EPA finds itself in unfamiliar territory as the agency defends its involvement in a multi-state environmental disaster. In 2015, a contractor acting under EPA’s supervision used an excavator to dig away tons of rock and debris that blocked a portal in a gold mine in southwestern Colorado. Doing so accidentally destroyed the plug holding water trapped inside the mine. More than three million gallons of acidic wastewater and tailings, including heavy metals such as cadmium, lead, copper, mercury, and zinc, spilled out of the mine into the Animas River, turning the water bright orange for miles. The release caused contamination of drinking water in three states, required communities to import potable water, closed the river to sport fishing, and halted irrigation of agriculture.
Although EPA has accepted some responsibility publicly, it now faces litigation concerning its actions. These lawsuits may shed light as to EPA’s position on CERCLA, the Clean Water Act, and common law claims, while providing helpful ammunition and arguments for the regulated community in future actions.
One of the lawsuits was filed by the State of New Mexico against EPA, its contractor, and the mine owners. According to the complaint, the work plan for the project indicated there was wastewater in the mine and recognized a blowout might occur. Accordingly, the work plan required that no excavation occur near the blocked portal without setting up sufficient equipment to handle any accidental discharge. Nevertheless, according to the complaint, the contractor was directed to dig without taking necessary precautions.
New Mexico’s suit alleges violations of CERCLA and the Clean Water Act as well as claims of negligence, public nuisance and trespass. The State seeks environmental and economic damages, including but not limited to cleanup costs for the release of the hazardous substances into its waterways and onto adjacent lands. The non-governmental defendants, however, have filed motions to dismiss, claiming they acted in accordance with instructions of EPA and the State of Colorado. Among other things, the mine owners allege bulkheads plugging the mine were installed pursuant to a consent decree with Colorado regulators, and the contractor argues it is not liable because it was acting under the control and direction of EPA when the release accidentally occurred. EPA has opposed the motions to dismiss on the grounds that dismissing the private parties could have collateral consequences for others.
EPA is in the uncomfortable position of seeking to defend itself for environmental damages caused by the negligence of its contractor. This situation is one that many companies have faced, and they often have paid penalties to EPA as a result. Now that the shoe is on the other foot, it will be instructive to see what positions EPA takes as the litigation progresses. Industry may be able to utilize EPA’s legal arguments as defenses in future cleanup actions.
New Mexico v. EPA, C.A. 1:16-cv-00465 (D.N.M. 2016).