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.