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Landmark Settlement Case Announced in Gold King Mine Legal Case

FOR IMMEDIATE RELEASE
August 5, 2020

GOLD KING MINE LEGAL CASE LEADS TO REMEDIATION, CASH, SITE EVALUATIONS AND ON-GOING MONITORING
Ground-breaking Deal Protects Future Water Quality; Concludes Intense Negotiations
 
 

SALT LAKE CITY—Today, the Office of the Utah Attorney General announces a landmark settlement with the Environmental Protection Agency (EPA) that will provide more than $220 million for remediation efforts in historic mining districts that pose an ongoing threat to Utah’s waterways and environment. The State of Utah will join forces with the EPA to monitor and clean-up these mining areas, even those located in other states.
 
Additionally, the State of Utah will receive $3 million in water quality grants from the federal government for projects located in Utah. Further, the EPA will initiate and bear the cost for evaluations at multiple Utah sites (costs per site may exceed $200,000) to determine if further remediation is necessary.
 
In exchange for all these benefits, the State will dismiss its tort and CERCLA claims against the EPA and EPA contractors. While the past five years of water monitoring shows no sign of impact to public health or the environment, the settlement with EPA allows this case to be re-instated if future evidence of harm due to the blowout emerges.
 
This deal ends a lawsuit filed after mine waste spilled from the Bonita Peak Mining District’s Gold King Mine in 2015. An EPA contractor accidentally caused the release of millions of gallons of toxic water which flowed into the Animas and San Juan rivers, also impacting Lake Powell in August of that year. 
 
Utah Attorney General Sean D. Reyes says the deal will ensure that future generations are protected from toxic mine waste in the affected area and other abandoned mines in and outside the state by gaining unique concessions that ensure action from the EPA, and which will allow the State of Utah to partner with the agency on projects that would otherwise be ignored in the foreseeable future. 
 
Important facts about the current status of the Gold King Mine Accident:

  1. The Surface Water is Clean:  DEQ has been monitoring the San Juan River and Lake Powell since the release in 2015. There is no evidence that the metals from the release are impacting public health or the environment.  DEQ continues to conduct studies on the sediments in Lake Powell to ensure no long-term impacts.  DEQ also continues to work with EPA and other jurisdictions to resolve abandoned mine discharges throughout the San Juan River watershed.
  2. Assurances for Future Water Quality: Also in the settlement, EPA has committed to providing $3 million in water quality grants to the Division of Water Quality. These water quality grants will be used to address challenging water quality problems in Utah such as harmful algal blooms in Utah Lake, protection of Utah’s drinking water aquifers, and incentivizing pollution reduction from unregulated agricultural sources. 

Response from Chief Criminal Deputy Spencer EAustin (who oversaw day-to-day operations of the case):

“Utah is fortunate Attorney General Reyes has such extensive environmental and complex-litigation experience. He was actively involved in this case and aggressively litigated and then aggressively negotiated a very favorable outcome on behalf of the people of Utah.

“Over my 45-year legal career trying cases, including my former partners and I handling some of the largest environmental cases in the nation, I have never seen a more favorable settlement for a plaintiff who, like the State of Utah in this case, ultimately lacked evidence of damages. In tort cases, you not only have to prove someone did something wrong, you must prove there is actual harm or damages resulting directly from that wrongdoing. Without evidence of harm to public health or the environment after years of monitoring, the State would have a difficult time at best proving its damages.

“Here, the State is trading away the uncertainty of an increasingly difficult case that would cost millions of dollars over many more years in exchange for the certainty of immediate benefits that will directly protect and positively impact Utah now and into the future.

“The State is getting a unique mix of assets: significant remediation commitments for very real threats, cash for Utah water quality projects, environmental monitoring and testing paid for by the EPA, assurances that Utah has a seat at the table for important decisions about mitigation in areas even outside our state borders and the safety net of being able to re-open the case should evidence of harm begin to arise.

“We anticipate difficult economic times ahead due to the COVID-19 crisis, and our settlement solidifies these commitments ahead of any kinds of cuts or reorganizations in the federal government.

