Environmental crimes.

• Author: Duncombe, Thomas
• Position: Twenty-Third Annual Survey of White Collar Crime

1. INTRODUCTION A. Criminal versus Civil Penalties B. Enforcement C. Interaction with Other Criminal Violations II. GENERAL ISSUES A. Overview of Elements of Environmental Criminal Violations B. Liability 1. Corporate Liability 2. Individual Liability C. Common Defenses 1. Constitutional Defenses 2. Other Defenses D. Voluntary Compliance and Sentencing E. Sentencing Guidelines III. CLEAN AIR ACT A. Purpose B. Elements of CAA Offense 1. Violation a. Emissions Standards i. National Ambient Air Quality Standards ii. National Emission Standards for Hazardous Air Pollutants iii. New Source Performance Standards iv. Acid Deposition Regulation v. Stratospheric Ozone Protection b. EPA Monitoring of Emissions Standards 2. Intent C. Defenses D. Penalties IV. CLEAN WATER ACT A. Purpose B. Elements of a CWA Offense 1. Violation a. Effluent Limitations and Water Quality Standards; National Pollutant Discharge Elimination System ("NPDES") Permit Program b. Monitoring, Reporting, and Regulatory Searches c. Discharge of Oil and Hazardous Substances d. Prohibition on Dredge and Fill Activities 2. Intent C. Defenses D. Penalties 1. Penalties Under the CWA a. Negligent Violations b. Knowing Violations c. Knowing Endangerment d. False Statements, Representations, and Tampering 2. Penalties Under the Sentencing Guidelines V. THE RIVERS AND HARBORS ACT OF 1899 A. Purpose B. Elements of an RHA Offense 1. Violation 2. Intent C. Defenses D. Penalties VI. SAFE DRINKING WATER ACT A. Purpose B. Elements of SDWA Offense 1. Underground Injection of Contaminants a. Elements of the Offense b. Penalties 2. Regulation of Drinking Water Coolers a. Elements of the Offense b. Penalties 3. Enforcement of Ban on Tampering a. Elements of the Offense b. Penalties VII. COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT A. Purpose B. Elements of a CERCLA Offense C. Defenses D. Penalties VIII. RESOURCE CONSERVATION AND RECOVERY ACT A. Purpose B. Elements of a RCRA Offense 1. Violation 2. Intent a. Knowing Violation b. Knowing Endangerment C. Defenses D. Penalties IX. Toxic SUBSTANCES CONTROL ACT A. Purpose B. Elements of a TSCA Offense 1. Violation a. Testing Requirements b. Notice and Premanufacturing Approval c. Restrictions on Manufacturing, Processing, Distributing, Using, and Disposing d. Prohibition on Commercial Use 2. Intent 3. Defenses C. Penalties X. THE FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT. A. Purpose B. Elements of a FIFRA Offense 1. Violation 2. Intent 3. Defenses C. Penalties XI. ENDANGERED SPECIES ACT A. Purpose B. Elements of an ESA Offense 1. Violations 2. Intent 3. Exemptions C. Defenses D. Penalties I. INTRODUCTION

   Nine principal statutes (the "statutes") govern the enforcement of federal environmental regulations through criminal prosecution. Section II of this article discusses issues common to most of these statutes, including theories of liability, defenses, and sentencing.

   Section III examines the Clean Air Act ("CAA"), (1) which imposes penalties on violators of federal and state air pollution control laws and regulations. Section IV studies the Federal Water Pollution Control Act ("Clean Water Act" or "CWA"). (2) Sections V and VI address additional water pollution issues discussing, respectively, the Rivers and Harbors Act of 1899 ("RHA") (3) and the Safe Drinking Water Act ("SDWA"), (4) which together with the CWA restore and protect the quality of the nation's surface and ground waters. Section VII examines the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), (5) which authorizes the cleanup of hazardous substances at contaminated sites and imposes criminal penalties on those who violate its provisions. Section VIII addresses the Resource Conservation and Recovery Act ("RCRA"), (6) which is a set of amendments reinforcing the Federal Solid Waste Disposal Act ("SWDA"). (7) Section IX reviews the Toxic Substances Control Act ("TSCA"), (8) which governs the manufacture, processing, and distribution or disposal of chemicals that pose a danger to the public or the environment. Section X discusses the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), (9) which regulates the manufacture, registration, transportation, sale, and use of toxic pesticides. Finally, Section XI examines the efforts of the Endangered Species Act CESA") to regulate crimes against wildlife. (10)

