DENVER – Federal investigators confirmed that they have been looking into a possible criminal connection to last year’s Gold King Mine spill.
The Environmental Protection Agency Office of Inspector General said in a news release Friday that it launched the criminal probe – which has been underway since last year – in response to “high public interest.”
“Based on requests from several members of the House and Senate, the OIG is conducting both a program evaluation and a criminal investigation of the Gold King Mine spill,” the release stated.
The Inspector General’s office is an independent office within the EPA that performs audits, program evaluations and investigations of the EPA.
The news release announcing the criminal probe was distributed across the country, though the release did not make it to The Durango Herald, despite promises by federal officials to prioritize communications with the local community.
“The people of Durango and Southwestern Colorado should have been the first to know,” said Colorado U.S. Sen. Cory Gardner, a Republican.
In the wake of the Aug. 5, 2015 Gold King Mine spill, the EPA was criticized for delays in communication with local governments and communities.
A spokesman for the Office of Inspector General apologized for not sending the release to the Durango community and downplayed the significance of it, pointing out that the investigation has been underway for some time.
“We mistakenly assumed that anyone who was interested in the OIG work would have subscribed on our website to any reports coming out,” said Jeff Lagda, spokesman for OIG.
“We didn’t think that this would get so much interest because... it was just simply a pause of the evaluation by our evaluators, but to also let folks know that the ongoing investigation was still continuing.”
Gardner, however, believes there is great significance to the announcement, which confirmed for the first time that a “criminal” investigation is taking place.
“It’s a big deal,” Gardner said. “You don’t criminally investigate the federal government every day. Maybe they’re trying to downplay this to keep it at a low-key level.”
The scope of the criminal investigation could be expansive, according to the OIG.
“The OIG will investigate any individuals who have a nexus to the potential criminal activity falling under its jurisdiction,” Lagda said. “However, any potential criminal activity that is determined to be outside the nexus of the OIG will be referred to the appropriate law enforcement agency.”
As an example, Lagda said if the potential criminal activity involves a drug crime, it would be referred to the Drug Enforcement Administration, or local law enforcement.
A letter to U.S. senators on June 29 – including Gardner – stated that a program evaluation began on Aug. 17, 2015. On Nov. 4, 2015, the Inspector General’s office identified “additional issues.”
“There is investigative material that we cannot reveal in any report about our program evaluation until the investigation reaches a point where the U.S. Department of Justice and the EPA OIG’s Office of Investigations inform us that we may do so,” states the letter to Gardner. “Many of your questions to us, including those that go to the heart of what you asked us to address, directly implicate and will have to be answered in part by investigative results that are not currently releasable.”
U.S. Sen. John McCain, R-Ariz., in April called on the Senate Indian Affairs Committee to subpoena EPA Administrator Gina McCarthy to appear at an April 22 field hearing in Arizona. It wasn’t the first time Congress pushed subpoenas stemming from the disaster.
Conflicting reports have cast shadows over the conversation, resulting in the House Committee on Natural Resources issuing subpoenas to Interior Secretary Sally Jewell and Lt. Gen. Thomas Bostick, with the Army Corps of Engineers.
In pushing for the subpoenas and additional information, members of Congress also called for a criminal probe into the incident.
The spill released an estimated 3 million gallons of mustard yellow toxic mining sludge into the Animas River. The polluted water traveled into New Mexico and Utah.
The EPA has acknowledged fault, which it said was the result of insufficient planning during excavation work at the entrance to the mine near Silverton. Debris gave way after the EPA team failed to properly assess pressure inside the mine.
In a separate report issued Monday, the EPA reiterated its culpability, but it also worked to connect the state to the incident, suggesting that the Division of Reclamation, Mining and Safety was part of the planning.
State officials, however, have maintained since last year that the state had no oversight over planning and work at the mine.
The issue could play into two lawsuits stemming from the incident, including one filed by New Mexico against Colorado in the nation’s high court.
Documents released in February stemming from a congressional investigation into the spill revealed that the EPA was aware of the potential for a blowout and may have deceived the public following the catastrophe.
Hays Griswold, the EPA employee who led restoration efforts at Gold King, said in an Oct. 28, 2015 internal EPA email that he “personally knew it could be holding back a lot of water and I believe the others in the group knew as well.”
But Griswold told the Denver Post shortly after the spill that “nobody expected it (the acid water backed up in the mine) to be that high.” A day after the spill, Griswold told The Durango Herald that the EPA planned to clear the dirt blocking the tunnel to install a pipe to pump out the contaminated water in the mine.
“What’s insane is that we are a year out of this spill, and not a single private sector claimant has been repaid by the EPA,” Gardner said. “That is insane, it’s absurd and it’s offensive.”
U.S. Rep. Scott Tipton, R-Cortez, added, “The people of this community have every right to a full accounting of the EPA’s actions or inactions that led to the Gold King Mine disaster and the agency’s failures to communicate and respond in its wake.
“I welcome this investigation, hope it provides answers to looming questions and delivers accountability that has been sorely missing at the EPA.”
pmarcus@durangoherald.com