#AnimasRiver: Antiquated mining law hamstrings cleanups — The Durango Herald

LegacyMineWorkCDPHE

From The Durango Herald (Peter Marcus):

Outdated hard-rock mining laws enacted in the 1870s tie the hands of the federal government to curb pollution that contaminates water supplies, as was the case with the Gold King Mine spill.

Perhaps the most significant deficiency comes in the form of a “free and open” provision of the Mining Law of 1872, otherwise known as a “right to mine.” Limited reforms have been made to the law over the last 143 years, leaving in place a provision that prohibits the federal government from blocking a mine from opening or even collecting royalties from operations.

The law also left little to government regulation, falling in line with the theme of Manifest Destiny from Western expansion in the 19th century. When the nation’s mining laws were crafted, the goal was settlement, not environmental regulation.

“The 1872 mining law is the freest ride of all free rides on the books,” said Roger Flynn, an adjunct professor at the University of Colorado School of Law and the director and managing attorney of Western Mining Action Project, a nonprofit that handles hard-rock mining cases…

Just who holds the liability remains unclear. Flynn said some of the responsibility rests with the mine’s owner, Todd Hennis. Some liability also may fall on the EPA, which became a sort of operator when it began working there.

But it’s much more complicated than that. Gold King, near Silverton, became inactive in the 1920s. But the neighboring mine of Sunnyside also is entangled in the web. The mine became inactive in the 1990s, and ownership at the time reached an agreement with Colorado to install bulkheads in the mine. Since that mine was dammed, wastewater in nearby mines has increased.

Sunnyside Gold Corp., a subsidiary of Kinross Gold, entered into a consent decree, allowing for the mine to continue to leak heavy metals, while the company agreed to costly reclamation projects.

Judging by the disaster earlier this month, overall efforts have not been enough, which begs the question: How did it get to this point?

The simplest answer is money. The Mining Law of 1872 allows companies to extract billions of dollars worth of precious metals – such as gold and uranium – pay no royalties and avoid liability for environmental damage in several situations. Without the royalties, there is limited government funding for reclamation, and few burdens are placed on the companies themselves.

Over the years, beginning in the 1970s, the federal government began to take action on environmental issues, enacting laws around clean water and endangered species. But companies have found loopholes. One example is hiring experts to vouch for water quality.

Because the federal government is charged with the “free and open” provision under mining laws, officials often default to this clause. In other words, if the experts say the water is safe, and the government is obligated to let a company operate, then there’s little recourse for regulators.

An option for reclamation is declaring an area blighted with a Superfund listing, which opens the doors to funding. But as was the case with Gold King, communities sometimes resist the federal listing, as they fear it leaving a stain. Flynn said the end result is a government that is rendered impotent.

“The 1872 mining law makes mining the highest and best use of the land,” he said. “Whatever minerals you find on that are free. … Agencies will say we can’t say no to the mine no matter how destructive, unless you can prove there will be a Clean Water Act violation on Day 1.”

The irony, of course, is that those violations don’t occur until well after operations have begun.

“The feds don’t have the ability on public land to say no – no matter how bad the idea is, how bad the place is – because of the 1872 mining law,” Flynn said. “So, they permit these things all over … and they allow potential pollution.”[…]

State Rep. Don Coram, R-Montrose, is not so sure that the answer is additional regulations, suggesting that there are new technologies out there that allow for cleaner mining activities. Coram has years of experience in hard-rock mining, having owned several mines, including uranium.

“I don’t think the problem lies with what we’re doing today. … That changed. We do a lot better,” he said.

“I’m not comfortable with the EPA being in charge,” Coram said. “I would much rather that federal funding goes into letting the state run those projects.”

Meanwhile Durango and parts thereabouts are worried about the spill and its affect on the economy. Here’s a report from Jonathan Romeo writing for The Durango Herald. Here’s an excerpt:

Some fear the frenzy of images broadcast around the world when the Animas River turned a sickly orange for more than 12 hours could have an effect for years to come.

“Stigma is the perception of the public, even after fixing the problem,” said Tom Alleman, an attorney at Dallas-based Dykema Cox Smith. “The Animas had brand damage.”

