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They Blew Us Off – Insights into the State of New Mexico’s Suits Against the EPA and the State of Colorado

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Former Counsel
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by Maribeth M. Klein

While speaking at a recent conference on natural resource damages, the Secretary of the New Mexico Environment Department, Ryan Flynn, outlined New Mexico’s grievances against the U.S. Environmental Protection Agency (“EPA”) and the State of Colorado in the wake of the disastrous release from the Gold King Mine into the Animas River on August 5, 2015. It is no wonder New Mexico ultimately filed suit.

According to Secretary Flynn:

  • Neither EPA nor the State of Colorado bothered to notify New Mexico of the massive plume of contaminants headed its way.  (New Mexico received notice from a Ute Indian Tribe official, one day after the release.)
  • EPA misled New Mexico about the dangers posed by the release.  When initially explaining the hazardous metals contained in the release, EPA presented a fundamentally misleading graph (without the underlying data) that significantly understated the risks posed to New Mexicans.
  • EPA told New Mexico that it would have a mobile lab to test water quality by Saturday, August 8, 2015.  It never delivered.   Instead, over the weekend, New Mexico pulled together its own resources for a mobile lab and began testing on Monday, August 10.
  • EPA and the State of Colorado are not holding themselves to the same high standards for site investigation that it routinely imposes on the regulated community.  Notably, EPA and the State of Colorado have set cleanup levels based on recreational use, ignoring the fact that there are numerous households along the river as well as agricultural and public drinking water uses.
  • EPA maintains that pre-event conditions have been achieved.  New Mexico begs to differ in light of the orange sediments remaining in the river and people’s backyards and fields.
  • New Mexico estimates that it will cost approximately $6 million over five years to cleanup the New Mexican portion of the Animas River and its sediments and ensure the safety of New Mexicans.  EPA has made $465,000 available to New Mexico, with conditions on its use (i.e., no agricultural crop testing).

In short, from Secretary Flynn’s viewpoint, New Mexico’s concerns were not, and are not, a priority to EPA and the State of Colorado.  New Mexico tried repeatedly to have its concerns addressed through diplomatic efforts but, in Secretary’s Flynn’s words, “we were blown off” by EPA and the State of Colorado.