Civil and Criminal Enforcement of Environmental Laws Thirteenth Annual ELI Boot Camp Course on Environmental Law November 12, 2004 Barry M. Hartman, Esq

Civil and Criminal Enforcement of Environmental Laws

Thirteenth Annual ELI Boot Camp Course on Environmental Law

November 12, 2004

Barry M. Hartman, Esq.Kirkpatrick & Lockhart LLP

[email protected]

© 2004 Kirkpatrick & Lockhart LLP

2 © 2004 Kirkpatrick & Lockhart LLP

Why Worry About Criminal Environmental Enforcement?

Profits

Publicity

Prison/Penalties


Profits


Profits


Publicity


12/27/02 Oil Company Sentenced for 1997 Explosion;Final Restitution Totals More Than $9 Million

12/27/02 Shipping Companies, Chief Engineer FaceFines Stemming from Washington Oil Spill

01/15/03 Norwegian Shipping Line to Pay $500,000Over 1999 Oil Spill Off South Carolina Coast

01/21/03 Asbestos Contractor Must Be Resentenced;65 Months Insufficient, Appeals Court Rules

Publicity


01/21/03 Coke Producer to Pay $2.9 Million Fine toSettle Allege Violations at 24 Plants

01/27/03 Appeals Court Orders Re-Evaluation of Sentence in Asbestos-Removal Case

01/30/03 Former Rocketdyne Manager GetsProbation, Fine for Violations Linked toFatal Explosion

Publicity


01/30/03 South Carolina Coating Firm, ExecutivePlead Guilty to Clean Water Act Violations

02/06/03 Summary of EPA Enforcement Statisticsfor Fiscal Year 2002

02/28/03 Waste Disposal Firm, Employees Chargedin Alleged Mishandling of Illegal Chemicals

03/12/03 Ashcroft Says Justice Will Focus on Laws toProtect Environment, Nation’s Security

Publicity


04/02/03 Federal Jury in California Convicts Ownerof Plating Shop for Illegal Waste Dumping

04/02/03 Senator Suggests Using Money from Finesfor Trust Fund to Protect Water Supply

04/02/03 Justice Department Seeks New Funding forFocus on Hazardous Materials Cases

04/15/03 Petroleum Tester Guilty of FalsifyingReports to EPA on Oxygen inReformulated Gasoline

Publicity


04/18/03 House Approves Bill to StrengthenEnforcement of Environmental Statutes

04/23/03 Taiwanese Shipping Company, EngineerPlead Guilty in Oily Waste Dumping Case

04/25/03 Chicago Man Pleads Guilty to Charges of Falsifying Test Results for Air Technicians

04/28/03 White House Announcements

Publicity


04/30/03 Businessman from Saipan Pleads Guilty toTampering With Drinking Water Samples

05/01/03 Pennsylvania Landlord Pleads Guilty toForging Signatures on Lead Paint Forms

05/28/03 Governor Signs Bills to Increase Penalties for Water Violations, Armed Brownfields Law

Publicity


06/20/03 Pipeline Employees Sentenced to Prison forRole in 1999 Explosion That Killed Three

06/25/03 Ship’s Engineer Gets Time Served in Dumping Case

06/27/03 Tyson Foods to Pay $7.5 Million in Fines forWater Act Violations at Poultry Plant

07/10/03 Motiva to Pay $296,000, Pleads No Contestto Charges Stemming From Tank Explosion

Publicity


07/18/03 Governor Signs Legislation StrengtheningControls, Penalties for Industrial Polluters

07/22/03 Olympic Asks Court to Block Seattle fromRequiring Tests on Pipeline Segment

07/29/03 Wastewater Plant Operator Found Guilty ofNegligence, Lying About Maintenance

08/07/03 Higher Criminal Fines Urged in BritainBecause Large Polluters “Failing to Learn”

