Recent Developments in the Gold King Mine Spill

by Megan H. Tracy

On Tuesday, May 4, 2016, the U.S. Senate Committee on Indian Affairs chair, Sen. John Barrasso (R-WY), and committee member, Sen. John McCain (R-AZ) formally requested a federal criminal investigation into the Gold King Mine spill. In a letter to U.S. Attorney General Loretta Lynch, Sens. Barrasso and McCain stated that evidence exists showing that the Environmental Protection Agency (“EPA”) was aware of the potential for a disaster at the Gold King Mine and failed to take the proper precautions. The letter further requests the Department of Justice to investigate whether EPA employees or contractors “may have committed crimes in connection with the spill, including but not limited to criminal violations of federal environmental laws, criminal negligence and obstruction.”

During the U.S. Senate Committee on Indian Affairs’ Field Oversight Hearing on “Examining EPA’s Unacceptable Response to Indian Tribes,” held in Phoenix, Arizona on April 22, 2016, Sen. McCain initially requested a federal criminal probe of the spill and assured the witnesses that the Committee is “a long way from finished with this issue.”  Having been highly critical of the EPA and its response to the Gold King Mine spill, during the Field Hearing, Sen. McCain stated “[w]hat is clear now is that not enough has been done.”

Navajo Nation President Russell Begaye, who has also been critical of the EPA’s handling of the spill, testified during the Field Hearing that it took two days for the EPA to even notify the Navajo Nation about the spill, despite the fact that the spill directly affected a river that flows through the Nation.  In a March 2016 letter to the EPA, President Begaye stated that despite public statements to the contrary, “the EPA has yet to compensate the Navajo Nation or individual Navajo people for the harms suffered as a result of the Gold King Mine Spill.”

In its defense, the EPA stated that it has spent more than $22 million on response efforts. Additionally, the EPA has reimbursed more than $1 million for response costs associated with the spill paid by Colorado, New Mexico, Utah, the Navajo Nation and Southern Ute Indian Tribe, as well as Colorado counties and towns.  However, only days after the Field Oversight Hearing was held in Arizona, the EPA announced on April 27th that it will not fully compensate Colorado’s La Plata County for the Gold King Mine Spill.  In fact, since the EPA’s emergency response activities officially ceased on October 31, 2015, that is the cutoff date for costs incurred in response to the spill which EPA will reimburse.  The EPA is also considering whether to designate the area around the Gold King Mine as a Superfund site, which would allow the government to access several million dollars of federal aid.

As previously reported in this blog, the Gold King Mine spill occurred on August 5, 2015 when an EPA-led crew inadvertently released 3 million gallons of toxic wastewater from abandoned mines in the Rocky Mountains.  The wastewater spilled into the Animas River and ultimately affected three states and two tribal nations.

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