Originally posted in Energy Central

Posted on October 16, 2015 Posted By: Stephen Heins

Topic: Environmental, Emissions & Carbon Management

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?