The Navajo Nation and New Mexico vs. incompetence and bad faith in the USEPA
Duggan Flanakin
On August 5, five years to the day after suffering from a 3-million-gallon spill of heavy-metal-laden toxic wastewater from Colorado’s Gold King Mine, the State of Utah announced a settlement of its claims against the U.S. Environmental Protection Agency and several EPA contractors (who thus far have not been held responsible, accountable or liable) for their alleged negligence in allowing the spill.
The notorious, devastating accident turned Cement Creek and the Animas, San Juan and Colorado Rivers yellow all the way from Colorado through New Mexico and Utah and into Lake Powell. The settlement is good news. Yet those whose memories of are faulty at best may not realize that the EPA is still in the throes of a consolidated lawsuit filed by the State of New Mexico, the Navajo Nation, and a group of 295 Navajo farmers and ranchers (and 16 other individuals) who were harmed by the spill.
Indeed, the Obama Administration made it very clear early on that neither the EPA nor the Federal Emergency Management Agency would provide just compensation for the damages caused by the incident, in which an EPA contractor using a backhoe to dig away rock and debris from the adit (mine portal or entrance) opened the floodgates. The spill happened because no one had done any testing to determine the height, volume or quality of water inside the mine.
While the Navajo Nation hired the California law firm Hueston Hennigan almost immediately after the incident to represent its interests, the State of New Mexico on May 23, 2016, was the first to formally file a lawsuit seeking to recover damages from the EPA and its contractors.
New Mexico Environment Secretary Ryan Flynn explained, “We tried over seven months to pursue a diplomatic path forward,” but the EPA refused to accept any responsibility for the spill and its aftermath. Flynn estimated that New Mexico would lose $130 million in income, taxes, fees and revenues because of lost tourism, fishing and land use.
The New Mexico lawsuit also named Obama era EPA Administrator Gina McCarthy, Environmental Restoration, Kinross Gold Corp., Kinross Gold USA Inc. and Sunnyside Gold Corp as defendants and responsible parties. Another major reason for the lawsuit was that New Mexico and the EPA had been unable to “mutually agree” on a monitoring plan that “appropriately protects” state and tribal lands.
At the time, EPA Region 6 spokesperson David Gray asserted that his agency did take responsibility for the cleanup and was working to reimburse response costs and provide funding for observing monitoring plans developed by the state and tribe. His words held no sway and were not backed up by action.
Meanwhile, the Navajo Nation had its own share of frustrations with the federal response to the incident. According to Nation Attorney General Ethel Branch, “The impact has been devastating to our culture and economy, as well as to the peace of mind of our people. With unknown amounts of fine sediment in our water we now face the risk of reliving this nightmare with every major increased water flow event affecting the river.”
The Nation filed its lawsuit on August 16, 2016 – noting that Navajo farmers had had to abandon large portions of their fields in the hopes of salvaging limited plots, and livestock had become dehydrated due to the lack of water that also dried up corn crops.
In filing the lawsuit, Navajo Nation President Russell Begaye complained that the tribe had to fight for even the tiny $1.1 million in compensation provided from the EPA – which came only after the tribe threatened legal action. “EPA, we’re holding your feet to the fire. We will not let you get away with this. We will be here,” Begaye asserted.
Then in August 2017, the EPA reversed Region 6 Administrator Gray’s admission of responsibility. In February 2018, however, U.S. District Judge M. Christina Armijo opted to leave the now-consolidated lawsuit intact. Two years later, on July 26, 2018, the EPA again asked a federal judge to dismiss the case [and the Utah case], claiming that crews were already working on the cleanup.
In their filing, the EPA’s attorneys claimed that “Granting any relief in New Mexico, within the Navajo Nation, or in Utah would conflict and interfere with EPA’s exclusive jurisdiction over its on-going response action activities and cleanup remedies.” [emphasis added] How paying reparations or assisting private, state and tribal cleanup would “interfere with” agency jurisdiction was never explained.
A month later, EPA was hit with yet another lawsuit, this one filed on behalf of 295 Navajo farmers and ranchers from New Mexico. Attorney Kate Ferlic argued that these farmers and ranchers had lost crops and livestock and had to pay to haul clean water because they could no longer use water from rivers that were still polluted with heavy metals and other dangerous chemicals.
