950R05006
U. S. Environmental Protection Agency
Sponsored by
Office of Criminal Enforcement, Forensics and Training
and
U. S. EPA - Region IV
ENVIRONMENTAL
A WARENESS
TRAINING PROGRAM
November 30, 2005
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Environmental Crimes Enforcement Training
Region IV and the Criminal Investigation Division
November 30,2005
NOTEBOOK CONTENTS
Agenda
Tab 1. CID Phone Contact List
OCEFT Investigative Discretion Guidance
Region IV Criminal Referral Guidance
CID Atlanta Civil Referral Guidance
EPA Parallel Proceedings Policy
Tab 2. RCRA / CERCLA
Tab 3. TSCA / FIFRA
Tab 4. Water Pollution Statutes
Tab 5. CAA
Tab 6. EPCRA
Tab 7- Evidence Collection and Photography
Tab 8. Interviewing
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Environmental Crimes Enforcement Training
Region IV and the Criminal Investigation Division
November 30,2005
Meeting Location: Atlanta I August Rooms, 3rd Floor, Sam Nunn Federal
Building
AGENDA
8:00 a.m. Welcome and Introduction
Fred Bumside, Special Agent in Charge, Atlanta Area CID Office
Ricky Langlois, Special Agent in Charge, Jacksonville Area CID Office
Richard Glaze, Regional Criminal Enforcement Counsel
• What is an Environmental Crime?
• Case Selection, Referrals and Process
• Parallel Proceedings and Legal Issues
9:00 a.m. RCRA/CERCLA Fred Burnside
10:00 a.m. Break
10:15 a.m. TSCA / FIFRA - Special Agent Paul Bouffard and Fred Burnside
11:00 a.m. CWA- Ricky Langlois
• Direct Dishcarges
• Pretreatment Violations
• Tampering with Equipment or a Method
• Oil Pollution Act
• Ocean Dumping
12:00 p.m. Lunch
1:00 p.m. CAA - Paul Bouffard
2:00 p.m. Evidence Collection and Photography - Special Agent David Logue
2:45 p.m. Break
3:00 p.m. Interviewing Techniques - Special Agent James Pearsall
4:30 p.m. Adjourn
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U. S. Environmental Protection Agency
EPA Region IV
Criminal Investigation Division
61 Forsyth Street, Suite 16T90
Atlanta, Georgia 30303
Phone Contact List
Atlanta Area Regional SAC Office 404-562-9795
— SAC Fred Burnside 404-562-9809
— Assistant SAC Ivan Vikin 404-562-9815
— SA Chuck Carfagno -9824
— SA Frank Garcia -9818
— SA Robin Hedden -9822
— SA Kevin LaPointe -9821
— S A Jason Mann -9811
— Larry Lamberth -8590
— Admin. Specialist Lisa Wrenn -9805
- Nashville (TN) Resident Office 615-687-7065
— SAJohnAdcock 615-687-7065
— SA David Logue -7058
- Knoxville (TN) Resident Office 865-717-8815
SA Joe Cole 865-621-9643 (cell)
S A Jeff Crane -9622 (cell)
- Louisville (KY) Resident Office 502-582-5833
SA Libby Zuege 502-582-5833
— SA Dan Weese -5832
Charlotte (NC) Resident Office 704-344-6844
SA Tyler Amon 704-344-6843
- Columbia (SC) Resident Office 803-929-3023
SA Loxton Gumbs
803-929-3023
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Jacksonville (FL) Area Office
904-899-5201
- SAC Ricky Langlois
- SA Larry Sullivan
- SA Jim Mowatt
Tampa (FL) Resident Office
- SA Dan Green
- SA Paul Bouffard
Miami (FL) Resident Office
- Assistant SAC Alina Vazquez
- SA James Pearsall
- SA Ozzie Romero
- SA Jose Molina
- Admin. Specialist Susie Harvey
Jackson (MS) Resident Office
- SA David McLeod
904-899-5202
-5203
-5205
813-274-6202
813-274-6202
-6498
305-536-6700
305-536-6701
-6704
-6703
-6699
-6702
601-965-5555
601-965-5555
(September 29, 2005)
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yJ.'Ul-'2W4 s# II : 43 t-AA &U!» UL'tS 4UUS EFA-tIl> fltKlLA.M) Ku"
i^ijui/onr
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O-C. 20460
January 12, 1994
WiCf Of
ENFORC£MSN7
MEMORANDUM
SUBJECT: The Exercise of Investigative Discretion
FROM:
TO:
All EPA Employees Working in or in Support of the Criminal
Enforcement Program
[. Introduction
As EPA's criminal enforcement program enters its second dccadc and
embarks on a period of unprecedented growth, this guidance establishes the
principles that will guide the exercise of investigative discretion by EPA Special
Agents. This guidance combines articulations of Congressional intent underlying
the environmental criminal provisions with the Office of Criminal Enforcement's
(OCE) experience operating under EPA's existing criminal case-screening
criteria.1
In an effort to may'mirr. our limited criminal resources, this guidance sets
out the specific factors that distinguish cases meriting criminal investigation from
those more appropriately pursued under administrative or civiljudiciaJ
authorities.2
1 This gjldance incorporates by reference the policy document entitled Regional Enforcement
Management: Enhanced Regional Case Screening (December 3, 1990).
2 This memorandum is intended only «5 internal guidance to EPA. It is not Intended to, does not,
a ad may not be relied upon to, create a right or benefit, substantive or procedural, enforceable at law by a
party to litigation with the United States, nor does this guidance In acy way limit the lawful enforcement
prerogatives, including administrative or civil enforcement actions, of the Department of Justice and the
Environmental Protection Agency.
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03/0l/2004 MO.N 11:43 FAS 3*^3 326 -J0Q5 EPA-CID PORTLANP RO
4)002/007
Indeed, the Office of Criminal EntbrcexnentTias an obligation to the
American public, to our colleagues throughout EPA, lac regulated community,
Congress, and the media to instill confidence that EPA's criminal program has
the proper mechanisms in place to ensure the discriminate use of the powerful law
enforcement authority entrusted to us.
II. Legislative Tntent Regarding Case Selection
The criminal provisions of the environmental laws are the most powerful
enforcement tools available to EPA. Congressional intent underlying the
environmental criminal provisions is unequivocal: criminal enforcement authority
should target the most significant and egregious violators.
The Pollution Prosecution Act of 1990 recognized the importance of a
strong national environmental criminal.enforcement program and mandates
additional resources necessary for the criminal program to fulfill its statutory
mission. The sponsors of the Act recognized that EPA had long been in the
posture of reacting to serious violations only after harm was dene, primarily due
to limited resources. Senator Joseph I. Lieberman (Conn.), one ci the co-
sponsors of the Act, explained that as a result of limited resources, "... few cases
are the product of reasoned or targeted focus on suspected wrongdoing." He also
expressed his hope that with the Act's provision of additional Special Agents, "...
EPA would be able to bring cases that would have greater deterrent value than
these currently being brought."
Further illustrative of Congressional intent that the most serious of
violations should be addressed by criminal enforcement authority is the legislative
history concerning the enhanced criminal provisions of RCRA:
[The criminal provisions were] intended to prevent abuses of the permit
system by those who obtain and then knowingly disregard them. It [RCRA
sec. 3008(d)) is not aimed at punishing minor or technical variations from
permit regulations or conditions if the facility operator is acting responsibly.
The Department of Justice has exercised its prosecutorial discretion
responsibly under similar provisions in other statutes and the conferees
assume that, in light of the upgrading of the penalties from misdemeanor to
felony, similar care will be used in deciding when a particular permit ¦
violation may warrant criminal prosecution under this Act. H.R. Conf.
Rep. No. 1444, 9Sth Cong., 2d Sess. 37, reprinted in 1980 U.S. Code Cong.-
& Admin. News 5036.
2
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03 ¦'01/*1)04 VON 11:48 FAS 503 326 KVi-C. ID PC'RTLaNI) RO
21003 - 007
While EPA has doubled its Special Agent corps since passage of the
Pollution Prosecution Act, and has achieved a presence in nearly all federal
judicial districts, it is unlikely thai OCE will ever be laige enough in size to fully
defeat the ever-expanding universe of environmental crime. Rather. OCE must
maximize its presence and impact through discerning case-selection, and then
proceed with investigations that advance EPA's overall goal of regulatory
compliance ana punishing criminal wrongdoing.
III. Case Selection Process1
The case selection process is designed to identify misconduct worthy of
criminal investigation. The case selection process is not an effort to establish lega
sufficiency for prosecution. Rather, the process by which potential cases are
analyzed under the case selection criteria will serve as an affirmative indication
that OCE has purposefully directed Its investigative resources toward deserving
cases.
This is not to suggest that all cases meeting the case selection criteria will
proceed to prosecution. Indeed, the exercise of investigative discretion must be
clearly distinguished from the exercise of prosecutorial discretion. The
employment of OCE's investigative discretion to dedicate its investigative authority
Is, however, a critical precursor to the prosecutorial discretion later exercised by
the Department of Justice.4
At the conclusion of the case selection process, OCE should be able to
articulate the basis of its decision to pursue a criminal investigation, based on the
case selection criteria. Conversely, cases that do not ultimately meet the criteria
to proceed criminally, should be systematically referred back to the Agency's civil
enforcement office for appropriate administrative or civil judicial action, or to a
state or local prosecutor.
IV. Case Selection Criteria
The criminal case selection process will be guided by two general
measures - significant environmental harm sod culpable conduct.
3 The case selection process most not be confused with the Regional Case Screening Proceis. !>.«¦
velitlonship teweefc the Regional Case" Screening Process and case selecttot are discussed Curther j« "•>
below.
4 Exercise of ibis piosecutorial discretion la all criminal caies Is governed by the principles set u '•*
in the Department of Justice's Principles of Federal Prosecution.
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33--0I.-2004 MON 11:46 FA* 503 326 4003 EPA-CID PORTLAND RO
® y'34.- OC7
A- Significant Environmental Harm
The measure of significant environmental harm should be broadly
construed to Include the presence of actual harm, as well as the threat of
significant harm, to the environment or human health. The following factors serve
&i indicators that a potential case will meet the measure of significant
environmental harm.
Factor 1. Actual harm will be demonstrated by an illegal discharge, release
or emission that has an identifiable and significant harmful impact on human
health or the environment. This measure will generally be self-evident at the time
of case selectioa5
Factor 2. The threat of significant harm to the environment or human
health may be demonstrated by an actual or threatened discharge, release or
emission. This factor may not be as readily evident, and must be assessed in light
of all (he facts available at the time of case selection.
Factor 3. Failure ;o report an actual discharge, release or emission within
the context of Factors 1 or 2 will serve as an additional factor favoring criminal
investigation. While the failure tQ repon. alone, may be a criminal violation, our
investigative resources should generally be targeted tcward those eases in which
the failure to report is coupled with actual or threatened environmental harm.
Factor 4. When certain illegal conduct appears to represent a trend or
common attitude within the regulaied community, criminal investigation may
provide a significant deterrent effect incommensurate with its singular
environmental impact While the single violation being considered may have a
relatively insignificant impact on human health or the environment, such
violations, if multiplied by the numbers in a cross-section of the regulated
community, would result ir. significant environmental harm.
B. Culpable Conduct
The measure of culpable conduct is not necessarily an assessment of
criminal intent, particularly since criminal intent will not always be readily evident
at the time of case selection. Culpable conduct, however, may be indicated at the
time of case selection by several factors.
5 When this factor involves a fact situation in which the risk of harm is so great, so imoediiic j- :
irremediable, OCE wfU always cooperate sod coordinate with. EPA's civil enforcement authorities v • -
appropriate Injunctive or remedial action.
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03'01 200-1 MC'N 11:-IT F.AS 505 526 iOOS HPA-CIP PORTLAND Ri)
>£) 003 - 007
Factor 1. History of repeated violation
While a history of repeated violations Is not a prerequisite to a criminal
investigation, a potential target's compliance record should always be carefully
examined. When repeated enforcement activities or actions, whether by EPA, or
other federal, state and local enforcement authorities, have failed to bring a
violator into compliance, criminal investigation may be warranted. Clearly, a
history of repeated violations will enhance the government's capacity to prove
that a violator was aware of environmental regulatory requirements, had actual
notice of violations and then acted in deliberate disregard of those requirements.
Factor 2. Deliberate misconduct resulting in violation.
Although the environmental statutes do not require proof of specific intent,
evidence, either direct or circumstantial, that a violation was deliberate will be a
major factor indicating that criminal investigation is warranted.
Factor 3. Concealment of misconduct or falsification of required
records.
In the arena of self-reporting, EPA must be able to rely on data received
from the regulated comrrunity, ff submitted data are false, EPA is prevented
from effectively carrying out its mandate. Accordingly, conduct indicating the
falsification of data wiil always serve as the basis tor serious consideration to
proceed with a criminal investigation.
Factor 4. Tampering with monitoring or control equipment.
The overt act of tampering with monitoring or control equipment leads to
the certain production of false data that appears to be otherwise accurate. The
consequent submission of false data threatens the basic integrity of EPA's data
and, in turn, the scientific validity of EPA's regulatory decisions. Such an assault
on the regulator)' infrastructure calls for the enforcement leverage of criminal
investigation.
Factor 5. Business operation of poUutioo-related activities without a
permit, license, manifest or other required documentation.
Many of the laws and regulations within EPA's jurisdiction fOvus on
inherently dangerous and strictly regulated business operations. EPA's criminal
enforcement resources should clearly pursue those violators who choose to ignore
environmental regulatory requirements altogether and operate completely outside
of EPA's regulatory scheme.
5
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U3 -01 L-O.M MON 11: IT t.\X ^20 4008 EPA-CU" PORTLAND RO
41OQV • UU7
V. Additional Considerations when Investigating Corporations
While the factors under measures IV. A and B, above, apply equally to
both individual and corporate taigets, several additional considerations should be
iaken into account when the potential target is a corporation.
In a criminal environmental investigation, OCE should always investigate
individual employees and their corporate6 employers who may be culpable, a
corporation is, by law, responsible for the criminal act of its officers and
employees who act within the scope of their employment and in furtherance of the
purposes of the corporation. Whether the corporate officer or employee
personally commits the act, or directs, aids, or counsels other employees to do sc
is inconsequential to the issue of corporate culpability.
Corporate culpability may also be indicated when a company performs an
environmental compliance or management audit, and then knowingly fails to
promptly remedy the noncompliance and correct any harm done.7 On the other
hand, EPA policy strongly encourages self-monitoring, self-disclosure, and self-
correction.8 When self-auditing has been conducted (followed up by prompt
remediation of the noncompliance and any resulting harm) and full, complete
disclosure has occurred, the company's constructive activities should be considered
as mitigating factors in EPA's exercise of investigative discretion. Therefore^ a
violation that is voluntarily revealed and fully and promptly remedied as part of a
corporation's systematic and comprehensive self-evaluation program generally will
not be a candidate for the expenditure of scarce criminal investigative resources.
VI. Other Case Selection Considerations
EPA has a full range of enforcement tools available - administrative, civil-
judicial, and criminal There is universal consensus that less flagrant violations
with lesser environmental consequences' should be addressed through
administrative or civil monetary penalties and remedial orders, while the most
serious environmental violations ought to be investigated criminally. The
challenge in practice is to correctly distinguish the latter cases from the former.
6 The tem "corporate" or "corporation", as used in this guidance, describes Eny btulness eraity,
whether Legally- inccrpfcraied or not
7Iji cases or seir-aadfiing 8td/br voluntary disclosure, the ererdse of prosecutorial dlscrsticn L=
addressed In ihc Department of Justice policy document entitled 'Factors in Decisions on Criminal
Prosecutions tor Environmental Violations la the Context of Significant Voluntary Compliance cr
Disclosure Efforts by the Violator" (July 1,1991).
® See EPA's policy on eAvironmetvtal audits, published *i 51 Fed. Re?. 25004 (July 9, 1986)
$
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il3/C-2 •* 2UU4 HON 1t-AA 5UU JIT# 4UV3 tKA-CiL> KUX1J-AM) XU
«1 UU7 - UU<
The case-selection factors described in this guidance should provide the
foundation for the communication process thai necessarily follows in the Regional
Case Screening Process. This guidance envisions application of the case-selection
factors first, to be followed by the recurring scrutiny o£ cases during the Regional
Case Screening process.
The fundamental purpose of Regional Case Screening is to consider
criminal enforcement in the greater context of all available EPA enforcement and
environmental response options, to do so early (at the time of each case opening^
before extensive resources have been expended, and to identify, prioritize, and
target the most egregious cases. Regional Case Screening is designed to be an
ongoing process in which enforcement cases are periodically reviewed to assess
not only the evidentiary developments, but should also evaluate the clarity of the
legal and regulator)' authorities upon which a given case is being developed.9
Ir. order to achieve the objectives of case screening, all cases originating
within the OCE must be presented fully and fairly to the appropriate Regional
program managers. Thorough analysis of a case using the case-selection factors
will prepare OCE for a well-reasoned presentation in the Regional Case Screening
process. Faithful adherence to the OCE case-selection process and active
participation jr. the Regional Case Screening Process will serve to eliminate
potential disparities between Agency program goals and priorities and OCE's
undertaking of criminal investigations.
full and effective implementation of these processes will achieve two
important results:. it will ensure that OCE's investigative resources are being
directed properly and expended efficiently, and it will foreclose assertions that
EPA's criminal program Is imposing its powerful sanctions indiscriminately.
VII. Conclusion
The manner in which we govern ourselves in the use of EPA's most
powerful enforcement tool is critical to the effective and reliable performance of
our responsibilities, and will shape the reputation of this program for years to
coine. We must conduct ourselves i^ keeping with these principles which ensure
the prudent and proper execution of the powerful lasv enforcement authorities
entrusted to us.
