SILVERTON–The Denver-based Mountain States Legal Foundation (MSLF) sent a letter to Environmental Protection Agency (EPA) Acting Inspector General Charles Sheehan March 7 asking him to examine possible conflicts of interest in the EPA’s conduct in the Bonita Peak Mining District (BPMD) outside of Silverton after it caused the release of some 3 million gallons of acidic mine waste from the Gold King mine into the Animas River August 5, 2015.
Several lawsuits have been filed against the EPA alleging as much as $1.2 billion in damages caused by Animas River contamination. Plaintiffs include the State of New Mexico and the Navajo Tribe.
After an agreement in the 1990s not to list the District as a Superfund site “as long as progress was being made to improve the water quality of the Animas River” by local stakeholders and the Colorado Department of Public Health and Environment (CDPHE), the EPA continued to participate in “community-based collaborative efforts.”
The EPA contributed various resources and grant money through 2015 and acknowledged the Sunnyside Gold Corporation’s (SGC) $30 million, 27-year investment in voluntary remediation and water quality improvements, including installing bulkheads in mines it never owned to reduce acid mine waste.
SGC completed its obligations for remediation satisfactorily in 2003 according to the CDPHE and was released from further liability under a court-ordered consent decree.
However, according to Rich Mylott, EPA Region 8 spokesman, the EPA “did not sign or approve the consent decree” even though the EPA was entwined with the remediation work for more than 27 years.
Soon after the blowout the EPA installed a water treatment plant below the Gold King mine to process mine waste flowing from the opening.
Thirteen months and four days after the Gold King blowout the EPA added the BPMD to the Superfund National Priorities List and took control of remediation, over objections by SGC and other local stakeholders.
Several detailed water monitoring studies since EPA started treating its waste show that water quality in the Animas River immediately downstream of Silverton has been well within CDPHE water quality limits, raising the question why the EPA is maintaining its control over the District rather than returning water-quality control back to the CDPHE.
In a Jan. 30, 2019 letter to the CDPHE, Steven L. Lange, Senior Geochemist at environmental consultants Knight Piésold and Co. wrote, “The new River Watch data further vindicates Colorado Department of Public Health and Environment’s plan and its 2002 determination, under the leadership of Doug Benevento, that SGC’s bulkheading and remediation was successful and improved water quality in the Animas River.”
Benevento was working for CDPHE in 2002 and is now the EPA’s Region 8 Administrator overseeing the Superfund site.
On March 15, 2018, the EPA unilaterally ordered SGC to perform what SGC characterizes as a dangerous, expensive, environmentally-damaging and functionally useless drilling and research study that the EPA says it needs to “determine the hydraulic and hydrologic connectiveness” to surface waters of SGC’s mine workings, which are now filled with water by SGC’s bulkheads to help prevent the creation of acid mine waste, a project both the EPA and CDPHE said at the time was a state-of-the-art remediation process.
The MSLF says that the EPA’s liability for the blowout, subsequent Superfund designation and its actions since are already creating “adverse impacts” in the District.
“Rather than recognizing the conflict and seeking and independent third party agency to determine the appropriate action to take, EPA chose to use its power to list the area as a Superfund Site and to designate itself as the Lead Agency,” said MSLF attorneys Zhonette Brown and Christian Corrigan in the letter.
Speaking with Complete Colorado Tuesday, Corrigan said, “This is very much a due process issue to us.”
“The EPA has a blatant and impactful conflict of interest as the lead agency. We think the EPA should step aside here,” said Corrigan. “CERCLA [the Comprehensive Environmental Response, Compensation, and Liability Act] and Superfund designation give EPA enormous power over private parties and if the EPA is allowed to do this here it has larger implications for what they can do in the future.”