The Ongoing Lack of EPA Accountability for the Gold King Mine Spill: The EPA’s New “Responder” Theory

November 30, 2016 13 min read Download Report

Paul Larkin

Rumpel Senior Legal Research Fellow

Paul is a Senior Legal Research Fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation.

One year ago, Environmental Protection Agency (EPA) employees caused the discharge of approximately 3 million gallons of toxic waste into the Animas River surrounding the Gold King Mine in Colorado.[1] Shortly thereafter, EPA Administrator Gina McCarthy publicly stated that the EPA took complete responsibility for the incident.[2] “Yet, nothing has happened” within the agency to hold anyone accountable for its discharge, said U.S. Senator Dan Sullivan (R–AK) to Cynthia Giles, head of the EPA’s Office of Enforcement and Compliance Assurance, during a June 2016 congressional oversight hearing.[3] The Senator added that “if a private sector company did this, it’s likely that the CEO or some members of that company would actually be in jail right now.”[4]

The Senator has a point: The federal government has criminally prosecuted private parties under the Clean Water Act for negligently polluting bodies of water like the Animas River without a permit.[5] Perhaps the EPA’s Office of the Inspector General is aware of the Senator’s concern, because the office has since initiated a criminal investigation into the EPA’s spill.[6]

At the June hearing, members of the Senate Committee on Environment and Public Works questioned Giles about why the agency had taken no action against the parties responsible for the Animas River Spill. In response, Giles said that:

[T]he law and enforcement distinguishes between the company who makes and releases pollution and the entities that are trying to respond and clean up pollution that other people created. So, in the case of EPA’s action in Gold King, we were acting as a responder, trying to prevent releases of pollution that were left there by others.[7]

That claim, however, is not well founded in the law. In fact, there is no basis for claiming that entirely different legal standards apply under the Clean Water Act to “polluters” and “responders”—with one exception: a 2012 EPA memorandum co-authored by Cynthia Giles.[8] The EPA, however, is not entitled to exempt its own employees from the reach of the criminal law. What is more, Congress, the Supreme Court of the United States, and the EPA itself have either expressly rejected or seriously undermined the theory that Giles expressed in her memorandum and testimony. Accordingly, Congress should (1) ask the Department of Justice (DOJ) whether it agrees with the theory Giles has proposed, and (2) ask EPA Administrator McCarthy how often the EPA has declined to investigate potential criminal conduct by one of its employees.[9]

Cases of Liability Under the Clean Water Act

Typical Cases. The Clean Water Act (CWA) is the principal federal law addressing water pollution.[10] The statute makes it a crime to pollute one of the “waters of the United States” without a permit, even if the pollution occurs due only to negligence.[11] For example, the government prosecuted an oil and gas company after some of its workers discharged “rock, sand, soil and stone into streams” to impound a water supply for drilling activity.[12] In another case, when an off-duty backhoe operator accidentally struck open an oil pipeline in Alaska and 1,000 to 5,000 gallons of oil spilled into the Skagway River, the Justice Department prosecuted the operator’s supervisor.[13] A district court sentenced the supervisor, Edward Hanousek, to serve six months’ incarceration, six months in a halfway house, and six months on supervised release and to pay a $5,000 fine.[14]

An Atypical Case: What Caused the Gold King Mine Spill? An investigative report on the EPA’s Gold King Mine spill, commissioned by the EPA from the Department of the Interior’s Bureau of Reclamation, explains that the spill occurred when a backhoe operator struck a flooded adit (a horizontal mine portal), causing it to open.[15] The EPA published an addendum confirming that its excavation caused the discharge. At the same time—contrary to what EPA Administrator McCarthy said shortly after the spill occurred—the EPA denied responsibility for the spill.[16] Unlike Edward Hanousek, however, no one at the agency has been held accountable, let alone charged with a crime.[17]

At a congressional oversight hearing on the Gold King Mine spill, as noted, Senator Sullivan asked Giles, “Why has nobody in EPA been held liable, been criminally charged?”[18] That question remains unanswered.

