EPA’s Attempt to Bury Its Colorado Gold Mine Disaster Is Illegal
by William Perry Pendley
(Mountain States Legal Foundation) DENVER, CO. A western, nonprofit, public-interest legal foundation with decades of experience litigating regarding environmental statutes today filed a friend of the court brief with the U.S. Court of Appeals for the District of Columbia Circuit on behalf of two national mining groups, a Colorado miner, and his company to join in challenging designation of a Superfund site.
Mountain States Legal Foundation (MSLF) for its clients Frank J. Anesi, Anesi Mining Venture, LLC, the National Mining Association (NMA), and the American Exploration & Mining Association (AEMA) advised the three-judge panel that the Obama administration’s Environmental Protection Agency (EPA), pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund statute), designated what it erroneously called the Bonita Peak Mining District (BPMD) and 46 specific mine sites and two study areas as a vast Superfund site in violation of federal law, its own regulations, and a ruling by the Supreme Court of the United States. Thus, the designation must be stricken.
“In an Orwellian twist, the EPA coined a new term, ‘commingled release,’ to justify its listing of sites that fail to meet the requirements of federal law and its own regulations and to circumvent the ruling of the Supreme Court of the United States that barred the EPA from using an ‘aggregation policy,’” said William Perry Pendley of MSLF. “Moreover, because the EPA failed to ‘score’ 29 sites, it has no evidence that they are actually ‘commingled.’”
On August 5, 2015, the EPA triggered a massive release at the Gold King Mine in San Juan County, Colorado that caused three million gallons of heavily mineralized water to be discharged into Cement Creek, which enters the Animas River near the Town of Silverton, Colorado. Shortly after the EPA triggered the release, to obscure and limit its own liability, the EPA created the BPMD—around the Gold King Mine—and made the Superfund designation. Past EPA studies found the area did not merit inclusion on the National Priorities List (NPL).
Sunnyside Gold Corporation, a small corporation, owns former mining claims and other property in the Animas River Valley, in San Juan County, Colorado. As of 1991, all mining ceased on Sunnyside’s properties and Sunnyside immediately began reclaiming its sites, working with the Colorado Water Quality Control Division. In 1996, Sunnyside entered into a consent decree, reviewed by the EPA and approved by a Colorado district court, requiring Sunnyside to complete specific remediation actions on its sites.
In 2003, Sunnyside fulfilled its reclamation duties and the consent decree was terminated, but Sunnyside continued voluntarily reclaiming its sites and surrounding properties, monitored by all stakeholders, including the WQCD, Colorado, the Bureau of Land Management, the Forest Service, local governments, and the Animas River Stakeholders Group. Colorado and local governments opposed efforts by the EPA to add sites in the Animas River Valley to the NPL. Silverton, which relies on tourism to support its economy, believes tourists will avoid Silverton if nearby land were a Superfund site. After the EPA made its designation in the Federal Register on September 9, 2016, Sunnyside filed a petition for review on December 8, 2016, in the U.S. Court of Appeals for the D.C. Circuit.
Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system. Its offices are in suburban Denver, Colorado.
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