Shortly after their test results are posted, Allison Majure, communications director for the department, stands in front of roughly 100 people gathered for a nightly update in Farmington after millions of gallons of pollution from an abandoned gold mine poured into the river. The meeting comes a week after drinking water intakes for Farmington and Aztec had been shut off and farmers and ranchers were told to stop using irrigation ditches or well water for crops, livestock or homes.
And this is the first most of them have heard of anything resembling test results on what, exactly, was in the river when it turned a toxic, mustard color. Even some of the public officials present to speak have not yet heard that test results were available.
Ire is accumulating, and though audience members have been asked to submit all their questions in writing, they quickly devolve into shouting them out to officials.
The department's analysis, Majure says, has determined that the heavy metals in the river never failed to meet drinking water standards. She pulls up the report on her phone to read to audience members the findings that "all of the parameters that we tested for, the heavy metal parameters between Friday, August 7 and Sunday, August 9 were below applicable state water quality standards. That time frame is when the plume was here."
An angry voice comes from the audience: "So what you're saying is when the river was orange, it was safe to drink?"
Majure is quick to respond: "I wouldn't have drunken a glass of orange water from that river," and she adds, "These aren't the rest of the Safe Drinking Water Act constituents, these are just the heavy metal ones. So that doesn't translate into, 'The water was safe to drink,' but it does tell you that the concentration of the plume when the river was orange, that the suspended and dissolved substances, was below water quality standards. But that does not mean that the water was safe to drink."
It's a bizarre juxtaposition. The US Environmental Protection Agency is charged with enforcing standards both for treating water and for trying to keep pollution from happening in the first place. Or, at least, on paper, that's the agency's job.
The two cornerstone pieces of federal legislation dictating the quality of what comes out of our taps at home and what protections are promised to its headwaters, the Safe Drinking Water Act and the Clean Water Act, both date to the 1970s. Yet even within those rules, the EPA is forced to balance economic concerns against environmental ones, to consider the average rather than the vulnerable edges, and to fight political battles that shift with elections. And the rules don't really equate to "safe" or "clean," despite their names.
"People think 'Oh the drinking water standards, that must be the most protective thing there is,' but that's not always the case," says Rachel Conn, interim executive director of water watchdog group Amigos Bravos. "For some parameters, there are water quality standards that protect aquatic life that are more protective."
Heavy metals lingering in waterways can bio-accumulate in fish over time, so while the water itself might not exceed recommended heavy metals standards, if a person eats the fish, they could be consuming a heavy dose of metals alongside.
"While I think it's encouraging that drinking water standards are being met, that doesn't mean that it is safe for all users and uses of the river," Conn says.
Water-quality tests of the Animas River show that during the period of the plume, the primary contaminants were heavy metals—aluminum, arsenic, barium, cadmium, cobalt, copper, lead, manganese, iron, mercury, molybdenum, nickel and zinc among them.
The state environment department has linked the river's yellowish color to trace metals attached to suspended sediments, mostly iron and manganese. Iron particles, in particular, take credit for the color, and iron isn't even on the list of contaminants the EPA's National Primary Drinking Water Standard requires testing for, nor are many of the other heavy metals found in the plume.
One of the big gaps with the federal rules is that they don't treat all pollution the same. The Clean Water Act, which targeted what are known as point-source industrial polluters like factories, power plants and refineries, reduced the amount of phosphorous wastewater treatment plants can release, banned phosphate laundry detergents (a food source for harmful algae) and restricted mercury, DDT and other toxins.
But the act does not regulate run-off from garden chemicals, sewer overflows and agricultural fertilizers, all sources of pollution defined as "nonpoint." Abandoned mines, for example, and their associated acid drainage are also considered nonpoint sources of pollution under the act and not subject to the same stringency as a point source of pollution, like a wastewater treatment plant.
SFR asked six different EPA staff members to confirm that Gold King Mine is still considered a nonpoint source of pollution; every one of them passed the buck on to someone else with the agency to answer.
Only this summer did the EPA finalize revisions to the Clean Water Act that say it even applies to tributaries like Cement Creek, the first recipient of the August waste dump, as well as wetlands areas and other headwaters.
Meanwhile, the Safe Drinking Water Act sets two levels for 90 microbiological, chemical, radiological and physical contaminants: first, a maximum contaminant level goal, an unenforceable target that takes into account sensitive populations like infants, elderly and those with compromised immune systems, and then, a maximum contaminant level, the enforceable standard for public water systems.
At the goal level, there is no known or expected health risk from those contaminants, but the EPA concedes that sometimes the technology won't allow public water systems to meet those goals at a price tag they can afford, so they fall back on the lower level. In setting contaminant levels and crafting treatment plans, the EPA also completes an economic analysis to "determine whether the benefits of that standard justify the costs." If not, the EPA may adjust the desired levels.
Systems serving up to 10,000 people—and more than 90 percent of public water systems fit this criteria—can be granted variances if they can't afford to comply with the Safe Drinking Water Act.
