First EPA fouled the river, now it’s fouling your trust

“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

Talk about a huge dose of incompetence followed by a bait and switch. It doesn’t take much effort to figure out all that so-called hard work at the Environmental Protection Agency has really been to figure out how to tie the purse strings tight— and stiff the many people damaged by the agency’s Gold King Mine disaster. But let’s start at the beginning. This saga of sorry government began Aug. 5, 2015, when an EPA team intentionally removed a dirt and rock plug from the Gold King Mine in southwest Colorado and dumped 3 million gallons of toxic wastewater laden with more than 880,000 pounds of metals into Four Corners waterways, including the Animas River.

The federal agency charged with protecting the environment and punishing polluters initially tried to minimize the damage. While the Animas River was still an orange sludgefest, the EPA was quick to say it was all an accident, that water quality returned to normal within weeks and there was no need for long-term monitoring. Forget all those heavy metals that had sunk to the riverbed. Then the agency said it would make things right. So for the past 16 months, New Mexicans have been submitting claims to show how the aftermath of a toxic orange stew caused “loss of employment, loss of income, loss or damage to property, or other claims.” Navajo President Russell Begaye had advised tribal members early on not to sign or submit an EPA claim form because it “contains offending language that will waive future claims … and preclude our people from seeking full compensation for injuries suffered from the spill.” After EPA officials testified on Capitol Hill about the spill in November 2015, Begaye said “the Navajo Nation does not trust the EPA, and we expect them to be held fully accountable for what they have done to my people and all people who live along the San Juan and Animas rivers.”

In the meantime farmers lost crops or had to haul water for irrigation and livestock. Rafting companies couldn’t take visitors on river trips. Homeowners’ wells were affected.

San Juan County Executive Officer Kim Carpenter says, “We steered the citizens to where they needed to go to talk with the EPA, and all of a sudden there’s a decision that there’s not going to be any remuneration for anybody.” On Friday, Begaye told the Navajo Times the EPA decision is childish and shameful.

It took the EPA 16 months to tell the Associated Press it is protected by sovereign immunity and won’t pay more than $1.2 billion in claims for damages. In a news release it gave the Navajo Times a different story, saying “because the agency was conducting a site investigation at the Gold King Mine under the Comprehensive Environmental Response, Compensation, and Liability Act, the agency’s work is considered a ‘discretionary function’ under this law. Therefore, the circumstances surrounding the Gold King Mine incident unfortunately do not meet the conditions necessary to pay claims.”

So why is the federal “Standard Form 95 for Damage, Injury or Death” still on the EPA website for the mine spill?

U.S. Sens. Tom Udall and Martin Heinrich and U.S. Rep. Ben Ray Luján, all New Mexico Democrats, say they “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.”

Gov. Susana Martinez also is correct in observing that “if a private company had caused this massive environmental disaster, the EPA would have gone all-out to hold them accountable. But when the federal government dumps millions of gallons of toxic sludge into our rivers, they shirk their responsibility and leave it up to the states to mop up the mess they created.”

The EPA announced last month it would pay $4.5 million to state, local and tribal governments for emergency response to the spill but rejected $20.4 million for past and future expenses, again saying its hands were tied by federal law. The EPA said the claims could be refiled in federal court (where the Navajo Nation and state of New Mexico have already filed lawsuits) or Congress could authorize payments.

It’s unclear how switching courts or going to Congress unties the EPA’s sovereign immunity/discretionary function claims, and it smacks of another attempt to beat already victimized folks down further with bureaucratic paperwork and delays.

What is clear is that EPA’s bungling fouled the waters in the Four Corners region, and EPA’s dissembling is fouling any belief the agency will ever do right by the people it has wronged.