' The legal structure upon which a criminal cue is buUt • e.g., statutory, regulatory, ease law,
preamble language and interpretative letters . must also be analyzed in terms ol Agency enforcement
practice under these authorities. Thorough discussion of this issue is beyond the scope of this document,
but generally, when the darity of the underlying legal authority is is dispute, the more appropriate vehicle
for resolution lies, most oOen, Ir s eivU or administrative setting.
1
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' *1 PftO1'1'
UNITED STAtsS £>iV
JAN 1 3 2005
MEMORANDUM
SUBJECT:
Documentation of.Referrals from Civil Programs to Criminal
Investigation Division
TO:
FROM:
Region 4 Office and Division Directors
The purpose of this memorandum is to reestablish procedures for documenting the
referral of matters from Region 4 civil programs to the Criminal Investigation Division ("CED").
This procedure is being implemented to ensure that the appropriate factors are considered when
cases are referred to CED.
Documentation of the referral should be by a memorandum from the Division Director of
the program referring the matter to the CID Regional Special Agent-in-Charge iocaied in the
Atlanta Area Office. The memorandum should briefly describe the facts of the case and the
status of any civil investigation or enforcement action, and should denote the factors which were
considered in determining that the case may be appropriate for criminal investigation and
prosecution. The memorandum should also describe how criminal enforcement supports the
regional program, a state program, or a regional or national enforcement priority. Factors to be
considered in deciding whether a case merits criminal investigation include:
1) a history of repeated violations;
2 ) knowing or willful misconduct on the part of the regulated entity;
3) concealment or falsification of relevant information;
4) tampering with monitoring or control equipment;
5) operating without a permit, license, manifest, or other required documentation;
6) actual discharges, releases or emissions or other factors causing potential or actual
harm to human health or the environment; and
7) harm, threats of harm, or attempts to bribe EPA personnel or contractors.
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The memorandum may also address whether the case may be an appropriate candidate for
parallel proceedings. The following criteria should be used to determine appropriateness for
parallel proceedings:
1) whether there is a need for injunctive relief, such as when the violation is ongoing and
continues to cause contamination;
2) the possible expiration of the statute of limitations; and
3) whether the case involves a regional or national priority.
It is anticipated that preliminary consultation among civil program staff, CID personnel
and Regional Criminal Enforcement Counsel, either on a case-by-case basis or as part of regular
case screening process, will be undertaken to assess the appropriateness of pursuing a case as a
criminal matter.
A procedure for CID to refer cases to the civil programs is oemg developed and will be
disseminated in the near future.
The attached format should be used to document the referral of a case to CID.
Attachment
cc: Fred Bumside, Special Agent in Charge, Atlanta Area Office
CASC
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MEMORANDUM
SUBJECT: Referral of Matter for Possible Criminal Investigation
FROM: [Name of Division Director]
TO: Fred Bumside, Regional Special Agent-in-Charge
Criminal Investigation Division
Atlanta Area Office
The purpose of this memorandum is to refer, for your consideration, the following matter
for possible criminal investigation.
Background
[Provide a short description of the background of the matter. Be as precise as possible
as to why the matter may involve a criminal violation and how it supports the regional or
national enforcement program or priority. The following matters should be addressed, if
applicable:
1. Whether an entity has a history of repeated violations;
2. Whether the entity has engaged in knowing or willful misconduct;
3. Whether the entity concealed or falsified relevant information;
4. Whether the entity tampered with monitoring or control equipment;
5. Whether the entity operated without a current permit, license, manifest, or other
required documentation;
6. Whether the entity caused actual discharges, releases or emissions or other factors
causing potential or actual harm to human health or the environment;
7. Whether sampling and analysis or other services have been provided by SESD and
whether SESD provided a report of the results;
8. The source of the referre:d matter;
9. Whether witness statements were taken that may be provided with the referral; and
10. Whether EPA personnel have been harmed threatened with harm, or offered a
bribe.]
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Potential for Parallel Proceedings
[State whether the case is appropriate for parallel proceedings. Criteria which may
indicate the need for parallel proceedings include:
J. Ongoing violation with continuing contamination or other needfor injunctive relief;
2. Possible expiration of statute of limitations;
3. Involvement of regional or national priority.]
cc: Mary Kay Lynch, Regional Counsel
Bill Anderson, Deputy Regional Counsel
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| tgjg? 8 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
CRIMINAL INVESTIGATION DIVISION
prcrt4- Atlanta Area Office
61 Forsyth Street
Atlanta, Georgia 30303
October 27,2005
MEMORANDUM
SUBJECT: Referrals to the Region IV Civil Program
FROM: Fred L. Btu-ns#
Special Afent in Chaise
TO: Atlanta Area Office Staff
Enforcement related information is routinely processed through the Atlanta Area
Criminal Investigation Division (CID) Office. This information is evaluated in relation to
environmental criminal laws and regulations, national and regional strategic enforcement
priorities, and the OCEFT Policy on Investigative Discretion. CID will take action on all
information received including opening criminal cases, referring criminal violations to state or
local law enforcement agencies, referring information for civil or administrative enforcement,
referring information for remedial action, or documenting the review in the office administrative
files. The purpose of this memorandum is to outline procedures for the referral of enforcement
related information to EPA Region IV and to state and local regulatory partners.
When enforcement related information is received in the Atlanta Area CID Office a
"Lead Sheet" will be prepared electronically and forwarded to the Special Agent in Charge
(SAC) or Assistant SAC (ASAC) for review. After reviewing the Lead Sheet, the SAC or ASAC
will determine if the lead should be referred to (1) the appropriate EPA Region IV Division only
or (2) to EPA Region IV and to a state or local regulatory agency. In cases where the
information does not relate to an environmental violation or regulatory issue the Lead Sheet will
be placed in the Atlanta Area Office administrative files without referral to Region IV. In all
cases where there is an environmental regulatory or enforcement issue the lead will be referred to
the appropriate Regional Division.
Situations where the case would be referred to another regulatory agency simultaneously
include instances where assistance is needed in furtherance of the criminal investigation or where
an emergency response may be necessary. If there appears to be ongoing harm, or the
potential for harm, to human health or the natural environment the agent should
immediately refer the lead to EPA Region IV and to local or state environmental regulatory
agency for remedial action if appropriate. In this case a referral will be sent to the EPA
Regional Division office as soon as possible.
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When a determination is made that a lead should be referred to Region IV, the SAC or
ASAC will prepare a written referral memorandum addressed to the Division Director for the
associated regulatory program. This memorandum will include a summary of the lead
information, contact name and phone number for the CID Special Agent assigned to the case, a
description of CID involvement and a notice if the lead has also been referred to a state or local
environmental regulatory agency. The referral package will be sent to the Division Director and
a copy will be provided to the appropriate Branch Chief(s) and the Regional Criminal
Enforcement Counsel (RCEC).
Referrals from CID to Region IV will be entered into a database and the status of
referrals will be tracked through time to document regulatory actions that result from these
referrals. The primary forum for these status updates will be through the regularly scheduled
case screening meetings between CID and program offices in Region IV and with interactions
with state and local agencies.
Exceptions to this procedure will be rare but will include situations where secrecy is
required in order to conduct a criminal investigation. In those instances appropriate contacts will
be made with Region IV personnel, including the RCEC, in lieu of the written referral. A written
referral will follow at a later time when the CID criminal investigation will not be jeopardized.
Another exception relates to information received through the federal grand jury process or
information protected by the Privacy Act. In all cases, if the special agent has reason to believe
that there is harm, or the potential for harm, to human health or the environment an immediate
notification to EPA Region IV and state and local regulatory agencies if necessary will be miade
regardless of the status of the criminal investigation.
Cc: Stan Meiburg, Deputy Regional Administrator
Mary Kay Lynch, Regional Counsel
Jim Giattina, Division Director, Water Management Division, Region IV
Beverly Banister, Director, Air, Pesticides and Toxic Management Division, Region IV
Alan Farmer, Acting Director, Waste Management Division, Region IV
Russel Wright, Director, Policy and Management Division
Mike Peyton, Director, Science and Ecosystem Support Division, Region IV
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WHEN CIVIL AND CRIMINAL MEET:
PRACTICAL ANSWERS TO COMMON QUESTIONS
INTRODUCTION
Vigorous, comprehensive enforcement of the environmental laws requires EPA to obtain the relief
appropriate to each violation, utilizing the full range of its enforcement authorities. This effort
depends upon effective communication and coordination between EPA's civil and criminal
enforcement programs. Unfortunately, we have found that there are often obstacles to both
communication and coordination due to uncertainties about the possible legal and policy barriers
to sharing and using shared information.
This guide is intended to address that issue by providing basic answers to some of the questions
most commonly asked when the civil and criminal programs intersect. It is only an introduction
to the subject, highlighting underlying principles to follow in case development and litigation.
Because most issues that arise will involve case-specific complications, there may not be a quick
and simple answer in every situation, and there may be exceptions to the advice offered here.
This guide is not a substitute for more detailed, specific legal advice. If in doubt on any issue,
check with your appropriate program counsel.1
SHARING INFORMATION
Which program is responsible for sharing information?
Sharing information is critical, regardless of program. All EPA civil program employees should
be alert to the need to share information about potential criminal violations with EPA's criminal
program. The criminal program, in turn, should notify the appropriate federal or state authorities
where there are instances of ongoing releases of pollutants or other violations which may affect
public health or the environment, and where immediate remedial relief is otherwise necessary. In
addition, the criminal program should refer to civil enforcement for its consideration those matters
in which a criminal investigation has uncovered evidence of a potential environmental violation,
but it is ultimately determined that criminal charges will not be brought. Additional situations in
which information should be shared are discussed below.
1 Please recognize that this document is only intended to. give informal advice to EPA
employees. The general discussion provided here is not a definitive analysis of either law or
policy and may not apply to a particular situation, based upon the circumstances. It does not
change or substitute for any statutory provisions, regulations or EPA policy or guidance, nor does
it in any way limit the lawful prerogatives of EPA or the Department of Justice.
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Can the Criminal Investigation Division (CID) share information with civil enforcement
personnel about criminal investigations?
Yes. As a routine matter, each Special Agent in Charge (SAC) of each CID office should provide
information about all proposed and pending criminal investigations from that office to appropriate
EPA civil enforcement personnel. (Obviously, CID may also share information about closed
criminal cases where relevant to civil enforcement activities.)
This includes, but is not necessarily limited to, information sufficient to allow recipients (1) to
assess the need for a parallel civil proceeding (simultaneously or subsequent to conclusion of the
criminal case), (2) to participate in the determination of whether administrative, civil judicial, or
criminal enforcement is most appropriate, and/or whether state enforcement is most appropriate,
(3) to advise the SAC on the extent to which the proposed criminal case reflects program
priorities and may warrant resource commitments from civil enforcement and other EPA program
personnel, and (4) to provide assistance in developing innovative sentencing recommendations
that will further program goals.
This information should be provided to managerial decision-makers in the civil enforcement
program within the Region (and/or at Headquarters, in matters otherwise involving HQ
participation), under procedures agreed upon between the SAC and the appropriate civil
enforcement personnel. Information may be shared by recipients with other members of their
organizations, but only when done so in a manner that ensures it will not be misused and that the
information will not be released outside of their offices, until the SAC has advised them that the
criminal investigation is complete and the material is no longer sensitive.
The SAC should provide all criminal investigation information that the civil enforcement
personnel need, with the following limitations:
• Once a grand jury has been convened, information may not be shared unless the
information is part of the pre-grand jury record and that fact is documented, or
unless the prosecutor confirms that the information, if shared, will not reveal
matters occurring before the grand jury in violation of Rule 6(e) as it has been
interpreted by courts.
• Prior to disclosure, the SAC, in consultation with the prosecutor and the Regional
Criminal Enforcement Counsel (RCEC), must be satisfied that sufficient
safeguards are in place to protect information which, if released, could 1) pose a
concern about the safety or privacy of law enforcement personnel or witnesses
(including the identity of confidential informants), or 2) prematurely divulge the
existence of the criminal investigation.2
2 When parallel civil actions are filed, defendants gain a legal right to discover relevant
information in the government's possession, often including information in the criminal case file.
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• In the case of a criminal investigation being jointly pursued with another law
enforcement agency, the SAC will not release information from the other law
enforcement agency unless that agency authorizes its release.
• While the information in CID case files should be shared with civil enforcement
personnel as set out above, the investigative records themselves (such as reports of
interview and other documents), generated by CID in the course of a criminal
investigation, normally will not be copied and disseminated to civil personnel
except to the extent that they are releasable pursuant to a Freedom of Information
Act (FOIA) request (e.g., only if redacted pursuant to applicable FOIA exemptions,
and only if the case is concluded).
• Information which is confidential business information, or classified, must be
handled in accordance with applicable EPA regulations.
Can the criminal program use information which has already been gathered by the civil
program through inspections or information gathering requests?
Yes; however, if the information is confidential business information (CBI), the criminal
program's use and maintenance of the information must comply with the Agency's regulations
governing CBI.
Can a criminal investigator accompany an inspector on a consensual inspection?
It is not illegal to do so, but for tactical and practical reasons it is not often done. When it is
determined to be appropriate for criminal investigators to accompany inspectors on consensual
inspections, each program must follow its own procedures applicable to consensual entry (e.g.,
identification procedures). Furthermore, criminal investigators must have the explicit approval of
their SACs prior to accompanying inspectors. When entry is not on consent, criminal
investigators must comply with CID guidelines and legal procedures regarding service of
administrative warrants, and other participation in inspections pursuant to administrative warrants.
Can the government use civil discovery for other purposes?
Discovery related to civil litigation should be undertaken only when justified by genuine civil case
purposes. However, any information obtained as the result of legitimate civil discovery may be
freely shared with criminal enforcement personnel who have an interest in the matter.
This is why, in routine cases in which immediate injunctive relief is not necessary, the need to
maintain confidentiality of criminal files (among other considerations) may result in a decision
by EPA, pursuant to the Parallel Proceedings Policy, to delay filing any civil action until the
conclusion of the criminal case.
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FREEDOM OF INFORMATION ACT and CIVIL DISCOVERY REQUESTS
Can the government withhold criminal investigative records when they are responsive to civil
discovery requests?
Although the government can assert a "law enforcement privilege" (analogous to the law
enforcement exception to mandatory disclosure under FOIA), it is not an absolute privilege, and
the judge in a civil case has broad discretion to order discovery as justice may require. The need
to protect criminal investigative records from premature disclosure should be considered prior to
commencement of any parallel civil action.
What about disclosure of information under the Freedom of Information Act?
Although FOIA allows the government to withhold certain information about both civil and
criminal enforcement cases, disclosure is generally more restricted in the context of criminal
cases, both to protect the investigation and to protect personal privacy. Whenever there is or has
been a criminal investigation pertaining to a person or a matter, civil enforcement and other EPA
program personnel responding to a FOIA request must take care to ensure that information is not
disclosed that should be withheld, and that the criminal program is given the opportunity to
determine what, if any, information pertaining to the criminal case will be disclosed. For
example, if the request is for criminal records, in some cases EPA may respond that it can neither
confirm nor deny whether responsive records exist.
Can an individual "take the Fifth " and refuse to answer questions in response to regulatory
information gathering requests, or civil discovery requests?
Yes. The Constitutional prohibition on compelling self-incrimination can apply in the civil
context. (Note that Fifth Amendment claims can only be raised by an individual, not by a
corporation; therefore, a corporation must respond to an information request, even if individuals
within the corporation claim the privilege and refuse to respond in their individual capacities.)
Should inspectors inform a person of "Miranda rights" when they ask questions and they know
the answers may be used to support a criminal case?
No. Informing persons of their Constitutional right to remain silent, the right to ah attorney, and
that any information can be used against them in a criminal prosecution, etc., is only required
when the person is in custody. Because inspectors do not place anyone under arrest (and do not
have the authority to do so), it is not appropriate for inspectors to inform anyone of these rights or
of potential consequences.
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GRAND JURY
What are the limits on using and disclosing information related to grand jury investigations?
Federal Rule of Criminal Procedure 6(e) permits the disclosure of information related to a grand
jury investigation only to government personnel (such as CID investigators) designated, in
writing, by the prosecutor as being necessary to assist in performing the prosecutor's duty to
enforce federal criminal law. The person to whom such information is disclosed may use that
information only to assist the prosecutor, and must not disclose the grand jury information to any
person who is not authorized to receive it, nor can such information be used outside of the
criminal investigation without permission from the court.
Rule 6(e) also provides that the court may authorize disclosure of grand jury information
preliminarily to, or in connection with, a judicial proceeding. Under this provision, in some
circumstances, EPA can obtain grand jury information for use in a civil action, if approved by the
court upon a motion filed by the prosecutor.
DOUBLE JEOPARDY
Do related civil and criminal proceedings raise double jeopardy problems?
No. The United States Supreme Court has specifically held that double jeopardy only bars a
second criminal prosecution of the same person for the same act. Hudson v. United States. 522
U.S. 93 (1997). EPA's 1994 Parallel Proceedings Policy is outdated on this issue.
SETTLEMENTS and PLEA AGREEMENTS
Can a civil settlement address criminal liability?
No. EPA will not grant a waiver or discharge of criminal liability in a civil settlement.
Can a criminal plea agreement address civil liability?
No. EPA will not agree to the waiver or discharge of civil liability in a criminal plea agreement.
If a defendant requests, and EPA agrees, to resolve its civil liability concurrently with the
resolution of the criminal claims, a separate civil settlement must be memorialized in either an
administrative or judicial civil settlement document. This is consistent with Department of
Justice (DOJ) policy which prohibits prosecutors from using criminal plea agreements to address
civil liability.
