June 01, 2016

Is EPA the Fox Guarding the Hen House?

Lisa A. Decker

On August 5, 2015, at 10:30 in the morning in Silverton, Colorado, while the U.S. Environmental Protection Agency (EPA) was in the process of excavating the collapsed opening of the old abandoned Gold King Mine (originally staked in 1887 and patented in 1891), EPA’s activities caused three million gallons of sediment-laden mine water under pressure to gush out and eventually travel to Cement Creek, a tributary of the Animas River. This mine water contained acid, salts, and heavy metals such as lead and arsenic. See Karletta Chief, et al., Understanding the Gold King Mine Spill, U. of Ariz. Superfund Research Program, Nov. 2015, http://superfund.pharmacy.arizona.edu/sites/default/files/u43/gold_king_mine_spill.pdf. EPA’s account is that the agency was “conducting an investigation to assess mine conditions and ongoing water discharges, dewater the mine pool, and assess the feasibility of further mine remediation” when the release occurred. Statement Before the Committee on Environment and Public Works U.S. Senate (Sept. 16, 2015) (statement of Gina McCarthy, EPA Adm’r) [hereinafter McCarthy Statement], available at www.epa.gov/sites/production/files/2015-10/documents/epa_statement-_sept_16_sepw_hearing-_gkm_response_omb_cleared_final.pdf.

Once released, the vibrant yellow/orange sediment-laden water, which EPA acknowledges may have contained 880,000 pounds of metals, moved downstream into the Animas River, eventually traveling from Colorado into New Mexico and the San Juan River, and then into Utah. See EPA: Mine spill dumped 880,000 pounds of metals in river, Denver Post, Feb. 5, 2016, available at http://www.denverpost.com/news/ci_29481905/epa-mine-spill-dumped-880-000-poundsmetals?source=pkg. EPA estimated that the water associated with the release eventually would dissipate into Lake Powell by August 12, “and we expect no significant impacts to the lake, the Colorado River or any water bodies downstream.” See Frequent Questions Related to Gold King Mine Response, EPA, last updated May 25, 2016, available at www.epa.gov/goldkingmine/frequent-questions-related-gold-king-mine-response. In the aftermath, EPA placed restrictions on water usage and recreation, and water intakes were closed along the route, indicating water restrictions along the Animas and San Juan Rivers would be lifted by August 15.

EPA acknowledges “[t]his was a tragic and unfortunate incident, and the EPA has taken responsibility to ensure that it is cleaned up appropriately. . . . [W]e are dedicated to continuing to do our job to protect the environment and to hold ourselves to the same high standard we demand from others.” McCarthy Statement, supra, at 1. However, based on the widespread criticism from multiple sources, not everyone agrees that EPA has done so.

Many are critical of EPA’s claim that the risk of the blowout was not understood by EPA because the agency did not realize there was significant water behind the opening it was excavating on August 5, 2015. An email from the EPA employee who was in charge of the work at the site admitted that he personally knew the blockage “could be holding back a lot of water and I believe the others in the group knew as well.” This email contradicts statements made by the employee right after the disaster when he claimed (as did EPA), that “nobody expected (the acid water backed up in the mine) to be that high.” Jesse Paul, EPA employee in charge of Gold King Mine knew of blowout risk, e-mail shows, Denver Post, Feb. 11, 2016, available at www.denverpost.com/news/ci_29504957/epa-employee-charge-gold-king-mine-knew-blowout. This revelation, along with others, was included in the report of the event published by the Republican members of the U.S. House Committee on Natural Resources. See EPA, the Department of the Interior, and the Gold King Mine Disaster, Majority Staff Rep., Rep. Rob Bishop, Chr. H. Comm. Natural Res., 114th Cong. (Feb. 11, 2016), available at http://naturalresources.house.gov/uploadedfiles/house_committee_on_natural_resources_gold_king_mine_report_feb._11_2016.pdf. The congressional report criticizes EPA’s and the Department of the Interior’s reports on the event, which “offer shifting accounts of the events leading up to the spill and contain numerous errors, omissions, and inconsistencies, some of which are not attributable to error or incompetence alone.” Id.

Others also have shared concerns about the “independence” of the official investigations of the disaster. In March 2016, Navajo Nation President Russell Begaye issued a statement explaining that “[t]he documents obtained by the House Committee on Natural Resources are troubling and suggest that federal agencies investigating the spill have been instructed to turn a blind eye to the extent of the Environmental Protection Agency’s negligence. The Navajo Nation has long called for a truly independent investigation of the Gold King Mine Spill and has urged the administration to appoint an independent agency to oversee the response.” President Begaye’s Statement on Federal Investigation Ignoring U.S. EPA Negligence Regarding Gold King Mine Spill, Communications Office, Navajo Nation (Mar. 15, 2016). Senator John McCain (R–Ariz.) commented during an April 22 Senate Committee on Indian Affairs field hearing in Phoenix that “[t]he federal department [Department of the Interior] conducting the investigation might not have been so independent,” adding that “the EPA has failed to live up to its promises to hold itself accountable.” Ethan Barton, McCain Slams EPA Over Its Gold King Mine Spill Response, Daily Caller News Foundation, Apr. 22, 2016, http://dailycaller.com/2016/04/22/mccain-slams-epa-over-its-gold-king-mine-spill-response/.

