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

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Outdated hard-rock mining laws enacted in the 1870s tie the hands of the federal government to curb pollution that contaminates water supplies, as was the case with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

#AnimasRiver: Tribes, Counties, Environmental Groups Unite to Prevent Future Mining Contamination

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Here’s the release from the Center for Biological Diversity (Rex Tilousi, Sherry Counts, Art Babbott, Art Goodtimes, Anne Mariah Tapp, Katie Davis, Bonnie Gestring, Matthew Sanders):

In the wake of the toxic spill in the Animas River earlier this month, tribes, local governments and environmental groups today petitioned the Department of the Interior and Department of Agriculture to reform outdated mining rules on the federal lands they manage. The 74-page petition requests four key changes to federal mining regulations to help protect western water resources from future environmental disasters like the recent Gold King Mine spill in Colorado, and ensure that mine owners cannot simply walk away from existing and inactive mines.

“The Hualapai Tribe supports the petition to make long overdue changes to the mining regulations,” said Councilwoman Sherry Counts of the Hualapai Nation. “Indian tribes have always viewed themselves as stewards with an obligation to take care of the Earth that has provided for them. The Animas disaster only accentuates the urgency for federal agencies and the mining industry to do a much better job of protecting our precious land, air, and water.”

The petition, submitted under the federal Administrative Procedure Act, requests that the Bureau of Land Management and U.S. Forest Service reform existing mining rules by: limiting the lifetime of a mine permit, imposing enforceable reclamation deadlines and groundwater monitoring requirements on mines, requiring regular monitoring and inspections, and limiting the number of years that a mine can remain inactive.

“As a county with hundreds of abandoned mines affecting two headwaters rivers of the Colorado Basin, we really place a high importance on sustainable uses of our public lands and protecting water,” said Art Goodtimes, a commissioner in San Miguel County, Colo. “The proposed rules will help ensure that existing and inactive mines are reclaimed in a timely manner and the environment will be better protected than what happened with our San Juan County neighbors.”

“The Animas River disaster must mark the end of the days where irresponsible mining threatens our region’s livable future,” said Anne Mariah Tapp, energy program director for the Grand Canyon Trust. “Our coalition’s petition provides the federal agencies with a reasonable path forward that will benefit western communities, taxpayers, water resources, and our most treasured landscapes.”

The threat that uranium mining poses to the Grand Canyon prompted the support of many regional governments for regulatory reform. Uranium mines in the Grand Canyon region are operating under environmental reviews and permits from the 1980s, with no requirements for groundwater monitoring once mining is complete.

“The Havasupai Tribe supports this petition that will better protect our aboriginal homelands and the waters that flow into our canyon home,” said Rex Tilousi, Havasupai tribal chairman. “This petition is an important part of our decades-long fight to protect our tribal members, homeland, and sacred mountain Red Butte from toxic uranium mining contamination.”

Along with the threats posed by existing mines, there are hundreds of thousands of abandoned mines in the United States that pollute an estimated 40 percent of streams in the headwaters of western watersheds. Most of these toxic mines, including the Gold King Mine, exist because the 1872 Mining Law, still the law of the land, didn’t require cleanup.

“If we are serious about the protection of the Grand Canyon and Colorado River water resources, we need to call for change,” said Art Babbott, a county supervisor in Coconino County, Ariz. “Common sense reforms to the federal agencies’ mining regulations and the 1872 Mining Law serve the interests of healthy watersheds, strong regional economies, and having science — as opposed to politics — guide our decision-making for mining on public lands.”

“For too long, the federal government has allowed our public lands to become toxic dumping grounds for mining corporations,” said Katie Davis, public lands campaigner with the Center for Biological Diversity. “Federal agencies have the ability to start addressing the problems unfolding at existing mines now, without waiting for congressional action, to ensure better protection of public lands, water supplies and wildlife habitat.”

“We must act to prevent future disasters like the one that turned the Animas River orange,” said Earthworks’ Bonnie Gestring. “Our petition for stronger mining rules would help reform dangerous industry practices while we push to reform the 1872 Mining Law, which would fund the cleanup of the hundreds of thousands of abandoned mines that litter the West.”

Background
Today’s petition, submitted under the federal Administrative Procedures Act, requests four changes to existing federal mining regulations: (1) limit the duration of approved plans of operations to 20 years, with the option to apply for 20-year renewals; (2) require supplemental review under the National Environmental Policy Act and National Historic Preservation Act, as well as a new approval for any mining operation that has been inoperative for 10 or more consecutive years; (3) require the BLM and Forest Service to regularly inspect mining operations, and mining operators to regularly gather and disclose information regarding the status and conditions of those operations, during non-operational periods; and (4) impose deadlines for commencing and completing reclamation activities once a mining operation ceases, and impose long-term monitoring requirements for surface water and groundwater quality.

