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
© 2004 Kirkpatrick & Lockhart LLP
2 © 2004 Kirkpatrick & Lockhart LLP
Why Worry About Criminal Environmental Enforcement?
Profits
Publicity
Prison/Penalties
3 © 2004 Kirkpatrick & Lockhart LLP
Profits
4 © 2004 Kirkpatrick & Lockhart LLP
Profits
5 © 2004 Kirkpatrick & Lockhart LLP
Publicity
6 © 2004 Kirkpatrick & Lockhart LLP
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
7 © 2004 Kirkpatrick & Lockhart LLP
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
8 © 2004 Kirkpatrick & Lockhart LLP
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
9 © 2004 Kirkpatrick & Lockhart LLP
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
10 © 2004 Kirkpatrick & Lockhart LLP
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
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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
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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
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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
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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
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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
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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
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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
18 © 2004 Kirkpatrick & Lockhart LLP
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
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Prison
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Homeland Security
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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.”
22 © 2004 Kirkpatrick & Lockhart LLP
Source: http://www.epa.gov/compliance/resources/reports/endofyear/eoy2003/fy2003enforcementandcomplianceendofyearcharts.pdf
23 © 2004 Kirkpatrick & Lockhart LLP
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
* *
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Kinds of Criminal Offenses
Misdemeanors < 1 yr
Felonies > 1 yr
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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
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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?
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Evolution of the “knowledge” element
Public Welfare Doctrine Responsible Corporate Officer
Doctrine Knowing vs Willful Due Process Concerns
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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
30 © 2004 Kirkpatrick & Lockhart LLP
Public Welfare Doctrine
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
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Public Welfare Doctrine
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.
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Public Welfare Doctrine
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.
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Public Welfare Doctrine
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.
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Public Welfare Doctrine
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.
35 © 2004 Kirkpatrick & Lockhart LLP
Public Welfare Doctrine
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?
36 © 2004 Kirkpatrick & Lockhart LLP
Public Welfare Doctrine
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.”
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Public Welfare Doctrine
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
38 © 2004 Kirkpatrick & Lockhart LLP
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)
39 © 2004 Kirkpatrick & Lockhart LLP
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.
The “knowledge” element and the “Responsible Corporate Officer” Doctrine
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The “knowledge” element and the “Responsible Corporate Officer” Doctrine
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
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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?
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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);
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Language of the Statute
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).
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Language of the Statute
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);
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Language of the Statute
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….
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Language of the Statute
Knowingly violated a provision
V.
Knowing engage in conduct inviolation of a provision
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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).
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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).”
RCRA: How far does ‘Knowing” travel?
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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.”
RCRA: How far does ‘Knowing” travel?
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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):
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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”
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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)
RCRA: “Knowledge”
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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.”
RCRA: “Knowledge”
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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.
RCRA: “Knowledge”
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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
RCRA: “Knowledge”
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United States v. Self, 2 F.3d 1071 (10th Cir. 1993) Know that the material is hazardous Know that could be harmful to persons
RCRA: “Knowledge”
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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”
RCRA: “Knowledge”
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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).
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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.
Clean Water Act “Knowledge”
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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.
Clean Water Act “Knowledge”
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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.”
Clean Water Act “Knowledge”
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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
Clean Water Act “Knowledge”
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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.
Clean Water Act “Knowledge”
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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
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Summary of “knowledge” element
Audits may be fair game forprosecutors;
Independent counsel investigations byspurred by potential liabilitiesgenerally are not;
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The Double Standard for Criminal Liability Under the Clean Air Act
Senior ManagementLiable for
Knowing Violations
Rank and File EmployeesLiable for
Knowing and WillfulViolations
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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.
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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”
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“circumstantial evidence may be used, including evidence that the defendant took affirmative steps to shield himself from relevant information”
Conscious Disregard(Jury Instruction) (cont.)
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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
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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.
Due Process and Knowledge
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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."
Due Process and Knowledge
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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.
Due Process and Knowledge
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75 © 2004 Kirkpatrick & Lockhart LLP
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
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Title 18 Offenses
False Statements
Obstruction of Justice
Conspiracy
Conspiracy to Defraud an Agency of the United States
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Conspiracy
Existence of agreement to achieve unlawful objective
Knowing and voluntary participation
Over act in furtherance
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Conspiracy (cont.)
Agreement to operate a plant
Knowledge that there are environmental issues at the plant
United States v. Hansen (11th Cir).
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Federal Sentencing Guidelines
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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);
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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
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Base Level for an Environmental Violation: 8
Possession of 250 grams of marijuana: 8
Murder: 43
Robbery: 20
Base Level Offenses Factors (cont.)
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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)
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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)
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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)
Enhancements to Base Level (cont.)
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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);
Enhancements to Base Level (cont.)
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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)
Enhancements to Base Level (cont.)
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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.
Enhancements to Base Level (cont.)
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United States v. Bragg, 207 F.3d 394 (7th Cir. 2000)
Vulnerable victim enhancementsUSSG §3A1.1(b);
Enhancements to Base Level (cont.)
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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)
Enhancements to Base Level (cont.)
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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).
Enhancements to Base Level (cont.)
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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
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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
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Standing in community not normally relevant.
Committing crime to avoid a greater harm not normally relevant
Other factors
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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
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Applying the Guidelines (cont.)
Cooperate by pleading guilty -2
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Downward Adjustment: -2
Criminal History 1
Applying the Guidelines (cont.)
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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
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Source: http://www.epa.gov/compliance/resources/reports/endofyear/eoy2003/fy2003enforcementandcomplianceendofyearcharts.pdf
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Why Worry About Civil Environmental Enforcement?
Profits: Economic Benefit of
Noncompliance
Publicity
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Source: http://www.epa.gov/compliance/resources/reports/endofyear/eoy2003/fy2003enforcementandcomplianceendofyearcharts.pdf
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Source: http://www.epa.gov/compliance/resources/reports/endofyear/eoy2003/fy2003enforcementandcomplianceendofyearcharts.pdf
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Source: http://www.epa.gov/compliance/resources/reports/endofyear/eoy2003/fy2003enforcementandcomplianceendofyearcharts.pdf
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Source: http://www.epa.gov/compliance/resources/reports/endofyear/eoy2003/fy2003enforcementandcomplianceendofyearcharts.pdf
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Why Worry About Civil Environmental Enforcement?
Profits- economic benefit of
noncompliance
Publicity
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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
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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
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Strict Liability
Responsibility vs status
Vicarious liability
Joint and Several Liability
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Civil Penalty Factors
History of violations
Ability to stay in business
Economic benefit
Gravity
Good faith efforts to comply
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Allegheny Ludlum v. United StatesNo. 02-4346 (3rd Cir. 2003)
$12 million dollar civil
penalty vacated –economic
benefit
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Allegheny Ludlum v. United StatesNo. 02-4346 (3rd Cir. 2003)
Interest rate
Invalid test defense
30 day violation presumption
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Numquam debes purgamentum dare rustico cui nomen Bubbarum et qui carrum utilem invehit.
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Never give your waste to a mannamed Bubba driving a pick-up truck.