To date, we have identified six features of EPA’s conduct that, if committed by a private entity, likely would be correlated with increasing fines and penalties in addition to tort liability. From Part 1:
- 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.
From Part 2:
- EPA is touting the benefits of dilution; the consequences of the blowout are naturally attenuating.
- EPA may be offering to make quick damage payments in return for waivers denying future recovery.
Today, news reports indicate that EPA’s actions at the site which caused the blowout were predicted to cause a blowout. Advance knowledge of an adverse consequence expected to result from an action may qualify as an intentional tort. The federal government’s liability for intentional torts is much more limited than its already limited liability for negligence.
Several news sources (e.g., WSJ editorial page) have picked up on a letter to the editor by geologist Dave Taylor published in the July 30 edition of the Silverton Standard & the Miner (Silverton, CO). It addresses EPA’s plan to plug a leak at a different but nearby mine:
Here’s the scenario that will occur based on my experience:
Following the plugging, the exfiltrating water will be retained behind the bulkheads, accumulating at a rate of approximately 500 gallons per minute. As the water backs up, it will begin filling all connected mine workings and bedrock voids and fractures. As the water level inside the workings continues to rise, it will accumulate head pressure at a rate of 1 PSI per each 2.31 feet of vertical rise. As the water continues to migrate through and fill interconnected workings, the pressure will increase. Eventually, without a doubt. The water will find a way out and will exfiltrate uncontrollably through connected abandoned shafts, drifts, raises, factures [sic] and possibly talus on the hillsides. Initially it will appear that the miracle fix is working.
But make no mistake, with in seven to 120 days all of the 500 gpm flow will return to Cement Creek. Contamination may actually increase due to the disturbance and flushing action within the workings.
This parr of Taylor’s letter is significant because EPA claims that it was surprised by the blowout and that its mistake was an honest one. According to EPA’s incident report:
On August 5, 2015, an EPA team working to investigate and address contamination at the Gold King Mine in San Juan County, Colorado, unexpectedly triggered a large release of mine waste water into the upper portions of Cement Creek.
A similar statement is in a longer report dated August 10:
On August 5, 2015, EPA was conducting an investigation of the Gold King Mine. The intent of the investigation was to create access to the mine, assess on-going water releases from the mine to treat mine water, and assess the feasibility of further mine remediation. The plan was to excavate the loose material that had collapsed into the cave entry back to the timbering. During the excavation, the loose material gave way, opening the adit (mine tunnel) and spilling the water stored behind the collapsed material into Cement Creek, a tributary of the Animas River.
An August 10 revision to this document replaces passive voice with an admission of responsibility:
On August 5, while investigating the Gold King Mine in Colorado, an EPA cleanup team triggered a release of mine wastewater into Cement Creek.
EPA administrator Gina McCarthy also has stated that the blowout was an accident, and certainly not intentional:
“No agency could be more upset about the incident happening, more dedicated about doing our job and getting this right
None of these statements provide information concerning what EPA knew about the likelihood of a blowout. For his part, Taylor says the risk was obvious:
In regards to your meeting with the EPA on June 23, Mr. Hestmark’s (EPA representative) statement “we don’t have an agenda” is either ignorant naivety [sic] or an outright falsehood. I am certain Mr. Hestmark’s hydrologists have advised him what’s going to happen when the Red & Bonita portals and [sic, probably are] plugged and the “grand experiment” begins…
That would make the Gold King Mine blowout not a negligent act but an intentional tort.
This raises the question: Why would EPA personnel want a blowout to occur? Insight on that can be gleaned from the March 27 issue of the Silverton Standard. Editor Mark Esper reported on a public meeting held on March 23:
The Environmental Protection Agency is asking Silverton for permission to test the soil in the town’s parks, streets and schoolyard to determine if the small town suffers from widespread contamination with heavy metals from years of mining activity.
And EPA officials suggested that if problems are found in the soil further testing may be needed, along with possible mitigation work on residential lawns and even possible health monitoring of the town’s children.
But agency officials got a cool reception from Town Hall on Monday, March 23, with some council members questioning why they should go along with the testing program.
And on Tuesday, School Superintendent Kim White pointed out that the Silverton School grounds were thoroughly tested for metals and other contamination in 2010 and no problems were found.
EPA project manager Paula Schmittdiel told Silverton officials that “we thought it would be prudent to investigate if there were elevated levels of metals in the soils in and around Silverton.”
Accompanying these plausibly conciliatory statements were certain threats, however:
EPA officials indicated that if property owners refuse to go along with mitigation it could be “recorded in the county records office” that the property may require environmental mitigation.
“Are you folks letting us know you’re pursuing Superfund?” asked Trustee Pete Maisel.
“That’s still a point of discussion,” Schmittdiel said.
Esper’s article strongly supports the inference that EPA very much wanted to list Silverton and its environs as a Superfund site. (This may not be a matter in dispute, as one of the EPA representatives attending the meeting was identified as head of a Superfund response team.)
But Silverton officials viewed a Superfund listing as unjustified on public health grounds and economically disastrous for the town, putting the town and EPA at an impasse.
Information in the public domain today does not reveal whether EPA committed an intentional tort to advance a Superfund listing. Public disclosure of EPA staff emails likely would reveal whether this is true.
If aa private entity had done this, the magnitudes of fines and penalties would be much greater. The entity and its employees probably would face punitive civil damages and criminal charges.