February 1, 2012  As any manager of environmental, health and safety knows, compliance with federal, state and local environmental requirements is a very challenging task.  The statutes and environmental regulations that apply to many business operations are complex and subject to revision.  Compliance determinations are often highly technical, subject to interpretation and require the application of judgment.

Most federal environmental laws contain provisions for escalating enforcement to address allegations of environmental violations. Although the vast majority of noncompliance situations are handled through administrative or civil processes, regulators have the ability to refer cases for possible criminal prosecution.  Increasingly at the federal and state level environmental noncompliance cases are being investigated for prosecution. After discussing cases with inspectors and reviewing case files and the applicable law, prosecutors may choose to file criminal charges.

For an individual who is first, the target of a criminal investigation, and possibly later, named as a defendant in a federal or state case involving allegations of environmental crimes, being involved in a criminal case is devastating and can only be characterized as a life-altering experience.

A December 12, 2011 Wall Street Journal article “A Sewage Blunder Earns Engineer a Criminal Record” tells the sad tale of a wastewater engineer at a military retirement home in Washington, D.C. who diverted back-up sewage that was in danger of flooding living areas of the home.  The sewage system backed up because elderly residents disregarded postings and rules and routinely clogged toilets in the facility.  He believed the flow of backed up sewage was being directed to the Washington, D.C. sewage treatment system.  However, the sewage was actually diverted to a storm drain that discharged directly to a nearby creek.

A jogger noticed murky water in Rock Creek, called in a complaint and, within a matter of hours, District of Columbia Park Police and other authorities traced the discharge back to the retirement home.  The engineer recalled that he was away from the home at a funeral for his father-in-law when he received a frantic call from others at the retirement home.  As he returned, the engineer reported that he had never seen as many emergency vehicles in his entire life when he arrived back at the retirement home.

Rock Creek flows to the Potomac River and, according to the authorities, the unpermitted discharge violated the federal Clean Water Act.  After prosecutors found evidence of several alleged previous discharges, they decided to press criminal charges against the employee of the retirement home. The employee’s supervisor was interviewed extensively, but the prosecutor declined to name him as a defendant.

The case illustrates the precarious situation that environmental health and safety managers and business owners and managers often find themselves in when it comes to being assigned responsibility for environmental compliance.  Complying with extensive requirements is like navigating through a minefield.

*       The list of federal crimes has expanded substantially over time.  As the Wall Street Journal points out in its December 11, 2011 article and its ongoing series on federal criminal offenses, there were only three crimes originally listed in the Constitution – piracy, treason and counterfeiting.  Now there are an estimated 4,500 federal crimes that are codified in federal law.  Most federal environmental laws (including the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA) and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)) provide that violations of statutes, regulations and permit terms can be prosecuted as felony level crimes.  States have followed the lead of their federal partners and criminal sanctions have been added for environmental crimes.  An act which constitutes a violation of federal law may also often be charged out as a state crime.

*       More alarming is the fact that the threshold level of proof required for a criminal conviction has been reduced.  In many cases there is no requirement for mens rea or “guilty mind.”  Rather, most environmental crimes are strict liability offenses.  There is often no requirement for prosecutors to prove that a party who is charged knows that he or she has in fact violated the law.  In the case involving the Washington, D.C. wastewater engineer, it made no difference that the employee thought the diverted flows were being properly treated by the local sewer authority.  In that case, the government only had to prove that the defendant knew the discharge was being pumped into the storm drain, not that it ultimately flowed to a “water of the United States.”

*       The criminal justice system is directed toward addressing and correcting the behavior of individuals.  Although businesses and business entities can be charged as defendants, in most cases prosecutors will seek out individuals within an organization who they believe should bear personal responsibility for the bad act.  Individuals with direct involvement in environmental health and safety, their supervisors as well as higher level business managers and officers, all have potential exposure.

*       The U.S. Department of Justice has assigned staff, including criminal investigators who are trained in building environmental crimes cases, across the country.  The cases can be complex and take time to develop and charge out.  Federal authorities have the resources to conduct thorough investigations.  Prosecutors can only bring criminal cases that are supported by probable cause.