The petition was prepared by the Stanford Law Clinic and is supported by the Havasupai Tribe (Arizona), the Hualapai Tribe (Arizona), the Zuni Tribe (New Mexico), Coconino County (Arizona), and San Miguel County (Colorado), as well as more than a dozen national and regional environmental organizations including the Grand Canyon Trust, the Center for Biological Diversity, Earthworks, the Sierra Club, the Information Network For Responsible Mining, Uranium Watch and others, representing millions of people who treasure our public lands and waters.

#AnimasRiver: Acid mind drainage, “almost impossible to fix and it lasts forever” — High Country News

Bonita Mine acid mine drainage via Animas River Stakeholders Group
Bonita Mine acid mine drainage

Here’s a report from Jonathan Thompson writing for the High Country News. Click through and read the whole thing and check out Thompson’s drawings explaining acid mind drainage and the geology of the area. Here’s an excerpt:

While there are a variety of ways that mining can pollute watersheds, the most insidious and persistent is acid mine drainage, which is really a natural phenomenon exacerbated by mining. Acid mine drainage was the root cause of the Gold King blowout, and it plagues tens of thousands of abandoned mines across the West. It’s almost impossible to fix, and it lasts forever…

…the early settlers also were struck by the reddish orange color (like the Animas River after the “spill”) of some of the mountains. They were also struck by the same orange in some streams during times of high runoff, streams that were lifeless even then. Indeed, an observer in 1874 noted that Cement Creek was “so strongly impregnated with mineral ingredients as to be quite unfit for drinking.”[…]

Mining begins. The tunnels follow veins of gold or silver deep underground. The adits (horizontal tunnels) and shafts (vertical tunnels) intersect the cracks and faults through which groundwater had run toward springs. The groundwater follows the path of least resistance: The new mine adit. Whereas the cracks and faults are mostly anaerobic, or free of oxygen, the mine is relatively rich in oxygen. Meanwhile, the water as it flows through the mine runs over deposits of pyrite, or iron sulfide. Water (H2O) meets up with oxygen (O2) and pyrite (FeS2). A chain of reactions occurs, one of the products being H2SO4, otherwise known as sulfuric acid. The result is acid mine drainage, water that tends to have a pH level between 2 (lemon juice) and 5 (black coffee).

So now there is acidic water running through the mine. And since the mine follows the metals, so does the water, picking up the likes of zinc, cadmium, silver, copper, manganese, lead, aluminum, nickel and arsenic on the way. The acidic water dissolves these metals, adding them to the solution. After the water pours from the portal (mine opening), it percolates through metal-rich waste rock piled up outside the portal, picking up yet more metals. Next, the water may run through old tailings or leftovers from milling ore and pick up yet more nasty stuff. The soup that eventually reaches the stream is heavily laden with metals and highly acidic. It is acutely and chronically toxic to fish and the bugs they eat.

#AnimasRiver: EPA crews have cleaned up access road issues after Gold King mine release

Gold King Mine access road  August 2015 via the EPA/Twitter
Gold King Mine access road August 2015 via the EPA/Twitter

#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.

#AnimasRiver: Navajo Nation President Russell Begaye OKs resuming irrigation for three chapters — Farmington Daily-Times

A “get well soon” balloon floats in the contaminated waters of the Animas River flowing through Durango on Monday afternoon -- photo The Durango Herald, Shane Benjamin
A “get well soon” balloon floats in the contaminated waters of the Animas River flowing through Durango on August 10, 2015 — photo The Durango Herald, Shane Benjamin

From the Farmington Daily Times (Noel Lyn Smith):

Farmers in the Nenahnezad, San Juan and Upper Fruitland chapters of the Navajo Nation were cleared Thursday to resume using San Juan River water for irrigation soon.

Navajo Nation President Russell Begaye gave the directive Thursday night to open the the Fruitland Irrigation canal, which delivers water from the San Juan River to the three chapters. Begaye made the announcement during a meeting with chapter officials and farmers inside the Nenahnezad Multipurpose building.

The chapters have been without water since the canal was shut down in response to the Gold King Mine spill…

In a presentation, Begaye said the entire canal will be flushed before irrigation can start.

“You’ll have water that’s good for irrigation,” the president said.

Begaye added that the Navajo Nation Environmental Protection Agency will continue monitoring the water quality, and collecting soil and water samples for testing.

Shiprock Irrigation Supervisor Marlin Saggboy said flushing could start as soon as he receives the written directive from the president’s office.