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What are "global" settlements and when are they warranted?
"Global" settlements in the parallel proceedings context refers to settlements where civil liability
that is related to an environmental criminal case is resolved in a civil settlement concurrently with
the disposition of the criminal case.
Global settlements are rare and only warranted when EPA determines that settlement of civil
liability related to a pending criminal prosecution is appropriate, and that the negotiations to reach
the settlement will not unduly delay or interfere with the pending criminal action. Under its
Global Settlement Policy, DOJ will only consider such a settlement if it is requested by the
defendant.
Can criminal sentences (by agreement or imposed by a court after a contested sentencing)
order remedial or other similar relief of the type that could be obtained in a civil action?
Yes, to some extent. Although it is not appropriate to address civil liability in a criminal plea
agreement, it is sometimes appropriate for a criminal sentence (whether by agreement or
otherwise) to include provisions of a type that could be obtained by a civil action. Sentencing
provisions of this type are contemplated by the Sentencing Guidelines as inherent in the court's
restitution and probationary powers; they include actions that come under the rubric of
"community service" aimed at repairing the harm caused by the offense. In addition, DOJ policy
contemplates circumstances in which alternative sentences (akin to EPA's "supplemental
environmental projects") may be appropriate. See, Sentencing Guidelines in Environmental
Prosecutions, Including the Use of Supplemental Sentencing Measures, Developed by the U.S.
Department of Justice, Environmental and Natural Resources Division, Environmental Crimes
Section in Consultation with the Environmental Crimes Policy Committee (December 2000).
ROLE of the EPA EMPLOYEE
Can an EPA employee provide technical support or serve as an expert, consultant or witness,
in both the civil and the criminal cases concurrently?
EPA personnel assigned to work on civil investigations and cases may freely share information
with the EPA criminal program. However, if EPA technical personnel review grand jury
information (having been put by the prosecutor on the "6(e) list") or substantially participate in
prosecutorial strategy sessions, they should be assigned only to the criminal case.
POLICIES AFFECTING CIVIL/CRIMINAL INTERACTION
Does EPA have a policy on "parallel" civil and criminal proceedings?
Yes. See, Memorandum, Parallel Proceedings Policy, Steven A. Herman, Assistant
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Administrator, Office of Enforcement, June 22,1994 (copy attached). The policy broadly defines
"parallel proceedings" to include civil and criminal enforcement cases, at both the litigation and
investigation stages, which (1) arise out of the same set of general circumstances, (2) involve the
same or related parties, and (3) are ongoing at the same time or in close succession. The 1994
policy is outdated in at least one respect due to changes in the law (i.e., regarding Constitutional
double jeopardy concerns associated with sequential criminal and ci vil actions).
Does the Department of Justice have a parallel proceedings policy that affects EPA
enforcement actions?
Yes. See, Directive 99-21, Integrated Enforcement Policy, Lois J. Schiffer, Assistant Attorney
General, Environment and Natural Resources Division, April 20, 1999 (copy attached). This
policy is more detailed and prescriptive than EPA's, and is in some respects more restrictive than
what would be required by law; nevertheless, it represents prudent policy choices aimed at
avoiding unnecessary litigation.
Does EPA have a policy on investigative discretion in the criminal program?
Yes. See, Memorandum, The Exercise of Investigative Discretion, Earl E. Devaney, Director,
Office of Criminal Enforcement, January 12,1994 (copy attached). This policy describes the type
of harm and culpable conduct that will warrant criminal investigation.
Does EPA have a policy on global settlements?
Yes. See, Memorandum, Coordinated Settlement of Parallel Proceedings: Interim Policy and
Procedures, Steven A. Herman, Assistant Administrator, Office of Enforcement and Compliance
Assurance, June 9,1997 (copy attached).
Does the Department of Justice have a global settlement policy that affects EPA enforcement
interests?
Yes. See, Directive 99-20, Global Settlement Policy, Lois J. Schiffer, Assistant Attorney General,
Environment and Natural Resources Division, April 20, 1999 (copy attached).
Five Attachments
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EC-P-1998-084
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
ENFORCEMENT
MEMORANDUM
TO:
All Assistant Administrators
All Regional Administrators
All Regional Counsels
General Counsel
This is the Environmental Protection Agency's revised policy
cn initiating and maintaining parallel enforcement proceedings.1
Most statutes administered by EPA include both criminal and
civil enforcement authorities, as well as information gathering
and inspection provisions. The United States has multiple duties
and gocils in carrying out the mandates of federal environmental
laws, which often can be achieved most effectively through use of
several investigative and enforcement options. Thus, it is in
the public interest that EPA retain maximum flexibility in the
use of its options, consistent with all legal requirements.
xThe following policies are hereby superseded:
Memo, Revised EPA Guidance for Parallel Proceedings, from
Edward E. Reich, Acting Assistant Administrator, June 21; 1989?
Guidelines on Investigative Procedures for Parallel
Proceedings (attachment to 6/21/89 Memo), prepared by Paul R.
Thomson, Jr., Deputy Assistant Administrator for Criminal
Enforcement;
Memo, Procedures for Requesting and Obtaining Approval of
Parallel Proceedings, from Edward E. Reich, Acting Assistant
Administrator for Enforcement, June 15, 1989; and
Memo, Supplement to Parallel Proceedings Guidance and
Procedures for Requesting and Obtaining Approval of Parallel
Proceedings, from James M. StrocJc, Assistant Administrator for
Enforcement, July 18, 1990.
This policy applies in conjunction with other Agency
guidances, where applicable, such as those on case screening,
participation in grand jury investigations, and referrals.
RftcycJed/Recyelabto
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ICy oonWMMlHltSWiaacMltaf
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- 2 -
As used in this policy, the term "proceedings" includes
enforcement actions (both investigation and litigation stages) as
well as use of information gathering'and entry authorities.
"Parallel" means simultaneous or successive civil, administrative
and criminal proceedings, against the same or related parties,
dealing with the same or related course of conduct.
Principles
1. It sometimes is necessary, appropriate, and a reasonable use
of resources to bring a civil (administrative or judicial)
enforcement action at the same time as an existing or potential
criminal investigation or prosecution concerning the same or a
related matter. When, in the course of considering appropriate
enforcement options, EPA determines that injunctive relief is
necessary to obtain compliance with the law or to impose remedial
measures, the pendency of a criminal proceeding is not
necessarily a sufficient reason to fail to seek appropriate
relief.1
2. The government legitimately may seek civil penalties which
are punitive (i.e.. effect retribution or deterrence). On the
other hand, punitive civil penalties may have implications under
rhe Double Jeopardy Clause if they are assessed prior, or
subsequent, to a criminal prosecution of the same person for the
same violations. Although case law has established that civil
penalties which are significant in amount can be assessed without
implicating Double Jeopardy concerns, it is preferable to avoid
the assessment of federal civil penalties against persons who are
likely to be subject to subsequent federal criminal prosecution
for the same violations.
3. When an environmental criminal matter is investigated by a
grand jury, and EPA personnel obtain access to grand jury
information, EPA personnel must take care not to violate the
secrecy obligation imposed by law, or to use grand jury
information for improper purposes. Although the issue of grand
jury secrecy can arise in any criminal case, extra care should be
taken in the parallel proceedings context.
3In some cases, it may be appropriate to delay initiation of
a civil enforcement action, and/or to seek a remedial order as a
condition of probation, or as a condition of the plea agreement,
in.the criminal action. These decisions must be made on a case
by case basis, taking into account the complications which
inevitably arise in parallel proceedings (such as defense
attempts to use civil discovery to gain information about a
criminal investigation), as well as other case-specific
considerations (such as the need to prevent persons from learning
that th6y are targets of criminal investigation) and weighing
them against the need for the civil action.
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I
- 3 -
4. EPA's regulatory inspections (administrative searches) must
be objectively reasonable, and properly limited within ths scope
of the authorizing statute and warrant. As in every situation,
the government has a duty to act in good faith, and must ensure
that its use of administrative entry authorities is properly
within the mandates of the Fourth Amendment.
5. EPA's information-gathering authorities must be used in
accordance with the authorizing statutory provisions. There is
no general legal bar to using administrative mechanisms for
purposes of investigating suspected criminal matters, unless
otherwise specified in the authorizing statute. However, the
government must not intentionally mislead a person as to the
possibility of use in the criminal enforcement context of
information provided in response to such requests, in such a way
as to violate the Fifth Amendment Due Process Clause or the Self-
incrimination Privilege.
Procedures
i. The Regional Counsel and the Special Agent in Charge of the
Criminal Investigation Division must concur in the initiation (or
continuance) of a civil enforcement proceeding (administrative or
judicial), when a criminal proceeding is pending or contemplated
as to the same or a related matter.1 During the pendency of any
such civil action, the Regional Counsel and the SAC should
consult on a continuing basis, in order to avoid undue
duplication of effort and interference by one action with the
ether.4 As with other aspects of the case screening process,
the regions (and HQ offices, where applicable) have flexibility
in designing specific procedures to implement these requirements,
and issues may be brought to the attention of the Assistant
Administrator where agreement cannot be reached.
sIf the civil enforcement action contemplated is a judicial
(rather than an administrative) one, Agency referral policy
continues to require that the request for referral of a parallel
proceeding to the Department of Justice be routed through EPA-HQ,
for Assistant Administrator approval. In other words, the
"direct referral" policy does not apply to parallel proceedings.
Note also that DOJ policy affects the Agency's ability to pursue
a civil judicial action that is related to a pending criminal
investigation.
4When an EPA Headquarters office has the lead in an
enforcement matter, both the Enforcement Counsel who has the
civil case, and the Director of the Office of criminal
Enforcement (or delegate), must concur in the civil action.
These persons should consult on a continuing basis.
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4
2. When a parallel civil action is-brought, a claim for civil
penalties nay be filed, as necessary, to avoid claim-splitting or
statute-of-limitation problems. Normally, however, a civil
penalty claim should be stayed (not assessed or collected) as tc
a person who is a target of criminal investigation, until the
criminal proceeding is concluded as to that person.
3. In the parallel proceedings context, open communication
should be maintained between EPA personnel assigned to the civil-
enforcement or information-gathering matter and those assigned to
the criminal case, in a manner consistent with the legitimate
confidentiality and grand jury secrecy needs of the criminal
enforcement program.® However, information relating to matters
occurring before a grand jury should not be revealed without
prior consultation with the attorney for the government (usually
a Department of Justice attorney).
4. Prior to any use of EPA's statutory information-gathering or
entry authorities to gather evidence of suspected criminal
activity, the Regional Counsel (or the OCE Assistant Director for
Legal Affairs, for HQ cases) should be consulted, to ensure that
constitutional requirements are met.
Reservation of Rights
This policy provides internal Environmental Protection
Agency guidance. It is not intended to, and does not, create any
rights or privileges, substantive or procedural, which are
enforceable by any party. No limitations are hereby placed on
otherwise lawful prerogatives of the Environmental Protection
Agency.
cc: All Office of Enforcement and Compliance Assurance Personnel
sNote that it is good professional practice for enforcement
personnel to carefully document the sources of information
received and the persons with whom information is shared, whether
there is a parallel proceeding or not.
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Chapter 8
Resource Conservation and Recovery Act
(42 U.S.C. § 6901 et seq.)*
Table of Contents
Page
Preface 8-5
1. Overview of RCRA 8-5
A. General Structure: "Cradle to Grave" Management 8-6
1. Notification and Identification Numbers 8-7
2. The Manifest System 8-7
B. Summary of Criminal Provisions 8-8
2. Hazardous Waste Management System 8-9
A. Generators 8-9
1. Large Quantity Generators 8-10
2. Small Quantity Generators Of Between 100 And 1,000 Kilograms 8-12
3. Conditionally Exempt Small Quantity Generators 8-13
4. Generators of Acute Hazardous Wastes 8-14
5. Generators That Land Dispose or Export Wastes 8-14
B. Transporters 8-14
C. Treatment, Storage and Disposal Facilities 8-16
1. Permits and Interim Status 8-17
a. Interim Status Facilities 8-17
b. Permitted Facilities 8-18
2. General Requirements 8-18
3. Record-Keeping Requirements 8-19
4. Technical Standards 8-20
•Contributors: Deborah K. Woitte, former Senior Trial Attorney, James A. Morgulec, Senior Trial
Attorney, and John L. Smeltzer, Trial Attorney, Environmental Crimes Section.
ENVIRONMENTAL CRIMES MANUAL 8-1
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RESOURCE CONSERVATION AND RECOVERY ACT
D. Land Disposal Restrictions 8-21
E. Import and Export Requirements 8-23
1. Consent for Shipment 8-23
2. International Agreements 8-24
F. State Authorization 8-26
1. Revisions to the Federal Program Applicable to State Programs 8-27
2. Federal Enforcement Authority in Authorized States 8-28
3. Hazardous Waste Identification 8-29
A. Is it a Solid Waste?: Discarded Materials 8-30
1. Abandoned Materials 8-30
2. "Inherently Waste-Like" Materials 8-31
B. Is It a Solid Waste?: Discarded Materials that are Recycled 8-31
1. Secondary Materials That Are Solid Wastes When Recycled -
Generally , 8-33
2. Materials that are Not Solid Wastes When Recycled: "Direct
Use Exclusion" 8-35
C. Exclusions from the Definition of Solid Waste 8-35
D. Definition of Hazardous Waste 8-37
1. Characteristic Hazardous Wastes 8-38
a. Ignitability 8-38
b. Corrosivity 8-39
c. Reactivity 8-40
d. Toxicity 8-41
2. Listed Hazardous Wastes 8-42
a. Nonspecific Sources or "F" List 8-43
b. Specific Sources or "K" List 8-44
c. Commercial Chemical Products or "P" and "U" Lists 8-44
3. Mixture Rule, Derived-From Rule and Contained-ln Rule 8-46
4. Exclusions from the Definition of Hazardous Waste 8-48
E. Recyclable Materials 8-54
1. Recyclable Materials that are Exempt 8-55
7. Recyclable Materials Subject to Special Requirements 8-55
a. Used in a manner constituting disposal 8-56
b. Precious Metal Reclamation 8-56
c. Spent Lead-acid Batteries Being Reclaimed 8-56
d. Hazardous Waste Burned in Boilers and Industrial Furnaces 8-57
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8-2 ENVIRONMENTAL CRIMES MANUAL
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RESOURCE CONSERVATION AND RECOVERY ACT
4. Criminal Violations: Elements and Issues 8-57
A. Offenses Involving Transportation 8-58
1. Transportation to an Unpermitted Facility 8-58
2. Transportation without a Manifest 8-60
B. Offenses Involving Treatment, Storage, and Disposal 8-61
1. Treat, Store or Dispose Without a Permit 8-61
2. Treat, Store or Dispose In Violation of a Permit or Interim Status
Requirement 8-63
C. Offenses Involving Record Keeping 8-64
1. False Representations 8-64
2. Document Destruction and Failure to File 8-66
D. Offenses Involving Exports 8-66
E. Offenses Involving Knowing Endangerment 8-67
F. Specific Issues in RCRA Criminal Enforcement 8-69
1. Knowledge: General Intent Standard 8-70
2. Knowledge of Hazardous Waste 8-70
3. Knowledge and Permits 8-71
a. Knowledge and Treatment, Storage or Disposal Without a Permit ... 8-72
b. Knowledge and Treatment, Storage or Disposal in Violation
of a Permit or Interim Status Requirement 8-73
c. Knowledge and Transportation to an Unpermitted Facility 8-74
4. Proof of Hazardous Waste 8-75
5. Civil and Administrative Enforcement 8-76
A. Administrative and Civil Authority 8-76
B. Inspection Authority 8-77
6. Relationship of RCRA to Other Environmental Statutes 8-78
A. The Clean Water Act 8-78
B. Marine Protection, Research, and Sanctuaries Act (MPRSA) 8-80
C. The Clean Air Act 8-80
D. Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) 8-80
ENVIRONMENTAL CRIMES MANUAL 8-3
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RESOURCE CONSERVATION AND RECOVERY ACT
E. Toxic Substances Control Act (TSCA) 8-81
F. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) 8-81
G. Hazardous Materials Transportation Statute (HMTS) 8-82
7. Used Oil 8-82
A. Statutory and Regulatory History 8-82
B. Used Oil Management Standards 8-84
1. Definition of Used Oil 8-85
2. Used Oil Generators 8-87
3. Collection Centers and Aggregation Points 8-88
4. Used Oil Transporters and Transfer Facilities 8-89
5. Used Oil Processors and Re-Refiners 8-90
6. Burners and Marketers of Used Oil Fuel 8-91
a. "Off-Specification" Used Oil Fuel 8-92
b. Burners of Off-Specification Used Oil Fuel 8-92
c. Marketers of Used Oil Fuel 8-93
7. Rebuttable Presumption 8-94
8. Disposal 8-95
C. State Authorization 8-95
D. Criminal Offenses 8-97
1. Illegal Management of Used Oil 8-97
2. Offenses Involving Record Keeping ... 8-99
3. Knowing Endangerment 8-9S
4. Manifest and Permit Offenses 8-99
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RESOURCE CONSERVATION AND RECOVERY ACT
d. Hazardous Waste Burned in Boilers and Industrial Furnaces. Hazardous
wastes burned or processed in certain types of boilers and industrial furnaces (as
defined in 40 C.F.R. § 260.10) are subject to fairly detailed requirements in 40 C.F.R.
§§ 266.100 - 112. The term "burn" means burning for energy recovery or destruction,
or processing for materials recovery or as an ingredient. 40 C.F.R. § 266.100(a).
