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Environmental Violations, when do they become possible "Environmental Crimes"?
The Federal Government (primarily through the Environmental Protection Agency (EPA)) and through their arrangements with State environmental agencies (in Iowa the Department of Natural Resources or DNR) are primarily involved in enforcing compliance with environmental laws. Normally such enforcement is obtained by civil fines and compliance orders but to an increasing degree businesses of all kind (and particularly agricultural here in Iowa) are finding that the Federal Agencies are considering criminal prosecutions of either or both the business itself as well as some of the key individuals.
Starting in 2005 the Department of Justice, along with OSHA and EPA announced a joint project where EPA prosecutions would be recommended where, for example, OSHA requirements under the Resource Conservation and Recovery Act (RCRA) for safe storage and handling of hazardous waste are violated thereby placing workers at "risk" of serious bodily injury (violation of the RCRA can result in a fine of $250,000 and up to 15 years in jail for an individual or $1,000,000 for a business organization for a violation). Normally violations of OSHA provisions themselves can only result in misdemeanor charges, but by combing them with RCRA and/or EPA violations, potential fines and jail terms can become overwhelming.
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In the Midwest prosecutions have been undertaken by the EPA (through local U.S. Attorney's offices) for things like improper disposal of asbestos, discharge of egg wash water, failure to contain cattle or hog manure and similar issues. Where once it was a highly unusual prosecution, it is now becoming common. Even successful defenses of environmental charges are typically expensive, accompanied by adverse publicity with substantial fines and/or forfeitures aggressively sought by the Government.
While there are a number of charges that can be brought in environmental areas for things like a false statement to an investigator (you do not have to be under oath to be guilty if the response to a question in the course of an investigation is false); false entries into logs related to discharges or monitoring water quality for discharges, and then discharges into the air or "water of the United States" (a technical reference as to water that is close to so called navigable waters so as to subject the company to EPA jurisdiction in a criminal case).Further, "pollution" for purposes of civil and criminal liability under the Clean Water Act is not defined as expected. Adding dirt or changing the water temperature or changing the chemical make-up of the water can all be pollution as can the release of any hazardous or toxic material or chemical to the water.
Criminal environmental violations cover a wide range of conduct that does not have to be knowing or intentional. Persons are criminally responsible for negligent conduct that results in pollution. The issue normally is whether the person accused of the crime acted with the decree of care that a reasonably prudent person would have exercised under the circumstances. This standard has been met by the government and resulted in criminal convictions for investors who failed to provide sufficient funds to ensure that pollutants would be contained by the company invested in, for managers of companies who failed to adequately supervise personnel involved in containing pollutants and for contractors allowing silt to improperly run off a construction site. Further, and even more far reaching, any "responsible corporate officer" is criminally liable for discharges of pollution into waters of the United States. Any officer of the company who, by reason of his or her position has the responsibility and authority to prevent or control the problem that resulted in the pollution can be found criminally responsible. The corporate officer does not have to actually be informed of or involved in the situation that results in the pollution, the officer just has to have authority over the people or operations which resulted in the pollution.
Any situation that results in any air or water pollution must be taken very seriously. All information provided to state and federal regulators investigating the situation must be scrutinized to ensure it is 100% accurate. The factual situation, the consequences of the pollution and the background of the company must be reviewed to assess the risk of criminal prosecution. Only after that risk assessment has occurred can decisions be made as to how to deal with the regulatory officials investigating the incident.
Have Questions? Call us at (515) 246-5884