Alleman told the crowd of about 20 people Friday at the DoubleTree Hotel that the state of Colorado does allow individuals to file claims for compensation for stigma damages, but those kinds of situations aren’t common and can be subjective.

He said the law lists stigma damage as an event that is not “reputationally enhancing,” and in the case of the Gold King Mine spill, that might be easier to prove.

Jack Llewellyn, executive director at the Durango Chamber of Commerce, said it’s too early to tell the long-term effect the spill will have on the city’s tourism industry, but there is no denying the hit river-related businesses took in the immediate aftermath of the blowout.

“We definitely saw an impact, and it directly affected the river-rafting industry. It was like shutting down Main Street at Christmas time,” Llewellyn said, referencing the fact that August is a critical revenue month for summer tourism businesses.

Llewellyn added that just the other day, a woman bringing 20 senior citizens to the area called ahead to ask if the water was safe to drink, and it’s that skepticism he fears might influence other visitors to choose a different destination when making vacation plans.

Durango & Silverton Narrow Gauge Railroad Owner Al Harper said the train suffered some cancellations at first, but ridership rebounded rather quickly. Most of the railroad’s projected 183,000 riders come from outside Durango.

He’s more concerned about how stakeholders of the mining network north of Silverton will implement a wastewater-treatment plan.

And that brings in yet another layer of “stigma” in connection to the Gold King Mine spill: a Superfund listing, which is an EPA program that cleans up hazardous waste sites.

Since the spill, there has been considerable pushback from Silverton residents who believe visitors will fear and avoid the small tourism town if it is designated a “Superfund” site and prefer to explore other options.

However, those in favor of the Superfund argue the stigma of a town that refuses to clean up once and for all a history of unregulated mining regulations that have tainted the Animas for decades is far worse.

Harper, who also owns a hotel in Silverton, said residents of the town may be more open to the Superfund designation if the EPA draws clear lines of where the boundary extends.

“Let’s face it, the city limits of Silverton have not been polluting the river,” he said. “We need to make clear the mining area is a Superfund; Silverton is not.”

#CleanWaterRules Litigation Update: Let’s All Just Take a Breath — Jon Devine

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Photo via Aspen Journalism — Brent Gardner-Smith

From Switchboard (Jon Devine):

If you’re following the legal fallout from the Obama Administration’s finalization of its initiative to protect critical streams and wetlands – called the Clean Water Rule – you were probably on the lookout for action this week. (And, you’re a bit odd. It’s OK – me too.)

That’s because the rule, which the Environmental Protection Agency Administrator, Gina McCarthy, and the Assistant Secretary of the Army for Civil Works, Jo-Ellen Darcy, signed back in May, was scheduled to take effect today.

That didn’t entirely happen as planned, due to a single court ruling yesterday. More on that in a minute, but first some background to provide context for my ultimate message in this post: this is just part of the process, and there is no need to overreact to a preliminary ruling in one case…

What Happened [last] Week

In the run-up to the rule’s implementation date today, a number of the parties that sued the agencies claiming that the rule is too protective of the nation’s water resources asked four trial-level courts to block the rule from taking effect. One of these courts, in Oklahoma, where two cases were pending, granted the federal government’s request weeks ago to put those cases on hold while the government seeks to have the cases transferred and consolidated in Washington, DC. The other three courts – located in Georgia, North Dakota, and West Virginia – all issued rulings this week. (All but one of the remaining district courts with pending challenges from state or industry opponents have postponed any further proceedings in the cases, at the federal government’s request. Similar requests are pending in the challenges that the conservation groups have filed.)

Of the three courts that issued rulings this week on opponents’ requests to delay the rule, two of them, the Northern District of West Virginia and the Southern District of Georgia, both refused to grant the delay and held instead that the cases should be heard by the appellate court.

That leaves one court – the District of North Dakota – which ruled yesterday that it both has the jurisdiction to decide the case and that it should temporarily prevent implementation of the rule while the case is more fully argued. The court concluded that the state plaintiffs in that case, led by North Dakota, were likely to prevail on their legal claims that the rule was too protective, and that the states would be harmed by the rule taking effect.