U.S. District Judge William P. Johnson immediately rolled the farmers and ranchers suit into the Navajo and New Mexico (and Utah) suits (there was also a suit involving a small number of New Mexico citizens). Once again the EPA sought to have the reconsolidated lawsuit thrown out. But on February 28, 2019, Judge Johnson denied the EPA’s latest ploy.
As of this writing, while Utah has settled with the EPA and withdrawn from the consolidated lawsuit, the other claimants – New Mexico, Navajo Nation and two groups of citizens – are still awaiting compensation for the damages caused by the EPA’s alleged negligence in 2015.
Five years have passed, and the Navajo in particular are still hurting even as they also battle the health, economic and unemployment consequences of the COVID 19 pandemic and forced shutdown of the tribe’s coal mine and coal-fired power plant. Compounding these problems, restrictions on travel and in-person interviews have slowed the ongoing discovery process such that the projected trial date has been pushed back to fall 2021, further postponing any compensation.
While the Utah settlement may provide some hope for a pretrial resolution of the New Mexico and Navajo (and farmer and rancher) cases, hard-line positions taken over the past five years by the EPA – and the plaintiffs’ determination to finally win some meaningful relief – suggest that, barring some pre-election-day “miracle,” this consolidated case could easily drag on for years.
Duggan Flanakin is director of policy research for the Committee For A Constructive Tomorrow (www.CFACT.org)
Seemed like kind of a big deal at the time. Events today dwarf its damages by orders of magnitude.
It actually is a big deal. The heavy metals released by this deluge now reside in a thin layer of sediment all the way to Lake Powell. There are also many other older layers that contain large amounts of metals – especially mercury, but this latest one will take 20 to 30 years to be safely buried assuming no major flood that disrupts the process.
For many generations one will have to be very careful if digging near the affected rivers to avoid opening up such layers to moving water. This can come as a surprise say in 50 years when someone digs a new irrigation ditch and ends up with polluted waters.
Old mining practices were very destructive to the environment – I won’t defend them. But cleanup efforts have to be performed by knowledgeable professionals in order not to make things worse. The EPA was worse than a mining company using their more-or-less amateur efforts to open the mine – a mining operator would have at least been ready to catch the outflow. The EPA acted with arrogance and much stupidity – and then deliberately tried to hide the disaster and then dodge any blame for it.
” and then deliberately tried to hide the disaster and then dodge any blame for it. ”
And they succeeded ! By settling out of court, there is no ruling against them no one is held responsible. Win-win.
Thanks to Duggan Flanakin for these articles reminding us just how bad this was and bringing us up to date on the total lack of accountability of this great, environment protecting bunch of activist cretins which constitute the federal EPA.
Not to those who still have to live with the consequences of this screw up.
This legal boondoggle is a flaming example of the practical mechanics of governance in the United States today, wherein unelected government agencies acquire so much power that they can wreak disasters, yet avoid all personal and organizational responsibility for the damage.
Not for nothing has the expression ‘deep state’ come into common use. It is a conspiracy against the Constitution and against the voters and taxpayers who must obey the diktats, but have no recourse against these potbellied desk jockeys. It’s about time that Congress resumed responsibility for legislating, instead of handing off rule-making to faceless cabals such as the EPA. And about time the Executive Branch, whose creatures these cabals are, got a new broom and swept the agencies clean.
While your first paragraph was dead-on right… Do you really think *our*congress could do any better? At least half of them are so scientifically ignorant they should just slaughter chickens on an alter to make their decisions – they would have higher odds of making good decisions.
I am thinking these bureaucracies should be given limited power which can only be increase through a majority of both houses of Congress and the President – in other words they start with very basic powers and any attempt to go beyond those takes an act of congress. The ability to regulate without oversight broadly stated areas is a real problem.
Trump is right on the mark in requiring two regulations have to be retired to promote one new one. He should increase this to four or five to one.
Robert of Texas, the last I heard, Trump was closer to 23 to one in rescinding old regulations.
Promises made, promises exceeded, at least in this case.