“The Utah Attorney General’s Office would like to thank the Governor, the Utah Legislature, the Department of Environmental Quality and the Division of Water Quality for their support in this case. We would particularly like to acknowledge the hard work from leadership and many others at Utah DEQ, DWQ the Attorney General’s Office, outside counsel Peter Hsiao, and those at the EPA, who assisted in and will work on mitigation efforts moving forward. ”

Response from Utah Attorney General Sean D. Reyes:

“After years of intense litigation and negotiations, we are very pleased that millions of dollars can now be spent towards mitigation, remediation and assuring water quality in Utah rather than years of more litigation, trial and appeals. This is what cooperative federalism looks like—a true federal and state partnership.

“Protecting the people, public health and environment of the State has always been the top priority in this case. Our two goals were simple.  First, get the federal government to clean-up massive amounts of waste still lurking in many historic mining districts including the one that caused the Gold King Mine blowout.

“We have achieved that goal through litigation and now settlement. We are highly encouraged the EPA has stepped up and committed hundreds of millions of dollars toward cleaning-up several dangerous mining districts containing billions of gallons of potentially harmful substances that threaten Utah if they are released. Further, our agreement with the EPA allows Utah to work as a partner in the remediation and monitoring of these areas to help ensure the State’s best interests are protected.

“Our second goal in filing our case was to ensure our federal partners paid for any harm caused by the blowout. We had to file our case when we did and litigate as aggressively as we did with the facts we had at the time. We had to assume the worst–that long-term monitoring would eventually show harmful effects to health and the environment–and that such effects would coincide with illnesses and other impacts directly traceable to the Gold King Mine blowout.

“Over time, though, as consistent monitoring and Utah’s own top water quality experts determined no harmful impacts occurred, and no detriment to human, animal or plant life manifested, our ability to prevail at trial diminished significantly.

“We would have expended several millions of dollars on both sides continuing litigation to trial and inevitable appeals. But we thought putting money towards remediation instead of litigation made more sense; particularly in light of our own COVID-19 budget constraints and the likelihood that we may not prevail at trial.

“Again, this is the best possible outcome for Utah given the reality of the facts and the evolution of this case. We thank the EPA for seeing the merits of settlement and for its cooperation in crafting this resolution that truly benefits both sides.”

Response from Utah Department of Environmental Quality Executive Director, Scott Baird:

“This settlement will enable DEQ to improve and protect water quality and human health across the state. The staff, scientists and engineers at Utah DEQ work tirelessly to safeguard and improve Utah’s air land and water. We are pleased that EPA has taken responsibility and is committed to working with Utah.”

Key Elements of Settlement:

  • Prior to the settlement agreement, Utah’s Office of the Attorney General recovered the majority of the state agencies actual response costs following the Gold King Mine release. This totaled more than $500,000. This amount is in addition to the recovery under the settlement.
  • A commitment from the EPA to pay for costs of ongoing Superfund (CERCLA) response actions in the Bonita Peak Mining District and other mining sites upstream from Utah in an amount expected to be more than $220 million. While funds will not be paid directly to the State, they will be used specifically to mitigate direct threats to Utah, eliminating or reducing discharges from the mines and improve downstream surface water quality in Utah. Utah will be gaining the benefit of more than $220 million in remediation expenditures.
  • A “seat at the table” for Utah in ongoing and planned remedial actions in the Bonita Peak Mining district and other contaminated areas. The EPA will provide Utah meaningful and substantial involvement in the Superfund response actions at the Bonita Peak Mining District to improve downstream water quality. This type of official collaboration for a site located in another state is rather unprecedented.
  • Also in the settlement, EPA has committed to providing $3 million in water quality grants to the Division of Water Quality. These water quality grants will be used to address challenging water quality problems in Utah such as harmful algal blooms in Utah Lake, protection of Utah’s drinking water aquifers, and incentivizing pollution reduction from unregulated agricultural sources. If these grants for any reason are not provided to Utah, the State may reinstate the Lawsuit.
  • In addition to upstream response actions, EPA will initiate and pay for removal site evaluations in Big and Little Cottonwood Canyons in Salt Lake County, in the Lisbon Valley area of San Juan County, and at the Ophir Mining District in Tooele County (each evaluation can cost $200,000 or more).  If it weren’t for this settlement, these site evaluations would likely not occur. Depending on the findings, the site evaluations may lead to other remedial actions which may further improve water quality in the San Juan River and Lake Powell.
  • Finally, the settlement provides a “re-opener” allowing for Utah’s Superfund (CERCLA) claims tied to the Gold King Mine release to be reinstated if new data demonstrates a risk to human health.

