It’s been more than five months since the Colorado Gold King Mine spill turned rivers and streams in the American West into toxic yellow torrents, but who caused it remains a mystery due to an Environmental Protection Agency (EPA) contractor’s dubious claim it can’t legally discuss the disaster.
St. Louis-based Environmental Restoration LLC removed rubble from Gold King Mine’s entrance in August which caused three million gallons of toxic waste to pour into the Animas River, contaminating drinking water in three states and the Navajo Nation.
But there are grounds to conclude the silence agreement doesn’t exist. Environmental Restoration’s contract with the EPA – obtained by government transparency nonprofit Open The Books – contains no language that would keep employees from discussing the spill in public.
"The EPA took four months to fulfill our simple Freedom of Information Act request for the non-disclosure agreement with Environmental Restoration and officially produced its contract as the only responsive document," Open The Books Founder Adam Andrzejewski told TheDCNF. "Turns out, there never was an NDA in that contract or anywhere else."
Instead, the contract and EPA say that Environmental Restoration can’t disclose "work product" related to agency work. But "work product" doesn’t mean contractors can’t discuss their work for taxpayers, according Heritage Foundation senior legal research fellow Paul Larkin.
"There may be several reasons why they wanted to limit public awareness," Larkin – a former EPA criminal enforcement special agent – told TheDCNF. "One is that they’re embarrassed."
Environmental Restoration may also fear being blackballed by EPA from receiving future contracts, Larkin said.
Regardless, Environmental Restoration’s claim EPA bars it from discussing the incident has played a key role in keeping details from the public.
"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 in a statement soon after the spill. "ER honors our contractual confidentiality obligations to all of our clients and cannot provide any additional information."
And, while the contract contains a clause regarding confidentiality, Environmental Restoration appears to be applying the provision too broadly.
"That clause could limit, in certain cases, the release of confidential information or data, but I think the company, most likely at the EPA’s request, was hiding behind it," Project On Government Oversight general counsel Scott Amey told TheDCNF.
Officials at EPA said the agency’s unpublished internal report includes this sentence: "Under EPA On- Scene Coordinator’s (name redacted) direction, the team slowly and carefully scraped away loose soil and rubble near the face of the adit with the initial goal of locating the primary blockage."
But the agency otherwise refused to comment, saying only "we would suggest you contact Environmental Restoration directly," EPA spokeswoman Nancy Grantham told TheDCNF. Greaney "testified at a congressional hearing regarding the Gold King Mine matter on Sept. 9, 2015."
Repeated calls to Environmental Restoration went to voicemail and were never returned. EPA directing journalists to contact a company that claims it’s bound to silence by EPA recalls the bureaucratic nightmare portrayed in Joseph Heller’s "Catch-22
Greaney’s testimony before the House Committee on Science, Space and Technology hearing Grantham referred to indicated that someone outside Environmental Restoration gave the order that caused the Gold King Mine disaster.
But no officials have been publicly blamed or punished for the spill, even though Greaney made it clear at least one person "directed" his company’s workers to perform an operation that poisoned the Animas River.