Criminal Enforcement of Air Pollution Control Laws
| Author | Arnold W. Reitze, Jr. |
| Pages | 293-319 |
Page 293
Chapter 10:
Criminal Enforcement of Air
Pollution Control Laws
§1. Introduction
§1(a). The Development of Environmental
Criminal Law
e few environmental enforcement cases brought
prior to the mid-1970s usually relied on either
common-law remedies or the R ivers and Harbors
Appropriation Act of 1899.1 e 1899 Act provides
misdemeanor penalties of up to $2,500, and a natu-
ral person can be ned and/or imprisoned for up to
one year. e statute, which had been used primar-
ily to prevent obstr uctions to navig ation, began to
be used for pollution control in the 1960s.2 Under
the R ivers a nd Harbors Act of 1899, no evidence
of mens rea is needed to obtain a conviction of a
corporation, whether this evidence rule applies to
an individual defendant has not been denitively
decided.3
Modern environmental law began with the
Clean A ir Act (CAA) Amendments of 1970,4 and
the Federa l Water Pollution Control Act Amend-
ments (FWPCA) of 1972.5 e FWPCA now is
usually called t he Clea n Water Act (CWA). Mis-
demeanor penalties were provided in both statutes.
& Richard M. Hall, Federal Enforcement Under the Refuse Act
of 1899, 35 A. L. R. 60 (1970); A W. R J.,
E L 4-108 (2d ed. 1972).
United States v. Republic Steel Corp., 362 U.S. 482 (1961);
United States v. Esso, 375 F.2d 621 (3d Cir. 1967).
107, 113 fn.9, 7 ELR 20253 (6th Cir. 1977); United States v.
United States Steel Corp., 328 F. Supp. 354, 1 ELR 20341 (N.D.
denied, 414 U.S. 909 (1973), United States v. Interlake Steel
Corp., 329 F. Supp. 339 (N.D. Ill. 1969).
4. Pub. L. No. 91-604, 84 Stat. 1676 (1970) (codied as amended
in scattered sections of 42 U.S.C.).
5. Pub. L. No. 92-500, 86 Stat. 896 (1972) (codied as amended
in scattered sections of 33 U.S.C.).
By the time the air and water pollution control laws
were reauthorized and strengthened in 1977, the
time for meeting deadlines contained in the earlier
versions of these laws had arrived, and thousands
of sources were violating statutory or regulatory
requirements. e U.S. Environmental Protection
Agency (EPA) responded by creating and provid-
ing a budget for an enforcement program based
primarily on civil judicial penalties and injunc-
tive relief. EPA, however, prosecuted few crimina l
cases; budgetary constraints and a mindset that
did not encompass crimina l enforcement resulted
in a low priority at EPA for criminal enforcement.6
e government’s initia l relucta nce to seek crimi-
nal sa nctions in environmental ca ses was, in part,
due to the nominal nature of the penalties. e few
criminal cases prosecuted either involved especi al ly
egregious conduct or reected eorts by particu lar
prose cu tors who had developed an interest in envi-
ronmental protection.
e rst criminal enforcement actions involving
a pollution control statute were brought pursua nt
to the FWPCA in the mid-1970s. e most pub-
licized case in the 1970s involved the contamina-
tion of the James River in Virginia with kepone.
e United States obta ined indictments on 1,094
counts against Allied Chemical Corporation and
several of its employees. e corporation pleaded
nolo contendere to 940 charges and was ned
$13.2 million. Although the case did not yield any
written opinions, it was the rst importa nt crimi-
nal FW PCA case and drew attention to the use of
criminal sanctions.7 e rst reported modern envi-
6. See generally Judson W. Starr, Turbulent Times at Justice and EPA:
e Origins of Environmental Criminal Prosecutions and the Work
at Remains, 59 G. W. L. R. 900 (1991).
7. See generally William Goldfarb, Kepone: A Case Study, 8 E.
L. 645 (1978); Robert R. Merhige Jr. et al., Allied Chemical,
e Kepone Incident, and the Settlement: Twenty Years Later, 29
Page 294 Air Pollution Control and Climate Change Mitigation Law
ronmental law criminal enforcement case appears
to be the United States v. Phelps Dodge Corp.8 One
of the rst cases to receive national attention was
United States v. Ward,9 which involved defendants
who dumped wa ste oil contaminated with poly-
chlorinated biphenyls (PCBs) along a North Caro-
lina roadside.
