CHAPTER 6 AVOIDANCE OF CRIMINAL LIABILITY FOR VIOLATIONS OF FEDERAL ENVIRONMENTAL LAWS
| Jurisdiction | United States |
(May 1990)
AVOIDANCE OF CRIMINAL LIABILITY FOR VIOLATIONS OF FEDERAL ENVIRONMENTAL LAWS
Martin, McAllister & Murphy, P.C.
Denver, Colorado
"All around the country you can find little polluters being hit over the head, while right around the corner a big polluter goes free."*
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AVOIDANCE OF CRIMINAL LIABILITY FOR VIOLATIONS OF FEDERAL ENVIRONMENTAL LAWS
A. KNOWLEDGE—THE MISSING ELEMENT IN ENVIRONMENTAL CRIME
B. SPLIT SAMPLES—OWNER'S OR OPERATOR'S RIGHT TO RETAIN PORTION OF WASTE SAMPLES SEIZED BY EPA INVESTIGATORS
1. Discovery and Preservation of Evidence in Criminal Prosecutions.
2. Entitlement to a Split Sample Where Seizure is Pursuant to the Execution of a Criminal Search Warrant.
3. Possible Remedies Where Request for Split Sample Pursuant to 42 U.S.C. § 6927(a) is Denied.
C. PITFALLS ENCOUNTERED WHEN APPROACHED BY GOVERNMENT AGENTS
1. Although You Have the Absolute Right Not to Say Anything that Might Incriminate You and to Have an Attorney Present During Questioning, the Government Agent is Probably Not Obligated to Tell You That.
2. Just Because the Agent with Whom You Are Speaking Is Not Conducting a Criminal Investigation and Just Because You Are Told That You Are Not the Target of a Criminal Investigation Does Not Mean That Your Statements Cannot and Will Not Be Used Against You.
3. The Government May be Conducting Simultaneous Civil, Administrative, and Criminal Proceedings, and You Should Be Aware of the Possibility of Such Parallel Proceedings.
4. If You Are Being Investigated by a Federal Grand Jury, You Should Seek a Stay of Civil and Administrative Proceedings.
5. Employees and Company Officials Should Be Informed of Their Rights in Connection With Government Investigations, and Plans Should Be Instituted to Arrange for Legal Counsel if Criminal Prosecution Appears Possible.
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D. CRIMINAL PENALTIES
E. PRACTICAL METHODS FOR AVOIDING CRIMINAL PROSECUTION
1. Conduct an Internal Review or Audit of the Company's Compliance History.
2. Require Mandatory Training.
3. Insist on Mandatory Corrective Programs.
4. Adopt an Incentive Program.
5. Institute an Employee Reporting System.
F. CONCLUSION
APPENDIX A: Index to Environmental Criminal Statutes Other Than RCRA
APPENDIX B: 42 U.S.C. § 6928(d)
APPENDIX C: 42 U.S.C. § 6928(e)
APPENDIX D: 42 U.S.C. § 6928(f)
APPENDIX E: Sentencing Table
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AVOIDANCE OF CRIMINAL LIABILITY FOR VIOLATIONS OF FEDERAL ENVIRONMENTAL LAWS
A. KNOWLEDGE—THE MISSING ELEMENT IN ENVIRONMENTAL CRIME
It has often been said that a little knowledge is a dangerous thing. However, in the area of environmental crime it is becoming increasingly apparent that no knowledge at all is even more dangerous.
Long a fundamental precept of criminal law is that an actor must be shown to have exhibited criminal intent in order to be found guilty of a crime. In Morrisette v. United States,1 the United States Supreme Court reversed the conviction of a man who had taken shell casings from a government target range. Morrisette, charged with theft, claimed that he believed the casings had been abandoned. In refusing to impose strict liability, the court noted that:
A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.2
Slowly but surely this legal axiom has eroded in areas concerning the public welfare. In such areas, rather than requiring proof that a defendant intended to do an illegal act or knew that he was engaged in an illegal act, courts have increasingly tended to imposed strict liability. Well-known concepts of intent and knowledge are thus becoming more and more irrelevant, and the usual judicial abhorrence of strict liability has waned substantially in what is known as "public welfare" legislation.
