Following the EPA’s accidental release of mine wastewater from the Gold King Mine last August, a neon orange sludge flowed downstream from Southwest Colorado to Lake Powell. As pictures of the lead, iron, mercury and arsenic plume swept across the world’s media, a decades-long debate on how to address abandoned mines up north took a turn into serious considerations of Superfund status./Courtesy Photo

Down to the wire

Silverton, San Juan officials hope to hit deadlines in bid for Superfund

by Tracy Chamberlin

After decades of debate, the decision over how to handle the hundreds of abandoned mines scattered in the mountains north of Durango could come in a matter of days.

The residents of Silverton and San Juan County have toiled over the issue for more than 20 years. One part of the discussion has been about whether or not the local community wanted the federal government to come in and help. The other part was about trying to get the federal government out of the way so local residents could make a difference on their own.

Then, last August, everything changed.

The Environmental Protection Agency, the same federal agency that should be coming to help, unleashed more than 3 million gallons of toxic mine wastewater from the abandoned Gold King Mine into Cement Creek, a tributary of the Animas River.

The neon orange sludge flowed downstream, leaving metal and mineral deposits along the riverbanks from Southwest Colorado to Lake Powell.

As pictures of the lead, iron, mercury and arsenic plume swept across social media and graced the cover of newspapers all over the world, the decades-long discussions going on in Silverton and San Juan County took a different turn.

“There’s no question the Gold King incident has greatly accelerated the process,” said San Juan County administrator Willy Tookey.

The tag of Superfund might sound simple, but the reality is far more complicated.

The label is for projects falling under the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA, which gives the federal government the authority to “respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment,” according to the EPA’s website.

Requests for Superfund status can only be made twice a year, once in the spring and again in the fall. Those requests come from the governor’s office, so the first step is to send an official letter to Colorado Gov. John Hickenlooper. Then, the governor can forward that request to the EPA.

Tookey said town and county officials are working hard to make the spring deadline, but they can’t be rushed into a decision. “The EPA is likely to be here the next 20 to 30 years,” he explained. “This is a huge decision for the county to make.”

Last week, the Durango City Council unanimously approved a letter of support for Superfund status in the upper Cement Creek basin. This week, the La Plata County Commissioners did the same.

The elected leaders for Silverton and San Juan County were hoping to vote on the letter Thursday, sending it off to the governor ahead of the Jan. 31 deadline. But, there are some sticking points to be worked out.

For one, the parties need to agree on the proposed boundaries of the Superfund site, which will be called the Baker’s Park Mining District. They’re also working out reimbursements to the local community for time and money spent on the Superfund project and Gold King Mine incident.

The third, and perhaps most impactful, sticking point is about having a say.

“We want basically a chair at the table during the whole decision-making process,” Tookey explained. “It’s not how the process is normally handled.”

Under the law, CERCLA leaves final decisions up to EPA officials. There’s a 90-day public comment period, but that’s the only input the local community typically has.

What local officials in Silverton and San Juan County want is to listen and participate throughout the process, not just after decisions are made. It would essentially create a new model for Superfund sites.

“I absolutely think we’re creating a new model here,” said Bill Gardner, administrator for the Town of Silverton.

On the other side of the equation are local residents who just want to help.

In an effort to address the mining wastewater that continues to trickle into the local watershed, a locally driven organization was created in 1994 called the Animas River Stakeholder’s Group.

They’ve been on the forefront of the issue ever since.

The problem is that they can only do so much before legal and regulatory roadblocks stop them in their tracks.

Under CERCLA and the Clean Water Act, once a company or group begins work on an abandoned or orphan mine site, they become legally responsible for that site in perpetuity. Therefore, if anyone with the Animas River Stakeholder’s Group tried to clean up leaking wastewater from an abandoned mine, they would be libel for that site and any of its contaminants – for all time.

Over the past several years, local representatives and senators from both sides of the aisle have introduced legislation, commonly referred to as Good Samaritan bills, hoping to address the legal loopholes.

And, it’s happening again.

Last week, U.S. Sens. Cory Gardner, R-Colo., and Michael Bennet , D-Colo., along with U.S. Rep. Scott Tipton, R-Colo., introduced the Good Samaritan Cleanup of Orphan Mines Act into their perspective houses. The law addresses liability, defines limitations and would expire after 10 years, allowing Congress to look at the effectiveness of the law.

As the bill makes its way through committees, Silverton and San Juan County continue discussions with the EPA. The deadline for a Superfund request has been extended by two weeks and, at this point, the ball is in the EPA’s court.

The Town of Silverton’s Gardner said he thinks they’ll make the deadline. “We sincerely want this to never, ever happen again,” he said.