One Year After The Gold King Mine Wastewater Release – What Is The Status?

Fox Rothschild LLP
Melissa J. Lyon

August 9, 2016

Originally published August 5, 2016

Today is the one year anniversary of the Gold King Mine wastewater release incident….

As you may recall, on August 5, 2015, the U.S. Environmental Protection Agency (“EPA”) was conducting an investigation into the Gold King Mine near Silverton, Colorado when approximately 3 million gallons of mine wastewater spilled into Cement Creek, a tributary of the Animas River, over a period of about eight days. The wastewater release flowed down the Animas River to the San Juan River.

The wastewater was “acidic, mine-influenced water,” according to the EPA, and the released waters cascaded through three states (Colorado, Utah and New Mexico) and three American Indian reservations (Southern Ute Indian Tribe, Ute Mountain Ute Tribe and Navajo Nation).

Where are we now, one year later?

1. New EPA Report

Earlier this week, the EPA published a report to summarize the agency’s efforts to address the release entitled, “One Year After the Gold King Mine Incident: A Retrospective of EPA’s Efforts to Restore and Protect Impacted Communities;” the full copy of the text can be found here.  In addition, Assistant Administrator of the Office of Land and Emergency Management, Mathy Stanislaus, drafted a Memorandum that accompanied the report, which may be found here.

In the report, the EPA addressed the background of mining in the Western United States and the potential impacts of the 161,000 abandoned hardrock mines in the 12 western states and Alaska.  The EPA’s response to the wastewater release at the Gold King Mine is also explained in detail in the report, as were the environmental conditions post-incident.

The report also details the EPA’s financial commitments to the Gold King Mine wastewater release, stating that the EPA has dedicated more than $29 million to date.

In addition, the report describes the efforts the EPA has taken to improve its practices in light of this incident.  Specifically, the EPA has reportedly improved its notification and response systems and developed a draft “Best Practices and Approaches Report: Preventing Sudden, Uncontrolled Fluid Mining Waste Releases Prior to Conducting Response Actions at Mine Sites” that “compiles best practices and approaches for preventing fluid mine waste releases from collapsed adits and tailings impoundments/dams.” This draft best practices and approaches report is said to be currently undergoing external review by federal land management agencies, states and tribes.

2. Criminal Investigation into EPA Fault Instituted

As reported earlier this week by The Denver Post, “Federal authorities have confirmed for the first time that a criminal investigation into the 2015 Gold King Mine spill is underway, saying their probe involves the U.S. Attorney’s Office and came at the request of members of Congress.”  The Senate Committee on Indian Affairs, led by its Republican committee chairs U.S. Senators John Barrasso, R-Wyo., and John McCain, R-Ariz., spearheaded the request for the criminal investigation.

3. Superfund National Priority Listing Proposed

The EPA has also proposed a Superfund National Priorities Listing for the Bonita Peak Mining District (which includes the Gold King Mine).  Forty-eight mine sites are included in the Bonita Peak Mining District.  The National Priorities Listing would make the proposed district eligible for additional study and cleanup monies and resources under the EPA’s Superfund program.  The comment period on the proposed listing ended in June and the EPA will be making a final decision.  Documents related to the potential Bonita Peak Mining District site can be found on the EPA’s website here.
We will continue to keep you apprised of the status – stay tuned!

This article was reprinted with permission from Fox Rothschild LLP. This material was based on the most current information at the time it was written. Since it is possible that the laws or other circumstances may have changed, please consult legal counsel to discuss any action you may be considering as a result of reading this.

This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Ms. Lyon and may not reflect the opinions of Synergy Environmental, Inc., Fox Rothschild LLP or either of those firms’ clients.

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