The U.S. Environmental Protection Agency has determined it will not pay for damages caused by the August 2015 spill at Colorado’s Gold King Mine.
EPA officials on Friday January 13 said the agency had conducted a legal analysis and concluded that sovereign immunity protects the crew that breached the mine opening and sent a three-million-gallon deluge of toxic waste down the Animas River and into the San Juan, poisoning water in four states and devastating farmers and ranchers on the Navajo Nation. The decision, announced by an independent claims officer within the agency, comes despite the EPA’s admission of responsibility in the immediate aftermath of the spill.
The EPA’s decision came just days after the agency released its final analysis of the Gold King Mine release. The report, which focused on understanding pre-existing river conditions and the effects of the mine waste on overall water quality, found that the levels of toxins in the river have returned to pre-spill conditions and that heavy metals have moved completely through the system.
Navajo leaders and federal lawmakers reacted quickly to the news, denouncing the EPA’s decision and calling for accountability. The Navajo Nation had sought $160 million in damages to defray the cost of searching for alternative water sources and to monitor water quality in the future.
“Who’s going to make this right?” Navajo Council Speaker LoRenzo Bates said to ICMN. “The fact of the matter is that there were farmers up and down the entire river valley that were impacted in terms of revenue and use of water, and now the EPA is using an act as a reason not to compensate.”
At least 73 claims were filed against the EPA, seeking a total of $1.2 billion for cleanup expenses, lost wages and damage to crops, livestock and clean water sources. The EPA now claims it is “not legally able” to provide compensation.
The Federal Tort Claims Act prevents the agency from paying claims resulting from “discretionary” government actions, the EPA said in a statement. Contractors working on behalf of government agencies should be allowed to act “without the fear of paying damages in the event something went wrong while taking the action,” the agency stated. Discretionary acts are defined as “acts of a governmental nature or function that involve the exercise of judgment.”
The contractors working for the EPA who accidentally breached the mine adit on August 5, 2015, also are exempt from being sued individually—despite a U.S. Department of the Interior investigation that found the spill could have been avoided had workers checked on water levels inside the mine before digging into its collapsed entrance.
On Thursday January 12, agency attorneys mailed letters to individual claimants explaining that their claims were reviewed but compensation is unavailable. Under the Federal Tort Claims Act, claimants have six months to file legal challenges to the EPA’s decision.
The initial burst released three million gallons of water heavy with metals like arsenic, aluminum, iron and lead into the Animas River. Days later, the mustard-yellow plume reached the San Juan River, a lifeline for Navajo residents in New Mexico, Utah and Arizona.
The Navajo Nation closed access to the river in northwest New Mexico and recommended that farmers stop irrigating their crops until the water could be guaranteed safe. New Mexico residents later filed 33 claims against the EPA, seeking a total of $1 billion in damages. All of those claims were denied.
“The EPA admitted that it messed up,” Bates said. “If you cause damage and you admit it, you do what is required to compensate. The EPA admitted that it caused contamination to the river, but now they’re saying they can’t do anything about it. That’s not right.”
U.S. senators Tom Udall and Martin Heinrich and U.S. Rep. Ben Ray Lujan also condemned the EPA’s decision. In a joint statement released on January 13, the lawmakers called the decision a “shameful legal interpretation of liability” and vowed to push for legislation that would hold the EPA accountable.
“We are outraged at this last-ditch move by the federal government’s lawyers to go back on the EPA’s promise to the people of the state of New Mexico—and especially the Navajo Nation—that it would fully address this environmental disaster that still plagues the people of the Four Corners region,” the lawmakers said in their statement. “The federal government has a moral obligation to compensate farmers, small business owners and others injured for their losses; to fully reimburse local and tribal governments for the costs of responding to the spill; and to continue to pay the costs of independent water monitoring until the people have faith in the water again.”
The Navajo Nation plans to continue pursuing its claim for damages against the EPA, the mine owners and other agencies and individuals, President Russell Begaye told reporters on January 13. The Nation seeks $159 million in damages and $3.2 million to cover expenses already submitted to the EPA that have yet to be reimbursed.
“It doesn’t stop here,” Begaye said. “If we have to, we’ll take it all the way to the Supreme Court.”