Feb 22, 2016 - 11:30am

How Would EPA Have Treated a Business If It Caused the Colorado Mine Spill?

Senior Editor, Digital Content

In August 2015, EPA caused 3 million gallons of mine waste to pour into Colorado's Animas River, turning it a sickly yellow.

Six months later, a report on the Gold King Mine accident, produced by the House Natural Resources Committee's majority staff, gives us some context to what led to the spill.

Because of its bad assumptions and inadequate planning, the report states EPA “violated the Clean Water Act by unlawfully discharging pollutants into navigable waters without a permit and in violation of water quality standards.”

The report also shows a double standard toward EPA. If a business did what EPA did, it would be taking it to the woodshed.

EPA’s Big Mistake

In 2014 an EPA-contracted crew started clearing the Gold King Mine entrance, but work was put on hold because of a lack of time and resources.

It was here where a major mistake happened.

The work crew thought the floor was six feet higher than it really was. This false assumption led them to also falsely assume there wasn’t a dangerous level of water waiting to gush out. The report calls this error, a “recipe for disaster.”

Let’s advance one year to 2015. Before restarting work at the mine in August, EPA did two months of prep work:

In June and July, the EPA crew collected water samples and measured the flow from the adit [mine entrance], conducted safety training at the site, graded the surface of the waste dump, and began to install and connect a water management and treatment system.

However, no one checked if water was building up inside the mine. “During these months of site preparation and safety training, EPA did not test the hydrostatic pressure in the mine before excavating the adit in August,” states the report.

People at the mine knew there could be a problem. After the spill, EPA’s on-sight coordinator Hays Griswold told other EPA staff in an email:

[T]his material was packed very tightly and impervious to water and could very effectively hold water back. I personally knew it could be holding back a lot of water and I believe the others in the group knew as well. This is why I was approaching this adit as if it were full…. I also knew there was some pressure behind the blockage but not much.

Interestingly, Griswold’s email didn’t make into EPA’s December 2015 supplement to its August 2015 internal review and first became public in the House committee report.

A drill rig could have been set up to bore down into the mine to check the water pressure. “Although this was apparently considered at Gold King, it was not done,” the Interior Department’s review of the accident said. “Had it been done, the plan to open the mine would have been revised, and the blowout would not have occurred.”

Why did EPA dig blind into water-filled mine?

The agency explained in its August 2015 review that a pressure test wasn’t done because it “would have been quite costly and require much more planning and multiple field seasons to accomplish.”

What If a Business Did This?

If this were a private business, EPA would never have accepted this answer. It would have decried such behavior as “cutting corners” and rushing ahead with little regard to safety and the environment.  Fines would’ve been issued.

Just like when EPA fined an oil exploration company $30,500 only a few days before the Gold King Mine spill for leaking 500 gallons of well testing fluids on Alaska’s North Slope. EPA allowed 6,000 times that amount of material to pour into a river. Will EPA (i.e. taxpayers) fork over $183 million in fines?

Last year, Administrator Gina McCarthy said EPA will be held accountable for the spill:

"We are going to be fully accountable for this in a transparent way," she said at a press conference. "The EPA takes full responsibility for this incident. No agency could be more upset."

When asked if the EPA will investigate itself as vigorously as it would a private company, McCarthy said, "We will hold ourselves to a higher standard than anybody else."

On the transparency front, EPA is lacking. As noted above, Griswold’s email about water pressure concerns wasn’t included in EPA’s December 2015 report. Also, committee members are subpoenaing the Interior Department and the Army Corps of Engineers for more documents about the spill, because they don’t think the agencies have been forthcoming.

As for holding itself to a higher standard, that’s yet to be seen six months after the spill.

In light of the Gold King Mine spill, we should be very skeptical of EPA seeking to enlarge its authority over land use by claiming jurisdiction over waters, including ditches, canals, ponds, and wetlands, as far as 4,000 feet from a navigable water under the Waters of the U.S. (WOTUS) rule. The rule has been put on hold by a federal court until litigation in finished.

EPA needs to provide answers, be held accountable, and get its own house in order instead of seeking to expand its regulatory reach.

[H/t Kristina Monk at The Daily Signal.]

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About the Author

About the Author

Sean Hackbarth
Senior Editor, Digital Content

Sean writes about public policies affecting businesses including energy, health care, and regulations. When not battling those making it harder for free enterprise to succeed, he raves about all things Wisconsin (his home state) and religiously follows the Green Bay Packers.