Environmental crimes.

• Author: Huber, Christopher
• Position: Eleventh Survey of White Collar Crime

1. Introduction II. New Developments

   1. Trends in

   2. New Directions in Enforcement

   3. Legislative Developments

   4. Proposed Sentencing Guidelines

   5. Judicial Developments III. Common Issues

   1. Liability

      1. Corporate

      2. Responsible Corporate Officer Doctrine

   2. Avoiding Prosecution

      1. Constitutional Defenses

      2. Voluntary Compliance

      3. Other Defenses IV. Resource Conservation and Recovery Act

   1. Purpose

   2. Program

   3. Elements of the Offense

      1. Knowledge Requirement Under RCRA

      2. Knowing Endangerment

   4. Defenses

   5. Penalties

   6. Enforcement V. Toxic Substances Control Act

   1. Purpose

   2. Programs

      1. Section 3: Testing Requirements

      2. Section 4: Notice of New Substances or Uses

      3. Section 5: Restrictions on Manufacture, Processing,

         Distribution, Use and Disposal

      4. Section 14: Commercial Use

   3. Elements of Offense

   4. Penalties VI. The Federal Insecticide, Fungicide and Rodenticide Act

   1. Elements of Offense

   2. Penalties VII. Comprehensive Environmental Response, Compensation and Liability Act

   1. Elements of the Offense

   2. Penalties VIII. Clean Air Act.

   1. Purpose

   2. Programs Under the Clean Air Act

      1. National Ambient Air Quality Standards

      2. National Uniform Emission Standards for Hazardous Air

         Pollutants

      3. New Source Performance Standards

      4. Acid Deposition Regulation

      5. Stratospheric Ozone Protection

   3. Elements of a Clean Air Act Offense

      1. Violation

      2. Knowledge

   4. Defenses

   5. Penalties IX. Safe Drinking Water Act

   1. Purpose

   2. Recent Legislative Developments

   3. Programs

      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 X. Clean Water Act

   1. Purpose

   2. Programs

      1. Effluent Limitations and Water Quality Standards;

         National Pollutant Discharge Elimination System

         ("NPDES") Permit Programs

      2. Monitoring, Reporting and Regulatory Searches.

      3. Discharge of Oil and Hazardous Substances

      4. Prohibition on Dredge and Fill Activities

   4. Elements of Offense

   5. Defenses

   6. Penalties XI. The Rivers and Harbors Act of 1899

   1. Purpose

   2. Elements of Offense

   3. Defenses

   4. Penalties

1. Introduction

   Federal enforcement of environmental regulations through criminal prosecution occurs under eight principal statutes. The Clean Air Act ("CAA")(1) imposes penalties on those who knowingly violate federal or state regulations designed to achieve ambient air quality standards established by the United States Environmental Protection Agency ("EPA"). The Federal Water Pollution Control Act ("Clean Water Act" or "CWA"),(2) the Rivers and Harbors Act of 1899 ("Refuse Act"),(3) and the Safe Drinking Water Act ("SDWA"),(4) together restore and protect the quality of the nation's surface and groundwater. Under the Resource Conservation and Recovery Act ("RCRA"),(5) a set of amendments giving teeth to the Federal Solid Waste Disposal Act ("SWDA"), criminal penalties are imposed on persons who improperly transport, store, or treat hazardous wastes. The Comprehensive Environmental Response, Compensation and Liability Act ("Superfund" or "CERCLA")(6) mandates the cleanup of hazardous substances at contaminated sites and imposes criminal penalties on those who violate its provision. The Toxic Substances Control Act ("TSCA")(7) addresses the manufacture, processing and distribution or disposal of chemicals that pose an unreasonable risk of injury to the public or environment. Finally, the manufacture, registration, transportation, sale and use of toxic pesticides is regulated by the Federal Insecticide, Fungicide and Rodenticide Act ("FIPRA").(8)

   Most of the federal environmental statutes contain overlapping civil, criminal, and administrative penalty provisions.(9) Congress has intensified the criminal penalty provisions of some environmental statutes several times by elevating violations from misdemeanors to felonies and increasing the maximum levels of incarceration and monetary fines for convicted offenders.(10)

   According to EPA policy, the decision to pursue criminal sanctions focuses primarily on significant environmental harm and culpable conduct.(11) A further elaboration of EPA enforcement policy states, "[c]riminal enforcement is necessary . . . in cases involving knowing and intentional conduct, repeated violations, concealment or falsification of noncompliance, or a cavalier attitude that results in egregious harm or the potential for harm."(12) Other emphases of EPA enforcement policy are cross-media environmental problems,(13) cooperation with other administrative agencies,(14) and environmental audits and pollution prevention plan requirements as part of settlement agreements.(15)