Although we are still reviewing the decision closely and evaluating our options for next steps, we profoundly disagree with the court’s conclusion that the extraordinary remedy of an injunction is justified here, and are disappointed that the rule’s implementation will be delayed, at least to some extent. Every day the rule is not in force in a given place, the streams, ponds, and wetlands that people swim in, fish from, boat on, and depend on for drinking water are at unnecessary risk of being polluted or destroyed.

At the same time, let’s see this ruling for what it is – a temporary delay in one of a dozen or so cases. Indeed, the agencies have explained that the Clean Water Rule will take effect today for those states not involved in the North Dakota litigation. And, even in that case, proponents of the Clean Water Rule will have additional opportunities to explain why the rule’s safeguards are well within the bounds established by the Supreme Court and are supported by the voluminous scientific evidence of the importance of the waters that the rule protects.

Consider a recent point of reference: the Affordable Care Act was found to be invalid by some different courts when it was similarly challenged in a number of places. At the end of the day, however, it was twice upheld by the Supreme Court, and is now the law of the land.

Cases such as that, plus the certainty that the Clean Water Act authorizes the agencies to protect those water bodies that significantly affect downstream waters, give me confidence that, despite the delay in this instance, the cases attacking the rule as too protective will ultimately fail. When that happens, the rule will remain in place with necessary protections for the health and well-being of our families and communities, as well as our prosperous fisheries and tourism industries.

Inhale, exhale, repeat.

#AnimasRiver: EPA documents detail frightening Gold King Mine scramble — The Durango Herald

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A large SUV in the upper-left is barely visible because it is submerged in the initial deluge of contaminated wastewater Aug. 5 at the Gold King Mine — photo EPA via The Durango Herald

From The Durango Herald (Peter Marcus):

The EPA-released documents include a detailed chronology of events leading to the Aug. 5 blowout, which resulted in an estimated 3 million gallons of wastewater streaming into the Animas River. An EPA-contracted team was working on reclamation at Gold King Mine near Silverton when excavation work resulted in the disaster.

Stunning photos taken of the incident document how a leak quickly turned into a flood of mustard-yellow sludge flowing into a creek then the river from a hole about 10 feet wide by 15 feet high. The leak was first noticed about 10:51 a.m. The muddy water flowed around trucks and heavy equipment used by the team, clearly taking workers by surprise as they ran for safety and to save trucks and equipment, according to a contractor’s memo of the incident. The name of the contractor was removed from the document.

As the access road washed away, the team realized that a vehicle had been parked in the line of the rushing water. The vehicle would not start following the water damage. Meanwhile, the water continued to pile up.

Some of the team left on foot to get picked up and taken to an area with phone service to notify authorities. It took more than 90 minutes for a team member to get to a location where he could notify authorities. There were no satellite phones at the site, though workers were able to use two-way radios.

Meanwhile, a Flight for Life helicopter flew overhead, photographing the alarming situation. It turned out the helicopter was not there for the incident, but instead was related to a tourist who was injured on Corkscrew Pass…

All the while, pH readings plummeted, leading the team to believe that it had caused a major water disturbance.

It took the team nearly five hours to reconstruct a temporary road to remove equipment and personnel, according to the document.

The event actually began on Aug. 4, when the team was clearing away rubble in front of the “plug” that ultimately gave way. An email released by the EPA describing the chronology states, “Because all this was unconsolidated material it was considered safe to remove, it was not buttressing the plug.

“We were constantly and carefully watching for and closely inspecting the digging for indications of the plug,” the email continues.

The document was redacted by the EPA, removing the name of the team member who sent it. He was described as an EPA on-scene coordinator.

The rock face of the wall was described as a “puzzle,” with the email stating that material had to be removed just to see the plug.

On the morning of Aug. 5, the team saw the outer face of the plug, which appeared dry and solid, but they couldn’t get close because of dirt from overhead. There was no change in water flow at the time, according to the email.

“Keeping in mind that the mine should be assumed to be full of water – that is backed up to the top of the plug or higher – we did not want to get anywhere close to the top of the plug,” the email from the team states.

The team needed to determine where the bedrock was to plan a safe approach to the plug, and that is where the problematic excavation work happened.

When the leak was spotted, the team first assumed it was a rock spring.

