Vermont Law Top 10 Environmental Watch List 2016

Gold King Mine Spill on Animas River

How will the Gold King Mine spill on the Animas River shape the EPA's response to future pollution from abandoned mines?

An old political rule posits, “Never let a good crisis go to waste.” The Gold King Mine spill on the Animas River in Colorado is quickly shaping up to be such a crisis, and both sides of the political spectrum are readying to use it to their advantage. This spill represents a bigger issue though, because hundreds of other abandoned mines remain in the West, an unwanted legacy of the 1872 General Mining Law. The response to this spill will shape how the Environmental Protection Agency will proceed in addressing potential toxic pollution from hundreds of abandoned mines on public lands for years to come.

image courtesy of NBC News

NBC News image

On Aug. 5, 2015, contractors working on one of more than 200 inactive mines in and around the Upper Animas basin caused a leak at the Gold King Mine, dumping 3 million gallons of acidic and toxic waste into the river. Three million gallons sounds big, but belies the true impact of this spill. Waste from Gold King contaminated more than 100 miles of river across the San Juan and the Colorado River basins. The EPA fears as many as 1,000 residential wells may be contaminated and the Navajo Nation says roughly 750 farmers are suffering as a result of inability to irrigate.

The EPA responded with a temporary treatment system on the river for a year, using roughly $3 million of Superfund money. But while Gold King Mine has been tragic, it is only a symptom of a larger issue. The spill was devastating but represents only a fraction of the continual discharge of other mines in the area. According to the Navajo Nation, mines discharged more than 27 million gallons into the river over the years. The owners of these abandoned mines are long gone, leaving no culprits to shoulder the costs. Instead, the burden shifts to taxpayers because the 1872 General Mining Law never required bonding. While the Navajo are seeking superfund protections as well as legal recourse for this spill, Congress repeatedly has failed to amend the 1872 law to require bonding, leaving public lands vulnerable to even more disasters like this in the future.

While parties parry over the Animas, western communities must face the unaddressed legacy of the 1872 law. While there are a few hundred mines in the Animas Basin, throughout the West this number blossoms into the thousands. Likewise, the latent risk blossoms. The lack of a coherent plan leaves all of these waterways vulnerable to another Animas-level spill, and we currently stand no closer to doing anything about it.

Going forward everyone seeks to use this crisis to further their own agenda. Environmentalists use the spill as a poster child for reforming the 1872 General Mining Law. While they lack a clear-cut means of achieving this reform, the proposed Hardrock Mining and Reclamation Acts of 2007 and 2009 provide a possible avenue. The 2007 act would have ended all new patents and imposed 4- and 8-percent royalties on existing and new mining operations, respectively. The revenues from those royalties would be used for cleanups of old mines. The far less draconian 2009 act provided 2- to 5-percent royalties on new mines while imposing a .3- to 1-percent reclamation tax on all such mines. These two options, which both failed, now provide a means of addressing the flaws of the act, and may be more viable in the aftermath of Animas.

Conservative politicians use the mine failure as part of a larger agenda to bash the EPA. Rep. Lynn Westmoreland of Georgia has proposed a resolution to remove EPA exemptions from liability where they cause harm, and Sen. Tom Cotton of Arkansas has proposed a similar bill for the Senate. If these were to pass, the EPA potentially would be liable to those harmed by the leak. These charges obfuscate the underlying problems of both the 1872 law and the widespread toxic legacy that remains unaddressed. Such EPA bashing likely will make the agency more risk-averse, as officials would not wish to place an already stretched budget under the weight of greater litigation.