# STATE OF COLORI\00

O

John W

. Hickenlooper Governor FFICE OF THE GOVERNOR 136 Stale Capitol Denver, Colorado 80203 Phone (303) 866-2471 Fax(303)866-2003 February 29, 2016
Mr. Shaun 

### L. McGrath Regional Administrator United States Environmental Protection Agency, Region 8 1595 Wynkoop Street Denver, CO 80202-1129
Re: Proposed Listing ofthe "Bonita Peak Mining District" site on EPA's Superfund National Priorities List
Dear Mr. McGrath:
I write to express my support for the proposed listing ofthe "Bonita Peak Mining District" site located in San Juan County, Colorado on the Comprehensive Environmental Response, Compensation and Liability Act, ("CERCLA" or "Superfund") National Priorities List ("NPL") making 

### it eligible for cleanup and assistance

. The Bonita Peak Mining District site consists ofhistoric and on-going releases from 48 mine or mine related sources in three drainages

- Cement Creek, Mineral Creek and the Upper Animas

- which converge into the Animas River near Silverton, Colorado. These sources are contributing to the ongoing releases ofarsenic, aluminum, cadmium, copper, lead, manganese and zinc present in the surface water and sediment and are adversely impacting the environment. Based on the complexity and anticipated costs ofremediating the Bonita Peak Mining District site, it appears that the best program to undertake a comprehensive cleanup is the CERCLAprogram. The Town ofSilverton, San Juan County, Durango, La Plata County, local tribes, and many other interested stakeholders have requested that this site be added to the Superfund NPL. I support this listing, so long as certain protections are put in place to address the concerns ofthe local communities that would be affected by designating this site as a Superfund National Priority. Accordingly, I want to stress the importance that the EPA do all that it can to address the concerns raised by the Silverton and San Juan County officials in their February 22, 2016 letter(attached)

. I share many oftheir
concerns. I am concerned about waterquality conditions worsening before Superfund remedy decisions are finalized and implemented. Accordingly, before moving forward with any plans to stop operating the existing temporary water treatment facility in Gladstone, Colorado orclosing the bulkhead at the Red & Bonita mine site, I urge EPA to consider all interim measures and options available and workFebruary 29,2016 Page 2 of3 closely with the State and local stakeholders to ensure that waterquality conditions do not deteriorate further

. I urge EPA to ensure that adequate funding for this site is provided during each stage ofthe CERCLA process, including listing, investigation, design and remediation so as to avoid any delays or interruptions; to continue to work collaboratively with the state and local officials and health departments to ensure that they have active and meaningful involvement in decision making through all phases ofthe project; to ensure that there is robust and significant community involvement and outreach; to form and fund a community advisory group as soon as practical; to ensure that the best available technologies and technical expertise are utilized during all phases ofthe Superfund process; and to ensure that the community be given technical assistance funding and support to the maximum extent possible.
In addition, the community is also concerned about associated costs to local governments, local businesses and residents

. EPA should continue to make its best efforts to mitigate the negative impacts onthe local economy and strive to ensure that the Superfund cleanup supports the economy ofthe Town ofSilverton and San Juan County. Every effort should be made to alert local businesses to contracting opportunities related to the Superfund investigation, design and remediation

. I encourage EPA to use contracting methods and offerjob training grants that maximize the potential for local employment in the Superfund cleanup process. I support listing the Bonita Peak Mining District site on the NPL List, and urge the EPA to use its best efforts to address the concerns identified above and conduct the cleanup in a timely, effective and collaborative fashion

. With close coordination and careful consideration and response to local concerns, cleanup ofthe Bonita Peak Mining site should be accomplished efficiently with minimal disruption ofthe local community

. Thank you in advance for your consideration ofthe concerns and needs ofthe people ofColorado. Should you have any questions, please do not hesitate to contact me.