Insufficiently Sensitive, you are basically correct, but the United States Federal Government is handled differently by difference elected political philosophies. It was President Obama who weaponized the EPA, the IRS, and the Department of Justice. In your reports you describe how the EPOA strong-armed the mine owners to allow the EPA to open the portal, but threatening a daily fine. The IRS famously attacked political enemies of the liberal agenda, with audits and denial of registration. The Department of Justice undertook the infamous “Fast and Furious” straw man-gun running program that resulted in hundreds of guns doing directly into the hands of Mexican drug cartels. Currently, President Trump is about as polar opposite as you might find (sure, he tweets without a lot of thought), and let’s hope we get four more years of relief from the Deep State, especially the Obama era holdovers.
3 million gallons is equal to 5 cfs for 24 hrs. A peek at the Animas flow for today
in Durango shows a flow of 150 cfs. https://waterdata.usgs.gov/co/nwis/uv?site_no=09361500
This spill in terms of percent of total flow was small.
I have a senior water right downstream
from a epa superfund site. The epa has spent millions of dollars on these leaking old
mines. These mines leak into the headwaters of the stream where I get some of my
irrigation water. Some 150 mines.
The interesting thing about this is when the government agents go down
stream a few miles below the old mines they can”t find any problems in the stream.
In other words the pollution is absorbed into the system.
When I see the legal complaint on the above spill I am curious to what impacts were seen
throughout the drainage..and how they were determined….I realize not all pollutants
are the same and understand some drainages have been seriously impacted by long term mine
pollution, eg the Clarks Fork river in MT. but thats a matter of millions of tons
of material over years vs a single event with this situation.
Thanks, Dan-O, for a little “ground truth” on this matter
Yes, Gold King was a big screw-up, but water analyses taken a week later showed no concentrations above “level-of-concern” values. Back in the 70s, the phrase “Dilution is the Solution to Pollution” was coined, not as a feckless wave-off of concerns but as an acknowledgement of reality.
Normally, large fluid quantities are expressed in “barrels” or “acre-feet”. Whenever the story is cast in “environmental destruction/pollution” terms, the metric gets stated in “gallons” (increasing the panic-number by 31.5X over barrels, or 326,000X over acre-feet). I always wonder why the reporter doesn’t go full-stupid/alarmist and state the quantity in “ounces” (thereby inflating the panic-number by 2,000X over barrels and 21 millionX over acre-feet)
“3 million gallon” spill was about 9 acre-feet or 95,000 barrels. Not so scary
The yellow color (carried by clay minerals derived from the geologic alteration that created the ore deposit) was gone in days (other than immediately adjacent to the mine), and concentrations of lead, mercury, cadmium and other “toxic pollutants” quickly declined to nothing-burger concentrations due to dilution
So what exactly was the damage suffered by the Navajo and the states? Other than self-imposed damage caused by reluctance to use water that was no longer “polluted” based on the analytical results?
I’m surprised that the Trump administration didn’t try to settle with those affected, after all it would make the previous admin and EPA look bad. Why continue the stupidity of the past?
If the money could be just taken out the EPA’s annual appropriations, I think they would have. That would be true justice, because the EPA would have to furlough and shiutdown many of its on-going operations.
The problem is the money for an court-ordered settlement against the US Government must come from a US Treasury to pay-out and if it exceeds some annual budget allocations for such things, an additional appropriation from Congress would be needed. The plaintiffs and their contingency-fee paid lawyers in this case are seeking billions not millions of dollars in damages. New Mexico and the Navajos and about 300 individuals filed lawsuits seeking more than $2 billion in damages.
Part of the issue is the deep state combined with unions. Even with a change at the top entrenched bureaucrats push back and are protected from getting fired by their union contracts. It pretty much leaves them free to give the middle finger to their boss if they don’t agree. Eventually the boss will win but it’s a long slog.
The most significant thing the Gold King mine toxic water release did was blow-away the Obama Admin’s claim to being “Good Stewards of the Environment.”
Stated intentions are meaningless when the results argue otherwise.
Just as with everything else the Obama Admin did, from ObamaCare to the mess his policies and diplomatic fecklessness created in Syria and Iraq, the results were almost always the opposite of stated intentions.
To that end, it almost seems as if the EPA higher ups (the Gina McCarthy’s and her staff) wanted a mine disaster in order to bring more pressure on the Republican-controlled Congress to give the EPA more authority and money, not thinking how bad it would hit their reputation since the leftist media would downplay and try to ignore the reporting.