While the technical requirements are not as stringent as those for hazardous waste
incinerators (in 40 C.F.R. §§ 264.340 and 265.340), the general requirements.are
similar. The goal is to prevent the release of airborne toxins from the incomplete
combustion of hazardous materials. The regulations include standards to control
organics emissions, particulate matter and metals emissions. See 40 C.F.R. §§ 266.104
-108. Significantly, burners of hazardous waste in boilers and industrial furnaces are
subject to permit requirements. 40 C.F.R. § 266.102. The one exception to this
permit requirement is for "small quantity burners" of certain types of waste, when
control standards are met. 40 C.F.R. § 266.108. In addition, owners and operators of
smelting, melting and refining furnaces that process hazardous waste solely for metal
recovery are conditionally exempt from these requirements, provided they follow
specific record keeping and analytical requirements, as well as certain requirements for
residues from burning. See 40 C.F.R. § 266.100(c).
4. Criminal Violations: Elements and Issues
The RCRA criminal provisions for hazardous waste violations generally fall into five
categories:
• Offenses involving transportation of hazardous waste, 42 U.S.C. § 6928(d)(1) and
(d)(5);
• Offenses involving treatment, storage and disposal of hazardous waste, 42 U.S.C. §
6928(d)(2);
• Offenses involving record keeping, 42 U.S.C. § 6928(d)(3) and (4);
• Offenses involving unlawful export, 42 U.S.C. § 6928(d)(6); and
• Offenses involving knowing endangerment, 42 U.S.C. § 6928(e).
All RCRA offenses are "knowing" violations and are felonies; there are no negligent or
misdemeanor violations. Depending on the violation, penalties range from two to five years
imprisonment and fines of up to $50,000 for each day of violation (or the maximum fine under
the Alternative Fines Act, 18 U.S.C. § 3571.79) A second RCRA conviction doubles the
79 Under the Alternative Fines Act, for felonies, violators are subject to a fine of up to the greater of the
RCRA statutory maximum or $250,000 for individuals, and corporations are subject to a fine of up to $500,000
(the maximum for organizations violating the knowing endangerment provision under RCRA is $1 million). In
(continued...)
ENVIRONMENTAL CRIMES MANUAL 8-57
MARCH 1997
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RESOURCE CONSERVATION AND RECOVERY ACT
maximum punishment available. Further, a conviction for "knowing endangerment" subjects
an individual to fines of up to $250,000 and/or imprisonment for up to 15 years ($1,000,000
for an organization).
The following discussion (subsections A - E) sets forth the essential elements of the RCRA
offenses contained in 42 U.S.C. § 6928. Where an element relates to more than one offense it
is only addressed once. Subsection F then discusses certain issues that have arisen in RCRA
cases, particularly in the area of proving "knowing" violations. In addition, several of the
RCRA offenses cover the mismanagement of "used oil," as well as hazardous waste. The used
oil regulatory requirements and criminal prohibitions are discussed separately in Section 7,
below.80
A. Offenses Involving Transportation
RCRA contains two separate transportation offenses: (1) transportation of hazardous waste to
a facility that does not have a permit, and (2) transportation of hazardous waste without a
manifest. 42 U.S.C. §§ 6928(d)(1) and (d)(5), respectively.
1. Transportation to an Unpermitted Facility
Section 6928(d)(1) makes it a felony for any person to knowingly transport or cause to be
transported any hazardous waste to a facility that does not have a permit. Persons
convicted of this offense are subject to a term of imprisonment not to exceed five years,
and a fine under RCRA of up to $50,000 per day of violation.
To sustain a conviction under this criminal provision, the government must prove:
1. The defendant is a person who
2. Knowingly
3. Transported or caused to be transported
4. A hazardous waste
5. To a facility that did not have a permit under RCRA or the Marine Protection,
Research, and Sanctuaries Act (MPRSA).
(...continued)
the alternative, both individuals and corporations can be fined up to twice the gross pecuniary gain from the
offense or twice the gross pecuniary loss caused by the offense.
80
Criminal offenses involving used oil are at 42 U.S.C. § 6928(d)(7).
MARCH 1997
8-58 ENVIRONMENTAL CRIMES MANUAL
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RESOURCE CONSERVATION AND RECOVERY ACT
Person. The term "person" is broadly defined in the statute to include, among others,
individuals, corporations, partnerships, associations, municipalities, States, or any
department or agency of the United States. 42 U.S.C. § 6903(15). In 1992, as part of the
Federal Facilities Compliance Act, the term "person" was specifically expanded to include
"departments," "agencies," and "instrumentalities" of the United States. See 106 Stat.
1505. Even before this amendment, though, individuals working for federal agencies were
not immune from prosecution in their individual capacities. See United Stales v. Dee, 912
F.2d 741, 744 (4th Cir. 1990).
Transported. The term "transportation" is defined in the regulations to mean "movement
of hazardous waste by air, rail, highway, or water." 40 C.F.R § 260.10. Significantly,
this offense explicitly applies to persons who "transport" hazardous waste or "cause" the
transportation of hazardous waste. Thus, waste generators or others who make the
arrangements, but do not actually transport the hazardous waste, are subject to criminal
liability under this provision.
Hazardous Waste. The government must show that the waste material meets the definition
of a hazardous waste as set out in the regulations (i.e., it is a solid waste that is listed or
characterized as hazardous).
Facility That Does Not Have a Permit. Any person owning or operating a facility that
treats, stores or disposes of hazardous waste must have a permit or interim status under
RCRA. In addition, the Marine Protection, Research, and Sanctuaries Act ("MPRSA" or
"Ocean Dumping Act") authorizes EPA to issue permits for the ocean-disposal of wastes
generated by land-based facilities. 42 U.S.C. § 1412. The MPRSA permit program is
discussed in Chapter 9 of this manual.81
Accordingly, an unpermitted facility is a facility82 that does not have one of the following:
(1) a RCRA permit issued by EPA or an authorized state, (2) "interim status" (the legal
equivalent of a permit), or (3) for ocean disposal of hazardous waste generated on land, a
permit issued under MPRSA. Note that the permit must cover the particular waste in
question. In other words, transportation to a facility that has a permit is not enough; the
permit must specifically cover the type of hazardous waste in question, or the illegal
conduct is "without a permit." See United States v. MacDonald & Watson, 933 F.2d 35,
46-50 (1st Cir. 1991).
Knowingly. As discussed in Chapter 7 on Mental State, RCRA offenses are "general
intent" crimes; that is, the Government must show that the defendant knew of the conduct
81 EPA regulations also allow the transportation of certain recyclable hazardous wastes to recycling facilities
that do not have permits, but only if the facilities do not store the waste before recycling. 40 C.F.R. §
261.6(c)(2).
82 The term "facility" is defined by regulation to mean "all comiguuus land, and structures, other
appurtenances, and improvements on the land, used for treating, storing, or disposing of hazardous waste."
40 C.F.R. § 260.10.
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that constituted the violation and that the violative acts were not a result of accident or
mistake. Knowledge of specific regulatory requirements is not required, such as whether
the defendant knew that the waste material was a RCRA hazardous waste, as specifically
defined in the regulations. Courts have uniformly held that the government need only
show that the defendant knew that the waste material had the "potential to be harmful" to
others or to the environment and was not an innocuous substance like water.83
On the other hand, as to whether the government must show that the defendant knew that
the facility to which hazardous waste was transported did not have a permit is less clear.
Two circuit courts have required proof that the defendant knew the facility did not have a
permit. These courts have reasoned that absent this knowledge requirement, innocent
transporters who rely in good faith upon a facility's representation that it is permitted could
be punished. United States v. Speach, 968 F.2d 795, 797 (9th Cir. 1992); United States v.
Hayes International Corp., 786 F.2d 1499, 1504 (11th Cir. 1986).
See further discussion of RCRA knowledge issues in Subsection F, below (Specific Issues
in RCRA Criminal Enforcement).
2. Transportation without a Manifest
It is a crime under 42 U.S.C. § 6928(d)(5) to knowingly transport or cause to be
transported hazardous waste (or used oil) without a manifest, whenever a manifest is
required by the RCRA regulations. Persons convicted under this provision are subject to a
term of imprisonment not to exceed two years, and a fine of up to $50,000 for each day of
violation. The elements of this offense are:
1. Defendant is a person who
2. Knowingly
3. Transported or caused to be transported
4. A hazardous waste or used oil
5. Without a manifest where one is required by the regulations.
83 United States v. Goldsmith, 978 F.2d 643, 645 (11 Cir. 1992) (knowledge of waste material for a section
6928(d)(1) offense); See also. United States v. Hoflin, 880 F.2d 1033, 1039 (9th Cir. 1989), cert, denied, 493
U.S. 1083 (1990); United States v. Laughlin, 10 F.3d 961, 965 (2d Cir. 1993), cert, denied, — U.S. —, 114
S.Ct 1649 (1994); United States v. Self, 2 F.3d 1071, 1090 (10th Cir. 1993); United States v. Goldsmith, 978
F.2d 643 , 645 (11th Cir. 1992); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990), cert, denied, 499 U.S
919(1991).
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Manifest. As discussed in Sections 1 and 2, all off-site shipments of hazardous waste must
be accompanied by a manifest, unless an exemption applies. An example of such an
exemption is a generator of less than 100 kilograms per month of a non-acute hazardous
waste. Such a generator is not required by the RCRA regulations to prepare a manifest for
its wastes. See Section 2. A.3 on "conditionally-exempt small quantity generators."
Used Oil. Criminal offenses concerning used oil are addressed below in Section 7.
B. Offenses Involving Treatment, Storage, and Disposal
Offenses involving the treatment, storage of disposal of hazardous waste occur in one of the
following two situations: (1) Without a permit or (2) in violation of a material permit
condition or interim status requirement. 42 U.S.C. §6928(d)(2). Persons convicted of illegal
treatment, storage or disposal of hazardous waste face a maximum term of imprisonment of
five years, and a maximum fine of $50,000 for each day of violation.
The terms "treatment," "storage," and "disposal" describe distinct acts that may be separately
charged. For example, a person who unlawfully stores hazardous waste before unlawfully
disposing of the waste can be charged in separate counts for each act of storage or disposal.
1. Treat, Store or Dispose Without a Permit
Under 42 U.S.C. § 6928(d)(2)(A) the knowing treatment, storage, or disposal of a
hazardous waste without a RCRA permit (or interim status) or a MPRSA permit is
prohibited. In order to sustain a conviction under this provision, the Government must
prove the following:
1. The defendant is a person who
2. Knowingly
3. Treated, stored, or disposed of
4. A hazardous waste
5. Without a permit or interim status.
Person. As previously mentioned, the term "person" is broadly defined. One issue that
has arisen under this provision concerns the liability of persons who are not responsible for
obtaining permits. Since the requirement to obtain a permit falls on "owners or operators"
of TSD facilities, persons who do not fall squarely within the category of "owner or
operator" (particularly employees of "owners and operators") have argued that they cannot
face criminal liability. This argument has been rejected by several courts. These courts
have found that employees who knowingly treat, store, or dispose of hazardous waste
without a permit are "persons" subject to criminal liability, even though they may not be
the persons within an organization responsible for obtaining permits. See United States v.
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Dean, 969 F.2d 187, 192-93 (6th Cir. 1992), cert, denied 507 U.S. 1033 (1993); United
States v. Johnson & Towers, 741 F.2d 662, 665-66 (3rd Cir. 1984), cert, denied, 469 U.S.
1208 (1985).
Knowingly. In contrast to Section 6928(d)(1) relating to transportation to an unpermitted
facility, courts have generally agreed that in cases involving treatment, storage or disposal
without a permit, knowledge of a facility's permit status is not an element of the offense.84
See further discussion of the case decisions on RCRA knowledge issues below in
Subsection F.
Treatment, Storage or Disposal. As noted earlier in Section 2.C, treatment is any process
that changes the physical, chemical or biological character or composition of the hazardous
waste, so as to recover energy or material resources from the waste, to render the waste
less hazardous, safer to transport, store or dispose of, or amenable to recovery or storage
or reduced in volume. Storage means the holding of hazardous wastes for some temporary
period prior to treatment or disposal. Disposal is defined as the discharge, deposit,
injection, dumping, spilling, leaking, or placing of hazardous waste into or on any land or
water so that such waste or any constituent thereof may enter the environment or be emitted
into the air or discharged into any waters, including ground waters. 42 U.S.C. § 6903 and
40 C.F.R. § 260.10. Any person who treats, stores or disposes of hazardous waste must
have a permit or interim status.85
Without a Permit. The treatment, storage or disposal of hazardous waste "without a
permit" occurs when a person handling hazardous waste does not have: (1) a permit issued
by EPA or an authorized state, (2) "interim status" (the legal equivalent of a permit), or (3)
for ocean disposal of hazardous waste generated on land, a permit issued by EPA under the
Marine Protection, Research, and Sanctuaries Act ("MPRSA").86
In addition, the government has successfully argued that "without a permit" includes
situations where a facility has a permit, but that permit does not cover the type of waste in
question, or does not cover the particular method of treatment, storage, or disposal. In
other words, a permit in and of itself is not a "license to pollute." Permits specifically
84 United States v. Wagner, 29 F.3d 264 (7th Cir. 1994); United States v. Laughlin, 10 F.3d 961, 966 (2d
Cir. 1993), cert, denied, 114 S. Ct. 1649 (1994); United States v. Dean, 969 F.2d 187, 191 (6ih Cir. 1992), cert,
denied, 113 S. Ct. 1852 (1993); United States v. Hoflin, 880 F.2d 1033, 1038-39 (9th Cir. 1989), cert, denied,
493 U.S. 1083 (1990). Bui see United Stales v. Johnson & Towers, Inc., 741 F.2d 662, 668 (3d Cir. 1984)
(dicta), cert, denied, 469 U.S. 1208 (1985).
85
See discussion of treatment, storage and disposal facilities in Section 2.C. As noted in that section and in
Section 2.A, generators may store hazardous waste for a certain period of time without a permit or interim status
(e.g., large quantity generators may store waste up to 90 days).
86
MPRSA, also known as the Ocean Dumping Act, is discussed in Chapter 9D of this manual
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apply to certain types of wastes and management activities. In McDonald & Watson, the
First Circuit upheld prosecution under this provision against a person who had a RCRA
permit, but who handled the hazardous waste in question in a manner that was entirely
outside the scope of the permit. United States v. McDonald & Watson, 933 F.2d 35, 49
(1st Cir. 1991).
2. Treat, Store or Dispose In Violation of a Permit or Interim Status
Requirement
A person who has a permit or interim status, but who knowingly treats, stores, or disposes
of hazardous waste in violation of a material condition or requirement of the permit or
applicable interim status standard is subject to prosecution under 42 U.S.C. §§
6928(d)(2)(B) and (C). While the criminal prohibitions for permit and interim status
violations are in separate subsections of Section 6928(d)(2), the elements are essentially the
same and will be covered together.
The government must prove the following elements in order to sustain a conviction under
these two subsections:
1. The defendant is a person who
2. Knowingly
3. Treated, stored or disposed of
4. A hazardous waste
5. In knowing violation of
6. A material permit condition or requirement (§ 6828(d)(2)(B))
or
A material condition or requirement of the interim status regulations or standards (§
6928(d)(2)(C)).
"Material" Condition or Requirement. Under both subsections, the permit or interim
status requirement that has been violated must be "material." Although "materiality" is not
addressed in RCRA or its legislative history, it undoubtedly was added in order to exclude
trivial or technical violations of a permit or interim status requirement. Note that for
interim status facilities there is no specific instrument, such as a permit, that is violated.
Interim status facilities must comply with the regulations found at 40 C.F.R. Part 265 until
they receive a permit. Thus, for interim status facilities, violation of material requirements
under Part 265 fall within the meaning of this provision.
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Knowing. Violations of permit conditions or interim status regulations are different from
other RCRA crimes in one significant respect - the second "knowing" requirement (in
element 5), which appears in the statute. The issue then is whether the government must
prove that the defendant was also aware of the particular permit condition or interim status
regulation that was violated.
Several courts have addressed this issue, indirectly, in the context of deciding whether
Section 6928(d)(2)(A) (treatment, storage or disposal without a permit) requires that the
government prove knowledge of the lack of a permit. These courts compared the language
of Section 6928(d)(2)(A) with Sections 6928(d)(2)(B) and (C), and found that the inclusion
of the word "knowing" in Subsections (B) and (C), with its clear omission in subsection
(A), was particularly significant. Because "knowing" is absent from subsection (A), these
courts held that knowledge of a facility's permit status is not an element under subsection
(A).87 Following this analysis, for Subsections (B) and (C) cases, the government would
need to show defendant's knowledge of the permit condition or regulation violated. One
court recognized that section 6928(d)(2)(B) requires knowledge that the illegal conduct (in
this case, storage) was in violation of the permit (in the context of deciding that knowledge
that the material is a regulated hazardous waste is not an element of the offense). United
States v. Self, 2 F.3d at 1089-1092.
See additional discussion of RCRA knowledge issues below in Subsection F.
C. Offenses Involving Record Keeping
RCRA contains two criminal provisions related to record keeping. First, it is a crime to
knowingly make false material representations or material omissions in documents used for
purposes of compliance with the RCRA regulations. 42 U.S.C. § 6928(d)(3). Secondly,
RCRA also makes it a crime to knowingly destroy, alter, conceal, or fail to file any document
required to be maintained or filed under RCRA regulations. 42 U.S.C. § 6928(d)(4). The
maximum penalty under both provisions is a term of imprisonment of two years and a fine of
$50,000 for each day of violation.
1. False Representations
Under section 6928(d)(3), RCRA provides felony penalties for anyone who knowingly
omits material information from or makes any material false statement or representation in
an application, label, manifest, record, report, permit, or any other document required for
purposes of compliance with the RCRA regulations.