The EPA’s “Responder” Theory of Exemption from the CWA

Ms. Giles did not discuss her theory of non-liability for responders at the hearing, and as far as we can tell, the EPA has not published it anywhere that makes it available to the public. That is a problem that the EPA should remedy. The DOJ occasionally publishes printed discussions of federal laws that offer its interpretation of them. Those publications do the public a service by affording people at least some idea of how the department views potential criminal liability. Here, the EPA claims to have a different interpretation of federal law for “polluters” and “responders.” No statute makes that distinction, however, nor does any federal law establish a “responders” defense to environmental liability. It would be valuable to have such a defense available because, at a minimum, it would encourage parties to enter into the environmental cleanup business, a business that is needed in areas of the western United States where abandoned mines dot the landscape. As explained below, Congress has considered adopting such a defense but has been unable to do so.[19] Congress and the public would profit from a clear statement of the justification for and scope of a defense that the EPA apparently believes already exists under federal law.

A written, public explanation of the EPA’s reasoning would be helpful for another reason as well. The Animas River incident gives rise to the strong suspicion that the EPA discriminates against private parties when it comes to the reach of the federal criminal law. As Heritage Foundation legal scholars have previously explained,[20] the EPA Office of Criminal Enforcement, Forensics, and Training has pursued criminal investigations of private parties for negligently spilling wastes into navigable waters. Yet despite the Administrator’s bold claim that the agency would hold itself accountable for its actions, nothing was done until the EPA Office of the Inspector General initiated a criminal investigation. It would be valuable for the public to know whether the defense that the EPA believes exists is limited to EPA and other government employees. If so, that would support the already existing suspicion that the EPA is playing favorites.

Finally, it is all well and good to believe that the EPA thinks there is a different rule of liability for polluters and responders, but the agency does not have the authority to file criminal charges. That responsibility is a prerogative of the Department of Justice. Moreover, the EPA is not the only agency that has jurisdiction over environmental crimes: The FBI does too. So while the public should know what the EPA’s legal position is on this matter, it is the Justice Department’s interpretation of the law that really counts. And if the DOJ does not believe that there is a different legal standard for “polluters” and “responders,” that would further substantiate the belief that the EPA is discriminating against private parties.

Ms. Giles testified before Congress that federal law treats “the company who makes and releases pollution” differently from “entities that are trying to respond and clean up pollution that other people created” and that the EPA was “acting as a responder” at the time of the spill.[21] When pressed to explain, Giles claimed that the “EPA does not typically assess penalties or pursue enforcement actions, other than to get response parties to clean up the mess that they made, and that is what EPA is taking responsibility for doing.”[22]

That distinction might be a sensible one if the Clean Water Act drew it, but the act does not. Moreover, as noted, Congress, the Supreme Court, and the EPA itself have rejected it in full or in part at one time or another.

Federal Law Does Not Exempt “Responders” from Liability Under the CWA

The text of the Clean Water Act does not contain different standards of liability for “polluters” and “responders” (or “cleanup crews”), and the statute contains no defense that can be invoked only by “responders.”[23] In fact, the federal courts have rejected any such distinction even when the “responder” is a state agency exercising government power. As the United States Court of Appeals for the Fourth Circuit has observed, “both the text of the CWA and the EPA’s implementing regulations squarely reject any exemption for state agencies.”[24] The Clean Water Act “contains no exemption for reclamation efforts; to the contrary, it bans ‘the discharge of any pollutant by any person,’ regardless of their motives.”[25] The Congressional Research Service reports that “mining companies, industry associations, and some conservation groups”[26] have supported legislation “to authorize Good Samaritan remediation” of mine sites like the Gold King Mine, which “has been introduced regularly since 1999.”[27] Every bill has languished before the responsible Senate and House committees.[28]

Strike one.

The Supreme Court has ruled that the Clean Water Act does not exempt government employees from liability for an unpermitted discharge and does not exempt facilities that “treat and discharge pollutants added to water by others.”[29] That is true, the Court ruled, even where the relevant facility exists to “treat and discharge pollutants added to water by others.”[30] Lower federal courts have relied on the Supreme Court’s case law to reject a government defendant’s argument that the CWA exempts state actors and their reclamation efforts from liability.[31]

Strike two.

