New Mexico Files RCRA Notice of Intent to Sue EPA

by Patrick J. Paul

On January 14th, the State of New Mexico provided the legally required notice under the Federal Resource Conservation and Recovery Act (RCRA) to sue the United States Environment Protection Agency (EPA), the State of Colorado, and others for violating 42 U. S. C. § 6972(a)(1)(B) alleging that it had created an imminent and substantial endangerment to the health of New Mexico’s citizens and the environment of the Animas and San Juan Rivers in New Mexico.

As previously reported here and here, on August 5, 2015 contractors working for EPA caused a massive release of toxic mine waste from the Gold King Mine in Colorado. The Gold King Mine blowout was triggered when EPA contractors used an excavator to dig away rock and debris blocking an entrance portal to the mine. The notice alleges that EPA failed to notify New Mexico of the spill or communicate effectively with its environmental agencies. In fact, New Mexico claims its first notice of this event came not from EPA but rather from the Southern Ute tribe. The notice further alleges that groundwater had been seeping into the mine for decades and EPA knew that the water in the mines was acidic. In total, the notice alleges that the Gold King Mine disaster released more than 3,000,000 gallons of acidic mine wastewater into the San Juan and Animas Rivers.

New Mexico alleges that EPA’s failure to meaningfully engage it or act to protect the people of its state gives rise to a cause of action under RCRA’s citizen suit provision. The notice is a required prerequisite to formally filing suit. New Mexico invites discussion during the ninety-day window for filing suit on effective remedies for the contamination caused to its rivers. Unless substantial progress is made toward implementation of remedial solutions, New Mexico states it will file suit upon expiration of the ninety-day period in April 2016.

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