Ruling: Feds share burden of Questa mine waste

With appeals court decision, taxpayers will help pay for cleanup of Superfund site


Taxpayers will have to shoulder some of the costs for cleaning up decades-old hazardous waste at a shuttered mine in the mountains north of Taos, a federal appeals court ruled Wednesday.

In a 3-0 decision, the 10th Circuit Court of Appeals said the U.S. government is partly liable for a legacy of pollution at the site. Still unclear is how much the ruling could cost taxpayers.

But the appeals court's decision is a victory of sorts for the mine owner, Chevron, which has battled the federal government for years over a cleanup that is expected to cost about $1 billion.

The court decided that the federal government is liable for some of the cleanup costs because it owned part of the site and financed molybdenum mining there. It's the type of case that environmental groups say is an example of why regulators should be more careful about how public lands are used, because taxpayers can end up on the hook for the costs of pollution.

Chevron's claim that taxpayers are responsible for some of the cleanup is linked to the federal government's history with the Questa mine, which it added to a list of polluted Superfund sites in 2011 after nearly a century of off-and-on mining operations left behind millions of tons of waste.

Nestled above the Red River in the Sangre de Cristo Mountains and near the village of Questa, the mine has been owned by Chevron since 2005.

The company took the federal government to court in 2013, arguing it is a "partially responsible party" under the rules for cleaning up Superfund sites. Chevron closed the mine in 2014, laying off about

300 workers.

Chevron's lawyers pointed to the federal government's role encouraging mining at the site by setting up an office in the 1950s to finance mineral extraction that would support national defense.

The federal government ended up giving the mine's owner at the time, Molycorp, a loan to explore for more molybdenum that could be used for military-grade steel.

And Chevron pointed out in its lawsuit that the federal government owned some of the lands where hazardous waste was deposited.

The mine's owners disposed of more than 328 million tons of waste rock around the site. They also built pipelines to two ponds about 9 miles away to dispose of another 100 million tons of tailings, fine grains of rock generated during the milling process as molybdenum is separated from the mined ore. The waste contaminated groundwater and the Red River.

A U.S. District Court judge sided with the federal government, but Chevron appealed. The three-judge panel of the 10th Circuit Court of Appeals in Denver decided that, as an owner, the government is liable for a share of Chevron's past, present and future costs in cleaning up the Questa mine.

"We do not doubt that [the federal government] could have exercised greater powers, regulatory or otherwise, over the lands if it wanted to do so," Chief Judge Timothy Tymkovich wrote in the decision. Judges Bobby Baldock and Mary Beck Briscoe concurred.

A spokesman for the U.S. Department of Justice declined to comment on the case.

The ruling is what some in the mining industry had called for, arguing that the U.S. government should not be allowed to escape responsibility for its role in developing the mine.

The Mountain States Legal Foundation, a conservative group based in Colorado, filed a brief in the case siding with Chevron. So, too, did Tim Fox, the Republican attorney general of Montana, who argued that placing the burden for the cleanup costs entirely on the company could hurt the mining industry in states where many private mines are on federal lands.

The lawsuit heads back to a lower court for a judge to decide just how big a share of the cleanup costs the federal government will have to pay.

Rachel Conn, projects director at Amigos Bravos, an environmental advocacy group in Taos, said the case demonstrates that the federal government needs to update 19th-century mining laws and be more careful about the enterprises that it allows on public lands.

"Looking ahead, the federal government needs to think long and carefully about these activities that leave us a legacy of pollution," she said.

Contact Andrew Oxford at 505-986-3093 or aoxford@sfnewmexican­.com.

Follow him on Twitter @andrewboxford.

This story first published in The Santa Fe New Mexican, a sister publication of The Taos News.