Questions remain for mine spill claims process

Noel Lyn Smith
Melanie Bergolc, a resident of Silverton, Colo., walks along the banks of Cement Creek in Silverton on Aug. 10, 2015, where residue from the Gold King Mine spill is evident.

FARMINGTON – Navajo Nation Attorney General Ethel Branch is continuing to question the U.S. Environmental Protection Agency about the procedure to file claims for damages caused by the Gold King Mine spill.

Branch presented her concerns and issues in a Nov. 18 letter to Avi Garbow, general counsel for the EPA. Her letter, which was released by the tribe on Monday, questions the EPA’s efforts to address claims and recovery efforts for the Aug. 5 spill.

The EPA has accepted responsibility for the spill that released millions of gallons of wastewater into the Animas and San Juan rivers.

Branch’s letter was in response to a Nov. 3 letter Garbow wrote to the attorney general, which was a reply to two letters Branch wrote in October.

The attorney general stated she was “surprised” by Garbow’s suggestion the EPA has not determined if the Federal Tort Claims Act applies to the spill. The Federal Tort Claims Act is a federal law that permits private parties to sue the United States in federal court for damages committed by individuals acting on behalf of the country.

“This position cannot be squared with the U.S. EPA’s repeated public statements of responsibility for the spill,” Branch wrote.

She added that indecision does not seem to jibe with the EPA’s distribution of Standard Form 95 on the Navajo Nation and on the EPA website.

Branch’s second expressed concern is that the EPA still does not have a process in place to “ensure full, fair and prompt recovery” for the Navajo people and tribe.

She added that Garbow’s letter did not accept the tribe’s proposal to establish an interim claims process and relief fund for tribal members who seek compensation without releasing future claims or those unknown to the claimant.

“I was disappointed to hear your position that the U.S. EPA does not ‘have the ability to establish’ such a process,” Branch wrote.

The attorney general said the tribe is continuing to examine all options, including working with Congress on legislation to improve the process to allow interim claims.

In hopes such congressional action occurs, Branch stated Navajo officials are providing tribal members with claim forms that include language reserving the claimant’s right to file supplemental claims.

She said tribal officials have been talking to individuals who were impacted by the spill, and many of those people have wondered about the need to present documentation to support their claims.

“My concern is that my people may forego submitting legitimate claims because they do not have itemized documentation of every loss,” she wrote.

In concluding her letter, Branch stated she remains committed to working with federal agencies, and she hopes Garbow clarifies statements made in his Nov. 3 letter.

In Garbow’s letter to Branch, he assured Branch the EPA remains committed to cleanup responsibilities and to a long-term monitoring strategy.

He mentioned the EPA is continuing an internal review of events leading up to the spill. In addition, the agency received the results of an independent evaluation by the U.S. Department of the Interior and is waiting for the release of a review by the Office of Inspector General.

“The findings and conclusions of these reports and investigations, once complete, will be carefully reviewed by EPA’s Claims Officer in order to assess the applicability of the FTCA for purposes of paying legitimate claims against the United States for money damages arising from the Gold King Mine incident,” Garbow wrote.

He added it is “not unusual” for claimants to need additional time to assess damages, and the Federal Tort Claims Act allows claimants up to two years to file a claim.

Garbow wrote the EPA does not have “the ability to establish an interim claims process by amending the Standard Form 95,” which was requested by the Navajo Nation.

“I am also committed to exploring and considering all options to seek means of providing compensation as allowed by law for legitimate money damages arising from the incident, both within the Navajo Nation, and in other impacted communities,” Garbow stated in the conclusion of his letter.

Noel Lyn Smith covers the Navajo Nation for The Daily Times. She can be reached at 505-546-4636.