Keep in mind the Democrats in 2015 had fully, and universally bought into the belief that a no Republican would occupy the White House again for a long, long time. That belief affected every action they took, believing that a like minded administration would always be on the bureaucrats’ side of more money, more regulations.
Doesn’t the EPA have public liability insurance?
Yeah, the biggest backstop of all, the US Treasury. That’s why it is such a gold mine for the ambulance chasers to get a case against the US government where sovereign immunity doesn’t exist.
Don’t be silly…it was small contractor operating a digger in a remote area, a snafu in other words. Nothing to do with politicians anywhere . That’s the same reasoning that blames Trump for every action of the current federal government no matter how minor or remote from Washington
Higher ups are never responsible for the actions of those they hire?
Good luck with that..as I said its a minor problem. lets keep the blow torch on Washington for real cases of ‘from the top’ negligence.
In the 1980s, I worked for TRW Ballistic Missiles Division, in the Propulsion and Ordnance Engineering Department. We were the System Engineering contractor for the Air Force Ballistic Missile Office. We had just developed and fielded the Peacekeeper (nee MX) ICBM, the most successful ICBM in history, and were now off developing the Small ICBM (SICBM) – a “mobile” strategic missile.
I was the Propulsion Engineer for the SICBM Post Boost Vehicle (PBV), a small, hydrazine monopropellant 4th stage of the missile that would complete the job of putting its single warhead on the proper trajectory.
Martin Marietta was the PBV contractor, and was conducting a series of ground random vibration tests on a development unit at National Technical Systems (NTS) in Saugus, California. As with almost everything Martin did on that program, they screwed up the structural design of the propellant manifolds. After a few hours on a shaker, the outlet tube from the propellant tank broke due to fatigue. As a result, all of the hydrazine in the propellant tank leaked out into the shaker pit, a concrete structure like a swimming pool housing an electromechanical shaker capable of vibrating motors loaded with as much as 600,000 pounds of Class 1.3 propellants.
The SICBM PBV had 35 pounds of hydrazine. But as a result of the spill, all of the Martin program management and cognizant engineers, and at least one of its vice presidents, a number of Air Force BMO officers up to the Colonel level, me (as the TRW SE/TA person), and two hapless bureaucrats from Cal-OSHA, descended on Saugus to handle this dreadful event. It was as if we had spilled a million pounds of mercury into a schoolyard – boiling mercury.
The Cal-OSHA guys at first tried to show that they were in charge, but were smart enough to see that they were way, way outclassed by the caliber of people who had been flown in from all over the country (I drove, however). Fitful meetings were held to formulate remediation plans – despite the fact that 35 pounds of hydrazine (4.2 gallons) lay at the bottom of a 30,000 gallon shaker pit, in a building rated for close to a million pounds of class 1.3 propellant.
It was decided to use sodium hypochlorite to “neutralize” the hydrazine, then vacuum up the residuals. The time and money spent coming to that decision horrifies me to this day.
Especially since I had had a conversation with the lead NTS test technician, asking his take on the whole matter. He just shook his head sadly, and said “I wish I had just hosed the damn thing down.”
That was the most intelligent comment I heard during the entire event.
MSK,
I know how you feel. At age 33 I was borrowed from my job to take over a pilot plant project for stripping iron from the beach sand mineral ilmenite. The process used chlorine gas at 1050 deg C at the rate of 10 tons per day. A bad leak could have wiped out the town, so we did not have one. At least chlorine had known effects, hydrazine though must be nasty because it has a y and a z in its name – spooky. I wonder what hudles a similar project would face today, in this era of excessive restriction, regulation and romancing the science. Geoff S
Geoff S
Geoff, I’d be much more terrified of chlorine, especially at the rates you were using it, and the temperature condition. Hydrazine’s hazards are the most overblown of any commonly used chemical I know of, mostly due to NASA’s “safety culture” having too much time on its hands for the past 53 years (it started after the Apollo 1 fire). Yes, it’s toxic, and no, it’s not the demon substance NASA has made it.
The only rocket propellant I’d be scared of is nitrogen tetroxide – because I was accidentally spray with a relatively tiny amount of it, and though I immediately closed my mouth and nose while running out of the orange cloud, I could taste the nitric acid in my mouth. No ill effects, fortunately. But I took the SCAPE suit training I had as a Peacekeeper Stage IV first responder very seriously.