The points discussed above would seem to be at odds with the explanation that the EPA gave Congress for the lack of accountability within the agency, but that is not the end of it. The EPA’s own regulations also make clear that that any “Person” (meaning “an individual, association, partnership, corporation, municipality, State or Federal agency, or an agent or employee thereof”) may be held liable for a violation of the Clean Water Act.[32] EPA regulations also state “that post-mining discharges are covered” under the CWA[33] and are “subject to enforcement action by EPA…and by citizens” as well.[34] The Fourth Circuit Court of Appeals put it simply: “The EPA’s intent is pellucid. Both those who generate pollution and those who superintend ongoing discharges”—even government employees at reclamation of inactive mine sites like the Gold King Mine—are subject to the Clean Water Act.[35] Former EPA Assistant Administrator for Water, Benjamin H. Grumbles, testified to Congress that the agency is aware of the laws and even their unintended consequences:

Under the CWA, a party may be obligated to obtain a discharge permit which requires compliance with water quality standards in streams that are already in violation of these standards…. Yet, in many cases, the impacted water bodies may never fully meet water quality standards, regardless of how much cleanup or remediation is done. By holding Good Samaritans accountable to the same cleanup standards as polluters or requiring strict compliance with the highest water quality standards, we have created a strong disincentive to voluntary cleanups.[36]

Strike three.

Where, then, could the EPA have found an exemption from Clean Water Act liability if the Supreme Court has undermined Giles’s theory of exemption and lower federal courts, Congress, and the EPA’s own regulations have all rejected any such exemption?

The Giles Memo

One document is available to illuminate Giles’s statement to Congress about liability under the Clean Water Act: a 2012 memorandum written by Cynthia Giles and three other senior EPA officials to EPA regional administrators on the matter of Good Samaritan exemptions from the CWA’s permit requirement.[37] The memorandum states that some Good Samaritans may be exempted from the CWA’s permit requirement in the course of some reclamation activity, depending on the degree of control they exercise over the mine’s operations.[38]

The Giles memo is unclear with respect to what the qualifications for a responder are and what the scope of any exemption from CWA liability might be. The EPA has also written that the document does not have the force of law.[39] Thus, there is no guarantee that the agency could not pursue enforcement actions against a qualified responder party no matter what the memo says.[40] The significance of the memo for “potential Good Samaritans” is muddied further by “some judicial opinions that,” the memo reports, “heighten the Good Samaritans’ concerns regarding long term liability under the CWA.”[41]

The Giles memo claims that federal case law “supports the positions described in this memorandum.”[42] As that “support,” the memo cites two federal circuit court decisions: the Ninth Circuit’s ruling in Committee to Save the Mokelumne River v. East Bay Municipal Utility District (East Bay) and the Fourth Circuit’s decision in West Virginia Highlands Conservancy v. Huffman (Huffman). Each decision, however, contradicts the EPA’s theory.

In East Bay, a conservationist group called the Committee to Save the Mokelumne River sued two California state authorities—the East Bay Municipal Utility District and members of the California Regional Water Quality Control Board, Central Valley Region—for discharging pollutants into the river without a permit in violation of the Clean Water Act. The defendants admitted that the discharge occurred during their efforts to reduce acid drainage flowing into the river from the Penn Mine facility.[43] The state authorities had acquired a portion of the Penn Mine property (situated between Sacramento and Yosemite National Park) that had been abandoned since the 1950s. Those authorities built a dam, a series of impoundments, drainage ditches, culverts, channels, a reservoir, and a pump to trap and carry polluted water from a reservoir back to upper impoundments,[44] all “in an attempt to reduce the threat of continued toxic runoff.”[45]

The Ninth Circuit Court of Appeals noted that “from time to time, water and drainage collected” in a reservoir and, despite the state’s best efforts, spilled “over the spillway or through the dam’s discharge valve into the Mokelumne River.”[46] The defendants argued that their spills did not violate the CWA. They pointed to case law holding that a dam that “does no more than impound navigable waters and impede their flow” is not subject to the Clean Water Act’s permit requirements, nor is a facility that does not increase net pollution. In any event, they claimed that “the State cannot be held liable [under the Clean Water Act] for the activities which it has performed pursuant to its regulatory responsibilities.”[47] The Ninth Circuit squarely rejected that claim, reaffirming that “The Clean Water Act contains no such exemption.”[48]

