Sovereign immunity

Generally, the idea that the sovereign or government is immune from lawsuits or other legal actions except when it consents to them. Historically, this was an absolute doctrinal position that held Federal, state, and local governments immune from tort liability arising from the activities of government. These days, the application of sovereign immunity is much less clear-cut, as different governments have waived liability in differing degrees under differing circumstances. [Emphasis added]

EPA won’t face fines for polluting rivers with orange muck by Valerie Richardson, August 11, 2015, The Washington Times
Unlike BP, which was fined $5.5 billion for the 2010 Deepwater Horizon disaster, the EPA will pay nothing in fines for unleashing the Animas River spill.

“Sovereign immunity. The government doesn’t fine itself,” said Thomas L. Sansonetti, former assistant attorney general for the Justice Department’s division of environment and natural resources.

New Mexico Gov. Susana Martinez and other lawmakers have called on the EPA to hold itself to the same standards as it would a private company in the aftermath of Wednesday’s accident, in which an EPA-led crew uncorked a 3 million-gallon spill of orange wastewater from the abandoned Gold King Mine near Silverton, Colorado.

However, “The EPA does not fine itself the way that you would fine an outside company like BP,” said Mr. Sansonetti, who served from 2001 to 2005 under President George W. Bush.

What the EPA can be expected to cover is the cost of the cleanup and compensation for the damage caused, funding that would have to be appropriated by Congress, meaning that the taxpayers will foot the bill.

“That’s going to have to be appropriated because that sort of thing is not included in the EPA’s budget,” said Mr. Sansonetti, now a Denver attorney.

As for compensation, he said, “It’s similar to the BP situation because you’ve got rafting companies that couldn’t raft, you’ve got kayakers that couldn’t kayak, you’ve got ranchers that didn’t want spoiled water being drunk by their cows.”

So far there have been no estimates as to the cost of the disaster. The orange plume borne by the Animas River has since spread to New Mexico via the San Juan River and is now heading to Utah. [Emphasis added]

“Catastrophe!” Screamed the Newspaper Headline by Thinking Fella, August 8, 2015, Four Corners Kossacks in Daily Kaos

Forward to recent times. The mines, and in particular The Gold King Mine, came onto the radar of State, then Federal entities. The EPA became involved. They wanted to declare the area a Superfund site, releasing enough Federal might and Dollars to fix this mess. And then they all lived happily ever after. Except no they didn’t, because greedy humans became involved. There were fights and lawsuits over ownership of the mines, over jurisdictional boundaries (even between Federal agencies), over who would pay, who would be liable–you name it, folks fought over it. NO ONE wanted to pay, or let the mines be forever sealed because GOLD man!

And the civic boosters, the Chamber of Commerce, and the County Supervisors in Silverton most assuredly did not want Silverton to become known as a place that needed a Superfund site. No. Way. We have pristine beautiful mountains here not a Superfund site, dontchaknow! They managed to forestall the designation of a Superfund site by the EPA. Sure, the EPA was there, and they were working hard to clean up a mess the Invisible Hand of the Free Market failed to remediate after sucking all the profits out.Here is an article from 2013 in the local Durango Herald that explains how & why (and who–they name names) Silverton fought off a Superfund site designation.

A sample quote from the article: “San Juan County Commissioner Peter McKay said while some of Silverton’s opposition stemmed from the indignity of needing federal help, the majority arose from residents’ fears that being listed as a Superfund site would taint its tourist appeal.

Bev Rich, chairwoman of the San Juan County Historical Society, San Juan County treasurer and lifelong Silverton resident, echoed those concerns.

“We’re a tourist area,” she said. “This is our living now, this beautiful scenery and our very interesting history. You hear the word ‘Superfund’ site and 99 percent think ‘danger.’ So why would you want to go to a Superfund site?”

Which brings us to last Wednesday morning. Through an unfunny comedy of errors, the EPA, while inspecting a particular area around The Gold King Mine, managed to breech an unseen & unknown dam IN the mine of a MILLION gallons of mine waste, heavy metals, rotting mine timbers, and God only knows what else. That million gallon deluge of toxic waste smashed down the headwaters, careened through the narrow pinch canyons of the San Juan Mountains, to reach the widened, more serene flows of the Animas Valley & onward into the heart of Durango–killing all aquatic life along the way.

… And our river will continue to look like crap for a while. Even once the color becomes less sickening looking, the toxic heavy metals will remain. No fish will be left. Plant life will be decimated. This water is the secondary drinking water source for Durango, CO. A few more miles downstream, it is the primary drinking water source for Aztec & Farmington, New Mexico. It will eventually work its way to Lake Powell…

Today the EPA accepted responsibility for the disaster. I’m not sure how that will help our river any time soon–that’s for the lawsuits that are to come. Nothing will bring the fish back any time soon. All human activity has been banned from the river–and our Sheriff has applied the force of Law, making it illegal to enter the river. Rafting companies are out of business. Fishing guides are out of business. Ranchers who water their livestock have been advised to secure their animals away from the water.

Officials have advised that the water will kill your small pet. No swimming, floating, fishing allowed. And the river is used for irrigation by ranchers for their hay to feed their livestock over the Winter–or rather, it used to be. Grasses suck up that toxic slop, making it unsafe for critters to eat. Now–how many ways did I just list that commerce & recreation has been affected or eliminated? Enough that my area has taken a hit in tourism-our life blood. Enough that a large portion of residents have lost their livelihood that has nothing to do with tourism or recreation on the river. It is a dreadful, horrifying turn of events, that began over a 100 years ago and was fed & fueled by greed.

And you wonder why my sig line is “The better I know people, the more I like my dog”…

[Emphasis added]

Environmental workers spill a million gallons of waste into Colorado river, US Environmental Protection Agency crew accidentally releases water containing sediment and metals from a disused mine into Animas river tributary by Reuters, August 7, 2015, The Guardian

A team of US regulators investigating contamination at a Colorado goldmine accidentally released a million gallons (3.8 million liters) of orange-hued waste water containing sediment and metals into a local river system, the Environmental Protection Agency said on Thursday.

The waste water had been held behind a barrier near the abandoned Gold King Mine, but was accidentally emptied into Cement creek, which flows into the Animas river in San Juan county, said an EPA spokesman, Rich Mylott.

Several workers were in the EPA crew that was using heavy equipment to pump and treat the waste water when the breach occurred, Mylott said, adding that none had been injured.

Media images showed a trio of kayakers floating down a mustard-yellow stretch of the Animas river, near Durango.

“The primary environmental concern is the pulse of contaminated water containing sediment and metals flowing as an orange-colored discharge downstream,” Mylott said.

Federal and Colorado health officials warned water users downstream to turn off intakes and avoid water-borne recreational activity until the contaminated water passes.

The city of Durango said tap water was safe for its water utility customers, saying in a statement it stopped pumping water from the Animas and was instead drawing water from the unaffected Florida river.

The EPA said it would be sampling downstream locations to confirm that the release has passed and poses no additional concerns for aquatic life or water users over the coming days, though it expects a batch of results on Friday.

It also said it would assess damage near the mine and any residual releases of mine water. [Emphasis added]

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