Publicity


08/08/03 Alabama Gasoline Refiner Sentenced, Fined

08/08/03 Saipan Island Man Sentenced in Drinking Water Case

09/05/03 Houston Businessman Sentenced to Prison,Fined $20,000 for Illegal Asbestos Removal

09/09/03 Sarbanes-Oxley Act Forces Corporationsto Focus on Environmental Disclosure Rules

Publicity


09/15/03 Landlord Sentenced in Lead PaintDisclosure Case

09/17/03 Used Oil Refiner Fined $1.1 Million for WasteDischarge, Storage Violations

09/19/03 Printing Company Officer Pleads Guilty to Falsifying Application for Title V Permit

Publicity


10/03/03 Convicted Treatment Plant Superintendent Must Be Resentenced, Appeals Court Rules

10/20/03 Colorado Court Imposes $850,000 Fine on Chemical Firm, Cuts Officer’s Sentence

Publicity


01/09/04 South Florida Water Management District v.Miccosukee Tribe of Indians: Supreme CourtConsiders Extending Clean Water ActRegulation

02/12/04 Citgo Agrees to Pay $1.74 Million Fine ToResolve Air, Water, Waste Violations

02/25/04 California Woman Gets 15 Months in PrisonFor Falsifying Numerous Environmental Tests

Publicity


03/15/04 Massachusetts Transit Authority to Spend$1.4 Million to Settle Air, Water Allegations

04/12/04 New Jersey Power Plant to Pay $1 Million ToSettle Hot Water Discharge Violation

11/08/04 ARCO Agrees to Pay EPA $50 Million TowardClark Fork Basin Cleanup Costs

Publicity


Prison


Homeland Security


EMERY WORLDWIDE AIRLINES PLEADS GUILTY TO CRIMINAL HAZARDOUS MATERIALS TRANSPORTATION VIOLATIONS

WASHINGTON, D.C. - The Department of Justice and The Department of Transportation today announced that Emery Worldwide Airlines, Inc. has pled guilty to twelve (12)

felony counts for violating the Hazardous Material Transportation Act and agreed to pay a criminal penalty of $6 million and develop a compliance program to detect and

deter future violations.

Emery, a wholly owned subsidiary of CNF, Inc., provides air and land transportation services for business to business shippers of heavyweight cargo. Its major operation

hub is near the Dayton International Airport in Vandalia, Ohio.

“With the sheer amount of hazardous materials being shipped on our nation’s transportation infrastructure, we must track down and bring to justice those who violate our transportation laws,” said Attorney General John Ashcroft. “This will

significantly reduce the potentially severe consequences of a hazardous materials incident, whether by air, sea, road or rail.”


Source: http://www.epa.gov/compliance/resources/reports/endofyear/eoy2003/fy2003enforcementandcomplianceendofyearcharts.pdf

http://www.epa.gov/compliance/resources/reports/endofyear/eoy2003/fy2003enforcementandcomplianceendofyearcharts.pdf







Profile of Positions Held by Individuals Indicted for Environmental Crimes

0

10

20

30

40

50

60

70

1986 1987 1988 1989 1990 1991 1992

Officers Management Employees Other Employees

Prison Terms Imposed/ServedFor Environmental Crimes

* Prison terms for FY 96 and FY 97 have not been compiled.

115 5

64

3239

59

72

25

37

6370

43

5 2 3

31

158

37

48

23

34

55

70 73

111

155

1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997

0

10

20

30

40

50

60

70

80

90

100

110

120

130

140

150

160

170

180

Prison Terms Actual Confinement

Kirkpatrick & Lockhart LLP

* *



Kinds of Criminal Offenses

Misdemeanors < 1 yr

Felonies > 1 yr


1984 RCRA felonies

1986 CERCLA felonies

1987 Clean Water Act misdemeanors and felonies

1990 Clean Air Act felonies

19?? TSCA felonies

19?? OSHA felonies

Kinds of Criminal Offenses


Knowing Violations (Issues)

What court are you in?

What statute is being used?

What specific standard is being alleged to be violated?

Is the charge a misdemeanor or a felony?


