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
bhartman@kl.com
www.kl.com
© 2004 Kirkpatrick & Lockhart LLP
Why Worry About Criminal
Environmental Enforcement?

Profits

Publicity

Prison/Penalties
2 © 2004 Kirkpatrick & Lockhart LLP
Profits
3 © 2004 Kirkpatrick & Lockhart LLP
Profits
4 © 2004 Kirkpatrick & Lockhart LLP
Publicity
5 © 2004 Kirkpatrick & Lockhart LLP
Publicity
12/27/02
Oil Company Sentenced for 1997 Explosion;
Final Restitution Totals More Than $9 Million
12/27/02
Shipping Companies, Chief Engineer Face
Fines Stemming from Washington Oil Spill
01/15/03
Norwegian Shipping Line to Pay $500,000
Over 1999 Oil Spill Off South Carolina Coast
01/21/03
Asbestos Contractor Must Be Resentenced;
65 Months Insufficient, Appeals Court Rules
6 © 2004 Kirkpatrick & Lockhart LLP
Publicity
01/21/03
Coke Producer to Pay $2.9 Million Fine to
Settle 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 Gets
Probation, Fine for Violations Linked to
Fatal Explosion
7 © 2004 Kirkpatrick & Lockhart LLP
Publicity
01/30/03
South Carolina Coating Firm, Executive
Plead Guilty to Clean Water Act Violations
02/06/03
Summary of EPA Enforcement Statistics
for Fiscal Year 2002
02/28/03
Waste Disposal Firm, Employees Charged
in Alleged Mishandling of Illegal Chemicals
03/12/03
Ashcroft Says Justice Will Focus on Laws to
Protect Environment, Nation’s Security
8 © 2004 Kirkpatrick & Lockhart LLP
Publicity
04/02/03
Federal Jury in California Convicts Owner
of Plating Shop for Illegal Waste Dumping
04/02/03
Senator Suggests Using Money from Fines
for Trust Fund to Protect Water Supply
04/02/03
Justice Department Seeks New Funding for
Focus on Hazardous Materials Cases
04/15/03
Petroleum Tester Guilty of Falsifying
Reports to EPA on Oxygen in
Reformulated Gasoline
9 © 2004 Kirkpatrick & Lockhart LLP
Publicity
04/18/03
House Approves Bill to Strengthen
Enforcement of Environmental Statutes
04/23/03
Taiwanese Shipping Company, Engineer
Plead 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
10 © 2004 Kirkpatrick & Lockhart LLP
Publicity
04/30/03
Businessman from Saipan Pleads Guilty to
Tampering With Drinking Water Samples
05/01/03
Pennsylvania Landlord Pleads Guilty to
Forging Signatures on Lead Paint Forms
05/28/03
Governor Signs Bills to Increase Penalties
for Water Violations, Armed Brownfields Law
11 © 2004 Kirkpatrick & Lockhart LLP
Publicity
06/20/03
Pipeline Employees Sentenced to Prison for
Role 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 for
Water Act Violations at Poultry Plant
07/10/03
Motiva to Pay $296,000, Pleads No Contest
to Charges Stemming From Tank Explosion
12 © 2004 Kirkpatrick & Lockhart LLP
Publicity
07/18/03
Governor Signs Legislation Strengthening
Controls, Penalties for Industrial Polluters
07/22/03
Olympic Asks Court to Block Seattle from
Requiring Tests on Pipeline Segment
07/29/03
Wastewater Plant Operator Found Guilty of
Negligence, Lying About Maintenance
08/07/03
Higher Criminal Fines Urged in Britain
Because Large Polluters “Failing to Learn”
13 © 2004 Kirkpatrick & Lockhart LLP
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 Corporations
to Focus on Environmental Disclosure Rules
14 © 2004 Kirkpatrick & Lockhart LLP
Publicity
09/15/03
Landlord Sentenced in Lead Paint
Disclosure Case
09/17/03
Used Oil Refiner Fined $1.1 Million for Waste
Discharge, Storage Violations
09/19/03
Printing Company Officer Pleads Guilty to
Falsifying Application for Title V Permit
15 © 2004 Kirkpatrick & Lockhart LLP
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
16 © 2004 Kirkpatrick & Lockhart LLP
Publicity
01/09/04
South Florida Water Management District v.
Miccosukee Tribe of Indians: Supreme Court
Considers Extending Clean Water Act
Regulation
02/12/04
Citgo Agrees to Pay $1.74 Million Fine To
Resolve Air, Water, Waste Violations
02/25/04
California Woman Gets 15 Months in Prison
For Falsifying Numerous Environmental Tests
17 © 2004 Kirkpatrick & Lockhart LLP
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 To
Settle Hot Water Discharge Violation
11/08/04
ARCO Agrees to Pay EPA $50 Million Toward
Clark Fork Basin Cleanup Costs
18 © 2004 Kirkpatrick & Lockhart LLP
Prison
19 © 2004 Kirkpatrick & Lockhart LLP
Homeland
Security
20 © 2004 Kirkpatrick & Lockhart LLP
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.”
21 © 2004 Kirkpatrick & Lockhart LLP
Source: http://www.epa.gov/compliance/resources/reports/endofyear/eoy2003/fy2003enforcementandcomplianceendofyearcharts.pdf
22 © 2004 Kirkpatrick & Lockhart LLP
Profile of Positions Held by Individuals
Indicted for Environmental Crimes
70
60
50
40
30
20
10
0
1986
Officers
23 © 2004 Kirkpatrick & Lockhart LLP
1987
1988
1989
Management Employees
1990
1991
1992
Other Employees
Kirkpatrick & Lockhart LLP
Prison Terms Imposed/Served
For Environmental Crimes
180
170
160
150
140
130
120
110
100
90
80
70
60
50
40
30
20
10
0
155
111
72
64
63
59
55
48
39
37
31 32
11
73
70 70
43
37 34
25 23
15
5
1983
5 2
5 3
1984
1985
8
1986
1987
1988
1989
1990
Prison Terms
* Prison terms for FY 96 and FY 97 have not been compiled.
24 © 2001 Kirkpatrick & Lockhart LLP
1991
1992
1993
Actual Confinement
1994
1995
*
*
1996
1997
Kinds of Criminal Offenses

