Being a Bureaucrat Means Never Having to Say You’re Sorry

We have covered the Gold King Mine environmental disaster here, here, here and here. Briefly, the EPA and its contractor spilled three million gallons of toxic liquid contaminated with lead, arsenic, cadmium and aluminum into the Animas River. The spill turned the river orange and inflicted environmental damage for many miles downstream:


In response to the spill, the EPA has been uncommunicative and unhelpful to the impacted communities. It has resisted production of documents requested by the Associated Press, among others. There has been no accountability, as EPA Administrator Gina McCarthy has excused her agency’s employees and downplayed the significance of the spill:

We were “very careful.” Contaminants “are flowing too fast to be an immediate health threat.” The river is already “restoring itself” back to pre-spill levels, EPA Administrator Gina McCarthy insisted.

Now, the Denver Post reports that the EPA’s key on-site employee was aware of the precise hazard that gave rise to the spill, and did not accurately describe his knowledge to the press in the aftermath of the spill:

The Environmental Protection Agency employee overseeing work at the Gold King Mine was aware of blowout danger at the site before a massive August wastewater spill, according to a report released Thursday.

The revelation, in findings by congressional Republicans, comes in contrast to the EPA’s claims that the risk was underestimated ahead of excavation at the mine’s collapsed opening. That work ultimately led to the disaster.

Hays Griswold, the agency’s on-scene coordinator, wrote in an October e-mail to other EPA officials that he personally knew the blockage “could be holding back a lot of water and I believe the others in the group knew as well.”

The note provides more indications the EPA probably had knowledge of the potentially looming disaster at the mine long before workers accidentally unleashed 3 million gallons of contaminants.

But that isn’t what Griswold told media after the spill occurred last August:

An EPA internal review released three weeks after the spill, however, said operators believed water inside the Gold King was not very high because of draining at the site and based on seep levels above its opening. Those factors, officials said, made checking pressure seem unnecessary, and it was never done.

Griswold’s e-mail appears directly to contradict those findings and statements he made to The Denver Post in the days after the disaster, when he claimed “nobody expected (the acid water backed up in the mine) to be that high.”

Yet the EPA has walked away from its own three million gallon spill, with no employees suffering meaningful consequences, let alone being criminally prosecuted.

Contrast this with how the federal government has treated Freedom Industries, which was held responsible for a chemical spill in West Virginia. Coincidentally, on the same day when the Denver Post printed the story above, the Department of Justice announced the latest criminal sentencing in connection with the Elk River spill:

A former owner of Freedom Industries was sentenced today to 30 days in federal prison, six months of supervised release, and a $20,000 fine for environmental crimes connected to the 2014 Elk River chemical spill, announced Acting United States Attorney Carol Casto. Dennis P. Farrell, of Charleston, previously pleaded guilty in August 2015 to unlawfully discharging refuse matter and violating an environmental permit by failing to have a pollution prevention plan. Farrell is one of six former officials of Freedom Industries, in addition to Freedom Industries itself as a corporation, to be prosecuted for federal crimes associated with the chemical spill.

Was this private company dealt with so harshly because the Elk River spill was larger than the EPA’s Animas River discharge? No: the Elk River spill was only 7,500 gallons, compared with three million gallons the EPA discharged into the Animas River.

Was Freedom Industries prosecuted so aggressively because the contaminant it spilled was far more toxic than the chemicals that EPA spilled into the Animas River? No: Freedom Industries spilled 4-methylcyclohexane methanol. Scientific American says that while this chemical has not been studied extensively, its makeup is such that it should not be very dangerous:

MCMH should not be swallowed and may readily cause skin and eye irritation but it is not known to pose major risks to human health and safety. …

Exposure to the slurry of water and other chemicals formed after coal is washed would be more dangerous to human health than exposure to MCMH—and there have been numerous coal slurry floods and spills in West Virginia and U.S. history. That slurry is made far more toxic by the heavy metals and other dangerous elements leached from the coal itself.

Heavy metals like lead, cadmium, arsenic and aluminum, all of which the EPA negligently caused to flow into the Animas.

Was Mr. Farrell, one of Freedom Industries’ former owners, prosecuted and sentenced to prison because his personal conduct was unusually blameworthy? No: in fact, it is a little hard to tell from DOJ’s press release exactly what Mr. Farrell did wrong. MCHM leaked out of an above-ground storage tank. Prosecutors did not claim that Mr. Farrell had anything to do with the leak, nor did they argue that he knew, or should have known, about the leak. The charges against him were predicated on the fact that “Freedom never developed or implemented a storm water or groundwater plan,” which DOJ asserted in conclusory fashion “was a proximate and contributing cause of the chemical spill.”

So Mr. Farrell is going to federal prison on account of a spill that was one four-hundredth the size of the Animas River discharge, and involved a less hazardous chemical. He is going to prison even though he had nothing to do with precipitating the spill, either intentionally or negligently.

It is difficult to see how the kid glove treatment accorded to the EPA can be reconciled with the aggressive criminal prosecution of Freedom Industries and its executives. The only apparent explanation is that federal bureaucrats are a protected class. They receive preferential treatment and are not held accountable for their negligence, or for attempting to cover up that negligence.

This is one more data point suggesting that the popular perception that government is our master, and we are its servants, is correct.