On June 16, 1976, EPA issued guidelines for
handling criminal cases. In 1978, EPA and the
U.S. Department of Justice (DOJ) formed a Haz-
ardous Waste Task Force to u se common-law nui-
sance theories and the endangerment provisions of
§7003 of the Resource Conservation and Recov-
ery Act (RCRA),10 to force the cleanup of hazard-
ous waste sites. As the environmental programs
became more e stablished, the government began
to increasingly pursue violators using the harsher
sanctions of criminal law. In 1980, the Land and
Natural Resources Division of the DOJ created
an Environmental Enforcement Section. On April
22, 1990, the Lands and Natural Resources Divi-
sion of the DOJ was renamed the Environment
and Natural Resources Division. On January 5,
1981, EPA formed the Oce of Criminal Enforce-
ment within its Oce of Enforcement. EPA hired
its rst criminal investigators in October 1982. In
1980, the Land and Natural Resources Division of
the DOJ created an Environmental Crimes Unit
within its Environmental Enforcement Section,
and it became the Environmental Crimes Section
in 1987.11
In the ea rly days of environmental criminal
enforcement, attorneys from t he DOJ in Wash-
ington, D.C., handled the majority of cases since
they were special ists in environmental crimina l
law. Over the program’s rst decade, the U.S.
Attorneys’ oces began to take a more active role
in prosecutions, often conducting them with vir-
tually no input from “main Ju stice.” Conducting
enforcement cases locally presents fewer logistical
barriers then trying to supervise litigation from
Washington, D.C., and as U.S. Attorneys’ oces
U. R. L. R. 493 (1995) (is symposium issue has several
articles on the kepone incident.).
United States v. Frezzo Bros., 602 F.2d 1123, 9 ELR 20556 (3d
Cir. 1979), cert. denied, 444 U.S. 1074 (1980); United States
v. Distler, 671 F.2d 954, 11 ELR 20340 (6th Cir.), cert. denied,
454 U.S. 827 (1981).
835, (1982).
10. 42 U.S.C. §6973.
11. John F. Cooney et al., Criminal Enforcement of Environmental
Laws: Part I, 25 ELR 10459, 10462 (Sept. 1995).
gained experience, they became less dependent
upon Washington’s expertise.
e priority of a part icular program can be mea-
sured by the resources committed. At the begin-
ning of 1982, EPA had 6 criminal investigators, but
the number increased to 22 investigators at the end
of 1982 and grew to approximately 50 investiga-
tors as of 1989.12 By comparison, during the late
1980s, the Internal Revenue Service had nearly
3,000 special agents; the Federal Bureau of Investi-
gation (FBI), more than 9,000; and the U.S. Secret
Service, nearly 2,000.13 EPA was to reach a level
of 200 investigators by 1995 under the mandate of
the Pollution Prosecution Act of 1990.14 At the end
of 2001, EPA redirected 40% of its criminal inves-
tigators to work on terrorism issues.15 In May 2004,
EPA decided to end the use of its criminal inves-
tigators for regional counter-terror task forces led
by the FBI. In 20 06, EPA had 185 criminal inves-
tigators. ere is a cap of 200 criminal investiga-
tors, which includes desk-bound supervisors.16 For
scal year (FY) 2010 EPA’s enforcement budget is
increasing by $31.6 million, which will provide 30
new civil and crimina l enforcement positions. is
includes 12 new positions to focus on environmen-
tal justice issues.17
In FY 1996, EPA consolidated the National
Enforcement Investigations Center (NEIC) and
the Nationa l Enforcement Training Institute
(NETI) with its Oce of Criminal Enforcement.
e new organization was the Oce of Criminal
Enforcement, Forensics, and Training (OCEFT).
OCEFT is headquartered in Washington, D.C.,
with supervisory oces in the 10 EPA regional
oces, as well as in several other major metropoli-
tan areas, and includes a Criminal Investigation
Division. OCEFT is part of Oce of Enforcement
and Compliance Assura nce (OECA).
In addition to EPA’s eorts, since 1977 the FBI
investigates cases either independently or in coop-
12. O E C A (OECA),
U.S. EPA, A R FY , at 2-3 (1998)
(EPA 300-R-98-003).
13. Richard J. Leon, Environmental Criminal Enforcement: A Mush-
rooming Cloud, 63 S. J’ L. R. 679, 685 (1989).
14. Pub. L. No. 101-593, §202(a), 104 Stat. 2962.
15. Steve Cook, Prosecutions, Investigations to Continue While Agency
Seeks Enforcement Chief, Daily Env’t Rep. (BNA) 2002 (Envt’t
Outlook), Jan. 24, 2002, at S-42.
16. Raymond W. Mushal, Up From the Sewers: A Prospective on the
Evolution of the Federal Environmental Crimes Program, Environ-
mental Criminal Prosecution Symposium, S.J. Quinney College
of Law, the University of Utah, Jan. 22, 2009.
17. Anthony Lacey, EPA Touts Job Creation Benets From $10.5 billion
FY 2010 Budget Proposal, 26 E P’ A (Inside EPA)
29 (May 20, 2009).
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