Misdemeanors < 1 yr

Felonies > 1 yr
25 © 2004 Kirkpatrick & Lockhart LLP
Kinds of Criminal Offenses
1984 RCRA felonies
1986 CERCLA felonies
1987 Clean Water Act misdemeanors and
felonies
1990 Clean Air Act felonies
19?? TSCA felonies
19?? OSHA felonies
26 © 2004 Kirkpatrick & Lockhart LLP
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?
27 © 2004 Kirkpatrick & Lockhart LLP
Evolution of the
“knowledge” element

Public Welfare Doctrine

Responsible Corporate Officer
Doctrine

Knowing vs Willful

Due Process Concerns
28 © 2004 Kirkpatrick & Lockhart LLP
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
29 © 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 papers
 Statute
contained ‘knowledge element”
(knowingly violates regulations….”)
 Punishment
30 © 2004 Kirkpatrick & Lockhart LLP
was misdemeanor
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.
31 © 2004 Kirkpatrick & Lockhart LLP
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.
32 © 2004 Kirkpatrick & Lockhart LLP
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.
33 © 2004 Kirkpatrick & Lockhart LLP
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.
34 © 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?
35 © 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.”
36 © 2004 Kirkpatrick & Lockhart LLP
Public Welfare Doctrine

Evolution of relaxation of “Knowledge” element
inherently dangerous product/activity regardless of
regulatory 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
37 © 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)
38 © 2004 Kirkpatrick & Lockhart LLP
The “knowledge” element and the
“Responsible Corporate Officer” Doctrine

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 asbestosremoval 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.
39 © 2004 Kirkpatrick & Lockhart LLP

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

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
40 © 2004 Kirkpatrick & Lockhart LLP

United States v. Hansen, 262
F.3d 1217
(11th Cir. 2001)

Defendant has responsible
relationship to violationunder his authority

Power or capacity to
prevent violation

Acted knowingly in failing
to prevent, detect or correct
violation
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?
41 © 2004 Kirkpatrick & Lockhart LLP
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);
42 © 2004 Kirkpatrick & Lockhart LLP
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).
43 © 2004 Kirkpatrick & Lockhart LLP
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);
44 © 2004 Kirkpatrick & Lockhart LLP
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….
45 © 2004 Kirkpatrick & Lockhart LLP
Language of the Statute
Knowingly violated a provision
V.
Knowing engage in conduct in
violation of a provision
46 © 2004 Kirkpatrick & Lockhart LLP
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).
47 © 2004 Kirkpatrick & Lockhart LLP
RCRA: How far does ‘Knowing” travel?

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).”
48 © 2004 Kirkpatrick & Lockhart LLP
RCRA: How far does ‘Knowing” travel?

