October 12, 2010

  1. Todd Jones, U.S. Attorney for the District of Minnesota and Chair of the Attorney General’s Advisory Committee of U.S. Attorneys has indicated that one of the U.S. Department of Justice’s top priorities for the second half of President Obama’s term will be the prosecution of environmental crimes.

Environmental crimes is listed along with Internet crimes, national security, civil rights and health care fraud as key areas where federal prosecutors across the country will be focusing their efforts and resources.  For more information related to this story please see this link to Main Justice website at: http://www.mainjustice.com/2010/10/09/top-u-s-attorney-hints-at-doj-priorities-next-year/.  According to the article, Jones indicated that the U.S. Attorneys will be shifting from “a reactive to a proactive mode.”  With regard to the new focus on environmental matters, Jones noted in November, 2010 U.S. Attorneys from across the country will be meeting at the U.S. Attorneys Conference with officials from a number of federal agencies to increase their knowledge of environmental crimes in light of matters like the BP oil spill this past summer.

U.S. Attorney Offices around the country have hired full time criminal investigators who assist federal prosecutors in verifying complaints, collaborating with state and local agencies and deciding what specific environmental cases should be investigated and charged out as criminal matters.

Not every environmental violation will result in a criminal charge.  In fact, environmental violations are typically resolved through administrative or civil proceedings.  However, if the authorities determine that a violator knowingly committed a violation, a criminal charge may follow.  Federal environmental laws, including the Resource Conservation and Recovery Act, the Clean Water Act and the Clean Air Act and other federal laws, each contain provisions that provide for tough criminal sanctions – including stiff fines and jail time – for persons convicted of criminal acts.

Business owners and others who are subject to environmental regulations would be well advised to pay attention to this shift in the focus of the Department of Justice and its U.S. Attorneys’ Offices.  The federal government has substantial financial and technical resources that it can bring to bear in investigating and prosecuting environmental crimes cases.  Prosecutors can file charges against corporations as well as individuals under the responsible corporate officer doctrine.  If authorities develop probable cause that an environmental crime may have occurred, they may seek a search warrant authorizing federal agents to enter upon private property, collect samples, conduct tests, interview employees and otherwise develop evidence that may substantiate allegations of alleged wrongdoing.

Given the wide ranging power and authority that rests with federal officials, what should a business owner do to minimize his or her potential liability?

Now is the time to comprehensively review plant operations and waste handling practices to ensure that a business is operating in compliance with the law.  Because environmental regulations and statutes are complex, it is relatively easy for even well-managed operations to inadvertently slip up and fall out of compliance.  Many of our clients ask the environmental attorneys at Hessian & McKasy’s Environmental Law Attorney Practice Group to assist by conducting audits of the compliance status of their business operations.  We work with qualified consultants to conduct audits under attorney-client privilege.  Taking these types of proactive measures can help businesses and managers reduce their liability concerns.

When an audit reveals conditions exist that may constitute violations we help clients develop plans for addressing these matters.  A company that discovers violations may be able to avail itself of audit protections.  In these cases it is possible to mitigate, substantially limit and occasionally avoid civil penalties.

The views contained within this entry and on this website are my own and do not constitute those of Hessian & McKasy, a Professional Association.

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