“On as close inspection as I dared, I could see that the clear water was spurting up not down. A couple of minutes later red water began to flow out from near that spot. …” the email states. “In a couple of minutes it became obvious there was a lot of water coming.”[…]

“EPA is establishing a longer term watershed monitoring strategy for the surface water and sediments that have been affected by the Gold King Mine spill to identify potential long-term impacts working closely with state and local officials,” EPA officials said in the release.

Federal judge blocks #CleanWaterRules

Fen photo via the USFS
Fen photo via the USFS

From the Denver Business Journal (Cathy Proctor):

A federal judge in North Dakota on Thursday granted a request by Colorado and 12 other states and blocked a federal rule that aims to extend the agencies’ authority to over small streams and wetlands.

The rule from the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers aims to redefine the legal description of the “waters of the United States,” known as WOTUS under the Clean Water Act, to include water that’s adjacent to navigable rivers and also water that may fill a normally dry streambed after a heavy rainstorm — which happens often across Colorado.

The states argued that the rule illegally removed water and land resources from state control. The decision by Judge Ralph Erickson, granting a preliminary injunction against the rule, will stop it from taking effect until a fuller review can be conducted.

The EPA and the Army Corps argued that the new definition would protect streams and wetlands, which the agencies say form the foundation of the nation’s water resources, from pollution and degradation. The agencies also say the new definition is easier for businesses and industry to understand.

“Colorado has primary responsibility to protect and manage its own water resources, and it takes that responsibility seriously,” said Colorado Attorney General Cynthia Coffman in reaction to Erickson’s ruling…

Two other federal judges, in West Virginia and Georgia, had declined to block the new rule.

Colorado joined litigation filed in the U.S. District Court in North Dakota. The other parties in the lawsuit are: North Dakota, Alaska, Arizona, Arkansas, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, the New Mexico Environment Department, and the New Mexico Office of the State Engineer.

EPA: Sediment a “long term” concern in Colorado mine spill’s wake — The Denver Post

Bottom of Animas River at Durango August 8, 2015 via Twitter and The Durango Herald
Bottom of Animas River at Durango August 8, 2015 via Twitter and The Durango Herald

From The Denver Post (Jesse Paul):

Environmental officials said Thursday their long-term concern after the 3 million-gallon Gold King Mine spill centers around the metallic sediment left in its wake.

Specifically, the Environmental Protection Agency says it is worried about the “effect of metals deposited in sediments in the entire watershed and their release during high-water events and from long periods of recreational use.”

The EPA mentioned the concerns as part of a data release accompanying 77 pages of documents chronicling the minutes and hours before and after the agency-triggered spill…

Experts say metals lining the riverbed could continue to cause long-term effects for agriculture, aquatic life and other life-forms along the Animas River.

The EPA specifically has been studying concentrations of arsenic, cadmium, lead and mercury in surface water.

The acidic heavy metals that flooded into Cement Creek in Silverton and the Animas River through La Plata County after the spill initially broke state water quality limits.

The new data comes after the EPA on Wednesday released an internal review of the events leading up the Gold King spill showing crews underestimated waste pressure behind the mine’s collapsed opening.

The report called the underestimation of the pressure the most significant factor leading to the spill.

According to the report, had crews drilled into the mine’s collapsed opening, as they had done at a nearby site, they “may have been able to discover the pressurized conditions that turned out to cause the blowout.”

#AnimasRiver: San Juan County businesses report few effects from mine spill — Farmington Daily Times

Gold King mine entrance August 2015 via the EPA
Gold King mine entrance August 2015 via the EPA

From The Farmington Daily Times (James Fenton):

Weeks after 3 million gallons of heavy metals-laden toxic waste from the Gold King Mine in Colorado traveled down the Animas and San Juan rivers, many business leaders in San Juan County say the local economy dodged a bullet — more or less.

Raymond Johnston, owner of the Float ‘N Fish Fly Shop and Guide Service at Navajo Dam, said that aside from an uptick in phone calls from people asking about conditions at the Quality Waters section of the San Juan, his business remained fairly steady.

“I couldn’t really tell any difference, but I did have quite a few phone calls,” Johnston said. “Mostly calls from people back east who had guide trips planned, and they were really freaked out. It didn’t affect us financially, but there was a lot of concern.”

Johnson, a fourth-generation Aztec resident, said he has seen incidents like the Gold King Mine spill before.