Evolution of the “knowledge” element

Public Welfare Doctrine Responsible Corporate Officer

Doctrine Knowing vs Willful Due Process Concerns


Public Welfare Doctrine

U.S. v. Balint, 258 U.S. 250 (1922) Narcotics Act contained no

“knowledge” element Achieving social betterment rather

than punishing ‘mala in se’ conduct allows elimination of common law ‘knowledge’ element without offending due process



U.S. v. International Minerals and Chemicals Corp., 402 U.S. 558 (1971) Transporting hazardous chemicals

without classifying on shipping papersStatute contained ‘knowledge element”

(knowingly violates regulations….”)Punishment was misdemeanor



U.S. v. International Minerals and Chemicals Corp., 402 U.S. 558 (1971)

“But, here, where dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation.”

402 U.S. 558,at 565.



Grenades US v. Freed, 401 U.S. 601 (1971) "one would hardly be surprised to

learn that possession of hand grenades is not an innocent act." 401 U.S. at 609

Knowledge may be inferred from character of substance.



Guns

United States v. Staples, 511 U.S. 600 (1994) guns in general are not "deleterious devices or

products or obnoxious waste materials… that put their owners on notice that they stand in responsible relation to a public danger…”

“In contrast to the selling of dangerous drugs or the possession of hand grenades considered, private ownership of guns in this country has enjoyed a long tradition of being entirely lawful conduct.”

defendant had to know that it was an automatic gun before being subject to possibly 10 years in prison.



Asbestos (United States v. Weintraub, 273 F.3d 139 (2nd Cir. 2001) Real estate developer convicted of knowingly violating the CAA

requirement governing removing and disposing of asbestos. Held: government need only prove that the defendant knew that

the substance involved was asbestos; need not show it was ‘friable’.

“As a general matter, asbestos is strictly regulated …and no reasonable person...could be unaware that asbestos in almost all of its applications is closely regulated…. the use and handling of asbestos is…regulated at the municipal level… In sum, no reasonable person at this late date could claim to be unaware that asbestos is severely regulated and its handling is fraught with legal risk.” Id. at 151.



Asbestos was first used legally for its fire

retardant properties for over a century and when used properly is no danger at all

It was first regulated due to dangers of removal in the late 1970’s

Can the same thing be said of guns?



Sewage Water

U.S. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993); Wastewater plant discharged 6% more wastewater than what

permit permitted; Knowing violation of permit condition does not require the

polluter to know of the existence of the permit but only that the polluter knowingly engaged in conduct that results in a permit violation.

Court did not apply “inherently dangerous substance” rationale or “long history of regulation” rationale.

“The criminal provisions of the CWA are clearly designed to protect the public at large from the potentially direct consequences of water pollution, and as such fall within category of public welfare legislation.”



Evolution of relaxation of “Knowledge” element

inherently dangerous product/activity regardless ofregulatory history allows inference of knowledge

long history of nonregulation regardless of danger of product/activity allows inference of knowledge

short history of regulation regardless of character of product/activity allows inference of knowledge

public welfare legislation without more allows inference of knowledge


The “knowledge” element and the “Responsible Corporate Officer” Doctrine

Officers strictly and vicariously liable for any environmental violations caused by an employee of the corporation.

United States v. Dotterweich, 320 U.S. 1977(1943)

person who was otherwise innocent, but who stood in “responsible relation to the public danger” is responsible

Premised on “public welfare” character of legislation No knowledge requirement in statute (FFDCA)


United States v Dipentino, 242 F.3d 1090 (9th Cir. 2001

on-site representative of a company hired to oversee removal of asbestos knowingly violated CAA when he was:(1) present at the site on a daily basis; (2) performed inspections of areas that the asbestos-removal contractor had allegedly abated; (3) prepared and signed final inspection reports certifying that the site was clear of asbestos-containing material; and (4) had the power to stop the asbestos-removal contractor’s work for improper performance.

