#AnimasRiver: New Mexico sues Colorado over #GoldKingMine spill

The orange plume flows through the Animas across the Colorado/New Mexico state line the afternoon of Aug. 7, 2015. (Photo by Melissa May, San Juan Soil and Conservation District)
The orange plume flows through the Animas across the Colorado/New Mexico state line the afternoon of Aug. 7, 2015. (Photo by Melissa May, San Juan Soil and Conservation District)

From The Farmington Daily Times (Brett Berntsen):

The state of New Mexico has filed a lawsuit against the state of Colorado in U.S. Supreme Court, adding to a string of legal actions in response to the Gold King Mine spill.

New Mexico Attorney General Hector Balderas filed the complaint on Monday, alleging that Colorado’s policies and practices led to the Aug. 5 incident. In May, Balderas’ office filed similar lawsuits against the U.S Environmental Protection Agency and two mining companies.

The case against Colorado focuses on the state’s attitude toward the threat that abandoned mines pose to downstream communities. The Gold King Mine spill north of Silverton, Colo., occurred when a crew from the EPA working to address wastewater seepage accidentally released 880,000 pounds of heavy metals into the Animas River.

New Mexico is demanding reimbursements for the costs incurred during the emergency and for cleanup efforts moving forward. The complaint also calls for Colorado to claim partial responsibility for the spill.

“It was Colorado’s permitting process that ultimately failed,” said Tania Maestas, New Mexico’s Deputy Attorney General for Civil Affairs. “It was a complete catastrophe that flowed downstream.”

The lawsuit points to a 1996 agreement between Colorado and the Sunnyside Gold Corp., a major mining company in the Bonita Peak Mining District outside Silverton, that allowed the mining company to plug leaking mine shafts, rather than operate expensive water treatment plants. This caused wastewater to build inside abandoned tunnels, eventually spilling out of sites that are higher in elevation, according to the complaint.

These new sources of seepage garnered the attention of the EPA, which in 2011 proposed designating the mining district outside Silverton, Colo., as a Superfund site to spur cleanup efforts. According to the complaint, however, Colorado fought the designation due to its negative connotations, “choosing instead to protect the local tourism and skiing economy.”

“While Colorado refused to act, the volume of water and hydraulic pressure within the Gold King Mine continued to build, setting the stage for the catastrophic blowout,” the complaint states.

The lawsuit also takes issue with Colorado’s plans moving forward.

“It’s the response that’s equally, if not more, frustrating,” said Ryan Flynn, secretary of the New Mexico Environment Department.

Flynn said Colorado has focused on the impacts to recreation and tourism, rather than addressing the needs of downstream stakeholders in New Mexico. He said the move to sue is a last resort, but efforts to communicate outside of court have failed to produce results.

Colorado’s Attorney General Cynthia Coffman, however, expressed concern that the lawsuit will cost unnecessary amounts of time and money.

“I have done what I can within the bounds of my power and authority as Attorney General to resolve this matter without litigation,” Coffman said in a statement on Wednesday. “It could take years, even decades, to resolve this.”

Flynn said he thinks New Mexico has a strong case, though, and hopes that it will prompt action.

“Our job is to protect New Mexico,” he said. “All we want is to start getting results.”

Flynn added that he is open to further discussion if Colorado chooses to rethink its response. He said the issue lies in the state government, not with regional officials north of the state border.

Kim Carpenter, San Juan County’s executive officer, echoed this sentiment. He said he has worked well with county officials in Colorado, but doesn’t agree with how higher-ups in Denver have handled the situation.

“At times, it seems the state doesn’t think this is a big deal,” Carpenter said.

The gravity of the situation, however, is one of the main points that New Mexico has consistently argued. Flynn said the mine spill caused immense economic and environmental damage and will continue to pose problems in the future.

“We want communities to be compensated for their losses,” Flynn said. “When people think about the Four Corners, I don’t want the image to be a yellow river.”

The lawsuit seeks restitution for the financial damages suffered in the wake of the spill, including declines in tourism and crop losses for farmers.

Maestas said the case against Colorado doesn’t specify a dollar amount. She said the federal tort claim against the EPA asks for $154 million, and it would be up to the EPA to determine how much Colorado would pay.

From The Albuquerque Journal (Dan Boyd):

The lawsuit, filed in the U.S. Supreme Court this week by Attorney General Hector Balderas and outside attorneys hired by the state Environment Department, seeks reimbursement for all costs – including “stigma” damages – connected to the mine spill, in which more than 3 million gallons of toxic waste was spewed into a tributary of the Animas River and flowed into New Mexico.

“The Gold King Mine release is the result of two decades of disastrous environmental decision-making by Colorado, for which New Mexico and its citizens are now paying the price,” Balderas said in a statement.

Meanwhile, Environment Secretary Ryan Flynn described the lawsuit as a last resort, saying his agency’s attempts to negotiate a deal with Colorado officials have been unsuccessful.

