Do the Colorado Toxic Spills Foretell Nightmares for the EPA?

Posted on October 16, 2015
Posted By: Stephen Heins
For decades the EPA, with its piercing scrutiny, complex regulations, and ruthless punishment of polluters, has ruled through fear and intimidation. But with a growing list of recent debacles, scandal, and regulatory snafus, the tables may be turning, and the EPA itself may have good reason to feel afraid, especially after triggering a second wastewater spill in Colorado in early October, and again, without notifying the appropriate local officials and agencies of the smaller spill in a timely manner.

After the extensive Senate and House Hearings on September, 9, 10, 16, 17th, it is a good time to do an assessment of the EPA's response to the Colorado toxic spill on August 5, 2015. This piece is not intended to be a criticism of the spill itself, because by all accounts, the Gold King Mine accident was just that: An accident. However, important questions remain about the EPA. Coming 2 days after the release of the final regulations for the EPA's Clean Power Plan, the mine accident and its aftermath must have seemed like a nightmare for Gina McCarthy and the EPA.

As late as July 29, 2015, Watchdog wrote an article that stated the EPA's "Crisis Communication Plan" mandates that EPA give "understandable, timely, accurate, and consistent information to the public."

Starting August 5, 2015, EPA's exhibited a lack of communication with downstream citizens, New Mexico officials, the Colorado government officials; the Navajo Nation, Southern Utes and their general lack of information provided to the media was symptomatic of a federal agency unprepared for a large disaster. Also, it demonstrated several flaws the EPA's early warning plan, including jurisdictional issues for the EPA's effected Regions 6, 8, 9, painfully slow internal communications and a lack of a coherent national disaster plan.

First, it is worth noting that there was a hush over the climate industry/major media about the EPA's 3 million gallon toxic mine spill on August 5th and it took several days to be reported. In fact, it took CNN three days, August 8th, to do its first reporting of the Gold King Mine disaster, while it took 5 days for the New York Times and the Washington Post to publish their first stories on the spill on August 10th. Surprisingly, any early news coverage of the toxic spill was confined to the Colorado and New Mexico media and the Weather Channel.

Some pundits might fairly conclude that the Gold King Mine spill and its media coverage demonstrates a double standard: Last year, a West Virginia company spilled 10,000 gallons of chemical in a nearby river on January 9, 2014 and now several company officials are in jail and the company was fined and ultimately went bankrupt. The WV story was reported by the NY Times within one day, January 10th and Washington Post within days on January 11, 2014 and CNN on January 12, 2014. The story line was "loose regulation."

Previously, in early 2015, the EPA implemented a PR campaign deploying Thunderclap, a social media tool, to send almost 2 million emails to White House Website subscribers, advocating the need for the Clean Water Act. Ignoring the legal problems created by the EPA openly lobbying for its own regulation, McCarthy told a Senate Hearing that the EPA had "received over a 1 million comments and 87.1 percent of those comments ...are supportive of this rule."

On the other hand, the EPA was seemingly too busy conducting a national campaign on its Clean Power Plant to let the Gold King Mine disaster interfere or distract Administrator Gina McCarthy and her senior staff. After all, all public communications for the entire agency goes directly through the Administrator's Office, which makes the 6 day delay in Secretary McCarthy public acknowledgment of the toxic spill on August 12 even more problematic. Indeed, it will be interesting to see the EPA's final self-analysis, the Department of the Interior Report and Congress' continuing review of the Gold King Mine event.

Early in the crisis, EPA regional director of the EPA Shaun McGrath publicly admitted that the EPA could have done a better job communicating the disaster to the public so that the community could have had more time to respond. "Some of our earlier comments may have sounded cavalier about the public-health concern and the concern for wildlife," McGrath said.