In United States v. Dotterweich3 , the president of a pharmaceutical company was convicted of violating the Food, Drug, and Cosmetic Act by shipping misbranded and adulterated drugs:
[The Act] dispenses with the conventional requirement of criminal conduct-awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but
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standing in responsible relation to a public danger.4
Similarly, in United States v. Park,5 a chief executive officer of a corporation was convicted under the same statute. Park was held responsible, by virtue of his corporate position, for the rodent contamination of food in the corporation's storehouse. The conviction was upheld by the United States Supreme Court, which found that Park was ultimately responsible for corporate policy and hence accountable for the charges leveled against him.6
The rationale behind these cases—that public welfare demands accountability without proof of wrongful intent—has been extended to the area of environmental crime. In 1976 the Resource Conservation Recovery Act7 ("RCRA") created an arsenal for government prosecutors to use in prosecuting environmental crime.8 Section 6928(d) of Title 42, United States Code, provides for a fine of $50,000 per day, two-to-five years imprisonment, or both (all of which can be doubled if there is a prior conviction under the statute) for knowingly engaging in the improper transportation, storage or disposal of hazardous waste.9
Although there is a mens rea requirement of "knowing" in the statute, the government's position in prosecutions under § 6928(d) is that the statute only requires proving general intent. The federal government takes the position that proof that one acted with the specific intent to break the law is not required,
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and ignorance of the law is no defense. All that is required is that the defendant had knowledge of his actions.10
The irony of this position is not lost upon attorneys defending companies and corporate officers accused of criminal conduct. Any businessman who deals with or handles hazardous waste knows that this area is fraught with regulation.11 However, it is one thing to "know" that regulations exist, it is quite another to "know" what the regulations mean. Attempting to decipher and follow this regulatory maze, particularly those regulations regarding the disposal, storage, and treatment of hazardous waste, can be and often is confusing and frustrating. This is especially true in light of the fact that these regulations are subject to constant change.
Given these facts, it seems inconceivable that courts could uniformly hold that an inability to decipher this regulatory maze is not a valid defense; however, cases have continually reiterated that "ignorance of the law" is no excuse. Understanding these constantly changing regulations is no easy task, but is nevertheless a duty unilaterally imposed by the courts on corporations and corporate officers. Again, it can not be overemphasized that lack of knowledge concerning applicable regulations may not be a defense to criminal prosecution. A look at the following cases amply illustrates this trend in the law.
In United States v. Johnson & Towers, Inc.,12 the government appealed the dismissal of a three-count indictment charging two individuals with illegal disposal of hazardous wastes under 42 U.S.C. § 6928(d). Johnson & Towers was a company that repaired large motor vehicles. In the process, it used industrial chemicals containing hazardous wastes as defined under RCRA. The waste chemicals produced from operating the plant were placed in a trench which flowed into a creek. This was done without a permit from the EPA as required by § 6928(d)(2)(A).13
On appeal the Court of Appeals for the Third Circuit reinstated the indictment, holding that individual defendants are
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"persons" within the meaning of § 6928(d)(2). In dicta, the court discussed the meaning of the word "knowingly" as used in § 6928(d)(2)(A). The court noted that it could, if it chose, read the statute without any mens rea requirement:
Since we have already concluded that this is a regulatory statute which can be classified as a "public welfare statute," there would be a reasonable basis for reading the statute without any mens rea requirement [at all].14
The court concluded, however, that such an interpretation "would be arbitrary and nonsensical when applied to this statute."15 Section 6928(d) contains the word "knowing" at the beginning of subsection (2), and again in subsection (B). The court thus held, contrary to the government's interpretation, that the word "knowingly" should be read into subsection (2)(A) so that the government had to prove that the defendants knew they were acting without a permit when disposing of hazardous waste.
This ostensibly generous interpretation was significantly curtailed by the court's subsequent discussion regarding proof of knowledge:
[O]ur conclusion that "knowingly" applies to all elements of the offense in section 6928(d)(2)(A) does not impose on the governent as difficult a burden as it fears.... [U]nder certain regulatory statutes requiring "knowing" conduct the government need prove only knowledge of the actions taken and not of the statute forbidding them.16
Turning to a United States Supreme Court case, United States v. International Minerals & Chemical Corp.,17 the Johnson & Towers court quoted approvingly:
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[P]rosecution of regular shippers for violations of the regulations could hardly be impeded by the "knowingly" requirement for triers of fact would have no difficulty whatever in inferring knowledge on the part of those whose business it is to know, despite...
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