“This is the third time in my lifetime,” he said of such river-pollution events. “The other two times, it wasn’t any big tailings. But, you know, Aztec has been drinking polluted Durango sewage for 100 years, so we’re used to something.”

But just three miles downstream on the San Juan River, Larry Johnson tells a different story.

Johnson’s Soaring Eagle Lodge — which is the only private riverfront lodge on the San Juan River and offers lodging, meals, guide services, fly fishing instruction, float trips and private river access for its clients — took a sizeable hit.

That was not so much from the pollution, but, as Johnson explained, from the perception of pollution.

“It’s ironic, (the water in the river) is the clearest I’ve ever seen it right now,” Johnson said after getting back from giving a fishing guide tour for charity on Friday. “No, we haven’t been harmed by the spill, I told people. We’re conservationists, not environmentalists. We’re stewards of the river, and we were disheartened by the (mine spill).”

#AnimasRiver: Swiping at the EPA was easy enough, but context matters in river spills — The Mountain Town News

Despite lingering problems at many places, the Pennsylvania Mine in Summit County seems to be one place where contaminated water from hard-rock mining a century ago is finally being abated. Photo courtesy of Jeff Graves, Colorado Division of Reclamation, Mining and Safety
Despite lingering problems at many places, the Pennsylvania Mine in Summit County seems to be one place where contaminated water from hard-rock mining a century ago is finally being abated. Photo courtesy of Jeff Graves, Colorado Division of Reclamation, Mining and Safety

From The Mountain Town News (Allen Best):

Swiping at the EPA was easy enough, but context matters in river spills

It was the cheap story, and none less than the Economist ran with it this week in recapping the mine spill into the waterways of Southwestern Colorado. “Arsenic and lost face,” was the headline over a short story about the troubles stirred up after a contractor working for the Environmental Protection Agency breached a dam holding back the Kool-Aid-looking water in the Gold King Mine above Silverton.

Plenty of people piled on the EPA after the Aug. 5 spill. It seems lots of people hate the EPA—and this was before the Clean Power Plan. “To be accused of unconstitutional overreach is unfortunate,” concluded the Economist. “To give proof of incompetence when faced with such an accusation is unforgivable.”

But the Durango Herald may have been much closer to the truth of the situation when, only a day after the fouled waters reached Durango, it described the EPA as the one “left holding the hot potato.”

Silverton, Colo., lies an at elevation of 9,300 feet in San Juan County, and the Gold King Mine is more than 1,000 feet higher in the valley at the left side of the photo. Photo/Allen Best
Silverton, Colo., lies an at elevation of 9,300 feet in San Juan County, and the Gold King Mine is more than 1,000 feet higher in the valley at the left side of the photo. Photo/Allen Best

Indeed, Silverton and San Juan County had resisted a Superfund designation, afraid of the bad publicity for the community. Instead, there had been what the Herald described as a “piecemeal cleanup effort. …It was a compromise and gamble,” the newspaper went on to say. “It failed, but there is a valuable lesson that must not be missed amid the finger-pointing and grieving over a river run foul.”

The lesson along the I-70 corridor in Colorado is that the EPA has managed to achieve cleanups where others have bumbled or done nothing. Consider the Eagle Mine, between Minturn and Red Cliff, just around the corner from Vail. Mining ended there in the late 1970s after a century. The mess was designated a Superfund site. But by the winter of 1989-90, the Eagle River looked much like the Animas River of a couple weeks ago. State officials had signed off on a low-cost gamble of their own, sealing the Eagle Mine. This lower-cost solution didn’t work. Water contaminated by heavy metals in the mine escaped into the river. At one point, snow at the Beaver Creek Resort, manufactured with water drawn from the Eagle River, had a faint orange hue. It wasn’t a year the Denver Broncos were going to the Super Bowl. Then the EPA was called in. Things got fixed—more or less.

That even a well-funded cleanup continues to have problems should be sobering. This week, Todd Fessenden, board president of the Eagle Mine Limited, a group charged with disseminating technical information in ways the layman can understand, sent an e-mail to elected officials in Eagle County assessing the river conditions there, in the wake of the Animals spill.

