In the announcement, the EPA said that federal law prohibits them from paying for damages, although they say the claims for damages could be refiled in federal court or Congress could authorize the payments.
The law the EPA is referring to is called the Federal Tort Claims Act and a provision of that law prevents the agency from paying claims that result from “discretionary” government actions. And it is the “discretionary” actions in Section 2680 of the code that the EPA is using to keep from paying for the damages.
“Congress passed the law to allow government agencies — and in this case, contractors working on their behalf — to act “without the fear of paying damages in the event something went wrong while taking the action,” according to a press release from the EPA.
But here’s what is interesting — under the FTCA, a tort claim against the United States must be presented in writing to the appropriate federal agency within two years after the claim accrues, or it is time-barred. 28 U.S.C. § 2401 Is it any wonder why people are just hearing about this now?
“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 said, according to ABC News.
The 2015 Gold King Mine wastewater spill occurred on August 5, 2015, creating an environmental disaster at the Gold King Mine near Silverton, Colorado. EPA personnel and contract workers with Environmental Restoration LLC of Fenton, Missouri were attempting to mitigate pollutants from the closed mine.
They accidentally destroyed the plug holding water trapped inside the mine, which caused an overflow of the pond, spilling three million U.S. gallons (11 million liters) of mine wastewater and tailings, including heavy metals such as cadmium and lead, and other toxic elements into Cement Creek, a tributary of the Animas River in Colorado.
The disaster affected waterways, including rivers and homeowner’s wells in Colorado, New Mexico, and Utah, as well as the Navajo Nation. The EPA accepted responsibility for the spill, knowing they should have gone ahead with drilling into the mine from above in order to measure the water level directly before beginning excavation at the entrance. Had they done so, the disaster could have been averted.
According to the Farmington Daily-Times, Senators Tom Udall and Martin Heinrich, New Mexico Democrats, and Representative Ben Ray Luján, D-N.M., issued a statement saying they would continue pushing for legislation to hold the EPA accountable. They also added that it would be up to the courts to decide whether the EPA’s defense is legal.