87 United Stales v. Wagner, 29 F.3d 264, 265-66 (7th Cir. 1994); United States v. Laughlin, 10 F.3d 961,
966 (2d Cir. 1993), cert, denied, 114 S. Ct. 1649 (1994); United States v. Dean, 969 F.2d 187, 191 (6th Cir.
1992), cert, denied, 113 S. Ct. 1852 (1993); United States v. Hoflin, 880 F.2d 1033, 1038-39 (9th Cir. 1989),
cert, denied, 493 U.S. 1083 (1990).
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The elements necessaiy to sustain a conviction under this section are as follows:
1. The defendant is a person who
2. Knowingly
3. Omitted information from or made a false statement or false representation in a
document
4. The document was filed, maintained or used for purposes of compliance with
RCRA regulations
5. The omission, false statement or false representation was "material."
Documents Maintained or Used. Section 6928(d)(3) prohibits false statements (and
material omissions) not only in documents actually filed with EPA or an authorized state,
but also in documents "maintained or used" by the hazardous waste handler for purposes of
complying with RCRA. Generators, transporters and TSD facilities are required to use and
keep a number of different types of documents {e.g., copies of manifests, exception
reports, waste analyses, operating records). See, e.g., 40 C.F.R. Part 262, Subpart D
(generators); 40 C.F.R. Part 263, Subpart B (transporters); 40 C.F.R. Parts 264 or 265,
Subpart E (TSD facilities). A document includes any application, label, manifest, record,
report or permit.
In addition, documents that are maintained for "purposes of compliance" with RCRA, but
are not specifically required by the regulations, would fall within the plain language of this
provision.88 One court, though, has suggested that a document must be "required" by the
regulations for a section 6928(d)(3) violation. See United States v. Self, 2 F.3d 1071, 1083
(10th Cir. 1993)(in finding that the material involved was not a hazardous waste, the court
determined that the manifest, which the government claimed had been falsified, was not
required for purposes of compliance with RCRA and therefore not within the reach of
section 6938(d)(3)).
Material. To support criminal liability, the false statement or omission must be "material."
In a different context regarding criminal false statements, the Siupreme Court ruled that the
"materiality" of a false statement under 18 U.S.C. § 1001 is an element that must be
submitted to the jury. United States v. Gaudin, — U.S. —, 115 S.Ct. 2310 (1995).
88
This is in contrast to a Section 6928(d)(4) violation in which the document destroyed, altered or not filed
must be specifically required by the regulations. See following discussion on "Document Destruction and Failure
to File."
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2. Document Destruction and Failure to File
In 42 U.S.C. § 6928(d)(4), RCRA provides felony penalties for the knowing destruction,
alteration, concealment of, or failure to file any record, application, manifest, report, or
other document required to be maintained or filed for purposes of compliance with the
RCRA regulations. The elements of this offense are as follows:
1. The defendant is a person who
2. Knowingly generated, stored, treated, transported, disposed of, exported, or
otherwise handled hazardous waste (or used oil), and
3. The defendant knowingly destroyed, altered, concealed, or failed to file a document
4. The document was required to be maintained or filed for purposes of compliance
with the RCRA regulations.
Knowingly Handled Hazardous Waste. Note that this document offense differs from the
previous false statement provision (Section 6928(d)(3)) in one significant respect — in
addition to proving unlawful record keeping activity, the government must also show that
the defendant knowingly handled hazardous waste (element 2). In addition, unlike Section
6928(d)(3), documents under this provision must be "required" for purposes of compliance
with RCRA.
Used Oil. See Section 7 below for a discussion of the crimes associated with used oil.
D. Offenses Involving Exports
Persons who knowingly export hazardous wastes to TSD facilities outside of the United States,
without the consent of the receiving country, or in violation of an International Agreement, are
subject to criminal penalties under 42 U.S.C. § 6928(d)(6). The maximum penalty under this
provision is a term of imprisonment of two years, and a fine of $50,000 for each day of
violation.
To sustain a conviction under this section, the government must prove:
1. The defendant is a person who
2. Knowingly
3. Exported a hazardous waste
4. Without the consent of the receiving country or in violation of an international
agreement between the United States and the receiving country.
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Export. To export hazardous waste is to send the waste to a location outside of the United
States89 for-treatment, storage, or disposal. See discussion in Section 2.E of the export
regulations. Any person who designates a foreign TSD facility or who arranges for shipment
to a foreign TSD is considered an "exporter" under RCRA regulations. 40 C.F.R. § 262.51
(definition of "primary exporter").
Without Consent or In Violation of An Agreement. A shipment is "without consent"
whenever consent is not sought or has been denied, or (arguably) whenever a shipment is sent
in violation of the terms of consent. 42 U.S.C. § 6938(a)(1)(D) (requiring exporters to comply
with the terms of the consent). Specific consent is not required where there is a hazardous
waste agreement between the United States and the receiving country. 42 U.S.C. § 6938(f).
When there is such a bilateral agreement, exporters violate Section 6928(d)(6) by shipping
hazardous waste in violation of the terms of the agreement. As discussed above in Section
2.E, the United States has hazardous waste export agreements with Mexico and Canada.
E. Offenses Involving Knowing Endangerment
RCRA provides enhanced felony penalties for criminal conduct described as "knowing
endangerment." Under this provision, persons who, while committing a RCRA crime,
knowingly place others in "imminent danger of death or serious bodily injury," face
imprisonment of up to 15 years and/or a fine of up to $250,000 (for individuals) or $1,000,000
(for organizations). 42 U.S.C. § 6928(e) and (0-
In order to prove a "knowing endangerment" offense, the government must first establish the
predicate RCRA offense - that the defendant knowingly transported, treated, stored, disposed
of, or exported hazardous waste (or used oil), in violation of one of the previously discussed
criminal provisions in 42 U.S.C. § 6928(d)(1) - (7). Once this predicate offense has been
established, the government must show that, at the time of the offense, the defendant knew that
his conduct placed another person in imminent danger of death or "serious bodily injury."
To sustain a conviction under this section, the government must prove:
1. The defendant is a person who knowingly transported, treated, stored, disposed of,
or exported a hazardous waste (or used oil) in violation of 42 U.S.C. §§ 6928(d)(1)
to (7) (predicate offense)
2. Who, at the time of the violation, placed another person in imminent danger of
death or serious bodily injury, and
3. Who knew, at the time of the violation, that his acts placed another person in
imminent danger of death or serious bodily injury.
og
The "United States" includes the fifty states, the District of Columbia, the Commonwealth of Puerto Rico,
the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. 42 U.S.C.
§ 6903(31) (definition of "state").
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Knowing endangerment charges are subject to several "special rules" that define "state of
mind" and "serious bodily injury" and that also set out affirmative defenses. 42 U.S.C. §
6928(d)(f).
Serious Bodily Injury. "Serious bodily injury" means bodily injury which involves a
substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious
disfigurement or protracted loss or impairment of the function of a bodily member, organ, or
mental faculty.90 42 U.S.C. § 6928(f)(6).
Imminent Danger. The requirement is that a person's conduct places anotner in "imminent
danger of death or serious bodily injury." Death or actual injuries of the type just described
are not prerequisites for a knowing endangerment charge. It is sufficient that harm is
threatened; it need not actually occur.91
In United States v. Protex Industries, the jury instructions defined imminent danger as a
condition that could reasonably be expected to cause death or serious bodily injury. On
appeal, the defendant argued that imminent danger should have been defined as a condition that
is substantially certain to cause death or serious bodily injury, citing Section 6928(f)(1)(C),
which defines when a person's state of mind is "knowing." The Tenth Circuit upheld the jury
instruction, finding no basis in the statutory language for defining "imminent danger" this way;
that is, the defendant's argument is premised on different parts of the statute. The court stated
that the substantially certain standard referred to the mens rea necessary to commit the crime,
rather than "the degree to which defendant's conduct must be likely to cause death or serious
bodily injury." The court further noted a "substantially certain" instruction was given pursuant
to Section 6928(f)(1)(C) as to the defendant's knowledge. United States v. Protex, 874 F.2d
740, 744 (10th Cir. 1989).
Knowledge. For the purposes of proving that a person knew his conduct placed another person
in imminent danger of death or serious bodily injury, the government must show that the
person "was aware or believed" that his conduct was "substantially certain" to cause danger of
death or serious bodily injury. See "Special Rules" at 42 U.S.C. § 6928(f)(1) and (2). The
government does not need to establish that the defendant actually intended his actions to cause
90 In United States v. Protex Industries, 874 F.2d 740, 743 (10th Cir. 1989), the court rejected the
defendant's argument that "Type 2-A psychoorganic syndrome," a type of solvent poisoning, did not fall within
the scope of "serious bodily injury."
91 n
The term "endangerment" conveys the creation of a peril — before the danger ripens into actual injury. As
the court stated in United States v. Vertac Chemical Corp., 489 F. Supp. 870, 885 (E.D. Ark. 1980), in
interpreting endangerment under the emergency power provisions of the Clean Water Act:
Case law and dictionary definition agree that endanger means something less than actual harm. When
one is endangered, harm is threatened; no actual injury need ever occur.
See also United States v. Waste Industries, Inc., 734 F.2d 159, 168 (4th Cir. 1984).
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harm. The terms of the statute require only that the government demonstrate that the defendant
acted with an awareness that his actions were substantially certain to cause a danger of serious
injury or death.
In proving knowledge on the part of a defendant who is a natural person (not an organization),
the government must show "actual awareness or belief possessed by the defendant; knowledge
possessed by others cannot be attributed to the defendant. However, in proving "actual
knowledge," circumstantial evidence may be used, including evidence that the defendant took
affirmative steps to shield himself from relevant information. 42 U.S.C. .§ 6928(f)(2).
Affirmative Defense. Congress also codified an "affirmative defense" to the knowing
endangerment charge. A defendant cannot be convicted of knowing endangerment if he
establishes, "by a preponderance of the evidence," that the victim ("person endangered")
consented to the defendant's conduct. Such consent is valid only if the danger and conduct
charged were "reasonably foreseeable hazards" of (1) an "occupation, business, or profession"
or (2) "medical treatment" or "medical or scientific experimentation" where the endangered
person had been made aware of the risks before giving consent.92 42 U.S.C. § 6928(f)(3).
Person. As discussed above, the term "person" is broadly defined under RCRA to include,
among others, individuals, corporations, associations, States, municipalities, and any
department or agency of the United States. 42 U.S.C. § 6903(15). The Special Rules,
however, define an organization (which is subject to a fine up to $1 million for a knowing
endangerment conviction) as a legal entity, other than a government, including corporations
and associations. 42 U.S.C. § 6928(f)(5).
Persons At Risk. The First Circuit has ruled that knowing endangerment cannot be charged
under the Clean Water Act when the endangered persons are the defendant's own employees.
The court ruled that the CWA knowing endangerment provision applied only when persons
downstream from an illegal discharge were put at risk. However, the First Circuit
distinguished the Clean Water Act from RCRA, stating that RCRA was designed to govern the
handling of pollutants at a facility, whereas the Clean Water Act was designed to protect the
integrity of receiving waters. United States v. Borowski, 977 F.2d 27, 32 (1st Cir. 1992).
F. Specific issues in RCRA Criminal Enforcement
This subsection highlights several issues that are important in RCRA cases, including whether
the government must prove that the defendant knew that the material involved is a RCRA
regulated hazardous waste, and whether the defendant knew the permit status of the facility
involved. This subsection also discusses the evidence required to prove that the material
involved is a hazardous waste.
92 A similar provision under the Clean Air Act contains slightly different wording; that is, it is an affirmative
defense if the conduct charged was freely consented to by the person endangered. 42 U.S.C. § 7413(c)(5)(C).
Congress also provided that all "general defenses, affirmative defenses, and bars to prosecution that may apply
with respect to other criminal offenses" also apply for knowing endangerment charges. 42 U.S.C. § 6928(f)(4).
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Note: Knowledge issues under RCRA and the other environmental statutes are addressed in
Chapter 7 of this Manual, titled "Mental State." Chapter 7 therefore should be reviewed for a
more in-depth discussion of mental state under the environmental statutes, including the
responsible corporate officer doctrine.
1. Knowledge: GenerallntentStandard
To satisfy the mental state element of RCRA crimes, prosecutors must show "knowing"
conduct. 42 U.S.C. § 6928(d). Every court that has addressed the issue of mental state
under RCRA has held that the knowledge element for RCRA offenses requires a showing
of general intent. These RCRA decisions follow the principles set out in International
Minerals, where the Supreme Court addressed the meaning of the term "knowingly" as it is
used in public welfare statutes.93 The Supreme Court held that "knowingly" referred to the
acts made criminal, not to knowledge of the law or regulations. The Supreme Court
reasoned that "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." United States v. International Minerals, 402 U.S. 558, 565 (1971).
Similarly, under RCRA, courts have held that the handling of potentially dangerous
substances, such as hazardous waste, is sufficient to provide notice of regulation. See,
e.g., United States v. Sellers, 926 F.2d 410, 416 ("when a person knowingly possesses an
instrumentality which by its nature is potentially dangerous, he is imputed with the
knowledge that it may be regulated by public health legislation").94
To prove general intent under RCRA, the government must show that the defendant has "a
general awareness that he is performing acts proscribed by statute," United States v.
Laughlin, 10 F.3d at 965, or that the defendant "knows factually what he is doing." United
States v. Baytank, 934 F.2d at 613. A mistaken belief of fact, however, can constitute a
defense. United States v. International Minerals, 402 U.S. at 563-64 (a person thinking in
good faith that he is shipping distilled water when in fact he is shipping some dangerous
material does not commit a knowing violation); United States v. Hayes International, 786
F.2d at 1506; United States v. Speach, 968 F.2d 795, 796-97 (9th Cir. 1992).
2. Knowledge of Hazardous Waste
93
RCRA is "undeniably a public welfare statute involving a heavily regulated area with great ramifications
for the public health and safety." United Stales v. Baytank (Houston),Inc., 934 F.2d 599, 613 (5th Cir. 1991).
See also. United States v. Self, 2 F.3d 1071, 1091 (10th Cir. 1993)(RCRA is a public welfare statute designed to
protect human health and the environment).
94 See also United States v. Laughlin, 10 F.3d 961, 965 (2d Cir. 1993), cert, denied, — U.S. —, 114 S.Ct
1649 (1994); United States v. Self, 2 F.3d 1071, 1090 (10th Cir. 1993); United States v. Dean, 969 F.2d 187, 191
(6th Cir. 1992), cert, denied, 507 U.S. 1033 (1993); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990),
cert, denied, 499 U.S. 919 (1991).
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Courts have uniformly held that the government is not required to prove that the defendant
knew that the waste material was a hazardous waste as defined by the regulations, that is,
that it is a listed or characteristic hazardous waste. United States v. Laughlin, 10 F.3d at
965; United States v. Self , 2 F.3d at 1090. Knowledge of specific regulatory requirements
is not required, nor is knowledge that a violation of the regulations constitutes a crime.
United States v. Dee, 912 F.2d at 745 (the government did not need to prove defendants
knew a violation of RCRA was a crime or that regulations existed listing and identifying
the chemical wastes as RCRA hazardous wastes).
The government is required to prove only that the defendant was aware of the "general
hazardous character" of the waste. A number of court of appeals have approved the
following jury instruction or a substantially similar instruction:
the defendant knew that the [material or chemical wastes] had the potential to be
harmful to others or to the environment, in other words, that it was not an innocuous
substance like water.
United States v. Goldsmith, 978 F.2d 643, 645 (11th Cir. 1992); United States v. Hoflin,
880 F.2d 1033, 1039 (9th Cir. 1989), cert, denied, 493 U.S. 1083 (1990); United States v.
Self, 2 F.3d 1071, 1089 (10th Cir. 1993). See also United States v. Dee, 912 F.2d 741,
745 (4th Cir. 1990) (jury instruction requiring knowledge that the substances involved were
chemicals failed to instruct the jury that the defendants also had to know the general
hazardous character of the chemicals and was error, but harmless in light of overwhelming
evidence); United States v. Laughlin, 10 F.3d 961, 965-67 (2d Cir. 1993) (jury instruction
that the material was "not a harmless substance like uncontaminated water").
In reviewing the above jury instruction, several courts have addressed whether the
instruction should have required that the defendant knew that the material posed a
substantial present or potential hazard, citing the statutory definition of hazardous waste in
42 U.S.C. § 6903(5)(B). The Laughlin court determined that the instruction should have
included the word "substantial," but concluded that its omission was not plain error since
the instructions taken as a whole require that the jury fmd that the waste was hazardous
within the meaning of 42 U.S.C. § 6905(5)(B). United States v. Laughlin, 10 F.3d at 967
(the waste "must present not simply a potential hazard, but a substantial potential hazard,"
under section 6903(5)(B)). See also United States v. Baytank, Inc., 934 F.2d 599, 611 (5th
Cir. 1991)(omission of the word "substantial" as a modifier of "potential" was not plain
error where instruction required defendant to know that the material "had the potential to
be harmful").
One court has hela max me government needs to show the defendant's knowledge that the
material was a "waste," in addition to showing that he knew it was a harmful substance.
United States v. Heuer, 4 F.3d 723, 732 (9th Cir. 1993).
3. Knowledge and Permits
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A number of cases have addressed the issue of whether the government is required to prove
that the defendant was aware of the permit status of the TSD facility that either received or
handled hazardous waste. Based on current case law, the answer is different depending on
the type of violation. As discussed below, in cases involving treatment, storage or
disposal without a permit, knowledge of the permit status of the facility is not an element
of the offense; however, in cases involving transportation to an unpermitted facility, the
government generally has to show that the defendant knew the facility lacked a permit.
a. Knowledge and Treatment, Storage or Disposal Without a Permit
Section 6928(d)(2) provides, in pertinent part:
Any person who -
(2) knowingly treats, stores or disposes of any hazardous waste . . .