“We can’t continue to wait,” Flynn told the Journal . “At some point, we have an obligation with the citizens we’re serving to move forward.”

Specifically, the lawsuit alleges a Colorado department signed off on a plan to block the tunnels of a closed mine in the same network as the Gold King Mine with concrete plugs – or bulkheads – to try to block acidic wastewater from escaping, the lawsuit alleges.

The plan essentially turned the mine into an “enormous wastewater storage facility” and Colorado environment officials were aware of the possible risk of a blowout, the suit claims.

“It’s going to be very difficult for Colorado to explain why they ignored these warnings,” Flynn said…

In addition to the lawsuit against Colorado, New Mexico has also filed a lawsuit in federal court against the EPA and the owners of the Gold King Mine that seeks more than $136 million in damages. That amount would include money to pay for economic losses the state attributes to the mine spill, specifically in the tourism, recreation and agriculture sectors.

New Mexico is no stranger to lawsuits with its neighbors. The state has also been embroiled in a lengthy legal battle with Texas that hinges on whether groundwater pumping in southern New Mexico is draining the Rio Grande and depriving downriver water users in the Lone Star State from their rightful share.

That lawsuit also was filed with the U.S. Supreme Court, as is typically the case when one state sues another.

In the Wednesday interview, Flynn acknowledged interstate lawsuits are typically not resolved quickly and said there’s a good likelihood the case could still be pending when Gov. Susana Martinez’s second term expires at the end of 2018.

“Anytime you go to court, there’s some risk,” Flynn said, adding that New Mexico officials are still open to negotiating with Colorado and hopeful the case might be resolved out of court.

Both mine spill lawsuits are being driven by Attorney General Balderas, a Democrat, working with the administration of Martinez, a two-term Republican.

This week’s lawsuit claims Colorado’s actions have “prejudiced New Mexico’s economy, finances and natural resources, and have injured the health, comfort, safety and property of New Mexico’s citizens.”

Although New Mexico officials have taken a hard-line approach to the Gold King Mine spill fallout, some Colorado officials have said their testing shows no risk to human health from the contaminants.

Colorado Gov. John Hickenlooper even drank water from the Animas River just days after the spill – after adding an iodine tablet to purify the water – in an attempt to downplay environmental concerns.

“If that shows that Durango is open for business, I’m happy to help,” Hickenlooper said, according to the Durango Herald.

From the Associated Press via the The Denver Post:

The New Mexico Attorney General’s Office and the state Environment Department announced late Wednesday that they filed a complaint against Colorado with the U.S. Supreme Court.

It marks the second major legal salvo fired by New Mexico in the wake of the August 2015 spill, which fouled rivers in three western states with a bright-yellow plume of arsenic, lead and other heavy metals…

New Mexico is also suing the U.S. Environmental Protection Agency and the owners of two mines.

“We had hoped EPA and Colorado would try to work with us and come up with solutions,” New Mexico Environment Secretary Ryan Flynn told The Associated Press. “But the state of Colorado, its leadership, seems intent on defending EPA at every turn and is unwilling to work with us to move forward in a meaningful manner.”

The EPA has declined to comment on the litigation, but it has said repeatedly that it takes responsibility for the cleanup.

Colorado officials previously declined to comment on New Mexico’s claims, citing possible litigation…

The EPA said water quality quickly returned to pre-spill levels. But New Mexico officials and others continue to warn about heavy metals collecting in the sediment and getting stirred up each time rain or snowmelt results in runoff.

The lawsuit against Colorado details the results of recent soil samples taken north of Durango, Colorado, where discolored sediment was visible at residential properties. The results showed lead at concentrations far above the risk level established by EPA.

The lawsuit also outlines the business and regulatory history of the Sunnyside Gold Mine, where operators were allowed to install plugs — or bulkheads — that eventually caused wastewater to back up and fill the mine and its workings. That led to problems at nearby mines.

The shuttering of a water treatment plant for mine discharge further aggravated the situation, according to New Mexico officials.

By 2011, acidic drainage from four inactive mine sites at and above the former treatment plant — including at Gold King Mine — was pouring into Cement Creek, a tributary of the Animas River, at a rate of nearly 850 gallons per minute, according to the lawsuit.

“The Gold King Mine release was the coup de gr—ce of two decades of disastrous environmental decision-making by Colorado, for which New Mexico and its citizens are now paying the price,” the lawsuit states.

New Mexico contends Colorado’s past, present and ongoing conduct and the resulting contamination amounts to a public nuisance.

Attorney General Hector Balderas said New Mexicans rely on the Animas and San Juan rivers for drinking water, ranching, farming, tourism and more, so communities must be compensated and protected from future health and safety risks.

The state is seeking damages and demands that Colorado address the problems at the mines.

New Mexico and Colorado officials had been in talks for months, and Flynn said the state is still open to discussions in hopes of settling with the EPA and Colorado.

“We’re here out of necessity,” Flynn said. “I would prefer to spend time and resources resolving this rather than duking it out in court.”

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