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Court: EPA must require hard-rock mines to pay cleanup costs

By February 1, 2016December 1st, 2022Uranium Mining & Waste, McKinley
By Rebecca Moss | Santa Fe New Mexican
Mining companies and the federal government may soon be responsible for cleaning up toxic waste that results from hard-rock extraction, an issue that has plagued New Mexico for decades.
On Friday, the U.S. Court of Appeals ordered the Environmental Protection Agency to finalize regulations by December for hard-rock mining — such as iron, copper, lead and uranium — that include requirements for companies to cover waste cleanup costs. The ruling was issued in a case brought by several environmental organizations, including New Mexico-based Amigos Bravos.

The court order outlines the potential for the EPA to create similar requirements for the coal, chemical and oil industries by 2020.
National concerns about mine reclamation were raised in August, when 3 million gallons of contaminated water spilled into the Animas River from the abandoned Gold King Mine near Silverton, Colo. Farmers in northwestern New Mexico, including many from the Navajo Nation, were forced to halt agriculture as opaque, rust-orange water flowed from the Animas to the San Juan River.
Under the court order, however, the new EPA regulations will apply only to ongoing and future mine production, not the thousands of abandoned hard-rock mines scattered across New Mexico and the West.
Environmental groups hailed the ruling as the first significant step toward preventing future devastation like the Gold King Mine spill, while the National Mining Association said it was “obviously disappointed” by the ruling.
“Our view is we already have very strong reclamation [rules] that require financial assurance,” said Luke Popovich, a spokesman for the National Mining Association. “This is something the greens drove the EPA to do.”
As of Friday evening, EPA officials had not responded to a request for comment on the court order.
Amanda Goodin, an attorney for San Francisco-based Earthjustice, an environmental law firm, said the court order “forces EPA to get moving.” Earthjustice represented six environmental groups in the case against the federal agency.
Goodin cited billions of dollars in reclamation work that was evaded at mines in Idaho, where lead leached into the drinking water.
“When you expose people to these toxins for long periods of time, it does some pretty gnarly things,” she said.
Rachel Conn, projects director for Amigos Bravos, an organization focused on conserving and protecting waterways in New Mexico, said abandoned mines throughout the West have been left without reclamation work, putting the financial burden on taxpayers. “Companies have walked away and left a mess.”
Many owners of the old mine sites are no longer alive to take financial responsibility, and many corporations have filed for bankruptcy to avoid cleanup costs, she said. “It is critical to get these rules in place as soon as possible so we aren’t exposed to future liability.”
New Mexico is one of the nation’s leading mineral producers, with 226 active mines as of 2014, and state and federal revenues totaling $63 million.
One of the largest mining producers in the state is Freeport-McMoRan Inc., which owns the Chino and Tyrone mines outside Silver City. Tyrone alone is 9 square miles and produces 100 million pounds of copper per year. From above, the mines look like elaborate sand structures, swirling pathways of gradient land. The miles of landscape are devoid of natural foliage and dotted with black pools of mining waste.
Following reports of groundwater contamination and migratory bird deaths at its mine sites — and nine years of litigation — Freeport-McMoRan agreed in 2009 to begin reclamation work on unused sites.
But in December, CEO James “Jim Bob” Moffett stepped down from his position under pressure from activist investor Carl Icahn, who has criticized the mining company’s move into oil and gas in 2013. Gerald J. Ford, the board’s lead independent director, was elected non-executive chairman.
Allyson Siwik, executive director of the Gila Resource Information Project, said the company’s shake-up and financial concerns speak to the urgency for the new EPA regulations in New Mexico.
“They are still mining and have these huge sites they have to clean up,” Siwik said. “So financial assurance is an amazingly strong tool.”
Eric Kinneberg, a spokesman for Freeport-McMoRan, said the company is transparent about its reclamation work. The company’s website says it completed 2,590 acres of reclamation work in 2014.
Friday’s order by the Court of Appeals cites “gaps” in existing mining regulations. In 1980, the Comprehensive Environmental Response, Compensation, and Liability Act required the EPA to create requirements for waste cleanup, but the EPA didn’t order any regulations until 2009, according to the court.
“EPA has repeatedly postponed the completion date for the hard-rock mining regulations,” the order reads, stating that the agency must provide “financial responsibility consistent” with the “production, transportation, treatment, storage, or disposal of hazardous materials.”
The court found that those living in areas contaminated by mining waste were likely to face “actual or imminent” injury to their health, environment or economy due to mining activity and waste.
Talia Boyd, the Western New Mexico organizer for Conservation Voters of New Mexico, works with residents in McKinley County and the Navajo Nation, where 520 abandoned uranium mines are currently being reclaimed through a federal Superfund project that relies on taxpayer dollars.
“Superfund cleanup is such a long, drawn-out process,” she said. “… Communities are tired and weary of the whole process because they don’t feel like anything is getting done.”
Water contamination has been loosely linked to high cancer rates in the area, particular cancers of the kidney, stomach and lungs, according to the advocacy group McKinley Community Place Matters. Boyd said residents report gray and brown water flowing from their taps. One family reported seeing a neon yellow rim along an arroyo while they were herding sheep in low water, wearing tennis shoes. Within a year, their toenails had fallen off, Boyd said.
Boyd said none of the health impacts has been studied enough to tie them directly to uranium contamination, but she said the community is hoping such research will be conducted.
Without data on how mines affect nearby communities, residents are stripped of their voices, she said.
New uranium mining projects are being proposed even as communities seek to remedy the damages of long-abandoned mine sites. Currently, Mount Taylor Mine, a former uranium mine that’s since been designated as a cultural property of the Acoma and Laguna pueblos, is under consideration for reactivation.
“They say, ‘We can put the water back to pre-existing conditions,’ ” Boyd said. “That has never happened to this day.”