(A) without a permit. . .
(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).
In contrast to Subsections (B) and (C), which each contain the term "knowing,"
Subsection (A) does not repeat the word "knowing" with respect to the phrase "without
a permit." Several courts have addressed the knowledge required for Subsection (A)
violations.
In light of this difference in statutory language, in cases involving treatment, storage,
or disposal without a permit brought under Section 6928(d)(2)(A), all but one?5 of the
courts addressing the issue have agreed that knowledge of a facility's permit status is
95 In one of the earliest reported criminal RCRA cases. United States v. Johnson & Towers, Inc., 741 F.2d
662 (3d Cir. 1984), cert, denied, 469 U.S. 1208 (1985), the Third Circuit in interpreting Section 6928(d)(2)
concluded either "that the omission of the word 'knowing' in (A) was inadvertent or that 'knowingly' which
introduces subsection (2) applies to subsection (A)." The court stated, in dicta, that in light of its interpretation of
Section 6928(d)(2), the district court should instruct the jury that each defendant knew that the facility was
required to have a permit and knew that it did not have a permit. The court further stated that such knowledge
may be inferred by the jury as to defendants that hold responsible positions within the company. Johnson &
Towers, Inc., 741 f.2d at 668 - 70. That early view has not been followed by other courts in subsequent cases
and was specifically rejected in Hoflin.
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not an element of the offense, that is, the term "knowingly" does not extend to the
phrase "without a permit." United States v. Laughlin, 10 F.3d 961, 966 (2d Cir. 1993)
(defendant's knowledge that a permit is lacking is not an element of the offense under §
6928(d)(2)(A)), cert, denied, 114 S. Ct. 1649 (1994); United States v. Wagner, 29 F.3d
264, 265-66 (7th Cir. 1994) (same); United States v. Dean, 969 F.2d 187, 191 (6th
Cir. 1992) (same), cert, denied, 113 S. Ct. 1852 (1993); United States v. Hoflin, 880
F.2d 1033, 1037-39 (9th Cir. 1989) (same), cert, denied, 493 U.S. 1083 (1990).96
In reaching this holding, the courts found it significant that Congress included the word
"knowing" in Subsections (B) and (C), but omitted it from Subsection (A). Laughlin at
966. The Hoflin court refused to write something into the statute that "Congress so
plainly left out," stating that if Congress had "intended knowledge of the lack of a
permit to be an element under subsection (A) it easily could have said so." Hoflin at
1038. Further, utilizing well-established principles of statutory construction, the courts
concluded that to read "knowingly" which introduces subsection (2) as applying to
Subsections (A), (B) and (C) would render its use in (B) and (C) "mere surplusage,"
and would be impermissible statutory construction. Hoflin, 880 F.2d at 1038; Dean,
969 F.2d at 190; Wagner, 29 F.3d at 266.
The Dean and Holflin courts further distinguished Subsection (A), which addresses
"non-permit holders" (i.e., those who operate outside the RCRA regulatory system),
from its companion sections, 6928(d)(2)(B) and (C), which address "permit holders"
(i.e., those who operate within the regulatory system but who violate a permit condition
or interim status regulation). The Hoflin court stated that the "statute makes a clear
distinction between non-permit holders and permit holders" and that to "read the word
'knowingly' at the beginning of Subsection (2) into Subsection (A) would be to
eviscerate this distinction." Hoflin, 880 F.2d at 1037.
The Dean court explained the difference in the knowledge required for permit and non-
permit holders, as follows:
The difference in mens rea between the subsections signifies the relative
importance, in the estimation of Congress, of the twin requirements of obtaining a
permit and complying with the permit. This ranking is consistent with the greater
likelihood that compliance with the permit will be monitored.
Dean, 969 F.2d at 191. See also Hoflin, 880 F.2d at 1037-39.
b. Knowledge and Treatment, Storage or Disposal in Violation of a Permit
or Interim Status Requirement
96 The Hoflin and Laughlin courts found that Section 6928(d)(2)(A) did not require proof that the defendant
knew that the facility lacked a permit. The Wagner and Dean courts held that knowledge of RCRA's permit
requirement was not an element of a Subsection (d)(2)(A) offense.
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No court has directly addressed the knowledge requirement with respect to a violation
of a permit condition or interim status regulation under Subsections (B) and (C). As
discussed above, the plain language of the statute criminalizes the knowing treatment,
storage or disposal of hazardous waste in knowing violation of any material condition or
requirement of a permit or interim status.
Several courts have stated — in the context of analyzing other knowledge issues — that
the government must prove that the defendant had knowledge of the applicable permit
condition or interim status rule violated. In United States v. Self, the Tenth Circuit
recognized that Section 6928(d)(2)(B) requires proof that the "storage was in knowing
violation of the RCRA permit," in deciding that the government is not required to
prove knowledge that the material was a hazardous waste, as defined by RCRA. The
Self court stated that the second knowing requirement of Subsection (B) allows as a
defense "the good faith belief that a permit allows a particular manner of treatment,
storage or disposal of hazardous waste, when in fact it does not... ." United States v.
Self, 2 F.3d 1071, 1091 (10th Cir. 1993). See also United States v. Dean, 969 F.2d
187, 191 (6th Cir. 1992) (in deciding the knowledge required under Subsection (A),
Subsections (B) and (C) are different and clearly require that one charged with a
violation of the terms of a permit or interim status regulation must be aware of the
permit terms or regulations).
c. Knowledge and Transportation to an Unpermitted Facility
In cases involving transportation to a facility that does not have a permit under
Subsection 6928(d)(1), two circuit courts, to date, have held that the government must
prove that the defendant knew that the facility to which he transported waste lacked a
permit. United States v. Speach, 968 F.2d 795, 797 (9th Cir. 1992); United States v.
Hayes International Corp., 786 F.2d 1499, 1504 (11th Cir. 1986). Another court, in
dicta, approved a jury instruction containing the additional knowledge requirement.
United States v. McDonald & Watson, 933 F.2d 35, 48 (1st Cir. 1991).
These decisions differ from those concerning the knowledge required in cases involving
treatment, storage or disposal without a permit under Section 6928(d)(2)(A). Although
both (d)(1) and (d)(2)(A) involve conduct "without a permit," for the (d)(1) crime the
government must show that the violator was aware that the facility receiving the
transported waste lacked a permit.
The Ninth Circuit distinguished its decision in Speach from its decision in Hoflin,
where it found that knowledge of the permit status was not required under Section
6928(d)(2)(A) (treatment, storage, and disposal without a permit). The Ninth Circuit
reasoned that the two sections targeted different groups, finding that persons who treat,
store and dispose of hazardous waste are in a better position to ascertain the permit
status of the TSD facility than persons who only transport waste to the facility. Speach,
968 F.2d at 797. Both the Speach and Hayes courts found that the absence of a
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knowledge requirement would "criminalize innocent conduct," such as that of a
transporter who relied in good faith upon a facility's representation that it is permitted.
Speach, 968 F.2d at 796; Hayes International, 786 F.2d at 1506 (A transporter who
believes in good faith that a receiving facility has a permit is not claiming ignorance of
the legal requirement, but is claiming a mistake of fact, which generally is a defense to
a general intent crime).
In proving a transporter's knowledge of the TSD's lack of a permit, however, the
government may rely on circumstantial evidence. For example, if the government
demonstrates that the receiving facility failed to follow required procedures in accepting
hazardous waste, or was willing to take hazardous waste under "unusual circumstances"
or for an "unusual price," the jury can infer that the transporter knew the receiving
facility was not permitted. Speach, 968 F.2d at 797 (citing Hayes International, 786
F.2d at 1505). Significantly, the courts found that the defendant acts knowingly if he
"willfully fails to determine the permit status of the facility." Id.
4. Proof of Hazardous Waste
In RCRA prosecutions, the government must prove that the defendant handled "hazardous
waste," as defined in the regulations. Therefore, the regulatory definition of hazardous
waste is critical. As previously discussed in Section 3, identifying hazardous waste under
the regulations is always a two-part process. The government must prove that the
substance in question is a solid waste (a "discarded material") and is hazardous ("listed" as
hazardous or exhibiting a hazardous "characteristic").
The government, though, does not need to prove that a particular waste actually caused
harm or presented a risk of harm as handled. Rather, all that must be proven is that the
waste is one that EPA has determined to be hazardous in the regulations, that is, that the
waste has been "listed" as a hazardous waste, or exhibits one of the four "characteristics"
that EPA has designated as hazardous.97
For listed hazardous wastes, it is important to develop evidence not only of the type of
waste, but also where the waste came from. Test results are not always necessary to prove
a waste is a listed hazardous waste. In fact, test results may provide only pan of the
picture for the hazardous waste determination. For example, to prove that a waste is a
listed waste from a specific source, the government must show that the waste resulted froir
a specific production process (e.g., sludge from the production of pigments). This can be
demonstrated through business records and employee testimony; any test results could be
used to corroborate such evidence and testimony.
07
Based on the statutory definition of hazardous waste (which is the basis for the regulatory definition), at
least one defendant has argued that the government must show danger to human health under the conditions in
which a waste was stored, to prove that the waste was hazardous. See United States v. Dean, 969 F.2d 187, 193
(6th Cir. 1992), cert, denied, 507 U.S. 1033, (1993). The court rejected this argument. Risk resulting from
mismanagement is simply a factor for EPA to consider in determining to regulate a waste. Id.
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For characteristic wastes, however, test results are important for establishing that a waste
exhibits one of the hazardous characteristics (i.e., ignitability, reactivity, corrosivity or
toxicity). When tests are used to establish a characteristic, die results should be based on
the test methods specified in the regulations. Hazardous waste characteristics are defined
in terms of specific procedures.98 For example, ignitable wastes are wastes that exhibit a
flash point below 140° fahrenheit when using specific closed-cup testers. See 40 C.F.R. §
261.21. Results based on alternative procedures may be admissible if reliable and if they
tend to show what results would have been obtained had the specified method been used.
However, because the regulatory standard is a combination of the results and the specified
test method, proof of a characteristic by another method may require expert testimony in
order to establish the reliability of that method.
Although having test results to establish a characteristic waste is preferable, circumstantial
evidence has been used to prove that a waste is a characteristic waste. See United States v.
Self, 2 F.3d 1071, 1086-87 (10th Cir. 1993) and United States v. Dee, 912 F.2d 741, 746-
47 (4th Cir. 1990) (jury can infer that wastes exhibited the characteristic of "ignitability"
from flash points reported in Material Safety Data Sheets ("MSDSs") and other records);
see also United States v. Baytank (Houston), Inc., 934 F.2d 599, 614 (5th Cir. 1991) and
United States v. Greer, 850 F.2d 1447, 1452 (11th Cir. 1988) (jury can infer that waste
contained listed spent solvents based on company records and drum labels).
5. Civil and Administrative Enforcement
Criminal investigations of RCRA violations often overlap with civil or administrative
enforcement efforts. This section summarizes the civil and administrative enforcement
authority, including inspection authority, provided by RCRA.
A. Administrative and Civil Authority
TVhenever there is a violation of the requirements of RCRA, EPA has the authority to issue an
administrative order or refer the matter to the Department of Justice for civil enforcement in
federal court. An administrative order may (1) require compliance, (2) suspend or revoke a
permit, and/or (3) assess a penalty, not to exceed $25,000 per day of noncompliance for each
violation. These orders are often called "compliance orders." 42 U.S.C. §6928(a).
Additional penalties may be assessed for failure to take any corrective action required by a
compliance order. 42 U.S.C. § 6928(c). Administrative orders become final 30 days after
their issuance unless, within this period, the violator requests a public hearing. 42 U.S.C. §
6928(b). The procedures for administrative hearings before EPA are set out at 40 C.F.R. Part
22.
go
See discussion of characteristic hazardous wastes in section 3.D.I.
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Chapter 11
Comprehensive Environmental Response,
Compensation, and Liability Act
(42 U.S.C. § 9601 et seq.)'
Table of Contents
Page
1. Background 11-2
2. Substantive Provisions 11-3
A. Release Notification: Elements of Criminal Offense 11-3
1. Hazardous Substance 11-4
2. Reportable Quantity 11-5
3. Release 11-6
4. Into the Environment 11-7
5. Facility 11-8
6. Person in Charge 11-8
7. Knowledge 11-9
8. Appropriate Federal Agency 11-10
B. Destruction of Records: Elements of Criminal Offense 11-10
C. Exemptions 11-11
D. Immunity 11-11
E. Penalty 11-11
F. Relevant Terms (42 U.S.C. § 9601) 11-12
Appendix: Jury Instructions 11-15
* Prepared by James A. Morgulec, Senior Trial Attorney, and Bruce Pasfield, Assistant Section Chief; revisions
by Marty Woelfle and David P. O'Very, Trial Attorneys, Environmental Crimes Section.
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COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
1. Background
In the late 1970s, after events like discovery of the chemical contamination of Love
Canal in Niagara, New York, Congress and the regulatory community determined that
existing environmental legislation did not address two significant aspects of the
hazardous waste dilemma:
1. The need for immediate notification and response for chemical releases.
2. The need for the cleanup and apportionment of liability for past and future
chemical releases.
See generally Congress Clears "Superfund" Legislation, 36 Congressional Quarterly
Almanac 584-93 (1980) (history of the legislation).
Although some authority to deal with these two significant issues was provided under
both the Clean Water Act (CWA) and the Resource Conservation and Recovery Act
(RCRA), neither statute dealt with the problems in a comprehensive manner. RCRA
spoke to the management, transportation, and disposal of hazardous waste but was
largely silent on the issues of notification, response, and cleanup liability. See A
Legislative History of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (Superfund), Pub. L. 96-510, Senate Comm. on
Environment and Public Works, 97th Cong., 2d Sess. 197 (Comm. Print 1983)
(hereinafter CERCLA: A Legislative History) (Statement of Thomas C. Jorling,
Assistant Administrator, Environmental Protection Agency (EPA)).
The CWA, while addressing these issues in Section 311, 33 U.S.C. § 1321, limited
the response recovery and liability mechanism to oil or chemical spills that reached
navigable waters. The limitation on liability to pollution in navigable waters was
considered problematic because other pathways of exposure can cause public health
threats and damage. See CERCLA: A Legislative History, supra at 102 (Statement of
Thomas C. Jorling, Assistant Administrator, EPA, June 20, 1979).
To correct these shortcomings, Congress enacted the Comprehensive Environmental
Response, Compensation, and Liability Act (hereinafter referred to as CERCLA or
Superfund). 42 U.S.C. § 9601 et seq. Within this one Act, Congress addressed the
notification, response, cleanup, and liability needs for chemical releases into all
environmental media, including navigable water, groundwater, land, and air. See
CERCLA: A Legislative History, supra, at 102 (Statement of Thomas C. Jorling,
Assistant Administrator, EPA, June 20, 1979). Two mechanisms used to give the Act
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COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
this broad sweep were the phrase "release into the environment" and the creation of a
new comprehensive list of chemicals called "hazardous substances."1
Several years after enactment of CERCLA, it became apparent that the Act had not
accomplished its intended goal. Funding for existing cleanups was inadequate, and
while the notification and response provisions were sufficient for the federal
government, the disaster in Bhopal, India, suggested that state and local governments
would not be prepared to deal with these kinds of problems. 132 Cong. Rec. 28,418
(1986).
Therefore, in 1986 Congress amended CERCLA with the Superfund Amendments and
Reauthorization Act (SARA). Among other things, these provisions increased funding
for Superfund from $1.6 to $8.5 billion and elevated some of the criminal penalties
from misdemeanors to felonies. Title m was set apart and entitled The Emergency
Planning and Community Right-to-Know Act (EPCRA). 42 U.S.C. § 11001, et seq.
EPCRA is also commonly referred to as SARA Title m.
The substantive provisions of EPCRA, or SARA Title m, are discussed later in this
manual. It is, however, significant to note that although EPCRA and CERCLA have
major differences, the main criminal provisions in both statutes concern the
requirement of immediate notification to the government of the release of chemicals.
2. Substantive Provisions
Two provisions in CERCLA contain criminal sanctions. The first and most
significant, CERCLA § 103(a), 42 U.S.C. § 9603(a), states that the release of a
reportable quantity of a hazardous substance from a facility into the environment
requires immediate notification to the appropriate federal agency. Penalties for
failure to report are contained in subsection (b). The second, CERCLA § 103(d),
42 U.S.C. § 9603(d), requires that affected facilities maintain certain records and
provides penalties for the destruction of those records.
A. Release Notification: Elements of Criminal Offense
Section 103(a) and (b) of CERCLA, 42 U.S.C. § 9603(a) and (b), defines the crime of
failure to report the release of a hazardous substance. The elements of a CERCLA
failure to report violation are—
'This term is separate and distinct from the terms "hazardous waste,* as defined in § 1004(5) of RCRA,
42 U.S.C. § 6903(5), and "hazardous materials,' as defined in the Hazardous Materials Transportation Act
(HMTA), 49 U.S.C. § 1802(2).
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COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
• A hazardous substance;
• In an amount equal to or greater than a reportable quantity;
• Was released into the environment;
• From a facility or vessel; and
• The release was other than a federally permitted release;
• The defendant, who was a person in charge of the facility or vessel;
• Failed to notify the appropriate agency of the U.S. Government immediately as
soon as he or she became aware of the release.2
There is a differing view regarding the elements of a CERCLA reporting violation. In
United States v. Freter, 31 F.3d 783 (9th Cir.), cert, denied, 513 U.S. 1048 (1994),
the Ninth Circuit held that the permit status of the release was an affirmative defense.