The second case that the EPA cites for support, Huffman, is another lawsuit filed by conservationist groups[49] against a state agency—this time, the West Virginia Department of Environmental Protection—to compel it to obtain a federal permit to make discharges in the course of reclamation activity at abandoned mines.[50] Like the Ninth Circuit, the Fourth Circuit rejected the sought-after exemption, ruling that the state agency had violated the Clean Water Act regardless of whether the agency was executing its regulatory duties.[51] As Judge J. Harvie Wilkinson explained:

The text of the CWA, as well as the corresponding regulations issued by the Environmental Protection Agency, confirm that the permit requirements apply to anyone who discharges pollutants into the waters of the United States. Under the CWA, it does not matter that a mining company may have created the conditions that call for reclamation. What matters is that an entity, private or public, is currently discharging pollutants into the waters of the United States. In fact, the statute contains no exceptions for state agencies engaging in reclamation efforts; to the contrary, it explicitly includes them within its scope.[52]

Like the Ninth Circuit, the Fourth Circuit rejected the argument that the Clean Water Act distinguishes between “polluters” and “responders.”[53]

Conclusion

EPA Assistant Administrator Cynthia Giles testified before Congress that, for purposes of criminal and civil liability, the Clean Water Act distinguishes between “polluters” and “responders.” The text of the act draws no such distinction, however, and the federal courts have rejected the argument that one exists. That distinction, of course, would be a sensible one. As David Gerard, a Lawrence University economics professor and former research fellow at the Property and Environment Research Center, has said, “Given how complicated, costly, and (as we are seeing) risky cleanups can be”—even for the government agencies responsible for regulating reclamation activity—“even fools don’t rush in where angels fear to tread.”[54]

Only Congress, however, can decide whether “responders” should be exempt from the Clean Water Act permit requirement or whether some standard of liability (other than negligence) should be required to prove their liability. Moreover, any such exemption should fully apply to government and private responders alike. There is no reason to discriminate against private parties when they seek to clean up someone else’s mess.

Because the agency cannot exempt itself from federal criminal law, Congress should consider asking again, “Why has nobody in [the] EPA been held liable?”

—Paul J. Larkin, Jr., is a Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation. John-Michael Seibler is a Legal Fellow in the Meese Center.

[1] See, e.g., Julie Turkewitz, Environmental Agency Uncorks Its Own Toxic Water Spill at Colorado Mine, N.Y. Times (Aug. 11, 2015), http://www.nytimes.com/2015/08/11/us/durango-colorado-mine-spill-environmental-protection-agency.html?_r=0.

[2] Paul J. Larkin, Jr., & John-Michael Seibler, Sauce for the Goose Should Be Sauce for the Gander: Should EPA Officials Be Criminally Liable for the Negligent Discharge of Toxic Waste into the Animas River? Heritage Foundation Legal Memorandum No. 162, at 2 (Sept. 10, 2015) (hereafter Larkin & Seibler, Sauce for the Goose Should Be Sauce for the Gander) (“The EPA has admitted responsibility for the spill, ‘saying it accidentally breached a store of chemical-laced water.’ ‘This is a huge tragedy,’ Dave Ostrander, EPA regional director of emergency preparedness, told residents. ‘We typically respond to emergencies; we don’t cause them.’ EPA Administrator Gina McCarthy echoed those comments: ‘We want to reassure everyone that the EPA does take full responsibility for the spill,’ which took place at the long-closed mine north of Durango, she said. ‘No agency could be more upset about this incident and more dedicated to doing our job and doing it right.’”) (footnotes omitted), http://static.heritage.org/2015/pdf/LM162.pdf.

[3] See Hearing: Oversight of U.S. Environmental Protection Agency Enforcement and Compliance Programs, Before the Senate Comm. on Environment and Public Works, 114th Cong. (June 29, 2016) (hereafter Hearing).

[4] Id.

[5] See Larkin & Seibler, Sauce for the Goose Should Be Sauce for the Gander, supra note 2, at 3; see also Paul J. Larkin, Jr., & John-Michael Seibler, Agencies Not Coming Clean About the EPA’s Responsibility for Poisoning the Animas River, Heritage Foundation Legal Memorandum No. 170 (Dec. 8, 2015), file:///Users/Larcorp/Downloads/LM-170.pdf.

