The EPA says the Federal Tort Claims Act prevents the agency from paying claims the result from "discretionary” government actions. Congress passed the law to allow government agencies — and in this case, contractors working on their behalf — to act "without the fear of paying damages in the event something went wrong while taking the action," according to a press release from the EPA.
An EPA agency official said paying the claims would discourage such cleanup efforts in the future.
The EPA says the work conducted at the Gold King Mine near Silverton, Colo., is considered a "discretionary function" under the law. Contractors on Aug. 5, 2015, breached the mine, which released more than three million gallons of toxic wastewater into a tributary that feeds the Animas River, which ultimately flows into the San Juan River and Lake Powell.
Federal lawmakers representing New Mexico decried the announcement, calling it a "shameful legal interpretation of liability."
Sens. Tom Udall and Martin Heinrich, New Mexico Democrats, and Rep. Ben Ray Luján (D-N.M.) issued a joint statement saying they would continue pushing for legislation to hold the EPA accountable. They also said it would be up to the courts to determine whether the EPA's defense is legitimate.
"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 statement reads.
The statement points out that while the EPA has taken steps to clean up the mine, "no farmer has received a dime of compensation over a year later."
An EPA official says 73 claims related to the mine spill were filed under the Federal Tort Claims Act. Four were from governmental agencies and the rest were from individuals and companies.
The claims totaled more than $1.2 billion, though the official said the federal agency did not evaluate the legitimacy of the claims and some were vague and for "extraordinarily" large sums.
The EPA official acknowledged the length of time it has taken the agency to make its announcement, adding "we spent a lot of time trying to see if there was any other way to address this because this is obviously an answer that leaves a lot of people unhappy who have been hurt."
Those who filed claims have six months from the date of denial to challenge the decision with the U.S. District Court.
|© Daily Times file photo At left, the Animas River flows near its confluence with the San Juan River in Farmington on Aug. 8, 2015, shortly after the Gold Kine Mine near Silverton, Colo., was breached.|
EPA says it won't repay claims for spill that caused yellow rivers
The Environmental Protection Agency said Friday it will not repay claims totaling more than $1.2 billion for economic damages from a mine waste spill the agency accidentally triggered in Colorado, saying the law prohibits it.
The EPA said the claims could be refiled in federal court, or Congress could authorize payments.
But attorneys for the EPA and the Justice Department concluded the EPA is barred from paying the claims because of sovereign immunity, which prohibits most lawsuits against the government.
“The agency worked hard to find a way in which it could pay individuals for damages due to the incident, but unfortunately, our hands are tied,” EPA spokeswoman Nancy Grantham said.
A total of 73 claims were filed, some by farmers who lost crops or had to haul water because rivers polluted by the spill were temporarily unusable for irrigation and livestock. Rafting companies and their employees sought lost income and wages because they couldn’t take visitors on river trips. Some homeowners sought damages because they said their wells were affected.
The August 2015 spill at the Gold King Mine in southwestern Colorado released 3 million gallons of wastewater tainted with iron, aluminum, manganese, lead, copper and other metals. Rivers in Colorado, New Mexico and Utah were polluted, with stretches of waterway turning an eerie orange-yellow.
Some of the affected rivers pass through Indian reservations.
Rep. Scott Tipton, R-Colo., expressed disbelief at the EPA’s decision, saying the agency had promised to compensate the people who suffered.
“The news today is a complete departure from that commitment, and our states, local governments, and tribes can rest assured that we will continue to work to make the EPA accountable for the mess they have made,” he said.
New Mexico Sens. Tom Udall and Martin Heinrich and Rep. Ben Ray Lujan, all Democrats, also accused the agency of reneging on a pledge.
“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,” they said.
An EPA-led contractor crew triggered the spill while doing exploratory excavation work at the mine entrance in advance of a possible cleanup. The Gold King is one of hundreds of inactive mines in the Colorado mountains that continuously spew polluted water into rivers or have the potential to do so.
The EPA has designated the area a Superfund site to pay for a broad cleanup. Initial research is underway.
State, federal and tribal officials have been harshly critical of the EPA for causing the spill and for its handling of the aftermath, including the costs. The Navajo Nation and the state of New Mexico have already sued the agency in federal court, and other lawsuits are likely after Friday’s announcement.
Last month, the EPA said it would pay $4.5 million to state, local and tribal governments to cover the cost of their emergency response to the spill, but the agency rejected $20.4 million in other requests for past and future expenses, again citing federal law.
Two members of Colorado’s congressional delegation criticized that decision, saying Congress passed a law in December that removed some of the legal obstacles the EPA cited in turning down the $20.4 million.