United States v Self, 2 F.3d 1071, 1088 (10th Cir. 1993)

conviction of corporate president sustained based on evidence that was sufficient to allow jury to infer that defendant knew of illegal storage of hazardous waste.




United States v. Hansen, 262 F.3d 1217 (11th Cir. 2001) Defendant has responsible

relationship to violation- under his authority

Power or capacity to prevent violation

Acted knowingly in failing to prevent, detect or correct violation

McDonald & Watson, 933 F.2d 277 (1st Cir. 1993) [RCRA Defendant (president)

must have actual knowledge of some facts

No mandatory presumption of knowledge from position


What must you “know” to knowingly violate the law”?

Must you know what your permit requires?

Must you know what the law is? Must you know the acts that

constitute the violation of law?


Language of the Statute

Clean Air Act (42 U.S.C. § 7413(c):

(i) Any person who knowingly violates a requirement … of … 42 U.S.C. § 7413(c)(1);

(ii) Any person who knowingly makes a false material statement, 42 U.S.C. § 7413(c)(2)(A);

(iii) Any person who knowingly … alters record ..., 42 U.S.C. § 7413(c)(2)(A);

(iv) Any person who knowingly … fails to notify or report as required …, 42 U.S.C. § 7413(c)(2)(B);

(v) Any person who knowingly falsifies, … tampers with … a device, 42 U.S.C. § 7413(c)(2)(C);



Clean Water Act, 33 U.S.C. § 1319(c):

(i) Any person who knowingly violates sections …, 33 U.S.C. § 1319(c)(2)(A);

(ii) Any person who knowingly introduces any pollutant into a sewer system …, 33 U.S.C. § 1319(c)(2)(B);

(iii) Any person who knowingly makes false material statements …, 33 U.S.C. § 1319(c)(4);

(iv) Any person who knowingly falsifies or tampers with … any device, 33 U.S.C. § 1319(c)(4).



Resource Conservation & Recovery Act, 42 U.S.C. § 6928(d)(i) Any person who knowingly transports … hazardous waste, listed under this subchapter to a facility which does not have a permit …, 42 U.S.C. § 6928(d)(1);

(ii) Any person who knowingly treats, stores, or disposes of any hazardous waste identified or listed …, 42 U.S.C. § 6928(c)(2)

Without a permit

In knowing violation of material condition.

(iii) Any person who knowingly omits material information, 42 U.S.C. § 6928(c)(3);

(iv) Any person who knowingly generates, stores … any hazardous waste not listed and knowingly destroys … records required to be kept, 42 U.S.C. § 6928;

(v) Any person who knowingly exports …, 42 U.S.C. § 6928(c);



Comprehensive Environmental Response Compensation& Liability Act, 42 U.S.C. § 9603(b)

(i) Any person who fails to notify immediately the appropriate agency….

(ii) Any person who submits information which he knows to be false or misleading….



Knowingly violated a provision

V.

Knowing engage in conduct inviolation of a provision


RCRA: How far does ‘Knowing” travel?

“Any person who ---…(2) knowingly treats, stores, or disposes of any hazardous waste identified or listed under this subchapter ---(a) without a permit under this subchapter…..(b) in knowing violation of any material condition or requirement of such permit; or (c) in knowing violation of any material condition or requirement of any applicable interim status regulations or standards.” 42 U.S.C. §6928(d)(2)(a) & (b).


United States v. Johnson & Towers, Inc., 741 F.2d 662 (3d Cir.1984). “it is unlikely that Congress could have intended to

subject to criminal prosecution those persons who acted when no permit had been obtained irrespective of their knowledge under subsection (A), but not those persons who acted in violation of the terms of a permit unless that action was knowing (subsection (B)). Thus, we are led to conclude that the omission of the word knowing in (A) was inadvertent or that “knowingly” which introduces subsection (2) applies to subsection (A).”