   1. Criminal versus Civil Penalties

      Most of the statutes enumerated above contain overlapping civil, criminal, and administrative penalty provisions. (11) Though the statutes permit simultaneous civil and criminal enforcement actions against violators, the policy of the Environmental Protection Agency ("EPA") is to defer civil proceedings in order to avoid double jeopardy problems. (12) Over time, Congress has elevated some violations from misdemeanors to felonies and has increased potential jail sentences and fines for those convicted. (13)

      In deciding whether to pursue a criminal prosecution rather than corresponding civil remedies, EPA Special Agents have been guided by a memo published in 1994 known as the Devaney Memo. (14) The factors urged by the Memo include: (1) the significance of the actual or threatened environmental harm; (2) whether the subject failed to report an actual discharge, release, or emission; (3) whether certain illegal conduct appears to represent a trend or common attitude within the regulated community; (4) the subject's history of repeated violations; (5) the presence of deliberate misconduct resulting in violation; (6) concealment of misconduct or falsification of required records; and (7) tampering with monitoring or control equipment. (15)

   2. Enforcement

      The criminal provisions of nearly all of the statutes addressed in this article are enforced by the EPA in conjunction with the Department of Justice ("DOJ"). However, the ESA is enforced by the Department of the Interior ("DOI").

      The EPA's stated policy is to conduct criminal investigations only in cases where both significant environmental harm and culpable conduct are present. (16) However, the EPA may recommend against prosecution of criminal violations if the violating entity has voluntarily disclosed the violations prior to any EPA-initiated investigation. (17)

      In enforcing the environmental statutes, the EPA emphasizes cooperation with other administrative agencies (18) and focuses on select national enforcement priorities that are revised on a bi-annual basis. (19) Since states have the primary responsibility for implementing many federal environmental laws, a significant amount of enforcement activity takes place-at the state level and must be coordinated with federal enforcement efforts. (20)

      The DOJ's policy provides for a flexible approach to enforcement. In deciding whether to prosecute violations of federal environmental statutes, the department may consider several factors, including: (i) voluntary disclosure; (ii) the degree and timeliness of cooperation; (iii) preventive measures and compliance programs; (iv) pervasive non-compliance; (v) disciplinary systems to punish employees who violate compliance policies; and (vi) subsequent compliance efforts. (21) These factors are intended "to encourage self-auditing, self-policing, and voluntary disclosure of environmental violations." (22)

   3. Interaction with Other Criminal Violations

      General criminal statutes can serve as alternative bases for prosecution of environmental crimes. (23) Prosecution of environmental offenses may be pursued under general criminal statutes which provide for harsher penalties than the applicable environmental statute. (24) Prosecutors choosing this path generally append environmental criminal offenses as additional charges.

2. GENERAL ISSUES

   1. Overview of Elements of Environmental Criminal Violations

      Although criminal provisions vary among statutes, the basic elements of an environmental criminal violation are (i) an act that substantively violates a statute and (ii) an intent to so violate the statute. Common acts that constitute substantive criminal violations include making false statements, (25) failing to file required reports, (26) failing to pay required fees, (27) operating without a permit, (28) and violating the limits or conditions of a permit. (29) To be convicted of a violation, the environmental criminal provisions generally require a mens rea of "knowing;" (30) however, some statutes do have provisions for negligent violations. (31) The courts have declined to interpret this element to require knowledge that conduct is unlawful; instead, a defendant need only have knowledge of the discharge of a pollutant. (32)

   2. Liability

      1. Corporate Liability

         Each statute includes corporations in its definition of "persons" (33) who may be prosecuted for violations of environmental laws. (34) Corporate liability for environmental crimes is "based on the imputation of agents' [or employees'] conduct to a corporation, usually through the application of the doctrine of respondeat superior." (35) Corporations may also incur liability for the conduct of their subsidiaries (36) or predecessors. (37) The recent trend is to indict individual corporate officers instead of--or in addition to--the corporation itself for criminal violations of environmental law. (38)

         A corporation will generally be held criminally liable for acts committed by an employee acting within the scope of his employment (39) and for the benefit of the corporation. (40) Corporations also may incur liability under certain statutes for directly or indirectly supervising illegal dumping conducted by high-level employees. (41) Other statutes impose liability on corporations or corporate officials as "operators" if the corporation could have prevented the violation with reasonable measures. (42)

         A corporation is not responsible for the liabilities of any predecessor unless one of four exceptions applies: (i) the successor expressly or implicitly...