MSK,
in my lab, at times we averaged about a litre a day of hydrofluoric acid, HF, for dissolving rock material in the boiling, fuming acid. That is a chemical to be feared. On the maxim that someone else is always worse off than self, I feared for those working with communicable diseases, some of which are really horrible.
I also started the measurement of Mercury in human hair with the then new method of atomic absorption spectrophotometry. It ccurs to me that people today are too often armchair experts, with no actual experience with what they write and speak.
Hence, my comments about the possibility that this spill of mine waste is exaggerated by ignorati.
How many people a year, globally, are significantly harmed by the release of chemicals that should have been contained? Any estimates from informed readers?
Geoff S
Bleach?
you used bleach?
40 cases of chlorox for $200, or a few barrels of the stronger stuff from a clean room?
(The chlorox may have had some incidental contaminants … hopefully you used the stuff with the appropriate controls just to make sure you didn’t contaminant the shaker:)
Many bloggers on WUWT consider the science and opportunism of the climate change meme to be wrong. Many consider climate change to be much ado about nothing, then complain about the dramatically high costs of acting on the belief that the hypotheses are correct. I agree with this.
But now, I read of terms like “toxic metals” and “polluted with heavy metals and other dangerous chemicals” and a tone that suggests that a genuine tragedy has happened. Perhaps it has, but the case is far from clear. Can anyone report on how many people have been killed, how many hospitalised, how many genuinely displaced from their normal income-producing activity? Would there be this fuss if the chemicals where colourless?
We have the spectre of a cleanup that takes more years than the mine operated. That immediately suggests that something is wrong with comparative values. If it was a large risk, it should have been cleaned up fast, like in a couple of years. Is it possible that it is an invented risk, one promoted by the EPA whose continuing jobs depend on more and longer crises?
At one stage of my career, we inherited a site where a car battery plant has operated. There were chunks of lead batteries in the levelled soil and a bit of acidity from spilled sulphuric acid. Our EPA got busy, sued us and lost. Part of the action involved claims about the toxicity of the element lead, Pb, as a metal and in various forms. I hired the best expert I could find, who was one of the 5 top medical researchers globally, Dr Allen Christophers. 30 years of experiments and experience. He was highly sceptical of claims of Pb toxicity from small doses but fully accepted high dose toxicity – but that created entirely different medical conditions. Then the do-gooder scientists allege to have shown mental impairment of children who had tiny doses. Sorry, the literature is so bad that trucks can drive through it.
We operated, off and on, about 15 metal mines and cleaned up afterward, no harm. As chief geochemist, I had responsibilities. No humans were harmed in the making of this commercial.
We really are in Caveat Emptor territory here. So much assumption, so little proof. Geoff S
Toxicity is a function of dosage and exposure; an extremely misrepresented term, especially in the press.
The Teflon Presidency of Barrack Obama and EPA was on full display in living (orange) color.
Maybe this was were the Democrats developed their aversion to the color orange.
If this had happen under Bush or Trump there would have been massive and lasting impact locally with protest camps, new friends of the river groups, and memorial (demonizing) parks built along the river. Who knows, Hickenlooper might have even gotten tracking as the protest leader Governor.
One thing that this case demonstrates, yet again, is the toxic waste dump that our court system has become. Due process has become it may come due someday, but not in our lifetime. Mann v. Steyn, anyone?
In this case, it seems that a reasonable set of assays of toxicants downstream of the leaks and in soil and water along the outflow could be done, and appropriate damages could be assessed. Of course, this was necessitated by incompetence of the EPA “experts” and their contractors followed by the political necessity to protect the reputation of the incompetent/corrupt McCarthy and the sainted BHO.
For those inclined to give the EPA a pass on this, I recommend this article from 2015. A retired geologist wrote an op-ed to the Silvertown Standard warning of the impending disaster. He felt that the EPA had ulterior motives in allowing the spill to occur.
https://www.thegatewaypundit.com/2015/08/letter-to-editor-predicted-colorado-epa-spill-one-week-before-catastrophe-so-epa-could-secure-superfund-cash/
“ this consolidated case could easily drag on for years.”
Nah, not to worry, Biden wins in November and this suit will be tossed the next day.