Governor

cc: Gary Herbert, Governor ofUtah Susan Martinez, GovernorofNew Mexico Russell Begaye, PresidentNavajo Nation Clement Frost, Chairman Southern Ute Indian Tribe Manuel Heart, Chairman Ute Mountain Ute Tribe U

.S

. Senator Michael Bennet U.S

. Senator Cory Gardner U.S. Representative Scott TiptonFebruary 29, 2016 Page 3 of3
Christine Tookey, Mayor ofSilverton Ernest Kuhlman, San Juan County Commissioner Dean Brookie, Mayor ofDurango Joe Kerby, La Plata County Manager Larry Wolk, MD, MSPH, Executive Director and ChiefMedical Officer, CDPHE Robert Randall, Department ofNatural Resources Martha Rudolph, Director ofEnvironmental Programs, CDPHE Gary Baughman, HMWMD Director, CDPHE Monica Sheets, Remediation Program Manager, HMWMD, CDPHEPO Box 250 Silverton, CO 81433 970-387-5522 February 22, 2016 PO Box466 Silverton, CO 81433 970-387-5766

The Hon. John W. Hickenlooper Governor State ofColorado 136 State Capitol Denver, Colorado 80203-1792
Re: Proposed listing ofthe Gold King mine and other legacy mines in San Juan County onthe EPA's SuperfundNational Priorities List
Dear Governor Hickenlooper: SanJuan County and its only town, Silverton, are genuine Colorado treasures. SanJuan County is not only Colorado's most spectacularly beautiful county, it is Colorado's mostremote and least populated. Unfortunately, it also has one ofthe smallest and lowest-paid 1workforces in the state and, because 87 percent ofthe county's land is ownedbythe federal government, its local governments are among the smallest and most poorly funded inthe state. San Juan County is a uniquely fragile place; not only its ecosystems but, despite its hardy andresourceful people, its economy and its very existence. While local and state officials have worked for years to improve our local economy, we remain heavily dependent upon tourism for our survival. Because ofits position astride the source ofthe Animas and Rio Grande Rivers, San Juan County is at the heart ofa significant portion ofthe west's water supply. Unfortunately, that water supply andthe county's survival have been, and continue to be, gravely threatenedby acid mine drainage from century-old legacy mines, a threat dramatically illustrated by last year's Gold King mine disaster. SanJuan County has been working for over two decades to correct the environmental damage caused by legacy mines. Ourcommunity and local governments have been instrumental inthe Animas River Stakeholders Group, which pioneered a nationally recognized and applauded cooperative effort by government, the environmental community, mining companies and the public to identify and cleanup sources ofcontamination affecting the Animas and its tributaries. While these efforts have been extraordinarily successful in identifying and actually cleaning up sources ofcontamination 2 instead ofsupporting legions oflawyers pursuing endless litigation, they have been limited both by lack offunds andthe absence ofany Good Samaritanlegislationprotecting cleanup efforts from potential liability. In the immediate aftermath ofits Gold King spill, EPA Director Gina McCarthy came to Colorado and rightly promised the people ofthe state andthe nation that the EPA would hold itselfto the highest standard in correcting the damage thatresulted from the spill. Since then, the EPA has proposed that the Gold King and

1 Labor Market Information, Quarterly Census ofEmployment and Wages Program, Second Quarter 2015

2 Abandoned Mine Lands: A Decade ofProgress Reclaiming Hardrock Mines, September 2007, United States Department ofAgriculture Forest Service Publication No. FS-891, United States Department ofthe Interior, Bureau ofLand ManagementPublication No

. BLM-W0-07-013-3720other leaking mines inthe areabe listed onthe SuperfundNational Priorities List so a comprehensive cleanup canbe designed, funded and completed to dramatically improve water quali-cy inthe Animas Riverbasin. In connection withthat proposal, EPA officials at the national and regionallevels have repeated and expanded upon Director McCarthy s promises, committing 

### inextensive discussions with San Juan County and the TownofSilverton to make sure the local community has a real seat atthe decision-making table and to work with local officials to reduce the negative impacts ofa Superfund listing.
Silverton and San Juan County wantthe mines andrivers cleaned up and we want to ensure that our downstream neighbors and our communities are protected. Building upon the commitments from numerous people at all levels ofthe EP and despite the crushing fmancial strain placed onour very limited town and county budgets, a committee oflocal representatives appointed by ourtown and county governments, has spenthundreds hours working with the EPA. We have worked to clarify the agency'sprocesses and plans, and to ensure that any actiontaken to remediate acid mine drainage actually improves water quality, doesn't further damage the environment or our community and ourdownstream neighbors, and doesn't create another spill like the Gold King.
In our discussions, we have pressed strongly for the EPAto commit to a number ofreasonable assurances regarding the proposedNPL listing, assurances we believe are essential to protect the environment, improve water quality inthe Animas River and minimize the risk offuture spills while protectingthe local community and its tourist economy. These points (detailed in ExhibitA) seekreasonable assurances from the EPA thatnegative impacts to our community will be mitigated; that we have a real seat at the table where decisions are made; that the best available science be used indetermining the cleanup; that the Superfund site should include only the mines and areas listed onthe attached Exhibit B; and that, because of our small budget and the fact that EPA caused the situation in the first place, EPAreimburse Silverton and SanJuan County for 