United States v. Hoflin, 880 F.2d 1033 (9th Cir. 1989) “Had Congress intended knowledge of the lack of a

permit under subsection (A) it could have easily said so. It specifically inserted a knowledge element in subsection (b) and did so notwithstanding the “knowingly” modifier which introduces subsection (2) In the face of such obvious Congressional action we will not write something into the statute that Congress so plainly left out.”



That Defendant knowingly disposed of or commanded and caused others to dispose of chemical wastes on or about August 1, 1983;

That Defendant knew that the chemical wastes had the potential to be harmful to others or to the environment, or in other words, it was not an innocuous substance like water;

The wastes were listed or identified by the United States Environmental Protection Agency ("EPA") as a hazardous waste pursuant to RCRA;

The defendant had not obtained a permit from either EPA or the State authorizing the disposal under RCRA.

RCRA:”Knowledge” jury instruction (U.S. v. Hoflin):


Any person who ---…(2) knowingly treats, stores, or disposes of any hazardous waste identified or listed under this subchapter ---(a) without a permit under this subchapter…..(b) in knowing violation of any material condition or requirement of such permit;

RCRA: “Knowledge”


Hoflin followed: United States v. Baytank, Inc., 934 F.2d 599

(5th Cir. 1991) United States v. Kelley Technical Coatings,

157 F.3d 432 (6th Cir. 1998) United States v. Kelley, 167 F.3d 1176 (7th Cir.

1999) United States v. Goldsmith , 978 F.2d 643 (11th

Cir. 1992)



United States v. Dean, 969 F.2d 187 (6th Cir. 1992) [RCRA]

Knowledge of permit requirement not element of RCRA offense

Defendant said that he had read the RCRA waste code “but thought it was a bunch of bullshit.”



United States v. Dee, 912 F.2d 741 (4th Cir. 1990) [RCRA]

“We agree with the defendants that the knowledge element does extend to knowledge of the general hazardous character of the wastes. But government does not have to show that Defendants knew the chemicals were characterized as hazardous under the law…”

“ You need only to find that the defendant knew (1) the waste had potential to be harmful to the environment (2) the defendant knew the waste was not an innocuous substance.” Id. at 1181.



United States v. Hayes International Corp. - 786 F.2d 1499 (11th Cir. 1986) Neither lack of knowledge that waste was

hazardous nor ignorance of permit requirements is valid defense under RCRA.

“it is completely fair and reasonable to charge those who chose to operate in such areas with knowledge of the regulatory provisions



United States v. Self, 2 F.3d 1071 (10th Cir. 1993) Know that the material is hazardous Know that could be harmful to persons



United States v. Elias, 1999 U.S. Dist. LEXIS 21372 (D. Idaho) Government did not have to show that

defendant knew he was breaking law, that his waste was defined as hazardous under RCRA, or that he needed permit to store and dispose of his waste).

If defendant thought the substance disposed of was benign, he did not “knowingly dispose of a hazardous substance”



Clean Water Act “Knowledge”

Clean Water Act, 33 U.S.C. § 1319(c):

(i) Any person who knowingly violates sections …, 33 U.S.C. § 1319(c)(2)(A);

(ii) Any person who knowingly introduces any pollutant into a sewer system …, 33 U.S.C. § 1319(c)(2)(B);

(iii) Any person who knowingly makes false material statements …, 33 U.S.C. § 1319(c)(4);

(iv) Any person who knowingly falsifies or tampers with … any device, 33 U.S.C. § 1319(c)(4).


United States v. Hopkins, 53 F.3d 533 (2nd Cir. 1995)

Congress intended to punish the defendant who knowingly commits a proscribed act, "even if the defendant was not aware of the proscription." The court also considered International Minerals as well as other public welfare offense cases.

The government was only required to prove that the defendant knew the nature of his acts and performed them intentionally; not that he knew his acts violated the statute or permit.



United States v. Ahmad,101 F.3d 386 (5th Cir. 1996) Government has to prove that the

defendant knew he was discharging gasoline.

gasoline is no more potentially harmful or dangerous than machine guns, and therefore violations of the CWA do not fall within the public welfare offense exception.