In "EPA Crisis Communication Plan" article (the same Watchdog July 29th, 2015 story), they mentioned that "environmental journalists have been chronically frustrated with the EPA's press operation." The Associated Press story from August 21, 2015 seems to support a sense of chronic frustration: "It has typically taken days to get any detailed response from the agency [EPA], if at all."

Perhaps, the biggest reason that the Colorado toxic spill has such a long term importance centers around two current EPA environmental initiatives. The Clean Power Plan, whose final regulations where announced on August 3, 2 days before toxic spill and a new rule defining the Environmental Protection Agency's jurisdiction over wetlands, known as the "Waters of the U.S." in which federal Clean Water Act permits will be required to proceed with development or actions that change the character of the land, water and drainage.

Without legislative or public mandates, the EPA will become responsible for electricity and water usage for the entire United States through the Clean Power Plan and the Clean Air Act, that responsibility includes disaster control and deploying early warning systems. In essence, the 14,000 member EPA and its state and regional offices will be taking final control over the electrical grid and American waterways much to the chagrin of Congress and state governments, especially with the memory of the EPA's mishandling of Gold King Mine crisis communication. Matters like the EPA's core competency to take control and administration of American waterways and the electrical grid will remain a haunting specter on the American political landscape for many years to come.

Unless the EPA plans are ultimately declared unconstitutional by the Supreme Court, the nightmares may have just begun for all 50 states and their officials?

Authored By:
Stephen Heins, aka “The Blizzard of One,” is an energy consultant and nationally-published writer who has gained some attention for his expertise in energy, federal regulations, environmental and broadband policy issues.Heins promotes economic development, energy efficiency and emission reductions at the local, state and national levels. He has published more than 70 articles and op-ed pieces on energy, energy policy, utility industry and environmental issues for newspapers, energy and trade

Other Posts by: Stephen Heins

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October, 28 2015

Richard Vesel says

Bonds posted by some mine owners at the opening and closing of mines amount to a few tens of thousands of dollars per site, not nearly enough for remediation.

22. What is involved in reclamation of a mining claim?

Answer: Reclamation is the rehabilitation of mined land in order to mitigate the adverse environmental effects of mining.

Components of reclamation include:

Isolation, control, or removal of acid-forming, toxic, or deleterious substances; Regrading and reshaping to conform with adjacent landforms, facilitate revegetation, control drainage, and minimize erosion; Rehabilitation of fisheries or wildlife habitat; Placement of growth medium and establishment of self-sustaining revegetation; Removal or stabilization of buildings, structures, or other support facilities; Plugging of drill holes and closure of underground workings; and Providing for post-mining monitoring, maintenance, or treatment.

= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =

You offer no solutions, just lambasting of people who are trying to responsibly address the problem, and making one admittedly serious but temporary mistake in doing so. So, how do you propose to address the concerns which would arise in the mind of any sensible person who looks at the data I provide in the three references above? This is a legitimate and objective question, and any response which is at its core rhetorical, argumentative, non-technical, non-objective, or comes in the form of a personal attack, will clearly define your underlying motives for publishing this "article".

[Yes, I knew you were waiting for me to take the bait. Didn't want to disappoint.]


November, 01 2015

Stephen Heins says

Richard, after rereading your comments on my recent piece, I am thoroughly convinced that you and I have been communicating in different languages. I have been writing/talking about the failures of federal energy regulation and you have been talking about engineering. My "solution" continues to be state environmental oversight, where they are better equipped to deal with all things energy/environmental, regionally emergencies like toxic spills and timely communications.

Frankly, my piece has nothing to do with the issues surrounding abandon mines, which I think are best addressed discussing the use of the federal monies and the environmental Superfund. Maybe, you could flesh out your ideas in that context?

November, 02 2015

Richard Vesel says

The Colorado DRMS does not fund its operations to the extent that they could address a tiny fraction of the number of abandoned and leaking sites (see original references for the scope of the problem). Here is the tiny budget that Colorado alots for this environmentally critical function:

A couple of million dollars spread across overight and remediation for thousands of sites.