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.”
49 © 2004 Kirkpatrick & Lockhart LLP
RCRA:”Knowledge” jury instruction
(U.S. v. Hoflin):




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.
50 © 2004 Kirkpatrick & Lockhart LLP
RCRA: “Knowledge”

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;
51 © 2004 Kirkpatrick & Lockhart LLP
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)
52 © 2004 Kirkpatrick & Lockhart LLP
RCRA: “Knowledge”

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.”
53 © 2004 Kirkpatrick & Lockhart LLP
RCRA: “Knowledge”

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.
54 © 2004 Kirkpatrick & Lockhart LLP
RCRA: “Knowledge”

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
55 © 2004 Kirkpatrick & Lockhart LLP
RCRA: “Knowledge”

United States v. Self, 2 F.3d 1071 (10th Cir.
1993)

Know that the material is hazardous

Know that could be harmful to persons
56 © 2004 Kirkpatrick & Lockhart LLP
RCRA: “Knowledge”

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”
57 © 2004 Kirkpatrick & Lockhart LLP
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).
58 © 2004 Kirkpatrick & Lockhart LLP
Clean Water Act “Knowledge”

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.
59 © 2004 Kirkpatrick & Lockhart LLP
Clean Water Act “Knowledge”

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.
60 © 2004 Kirkpatrick & Lockhart LLP
Clean Water Act “Knowledge”

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.”
61 © 2004 Kirkpatrick & Lockhart LLP
Clean Water Act “Knowledge”

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
62 © 2004 Kirkpatrick & Lockhart LLP
Clean Water Act “Knowledge”

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.
63 © 2004 Kirkpatrick & Lockhart LLP
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
64 © 2004 Kirkpatrick & Lockhart LLP
Summary of “knowledge” element

Audits may be fair game for
prosecutors;

Independent counsel investigations by
spurred by potential liabilities
generally are not;
65 © 2004 Kirkpatrick & Lockhart LLP
The Double Standard for Criminal
Liability Under the Clean Air Act
Senior Management
Liable for
Knowing Violations
66 © 2004 Kirkpatrick & Lockhart LLP
Rank and File Employees
Liable for
Knowing and Willful
Violations
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.
67 © 2004 Kirkpatrick & Lockhart LLP
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”
68 © 2004 Kirkpatrick & Lockhart LLP
Conscious Disregard
(Jury Instruction) (cont.)
“circumstantial evidence may be
used, including evidence that the
defendant took affirmative steps to
shield himself from relevant
information”
69 © 2004 Kirkpatrick & Lockhart LLP
Due Process and Knowledge
 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
70 © 2004 Kirkpatrick & Lockhart LLP
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.
71 © 2004 Kirkpatrick & Lockhart LLP
Due Process and Knowledge

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."
72 © 2004 Kirkpatrick & Lockhart LLP
Due Process and Knowledge

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.
73 © 2004 Kirkpatrick & Lockhart LLP
74 © 2004 Kirkpatrick & Lockhart LLP
Corporate “Knowledge”
CORPORATION
FACT F
FACT H
GENERAL COUNSEL
FACT G
VP OPERATIONS
VP ENVIRONMENT
FACT D
FACT C
REGIONAL MANAGER
PLANT MANAGER
FACT B
FACT A
EMPLOYEE
75 © 2004 Kirkpatrick & Lockhart LLP
EMPLOYEE
Title 18 Offenses

False Statements

Obstruction of Justice

Conspiracy

Conspiracy to Defraud an
Agency of the United States
76 © 2004 Kirkpatrick & Lockhart LLP
Conspiracy

Existence of agreement to achieve
unlawful objective

Knowing and voluntary
participation

Over act in furtherance
77 © 2004 Kirkpatrick & Lockhart LLP
Conspiracy (cont.)

Agreement to operate a plant

Knowledge that there are
environmental issues at the plant
United States v. Hansen (11th Cir).
78 © 2004 Kirkpatrick & Lockhart LLP
Federal Sentencing Guidelines
79 © 2004 Kirkpatrick & Lockhart LLP
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);
80 © 2004 Kirkpatrick & Lockhart LLP
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
81 © 2004 Kirkpatrick & Lockhart LLP
Base Level Offenses Factors

Base Level for an Environmental
Violation: 8

Possession of 250 grams of
marijuana: 8

Murder: 43

Robbery: 20
82 © 2004 Kirkpatrick & Lockhart LLP
(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)
83 © 2004 Kirkpatrick & Lockhart LLP
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)
84 © 2004 Kirkpatrick & Lockhart LLP
Enhancements to Base Level

(cont.)
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)
85 © 2004 Kirkpatrick & Lockhart LLP
Enhancements to Base Level

Whether the person has committed prior
crimes, USSG 4A1.1


(cont.)
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);
86 © 2004 Kirkpatrick & Lockhart LLP
Enhancements to Base Level

(cont.)
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)
87 © 2004 Kirkpatrick & Lockhart LLP
Enhancements to Base Level

(cont.)
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.
88 © 2004 Kirkpatrick & Lockhart LLP
Enhancements to Base Level
(cont.)

