- The Washington Times - Thursday, January 19, 2017

DENVER — The Obama administration exits with an ugly environmental blot on its record after failing to hold itself financially accountable for the Gold KingMine spill, but Republicans are hoping President-elect Donald Trump will clean up the mess.

In one of its final moves before President Obama leaves office, the Environmental Protection Agency refused to pay 73 claims totaling $1.2 billion filed by tribes, farmers, river-rafters and local governments from the August 2015 wastewater spill, citing sovereign immunity under the Federal Tort Claims Act (FTCA).

Western lawmakers were floored by Friday’s decision, pointing to EPA Administrator Gina McCarthy’s numerous assurances that the agency would take responsibility for the damage caused by the EPA-led crew, which unleashed 3 million gallons of mustard-colored contamination into the Animas and San Juan rivers and three states.

“They said they would make everyone whole, and now they’re backing away from that decision,” said Rep. Scott R. Tipton, the Colorado Republican who represents communities in the Durango area hit by the spill.

At the same time, the agency’s 11th-hour reversal affords the Republican president-elect a unique opportunity to notch a quick conservation coup by reimbursing victims for the environmental damage suffered under the Obama administration.

Republicans were heartened after Oklahoma Attorney General Scott Pruitt, tapped by Mr. Trump to head the EPA, agreed Wednesday at his Senate confirmation hearing to revisit the decision.

“I applaud Attorney General Pruitt’s commitment to review the EPA’s decision to not process FTCA claims related to the Gold KingMine spill,” Sen. Cory Gardner, Colorado Republican, said Thursday in a statement. “The EPA is responsible for the injury and economic losses that took place in Southwest Colorado, and that’s why I’ve worked to see that the agency is held accountable and that my constituents are made whole.”

The EPA announced Friday it had rejected the claims after “an independent claims officer within the Environmental Protection Agency” concluded that the agency “is not legally able to pay compensation for the FTCA claims.”

“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 the agency. “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.”

That explanation failed to satisfy the Navajo Nation, which submitted a claim for $160 million in damages to farms, ranches and the water supply from the toxic spill that flowed downstream into the New Mexico reservation.

Navajo Nation President Russell Begaye, who said the EPA had “poisoned our water and now are turning their backs,” pledged to turn to Congress and the Trump administration for relief.

“It is unconscionable that our farmers have been waiting nearly a year and a half for this negative decision,” Mr. Begaye said in a statement. “There is no reason our families on the front line of this spill should have to tighten their belts while the federal agencies responsible proceed along unaffected by their own actions. We plan to work with this Congress and the next administration to bring justice and accountability for our Navajo people.”

Mr. Begaye plans to attend the Friday’s inauguration ceremony, according to KPNX-TV in Phoenix.

Navajo Nation Attorney General Ethel Branch took a jab at the EPA for waiting until the last minute to drop the bad news.

“This was announced nearly one-and-a-half years since the EPA triggered this spill, but only six days before the EPA political officials leave their posts,” she said.

Even Democrats, including Colorado Gov. John Hickenlooper and Sen. Michael F. Bennet, were frustrated by the EPA’s about-face.

“The record is clear that the Environmental Protection Agency was responsible for the spill. It is extremely disappointing that the EPA has categorically rejected every single claim filed under the Federal Tort Claims Act,” Mr. Bennet said in a statement. “The agency has broken its promise to make our communities whole in the days after the spill.”

An Interior Department technical review released in October 2015 found that the crew failed to gauge the water pressure behind a wall of debris before removing it at the inactive Gold KingMine near Silverton, Colorado.

Still, Interior Secretary Sally Jewell told the House Natural Resources Committee she knew of nobody being fired or reprimanded as a result.

In Mr. Tipton’s view, it would have been a far different story if a private company or individual had been responsible for causing the accident.

“My opinion is yes, they probably would have been required to pay the damages if it had been a private company. They probably would have already been filing for bankruptcy, and there probably would have been a criminal investigation,” Mr. Tipton said.

“I think that’s a lot of the frustration,” he added. “We see the EPA acting unilaterally and not holding itself to the same standard as the private sector.”

EPA officials have pointed out that their crews were on the ground shortly after the spill providing emergency assistance and monitoring water quality.

“The EPA has taken responsibility for the Gold KingMine incident, including providing financial support, continued water treatment and monitoring, developing and implementing a permanent remedial plan for the broader mining region, and research to improve our understanding of how contaminants move through complex river systems,” said the agency Friday.

Earlier this month the EPA issued an analysis concluding that the same volume of metallic drainage that spewed from the mine in nine hours would have still dripped into Cement Creek over the course of four to seven days.

Saying “it would have happened anyway” didn’t wash with Republicans, who argued that the torrent of toxic wastewater did more damage to the environment than the gradual leak.

“For the EPA now to say it’s not a big deal shows that it’s an agency that’s looking out for itself,” said Mr. Tipton, “and not looking out for the people that it impacts.”

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