On June 26, 2017, the U.S. Supreme Court rejected New Mexico’s lawsuit against Colorado over damages incurred from the Gold King Mine spill. The Court ruled 8-1 in favor of denying a motion to hear the case. No reason was provided for the Court’s decision. The spill occurred on August 5, 2015 when U.S. Environmental Protection Agency (EPA) personnel and contracted workers accidently breached a containment wall in a plugged mine tunnel resulting in the release of toxic wastewater into the Animas River near Silverton, Colorado. Approximately 3 million gallons of wastewater containing high levels of heavy metals and elements, such as lead, cadmium, and arsenic, flowed into the Animas River spreading from Colorado to Utah and New Mexico. New Mexico filed suit in the U.S. Supreme Court against Colorado for failing to properly oversee the contamination. [State of New Mexico v. State of Colorado, Mot. For Leave to File Bill of Complaint, Case No. 220147, Orig. (June 22, 2016).]
There are thousands of inactive mines in the western United States that are leaking or have the potential to leak toxic wastewater. One of these mines is the Gold King Mine located near the Animas River at Silverton, Colorado. The Animas River is a tributary of the San Juan River running from the San Juan Mountains of Colorado through Silverton and Durango, Colorado until it reaches the San Juan River in Farmington, New Mexico.
Sometime after the Gold King Mine closed, toxic wastewater began leaking from the mine. Complaint at 4. The EPA hired a contractor to use an excavator to cover the portal entrance of the mine, while being supervised by EPA and Colorado employees. According to Colorado Division of Reclamation Mining and Safety records and EPA’s work plan, the risk of “blowout” was known by the crew. The excavator destroyed the plug blocking the toxic water and over several days, 3 million gallons of wastewater flowed out of the mine and into the Animas River.
The effects of the spill were devastating and immediate. Over 880,000 pounds of metal was released into the Cement Creek tributary of the Animas River. A mustard-colored plume flowed down the Animas River into the San Juan River and through Navajo Nation lands. The plume traveled down the San Juan River into Utah, reaching Lake Powell within a week of the “blowout.” The metal concentrations in the water exceeded both Federal and State drinking water standards affecting New Mexico residents, tourism, livestock, agriculture, and the local environment. The effects were felt by those in Colorado, New Mexico, and Utah including the Navajo Nation and Southern Ute Indian Reservations. New Mexico contends that the long-term impacts are significant because rainfall and snowmelt can “re-suspend” the metals in the riverbed. Complaint at 4.
The EPA’s response to the Animas spill was highly criticized by the media and local residents, in part, because the EPA did not alert the public to the spill for 24 hours. The EPA has since taken responsibility for the cleanup creating drainage impoundments and expending more than $6 million dollars in reimbursements to state, federal, and local entities.
On June 20, 2016, New Mexico filed suit against Colorado for damages caused by Colorado’s participation in the spill. First, New Mexico claims that Colorado is liable under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9607(a) and CERCLA 42 U.S.C. § 9613(g)(2) for costs New Mexico incurred while responding to the spill. Complaint at 39-42. New Mexico also claims that Colorado is in violation of the Resource Conservation and Recovery Act’s (RCRA) “imminent and substantial endangerment provision,” 42 U.S.C. § 6972(a)(1). Complaint at 43-44. Next, New Mexico claims that Colorado has caused a public nuisance through their “past, present and ongoing conduct” regarding the contamination.” Complaint at 47. Finally, New Mexico claims that Colorado was negligent or grossly negligent in its actions by “failing to investigate or test the hydraulic pressures within the Gold King Mine despite knowing the mine was holding back significant quantities of water.” Complaint at 49.
New Mexico officials have characterized the lawsuit as an action of last resort after New Mexico Environment Department’s negotiations with Colorado were unsuccessful.
New Mexico also filed suit against the EPA and its contractor, Environmental Restoration, in federal court. [New Mexico v. U.S. EPA, Case No. 1:16-cv00465 (D. N.M., filed May 23, 2016).] The federal court litigation seeks more than $136 million in damages associated with loss of revenue from recreation, tourism and agriculture. However, on January 13, 2016, the EPA, guided by the U.S. Department of Justice, concluded that the EPA could not be held liable under the Federal Tort Claims Act. The EPA contended that the spill occurred while the EPA was acting under its discretionary function. New Mexico has six months to challenge this decision in the U.S. District Court.
The U.S. Supreme Court’ ruling significantly thwarts New Mexico’s recovery efforts. In addition, the Court’s rejection of New Mexico’s case against Colorado may have ramifications throughout the West. With thousands of abandoned mines scattered throughout the western United States, there is a need for clear legal precedent to ensure that the next mine cleanup is met with the proper response and reimbursement.
(Christina J. Bruff, JEG)
