Here’s Why EPA Could Face Criminal Charges For Gold King Mine Blowout

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Michael Bastasch DCNF Managing Editor
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A new report details how the Environmental Protection Agency (EPA) may have violated at least two federal laws by spilling millions of gallons of mine waste into U.S. rivers, which would trigger criminal charges against private companies.

But so far, the EPA has launched no criminal investigation into the Gold King Mine incident, despite mounting evidence it acted negligently when it caused the mine blowout — the bar EPA uses for bringing criminal prosecutions against private parties.

“The government, for whatever reason, is treating itself more favorably than it would a private party,” Paul Larkin, a former federal attorney who now works for the conservative Heritage Foundation, told The Daily Caller News Foundation.

“Federal officials aren’t immune to criminal prosecution,” Larkin said. “If these were private parties they would have opened a criminal investigation.”

A new House natural resources committee report claims EPA officials potentially violate at least two federal environmental laws — the Clean Water Act and the Endangered Species Act. And based on EPA’s past enforcement tactics, officials could be held criminally liable for polluting waterways across three states.

In August 2015, the EPA unleashed three million gallons of mine waste into Cement Creek. The toxic orange plume made its way into the Animas and San Juan rivers, contaminating drinking and irrigation water across three states.

For months, Republican lawmakers have slammed the EPA for not reprimanding any employees involved in the spill. Lawmakers have also criticized the agency for not opening a criminal investigation into the matter.

“They have charged private parties with negligence in this regard and they refuse to open a criminal investigation into their own conduct,” Larkin said.

In fact, the federal government has held private parties criminally liable under federal environmental laws for similar spills.

Larkin has co-authored two legal briefs since the August mine blowout, detailing how the EPA has held private companies criminally liable for accidentally violating federal laws, like the Clean Water Act (CWA).

In one case, United States v. Hanousek, a railroad supervisor was held criminally liable for CWA violations after a contractor working on a project site he was managing in Alaska, accidentally hit an oil pipeline and spilled between 1,000 and 5,000 gallons of crude into the Skagway River.

Edward Hanousek, the railroad supervisor, wasn’t even on site that day, but was still convicted of criminal negligence under the CWA. This case has helped set a precedent under federal environmental law — mere negligence is enough to bring criminal charges.

The Gold King Mine spill issue is remarkably similar to the Hanousek case, and Larkin argues the EPA must explain why they haven’t opened a criminal probe into the matter despite two reports now detailing possible negligence within the agency.

Before House Republicans released their report Thursday, the Interior Department released a technical review of the mine blowout, finding it could have been prevented had the EPA taken certain precautionary steps. The Army Corps of Engineers went even further.

The Army Corps of Engineers expressed their concerns about the spill in their review of the Department of the Interior’s technical review of the incident released in October 2015. The Corps more believed the “actual cause of failure is some combination of issues related to EPA internal communications, administrative authorities, and/or a break in the decision path.”

Larkin argues Interior’s report demonstrated EPA’s negligence, and is asking why no criminal probe has been opened into the matter.

“They should be made to explain why they have not done that or to abandon negligence as a theory against private parties,” Larkin said.

Now, House Republicans have released another report on the mine incidence — this time, explicitly saying the EPA was negligent in its handling of Gold King Mine operations.

“Instead of seeking honest answers about how the blowout occurred, the EPA issued two intentionally misleading reports and used taxpayer dollars to fund a third deceptive report from the Department of the Interior,” reads the new House report. “These attempts to conceal incompetence and negligence under the guise of transparency and accountability are shameful.”

An EPA spokeswoman told TheDCNF the agency is reviewing the House’s latest report and “will respond appropriately.”

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