Environmental Protection Agency officials require contractors to sign secrecy pledges that in the case of the Gold King Mine spill kept the public in the dark earlier this year about a Colorado mining disaster that turned waters yellow as they flowed through two states and the Navajo Nation.
The EPA required Missouri-based Environmental Restoration LLC, which was responsible for the spill of three million gallons of mining waste into Cement Creek, a tributary of the Animas River, to sign what is known in federal procurement regulations as a non-disclosure agreement.
But these secrecy clauses are typical with the EPA — the same government agency whose former administrator, Lisa Jackson, used an alias email address to avoid public scrutiny.
“The statement of work includes a standard requirement that the contractor shall not publish or otherwise release, distribute, or disclose any work product generated under the contract without obtaining EPA’s express advance written approval,” an EPA spokeswoman told The Daily Caller News Foundation. “This does not require either an NDA or confidentiality agreement be signed by individual employees.”
In other words, the EPA controls the flow of information by circumventing federal regulations that dictate when an agency can use non-disclosure clauses by including secrecy agreements in documents related to, but separate from contracts.
While NDAs often protect important government secrets, such agreements can also obstruct official accountability at critical times.
As a result, important details about the Aug. 5, 2015, environmental disaster near Silverton, Colorado, remain hidden nearly three months later. Taxpayers wouldn’t even know the identity of the firm but for reporting by the Wall Street Journal that was based on a leak from an anonymous EPA official.
The spill occurred while an EPA official and company personnel were working at the site and sent a flood of mining waste, including toxic materials like cadmium, lead and arsenic, into the water sources for people living in Colorado, Utah and New Mexico, as well as the Navajo Nation.
“With few exemptions, the public’s business should be done publicly, not privately,” Open The Books founder Adam Andrzejewski told TheDCNF. “After a major spill, the EPA’s worst practices are coming to light — shrouding the public business in privacy.”
Andrzejewski has been seeking EPA documents about the disaster for months, beginning Sept. 10. The EPA responded more than a month later, saying there were 28 contracts with Environmental Restoration and it would take until Dec. 22, 2015, “to review contract [sic] to determine the contract pertaining to the Colorado site.”
In other words, Andrzejewski said, “the EPA is forestalling transparency regarding a toxic spill that threatened the regional drinking supply of the American Southwest. The EPA isn’t answering our requests on a timely basis and the contractor is relying on their non-disclosure agreement to remain silent.”
Open The Books has published billions of bytes of spending data for federal and state governments. The group’s guiding principle is “Every dime. Online. In Real Time.”
Environmental Restoration is not just any EPA contractor. The firm describes itself on its web site as “the largest provider of emergency response services” to the agency.
“Each of our EPA contracts … has specific language requiring ER’s confidentiality on all site matters,” Environmental Restoration President and Managing Partner Dennis Greaney said on the site. “ER honors our contractual confidentiality obligations to all of our clients, and cannot provide any additional information.”
In other words, according to Andrzejewski said, “the ‘most transparent‘ administration in history is signing their largest contractors to hush agreements.”
Meanwhile, EPA has only released a few relevant documents.
“The EPA’s release of contracts and other data has assisted the public in understanding the government’s actions, but there is a need for more answers,” the Project on Government Oversight said after the disaster.
“The public release of additional information and details will enhance the ongoing investigations and allow the government to learn from its mistakes rather than hiding the truth from policymakers and the public,” the group said. POGO is a non-profit government watchdog.
The EPA’s inspector general announced Thursday it would broaden its investigation to include seeking “details on the work the EPA was conducting at the Gold King Mine prior to the spill” and “the expertise of the EPA employees and contractors carrying out that work.”
“The contracts were public and there might have been a reason to not talk about certain issues until the EPA had a better understanding of fault and legal liability outside any NDA,” said POGO General Counsel Scott Amey.
Additionally, other government agencies have used NDAs to silence whistle-blowers.
“POGO has long been concerned about the use of these non-disclosure agreements in federal agencies and contracted companies,” the advocacy group wrote in August 2014. POGO sent a letter to then-Attorney General Eric Holder to “investigate federal fund recipients using confidentiality or non-disclosure agreements that infringe current and former employees’ federal whistleblower protections.”
“Normally a NDA prohibits non-governmental individuals or entities from speaking out about, and have been a tool to silence company whistle-blowers,” Amey said. “If the government is using agreements with contractors as a justification for the government’s withholding of information from the public, someone in Congress and legal and law enforcement offices should be taking a look to prevent abuse. Agencies shouldn’t mistakenly hide behind confidentiality or nondisclosure agreements as a way to prevent the truth from coming out.”
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