Cement Creek, Silverton, Colorado
Over the past two weeks, several executives for a now-bankrupt chemical supply company in West Virginia received prison sentences for discharges of a pollutant and for failing to have a pollution-prevention plan. At the same time these developments unfolded, a U.S. House of Representatives committee released a report shedding further light on the role of Environmental Protection Agency employees and contractors in the release of toxic wastewater from a Silverton, Colorado mine on August 5, 2015. The juxtaposition of the two cases amply demonstrates the double standard that prevails where federal government employees evade accountability for their actions while demanding full environmental compliance from everyone else.
In both instances, toxic materials were discharged into bodies of water utilized by the local communities, causing environmental damage. The discharge at the Charleston, West Virginia facility of Freedom Industries involved 7,500 gallons. The discharge from the Gold King Mine in Colorado involved 3,000,000 gallons.
As former EPA senior official William Wehrum wrote last September in the Wall Street Journal, “the agency went after [Freedom Industries] with everything it had.” Prosecutors indicted the company and six of its officials despite the absence of any evidence of criminal intent to harm the environment. The company’s three owners and its president were indicted even though none of them had any direct involvement in the action that resulted in the discharge. The government relied upon the “responsible corporate officer” doctrine, which allows criminal sanctions based solely on one’s position in a company, rather than one’s personal culpability. All six pled guilty to various acts of negligence, such as negligently failing to have a pollution prevention plan, which prosecutors claim was both “a proximate and contributing cause of the chemical spill.” Prosecutors sought 21-27 months in prison for the former president, who was sentenced on February 17 to three months.
Evidence abounds that the Gold King Mine spill resulted from the negligence of EPA employees and contractors and the agency’s disregard of serious pollution risks. EPA was aware of ongoing small leakages of toxic water from the mine and contemplated as recently as June 2014 that a major rupture could occur. Eerily prescient, a retired geologist wrote to the Silverton Standard a letter to the editor just five days before the spill explaining in detail how EPA’s handling of the area’s mines was “setting your town and the area up for a possible Superfund blitzkrieg.”
Prior to commencing work on August 5, the on-site EPA team failed to conduct a routine water pressure reading, the result of which would (or should) have forestalled further action. No such reading was taken, and contractors proceeded to dig into the mine’s floor with a backhoe, blowing out a plug and triggering the deluge of yellow sludge into Cement Creek, which feeds the Animas and San Juan Rivers.
EPA’s on-site coordinator, Hays Griswold, remarked at the time of the spill that “nobody expected [the water in the mine] to be that high.” Once the spill occurred, the agency delayed informing the governments of downstream states for nearly a full day. New Mexico’s environmental secretary remarked that EPA “[was] really downplaying the issue.”
The House Committee on Natural Resources report released February 11, 2016 offers more damning evidence of inaction and disregard. Emails from Mr. Griswold to other EPA officials last October directly contradict his statement of surprise at the time of the spill. He wrote that he believed the blockage at the mine “could be holding back a lot of water and I believe the others in the group knew as well.” In addition, Mr. Griswold’s EPA superior went on vacation in early August, and left him instructions related to the Gold King Mine, one of which was to be sure to have a pump available when digging in the mine. The crew had no pump the day of the rupture.
The amount of negligence related to the Gold King Mine disaster exceeds by orders of magnitude that which occurred prior to the chemical leak at Freedom Industries. The volume of waste released in Colorado was 400 times (!) the amount spilled in West Virginia. And yet EPA and its leadership continues business as usual. No one has resigned over the disaster. No one has been fired. And no one has been prosecuted, unlike the six officials at Freedom Industries.
And quite possibly, no one should be criminally prosecuted unless there is proof that EPA officials or contractors specifically intended to release 3,000,000 gallons of toxic waste into Colorado’s waterways. But for the same reason, federal prosecutors should have refrained from indicting the Freedom Industries’ officials. As we’ve recently argued, statutes and regulations that have no intent requirement, or allow criminal sanctions for mere negligence, don’t provide citizens with fair notice of the law as required under the Constitution’s Due Process Clause. Prosecution of such “accidental criminals” advances neither goal of criminal law—neither deterrence nor punishment of culpable actors.
That said, given current law, sufficient evidence does exist for federal prosecutors to charge some EPA officials and Gold King Mine contractors with environmental crimes. A case not only for negligence, but also reckless disregard, could be made based on EPA’s foreknowledge of the risks, the failure to take a water-pressure reading, and the failure to follow its own pollution-prevention plan with such simple steps has having a pump at the mine. Considerable civil fines would also be available to prosecutors, as well as to the affected states, one of which has signaled an intent to file suit.
The federal government derives its authority to enforce laws not only from the Constitution, but also from the consent of the governed. In offering that consent, citizens expect that those who govern will abide by the laws they enforce. Can we really entrust the Environmental Protection Agency with the mission of protecting the environment if it doesn’t hold its own employees accountable for their harmful misdeeds?
Also published by Forbes.com at WLF’s contributor page.