provide the affected residents the necessary confidence that we are ensuring the safety of their water right now… each task in our work plan is vital to protect human health and the environment. Therefore, NMED still requests the entire $6,054,552.”

In a reply, the EPA explained that in March when the NMED provided the EPA “with a copy of their $6 million two-year monitoring plan [the EPA] immediately began to find ways to fund as many activities that we could.” It allocated $2 million in funding to support states’ and tribes’ long-term monitoring plans. Nearly a quarter of it went to the NMED.

An additional $628,000 was made available to states and tribes to support spring run-off monitoring. $155,000 of that amount went to NMED.

“EPA approved using [another] $108,000 for two stream monitoring stations with real-time monitoring equipment and for conducting sampling and analysis to support both the Animas and San Juan River Spring Runoff Preparedness Plan and NMED’s monitoring plan. The real-time monitors are in place and collecting information. … EPA is fully supportive of collecting data that allows for a representative characterization of water quality in the Animas/San Juan watershed. To that end, we encourage states and tribes to collaborate on data quality objectives so that monitoring efforts are complimentary and to fully utilize available scientifically valid data currently being collected.”

Green downstream

The Animas flows into the San Juan River, which runs through Shiprock, N.M., home to Navajo Nation President Russell Begaye. Quick to criticize the EPA in the first few days of the Gold King crisis, Begaye, as quoted in the Navajo Times, warned, “We are going to make EPA pay for this,” adding that he was going to work with [Navajo Nation] EPA officials to do tests to see how serious the contamination was to Navajo lands. He said he didn’t trust the U.S. EPA to do the tests because he felt they would try to get the tribe to settle for “pennies” instead of the millions or billions of dollars of damage allegedly done by the contaminated water, the Navajo Times reported on Aug. 9, 2015.

In a March exchange with EPA Director McCarthy, President Begaye charged that the EPA has been dragging its feet.

“You have been personally and publicly promising accountability and dedication to those harmed by the spill… [but] seven months later the EPA has yet to compensate the Navajo; it has yet to designate the Upper Animas Mining District a Superfund site; the EPA has yet to implement, with Navajo feedback, a comprehensive plan to ensure no future contamination of Navajo land or waters; and has yet to provide the Navajo Nation with the tools it desperately needs to address the harms already caused and to mitigate against future harms. It is time for the EPA to act.”

McCarthy’s response clarified EPA funding to date, including more than $22 million on response efforts, with $1.1 million for agricultural water and hay for Navajo communities along the San Juan River. Further, on March 10, the EPA provided some $157,000 in reimbursement to Navajo agencies for response costs. The Navajo Nation Department of Justice accepted this payment on April 13.

McCarthy said the agency has requested the Navajo Nation Department of Justice substantiate the remaining reimbursement requests to determine their eligibility under the EPA’s response authorities and federal-grant principles.

McCarthy reiterated the need for continually posting water-quality data to the Gold King Mine website as it is available and sharing its interpretation of data with tribal, state and local governments and stakeholder groups.

She pointed out the dates that irrigation restrictions were lifted by Begaye’s office after the spill – late August 2015 for three Navajo chapters and Oct. 15, 2015 for the rest of the San Juan River. In late August, the Navajo Nation EPA also notified the Tribal Utility Authority that the San Juan River posed no threat to the Montezuma Creek drinking-water system.

The agency allocated $465,000 to the nation for water-quality monitoring and said the first round of sampling by the EPA in the fall after the spill showed no “exceedences” of Navajo Nation agricultural-water standards or of EPA recreational screening levels. The data is shared by the EPA and open to review by any independent investigators. In the letter, McCarthy also explained that since 1984 the U.S. EPA has provided more than $93 million in support of Navajo environmental programs and more than $100 million each for water infrastructure improvements and abandoned uranium-mine clean-up.

Despite all the criticism and haggling for money, all the governments affected by the spill have signed on in support of the Superfund listing.

So have grassroots stakeholders and officials in all affected counties and towns, and politicians, including Tipton — although he believes it is more effective for state and local groups familiar with the mines and the surrounding area to lead remediation and clean-up efforts.

In March Tipton joined Colorado senators Bennet and Gardner in their concern that remediation costs for abandoned mine sites surpass the capabilities of the EPA. They drafted the Good Samaritan Cleanup of Orphan Mines Act, legislation that would allow organizations to apply for permits, including some liability protection, to attempt clean-up at abandoned mines.

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