New Mexico sues EPA and others over Gold King disaster

The suit is the first blow in what is likely to be a long legal fracas.

 

“Corn are thirsty and dying, damn the EPA, damn the government, damn the industry!”

Duane “Chili” Yazzie, Navajo farmer, activist and President of the Shiprock Chapter, from his poem Yellow River

On May 23, the State of New Mexico filed a lawsuit against the U.S. Environmental Protection Agency and the owners of the Sunnyside Mine near Silverton, Colorado, over damages caused by last year’s Gold King mine blowout. It’s likely just the first volley in what could be a long legal fracas emerging from both the spill and the impending Superfund listing for the Gold King and surrounding mines.

The action was hardly a surprise: New Mexico had expressed its intention to take legal action when the impacted rivers — the Animas and the San Juan — were still orange from the spill of 3 million gallons of acid mine drainage and iron oxide sludge. Initially, however, the state was targeting not just the EPA, but also the State of Colorado, the owner of the Gold King Mine and others. The only defendants in the actual complaint are: the EPA and its administrator Gina McCarthy; the contractor working on the mine when it blew out; and Sunnyside owner Kinross, a Canada-based global mining company, and its subsidiary Sunnyside Gold Corp.

The Animas River runs through Durango two days after the Gold King Mine blowout.
Jonathan Thompson

While the EPA has accepted blame for inadvertently causing the spill, Sunnyside’s culpability in the matter is murky. After being almost dry for years, the Gold King mine started draining water in the late 1990s or early 2000s, most likely a result of water backing up behind one or more of the three bulkheads that Sunnyside installed in the American Tunnel, below the Gold King. Yet still unknown is which bulkhead, in particular, is causing the drainage, and whether Gold King water is just being returned to its historic course, or Sunnyside mine water is somehow infiltrating the Gold King. (See our extensive, interactive timeline, which clearly helped inform the New Mexico complaint, for details.) 

The complaint alleges that the “garish yellow cloud of contamination wrought environmental and economic damage throughout the Animas and San Juan Rivers” and that it deposited sediment that could be re-mobilized during spring runoff, causing a potential repeat. Perhaps more damaging than the metals contained in the plume and sediment was the psychological impact, and the “uncertainty and anxiety generated by widely-circulated images of a sickly yellow river.” The state seeks reimbursement of all of its costs related to the spill, which it says exceed $100 million.

At a recent regional water quality conference in Farmington, New Mexico, one speaker noted that the “river would never be the same” after the spill. Yet water sampling and fish counts conducted since the spill have shown that things haven’t changed significantly. At the conference, a presentation by Jim White, aquatic biologist with Colorado Parks and Wildlife, noted that fish counts showed “no discernible changes in species composition, biomass, and/or quality of trout or native fishes POST Gold King Mine spill.” And an analysis conducted by the Mountain Studies Institute in Durango this spring showed that metal concentrations in the Animas River have increased during spring runoff, but not noticeably more than in past years.

While the Animas and San Juan haven’t changed considerably, the perception of them has been radically altered. The communities that rely on and play in their waters have never paid so much attention to the health of the rivers. The seemingly clear waters they used to take for granted have long been tainted by the mines upstream as well as a melange of other sources. Since the orange wave passed, they've come to value them like never before.

Jonathan Thompson is a senior editor of High Country News.