Many, including the impacted states and tribes, have criticized EPA’s slow response in alerting affected communities. New Mexico’s secretary of environment bluntly stated that “[f]rom the start, the EPA bungled its response to the spill. The first call alerting New Mexico that contaminated water was on its way didn’t even come from the agency. The water-quality manager of the Southern Ute Tribe, who live in Colorado right on the border with New Mexico, contacted my department with a warning on August 6.” Ryan Flynn, Downstream from a Slippery EPA, Wall St. J., Feb. 29, 2016, available at www.wsj.com/articles/downstream-from-a-slippery-epa-1456791558. The statement also points out that two weeks after the spill, “EPA released an environmental standard for the Gold King mine sediment that was an order of magnitude weaker than those applied to other polluters” since the agency used a recreational instead of a residential standard, despite the many New Mexico people who live along the Animas River. Id.

EPA’s website proclaims that “EPA takes responsibility for the Gold King Mine release and is committed to continue working hand-in-hand with impacted local governments, states and tribes.” The site then lists the dollars it has allocated or provided to date. www.epa.gov/goldkingmine. On April 28, the EPA stated affirmatively that it is reimbursing affected states, tribes, and local governments about one million dollars. See EPA paying $1 million in response costs after mine spill, Denver Post, Apr. 29, 2016, available at www.denverpost.com/2016/04/29/epa-paying-1-million-in-response-costs-after-mine-spill/. The EPA also said it is considering requests to reimburse an additional $570,000. Id. All claims have to be filed against the EPA under the Federal Tort Claims Act for injury or damage. On its website, the EPA reiterates “[t]o date, no determination has been made regarding claims submitted to the EPA.” www.epa.gov/goldkingmine. In its defense, EPA also states that it “has expended more than $22 million on response efforts. . . .” Letter from Gina McCarthy, EPA Adm’r, to Russell Begaye, President, the Navajo Nation, Apr. 19, 2016, www.epa.gov/sites/production/files/2016-04/documents/ginamccarthyreplytomarch15presbegayeletter.pdf. However, given the magnitude of the release, and the number of people and states affected, the one million dollars to date that the EPA has agreed to pay directly to reimburse affected parties appears to be much less than fines the EPA routinely levies against others for releasing contaminants that may or have impacted the environment.

Not satisfied with the response of the EPA, many have taken direct action, including the state of New Mexico, which filed its notice of intent to sue the EPA (and others) in January 2016. See Notice of Endangerment and Intent to Sue under Section 7002(a)(1)(B) of the Resource Conservation and Recovery Act, Jan. 14, 2016. Utah Attorney General Sean Reyes issued a press release on February 12, stating that Utah will be filing a notice of claim against the federal government under RCRA and the Clean Water Act and begin the litigation process. See http://attorneygeneral.utah.gov/media-center/uag-pressrelease/state-of-utah-to-file-notice-to-sue-environmental-protection-agency. As recently as April 2, Colorado Attorney General Cynthia Coffman indicated that Colorado was still considering suing the federal government, stating that “[w]e haven’t foreclosed the option of litigation.” www.durangoherald.com/apps/pbcs.dll/article?AID=/20160402/NEWS01/160409941/-1/taxonomy/Colorado-Attorney-General-Cynthia-Coffman-questioned-over-Gold-King&template=printpicart.

With support from Colorado’s governor, on April 7, the EPA officially proposed adding the area around Colorado’s Gold King Mine, the Bonita Peak Mining District, to the National Priorities List, making it eligible for additional study and cleanup resources under Superfund. Most recently, on May 3, 2016, Senate Committee on Indian Affairs Chairman John Barrasso (R–WY) and Senator John McCain (R–AZ) sent a letter to Attorney General Loretta Lynch requesting a Department of Justice (DOJ) criminal investigation into EPA’s responsibility for the Gold King Mine disaster because “DOJ’s involvement is necessary to affirm that the government is willing to hold itself to the same level of accountability as it holds private companies whose negligence results in serious environmental damage.” Letter from John Barrasso, Chr., Comm. Indian Affairs, and John McCain, U.S. Sen., to Loretta Lynch, U.S. Att’y Gen. (May 3, 2016), at 3, available at www.indian.senate.gov/sites/default/files/McCain%20Barrasso%20Letter%20to%20DOJ%20re%20Gold%20King%20Mine%20Criminal%20Referral%205-3-16.pdf.

There will no doubt continue to be ongoing developments in the aftermath of the release. What will be interesting to watch is how EPA, as the entity that caused the problem, addresses the criticisms and funds the remediation and ongoing monitoring and investigation. What about natural resource damages—will public trustees for the affected resources bring any such claims, and how? If so, who will the defendants be? How much will EPA agree to pay affected parties? Will EPA impose any additional fines on itself, in additional to direct costs it ultimately agrees to pay to affected parties? What cleanup standard will EPA impose on itself? How long will the EPA continue to monitor and study the spill to ensure there are no long term consequences? All these questions encompass issues for which EPA normally has no hesitation raising and pushing to recover maximum damages when it is not the party that caused the problem.

Lisa A. Decker

Ms. Decker is senior counsel at WPX Energy, Inc., in Denver, Colorado, and is a member of the editorial board of Natural Resources & Environment. She may be reached at lisa.decker@wpxenergy.com.