DENVER – The Gold King Mine spill did more than flood the Animas and San Juan rivers with potentially toxic metals. It also brought a wave of politically-charged discourse.
In the past year, the Environmental Protection Agency – which caused the spill – defended itself in the face of congressional inquisitions and subpoenas, lawsuits, negative national headlines, allegations of deliberately misleading the public, conflicting accounts and claims of incompetence.
Most recently, the agency’s Office of Inspector General confirmed that a criminal investigation is underway. The criminal probe has been pending since last year.
The Durango Herald asked the EPA to grant an interview with Administrator Gina McCarthy to discuss lessons learned in the year since the spill and the politics surrounding it. The agency did not make her available.
McCarthy visited Durango once, a week after the Aug. 5, 2015, spill, where she spent 15 minutes answering questions from the media. She made no public appearances during her trip to Durango, instead meeting behind closed doors with federal and local officials.
In the days and weeks after the spill, questions related to the incident were directed to Washington, D.C. To this day, those inquiries are handled by headquarters – a symbol of the bureaucracy that lingers over the catastrophe.
EPA spokespeople have largely fielded the questions, with higher-ranking officials, managers and coordinators on the ground mostly kept shielded from the public and media. The agency has required formal records requests for documents related to the spill not posted on its website. Recently, the EPA released thousands of files in response to dozens of Freedom of Information Act requests, but the data was not labeled and is not easily searchable. The agency said it is working to make the documents – mostly email communications involving EPA employees and attachments and meeting invites – more accessible.
EPA spokespeople often ask for questions to be emailed, which results in statements sent in reply. It’s difficult to get follow-up and clarification questions answered by EPA employees actually working on the project; those questions are also directed to Washington.
The agency has been more forthcoming when it comes to questions related to a possible Superfund listing for the site, which could be approved as early as the fall. That listing would pump millions of dollars into reclamation efforts.
The EPA’s critics say that it was the agency’s “insufficient planning” that led to the spill. The agency was heavily criticized for its public relations response immediately after the spill, which has been exacerbated by outstanding financial claims from individuals and local governments.
The politics was complicated by a multi-state response, including New Mexico and Utah.
“It begins with the spill,” said U.S. Rep. Scott Tipton, R-Cortez, one of the EPA’s biggest critics. “Had there been no spill, there would have been no hearings. For anyone to assign that this was retaliation, there was none. The EPA created the spill and they admitted to it.”
For Republicans, the EPA spill was a gift. The agency and its federal partners were facing attacks last summer over a slew of rule-making when the spill occurred.
Federal proposals included stringent carbon pollution standards, ozone limitations, expanded oversight over water and regulations on hydraulic fracturing, to name a few.
Tipton acknowledged that it might seem like the GOP was attempting to politicize the catastrophe. But he said frustration with the EPA and other federal regulatory agencies has not solely fueled the attacks.
“We all want to be able to have the answers, we want to make sure communities are whole, we want to make sure the EPA does not replicate the same problem that they caused,” Tipton said.
Mathy Stanislaus, an Obama appointee who serves as the assistant administrator in EPA’s Office of Land and Emergency Management, spoke with the Herald about the spill and EPA’s activities over the last year. He was the only high-ranking official made available for this one-year review, despite requests to speak with others on the administrative level.
“The incident brought acute focus on the impact of mines and on water quality on communities,” Stanislaus said. “It also underscores the need to establish a more rigorous process throughout the federal government.”
On Monday, the EPA released a one-year retrospective, which was light on new details, but it continued to connect the state to the incident.
Federal officials claim that mining experts from the state backed the plan to reopen the mine entrance. But the Colorado Department of Natural Resources maintains that it “did not have any authority to manage, assess or approve any work at the Gold King Mine.”
The issue is likely to be highlighted as the state defends itself against a lawsuit filed by New Mexico in the U.S. Supreme Court. The state has until Aug. 22 to respond.
A separate case pending in a federal court in New Mexico goes after the EPA, the contractor and private mine owners. That case also could rely heavily on which parties were involved in the planning that led to the spill.
The 23-page EPA retrospective states that the agency has spent $29 million in response to the spill.
Stanislaus said the agency has established “best practices” for how to go about mining reclamation efforts, including how to measure pressurized water held up by debris.
It is widely believed that the EPA did not properly calculate pressure inside Gold King Mine when the spill occurred.
“Coming from the circumstance, I think this agency is really being proactive and really trying to institutionalize a rigorous process,” Stanislaus said.
As for costs that haven’t been paid, Stanislaus said, “We have no flexibility in the law,” underscoring that reimbursements must first be “substantiated.”
The agency is working with the Department of Justice regarding Federal Tort Claims Act claims that have been filed. It hopes to respond in the coming weeks.
Democrats also have expressed concerns about the EPA’s actions, especially with the reimbursement process.
Colorado lawmakers are working in Congress to pass legislation that would require the EPA to fully and expeditiously compensate all communities impacted by the spill. The legislation was introduced after reports that counties would not be fully reimbursed for costs associated with the event.
“We remain committed to working with the community to help mitigate the effects of the spill and make sure the EPA reimburses tribes, local governments, businesses and communities for the costs they incurred,” said U.S. Sen. Michael Bennet, a Democrat. “We’ve called on EPA to fully reimburse our communities for all of the expenses they took on.”
Where Democrats split from Republicans is on how to address long-term concerns. Democrats encourage reforms to mining laws that haven’t been updated since 1872, including establishing royalties for minerals to pay for reclamation efforts.
Conservation Colorado released a poll Thursday that stated that 67 percent of Colorado voters want to see elected officials do more to clean up abandoned mines.
“Without an adequate funding source, we will never have the funds we need to clean up our watersheds,” Bennet said.
Republicans tend to believe that “Good Samaritan” legislation would solve the problem. The measure would ease liability concerns so that private organizations can restore mines without fear of facing a lawsuit.
In the short term, however, Republicans have been aggressive about the EPA making good on financial promises.
“What’s insane is that we are a year out of this spill, and not a single private sector claimant has been repaid by the EPA,” said Colorado U.S. Sen. Cory Gardner, a Republican. “That is insane, it’s absurd and it’s offensive.”
“There’s certainly more questions to be answered by the EPA,” Tipton said. “They made it abundantly clear ... that they were the party at fault, that they did not have procedures in place ... They need to move beyond just saying we take responsibility, to actually fulfilling the obligation that they have.”
pmarcus@durangoherald.com
