Previously we posted on EPA’s Gold King Mine blowout, identifying aspects of the Agency’s conduct that would bring ruin on a private entity:
- The size of the blowout is much larger than EPA said it was.
- The scale of potential environmental damage and adverse effects on human health is vast.
- EPA apparently delayed reporting the blowout to state and local officials.
- EPA was slow to collect data, make it difficult to access, and published it in a format that is very difficult for the public to understand and utilize.
Today we can add two additional ways EPA is behaving in ways that would increase a private party’s risk of fines, penalties and criminal prosecution.
First, EPA is touting the benefits of dilution. For example, Susan Montoya Bryan and Ellen Knickmeyer of AP write:
The EPA has said the current flows are too fast for the contaminants to pose an immediate health threat, and that the heavy metals will likely be diluted over time so they don’t pose a longer-term threat, either.
A similarly situated private entity that even appeared to tout dilution as the solution to pollution would be committing risk communication malpractice, with disastrous results.
Second, it has been alleged that EPA may be offering to pay damages soon without informing victims that filing early may lead to on;y partial payment. Stephen Dinan of the Washington Times reports:
Environmental Protection Agency officials were going door to door asking Navajos, some of whom don’t speak English as their primary language, to sign a form that offers to pay damages incurred so far from the spill, but waiving the right to come back and ask for more if their costs escalate or if they discover bigger problems, Navajo President Russell Begaye told The Washington Times.
“It is underhanded. They’re just trying to protect their pocketbook,” Mr. Begaye said in a telephone interview.
Whatever the motive might be, if EPA employees are doing this it is not to save the Agency money because claims would be paid from the Treasury Judgment Fund, not EPA.
Indianz.com has a fuller quote from Begaye, this one emphasizing his view that filing claims early is not in the Navajo Nation’s interest:
Begaye has vowed to sue the Obama administration in order to address the economic, health, safety and spiritual impacts of the spill. He lashed out at the EPA yesterday after the agency distributed forms that he said will require citizens to give up any future claims for damages.
“The federal government is asking our people to waive their future rights because they know without the waiver they will be paying millions to our people,” Begaye said. “This is simple; the feds are protecting themselves at the expense of the Navajo people and it is outrageous.”
“This is unacceptable,” added Begaye, who noted that the EPA — including Administrator McCarthy — have accepted responsibility for the incident. “The damages to our people will be long term and the Navajo Nation will not settle for pennies.”
According to tribal officials, EPA employees have been passing out the document — which is labeled “Gold King Mine Release (A8K9) Claim” — at meetings on the reservation. Anyone who signs it agrees that it represents a “FULL SATISFACTION AND FINAL SETTLEMENT” of any damages, injuries or even deaths.
Navajo Vice President Jonathan Nez also warned tribe members:
“Think twice before you sign this form, we must hold U.S. EPA fully accountable for their negligence.”
The form EPA employees allegedly have been passing out is the Standard Form 95, which we noted in our first post was prominently displayed on EPA’s incident website. “Gold King Mine Release (A8K9) Claim” is listed as the addressee, and anyone filing the form must agree to the following statement:
I CERTIFY THAT THE AMOUNT OF CLAIM COVERS ONLY DAMAGES AND INJURIES CAUSED BY THE INCIDENT ABOVE AND AGREE TO ACCEPT SAID AMOUNT IN FULL SATISFACTION AND FINAL SETTLEMENT OF THIS CLAIM.
Early filing is likely to result in underpayment simply because all damages cannot yet be known. And claimants do not completely waive all future rights if they sign. 28 CFR 14.2(c) allows them to seek a higher recovery if
the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.
28 USC 2675(b). It is not clear, however, if this right to amend applies if the original claim has been paid.
In any case, it is true that filing Standard Form 95 prematurely is a mistake and that many injured parties will do so — especially those for whom the blowout creates a cash flow crisis. The point here is that a similarly situated private party which merely appeared to be coercing victims into quick settlements would face the full wrath of the Department of Justice. When the government causes the harm, the rules of permissible conduct are different.
The procedures also are different, and there are inherently conflicted. When the Deepwater Horizon well in the Gulf of Mexico blew out, BP established a $20 billion compensation fund and an independent party was appointed to administer it. For federal government torts, however, the same agency that committed the tort decides which claims are valid and which are not, and how much to pay for valid claims. Victims whose claims are denied may contest adverse judgments in federal district court, but such appeals are uncertain, expensive and delayed. The rules governing federal tort claims are structured in the government’s favor.
UPDATE August 13, 2015
EPA has a web page explaining the claims process and providing a link to Standard Form 95. EPA’s explanation does not alert prospective claimants that filing a claim now generally extinguishes any right to file a subsequent claim. Further, it does not explain claimants’ limited right to amend:
A claim presented in compliance with paragraph (a) of this section may be amended by the claimant at any time prior to final action by the Administrator, or his designee, or prior to the exercise of the claimant’s option to bring suit under 28 U.S.C. 2675(a). Amendments shall be submitted in writing and signed by the claimant or his duly authorized agent or legal representative. Upon the timely filing of an amendment to a pending claim, EPA shall have 6 months in which to make a final disposition of the claim as amended and the claimant’s option under 28 U.S.C. 2675(a) shall not accrue until 6 months after the filing of an amendment.