United States v. Wilson,133 F.3d 251 (4th Cir. 1997) Government has to prove that the defendant

knew he did not have a permit. “This last requirement does not require the

government to show that the defendant knew that permits were available or required. Rather, it, like the other requirements, preserves the availability of a mistake of fact offense if the defendant has something he mistakenly believed to be a permit to make the discharges for which he is being prosecuted.”



United States v. Sinskey, 119 F. 3d 712, 714 (8th Cir. 1997) The defendant asserted that he did not

know that his discharge of waste exceeded the permit (rather than mistakenly believing that the amount of discharge was within permit limits).

Held that a permit is another layer of regulation in the nature of a law. Mistake relating to permit is a mistake of law – no defense



United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir.1993) Provision of the CWA making it a felony to

knowingly violate any permit condition does not require the polluter to know of the existence of the permit but only that the polluter knowingly engage in conduct that results in a permit violation.



Summary of “knowledge” element

Aware of facts/conduct that are the basis for the violation (The storage, discharge or emission)

Knowledge that the material is a pollutant/waste

Knowledge that the material might be harmful


Summary of “knowledge” element

Audits may be fair game forprosecutors;

Independent counsel investigations byspurred by potential liabilitiesgenerally are not;


The Double Standard for Criminal Liability Under the Clean Air Act

Senior ManagementLiable for

Knowing Violations

Rank and File EmployeesLiable for

Knowing and WillfulViolations


The Double Standard for Criminal Liability Under the Clean Air Act (cont.)

United States v. Metalite, 51 ERC 1950 (D. Ind. 2000)

“The generally accepted understanding of "willful" versus "knowing" in the criminal law context is that "willfulness" requires an act in conscious disregard of a known duty, whereas "knowingly" designates a lack of mistake or accident and an awareness of actions that make up a violation of the law, without knowing that one's acts were prohibited by law.


Conscious Disregard(Jury Instruction)

“deliberately closed his eyes to what would otherwise have been obvious to him”

“failing to investigate if he is in possession of facts which cry out for investigation”


“circumstantial evidence may be used, including evidence that the defendant took affirmative steps to shield himself from relevant information”

Conscious Disregard(Jury Instruction) (cont.)


U.S. v. Balint, 258 U.S. 250 (1922)

Narcotics Act contained no “knowledge” element

Achieving social betterment rather than punishing ‘mala in se’ conduct allows elimination of common law ‘knowledge’ element without offending due process

Due Process and Knowledge


United States v. Engler, 806 F.2d 425 (3rd Cir. 1986) Felony statute is not necessarily rendered

unconstitutional because it lacks a knowledge element.

the Supreme Court has indicated that the due process clause may set some limits on the imposition of strict criminal liability, but it has not set forth definite guidelines as to what those limits might be.



Lambert v. California, 355 U.S. 225, 228, (1957) "We do not go with Blackstone in saying

that a 'vicious will' is necessary to constitute a crime . . . for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition."



United States v. Wulff, 758 F.2d 1121 (6th Cir. 1985) Applying the Migratory Bird Treaty Act

without a scienter requirement would be unconstitutional, because the crime is not one known to the common law, and because the felony penalty provision is severe and would result in irreparable damage to one's reputation.




Corporate “Knowledge”

CORPORATION

FACT F FACT H FACT G

VP ENVIRONMENT

FACT D

FACT C

FACT B FACT A

VP OPERATIONSGENERAL COUNSEL

PLANT MANAGERREGIONAL MANAGER

EMPLOYEEEMPLOYEE


Title 18 Offenses

False Statements

Obstruction of Justice

Conspiracy

Conspiracy to Defraud an Agency of the United States


Conspiracy

Existence of agreement to achieve unlawful objective

Knowing and voluntary participation

Over act in furtherance


Conspiracy (cont.)

Agreement to operate a plant

Knowledge that there are environmental issues at the plant

United States v. Hansen (11th Cir).