Vulnerable victim enhancements
USSG §3A1.1(b);

United States v. Bragg, 207 F.3d 394
(7th Cir. 2000)
89 © 2004 Kirkpatrick & Lockhart LLP
Enhancements to Base Level
(cont.)

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)
90 © 2004 Kirkpatrick & Lockhart LLP
Enhancements to Base Level
(cont.)

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).
91 © 2004 Kirkpatrick & Lockhart LLP
Reductions to Enhanced Level
This base level can also be decreased
based 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
92 © 2004 Kirkpatrick & Lockhart LLP
Downward Departures

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)
93 © 2004 Kirkpatrick & Lockhart LLP
Other factors

Standing in community not normally
relevant.

Committing crime to avoid a greater
harm not normally relevant
94 © 2004 Kirkpatrick & Lockhart LLP
95 © 2002 Kirkpatrick & Lockhart LLP
Applying the Guidelines
Nature of Offense
Offense involving a toxic
waste
Increase based on
noncontinuous violation
Increase based on permit
violation
Decrease because defendant
pled guilty/cooperated
Total value assigned to
offense
96 © 2004 Kirkpatrick & Lockhart LLP
Increase/Decrease
Offense Level
8
+4
+4
-2
14
97 © 2002 Kirkpatrick & Lockhart LLP
Applying the Guidelines
(cont.)
Cooperate by pleading guilty -2
98 © 2004 Kirkpatrick & Lockhart LLP
Applying the Guidelines (cont.)
Downward Adjustment: -2
Criminal History 1
99 © 2004 Kirkpatrick & Lockhart LLP
100 © 2002 Kirkpatrick & Lockhart
101 © 2002 Kirkpatrick & Lockhart
Constitutionality of Guidelines
Blakely v. Washington, 124 S.Ct. 2531 (2004)
-enhancements beyond statutory maximum
-fact finding – beyond reasonable doubt
Two cases in the Supreme Court
United States v. Booker, Docket 04-104
United States v. Fanfan, Docket 04-105
102 © 2004 Kirkpatrick & Lockhart LLP
Source: http://www.epa.gov/compliance/resources/reports/endofyear/eoy2003/fy2003enforcementandcomplianceendofyearcharts.pdf
103 © 2004 Kirkpatrick & Lockhart LLP
Why Worry About Civil Environmental
Enforcement?
Profits: Economic Benefit of
Noncompliance
Publicity
104 © 2004 Kirkpatrick & Lockhart LLP
Source: http://www.epa.gov/compliance/resources/reports/endofyear/eoy2003/fy2003enforcementandcomplianceendofyearcharts.pdf
105 © 2004 Kirkpatrick & Lockhart LLP
Source: http://www.epa.gov/compliance/resources/reports/endofyear/eoy2003/fy2003enforcementandcomplianceendofyearcharts.pdf
106 © 2004 Kirkpatrick & Lockhart LLP
Source: http://www.epa.gov/compliance/resources/reports/endofyear/eoy2003/fy2003enforcementandcomplianceendofyearcharts.pdf
107 © 2004 Kirkpatrick & Lockhart LLP
Source: http://www.epa.gov/compliance/resources/reports/endofyear/eoy2003/fy2003enforcementandcomplianceendofyearcharts.pdf
108 © 2004 Kirkpatrick & Lockhart LLP
Why Worry About Civil Environmental
Enforcement?

Profits- economic benefit of
noncompliance

109 © 2004 Kirkpatrick & Lockhart LLP
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
110 © 2004 Kirkpatrick & Lockhart LLP
FOR IMMEDIATE RELEASE
ENRD
WEDNESDAY, OCTOBER 6, 2004
(202) 514-2008
WWW.USDOJ.GOV
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
111 © 2004 Kirkpatrick & Lockhart LLP
Strict Liability

Responsibility vs status

Vicarious liability

Joint and Several Liability
112 © 2004 Kirkpatrick & Lockhart LLP
Civil Penalty Factors

History of violations

Ability to stay in business

Economic benefit

Gravity

Good faith efforts to comply
113 © 2004 Kirkpatrick & Lockhart LLP
Allegheny Ludlum v. United States
No. 02-4346 (3rd Cir. 2003)

$12 million dollar civil
penalty vacated –economic
benefit
114 © 2004 Kirkpatrick & Lockhart LLP
Allegheny Ludlum v. United States
No. 02-4346 (3rd Cir. 2003)

Interest rate

Invalid test defense

30 day violation presumption
115 © 2004 Kirkpatrick & Lockhart LLP
Numquam debes
purgamentum dare rustico
cui nomen Bubbarum et qui
carrum utilem invehit.
116 © 2004 Kirkpatrick & Lockhart LLP
Never give your waste to a man
named Bubba driving a pick-up truck.
117 © 2004 Kirkpatrick & Lockhart LLP