This is precisely why federal spending, oversight, and execution is required, here, and over the whole of the country: States and their legislatures are slaves to their local business constituencies, and grossly underfund environmental regulatory functions, and underegulate business practices which do short and long term environmental damage. They often leave the local residents "holding the bag" in terms of the consequences of the damage. The mine owners and their money are long gone, while the leaks leach and drain into waters of the state and downstream to other states. Remediation then falls into the hands of federal programs, which are the only ones equipped to properly deal with the scale and severity of the problems. Meanwhile, "states rights" advocates rale on and on about overreach, instead of raling about changing regulations to place responsibility with the parties who have irresponsibly exploited the resources, leaving much of the true cost for society to deal with.

The failures are not on the part of federal regulators and programs, but are really failures on the part of local and state officials, in the form of turning a blind eye, either willfully or via ignorance, towards the environmental transgressions of the industries they are entrusted to oversee. Token regulations which go unenforced, and underfunded state regulatory entities providing a few jobs and titles to local cronies are the result, along with poisoning of the environment.

This is a fact of history, and a noted lack of self-regulation by businesses in America, applicable to these Colorado mines, the Love Canal, the recent ash "pond" spills, etc. etc. It is only a matter of degree which defines the severity and observability of the damage, but it happens everywhere. There is only one solution, which should be obvious: federal standards, federal regulations, federal oversight, and if necessary, federal intervention wherever states minimize, ignore or abdicate their responsibilities in these regards, or pass harm along to their neighbors in the form of pollutions which traverse state boundaries via air, water or ground.

Either that, or everyone just rolls over and submits to the will and influence of the Almighty Dollar, and to hell with everything else.

November, 04 2015

Richard Vesel says

For further reference, tying the Colorado incident with Superfund issues (i.e. defunding by the anti-regulators in Congress) a Wall Street Journal article, 9-11-2015:

"Currently, dozens of mining sites around the U.S. are on the EPA’s “National Priorities List” for Superfund cleanups or proposed to be added to the tally. But the taxes designed to fund cleanup costs when responsible parties can’t be found expired in 1995, and the multibillion-dollar fund dwindled to zero in the 2003 fiscal year, according to EPA data. Congressional appropriations have since helped support the program, but they decreased to nearly $1.1 billion this fiscal year from $1.3 billion in 2010."

November, 04 2015

Richard Vesel says

For further reference, tying the Colorado incident with Superfund issues (i.e. defunding by the anti-regulators in Congress) a Wall Street Journal article, 9-11-2015:

"Currently, dozens of mining sites around the U.S. are on the EPA’s “National Priorities List” for Superfund cleanups or proposed to be added to the tally. But the taxes designed to fund cleanup costs when responsible parties can’t be found expired in 1995, and the multibillion-dollar fund dwindled to zero in the 2003 fiscal year, according to EPA data. Congressional appropriations have since helped support the program, but they decreased to nearly $1.1 billion this fiscal year from $1.3 billion in 2010."

November, 05 2015

Stephen Heins says


First, I agree with you and yes I read the WSJ article.

That said, I would prefer an organization like ABB running the abandon well remediation. At 140,000 plus employees and ten of thousands of engineers, ABB has 10 times the employees and a hundred times more engineers than the EPA.


November, 09 2015

Richard Vesel says

And a thousand times more different pursuits, and differing areas of expertise. Environmental remediation is not on our list!

When the government contracts out remediation efforts, because individual projects are too large for Federal staff, the project expenses and durations balloon to huge proportions, just as how private contractors made out like bandits during the prolonged Iraq war. A perfect example of this is what is going on at the Hanford reservation in Washington.

The best solution: an ounce of prevention is worth a pound of cure (in my own experience, a ton of cure, usually). Translation: an ounce of regulations with teeth are worth a ton of remediation

Well, anyway glad we could agree on something!


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