A definitive explanation for what caused the Gold King Mine disaster may never be known if the Environmental Protection Agency is not investigated just as a private company responsible for the calamitous spill would be, according to a former enforcement agent.
The EPA accepted blame for the Aug. 5, 2015, leak that poisoned drinking water in three western states and the Navajo Nation with three million gallons of toxic mining waste, but no officials have been named as responsible or punished. Similar previous environmental disasters, however, were subjects of criminal investigations that led to severe public penalties for those responsible.
“You may not learn about it unless you engage in a criminal investigation,” Heritage Foundation senior legal research fellow and former EPA criminal enforcement special agent Paul Larkin told The Daily Caller News Foundation.
Essentially, a criminal investigation could use the threat of prosecution to convince rank-and-file employees to expose their superiors.
“You try to get the person furthest up the food chain in a criminal investigation,” Larkin said. “The negligence is not simply due to the people on the site … but the people further up the food chain,” specifically to the person or people who ordered the work that caused the spill.
Meanwhile, concrete details about the spill are barely trickling out. Environmental Restoration LLC – the EPA contractor involved in the disaster that later profited from the spill – has refused to share information with the public because of an official non-disclosure agreement that may or may not actually exist.
Also, the Department of the Interior’s Bureau of Reclamation reported events that led to the Gold King Mine spill, but failed to assign blame and was highly criticized for that failure by an Army Corps of Engineers peer reviewer.
“The report reads like a high school kid wrote it,” Larkin said, noting that the more than 80-page document mostly includes fluff, but leaves out key details like the officials who prepared the site assessment and the remediation plan, who made the decision to work on the site and who was present at the time.
What is clear at the moment is that there is no independent criminal investigation.
“We are not an investigative agency, nor would we have jurisdiction or a role relating to any potential criminal investigation in this matter,” Bureau Of Reclamation spokesman Daniel DuBray told TheDCNF.
The EPA’s inspector general is reviewing the disaster, but refuses to characterize the nature of its probe.
“I can neither confirm nor deny the existence of an OIG investigation,” EPA IG spokesman Jeffery Lagda told TheDCNF.
“As we have said previously, the Department of Interior and EPA Office of Inspector General investigations will help inform how we move forward,” EPA spokeswoman Nancy Grantham told TheDCNF. “We have received the DOI report and are currently awaiting the report on the OIG investigation.”
Larkin argues that the absence of a criminal investigation reveals a double-standard at the EPA. The agency helped send 185 Americans to jail for 129 years total, TheDCNF previously reported.
“The thing that most concerned and infuriated me is how the government discriminated against private companies,” Larkin said. “If a private party had caused this spill, the EPA would have opened a criminal investigation. What we have here is a grossly unfair situation.”
But Larkin isn’t alone in his skepticism of the EPA’s fairness.
“The EPA’s treatment of itself in Gold King Mine spill is a drastic departure from the agency’s standard practice of requiring private operators to implement expensive and long-lasting investigations and cleanup measures for any contamination that exceeds drinking water standards,” Law360 reported in September.
Larkin highlighted one case where a private employee was, in fact, prosecuted for a very similar incident as the Gold King Mine spill.
“The government prosecuted Edward Hanousek, an employee of the Pacific Arctic Railway and Navigation Company, for conduct so similar to the EPA’s that one can simply switch out the nouns in the prosecutor’s closing argument that proved successful in that case,” Larkin and his colleague John Seibler wrote in December. “Had Hanousek worked for the EPA, it seems, he would never have been stigmatized and punished as a criminal.”
Yet, EPA Administrator Gina McCarthy told the Senate Committee on Environment and Public Works on Sept. 16 that her agency was treating itself exactly as if it were a private company.
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