S. Michael McColloch PLLC | White Collar Criminal Defense | Dallas, TX | Double Standard? EPA Personnel to Escape Prosecution for Catastrophic Animus River Spill
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  • Double Standard? EPA Personnel to Escape Prosecution for Catastrophic Animus River Spill
    At the abandoned Gold King Mine near Silverton, CO, a team from the EPA was directing the work of private contractors in a clean-up operation when, on the morning of August 5, contaminated water breached its containment area and discharged into an Animus River tributary north of Durango. The thick orange sludge quickly spilled into the Animus and headed south toward Durango and New Mexico. By the weekend the normally bucolic Animus—a popular venue for fishing and rafting—had turned orange, filled with heavy metals including lead and arsenic, and Durango declared a state of emergency.
    Worse yet, the EPA personnel responsible for the spill and its containment waited an entire day before notifying anyone of the spill, including other EPA officials. The delay compounded the harm, as many area residents were left with little time to take precautions and much of the poisonous water flowed into irrigation ditches on the many farms which depend on the Animus for water. When the EPA did finally start talking, its disclosures were either false or incomplete:  its initial claim that only some 1 million gallons of the contaminants had discharged into the Animus was off by 2 million; the agency still hasn’t disclosed the chemical composition of the orange sludge, which has now advanced into New Mexico via the San Juan River and is heading west toward Utah and Arizona. Agency officials only take responsibility for undescribed “missteps.”
    Outraged elected officials, including New Mexico Governor Susana Martinez, have demanded that the EPA and its personnel be held to the same standards the agency imposes on others. As the governor complained, “This was caused by the EPA and the EPA should demand the same of itself as it would of a private business responsible for such a spill.” 
    The governor should not count on such bureaucratic beneficence. Government agencies do not hold themselves, or their personnel, to the same standards they impose on their enforcement targets. There will be no indictments, even of those whose negligent or reckless conduct directly caused the spill. There will be no damage awards; the agency is protected by sovereign immunity. The only compensation to the many victims will come only by way of congressional appropriations, courtesy of the taxpayers. It is also unlikely that any EPA personnel will suffer adverse employment consequences. Like the SEC attorneys caught in 2013 looking at pornography on their office computers full time for days and weeks on end—none of whom were fired—this government does not hold its personnel accountable.