EPA May Have Overstated Colorado Mine Spill Damages
The U.S. Environmental Protection Agency says it has almost finished an overdue review of damage claims from a Colorado mine waste spill that the agency accidentally triggered, but an internal agency accounting of those claims appears to be off by tens of millions of dollars.
An EPA spreadsheet says the claims for economic losses and personal injuries from the 2015 spill at the Gold King Mine totaled more than $2.5 billion. The EPA provided the list to the Associated Press this month under an open records request.
But the list appears to overstate by $100 million the value of claims submitted by a law firm on behalf of about a dozen clients.
It’s the latest in a series of complications and setbacks since EPA contractors working at the inactive mine unleashed 3 million gallons (11.3 million liters) of wastewater carrying arsenic, lead and other toxic metals. A yellow-orange plume of pollution tainted waterways in Colorado, New Mexico, Utah and Native American lands, putting the rivers temporarily off-limits for a range of uses from drinking water to rafting.
The EPA pledged to make good on the damages, and about 400 private parties submitted requests for $318 million, according to EPA documents. The claims cited lost wages and business income, ruined vacations, property damage, loss of property value and health problems.
New Mexico, Utah and the Navajo Nation filed much larger claims. New Mexico sought at least $130 million, the Navajos $160 million and Utah $1.9 billion. Utah’s claim cited unspecified damages to water, soil and wildlife.
Danny Booher, a New Mexico resident who asked for $5 million for health problems and property damage, said he was frustrated by the wait and the lack of updates.
“It’s been over two years,” he said. “We’re pretty much out here left to dry.”
Booher’s claim was filed by Will Ferguson and Associates, an Albuquerque, New Mexico, law firm representing several residents of the state in their cases against the EPA.
The firm ended up filing 13 claims totaling $120 million, but the recently released EPA spreadsheet says it was 14 claims totaling $220 million.
Will Ferguson, the firm’s managing partner, said the extra $100 million may be a holdover from an earlier claim that the firm revised downward, but was never deleted from the EPA’s list.
The EPA said the $220 million in the spreadsheet reflects the firm’s original claim, but agency documents released last year show the original claim was for $900 million. The EPA didn’t immediately respond to an email asking for clarity, or whether it could verify the accuracy of its list.
The compensation requests were submitted under the Federal Tort Claims Act, which allows parties to ask the federal government to repay them for economic losses and injuries caused by the negligence or wrongful action of federal employees.
The dollar amount of some of those claims may be moot. Anyone who files a lawsuit against the federal government can’t be reimbursed under the tort claims law, experts say.
Several parties filed both lawsuits and tort claims, including New Mexico, Utah and the Navajos, so their allegations will be settled in court, rather than under the tort claims law.
The amount that New Mexico claimed as economic losses is unclear. State officials have said they sought $130 million, but the EPA says it’s $154 million.
The EPA says the higher number includes other types of expenses, including the cost of responding to the original spill and monitoring water quality in the future. The agency has been reviewing – and in many cases paying – those sorts of expenses separately.
It wasn’t clear why they would be included in the state’s tort claim. In an email, New Mexico attorney general’s spokesman James Hallinan said only that the $154 million figure “it is not a limitation on the damages we are seeking.”
In January 2017 – the final days of the Obama administration – the EPA rejected the Federal Tort Claims Act requests, saying sovereign immunity prevented the government from paying. That angered Congress, and President Donald Trump’s new EPA chief, Scott Pruitt, promised to review the decision.
On Aug. 4, Pruitt announced the EPA would reconsider claims from parties who hadn’t filed lawsuits, saying the agency should be held to the same standards as everyone else.
The EPA said at the time its deadline for completing the review was the end of 2017, but that passed with no announcement of any decisions.
Pruitt told The Denver Post on Monday he plans to finish the review by the end of the month. He didn’t say when any claims might be paid.