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Two Utah lawmakers on Tuesday speculated that federal environmental officials might have deliberately triggered the Colorado mine release that sent 3 million gallons of toxic sludge into a San Juan River tributary, and asked Utah Attorney General Sean Reyes to investigate the possibility.
Reyes was briefing the Utah Water Development Commission when Sen. Margaret Dayton, R-Orem, suggested the Environmental Protection Agency could have breached the Gold King Mine in an effort to justify Superfund designation for the long-dormant gold mine.
Rep. Mike Noel, whose district covers Utah's southeastern corner, affected by the spill, joined Dayton in theorizing — neither offered evidence — that the EPA may have caused the release to help environmentalists put a halt to mining.
Reyes said he would inquire into the matter when he visits with EPA officials at the mine Wednesday to assess the spill site, but a Salt Lake City environmentalist blasted Dayton and Noel's claim as "ridiculous, unprofessional, paranoid nonsense."
Zach Frankel, executive director of the Utah Rivers Council, noted that environmental activists agree EPA holds a lot of blame — for causing the release and for its slow response to it — but he believes Noel's suspicion is misplaced.
"To deliberately cause this would not only violate the Clean Water Act, there would be a whole set of criminal charges that could be filed," Frankel said in an interview.
He challenged the lawmakers to channel some of their outrage toward oil companies that contaminate Utah rivers.
"A year ago when an oil company polluted the Green River there were so many state interests willing to look the other way, but when EPA does it, suddenly it's a conspiracy," Frankel said.
In May 2014, an old well operated by S.W. Energy Corp. near Moab blew out, spilling thousands of barrels of hydrocarbon-laced water into the river just above Labyrinth Canyon. Frankel criticized the Utah Department of Environmental Quality for failing to adequately monitor water quality.
"They have no proof of contamination because they didn't go downstream to sample. They asked me what would be the purpose of that," Frankel said. "If it's an oil company, we don't need to sample, but if it's the EPA, you want damages."
In contrast to its response to the S.W. Energy blowout, he said, DEQ threw lots of resources at the Gold King spill as the acidic plume, laden with arsenic and other heavy metals, washed down the Animas and San Juan rivers on its journey to Lake Powell.
While questions remain about the spill's long-term impacts, monitoring indicates the short-term crisis has passed.
"The numbers show we are below the standard of concern for irrigation and stock watering," said Alan Matheson, DEQ executive director.
Matheson said his agency has run up a huge tab confronting the crisis, dispatching numerous officials from the Division of Water Quality to the San Juan to conduct monitoring.
"We flew samples to Salt Lake to get results back within 24 hours," Matheson said. "We thought it key the folks in Utah know the impact as soon as possible. We have incurred significant expenses, significant overtime taken away from their normal jobs."
Reyes said he intends to recoup these costs, which EPA Administrator Gina McCarthy has promised would be paid, as well as help recover damages for ranchers and farmers who have had to haul water because the mine waste contaminated their irrigation supply.
"We need to be compensated for the emergency response and long-term remediation. We want someone to pay and at the very least it should be EPA and other culpable entities," Reyes said, referring to EPA contractors and the mine owners. "There are a lot of monitoring costs up front and over the long haul."
His office is exploring a variety of legal options and intends to wait to see how EPA responds to the affected states' claims before deciding on a course of action.
"We don't believe the drinking water will be impacted, at least initially. We haven't sent the spikes we feared might happen, but the million-dollar question would be: What is the longer-term impact? How is this going to affect crops that would be irrigated?" Reyes said.
Other long-term impacts could include the accumulation of toxic metals in sport fish species, harm to the many endangered fish species that depend on the San Juan, and the possibility of metals becoming airborne.
But Dayton, a vocal critic of environmental regulation, said she is not comfortable waiting to seek legal redress.
"The longer we wait, the more damage that will happen," she said.
Reyes assured that pausing would not be a sign of weakness, but is a necessary step for crafting the most effective and appropriate legal strategy.
"Prudence would dictate that we evaluate first what the EPA is willing to do," Reyes said. "If I am disappointed and they don't live up to the commitments they made, we need to avail ourselves to potential legal actions. Other states have fined federal agencies, though there is legal questions over the enforceability of such fines."