Bankrupted by EPA

National Review, March 16, 1992 by Peter Samuel

LAST MONTH the Environmental Protection Agency (EPA) put out a thick "Note to Correspondents" and staged a press conference on what it called its "record-breaking enforcement accomplishments for clean water in 1991." It was a "banner year for enforcement," with 3,109 prosecutions, $28 million in penalties, and 346 months of incarceration for the polluters.

"The 1991 numbers [of prosecutions] are more than all previous years combined," said the EPA. But does this mean justice is being done?

Take the case of Lewis "Chuck" Law, 54, of Charleston, West Virginia. Mr. Law was sentenced in U.S. District Court to $160,000 in fines and two years in jail for breaches of the federal Clean Water Act.

Mr. Law's nightmare encounter with the environmental scalp-hunt began with his purchase of the surface rights to 241 acres near the town of Summerlee in Fayette County, West Virginia. He bought the land in April 1980 for $160,000 from the New River Coal Company, which had decided to close an old coal-washing plant on the site. Mr. Law, a history buff, wanted to restore the old company store, and thought he might be able to develop some of the land for mobile homes or an industrial park.

He knew nothing of any water pollution problems when he bought the property, but soon after found that some springs there discharge water that is acidic and contains suspended iron and manganese. The acidity has tested at about the level of Coca-Cola; it is not unhealthy to drink. The suspended iron and manganese are not unhealthy for humans either, though they look awful--they give the water a dirty reddish color--and could be hurting aquatic life.

Downstream, in Fayetteville (pop. 5,000), people started complaining about Mr. Law's water flowing into their reservoir. Their bathtubs and toilets were stained with a fine red sediment that could have come from the springs on Mr. Law's property. The town has since fixed the problem by diluting the reservoir water with well water, but local environmentalists recently renewed the attack on Mr. Law when young fish were found dead in the creek downstream of his property. Mr. Law has witnesses who say that the fish--from a state hatchery--were already dead from negligent handling when the state dumped them in the creek.

Experts Say . . .

AT HIS TRIAL in the U.S. District Court in Beckley, West Virginia, Mr. Law did not deny that the water coming off his property was polluted under the terms of the federal Clean Water Act. His defense was that his property was not the source of the pollution. He had the opinions of two leading experts in water pollution that the acid and metal contamination originated in old coal mines higher up the watershead, and that the polluted water ran underground to emerge in the springs on his property.

The government maintained instead that the pollution came from a now-overgrown deposit on his property of coal refuse material (commonly called "gob") left by the old coal-washing plant.

One of Law's expert witnesses, Dr. George Hall, points out that the two coal seams above Law's property are "notoriously acidic" and concludes that "acid mine water is seeping down the two hollows beneath the gob pile to emerge beneath the toe of the gob pile." He says he has been many such acid springs in the state that exist without the presence of gob piles.

The charge on which Mr. Law was tried was failure "to chemically treat the acid water discharges from the coal refuse pile." Government inspectors had demanded that he treat the water with soda ash to neutralize it and precipitate the unsightly iron salts, a process that would cost $5,000 a week to run, and would have to run indefinitely. Mr. Law's only present income from the property is $225 per month for leasing the old company store to the U.S. Postal Service. The government's charges have prevented him from moving ahead with his other plans for development of the site.

The prosecution did not argue that the discharges from the springs constituted any health hazard. They just didn't meet EPA clean-water standards. And in what appears to be a complete perversion of the principles of common law, the U.S. Attorney prosecuting the case argued that it is immaterial under the Clean Water Act whether the propety owner is the cause of the pollution. He argued that under the act the defendant could be found guilty simply on the basis that polluted water was emerging from his property, regardless of its source.

Judge Elizabeth Hallanan accepted this extraordinary proposition. She instructed the jury: "The offense consists of the knowing discharge of a pollutant from a point source into a water of the United States. For the purposes of the Clean Water Act, all the government must prove is that the defendants knew the general character and nature of the materials they were discharging."

Mr. Law now has a civil action going against the mining companies that own the property where he thinks the pollution originates. In any case, there would seem to be an argument in natural law that if one has only bought the surface title to a piece of land and has no rights to the minerals underground, then one has no responsibility for what bubbles up from below.