The Environmental Protection Agency is in hot water. In recent weeks, the agency has been rightly criticized for its Jan. 13 announcement to deny payment to all 73 individuals and businesses affected by the August 2015 Gold King Mine spill. These claims, totaling $1.2 billion, were submitted under the Federal Tort Claims Act.
Tribes and government entities were also notified in early December that their reimbursement requests made via cooperative agreements would not be paid fully, by a lot.
Granted, some of these requests included costs not directly attributable to the spill and immediate response activities, including proposed future costs yet incurred. It is, however, most definitely an understatement to say these decisions are disappointing. Not only because real people’s livelihoods were harmed by the EPA’s judgment and resulting actions in August, but also because, until now, all affected parties were led to believe that these claims would be paid.
From employees on the ground in Silverton to state and federal administrators, EPA staff walked folks through the red tape and assured everyone they would be made whole. In a refreshing display of bi-partisanship, all three of our congressional representatives were united in seeking a remedy. So it was indeed a major blow to learn that because of a discretionary clause within the FTCA, the EPA had an out.
To be fair, the decision probably came as much as a surprise to EPA staff on the ground as it did residents. Regional staff benefit from maintaining positive working relationships and building trust locally. The problem, as critics of the federal government are keen to point out, is Washington, D.C. This time, it seems, they are right.
Our representatives and their staffs, from the local to the federal level, have been working tirelessly in support of affected parties and it has made no difference. They introduced a bill in the last Congress authorizing the EPA to reimburse claimants and prohibit the government from using FTCA’s discretionary function exception to receive and process these claims.
There is much that makes no sense, especially since the momentum – that includes a Superfund designation and associated funding being approved – was so strong. All parties were pulling in the same direction toward a very positive end for all involved, until now.
The logic of the discretionary clause goes something like this: Because under FTCA, the agency cannot be sued for their discretionary action (accidentally breaching the mine), they are not required to pay any damages. Well, these are not lawsuits, rather claims from people and local governments who cannot afford lawyers or the time it would take to pursue a lawsuit or now an appeal.
The city of Durango decided the staff time involved in preparing an appeal is not worth the potential benefit and is moving on. San Juan Basin Health, La Plata County and the Southern Ute Tribe all plan to appeal the EPA decision to cut off reimbursement requests as of Oct. 31, the date the local EPA response concluded.
That date makes little sense since local agencies, particularly the health department, continued to incur costs associated with ensuring safe water quality for the public and environment.
One thing we know is that commitments were made and should be kept – for affected parties and for a Superfund cleanup. Anything less only further erodes the public trust.