Some communities can't even afford the cost of testing their own water, and so everyone in New Mexico pays 3 cents for every 1,000 gallons to fund testing the state environment department does on behalf of public water systems, including Santa Fe's.
When he woke last weekend to see clouds on the horizon, Kim Carpenter, chief executive officer for San Juan County, says that instead of feeling relief for the farmers who need the water on their crops, he was worried for the river and what a hard rain could stir up in the sediment. Though river restrictions have been lifted and water quality tests so far have not shown "any alarming, staggering numbers," he says concerns with river quality and contamination are not just going to go away, and rainstorms and spring runoff will call for close monitoring.
"There's no question it's an ongoing assessment," Carpenter says.
Normal use of the river has mostly resumed in Northern New Mexico, though the Navajo Nation is still declining to use water from the river for irrigation or homes, and there's an advisory against consuming fish caught from the river, a problem that might continue for years to come. Testing of water and sediment samples will continue, Carpenter says, as will conversations on what to do with the lingering problems upriver.
"We're at the mercy of upstream, so there's litmus tests that are going to have to be looked very close at just because of the fact that we don't want this to happen again," he says.
The county is likely to be involved in ongoing discussions about whether to ask for more federal cleanup help for the upper Animas River, where Gold King is just one among several mines that have been steadily leaking toxins into the river for decades.
"It's pretty concerning to know that there's hundreds of mines up there that are already secreting elements of fluid," Carpenter says. "I think that's something that we definitely need to look very closely at and be able to identify what we're going to do to one, put them on the map, [and] two, what's going to be the ongoing observation with regard to seeing what's happening with those mines, what elements of weather are having an adverse effect on those mines and specifically looking at targeting how to remediate this."
Thousands of abandoned mines lie in the Rocky Mountains, near the headwaters of major rivers that crisscross Colorado and drop into New Mexico, and officials have long recognized the public health risks they pose. Waste rock piles and flooded mine adits perpetually leach heavy metals and chemicals. So, when EPA contractors accidentally breached a dam at the Gold King Mine, releasing a rush of 3 million gallons of contaminated on Aug. 5, it was only the most obvious of problems to hit that watershed.
The mine was already leaking water, and the contractors were working to measure it and figure out how to treat it. The creek and the hillsides Cement Creek cuts through near Silverton, Colo., are often a burnt umber shade that's a familiar marker for historic mining activity; rock stained orange and yellow, heaved out of the earth into piles, is often the most visible of the footprints left from the gold rush.
By Aug. 11, David Ostrander, director of emergency response programs for EPA's Region 8 in Colorado and on-site in Durango, was telling press conference attendees, "In the water quality realm, we're seeing conditions pretty much back to a pre-incident level here in the Durango area."
When a reporter asked about returning to contamination levels that predate mining activity in the area, Ostrander said, "Mining activity in the Silverton, San Juan basin area has a long, long history of many years, and it has contributed sediment deposition from the mines for many years, mostly in the upper reaches of the Animas, but down some into the lower reaches, and so there is a long-term metals impact. So when you say pre-mining, we'd be going way back in time to determine what that was."
The EPA rapidly constructed four ponds to treat the water before it leaves the Gold King site. Sampling and water quality testing is expected to continue as far downriver as Mexican Hat, Utah, far past the Animas' confluence with the San Juan River and approaching where it joins the Colorado River in Lake Powell. The states of Colorado and New Mexico are sampling fish tissue and have not yet reported any effects from the spill.
The Department of the Interior launched an independent investigation into the accident on Aug. 18. Results are expected in 60 days.
As the plume moved from the Durango area to New Mexican communities like Farmington and Aztec, sediments carrying heavy metals have settled along the riverbank. The concentrations of heavy metals found in the water have therefore decreased, according to the EPA. They lie in wait for future storms to stir them back into the water.
The New Mexico Environment Department has called for additional data to track the chemical influence of those metals and predict how far they're likely to migrate downriver, questions as yet unanswered in EPA data.
Colorado and New Mexico's governors and the Navajo Nation all declared a state of emergency in response to the spill. While Farmington and Aztec residents were able to use municipal water from reservoirs that had shut off their lines to the Animas before the contamination arrived, rural residents on well water who might be affected and those in the Navajo Nation, who rely on the river and view it as sacred, were hit harder by the temporary closure.
Navajo Nation residents were among those in Northern New Mexico who had water delivered in 6,000-gallon tanks that at one point were used in fracking operations but were reportedly scrubbed clean by a local trucking contractor. Hydraulic fracturing fluid uses its own host of nearly 700 chemicals, and if the tanks held water from deep underground that had accompanied oil and gas to the surface, their contents could have been radioactive. Reports have since come from the Navajo Nation complaining that the delivered water is as contaminated as the river and that it has an oily appearance.
"We still have some ongoing concerns with the quality of the water that's in the river long before this sludge even hit."
