Who Will Pay for the EPA’s Mistake?

Steve Fiscor

This month, we devote a significant amount of coverage to environmental management. In “Remediation Helps Rescue a River,” Steven Lange discusses the geology of Colorado’s San Juan Caldera and the impact of Sunnyside Gold Corp.’s reclamation activities on the Animas River watershed. Due to the regional geology, heavy metals have been leaching into this watershed for millions of years. That same geology attracted miners and the abandoned mines have exacerbated the problem. In the relatively short period of time that Sunnyside Gold Corp. operated, their reclamation activities lessened the environmental impact from some of those abandoned mines significantly.

On August 5, 2015, Environmental Restoration, a contractor working on behalf of the U.S. Environmental Protection Agency (EPA) to investigate contamination from abandoned mines in this district, accidentally released 3 million gallons of water from the Gold King mine portal into tributaries feeding the Animas River, which fouled downstream waterways. Following the discharge, more than 73 claims were filed against the EPA seeking a total of $1.2 billion in damages to crops, livestock, contaminated wells, lost tourism business and local government expenses. In January 2017, the agency said it had conducted a legal analysis and, citing sovereign immunity, said it would not pay the claims.

New Mexico then turned its attention to the state of Colorado. The New Mexico Attorney General’s Office filed a complaint against Colorado with the U.S. Supreme Court, seeking damages and demanding that Colorado address problems at abandoned mines. In June 2017, the U.S. Supreme Court declined to hear those arguments. Colorado’s Attorney General said she believed that New Mexico should not have sued Colorado in the Supreme Court. She saw the U.S. Supreme Court’s decision not to hear the case as a confirmation.

In February, a federal judge in New Mexico, Christina Armijo, said she would allow civil claims to proceed in consolidated lawsuits filed against Environmental Restoration. The EPA contractor sought to dismiss the complaints, arguing that, as an operator, arranger or transporter, it was protected under Superfund regulations. Armijo ruled Environmental Restoration cannot be released from the lawsuits.

Four lawsuits stemming from the Gold King discharge were subsequently consolidated during April. Three of the suits were brought by residents of New Mexico and the Navajo Nation. The fourth was brought by the state of Utah. The four lawsuits will be heard before Chief Judge William P. Johnson’s federal court in Albuquerque. Colorado’s legislature has approved legal action against the company and federal government, but an official lawsuit has not been filed. Then-EPA Administrator Scott Pruitt said in March the federal government was close to finishing its assessment of the claims. Pruitt resigned his position as this edition was going to press.

This wasn’t the first time a major discharge from a mine polluted these waterways as this month’s cover story documents. In this case, however, it wasn’t a mining company that caused the problem so there was no bond to forfeit or owners to bankrupt. Determining who will pay for the Gold King breach will be complex. The ruling on sovereign immunity will have a tremendous impact on contractors working for the government as well as long-term liabilities for environmental engineers.

Steve Fiscor, Publisher & Editor-in-Chief, E&MJ

As featured in Womp 2018 Vol 07 - www.womp-int.com