Federal Sentencing Guidelines


Base Level Offenses Factors

Offenses involving “knowing endangerment” of others;

Offenses involving mishandling of hazardous or toxic substances or pesticides (including related recordkeeping offenses);

Offenses involving mishandling of “other” (nontoxic) pollutants (including related recordkeeping offenses);


Base Level Offenses Factors (cont.)

Offenses involving public water systems;

Offenses involving hazardous or injurious devices on federal lands; and

Offenses involving specially protected fish, wildlife, and plants


Base Level for an Environmental Violation: 8

Possession of 250 grams of marijuana: 8

Murder: 43

Robbery: 20

Base Level Offenses Factors (cont.)


Enhancements to Base Level

6 level enhancement of continuous and ongoing violation, USSG §2Q1.2(b)(1)(A);

Lack of harm mitigates against finding that a violation is continuous. United States v. Van Loben Sels, 198 F.3d 1161 (9th Cir. 1999)

Number of days a defendant violated the CWA could be a sentencing factor.United States v. Chemetco, Inc., 274 F.3d 1154 (7th Cir. 2001)


Enhancements to Base Level (cont.)

Proof of actual contamination IS required. United States v. Ferrin, 994 F.2d 658 (9th Cir. 1993)

Harm can be presumed from continuous discharge. United States v. Hoffman, 2000 U.S. App. Lexis 5185 (4th Cir. 2000)


Proof of Actual Contamination NOT required

United States v. Cunningham, 194 F.3d 1186 (11th Cir. 1999)

United States v. Liebman, 40 F.3d 544 (2d Cir. 1994)

United States v. Goldfaden, 959 F.2d 1324 (5th Cir. 1992)



Whether the person has committed prior crimes, USSG 4A1.1

A prior unrelated DUI charge outstanding when offense environmental offense is committed is a prior crime. United States v. Kyle, 2001 WL 1580232 (6th Cir. 2001) [unpublished]

Whether the violation created the threat of death or bodily injury, USSG §2Q1.2(b)2);



4 level increase if the violation involved permit requirements, USSG §2Q1.2(b)(4);

Notice to State is not a permit requirement. United States v. Weintraub, 96 F.Supp.2d 135 (D.Conn 2000); United States v. Chau, 293 F.2d 96 (3rd Cir. 2002)



Whether the defendant was the supervisor

4 levels if more than five person involved.USSG §3B1.1;

2 levels for 2 persons

United States v. Okoli, 20 F.3d 615 (5th Cir. 1994) defendant must have been the “organizer, leader, manager, or supervisor of one or more other participants.” Need not demonstrate that the individual being indicted was personally in charge of five or more participants.



United States v. Bragg, 207 F.3d 394 (7th Cir. 2000)

Vulnerable victim enhancementsUSSG §3A1.1(b);



4 levels for substantial expenditures for clean up; USSG §2Q1.2(b)(3);

$200,000 is substantial. United States v. Chau, 293 F.d 96 (3rd Cir. 2002)



Whether the violation created the threat of death or bodily injury, USSG §2Q1.2(b)2);

Not appropriate unless conviction is for offense that causes the injury. United States v. Elias, 32 ELR 20,218, 260 F.3d 1003 (9th Cir. 2001)

Special Skills contributed to violation United States v. Ellen, 961 F.2d 462 (4th Cir. 1992).



This base level can also be decreasedbased on a number of factors, such as,

Whether the offense involved recordkeeping only, USSG §2Q1.2(b)(6); or

Whether the defendant cooperated in the investigation, USSG §3E1.1

Reductions to Enhanced Level


Is the case outside the ‘heartland of environmental cases.” USSG §5K2.0.

United States v. Elias, 32 ELR 20,218, 260 F.3d 1003 (9th Cir. 2001)

Downward Departures


Standing in community not normally relevant.