[6] See John-Michael Seibler, Finally, EPA May Be Held Accountable for Potential Wrongdoing at the Gold Mine King Spill, Daily Signal (Aug. 5, 2016), http://dailysignal.com/2016/08/05/finally-epa-may-be-held-accountable-for-potential-wrongdoing-at-the-gold-mine-king-spill/.

[7] Hearing, supra note 3, at 33 (statement of Cynthia Giles).

[8] See Memorandum from Cynthia Giles, Asst. Admin., Office of Enforcement and Compliance Assurance et al. to Regional Administrators, Regions I–X, Clean Water Act § 402 National Pollutant Discharge Elimination System (NPDES) Permit Requirements for “Good Samaritans” at Orphan Mine Sites (Dec. 12, 2012), available at https://www.scribd.com/doc/116560607/2012-EPA-Good-Samaritan-Memo (hereafter Giles Memo). The memo discusses another EPA memorandum from 2007, “Interim Guiding Principles for Good Samaritan Projects at Orphan Mine Sites and Transmittal of CERCLA Administrative Tools for Good Samaritans,” which has since been amended (and the original has been, at the time of this writing, unavailable through online research). That memo concerns settlement agreements or status letters that define the scope of liability for certain reclamation efforts under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601–9675 (1980).

[9] So far, attempts to create a “Good Samaritan exception” to criminal liability for mine cleanup crews have failed. See Claudia Copeland, Cong. Research Serv., R44285, Cleanup at Inactive and Abandoned Mines: Issues in “Good Samaritan” Legislation in the 114th Congress (2015), available at https://www.fas.org/sgp/crs/misc/R44285.pdf. Congress might also enact such a law to incentivize parties to clean up hazardous waste sites, but any such law should apply to all parties equally, both government and private.

[10] Larkin & Seibler, Sauce for the Goose Should Be Sauce for the Gander, supra note 2, at 2 (citing Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (codified throughout chapter 33 of the United States Code (2012)); David Gerard, Q&A with David Gerard on Abandoned Mines, the Mining Law of 1872, and the Animas River Spill, Property & Env. Res. Center (Aug. 13, 2016), http://www.perc.org/blog/why-its-so-hard-clean-abandoned-mines (“The primary concern from abandoned mines is the discharges that can pollute rivers and lakes. Under current EPA policy, these discharges need to be permitted through the Clean Water Act.”).

[11] See 33 U.S.C. §1319(c)(1)(A) (2012) (making unlawful the unpermitted discharge of a pollutant into a navigable water); United States v. Hanousek, 176 F.3d 1116 (9th Cir. 1999), cert. denied, 528 U.S. 1102 (2000) (Thomas & O’Connor, JJ., dissenting from the denial of cert.) (criminal prosecution for discharge of 1,000 to 5,000 gallons of hot oil into a river); EPA Office of Crim. Enforcement, Forensics, and Training, Environmental Crimes Case Bulletin 10 (Mar. 2015), http://www2.epa.gov/sites/production/files/2015-04/documents/march_2015_enviromental_crimes_case_bulletin.pdf (two men “pleaded guilty to causing the unlawful discharge of MCHM [methylcyclohexanemethanol] into the Elk River without a permit” and to negligent discharge of a pollutant into navigable water in another incident). That is true despite the fundamental principle that any liability based on negligence—that is, the mere failure to act reasonably in light of foreseeable risks of harm, see Prosser & Keeton on the Law of Torts 160–235 (W. Page Keeton et al., eds., 1984)—should be civil and not criminal. “Anglo–American criminal law traditionally has marked a person as a criminal only if he or she committed a morally blameworthy act, known as the actus reus, along with an ‘evil’ frame of mind, known as mens rea or scienter.” Paul J. Larkin, Jr., Jordan Richardson, & John-Michael Seibler, The Supreme Court on Mens Rea: 2008–2015, Heritage Foundation Legal Memorandum No. 171 (Jan. 14, 2016), http://www.heritage.org/research/reports/2016/01/the-supreme-court-on-mens-rea-20082015.

