By Hannah Bartges
“This is a tragic and unfortunate incident, and EPA is taking responsibility to ensure that it is cleaned up. The most important thing throughout this is ensuring the health and safety of the residents and visitors near the river. We are committed to helping the people throughout the Four Corner Regions who rely on these rivers for their drinking water, irrigation water and recreation. We know how important it is to them.”
-EPA Administrator Gina McCarthy on the Gold King Mine
On August 5, 2015 EPA personnel were investigating the Gold King Mine near Silverton, Colorado. As they attempted to treat mine water and determine the next steps in its remediation process, pressurized water began to leak out of the mine shaft. About 3 million gallons of mine water spilled into Cement Creek, a tributary of the Animas River. The mine water that entered the tributary system was highly acidic, contained heavy metals, and caused the EPA to declare miles of river unusable.
Although the EPA is attempting to remediate the harm the spill caused San Juan and its tributaries, much of the damage is irreversible. The most striking example is the effect the spill has had on the people of the Navajo Tribe. The Animas River flows through the Navajo lands into the San Juan River. The Navajo rely on the Animas and San Juan Rivers for drinking water, irrigation for their crops, and recreation.
The need for a thriving agricultural community in the Navajo Nation is striking. According to the 2000 Census, 42% of the Navajo Nation’s population was unemployed, and the median household income was $20,000. Although the majority of the Navajo’s income comes from mining, (51% in 2003), many members of the community depend on the Nation’s agricultural output for their families. Many Navajo also rely on the Animas and San Juan Rivers as drinking water. The Navajo Nation Environmental Protection Agency (NNEPA) estimated that 30% of the Navajo population’s drinking water does not come from public water systems. The members of the population that depend on the Gold King spill-affected rivers as a source of drinking water will not have an alternative source in the near future. The Gold King Mine spill will also have an impact on the Navajo’s tourism income. In 2003, three million people came to visit the Navajo’s land. The news of the spill will inevitably have an effect on the number of tourists that visit the area. The pristine landscape of the Navajo Nation has been tarnished by contaminates from the Gold King Mine and will surely have a prolonged dire impact in the Navajo’s already struggling economy.
The need for government action is apparent in these kinds of disasters, but there does not appear to be any help readily available for the people of the Navajo Nation. On October 2, 2015, the Navajo Nation filed an emergency declaration to the Federal Emergency Management Agency (FEMA). Twenty-one days later, FEMA denied the Navajo’s request for relief and “referred [them] back to the EPA.” See Noel Lyn Smith, FEMA Denies Navajo Nation’s Emergency Request, Daily Times, (Oct. 23, 2105), http://www.kare11.com/story/news/local/navajo-nation/2015/10/23/fema-denies-navajo-nations-emergency-request/74441934. The question remains, how can the Navajo Nation recover for the damages that they have incurred from the Gold King Mine Spill?
My Pace Environmental Law Review Note will analyze the possible avenues that the Navajo and other affected by the spill will have for relief. Although the Obama Administration continues to refer the Navajo back to the EPA, all is not lost. There are two main avenues for relief that can be reached through channels in the EPA: the Federal Tort Claims Act (FTCA), and the Comprehensive Environmental Resource Compensation, Liability, and Recovery Act’s (CERCLA) citizen suit provision
This week, the Department of the Interior published its peer reviewed findings that the EPA-caused spill could have been prevented. The DOI findings can open an avenue of relief to both individuals and communities of peoples living affected area under the FTCA. The finding this week is sure to be the first of many that show the damage caused by the spill never should have happened. My Note will explore the avenues of relief under the FTCA and CERCLA for individuals who were victims of the plague of contamination that was brought into their lives by the federal government.