Editor’s note: A version of this story first ran in The Colorado Statesman:
As Congress sharpens its knives for what will likely be multiple committee hearings on the accidental release by the U.S. Environmental Protection Agency of 3 million gallons of toxic mine wastewater into the Animas River on Aug. 5, local officials are focused on disaster relief.
Their pleas for congressional help come amid a chorus of criticism for the federal agency, which on Wednesday issued its own internal review of the blowout, concluding it was “likely inevitable” and caused mainly by an “underestimation of the water pressure in the Gold King Mine.”
The EPA report and a separate Department of Interior investigation are unlikely to satisfy members of Colorado’s congressional delegation who are calling for extensive hearings on the matter following the August recess, but Silverton town administrator Bill Gardner isn’t particularly interested in the blame game.
“We, as Silverton and San Juan County staff … think that shouldn’t be the conversation right now,” Gardner told The Statesman. “The conversation in Congress, which is what we’re going to need to find resources to remedy this problem, should be about what are the best steps for finding a solution?”
Silverton and San Juan County on Tuesday adopted a joint resolution calling for a concerted effort with other downstream communities impacted by the blowout to secure both short- and long-term federal disaster funding to stop the discharge, which has been occurring for years at a rate of up 800 gallons per minute. And there are several abandoned mines in that area that have been draining into the local watershed since the late 1800s.
That does not necessarily mean local officials are doing a 180 and suddenly seeking an EPA Superfund designation that might make additional federal remediation dollars available, although that is a possibility. Gardner says there are so many toxic sites on the EPA’s National Priorities List and so little funding that a Superfund listing might not solve the problem.
Gardner acknowledges the role of the EPA going forward and the success the agency has had in mopping up the nearby Mineral Creek drainage and working with the local Animas River Stakeholders Group to mitigate the situation in Cement Creek, which is devoid of aquatic life.
“So there has been some good work done, but the challenge comes with this sticking point about Superfund, and the concerns are real simple,” Gardner said. “EPA is not funded the way it was in 1990. It simply has lost support for funding.”
Some residents of the town of 650 have resisted Superfund listing because it might stigmatize a community now heavily reliant on tourism since the mining industry shut down. Silverton Mountain ski area owner Aaron Brill has in the past opposed Superfund designation for that very reason, although the popular ski resorts of Vail and Beaver Creek have not suffered from Superfund listing of the Eagle Mine that restored the upper Eagle River in the 80s and 90s.
But in 1995 Congress cut off a tax on petroleum and chemical imports that provided a steady trust fund of billions in cleanup resources. By 2003 the fund was unfunded, and cleanup efforts slowed dramatically with Congress paying for Superfund remediation out of its general fund.
In 2010, former EPA Administrator Lisa Jackson unsuccessfully lobbied Congress to reinstate the Superfund “Polluters Pay” tax, and Oregon Democratic Earl Blumenauer has introduced a bill to reinstate the Superfund tax in the current Congress, although its chances of success seem slim with both chambers controlled by Republicans.
Whether the Gold King and other nearby mines need to be plugged, a wastewater treatment facility needs to be built in the Cement Creek drainage, or some other scientific solution should be implemented, Gardner says Congress should fund a comprehensive long-term solution.
“The point is, we think we’d really be making a mistake if we use a Band-Aid approach,” he said. “The easiest Band-Aid – and I’m not saying it isn’t important, because it is – would be to just put the water treatment facility at Cement Creek. We need to look at the whole problem, and we think this could be a pilot program because we know there are thousands of mines throughout the Intermountain West that [are leaking toxins into watersheds].”
Meanwhile, the spotlight will continue to shine brightly on the EPA, with critics lining up on both sides of the aisle. Democratic Reps. Diana DeGette of Denver and Ben Ray Luján of New Mexico this week fired off a letter requesting an EPA oversight hearing to Energy and Commerce Committee Chairman Fred Upton, a Republican.
Rep. Doug Lamborn, a Republican from Colorado Springs, sent a letter to EPA Administrator Gina McCarthy blasting the “blatant hypocrisy” of her agency, which he says would heavily fine or jail owners of a private company that caused such a disaster.
Of course, private companies – long since out of business – did leave the toxic mining waste surrounding Silverton. But they did it more than 100 years ago when there was no EPA. A Lamborn spokesman did not return calls and emails requesting additional comment by deadline.
Rep. Scott Tipton, a Cortez Republican whose district includes Silverton, has been equally critical of the EPA. A spokesman on Wednesday said Tipton will consider Silverton and San Juan County’s request for federal disaster funding after the recess.
“With regard to federal assistance, Congressman Tipton’s office is reviewing all of the options to determine what is most appropriate and doable,” Tipton spokesman Josh Green said in an email, adding the EPA continues to drag its feet on providing information about the spill.
“Congressman Tipton has numerous inquiries into the EPA asking critical questions about how the spill occurred, and the EPA’s response and communication following the spill, which was abhorrent and virtually non-existent,” Green said. “The EPA to date has not been close to being responsive enough, and this will no doubt be a topic raised during future Congressional hearings and investigations.”
Texas Republican Lamar Smith, chairman of the House Science, Space and Technology Committee, which will hold the first EPA oversight hearing, blasted the EPA for missing a Monday deadline he set for turning over documents related to the spill.
Two Utah state lawmakers went so far as to suggest the EPA may have intentionally triggered the Gold King blowout to force Superfund designation on Silverton.
Republican Colorado Attorney General Cynthia Coffman, along with her counterparts in Utah and New Mexico, is still weighing a possible lawsuit against the EPA, although some local officials in the upper Animas and San Juan River basins have blasted that idea as politically motivated.
Coffman spokesman Roger Hudson said via email on Wednesday that he had no new information on a possible EPA lawsuit, but added, “As you can imagine, that may change quickly.”
Legislatively, Colorado’s congressional delegation is split on party lines, with Republicans backing a Good Samaritan law that would absolve third parties such as state and local governments, nonprofits and mining companies from long-term liability during cleanups of old mines.
Democrats would like to not only pass Good Samaritan legislation but also reform the 1872 Mining Law to require royalties from companies mining on public lands. That money would create a cleanup fund for abandoned mines.
Silverton’s Gardner, who came out of retirement to try to heal a divided town and was only on the job three weeks before the blowout, says Good Samaritan legislation is good starting point but Congress must quickly get off the EPA issue and come up with meaningful solutions.
“It’s clear to me that the debate over who is going to administrate and find the solution is contributing to a serious delay in addressing the problem,” Gardner said.