### all expenses incurred in seeking Superfund listing. Unfortunately, while members ofthe EPA staffhave indicated that some important requests can and will be accommodated, the EPA's letter ofFebruary 

### 12,2016 (attached hereto as Exhibit C) in which the agency outlines its commitments to both the local community and the nation fails to incorporate some items we believe to be essential to any NPL listing related to the Gold King spill.
The purpose ofthis letter is to request thatthe State ofColorado make a requestto the EPA that the BonitaPeak Mining District Site (as defmed by the EPA's attached list ofspecific properties from which, according to data already gathered, discharges may be adversely affecting water quality onthe Animas River) be added to the National Priority Listthereby making it eligible for funding under Superfund. As part ofthis request, we askthat youwork closely with us 

### to ensure the EPA addresses the points inExhibitA. We understand that some ofthe points cannot be addressed until after a listing is obtained but we are depending onyouto continue to stand with us throughout this process.Our goal is to ensure that the EPA's actions actually improve water quality inthe Animas River and its tributaries and that remediation efforts don'trisk causing future disasters like the Gold King spill. To that end, we further request that:
A. The State ofColorado insist thatthe existing watertreatment plant built bythe EPA in response to the Gold King spill continue to operate and that no other bulkheads onmine tunnels (includingthe bulkhead onthe Red and Bonita, which is presently scheduledto be closed bythe EPA in June, 2016 despite the EPA's lack ofinformation orunderstanding as to the consequences ofsuch a closure) be built or closed until the consequences ofany such action are fully studied and understood;
B. Because each ofthe investigative reports onthe Gold King spill specifically notes (and the EPAitselfhas admitted) that the Gold King spill occurred because those involved did not adequately understand the unique hydrologic, geologic and other issues with which they were dealing and did not adequately appreciate the consequences oftheir actions, the State of Colorado prohibit further actions by EPA or anyone else thatmighthave adverse consequences until the unique geology and underground hydrology ofthe area are fully understood. We have offered the EPA access to a team ofnationally known academic and government scientists in the relevant areas who have offered to assist inthis effort. Iffor any reasonthe EPA is unable or unwilling to take advantage ofthis scientific expertise, we request thatthe State ofColorado form and lead a consortium ofaffected states, native American nations and interested stakeholders to study existing conditions and develop the necessary information for the EPA so thatwe do not again have to sufferthe consequences ofactions taken in ignorance;
C. To the extent that EPA cannot legally reimburse the local community for all expenses incurred as a result ofthe Gold King spill, werequestthat the State ofColorado bearthose costs where appropriate and applicable because the local governments and the community they represent simply lack the resources to paythem.
We believe that it is critical that the State ofColorado take the lead 

### inensuring that, whateverthe outcome ofthis request for NPL listing, no action is evertaken inthe name ofenvironmental protection that 

### will damage hundreds ofmiles ofrivers andtheir surrounding ecosystems and the millions ofpeople who rely onthose rivers.
We would welcome the opportunity to meet with you and your staffto provide any assistance we can 