*       The Wall Street Journal points out that between 2000 and 2010 nearly 800,000 people were sentenced for federal crimes.  Although drug offenses and financial wrongdoing often grab the headlines, prosecutions of environmental crimes are on the rise.  The consequences for any individual who is charged with such a crime are severe.  The costs of defense can be extraordinary.  A conviction may include both incarceration and/or substantial fines. Companies may be barred from contracting with the federal government. The employee in the Washington, D.C. case, whose legal fees were covered by his employer, entered a plea and was put on probation and ultimately paid a fine of $2,500.  Many defendants – even those without any prior criminal history – receive much harsher treatment.  Nonetheless, in most cases a criminal conviction must be disclosed to future employers.

*       The U. S. Environmental Protection Agency (EPA) has not yet released data related to criminal prosecutions in 2011.  In Fiscal Year (FY) 2010 EPA indicated that it opened 346 environmental crimes cases, charged 289 criminal defendants and achieved a conviction rate of nearly 90 percent.  In FY 2010 EPA reported that defendants agreed to complete $18 million of court ordered projects.  Defendants on all cases were sentenced to a total of 72 years of incarceration.  Finally, in FY 2010 EPA collected a total of $41 million in fines and restitution arising out of its convictions and settlements.

*       The total for fines and restitution was reduced from FY 2009 when the EPA collected a $50 million fine in a single case filed against BP Products North America.  The BP Products case arose out of a Texas refinery fire where 15 contract workers were killed and almost 200 were injured.  EPA reports that the BP Products fine was the largest ever collected under the federal Clean Air Act.   Notably, the EPA and the U. S. Department of Justice have opened a criminal investigation of the Deepwater Horizon fire and spill.  The matter is pending.  One recent news report suggests criminal charges are pending in that matter.  Seehttp://www.foxnews.com/us/2011/12/28/first-criminal-charges-are-prepared-in-bp-oil-spill/ Due to the complexity of the Deepwater Horizon incident, it may be months before charges are actually filed.

What steps can a business owner or employee charged with oversight or management of environmental health and safety activities take to protect themselves and their company? 

1.)  Consider Third Party Audits.  Businesses and managers should periodically review their compliance status.  Experience has shown that those individuals with operational responsibilities may not be in the best position to evaluate whether their facility is in compliance with all applicable statutes, regulations and permit terms.  It is prudent for businesses to consider conducting periodic third party audits of a business operation’s environmental compliance status.  Involving an experienced environmental consultant and qualified legal counsel, as additional sets of eyes, can ensure that issues are being thoroughly evaluated.  Audit related work should be conducted under attorney client privilege so that the findings can be properly addressed, the company can be afforded legal protections and liability can be minimized.  In certain cases, companies may be able to take advantage of audit policies that mitigate penalties. For information on EPA audit policies, please visit:  http://www.epa.gov/compliance/incentives/auditing/auditpolicy.html.  Some states also provide audit protections.

2.)  Focus In on Potential Exposure and Liability.  Managers and businesses should consider conducting a focused  assessment of their exposure to criminal liability with regard to environmental matters.  Each business operation is unique.  Certain businesses – such as plating companies, companies with significant air emissions, wastewater discharges or firms who generate and store large quantities of hazardous wastes – may have greater exposure merely due to the nature of their operations.  Any company who handles, stores or ships hazardous materials or hazardous wastes may have increased exposure as accidents and spills may happen anywhere.  At a minimum, emergency response, spill containment and contingency plans should be carefully reviewed for their sufficiency and completeness.  A comprehensive review of the compliance status of off-site disposal facilities is another prudent step to minimize liability.  As was the case with the retirement engineer, an inadvertent off-site discharge led to an investigation, a review of past protocols and proof of a course of illegal conduct.  The failure to have adequate controls and redundancies in place ended up placing the engineer in a very difficult situation.

  1. )  Review Your Indemnification Status.  Finally, environmental health and safety managers and others should review state law and their own employment agreements and verify that their employer will provide them with indemnification in the event of an investigation.

 

Joseph G. Maternowski is an attorney practicing in the areas of environmental and administrative law in the public and private sectors for over 25 years.  Mr. Maternowski advises clients who find themselves involved with federal and state enforcement actions.  He collaborates and works closely with criminal defense counsel on cases involving allegations of environmental crimes. Mr. Maternowski has worked with clients to develop and implement environmental audit and environmental, health and safety management programs designed to address and prevent violations from occurring.

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