New Mexico Attorney General Hector Balderas says neither Colorado nor the EPA have made long-term, substantive efforts to address the errors that led to the mine spill

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FARMINGTON — New Mexico’s top prosecutor sent scathing letters to the U.S. Environmental Protection Agency and the state of Colorado this week, criticizing their responses to the Gold King Mine spill.

Attorney General Hector Balderas wrote in letters obtained by The Daily Times that he is disappointed over the parties’ unwillingness to cooperate with New Mexico "diplomatically and outside of court."

The letters, both dated May 18, were addressed to EPA Administrator Gina McCarthy and Colorado Attorney General Cynthia Coffman.

Balderas wrote that neither Colorado nor the EPA have made long-term, substantive efforts to address the errors surrounding the disaster — when an EPA crew working in August near Silverton, Colo., triggered a blowout that released 3 million gallons of mine waste into the Animas River.

The accident sent a toxic yellow plume flowing through New Mexico and the Navajo Nation, where many residents rely on the river for drinking water and agricultural uses.

Many citizens were "robbed from the valuable lands they depend upon" after the mine spill, Balderas wrote.

Balderas today declined to comment beyond what was in the letters.

State agencies have previously threatened legal action over the incident. In January, the New Mexico Environment Department announced its intent to sue the EPA, the state of Colorado and the company that owns the mine. Utah and the Navajo Nation have also threatened lawsuits.

A representative from the Colorado Attorney General's office declined to comment for this story, citing the possibility of litigation.

In an email to The Daily Times, EPA spokeswoman Christie St. Clair said the agency takes full responsibility for the spill, but she did not address the letter from Balderas.

She wrote in the email that the EPA has reimbursed various agencies for costs incurred during the response to the spill. She also wrote that the federal agency has developed a long-term monitoring plan for the future.

The NMED has criticized the EPA's science in the past, though, arguing the agency cherry picks data in an effort to skirt accountability. Department officials have disputed the EPA's assessment that the Animas River has returned to pre-event conditions, noting that the agency adopted recreation screening levels for exposure in the wake of the spill.

The standards — based on what's safe for campers and hikers — establish acceptable levels for lead in soil sediment at 20,000 parts-per-million. Meanwhile, the EPA's traditional screening levels for lead in residential soil is 400 ppm.

Speaking at a water conference in Farmington earlier this week, NMED's Chief Scientist Dennis McQuillan said the recreational screening level is arbitrary and doesn't apply to how local residents use the river.

"Not only is it a bad number, it's just bad science," McQuillan said.

The NMED is pursing federal funding for a long-term monitoring plan of its own, which McQuillan said will be more in-depth than the EPA's. He said the department has asked for $6 million to conduct the studies, but the EPA has only provided $465,000 so far.

St. Clair, the EPA's spokeswoman, said the agency has allocated $2 million in funding for state and tribal monitoring plans.

"Some entities have applied, some have not," she said.

In his letter to the EPA, Balderas urged the agency to consider meeting the reasonable demands for compensation and long-term monitoring of damages from the spill.

"Your immediate action is paramount to ensuring justice for New Mexico," he wrote.

Brett Berntsen covers government for The Daily Times. He can be reached at 505-564-4606. 

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