### in formulating'the State ofColorado's request to the EPA for NPL listing relating to the Gold King spill.

### Respectfully,
Board ofCounty Commissioners Board ofTrustees Town ofSilverton, Colorado 

# &IL &L

Christine M. Tookey, MayorExhibit A The assurances we have sought include: 1. The Superfund site should include only the mines and areas listed onthe attached Exhibit B. 2. The Superfund site will be named the BonitaPeak Mining District Site so as to minimize any negative association with either Silverton or SanJuan County andthe damage which such association necessarily would cause to our community and its fragile tourism based economy. 3. Because ofthe vast amount oflocal knowledge, information and expertise relating to the mines ofour area, while the EPA will retain the ultimate decision-making authority with regard to activities within the Superfund site, the EPA will actively involve the Town and County governments and representatives orrelevant state agencies in all phases ofwork in connection with the site including but not limited to the listing process, the determination ofthe nature, scope and extent ofthe studies to be performed and ofthe data to be gathered, the remedial investigation and feasibility study, as well as the formulation, selection, design and implementation ofpotential remedies. The scope of this involvement will notbe limited to the typical review and comment onEPAproposals but instead will include active and meaningful involvementthroughout this process and particularly inthe formulation and evaluation ofthe EPA's proposals. 4. Whenrequested, the EPA will authorize and fund Technical Assistance (TAG) Grants orother scientific and research grants to fund such technical assistance as the Town and County may require in orderto meaningfully participate in all aspects ofthe BonitaPeak Mining District Site project and also cause the EPA's Office ofResearch and Developmentto authorize and fund whatever Science Technical Research (STAR) or other grants to develop a complete understanding ofthe geology and underground hydrology ofthe area so that any actions taken canbe based on adequate information as to their potential consequences. 5. EPA will use its best efforts to utilize the BonitaPeak Mining Districtproject to develop and study new or alternative technologies, approaches and remedies for use in connection with mine drainage generally. This will include utilization ofexpertise in academia and industry regarding hydrology and otherareas which properly should be considered in formulating any remediation plan for the site. 6. EPA will authorize and fund, via a Cooperative Agreement, Community Assistance (CAG) Grants orotherwise, financial assistance to the Town and County to enable them to meaningfully participate in all activities related 

### to the site and to address all impacts caused by the Gold King incident, the Superfund listing and cleanup including reimbursing the Town and County for expenses incurred from and after August 5, 2015. Because, unlike the usual Superfund site, the Gold King spill was caused by the EPA's contractor and thus the EPAbears fmancial responsibility for all consequences ofthat spill, the scope ofthis assistance is intended

### to be considerably broader 

### than typical for Superfund listings and to cover all expenses reasonably stemming from the Gold Kingincident, the listing process and all post-listing costs including housing, legal assistance, additional manpower needs, etc.



# .. 7. Inorder to avoid unintended consequences which may be caused by ignorance ofthe geology and underground hydrology ofthe San Juan Mountains, before developing or implementing any alternative remedies, acting in conjunction with academic and government experts in all relevant areas and withthe State ofColorado, EPA will work closely with both the local and state governments to assemble a team ofscientific consultants withthe necessary expertise inall areas where study may be required (particularly in the area ofgeology and underground hydrology) to develop such data, knowledge and information as may be necessary to understand the underground hydrology ofthe area and the potential consequences ofremedial actions which may eventually be taken. 8. Inorderto prevent worsening water quality and further degradation oflocal streams, EPA will continue to operate the existing water treatment plant to treat discharges from the Gold King, Red and Bonita, and other area mines until fmal remedies are selected and implemented. 9. Inorder to prevent worsening water quality and to avoid the potential for another catastrophic release ofacidmine drainage, the EPA will delay closure ofthe bulkhead installed onthe Red and Bonita adit until the potential effects ofsuch closure have been thoroughly studied and it has been determined that such closure can be effectuated without risk ofcausing a future blowout orrelease ofcontamination from other discharges. 10. Declaration ofa Superfund site without adequately funding it will be a meaningless gesture. Because the Gold King incident is unique inthat it was caused by anEPA contractor, EPA will give the BonitaPeak Mining District site adequate funding. 11. EPA will not seek 

### to recover cleanup costs nor will it otherwise seek contribution from either a) innocentproperty owners who have not commercially operated any listed mine property orotherwise caused orcontributedto any contaminated mine discharge or drainage orb) local governments. 12. Because the boundaries ofthe site are being defmed so as to permit study ofas wide an area as possible inorder to determine which sites actually discharge significant contamination into the Animas and its tributaries, ifdata gathered during thepreliminary stages ofthe project demonstrate that any property initially listed is not a significant contributor to contamination ofthe Animas River or its tributaries, EPA will de-list the non-contributing property and provide a letter confirming that the property is not a significant contributor to contamination oflocal waters and thus is not subjectto action under Superfund. 13. Ifrequested byowners ofproperty outside ofthe Superfund site boundaries, the EPA will at its own expense conduct tests ofthe property as requested and provide either written confirmation to such property owners that contamination located within the BonitaPeak Mining District Site does not have any meaningful effect on theirpropertiesor such other documentation as may be required in order to satisfy funding conditions, limitations orrequirements ofany state or federal agency orprogram such as HUD, FHA, Fannie Mae orFreddie Mac.

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