[12] EPA Office of Crim. Enforcement, Forensics, and Training, Environmental Crimes Case Bulletin, 3 (Apr. 2015), http://www2.epa.gov/sites/production/files/2015-05/documents/april_2015_environmental_crimes_case_bulletin.pdf (on Apr. 22, 2015, an oil and gas exploration company was sentenced to two years of probation and ordered to pay fines totaling $600,000 for discharging “rock, sand, soil and stone into streams;” the company also pleaded guilty in October 2014 to three counts of “Negligent Discharge of Pollutants without a Permit.”).

[13] Hanousek, 176 F.3d 1116.

[14] Id. In addition to the CWA, parties might be liable for the costs of pollution caused in the course of remediation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. § 9607) and face civil and criminal liability for the mishandling of pollution under the Toxic Substances Control Act (15 U.S.C. § 2601 et seq. (1976)). See also EPA, Waste, Chemical, and Cleanup Enforcement, https://www.epa.gov/enforcement/waste-chemical-and-cleanup-enforcement (last accessed Aug. 19, 2016)), and the Solid Waste Disposal Act, 42 U.S.C §§ 82 & 6928(d)-(g) (2012). Further, nongovernment entities, including states, Indian tribes, and private citizens, may also file a citizen suit against responsible parties under the Resource Conservation and Recovery Act (RCRA), which provides injunctive relief “against any person, including the United States…who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972. RCRA also authorizes the EPA or authorized state agencies “to use criminal judicial actions to enforce against people who knowingly violate RCRA.” EPA, RCRA Corrective Action Enforcement Actions, https://www.epa.gov/enforcement/rcra-corrective-action-enforcement-actions (last accessed Aug. 19, 2016). Given the ubiquity of civil and criminal liability that surrounds mining and reclamation activities (see, e.g., In re Idaho Conservation League, USCA Case #14-1149 Document #15960811 (D.C. Cir. 2016), http://bit.ly/2b5PqRE (although “CERCLA requires operators to pay to clean up hazardous releases,” the United States Court of Appeals for the District of Columbia observed in 2016, that “[i]t is a common practice for operators to avoid paying environmental liabilities by declaring bankruptcy or otherwise sheltering assets.” Id. at 9–10)), there is little wonder why private parties decline to volunteer for the task of remediating abandoned mines. Sometimes, they refuse to clean up after their own mining. Reforming the U.S. Hardrock Mining Law of 1872: The Price of Inaction, Pew Campaign for Responsible Mining 4 (2009), http://www.pewtrusts.org/~/media/legacy/uploadedfiles/peg/publications/report/ref orming20mining20lawpdf.pdf; Kelly Roberts, Note, A Legacy That No One Can Afford to Inherit: The Gold King Disaster and the Threat of Abandoned Hardrock Legacy Mines, 36 J. Nat’l Ass’n Admin. L. Judiciary 361 (2016), available at http://digitalcommons.pepperdine.edu/naalj/vol36/iss1/8.

[15] See U.S. Dep’t of the Interior, Bureau of Reclamation, Technical Evaluation of the Gold King Mine Incident (Oct. 2015), available at http://www.usbr.gov/docs/goldkingminereport.pdf.

[16] EPA, Addendum to EPA Internal Review of Gold King Mine Incident, https://www.epa.gov/sites/production/files/2015-12/documents/gkmaddendumfinal.pdf (last accessed Aug. 18, 2016). Some might say that denial is reminiscent of the offender who argues “but, Your Honor, I was just carrying the gun when it went off all on its own!” Paul J. Larkin, Jr., & John-Michael Seibler, EPA Now Says It’s Not to Blame for Gold King Mine Spill, Daily Signal (Dec. 21, 2015), http://dailysignal.com/2015/12/21/epa-now-says-theyre-not-to-blame-for-gold-king-mine-spill/. The House Committee on Natural Resources issued a staff report finding the EPA responsible for the Gold King Mine spill: Majority Staff of H. Comm. on Natural Resources, 114th Cong., EPA, The Department of the Interior, and the Gold King Mine Spill (Feb. 11, 2016), available at http://bit.ly/20qWivF.