   The decision of the U.S. Department of Justice (DO]) to pursue criminal prosecution(16) for a violation of a federal environmental statute IS based on a variety of factors,(17) taking into account specific actions undertaken by the alleged violator. Actions which are considered include: (1) voluntary disclosure; (2) the degree and timeliness of cooperation; (3) preventive measures and compliance programs; (4) pervasive non-compliance; (5) disciplinary systems to punish employees who violate compliance policies; and (6) subsequent compliance efforts.(18) The goal of this policy is "to encourage self-auditing, self-policing, and voluntary disclosure of environmental violations."(19)

2. NEW DEVELOPMENTS

   1. Trends in Enforcement

      DOJ prosecutions of environmental crimes increased dramatically during the 1980s and resulted in the collection of multimillion dollar criminal fines.(20) EPA's Environmental Crimes Section (ECS) and U.S. Attorney offices (USAOs) filed 335 criminal environmental cases against a total of 735 defendants during the fiscal years 1988 to 1993.(21) During fiscal year 1994, the number of cases filed increased 36% to 220 against a record 230 defendants.(22) The growth is partly attributable to the increased number of investigators.(23)

      Overall, DOJ closed cases against 630 defendants in criminal environmental cases between-October 1, 1987 and May 31, 1993 and achieved an overall conviction rate of 91.1 percent.(24) Federal courts most frequently imposed probation and a fine on the 532 individual and corporate defendants that either pled guilty or were convicted.(25) Over a third (124) of the 337 individual defendants sentenced received some prison time.(26)

   2. New Directions in Enforcement

      In an effort to promote self-policing and self-disclosure, the EPA recently announced a new enforcement policy which reduces penalties and insulates from criminal prosecution corporations which comply with self-auditing and reporting guidelines.(27) Additionally, to reduce pollution at its source and to minimize the cross-media transfer of waste, EPA is placing a greater emphasis on conducting multimedia inspections rather than focusing on a single medium.(28) This new direction in enforcement will require facilities to be better prepared for inspections to minimize resulting penalties.(29)

   3. Legislative Developments

      As the conservative reform movement in Congress takes hold, a profound effect on environmental regulations and enforcement is anticipated. Applying both budget cuts and legislative riders to fiscal year 1996 Appropriations bills, the House of Representatives proposed to cut the EPA's funding by one-third and limit enforcement of various regulations against certain industries.(30) Additionally, the 104th Congress has designated Superfund, CAA, CWA and SDWA as priorities for reauthorisation, and has targeted the acts for extensive reform.(31) The Superfund law, which regulates toxic site cleanup, has been criticized as one of the nation's most costly and ineffective environmental laws.(32) A bill intending to speed the cleanup of the nation's toxic waste dumps was killed during the 103d Congressional session.(33)

      Disagreement over procedural strategy and legislative language also killed the 103d Congress's chances to reauthorize SDWA although it had previously passed both houses by overwhelming majorities.(34) Both the Senate and-House bills would have revised the approach to regulating new contaminants in drinking water, changed the standard-setting process for regulated contaminants, and created a fund of about one billion dollars annually to help states upgrade water systems.(35)

      The 104th Congress has proposed amendments to the CWA in both the House(36) and the Senate.(37) Most of the proposals are in committee in the House Transportation Committee or the Senate Environment and Public Works Committee. The House has already approved extensive revisions to the Clean Water Act, which include provisions to limit wetlands regulations, eliminate some permit programs and allow for more flexible pollution prevention techniques.(38)

   4. Proposed Sentencing Guidelines

      In December 1993, an advisory group to the United States Sentencing Commission published proposed guidelines for sentencing corporations convicted of federal environmental crimes.(39) The focus of the proposed guidelines is environmental compliance programs, the primary means by which a corporation could reduce its exposure to criminal liability.(40) Under the proposed guidelines, the absence of an effective compliance program could increase criminal penalties by up to twenty-five percent, while a successfully implemented compliance program could decrease penalties by as much as forty percent.(41) In April 1994, the U.S. Sentencing Commission elected not to adopt the proposed guidelines, motivated in part by strong dissension over the necessity of a separate chapter strictly for corporate crimes, as well as by the expiration of the term of the chairperson of the advisory group, Commissioner Ilene Nagel.(42) Similarly, due to vacancies, the Commission was unable to act on the Draft Guidelines by the May 1 deadline in 1995 and does not anticipate submitting the final guidelines for Congressional approval until inlay 1996.(43)

      Although the...