While the U.S. Environmental Protection Agency has taken full responsibility for the 3-million-gallon spill of heavy metal-laced water from an inactive mine into a Colorado river last week, an environmental litigator doesn't necessarily expect the feds will be the only one footing the bill.
Cement Creek, which is a tributary of the Animas River was flooded with millions of gallons of mining wastewater, is viewed on August 11, 2015 in Silverton, Colorado. (Photo by Theo Stroomer/Getty Images)
While cost of cleanup and assessments for the area impacted by the plume that spanned three states will be a huge part, the claims for damages and finances lost are another.
At a news conference in Colorado Wednesday near the site of the Animas River, which last week was turned a shade of mustard yellow due to a spill caused by EPA contractors working on an assessment of leaks at the Gold King Mine, Administrator Gina McCarthy advised those impacted by the incident and seeking compensation for damages to file a claim.
"We will follow the federal government's process for responding to those claims," McCarthy said.
McCarthy also announced that the EPA has already released $500,000 to help supply clean water for crop irrigation and livestock in northwestern New Mexico.
Andy Thompson, a partner with the firm Smith, Gambrell & Russell who has a specialty in water-related and contaminated site litigation, told TheBlaze he thinks the EPA will willingly dole out funds to answer claims.
"It will set up process to pay those quickly and efficiently," Thompson said of the claims likely made by individuals, property owners and businesses.
But the EPA, he said, will be keeping record of this and then will likely turn around and file a cost recovery claim against the contracting company or the mine owner.
"I would see EPA and/or the contractor turning and making claims against that mine owner," Thompson said.
If a group of individuals band together or the states decide to bring the case to court against the EPA, Thompson added that he envisioned the EPA would bring other connected parties into the litigation as well.
And that's if the government allows itself to be sued in the first place. CNN legal analyst Danny Cevallos has more on this:
In modern times, for the EPA, it's good to be the government, especially when what it does is not illegal. Though the United States is no longer (technically) a monarchy, the government still enjoys today what is called "sovereign immunity" from civil and criminal liability. The sovereign immunity doctrine prevents any entity, governmental or private, from suing the federal government unless -- unless the government gives its permission -- to be sued. And, as you might expect, when the government decides when and if the government can be sued, well, they have a tendency to side with themselves.[...]
Just because the government consents to being sued doesn't mean that the government can't make it an unappetizing process. Citizen suit provisions -- against both federal and state agencies -- usually require extra obstacles, like formal notifications in advance of filing the lawsuit. Claims for civil wrongs against the government are barred unless presented in writing to the appropriate Federal agency within two years.
The takeaway: Even when the government waives its immunity, it still partially cloaks itself in all manner of procedural defenses against a would-be plaintiff.
A settling pond is used at Cement Creek, which was flooded with millions of gallons of mining wastewater, on August 11, 2015 in Silverton, Colorado. The Environmental Protection Agency uses settling ponds to reduce the acidity of mining wastewater so that it carries fewer heavy metals. (Theo Stroomer/Getty Images)
The attorneys general from the three affected states — Colorado, New Mexico and Utah — met earlier this week and said that while a lawsuit is not off the table, they are giving the federal government the opportunity to do the right thing. Navajo Nation President Russell Begaye said he planned to sue the mine itself and the EPA.
Thompson said all parties that the EPA could try to pass some responsibly onto are likely preparing their legal battles now and that the finger pointing has already begun.
The owner of Gold King Mine Todd Hennis told CBS News that the water didn't come from his mine but an adjacent one, an accusation which the Sunnyside mine owners deny. He also said he never even wanted the EPA at the site in the first place, but he was fined daily four years ago until he allowed access.
As for the contractor who was working at the site and triggered the deluge of contaminated wastewater when it disturbed material as it assessed an already established leak, the Wall Street Journal identified the company as Missouri-based Environmental Restoration. According to WJS, Environmental Restoration holds about $364 million worth of contracts with the EPA.
The company said in a statement that it would not provide information regarding its involvement in the spill, citing "contractual confidentiality obligations."
The EPA announced Thursday that surface-water testing in Colorado revealed very high levels of lead, arsenic, cadmium and other heavy metals in the middle of the sickly yellow plume released on Aug. 5. These metals far exceeded government exposure limits for aquatic life and humans in the hours after the spill.
The EPA said its analysis shows the heavy metals quickly returned to "pre-event levels" once the plume passed through the area it tested, on the Animas River between Silverton and the municipal water intake for Durango, a downstream city of 16,000.
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The Associated Press contributed to this report.