[17] See Paul J. Larkin, Jr., Public Choice Theory and Overcriminalization, 36 Harv. JL & Pub. Pol’y 715, 786–90 (2013); Larkin & Seibler, Sauce for the Goose Should Be Sauce for the Gander, supra note 2.

[18] Hearing, supra note 3.

[19] See Copeland, supra note 9.

[20] See supra notes 2 & 5.

[21] See Hearing, supra note 3.

[22] Id.

[23] See W. Virginia Highlands Conservancy, Inc. v. Huffman, 625 F.3d 159, 166 (4th Cir. 2010) (noting that “both the text of the CWA and the EPA’s implementing regulations squarely reject any exemption for state agencies,” and “the statute contains no exemption for reclamation efforts; to the contrary, it bans ‘the discharge of any pollutant by any person,’ regardless of their motives.” citing in turn, with emphasis added, 33 U.S.C. § 1311(a)).

[24] Huffman, 625 F.3d at 166.

[25] Id.

[26] Copeland, supra note 9, at 1–2.

[27] Id.; see also S. Rep. No. 109-351, 109th Cong. 10 (2006) (“The Committee believes that to incentivize voluntary cleanups of such sites, it is necessary to establish a new permit program pursuant to which EPA (or a delegated State or Tribe) may issue a permit to a Good Samaritan that may, on a case by case basis, waive or relax the regulatory, permitting and/or liability provisions that might otherwise be triggered under CERCLA, the Clean Water Act and several other laws and that would dissuade a Good Samaritan from taking steps to improve that environment at and in the vicinity of the mine site.”).

[28] Copeland, supra note 9; Rachael Bale, The Surprising Reason Abandoned US Mines Haven’t Been Cleaned Up, Reveal (Nov. 4, 2014), https://www.revealnews.org/article-legacy/the-surprising-reason-abandoned-us-mines-havent-been-cleaned-up (referencing H.R. 963, 114th Cong., Hardrock Mining Reform and Reclamation Act of 2015 (2015); H.R. 3843, 114th Cong., Locatable Minerals Claim Location and Maintenance Fees Act of 2015 (2015); and S. 1443, 113th Cong., Good Samaritan Cleanup of Abandoned Hardrock Mines Act of 2013 (2013)) (noting that “a 2006 abandoned mine cleanup bill brought by then-Sen. Ken Salazar…who later served as secretary of the interior from 2009 to 2013…included waivers not just to the Clean Water Act, but also to the Toxic Substances Control Act and Solid Waste Disposal Act.”).

[29] See S. Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004) (holding a state agency liable for violating the CWA). That is consistent with the Court’s recognition that government employment is not “a license to break the law.” See Paul J. Larkin, Jr., “Sauce for the Goose Is Sauce for the Gander”: Treating Private Parties and Government Officials Alike Under the Criminal Law, Heritage Foundation Legal Memorandum No. 99 (July 31, 2013), http://bit.ly/2buBktS (citing United States v. Nixon, 418 U.S. 683, 692–97 (1974)).

[30] S. Florida Water Mgmt. Dist., 541 U.S. at 105 (noting that requiring wastewater treatment facilities to comply with the Act was “one of the Act’s primary goals”); see also Huffman, 625 F.3d at 168 (“[U]nder the CWA, the question of who generated pollutants is irrelevant. What matters is who is currently discharging pollutants into navigable waters.”).

[31] See Comm. to Save Mokelumne River v. E. Bay Mun. Util. Dist., 13 F.3d 305, 309 (9th Cir. 1993) (rejecting the argument that a state entity’s reclamation activity is an exercise of regulatory authority that makes it immune from liability under the CWA); Huffman, 625 F.3d 159 (same).

[32] 40 C.F.R. § 122.2 (emphasis added).

[33] See 50 Fed. Reg. 41296 (Oct. 9, 1985), cited at W. Virginia Highlands Conservancy, Inc. v. Huffman, 625 F.3d 159, 166 (4th Cir. 2010).

