The Day the River Turned Yellow: Why The Animas River Spill Happened, And What We Should Learn From It

TitlecardThe Day the River Turned Yellow: Why The Animas River Spill Happened, And What We Should Learn From It

By Jess Gick

On August 5th, 2015, approximately three million gallons of toxic mining sludge gushed from the Gold King Mine near Silverton, Colorado into the Animas River.[1] The spill turned the Animas bright yellow-orange, and laced it with lead, arsenic, and other toxic chemicals in concentrations 800 to 3,500 times higher than that which is safe for human consumption. [2] The Animas flows quickly—at about 500 cubic feet per second[3]—and within days over 100 miles of river were poisoned, threatening communities dependent on the Animas in three States and two Federally recognized Indian tribes.[4]

The direct cause of the spill was the actions of a government contractor working on behalf of the EPA.[5] While excavating above the Gold King Mine, workers accidentally caused pressurized wastewater to burst into Cement Creek, a tributary of the Animas River.[6]

“The EPA had been trying to get the areas around Silverton on the NPL for years.

Why was the EPA working near the Gold King Mine? Under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (more commonly known as “CERLCA” or the “Superfund”), the EPA may list sites on the National Priorities List, or NPL, to help the agency determine which areas warrant remedial action.[7] The EPA had been trying to get the areas around Silverton on the NPL for years.[8] The local government, fearing the effects of a NPL listing on tourism, thwarted the EPA’s efforts.[9] But the EPA and local government recently reached an agreement, whereby the agency would lead a $1.5 million project to plug two other abandoned mines in the Silverton area beginning mid-July of 2015.[10]

“The San Juan River, in which the Animas River flows, is an important—and sacred—water source to the Navajo people.

 The long-term costs of the Animas River spill are largely unknown.[11] Although the EPA has taken full responsibility and has pledged to repay any expenses incurred in the cost of cleanup, the spill has strained the treasuries of State and Tribal governments.  The Navajo Nation in particular has suffered great economic hardship as a result of the spill.[12] The San Juan River, in which the Animas River flows, is an important—and sacred—water source to the Navajo people.[13] In the days immediately following the spill, the EPA trucked in over 100,000 gallons of clean water for agricultural use to the Nation daily.[14] Now, the Nation plans to install its own $20 million water treatment plant to provide clean water to the over 16,000 families living on the reservation.[15] The Nation has also announced that it intends to file suit against the EPA under the Federal Torts Claims Act to help recover some of the damages it has suffered.[16]

“State officials are most concerned with lead contamination, and some have criticized the EPA for failing to provide sufficient funds to monitor the water supply in the long-term.”

By now, most of the 880,000 pounds of heavy metals that spilled into the Animas have settled to the bottom.[17] But locals fear that spring snowmelt from the Rocky Mountains will stir up these metals, re-polluting the water supply.[18] State officials are most concerned with lead contamination, and some have criticized the EPA for failing to provide sufficient funds to monitor the water supply in the long-term.[19]

“Under the General Mining Law of 1872, the mining industry need not pay royalties to conduct mining on public lands.”

But perhaps what is of greatest concern is that the Gold King Mine is hardly unique. Earthworks, an environmental nonprofit based in Washington, D.C., estimates that there are 500,000 abandoned and inactive hard rock mines throughout the United States.[20] The EPA estimates that these mines contaminate about 40 percent of the headwaters of the Western watersheds.[21] It would cost between $24 to $54 billion to cleanup fewer than 200 of these mines,[22] but due to an antiquated mining law,[23] taxpayers would foot the bill.[24] Under the General Mining Law of 1872,[25] the mining industry need not pay royalties to conduct mining on public lands.[26] Such royalties, which are mandatory for the coal, oil, and gas industries, help pay for the cost of cleanup.[27] Without the benefit of royalties, the federal government—and its taxpayers—must fund cleanup.[28]

Maybe the greatest lesson to be learned from the Animas River spill is that some of America’s oldest environmental laws should be updated. Congress must close the loophole in the General Mining Law of 1872 and hold the mining industry accountable for the environmental and public health consequences of its activities.

GIELR LOGO SMALL

[1] U.S. Envtl. Protect. Agency, Emergency Response to August 2015 Release from Gold King Mine, https://www.epa.gov/goldkingmine (last visited April 16, 2015).

[2] Richard Parker, A River Runs Yellow, Atl. (Aug. 21, 2015), http://www.theatlantic.com/national/archive/2015/08/a-river-runs-yellow/401966/.

[3] Id.

[4] About 200,000 residents of Colorado, New Mexico, Utah, the Navajo Nation, and the Southern Ute tribe pump water from the Animas and the waters into which it flows. Jim Carlton, Southwest Towns Still Struggle With Toxic River Spill, Wall St. J. (April 7, 2016), http://www.wsj.com/articles/southwest-towns-still-struggle-with-toxic-river-spill-1460063465.

[5] Parker, supra note 2.

[6] U.S. Envtl. Protect. Agency, supra note 1.

[7] U.S. Envtl. Protect. Agency, Basic NPL Information, https://www.epa.gov/superfund/basic-npl-information (last visited April 16, 2016).

[8] Stephanie Paige Ogburn, Why Was The Environmental Protection Agency Messing With A Mine Above Silverton?, KUNC 91.5 FM (Aug. 6, 2015), http://www.kunc.org/post/why-was-environmental-protection-agency-messing-mine-above-silverton#stream/0.

[9] Id.

[10] Although the plug would not be designated as a Superfund project, the EPA would pay all costs. Mary Shinn, EPA to Plug Silverton Mine Soon, Durango Herald (June 28, 2015), http://www.durangoherald.com/article/20150628/NEWS01/150629600/0/SEARCH/EPA-to-plug-Silverton-mine-soon.

[11] Matthew Brown & P. Solomon Banda, It Will be Years Until We Know How Much Damage the Toxic Colorado Mine Spill Cost, Associated Press (Aug. 13, 2015), http://www.businessinsider.com/it-will-be-years-until-we-know-how-much-damage-the-toxic-colorado-mine-spill-cost-2015-8.

[12] Id.

[13] Jesse Paul, Animas River Spill: Navajo Nation Angry at EPA, Denver Post (Aug. 17, 2015), http://www.denverpost.com/news/ci_28651849/navajo-nation-angry-at-epa.

[14] Id.

[15] Brown & Banda, supra note 11.

[16] See, e.g., Letter from Ethel B. Branch, Attorney Gen. of the Navajo Nation, to Avi Garbow, Gen. Counsel at EPA Office of Gen. Counsel (Oct. 2, 2015), available at http://operationyellowwater.com/press/.

[17] Carlton, supra note 4.

[18] Id.

[19] For example, the EPA is expected to provide New Mexico with $465,000 in funding; but state officials estimate that they will require $6 million to fund long-term monitoring projects. Such projects are particularly important for the nearly 2,000 residents who rely on untreated private wells. Id.

[20] The N.Y. Times Editorial Board, What the Gold Mine Disaster Tells Us, N.Y. Times (Aug. 13, 2015), http://www.nytimes.com/2015/08/13/opinion/what-the-gold-mine-disaster-tells-us.html?_r=0;.

[21] Id.

[22] Parker, supra note 2.

[23] The N.Y. Times Editorial Board, supra note 20.

[24] Earthworks, Abandoned Mines, https://www.earthworksaction.org/issues/detail/abandoned_mines#.VxJ_fZMrLX8 (last visited April 156, 2015).

[25] The N.Y. Times Editorial Board, supra note 20.

[26] Earthworks, supra note 24

[27] Id.

[28] Id.

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