“What you may not know is that we’ve had more than a dozen spills of heavy metal-laden mine water, or partially treated mine water, in the last 6 years,” he wrote. “Those spills have ranged in magnitude from 0.5 gallons per minute to 428,000 gallons over a 23-hour period. I’ve personally seen the Eagle River run green and the same shade of orange the Animas turned in the last 6 years.”

Still, the river is much better now. Vail seems to have survived just fine, despite the presence of the EPA.

In Summit County, the Pennsylvania Mine was a long-time mess. It’s in Peru Gulch, not far from the A-Basin ski area, and upstream from Keystone. The original miners had been gone many decades. A couple had purchased the property for back taxes but, realizing the problems, couldn’t unload it. Nobody else would touch it either, because of the liability if something went wrong.

But progress has been made in recent years. The mine less than a decade ago was running red downstream to Keystone and into Dillon Reservoir. It was, as the Summit Daily News noted in a story last week, long one of the most toxic abandoned mines in the state.

Again, the EPA’s involvement was crucial for making progress. By stepping in, explained Paul Peronard, the EPA’s on-site coordinator at the Pennsylvania Mine, the EPA takes on liability. With the EPA involved, the state will step in and do work, too. “When bad things happen, it becomes the EPA’s fault,” he explained.

And things can go wrong. “It’s like working on the bomb squad. You have a set of techniques, but, every now and then, the bomb goes off,” he said.

Jeff Graves, the senior project manager for the Colorado Division of Reclamation, Mining and Safety, said the potential for a “catastrophic release, surge event, whatever you want to call it, will be significantly reduced if not eliminated” by late September.

Portal of the Pennsylvania Mine in Summit County, upstream from Keystone Resort. Photo courtesy of Jeff Graves, Colorado Division of Reclamation, Mining and Safety
Portal of the Pennsylvania Mine in Summit County, upstream from Keystone Resort. Photo courtesy of Jeff Graves, Colorado Division of Reclamation, Mining and Safety

The Pennsylvania Mine currently puts 12,000 pounds annually of zinc into Peru Creek. No fish can be found in the creek nor in the Snake River downstream as far as Keystone, where the pollution is diluted. But if not as bad as the Pennsylvania Mine, more than 100 abandoned mines remains in the Snake and Blue River watersheds.

Reviewing the Animas pollution, Wyatt laments the “finger-pointing without putting what happened (at Silverton) into context.” The mining history above Silverton was difficult, with the mines interconnected and covering a broad area.

Lynn Padgett, a geologist, has been studying abandoned mines in the San Juan Mountains since 1990. Elected a Ouray County commissioner in 2009, but has kept after her interest, most recently appearing before a committee of Club 20 meeting in Lake City in support of Good Samaritan legislation.

Good Samaritan legislation would allow third parties to step in and clean up a mine site without incurring liability if something goes wrong, such as occurred at the Gold King Mine, as specified by the Clean Water Act. By Padgett’s rough count, there have been 15 different pieces of legislation have been introduced into Congress over the years—and all have foundered.

“The Clean Water Act is ironically a barrier to having clean water,” she says.

Padgett remembers going to the Gold King Mine in 2012 with then-U.S. Sen. Mark Udall, who had worked to move Good Samaritan legislation. As had several other congressional representatives. The problem always ends up being a concern about potentially responsible individuals being allowed to get duck their responsibilities.

The current proposal is being pushed by U.S. Sen. Michael Bennet and U.S. Rep. Scott Tipton. The legislation would create pilot projects. Other counties have been asked to lend support, and a letter from Pitkin County Commissioner Rachael Richards asks that the pilot be broadened to include the hard-rock mineral belt of Colorado, specifically including Eagle, Gunnison, Pitkin and Summit counties.

Padgett says the Gold King Mine doesn’t provide a good argument against mining. It and most of the other old mines pre-date modern laws that govern mining. “Our problem is these very old, historic mines,” she says.

Did the EPA truly mess up, as critics say, or was it, as the Durango Herald said, the party left holding the hot potato? Padgett says she’s waiting to get more information.

But like Wyatt and many others, she’s worried that too many will draw the wrong less from Gold King and the Animas, calling for reduced funding of the EPA by Congress. “That would be the wrong answer,” she says.