No private businesses or individuals will be reimbursed for claims of damages from the Gold King Mine spill, the Environmental Protection Agency announced Friday.
In total, 73 claims totaling $1.2 billion were brought against the agency, including agricultural claims for fear of watering crops with tainted water, loss of wages for rafting companies and reimbursement for purchasing bottled water instead of drinking-well water that might have been contaminated, according an EPA spokeswoman.
The announcement brought outrage from many, including David Moler, owner of Durango Rivertrippers & Adventure Tours.
“This is yet another devastating blow from the EPA,” he said. “As a small business that relies on the river to make our living, we’re certainly drastically impacted by the event that took place in 2015. We were shut down and lost substantial amounts of business.”
Gov. John Hickenlooper released a statement, saying the state would continue to fight for residents.
“We are disappointed in the EPA’s decision. We expected the EPA to make good on its promise to reimburse any Colorado resident or business that suffered a legitimate loss as a result of the spill,” he said in the statement. “The Attorney General has agreed to help us find ways we can make sure our residents receive just compensation.”
The EPA’s decision to dismiss the claims comes after a ruling Wednesday night that the agency was protected from lawsuits by the Federal Tort Claims Act, under the discretionary function exclusion of the act, said the spokeswoman, who the agency asked not be named.
“When passing the FTCA, Congress wanted to encourage government agencies to take action without the fear of paying damages in the event something went wrong while taking the action,” said an EPA statement provided to The Durango Herald. “So the act does not authorize federal agencies to pay claims resulting from government actions that are discretionary – that is, acts of a governmental nature or function and that involve the exercise of judgment.”
“Congress passed this law saying that when the government is negligent, you can sue them, but it is a very narrow (window),” the spokeswoman said.
“In this case, the EPA employees were making judgments about how to go about dealing with the Gold King Mine and this happened,” she said.
Because of this, the tort act cannot be applied to lawsuits brought against the EPA.
Contractors working for the EPA breached the mine adit on Aug. 5, 2015, releasing more than 3 million gallons of toxic mine sludge into Cement Creek, which flows into the Animas River. The employees who were present at the spill also are exempt from being sued, the EPA said.
Those affected by the spill quickly responded to the claims being dismissed.
“New Mexico’s children, families and economy have already been devastated by the EPA’s horrific actions, and now the EPA is revictimizing our state and the Navajo Nation with its reckless refusal to take full responsibility for the toxic Gold King Mine spill,” New Mexico Attorney General Hector Balderas said in a statement. “Our families and farmers rely on this water, and I will continue to aggressively pursue litigation to obtain justice for our culturally unique population and fragile economy.”
The state of New Mexico has a lawsuit pending against the EPA over the spill.
Tom O’Keeffe, owner of Durango Rafting, said he was outraged by the EPA’s decision.
“They can’t just let themselves off the hook unilaterally, that’s not right,” O’Keeffe said.
La Plata County officials expressed their empathy for those affected by the ruling.
“The Gold King Mine spill was a costly event for communities throughout the Animas River drainage, and those who experienced losses as a result should be made whole,” said Megan Graham, public affairs officer for the county. “We have a lot of empathy for those private entities seeking reimbursement for revenues lost because of this spill.”
Individuals who have had their claims denied by the EPA will have six months to challenge the ruling in a U.S. District Court.
Moler said he will challenge the ruling to the best of his abilities, which might be financially limited.
“We were led to believe we could fill out our form and expect to see some level of compensation for the loss of profit,” Moler said.
The veracity of claims was not confirmed by the EPA.
“We never looked at the accuracy of these claims because we were focused on the issue of whether you could or could not be in court, which has nothing to do with how people are harmed or the fact behind that,” the spokeswoman said.
Some of these claims asked for large amounts of money with little justification for the damages, she said.
Moler said he was under the impression businesses could only put in for the loss of profits and felt he did his due diligence on the claim submitted to the EPA.
Claims for reimbursement can be submitted until August but will be denied under this judgment, the spokeswoman said.
State Sen. Don Coram, R-Montrose, announced in December that he will introduce a bill to the Colorado Legislature seeking to expedite the claims process for the spill and ensure involved parties were reimbursed. He said he was taken aback Friday by the EPA announcement and would contact Colorado’s Attorney General Cynthia Coffman on behalf of businesses and individuals who had submitted claims.
“I’m just appalled that they’ve done this, and we’re not going to accept this,” he said.
Colorado U.S. Sens. Cory Gardner and Michael Bennet and Rep. Scott Tipton released a joint statement Friday expressing their frustrations with the EPA.
“I spoke with EPA Administrator Gina McCarthy earlier today, and she informed me the EPA is not processing these claims,” Gardner said. “This decision is disappointing, and I plan to work with Senator Bennet and Congressman Tipton on legislation to ensure my constituents are made whole from this EPA-born spill.”
Bennet said he is disappointed that the EPA has rejected all claims for damages under the FTCA when “the record is clear that the Environmental Protection Agency was responsible for the spill.”
Lperkins@durangoherald.comThis article has been updated to remove the name of the spokeswoman for the Environmental Protection Agency. The EPA had requested before the interview that her name not be published.