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Time to Prosecute the EPA Like Any Other Company

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Time to Prosecute the EPA Like Any Other Company

If private parties should be held criminally liable for negligent violations of the federal environmental laws, why not EPA employees?

Last month, the EPA caused a spill of toxic waste into the Animas River in Colorado. That event demonstrates that even the federal agency responsible for regulating the disposal of hazardous waste can make mistakes that lead to environmental contamination. It also proves that the federal government plays favorites in criminal environmental enforcement.

If private parties had been responsible for the spill, the odds are good that the federal government would have opened a criminal investigation. The government has prosecuted private companies and private parties for other negligent spills. Just ask Edward Hanousek.

A railroad roadmaster, Mr. Hanousek was responsible for a rock quarrying project at a site near the Skagway River in Alaska. One evening in 1994, while Mr. Hanousek was at home, a backhoe operator trying to remove rocks from a nearby railroad track hit a pipeline. The accident caused 1,000-5,000 gallons of heating oil to spill into the nearby river.

Mr. Hanousek was charged with criminal negligence under the Clean Water Act. He was convicted for the negligent discharge of oil and sentenced to six months in prison, another six months in a halfway house, and six more months of supervised release.

If a 1,000- to 5,000-gallon spill into the Skagway River merited criminal prosecution, the EPA’s 3-million-gallon spill of toxic mine water into the Animas River spill justifies criminal prosecution, too.

But there is more. In past cases, the government has successfully argued that corporate officers and managers should be held liable for the misdeeds of subordinates even if the officers and managers had no hand in any illegal conduct.

The Justice Department persuaded courts to adopt the tort doctrine of “respondeat superior”—“let the master answer”—for the acts of his employees. Under that theory, the EPA administrator and regional director should be personally charged with the negligent discharge of hazardous waste.

Yet the Justice Department does not apply the same rules to private parties and government officials. The public should ask, “Why not?”

If private parties should be held criminally liable for negligent violations of the federal environmental laws, why not EPA employees? If a company president should be held liable for the misdeeds of the firm’s low-level personnel, why not the EPA administrator? The same rules should apply whether the responsible party works in the private sector or the public sector.

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