The EPA also delivered more than 1 million gallons of water for irrigation and 36,720 gallons for livestock before irrigation ditches reopened on Aug. 15 for farm and livestock watering; restrictions have been lifted for 1,270 well users within a mile and a half of the Animas, drawing river water to irrigate crops and recreation.
"We still have some ongoing concerns with the quality of the water that's in the river long before this sludge even hit," Carpenter adds.
Nitrates from cattle manure, leaking septic systems and illegal dumping are also are causing issues.
"I think the lesson in many ways has been learned that there has to be something done about this to ensure, number one, this doesn't happen again. Number two, that there's communication on the entire corridor. The initial communication we got from the EPA is that this thing was going to dissipate above Durango, which was absolutely false. This yellow plume came right through San Juan County and went right into the confluence of the San Juan River, which ultimately flows right into Lake Powell," he says. "When 66 percent of the surface water that comes through New Mexico flows right through this county, it is a natural resource that we've got to take care of and we need to protect, and it needs to be protected at the top, all the way downstream."
Collaborations up and down the river, over multiple agencies and governing bodies, may first require some hatchet-burying.
Colorado's Governor John Hickenlooper was photographed a week after the spill drinking a bottle of water from the Animas River—treated with an iodine tablet that would kill bacteria—in an effort to show his comfort with the level of contaminants in the river. New Mexico Environment Department Secretary Ryan Flynn dismissed the move as a "cheap political stunt with zero regard for what is scientifically valid and the health of citizens" during the Aug. 12 meeting in Farmington. Flynn encouraged attendees to explain to anyone who mentioned the governor's actions that "under the best of circumstances, you should not be drinking river water."
Presumably, he means untreated river water.
The EPA has caught plenty of flack for hiring contractors who made a bigger mess than the problem they were sent to solve. But the finger-pointing that has followed ignores the fact that the EPA was created in 1970 to solve the problems—with taxpayer money—Congress didn't have the political will to force private polluters to pay for. The gold boom in the West predated (by more than a century) laws requiring miners to reduce pollution and clean up possible water and soil contaminants from acid mine drainage and heavy metals. In fact, the General Mining Law of 1872, which is still the guiding legislation for mining in the US, not only doesn't call for federal royalties for extracting hard-rock minerals like gold, uranium and copper, it provides mining some of the laxest public oversight of any industry, according to the Natural Resources Defense Council.
The Colorado office of the Bureau of Land Management estimates there are 4,670 mine features in the state that may affect water resources (as well as 10,818 features like open adits and shafts, walls and collapsing structures that likely pose physical safety hazards). Responsible parties have evaporated—people died, companies dissolved or were absorbed into others, mining claims were abandoned and ownership returned to state or federal governments.
The BLM has prioritized the upper Animas and Arkansas rivers in southwest and central Colorado for remediation, but shrinking and erratic funding rendered a plan to clean up 35 mines over six years a perhaps overly optimistic projection, according to the agency's own documents.
Colorado's not alone. By some counts, there are half a million abandoned mines in the US. In September 2014, a southern Arizona town saw a stream run orange when a lead and silver mine flooded, and pollution washed toward the town's water supply. A former open-pit copper mine in Montana has filled with water so toxic that after a flock of migrating snow geese landed and lingered for several days, hundreds of them died; the mine now has a 24-hour bird watch program. Birds that spend only a few hours in the pond are thought to "not be at substantial risk," according to a 2002 consent decree between the EPA and the parties "potentially" responsible.
Maps produced by the New Mexico Bureau of Geology and Mineral Resources show industrial and heavy minerals mining districts scattered throughout the state, with mines numbering in the thousands. But the days of mines left without parties or money to clean them are over here, says Douglas Meiklejohn executive director of the New Mexico Environmental Law Center.
"That isn't going to happen in New Mexico anymore because of the enactment of the New Mexico Mining Act in 1993; that act requires very stringent reclamation, but it also requires the posting of what are called financial assurances so that there is money to clean up and reclaim a mine even if a mining company either walks away or goes bankrupt or disappears," Meiklejohn says.
The 1993 law applies to mines producing marketable quantities of minerals for two years since 1970. It's how Molycorp stays on the hook for the Questa Mine it closed last summer.
Amigos Bravos is currently challenging proposed revisions to existing standards for copper mines from the Martinez administration that the group says would weaken groundwater safeguards for mining and any other industries.
"These are groundwater-specific rules that are reversing decades of practice of protecting groundwater…to make sure all groundwater meets standards, and this new rule allows these sacrifice zones near and under mining companies so that mining companies don't have to treat or clean up to groundwater standards," Conn says.
The newest gold mine development in Colorado, a recent purchase by leading gold producer Newmont Mining, is located just west of Colorado Springs, east of the Continental Divide. Next time, perhaps the downstream problem will head east, toward the Mississippi, not west into the desert. We'll see if anyone pays attention then.
Santa Fe Reporter