Mine spill throws EPA on the defensive

The Environmental Protection Agency (EPA) is under fire over the toxic mine waste spill it caused in Colorado.

The spill of 3 million gallons of sludge filled with heavy metals into a river led to immediate scorn from Republicans and the EPA’s opponents. Critics accused the Obama administration of hypocrisy and said officials are not holding themselves to the same standards as private companies that pollute.

The accident comes at a particularly sensitive time for the EPA and President Obama’s environmental record, putting officials on the back foot.

{mosads}The spill, caused by EPA contractors trying to evaluate the Gold King Mine abandoned decades ago for a potential clean-up, started on Aug 5., just two days after Obama unveiled his climate rule for power plants, his most ambitious effort yet to fight climate change.

The EPA took note. Administrator Gina McCarthy traveled to the river to meet with locals, coinciding with an increased public relations and transparency push from the agency.

Still, the images of a bright-orange river, combined with the impact of closing the river to communities downstream and the perception of EPA irresponsibility, have combined to make the disaster one of the EPA’s worst in recent years.

“It raises serious questions about competency,” said Dan Kish, senior vice president for policy at the Institute for Energy Research, a conservative think tank.

“It couldn’t have happened at a worse time, from EPA’s perspective, in terms of trying to push their agenda on many other items, including the Clean Power Plan.”

Kish said the EPA is very sensitive of its perception as a pollution-fighting brand, and the spill into the Animas River puts a big dent on that reputation.

“The EPA has many people and groups that they fund that support them, and therefore the EPA is very, very concerned about brand loyalty,” he said.

Republicans jumped at the opportunity to side against pollution and paint the EPA as hypocritical, while coming to the defense of local leaders who thought the agency waited too long to respond to the incident.

“This EPA spill is very serious, as is the EPA’s slow response,” said House Speaker John Boehner (R-Ohio). “The Obama administration must do everything in its power to protect the lives and livelihoods of the people in the affected states.”

It also quickly entered the 2016 presidential campaign, with GOP hopefuls Donald Trump and Sen. Marco Rubio (Fla.) castigating the EPA.

Trump, in an interview with conservative radio host Hugh Hewitt, cited the spill to boost his proposal to give the EPA’s responsibilities to the states.

“We shouldn’t be doing it from Washington,” he said.

Trump predicted that the spill is “probably going to kill the fish, kill everything,” he said. “And it was totally their mistake.”

The EPA will face even more anger when Congress returns to Washington in September. Lawmakers with authority over the EPA acted quickly to hold the agency accountable.

“This has and will continue to lead to significant economic damage to local businesses, farmers, tribes, and residents,” said Sen. Jim Inhofe (R-Okla.), chairman of the Environment and Public Works Committee.

Inhofe will hold a hearing on the incident and the EPA’s response when Congress returns, his spokeswoman Donelle Harder said.

The House Oversight Committee, chaired by Rep. Jason Chaffetz (R-Utah) is investigating, and requested that the EPA’s Inspector General launch a probe as well.

Jeffrey Lagda, a spokesman for EPA Inspector General Arthur Elkins, said the office has launched an inquiry, though the scope and process have yet to be determined.

The EPA started response efforts within a day of the spill, including testing the Animas River, the San Juan River into which it flows, getting safe water for residents and businesses and other efforts.

But leaders complained that the EPA was not being transparent enough and not doing enough to help the area cope.

That led McCarthy to travel to the area on Aug. 12 to face local, state and tribal leaders, residents, journalists and others to assure them the EPA was taking its duties seriously.

She apologized repeatedly for the spill and said internal and external investigations would, hopefully, prevent future repeats.

“It is not a ‘trust me’ situation,” she said on her first days there. “People know that EPA had an incident occur, they want to have fresh eyes that are independent of EPA on it, and I want those fresh eyes as much as you do.”

The spill has cleared from the river near the site of the incident, and downstream communities are seeing pollutant levels dropping quickly, the EPA said.

The EPA, though, could face litigation those affected by the spill and its aftermath.

Justin Pidot, an environmental law professor at the University of Denver who used to work at the Justice Department, said that local communities, business and individuals would have a tough time suing the EPA. But he cautioned that the agency’s actions in the days following the spill are critical to its liability.

“If the government engages in a pretty robust effort to address the problems, compensates those who have been injured and restores the environment to the extent practical … I don’t think a judge would be all that sympathetic” to a plaintiff, he said.

The public relations effort might be more difficult.

“This has been a political and media firestorm,” Pidot said. “Obviously, EPA is already under a ton of scrutiny, especially by conservative lawmakers, and this ramps up the pressure.”

Pidot is hopeful that this spill could bring attention to the thousands of abandoned mines in the West and the waste ponds accompanying them.

“There are seriously environmental time bombs waiting to go off,” he said.

While being careful not to understate the EPA’s responsibility for the spill, environmental groups have also used it as an opportunity to highlight the problems of abandoned mines and mining laws that they say go soft on companies.

“The antiquated nature of the law has allowed mining companies to create pollution and walk away, and the failure to reform it has left us without a steady stream of funding to clean up these old mine sites,” said Lauren Pagel, policy director at Earthworks.