[34] Id. (citing 50 Fed. Reg. 41296, 41298). The EPA’s alleged “responder” theory is also unfounded in common-law tort principles regarding negligence, which provided the standard for criminal prosecution under the CWA against Edward Hanousek and others. At common law, negligence consists of five general elements. See Henry T. Terry, Negligence, 29 Harv. L. Rev. 40, 41 (1915) (“[N]egligence is doing what a reasonable and prudent man would not have done or not doing what such a man would have done.”); David G. Owen, The Five Elements of Negligence, 35 Hofstra L. Rev. 1671, 1686 (2007) (restating the common-law elements of negligence: “duty, breach, cause in fact, proximate cause, and harm.”). Modern statutory schemes that provide for an action based on negligence may still refer to the common law. See Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 165–66 (2007) (“Absent express language to the contrary, the elements of a [Federal Employers’ Liability Act] claim are determined by reference to the common law.”). Nor does any such exemption appear in the Justice Department’s guiding documents on handling negligence claims (but see USAM § 4-5.510 and note that the Environmental Torts (ET) staff reports on its website that it “has successfully defended the Federal Government from billions of dollars in lawsuits.” Department of Justice, Environmental Tort Litigation Section, https://www.justice.gov/civil/environmental-tort-litigation-section (last accessed Aug. 22, 2016)).

[35] Huffman, 625 F.3d at 166.

[36] Benjamin H. Grumbles, Assistant Administrator for Water, U.S. EPA, Testimony Before the Subcomm. on Water Resources and Environment of the House Comm. on Transportation and Infrastructure, 109th Cong., 2–3 (Mar. 30, 2006) (cited in Copeland, supra note 9, at 6).

[37] Giles Memo, supra note 8.

[38] Id. (referring in large part to agreements between the government and an entity engaging in mine reclamation activity under a separate statutory scheme).

[39] EPA, Questions and Answers, Clean Water Act § 402 National Pollutant Discharge Elimination System (NPDES) Permit Requirements for “Good Samaritans” at Orphan Mine Sites (Dec. 12, 2012), https://www.epa.gov/sites/production/files/2015-10/documents/good-sam-faqs-2012.pdf.

[40] The agency could always change its mind no matter what the memo describes as the scope of exemption from the permitting requirement of the Clean Water Act. See Perez v. Mortgage Bankers Association, 135 S. Ct. 1199, 1210–11 (2015) (Alito, J., concurring); id. at 1211–13 (Scalia, J., concurring); id. at 1213–24 (Thomas, J., concurring) (describing how judicial deference to agency interpretations of their own regulations vests agency decision-makers with broad discretion to interpret the law); see also Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, 1978 S. Ct. Rev. 345 (1978) (explaining how courts may defer to agencies even if the agency takes schizophrenic policy positions).

[41] Giles Memo, supra note 8, at 5.

[42] Id.

[43] East Bay, 13 F.3d 305, 306 (plaintiffs filed suit under 33 U.S.C. § 1365 seeking to enjoin the state from further reclamation activity until the agencies obtained CWA permits).

[44] Id. at 307.

[45] Id. at 306.

[46] Id. at 307.

[47] Id. at 308. Circuit Judge Ferdinand Francis Fernandez noted in his dissenting opinion that if the federal law holds even state authorities attempting to clean up abandoned mine sites liable for a discharge, then “it takes no genius or epopt to see” what the federal government’s “message” on liability for responders “will be”: “Do nothing!” Id. at 310.

[48] Id. at 309.

[49] Here, the West Virginia Highlands Conservancy and West Virginia Rivers Coalition. See 625 F.3d 159.

[50] Id. at 161. The agency has adopted regulations that require treatment of mining pollution that are in accordance with applicable EPA pollution standards and in some cases “twice as strict” as their EPA counterparts. Id. at 163.

[51] Id.

[52] Huffman, 625 F.3d at 161; see also Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1143 (10th Cir. 2005) (“[T]he liability and permitting sections of the [CWA] focus on the point of discharge, not the underlying conduct that led to the discharge.”).

[53] It makes no sense to treat “polluters” and “responders” differently with respect to the situation they face when deciding whether one or the other was negligent. After all, arsonists and firefighters confront different scenarios. But that is just a matter of treating factually dissimilar cases differently. Firefighters are still liable for arson just as everyone else is. See U.S. Fire Admin., USFA-TR-141, Special Report: Firefighter Arson (2003) (surveying instances of, responses to, and liability for firefighter arson).

[54] Gerard, supra note 10.