Committing crime to avoid a greater harm not normally relevant

Other factors



Applying the Guidelines

Increase/Decrease Nature of Offense Offense Level

Offense involving a toxic waste 8

Increase based on +4noncontinuous violation

Increase based on permit +4violation

Decrease because defendant -2pled guilty/cooperated

Total value assigned to 14offense



Applying the Guidelines (cont.)

Cooperate by pleading guilty -2


Downward Adjustment: -2

Criminal History 1

Applying the Guidelines (cont.)




Blakely v. Washington, 124 S.Ct. 2531 (2004)

-enhancements beyond statutory maximum

-fact finding – beyond reasonable doubt

Two cases in the Supreme CourtUnited States v. Booker, Docket 04-104United States v. Fanfan, Docket 04-105

Constitutionality of Guidelines




Why Worry About Civil Environmental Enforcement?

Profits: Economic Benefit of

Noncompliance

Publicity










Why Worry About Civil Environmental Enforcement?

Profits- economic benefit of

noncompliance

Publicity


FOR IMMEDIATE RELEASE TUESDAY, DECEMBER 16, 2003 WWW.USDOJ.GOV

ENRD (202) 514-2007

TDD (202) 514-1888

JUSTICE DEPARTMENT ANNOUNCES FY2003 RECORD YEAR FOR RECOVERY OF CIVIL PENALTIES IN ENVIRONMENTAL CASES

Ashcroft, Sansonetti Hail Recovery Of More Than $203 Million From Violators

WASHINGTON, D.C. - Attorney General John Ashcroft and Assistant Attorney General Tom Sansonetti of the Justice Department’s Environment and Natural Resources Division, reported today that Fiscal Year 2003 was a record breaking year for the recovery of civil penalties in environmental cases. Court awards and consent decrees achieved by the Department and United States Attorney’s Offices resulted in more than $203 million in penalties for civil violations of the nation’s environmental laws. In contrast during the three previous years, awards averaged approximately $75 million.

Source: http://www.usdoj.gov/opa/pr/2003/December/03_enrd_694.htm


FOR IMMEDIATE RELEASE WEDNESDAY, OCTOBER 6, 2004 WWW.USDOJ.GOV

ENRD (202) 514-2008

TDD (202) 514-1888

JUSTICE DEPARTMENT ANNOUNCES FY 2004 RECORD YEAR IN OBTAINING OVER $4 BILLION FOR ENVIRONMENTAL IMPROVEMENT

WASHINGTON, D.C. - Thomas L. Sansonetti, Assistant Attorney General of the Justice Department’s Environment and Natural Resources Division, announced today that Fiscal Year 2004 was a record breaking year in the Division’s efforts to secure commitments by polluters to take action to remedy their violations of the nation’s environmental laws. Polluters across the nation agreed to spend in excess of $4 billion-topping the previous record of just more than $3 billion in FY 2002-to take corrective measures to protect the nation’s health, welfare and environment. Additionally, courts imposed more than $181 million in civil penalties for violations in environmental cases, second only to fiscal year 2003's record-setting recovery of $203 million.

Source: http://www.usdoj.gov/opa/pr/2004/October/04_enrd_686.htm


Strict Liability

Responsibility vs status

Vicarious liability

Joint and Several Liability


Civil Penalty Factors

History of violations

Ability to stay in business

Economic benefit

Gravity

Good faith efforts to comply


Allegheny Ludlum v. United StatesNo. 02-4346 (3rd Cir. 2003)

$12 million dollar civil

penalty vacated –economic

benefit


Allegheny Ludlum v. United StatesNo. 02-4346 (3rd Cir. 2003)

Interest rate

Invalid test defense

30 day violation presumption


Numquam debes purgamentum dare rustico cui nomen Bubbarum et qui carrum utilem invehit.


Never give your waste to a mannamed Bubba driving a pick-up truck.

Documents

Civil and Criminal Enforcement of Environmental Laws Thirteenth Annual ELI Boot Camp Course on Environmental Law November 12, 2004 Barry M. Hartman, Esq