Therefore, if the defendant does not raise the issue, the government need not present
evidence proving that the release was not federally permitted.
1. Hazardous Substance
In defining this term, Congress incorporated many of the chemicals regulated
under other statute schemes. Congress also established a new category of
chemicals that were not previously regulated under other environmental statutes.
"Hazardous Substances" under CERCLA § 101(14), 42 U.S.C. § 9601(14), are
defined as the following-
• Substances designated as hazardous substances under Section 311 of the
CWA, 33 U.S.C. § 1321 (,see 40 C.F.R. Part 116);
• Toxic pollutants listed under Section 307 of CWA, 33 U.S.C. § 1317 (see
40 C.F.R. Part 129);
• Substances listed or identified pursuant to Section 3001 of RCRA, 42
U.S.C. § 6921 (see 40 C.F.R. Part 261);
2There is currently no case law defining what "immediately" means. However, one court has indicated that
immediate notice under the corresponding provision of the Federal Water Pollution Control Act, 33 U.S.C. §
1321(b)(5), "must be interpreted in light of the circumstances of each particular case." United Stales v. Messer
Oil Corp., 391 F. Supp. 557, 563 (W.D. Pa. 1975). The Ninth Circuit found that the term "immediately" under
Section 1321(b)(5) was not unconstitutionally vague and that it provided adequate notice that failure to "promptly"
notify a government agency of an oil spill would result in potential criminal liability. United States v. Kennecott,
523 F. 2d 821, 823 (9* Cir. 1975).
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• Any hazardous air pollutant listed under Section 112 of the Clean Air Act
(CAA), 42 U.S.C. § 7412 (,see 40 C.F.R. Part 61);
• Any imminently hazardous chemical substance or mixture with respect to
which the Agency has taken action under Section 7 of the Toxic Substances
Control Act (TSCA), 15 U.S.C. § 2606 (see 40 C.F.R. Parts 761 et seq.)\
and
• Any substance designated under Section 102 of CERCLA, 42 U.S.C.
§9602.
A complete list of chemicals covered under this Act is contained in 40 C.F.R.
Part 302, table 302.4 (commonly known as the 302 list).
One caveat is the "petroleum exclusion." The term "hazardous substance" does
not include petroleum unless the petroleum is otherwise a hazardous substance
under one of the statutes listed above. Oil and petroleum products that are
discharged into navigable waters, however, are subject to the notification
provisions in 33 U.S.C. § 1321(b). Also excluded from regulation under
CERCLA are natural gas, natural gas liquids, liquified natural gas, or synthetic
gas usable for fuel. 42 U.S.C. § 9601(14).
2. Reportable Quantity
A "reportable quantity" (RQ) is the quantity of a chemical release that triggers the
notification requirements under CERCLA § 103, 42 U.S.C. § 9603. RQs for the
various hazardous substances are provided in 40 C.F.R. § 302.4 (table). An RQ
of 1 pound has been established for those listed substances for which no final
reportable quantity has been determined. CERCLA § 102(b), 42 U.S.C.
§ 9602(b).3 EPA takes the position that the release of the reportable quantity
must occur within a 24-hour time period in order to trigger the notification
requirement. See 40 C.F.R. § 302.6(a). When the release of a "mixture" or
"solution" occurs, the hazardous substance component of that mixture or solution
must be above the RQ for the notification provision to be triggered. 40 C.F.R. §
302.6(b). If the concentration of the hazardous constituent is unknown, the total
amount of the mixture released must exceed the RQ for the hazardous
constituent. 40 C.F.R. § 302.6(b)(ii).4
3The provision also states that, for those hazardous substances for which reportable quantities have been
established pursuant to 33 U.S.C. § 1321(b)(4) (CWA), the reportable quantity shall be deemed the same under
CERCLA.
4In promulgating the final rule, the Agency stated:
(continued...)
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COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
3. Release
CERCLA defines "release" to mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping, or
disposing into the environment (including the abandonment or discarding of
barrels, containers, and other closed receptacles containing any hazardous
substances, pollutant, or contaminant). CERCLA § 101(22), 42 U.S.C.
§ 9601(22). The 1986 amendment revised the original definition of release to
clarify that the term includes the abandonment of closed containers.3 A defendant
(...continued)
A. Determination of When a Reportable Quantity has been Released.
a. Period of Release. EPA proposed to use a 24-hour period for measuring whether the
reportable quantity of a substance has been released, noting that the 24-hour period has
been used successfully under regulations implementing the CWA section 311. As soon as
the person in charge knows that the amount of a release within that period equals or
exceeds the applicable reportable quantity, the NRC must be notified....
Three comm enters misinterpreted the purpose of the 24-hour period as the time a person has
in which to establish the knowledge that a release has occurred. EPA wants to clarify that
when the amount of a CERCLA hazardous substance release equals of exceeds the reportable
quantity, the person in charge, once he or she knows of the release, must immediately notify
the National Response Center. The 24-hour period refers to the period within which a
reportable quantity of hazardous substance must be released to be considered reportable; it
does not refer to the time available for a person to report a release. Such reporting must
occur immediately.
50 Fed. Reg. 13456.
In United States v. MacDonald & Watson Waste Oil Co., 933 F2d 35,57 (1st Cir. 1991), the court quoted from 50
Fed. Reg. 13,463:
In a mixture, if the concentrations of the hazardous substance contained in the mixture are
known, waste streams should be treated like any other mixture. If the releaser does not know
the composition of the listed waste stream, EPA agrees that applying the [reportable quantity] of
the entire waste stream is the only reasonably conservative alternative.
'SARA amended the definition of the term "release' as used in CERCLA to include "the abandonment or
discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or
contaminant." 42 U.S.C. § 9601(22). The conference report regarding this change stated that—
This amendment to CERCLA confirms and clarifies the President's present authority under existing
law to take response action with regard to such receptacles, whether or not they have broken open
and are currently leaking hazardous substances, pollutants, or contaminants. The phrase "containing
any hazardous substance or pollutant or contaminant" includes residues of such hazardous substance
or pollutant or contaminant.
108 U.S. Code Cong. & Ad. News 3277 (December 1986) (emphasis added).
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COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
was convicted of failing to report just such a release by abandonment in United
States v. Freter, supra.
Note that the elements of the offense do not require that the defendant cause the
release. He or she need only be "in charge" {infra) of the facility or vessel from
which the unreported release originated.
Because the term "release" is all inclusive, it is important to note the statutorily
created exceptions to the definition. CERCLA § 101(22), 42 U.S.C. § 9601(22).
They are—
• A federally permitted release (defined in Subsection F, Relevant Terms).
• Any release that results in exposure to persons solely within the workplace,
with respect to a claim (for workers' compensation) that such persons may
assert against the employer.
• Emissions from engine exhaust or motor vehicles, rolling stock, aircraft,
vessels, or pipeline pumping station engine.
• The normal application of fertilizer.
• The release of source, by-product, or special nuclear material from a
nuclear incident as those terms are defined in the Atomic Energy Act of
1954.
Also, there must actually be a release into the environment for the reporting
requirement to attach. The mere exposure of a hazardous substance to the
environment (for example, the placement in an open-air storage container of a
hazardous substance that will not volatilize or migrate) is not a release for
purposes of 42 U.S.C. § 9603(b). Fertilizer Institute v. EPA, 935 F.2d 1303,
1309-10 (D.C. Cir. 1991).
4. Into the Environment
The term "environment" means (1) the waters of the United States and the
contiguous zone and the ocean waters of which the natural resources are under
the exclusive management authority of the United States under the Magnuson
Fishery Conservation and Management Act and (2) any other surface water,
groundwater, drinking water supply, land surface or subsurface strata, or ambient
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COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
air* within the United States or under the jurisdiction of the United States. 42
U.S.C. § 9601(8).
5. Facility
The term "facility" includes any building, structure or equipment, pipe or
pipeline, or any area where a hazardous substance is located, but does not include
a consumer product in consumer use or a vessel. 42 U.S.C. § 9601(9). The
definition of facility has been found by courts in civil cases to be "broad" and
"expansive" and includes virtually any place where a hazardous substance might
be found or located. People of State of California v. Blech, 976 F. 2d 525, 527
n. 1 (9th Cir. 1992); Acme Printing Company Inc. v. Traveler's Company, Inc.,
870 F. Supp. 1465, 1479 (E.D. Wise. 1994); see also United States v. Ward, 618
F. Supp. 884, 895 (E.D.N.C. 1985).
6. Person in Charge
Section 101(21), 42 U.S.C. § 9601(21), defines "person" to mean "an individual,
firm, corporation, association, partnership, consortium, joint venture,
commercial entity, United States Government, state, municipality, commission,
political subdivision of a state, or any interstate body."
The common expression "in charge" is not defined by statute or regulation. The
phrase has been interpreted by the Second Circuit in United States v. Carr, 880
F.2d 1550 (2d Cir. 1989). In Carr, the defendant, a relatively low-level
supervisor, was convicted of failing to report the release of a reportable quantity
of a CERCLA hazardous substance. He argued that the phrase "in charge" did
not apply to persons of his rank within the company. Relying heavily on judicial
interpretations of substantially the same phraseology found in CWA, the court
held that:
The reporting requirements ... do not apply only to owners and
operators, ... but instead extend to any person who is
"responsible for the operation" of a facility from which there is a
release [citation omitted].
~ * *
[W]e believe Congress intended the reporting requirements of CERCLA's
section 103 to reach a person—even if of relatively low rank—who, because
'For the purposes of CERCLA, "ambient air" shall refer to the air that is not completely enclosed in a building or
structure and that is over and around the grounds of a facility. A release into die air of a building or structure that
does not reach the ambient air (either directly or via a ventilation system) is not a reportable event under CERCLA.
50 Fed. Reg. 13456, 13462 (April 4, 1985).
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he was in charge of a facility, was in a position to detect, prevent, and
abate release of hazardous substances.
Carr, 880 F.2d at 1554; see United States v. Mexico Feed and Seed Co., 764 F.
Supp. 565, 571 (E.D. Mo. 1991) (president of company found liable under
CERCLA § 107(a)(2) because he was "in charge of and directly responsible" for
all operations and "possessed ultimate authority to control the disposal of
hazardous substances"); Apex Oil Co. v. United States, 530 F.2d 1291, 1294
(8th Cir.) (interpreting similar phrase in Section 311 of CWA), cert, denied, 429
U.S. 827 (1976); United States v. Mobil Oil Corp., 464 F.2d 1124, 1128 (5th
Cir. 1972) (interpreting similar phrase in Section 311 of CWA); see also United
States v. Greer, 850 F.2d 1447, 1453 (11th Cir. 1988) (criminal prosecution
under RCRA and CERCLA); United States v. Hines, 861 F.2d 155 (7th Cir.
1988) (civil CERCLA action addressing definition of "operator").
Finally, a person's control over a facility need not be sole or exclusive. Several
persons may be in charge of the same facility. United States v. Carr, 880 F.2d
at 1554-55.
7. Knowledge
While the term "knowledge" is not specifically defined in the Act, courts have
held that CERCLA, like other public welfare statutes, is a general intent statute.
United States v. Laughlin, 10 F.3d 961, 966-67 (2d Cir. 1993), cert, denied, 511
U.S. 1071 (1994); United States v. Buckley, 934 F.2d 84, 88-89 (6th Cir. 1991).
Thus, the government is required to prove that the defendant had knowledge of a
release into the environment of what in fact was a reportable quantity of a
hazardous substance; in an asbestos case such as Buckley, for example, the
government must prove that the defendant knew of the release of one pound of
asbestos. Id. at 89. However, the defendant need not know that the release met
the legal definitions of "reportable quantity" or "hazardous substance" under the
Act. Neither is the government required to prove that the defendant had
knowledge of CERCLA or that the failure to report such a release violated
CERCLA. As the court stated in Buckley.
the very nature of hazardous substances such as asbestos puts individuals
controlling the substances on notice that criminal statutes probably regulate the
handling and release of the substances.
Id. at 88-89. Please refer to Chapter 7 of this manual entitled "Mental State" for
a more complete discussion of the intent requirements in environmental crimes.
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COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
8. Appropriate Federal Agency
Under 42 U.S.C. § 9603(a), notification of a release of a hazardous substance is
to be made to the National Response Center in Washington, D.C. The response
center was established pursuant to CWA § 101, 33 U.S.C. § 1251 et seq., and is
the appropriate federal agency to be notified for discharges under CWA, 33
U.S.C. § 1321, as well as CERCLA.
EPCRA, like CERCLA, contains a release notification requirement. However,
EPCRA's notification must be made to appropriate state and local agencies.
EPCRA § 304, 42 U.S.C. § 11004. Significantly, notification to the appropriate
state and local agencies under EPCRA does not necessarily satisfy the federal
notification under CERCLA, and vice versa. See the chapter of this manual
dealing with EPCRA.
B. Destruction of Records: Elements of Criminal Offense
Section 103(c) of CERCLA, 42 U.S.C. § 9603(c), is a notice and reporting
requirement covering the historic storage, treatment, and disposal of hazardous
wastes. Owners and operators of facilities at which hazardous substances7 were
stored, treated, or disposed of or of facilities that accepted hazardous waste for
transport to a storage, treatment, or disposal facility were required to notify EPA of
the existence of such facility. Although the statute of limitations has passed on any
violations for failing to report under CERCLA § 103(c), individuals who were subject
to the notice requirements must maintain records of such information under CERCLA
§ 103(d), 42 U.S.C. § 9603(d), for a period of 50 years or until some earlier date
permitted by EPA. It is unlawful for any person to knowingly destroy, mutilate,
erase, dispose of, or conceal such records or otherwise to falsify such records or to
render them unreadable or unavailable. 42 U.S.C. § 9602(d)(2).
The elements necessary to sustain a conviction under Section 103(d) of CERCLA,
42 U.S.C. § 9603(d), are-
• The defendant is the owner or operator of a facility at which hazardous
substances were stored, treated, or disposed of and which does not have interim
status or a Subtitle C permit under RCRA, or the defendant is a transporter who
selected such a facility.
• The defendant knowingly destroys, mutilates, erases, disposes of, conceals, or
otherwise renders unreadable records subject to regulation.
7This provision states that it applies to hazardous substances as defined in Section 101(14XC), 42 U.S.C.
§ 9601(14XC). That section defines "hazardous substances" as those substances listed or identified as hazardous
wastes under RCRA, and not the entire category of hazardous substances. Among the substances not covered are
polychlorinated biphenyls (PCB's), which are currently regulated under TSCA.
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comprehensive environmental response, compensation, and liability act
• Fifty years or some lesser period of time prescribed in a waiver have not passed
since the establishment of these records.
C. Exemptions
CERCLA § 103(f). 42 U.S.C. § 9603(f), provides exemptions from notification for
two types of releases:
• A release that is required to be reported (or specifically exempted from a
requirement for reporting) under Subtitle C of RCRA, 42 U.S.C. § 6921 et seq.,
or regulations thereunder and that has been reported to the National Response
Center.
• A release that is continuous and stable in quantity and rate and is a release either
from a facility for which notification has been given under 42 U.S.C. § 9603(c)
or for which notification has been given under subsection (a) and (b) of 42
U.S.C. § 9603 for a period sufficient to establish the continuity, quantity, and
regularity of such release (provided that notification in accordance with
subsections (a) and (b) be given annually or at such time as any statistically
significant increase in the quantity of any hazardous substance or constituent
released occurs).
CERCLA § 103(f), 42 U.S.C. § 9603(f).
D. Immunity
Information given or derived from the notice may not be used in any criminal
prosecution of the person8 giving notice except in a prosecution for perjury or false
statement. 42 U.S.C. § 9603(b). Care should be taken to ensure that procedures are
adopted to shield investigations from taint of immunized information.
E. Penalty
The penalties for failure to notify in CERCLA § 103(b), 42 U.S.C. § 9603(b) and for
destruction of records in CERCLA § 103(d), 42 U.S.C. § 9603(d), are "[F]ines in
accordance with the applicable provisions of Title 18 or imprisonment for not more
than 3 years (5 years in the case of second or subsequent conviction).r
18 U.S.C. § 3571 (commonly referred to as the Alternative Fines Act), establishes
maximum fine amounts. Fines against an individual can be imposed for the greater of
the following amounts:
'The term "person" includes organizations. Under the Clean Water Act, immunity is limited to "natural"
persons. 33 U.S.C. § 1321(bX5).
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COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
• $250,000.
• Twice the gross gain or loss that results from an offense unless the imposition of
a fine would unduly complicate or prolong the sentencing process.
For organizations, fines can be imposed for the greater of these amounts:
• $500,000.
• Twice the gross gain or loss that results from the offense unless the imposition of
a fine would unduly complicate or prolong the sentencing process.
F. Relevant Terms (42 U.S.C. § 9601)
Environment—Any land area (both surface or subsurface), ambient air, surface water,
groundwater, drinking water supply, navigable waters, or ocean waters within the
United States or under the jurisdiction of the United States.
Facility—Any building, structure, installation, equipment, pipe or pipeline (including
any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon,
impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or
aircraft or any site or area where a hazardous substance has been deposited, stored,
disposed of, or placed.
Federally Permitted Release—Such releases include those releases in compliance with
permits issued under—
• Section 402 [33 U.S.C. § 1342] of CWA;
• Section 404 [33 U.S.C. § 1344] of CWA;
• Section 3005(a) through (g) [42 U.S.C. § 6925 (a) through (g)] of RCRA;
• Sections 102 and 103 [33 U.S.C. §§ 1412 and 1413] of the Marine Protection
Research and Sanctuaries Act;
• Underground injection of fluids authorized under Part C of the Safe Drinking
Water Act [42 U.S.C. § 300h];
• Any air emission allowed under CAA;
• Any injection of fluid or other material that is authorized by state law to aid in
production of crude oil, natural gas, or water which is brought to the surface as a
result of such production and is reinjected;
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COMPREHENSIVE environmental response, compensation, and liability act
• The introduction of pollutants into a publicly owned treatment works in
compliance with a pretreatment program; and
• Any release of source, special nuclear, or by-product material in compliance with
a license, permit, regulation, or order issued under the Atomic Energy Act of
1954.
