The photographs shocked the nation. The Animas River had been turned mustard yellow as it meandered through a Colorado national forest into Arizona, New Mexico, Utah and onto tribal lands. Federal bureaucrats denied responsibility and, when sued, argued they were not liable for their tortious conduct. Then, to cover up for their incompetence, they declared hundreds of thousands of acres of land "toxic" and under federal civil and criminal jurisdiction.
But in a Washington, D.C., courtroom, the landowners and others are fighting back.
In August 2015, the Environmental Protection Agency was in charge at the abandoned Gold King Mine near Silverton, Colo., when a 3-million gallon flood of dangerous mine waste, including 880,000 pounds of toxic chemicals (lead and arsenic), blasted through the mine's adit, through a creek, into the river and downstream. Later, Rep. Rob Bishop, R-Utah, declared, "There was nothing unintentional about [it]. [EPA] fully intended to dig out the plug…."
Incredibly, with EPA's on-scene coordinator on vacation, his replacement, contrary to his express instructions, removed material from the face of the mine, causing the blowout.
Despite then-EPA Administrator McCarthy's statement that the "EPA is taking responsibility" for the "tragic and unfortunate incident," it refused to pay the $1.2 billion in claims stating federal law made it immune from liability. Lawyers for the slowly-developing Trump administration made the same argument in filings in February; the issue is now before EPA Administrator Pruitt.
Unfortunately, damage to waterways is not the only mess President Barack Obama's EPA left behind.
In 1980, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund) requiring designation of hazardous waste sites that need prompt remediation. In 1986, a frustrated Congress mandated that the EPA designate only sites posing a "risk to human health and the environment," and not those, such as mining sites, with only trace toxic metals, which the EPA assumed, inaccurately, to be present throughout the site.
One reason was to protect landowners. Designation has serious legal and financial consequence for anyone who, over the decades, owned interest in the land; as potentially responsible parties (PRPs), they are liable for the full cost of cleanup.
Little wonder that, when the EPA, in a brazen attempt to obscure its responsibility, designated the "Bonita Peak Mining District" — a geographically diverse area covering more than 100,000 acres in San Juan County, encompassing three drainages, 46 specific mine sites, and two study areas (and not a true "mining district") — as a vast new Superfund site, it got attention. Sunnyside Gold Corporation, which, under the watchful eye of the EPA and state and local governments, engages in private remediation throughout the area, was fearful the designation will not only scuttle the millions of dollars it invested in remediation but also will end the willingness of mine owners to engage in voluntary remediation. Sunnyside sued.
Last month, represented by Mountain States Legal Foundation, Sunnyside drew the friends of the court support from two national mining groups and Frank Anesi, who owns interest in several patented mining claims in San Juan County and in the Galena Queen Mine. Not only does the designation make him a PRP, the stigma attached to his property in or near the site drastically decreases property values and his ability to sell or use his property.
Anesi argues the EPA evaluated only 19 of the 46 mine sites and two study areas it included, in direct contravention of the mandate by Congress and, incredibly, the EPA's own regulations. Also, in an attempt to circumvent Congress, its regulations, and the holding of the nation's top appeals court, the EPA coined a new term, "commingled release," to justify listing sites it had not evaluated. Finally and logically, if the EPA did not evaluate the sites, it could not determine if any were "commingled." The EPA decision is illegal, Anesi argues.
It appears Pruitt has one more Obama mess on his already full plate.
William Perry Pendley is a contributor to the Washington Examiner's Beltway Confidential blog. He is president of the Mountain States Legal Foundation, has argued cases before the Supreme Court and worked in the Department of the Interior during the Reagan administration. He is the author of "Sagebrush Rebel: Reagan's Battle with Environmental Extremists and Why It Matters Today."
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