Questions and Answers

Q–Originally, the State asked for $1.9 billion dollars in damages.  What happened to that claim?
A–The $1.9 billion figure was based on a worst possible scenario; namely, the anticipated costs to dredge the San Juan river as well as Lake Powell and was based on past cleanup efforts at similar sites with sediment contamination in other states.
However:

  1. It is not possible to definitively pinpoint damages in this case.  Because of the number of mines in the Bonita Peak Mining District that have been slowly leaching wastewater into the rivers over time, it is impossible to pinpoint which sediment is from the Gold King Mine Accident and which was already present.  Proving damages—a key element of this case—would have been difficult if not impossible to prove.
  2. Dredging the rivers and Lake Powell would be a very invasive, long and expensive process.  The runoff has settled into the bottom of the rivers and Lake Powell, where undisturbed, it is not posing harm.  Water quality monitoring of all the waterways have determined the water is safe for humans and is sustaining wildlife.  Dredging activity, however, would produce unpredictable results and would be potentially unwise as well as extremely expensive.

 
In summary, Utah filed a $1.9 billion claim for damages caused by heavy metals release into the San Juan River and Lake Powell. The claim was based on sediment remediation costs incurred at other sites and a “worst-case scenario” for the cleanup. It was necessary for Utah to file this complaint when it did due to the statute of limitations.  If the complaint had not been filed, the state would have lost its claims.
 
Q–What about the Native American Tribes and other states that have also been affected by the Gold King Mine accident?
A– Native American litigants are seeking their own legal action, which is pending. Colorado has decided not to pursue legal action. New Mexico’s case is currently pending.
 
Q–Is the water in the Animus, San Juan rivers and in Lake Powell safe?
A–Yes. And it has been since shortly after the blowout. All our monitoring has indicated no harm to humans, wildlife, plants or other biota. 
 
Q–Why did Utah file a claim if it’s been safe?
A—Utah officials did not know at the time what long term effects the blowout might have or how the results of initial monitoring might change. The relevant statute of limitations would not let us monitor for years before deciding to file a case. We had to file when we did to preserve our rights. 
 
 

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State of Utah to File Notice to Sue Environmental Protection Agency

SALT LAKE CITY Feb. 12, 2016 – As the investigation into the Gold King Mine spill continues, Utah Attorney General Sean Reyes will file notice of claim against the federal government for its role in the disaster. Recently, the Utah Department of Environmental Quality (DEQ) discovered that water sample results taken by the Environmental Protection Agency (EPA) in late 2015 after the spill showed elevated levels of metals. The results had not previously been shared with the State of Utah.

“From the beginning we have evaluated Utah’s legal options to ensure the EPA lives up to its promise to be fully accountable and transparent – and to make our citizens and environment whole,” said Utah Attorney General Reyes.  “After the spill, we waited to take legal action because in good faith we hoped that cooperation with the EPA could bring more rapid reimbursement and remediation.  Perhaps there is a still a chance for that to happen, but Utah needs to be in a position to file a lawsuit if the federal government is not more responsive and transparent.  The discovery that the EPA did not share relevant information is a cause for serious concern and could lead to additional claims after we have fully investigated that omission.”

The action will put all parties on notice that Utah intends to sue the federal government under RCRA and the Clean Water Act and begins the litigation process.

“It’s critical that we ensure that the EPA, and any other potentially liable entities, are held legally responsible not just for short term effects but for damage that may not be known or understood for years to come,” said AG Reyes.

Upon notice of the disaster, a team of lawyers from the Office of the Utah Attorney General lent support to the vitally important actions of its clients including the Utah Departments of Environmental Quality and Public Safety – and their Divisions of Water Quality and Emergency Management. These agencies began immediate monitoring of impacts to Utah’s waters and evaluating short and long-term health, environmental and recreational impacts to Utah citizens and tribal nations along the San Juan River.

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