EPA Fails to Acknowledge It Coerced Mine Owner to Grant Access

People kayaking in the Animas River near Durango, Colo., last Thursday, in water colored from a mine waste spill. The river is now closed indefinitely, with visitors warned to stay out.
Jerry Mcbride/The Durango Herald, via AP

The Environmental Protection Agency isn’t responding to claims by Todd Hennis, owner of the Gold King mine in Colorado that the agency coerced him to grant access to his property. Once taking over, of course, EPA’s incompetent attempts to remove debris created a massive 3 million gallon toxic waste spill from the mine.

Hennis told the CBS Denver affiliate that unless he allowed the EPA to have access and authority to conduct operations on the site the agency had threatened him with daily fines of $35,000.

“When you’re a small guy and you’re having a $35,000-a-day fine accrue against you, you have to run up the white flag,” Hennis explained.

Breitbart News asked the EPA on Friday to confirm or deny Hennis’s claim, but has received no reply.

It is not clear if Hennis complied with the request based solely on the threat of fines, or if he complied after the agency actually levied at least one day of the $35,000 per day fine.

Using the threat of huge daily fines against individuals and small business owners who lack the financial resources to fight back against such intrusions is nothing new for the EPA.

Dave Taylor, the retired geologist who predicted the EPA project that caused the Animas River toxic spill on August 5 “would fail within 7 to 120 days” tells Breitbart News: “I’ve heard of things like this happening on other projects.”

In 2007, the EPA forced the Sackett family to cease construction of a house on property they owned on a lake in Idaho on threat of a $75,000 per day fine because EPA decided their property was a wetland.

It took five years and the help of the Pacific Legal Foundation, but the Sacketts fought the EPA’s coercion all the way to the Supreme Court, which decided unanimously on their behalf in 2012.

Then there’s the 2011 case of Andy Johnson, a welder from Wyoming , who wanted to build a pond in his own back yard.

EPA also threatened him with a $75,000 per day fine if he dared to use his own property for that purpose.

Dr. David Lewis, a former EPA scientist, whistleblower, and “internationally recognized research microbiologist” tells Breitbart News there are many such stories of EPA misconduct, that range from coercing compliance through threats, to the faking of research data.

“When you take a situation like this – what EPA has done in Colorado – you cannot believe what EPA says about what are the levels of heavy metals in that river. You can’t even believe what comes out henceforth from any university that’s funded by the EPA.”

“You have to look at what happened in the Colorado River in the context of this past history of the EPA faking data.”

In the 1990s, Lewis tells Breitbart News, “on two dairy farms in Georgia where sewage sludge was applied to the farms as a free fertilizer under EPA’s 503 sludge rule from the city of Augusta, the dairy cattle started dying. When veterinarians were brought in, they determined it was heavy metals, and toxic compounds that were in the sewage sludge that was causing liver damage to the cows.”

“EPA out of Region IV in Atlanta started fining one of the dairy farmers whose cows were dying from this EPA sludge for having tires stacked on his farm. On the one hand, EPA was fining this farmer, but on the other, it was poisoning his land,” Lewis says.

EPA concluded this sludge was safe, according to Lewis.

“The data EPA published of metals concentration was totally fabricated. 20 years of EPA published to counteract my research were totally fabricated, a federal judge pointed out.”

“The dairy farmers and I filed a qui tam lawsuit to get more discovery on this. The University of Georgia’s principal investigator for the EPA admitted there were problems with this data,” Lewis says.

According to Lewis, the EPA has forced scientific research to comply with official policy since the early days of the Clinton administration.

“The public is unaware of the sea change in science that occurred in the first term of the Clinton administration . . . EPA was controlling science top down with political control of the science being produced. From Carol Browner, the EPA administrator in Bill Clinton’s firs term, on, all our research had to be submitted to HQ. If our results did not support EPA policies, we couldn’t publish it,” Lewis adds.

In the case of the Georgia dairy farmers, the conduct of the EPA had terrible consequences.

“The dairy farmers both lost their dairy farms, their businesses were wiped out by the mixture of heavy metals in the sludge that EPA approved and published fake data about what the levels were.”

“And McElmurray, one of the dairy farmers, filed suit against the city of Augusta and the USDA. The case was resolved in 2008, when a federal judge ruled against USDA on basis data EPA published had been fabricated. The USDA had to pay him for the lost crops because his land was too toxic.”

EPA has attempted to institutionalize its pattern of coercive behavior into two recently finalized regulations: “The Clean Water Rule: Definition of ‘the Waters of the U.S.’ ”, and the “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units.”

Rae Ann Kelsch, the North Dakota state director for the National Federation of Independent Businesses, calls these efforts to place a patina of legitimacy on such coercive actions as “the imperial arrogance of the EPA.”

“One agency in particular has been operating with an imperial attitude for longer than should be allowed: the Environmental Protection Agency. North Dakotans have long experience with the excesses of the EPA and, by now, are fully aware of the agency’s latest rule greatly expanding the definition of — and their commensurate jurisdiction over — waters of the United States,” she wrote in a January 2015 op-ed in the Bismarck Tribune.

“It had been assumed that two U.S. Supreme Court cases the EPA was on the losing end of, Rapanos v. United States and Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, might have humbled the agency and established, once and for all, generally accepted limitations on jurisdictional expansion via the rule-making process. Not so,” Kelsch wrote.

“Commenting on EPA’s new [Waters of the U.S] rule, regulatory expert Dan Bosch of the National Federation of Independent Business said, ‘The process was rigged in favor of the agencies. They simply decided that they didn’t even need to consider the effects on small business. That analysis is required by law. It’s not optional.’” Kelsch continues.

Kelsch points out that the Office of Advocacy at the U.S. Small Business Administration thinks, “The rule will have a direct and potentially costly impact on small businesses. The limited economic analysis which the agencies submitted with the rule provides ample evidence of a potentially significant economic impact. Advocacy advises the agencies to withdraw the rule.”

EPA proceeded with the rule, nonetheless, and it was finalized in June.

“So there you have it,” Kelsch wrote. “When EPA is not ignoring Supreme Court limitations on it, it is blithely disregarding rule-making laws required of it.”

At other times, apparently, it is bullying private individuals and small businesses with threats of massive fines if they don’t concede their property rights and submit on bended knee to any action the bureaucrats of the EPA want to take on their property.


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