Groundwater—Water in a saturated zone or stratum beneath the surface of land or
water.
Hazardous Substance—Substances designated as hazardous wastes under Section 311
of CWA [33 U.S.C. § 1321] and toxic pollutants listed under Section 307 of that Act
[33 U.S.C. § 1317]; substances listed or identified pursuant to Section 3001 of RCRA
[42 U.S.C. § 6921]; any hazardous air pollutant under Section 112 of CAA [42
U.S.C. § 7412]; any hazardous chemical substance or mixture with respect to which
the Agency has taken action under Section 7 of TSCA [15 U.S.C. § 2606]; and any
substance designated under Section 102 of CERCLA [42 U.S.C. § 9602]. It generally
does not include petroleum, natural gas, natural gas liquids, liquified natural gas, or
synthetic gas usable for fuel.
Navigable Waters (or navigable waters of the United States)—Waters of the United
States including territorial seas.
Natural Resources—Land, fish, wildlife, biota, air, water, groundwater, drinking
water supplies, and other such resources belonging to, managed by, or otherwise
controlled by the United States.
Offshore Facility—Any facility located in, on, or under any of the navigable waters of
the United States . Any facility that is subject to the jurisdiction of the United States
and is located in or under any other waters. This term does not include vessels.
Onshore Facility—Any facility (including motor vehicles and rolling stock) of any
kind located in, on, or under land or non-navigable waters within the United States.
Owner or Operator—The term "owner or operator" means (1) in the case of a vessel,
any person owning, operating, or chartering by demise such vessel, (2) in the case of
an onshore facility or an offshore facility, any person owning or operating such
facility, and (3) in the case of any facility, title or control of which was conveyed due
to bankruptcy, foreclosure, tax delinquency, abandonment, or similar means to a unit
of state or local government, any person who owned, operated, or otherwise
controlled activities at such facility immediately beforehand. Such term does not
include a person who, without participation in the management of a vessel or facility,
holds indicia of ownership primarily to protect his security interest in the vessel or
facility.
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COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
Person—An individual, firm, corporation, association, partnership, consortium, joint
venture, commercial entity, United States Government, state, municipality,
commission, political subdivision of a state, or any interstate body.
Transport (or transportation)—The movement of a hazardous substance by any mode,
including pipeline. Where a hazardous substance has been accepted for transportation
by a common carrier, the term shall include any stoppage in transit that is temporary
and incidental to the movement.
Vessel—Every description of watercraft or other artificial conveyance used or capable
of being used as a means of transportation on water.
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Chapter 14
Toxic Substances Control Act
(15 U.S.C. § 2601 et seq.)*
Table of Contents
Page
1. Introduction 14-3
2. Synopsis of Title I 14-4
A. Testing Chemicals—Section 4 (15 U.S.C. § 2603) 14-4
B. Manufacturing and Processing Notices—Section 5 (15 U.S.C. § 2604).. 14-4
C. Regulation of Hazardous Chemicals—Section 6 (15 U.S.C. § 2605).... 14-5
1. Polychlorinated Biphenyls (PCBs) 14-6
2. Asbestos 14-7
3. Metalworking Fluids 14-9
4. Hexavalent Chromium 14-9
5. Dibenzo-para-dioxins/Dibensofurans 14-9
D. Imminent Hazards-Section 7 (15 U.S.C. §2606) 14-10
E. Reporting and Retention of Information-Section 8 (15 U.S.C. §2607) .. 14-10
F. Inspections and Subpoenas-Section 11 (15 U.S.C. §2610) 14-10
G. Exports and Imports-Sections 12 and 13 (15 U.S.C. §§2611, 2612) ... 14-11
H. Disclosure of Data-Section 14 (15 U.S.C. §2613) 14-11
I. Specific Enforcement and Seizure-Section 17 (15 U.S.C. §2616) 14-12
* Original version prepared by Christina Steck, former Trial Attorney, Environmental Crimes Section;
revisions by Michael Woods, former Trial Attorney, Environmental Crimes Section and Marty Woelfe, Trial
Attorney, Environmental Crimes Section.
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TOXIC SUBSTANCES CONTROL ACT
3. Synopsis of Title II (AHERA) 14-12
A. Inspection and Reinspection 14-13
B. Sampling and Analysis 14-13
C. Management Plans 14-13
D. Response Actions 14-13
E. Civil Enforcement 14-13
4. Synopsis of Title III (Radon) 14-14
5. Synopsis of Title IV (Lead-Based Paint) 14-14
6. Enforcement of TSCA 14-15
A. Prohibited Acts 14-15
B. Criminal Enforcement 14-16
C. Elements 14-16
1. In General 14-16
2. Violation of PCB Regulations 14-17
3. Violation of the Premanufacture Notice Requirements 14-17
4. Use for a Commercial Purpose of Substances Manufactured or
Distributed in Violation of Sections 5, 6, or 7 of TSCA,
(15 U.S.C. §§ 2604, 2605, or 2606) 14-17
5. Reporting Violations 14-17
6. Denial of Entry 14-18
7. AHERA Violations 14-18
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TOXIC SUBSTANCES CONTROL ACT
1. Introduction
The Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601 et seq., creates a two-
tiered system for evaluating and regulating chemical substances to protect against
unreasonable risks to human health and the environment. By enacting TSCA in 1976,
Congress empowered the U.S. Environmental Protection Agency (EPA) to regulate
the manufacture, distribution in commerce, use, and disposal of chemical substances.
TSCA filled significant gaps in the federal environmental regulatory scheme because it
authorized EPA to test chemicals before they reached the production phase, thereby
permitting regulation prior to any human or environmental exposure.
Title I of TSCA (15 U.S.C. §§ 2601-29) establishes the basic regulatory framework
and data collection scheme for the statute. EPA regulates polychlorinated biphenyls
(PCBs), chlorofluoroalkanes, certain metalworking fluids, asbestos, and hexavalent
chromium under this Title, with PCBs subject to "cradle to grave" regulation in
Section 6(e) (§ 2605(e)). Title I also requires manufacturers and processors to submit
certain chemical testing information (Section 4 (§ 2603)), empowers EPA to review
and regulate new chemical substances before they are commercially manufactured
(Section 5 (§ 2604)), and requires that all studies reporting adverse health and safety
effects from exposure to chemical substances be submitted to EPA (Section 8
(§ 2607)). Title I also contains, in Section 16 (§ 2615), the TSCA civil and criminal
penalties.
In 1986, Congress added Title II (15 U.S.C. §§ 2641-56), also known as the Asbestos
Hazard Emergency Response Act (AHERA), which addresses the issue of asbestos in
school buildings. Title II directs EPA to develop regulations requiring local
educational agencies (LEAs) to identify asbestos-containing materials in their school
buildings and to take appropriate actions to control the release of asbestos fibers.
Title ID (15 U.S.C. §§ 2661-71), added in 1988, establishes programs for the study of
radon exposure and abatement and authorizes EPA to develop regulations.
Title IV (15 U.S.C. §§ 2681-92), added in 1992, establishes a framework for
reducing exposure to lead-based paint.
This chapter will first summarize the statutory and regulatory provisions of each Title,
and then will focus on the criminal enforcement provisions.
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TOXIC SUBSTANCES CONTROL ACT
2. Synopsis of Title I
TSCA regulates or may potentially regulate a wide universe of "chemical substances"
and "mixtures" as defined in 15 U.S.C. § 2602(2)(A) and (8), and in EPA regulations.
See 40 C.F.R. § 710.2. The term "chemical substance" includes, with exceptions,
"[a]ny organic or inorganic substance of a particular molecular identity." 15 U.S.C.
§ 2602 (2)(A). The term "mixture" generally includes, with certain exceptions, any
"combination of two or more chemical substances if the combination does not occur in
nature and is not, in whole or in part, the result of a chemical reaction." 15
U.S.C. § 2606(8). TSCA's definition of "chemical substance" specifically excludes
(1) pesticides, which are regulated by EPA under the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA); (2) tobacco or tobacco products, which are regulated by
the Bureau of Alcohol, Tobacco, and Firearms (BATF); (3) source materials, special
nuclear materials, or byproduct materials, which are regulated by the Nuclear
Regulatory Commission under the Atomic Energy Act; (4) pistols, revolvers,
firearms, shells, and cartridges,1 also regulated by BATF; and (5) food, food
additives, drugs, and cosmetics, regulated by the Food and Drug Administration. The
principal regulatory sections of Title I are summarized below.
A. Testing Chemicals—Section 4 (15 U.S.C. § 2603)
The Administrator may, by regulation, require testing of chemical substances or
mixtures suspected to be harmful. Testing and evaluation of such substances may be
required to determine such effects as carcinogenesis, mutagenesis, teratogenesis,
chronic toxicity, or behavioral disorders causing cumulative effects, synergistic
effects, or "any other effect which may present an unreasonable risk of injury to health
or the environment." The Agency sets and reviews standards for these tests.
Manufacturers and processors of the chemical substances or mixtures will, in most
instances, be required to conduct these tests and submit data. See generally 40 C.F.R.
Parts 790-799.
B. Manufacturing and Processing Notices—Section 5 (15 U.S.C. § 2604)
Manufacturers must submit a premanufacturing notice (PMN) to EPA 90 days before
manufacturing any new chemical substances {see § 2604(a)(1) and 40 C.F.R. Part
720) or beginning a significant new use (SNU) of an existing substance (see
'The lead shot in cartridges, however, may be subject to regulation as a hazardous solid waste under RCRA.
See Connecticut Coastal Fishermen's Ass'n. V. Remington Arms Co., 989 F.2d 1305, 1317 (2nd Cir. 1993)
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TOXIC SUBSTANCES CONTROL ACT
§ 2604(a)(2) and 40 C.F.R. Part 721).2 Any chemical not listed in the Inventory of
Chemicals compiled pursuant to Section 8(a) of TSCA, 15 U.S.C. § 2607(a), is
considered "new" under this requirement. A use of a chemical substance is considered
a "new use" if so designated by the Administrator of EPA and would be regulated
under "significant new use rules" (SNURs). Section 5 contains provisions for
administrative orders regulating chemical substances pending development of
information, see § 2604(e), and for defining certain exemptions, see § 2604(h).
C. Regulation of Hazardous Chemicals—Section 6 (15 U.S.C. § 2605)
Section 6 provides for regulation of chemicals based on the information collected
under Sections 4, 5, and 8 and authorizes EPA under certain circumstances to limit the
production of, or even ban, unreasonably dangerous substances. If EPA finds a
potential for an unreasonable risk of injury to health or the environment from exposure
to chemical substances or concludes that there is not sufficient information on which to
base a decision, under 15 U.S.C. § 2605 (a)(l)-(7) the Administrator is required to
apply by rule one or more of the following controls:
(1) Prohibiting or limiting the manufacture, processing, or distribution
in commerce of a substance or mixture.
(2) Prohibiting or limiting the manufacture, processing, or distribution
in commerce of a substance or mixture for a particular use.
(3) Requiring clear and adequate warnings and instructions on
use, distribution, or disposal to accompany the substance by
label or other means.
(4) Requiring manufacturers or processors to maintain records of the
processes used and monitor or conduct those tests necessary to
assure compliance.
(5) Prohibiting or otherwise regulating commercial use of the substance
or mixture.
(6) Regulating the manner of disposal.
(7) Requiring manufacturers or processors to give notice of
risk of injury and to replace or repurchase the substance or
mixture.
2For purposes of this chapter, "manufacturing" and "processing" mean manufacturing or processing for
commercial purposes. See § 2604(i).
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The Administrator may require manufacturers and processors to use specific quality
control measures under 15 U.S.C. § 2605(b) and 15 U.S.C. § 2605(c) provides
guidelines for rulemaking. EPA regulates five groups of chemical substances under
Section 6:
1. Polychlorinated Biphenyls (PCBs)
Section 6(e), 15 U.S.C. § 2605(e), specifically required EPA to promulgate
regulations for PCBs, which are found in 40 C.F.R. Part 761. Section 6(e)
states that the manufacture, processing, or distribution in commerce of PCBs is
banned unless the use is one determined to be a totally enclosed use or is a use
permitted by regulation. Permitted uses are described in 40 C.F.R. § 761.30;3
certain specific manufacturers are exempted from regulations by 40 C.F.R.
§761.80.
The PCB regulations are designed to ensure the proper disposal of PCBs and
PCB items (including equipment and containers that have been in direct contact
with PCBs) while minimizing risk to health or to the environment during use,
handling, and storage. The rules apply to any substance, mixture, or item
containing a concentration of 50 parts per million (ppm) PCBs or greater.
However, the rule does not allow anyone to escape regulation by diluting PCBs
to concentrations below 50 ppm. See 40 C.F.R. § 761.1(b). The possibility of
dilution should be a focus of any PCB-based investigation in which low
concentrations of the substance are discovered. The specific PCB
requirements include—
• Recordkeeping —Certain records must be kept by facilities using, storing,
or disposing of PCBs. Of particular interest are PCB weights;
identification and numbers of items; storage, transfer, and disposal dates;
and identification of shippers and receivers. 40 C.F.R. § 761.180.
Special regulations apply to importers; excluded manufacturers, i.e.,
companies making products containing very low levels of PCBs; and
chemicals containing inadvertently generated PCBs. 40 C.F.R.
§§ 761.185, 761.187, 761.193.
• Marking —Items must be clearly identified if they contain PCBs.
(Marking of PCB-contaminated "electrical equipment," including, inter
alia, capacitors and transformers containing 50 ppm or more, but less than
500 ppm, is not required.) 40 C.F.R. §§ 761.40, 761.45.
3For example, PCBs may, under certain circumstances, continue to be used in transformers, and in certain
types of mining equipment, heat transfer systems, and hydraulic systems. 40 C.F.R. § 761.30.
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• Storage —PCBs and PCB items not in use and intended for disposal must
be stored in accordance with requirements designed to ensure safe storage
prior to disposal. 40 C.F.R. § 761.65.
• Treatment and Disposal —Except as provided, PCBs and PCB items
must be disposed of by high-temperature incineration.4 In some cases,
alternatives to incineration may be acceptable, including chemical waste
landfills,5 high-efficiency boilers, and other methods approved by EPA.
40 C.F.R. §§ 761.60, 761.70, 761.75.
• PCB Spill Cleanup Policy — I bis policy contains the criteria EPA uses to
determine the adequacy of the cleanup of spills of PCBs at concentrations
over 50 ppm. 40 C.F.R. Part 761, Subpart G.
• Notification and Manifesting for PCB Waste Activities — Section
6(e)(1) requires those who handle PCB waste to use a manifest, retain
their manifest records, and report manifest discrepancies and exceptions in
a manner similar to that used to track hazardous waste under RCRA.
These regulations cover the activities of brokers as a type of PCB waste
handler. 40 C.F.R. Part 761, Subpart K.6
2. Asbestos
The Section 6 asbestos regulations are contained in 40 C.F.R. Part 763, Subparts
D, F, G, and I. Subpart E contains regulations promulgated under Title II
(discussed below). Note that asbestos is also regulated under the Clean Air Act
(CAA), 42 U.S.C. §§ 7401-7671q;7 the Occupational Safety and Health Act
(OSHA), 29 U.S.C. § 651 et seq. \ the Safe Drinking Water Act, 42 U.S.C.
'Under some circumstances, PCB concentrations of less than SO ppm are subject to these disposal standards.
See Rollins Environmental Services v. U.S. E.P.A., 937 F.2d 649 (D.C. Cir. 1991); General Electric Co. v U.S.
E.P.A., 53 F.3d 1324, 1327 (D.C. Cir. 1995).
5 RCRA prohibits the land disposal of liquid wastes containing 50 ppm or greater of PCBs after July 9, 1987.
See 42 U.S.C. § 6924(d).
'Language in 40 C.F.R. § 761.65(d)(3)(iv) requires applicants for storage approval to submit certain personnel
background information to EPA, including information reflecting "any past State or Federal environmental
violations involving the same business or another business with which the principals or supervisory employees
were affiliated" within the previous five years.
'National emissions standards for hazardous air pollutants (NESHAPs), 42 U.S.C. § 7412; 40 C.F.R. Part 61,
Subpart M.
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TOXIC SUBSTANCES CONTROL ACT
§§ 300f-300j-26; and the Consumer Product Safety Act, 15 U.S.C. § 2051 et
seq}
The Section 6 regulations use a three-stage phased-in prohibition on the
manufacture, importation, processing, and distribution in commerce of asbestos
in almost all products. 40 C.F.R. Part 763, Subpart I. The rules also contain a
requirement that products subject to the manufacture, importation, and processing
ban, but not yet subject to a ban on distribution in commerce, be labeled in the
manner prescribed by 40 C.F.R. § 763.171. Exemptions are given only under
very limited circumstances. 40 C.F.R. § 763.171.
Subpart I of Part 763 contains the prohibitions against the manufacture,
importation, processing and distribution of certain asbestos-containing products
and labeling requirements. Manufacture, processing and importation of flooring
felt and new uses of asbestos are banned (since 1990). Commercial paper,
corrugated paper, rollboard and speciality paper have been banned since 19%.
These prohibitions do not prevent shipment of materials through the U.S. or the
importation of small quantities of materials purchased outside the U.S. for
personal use. 40 C.F.R. §§ 763.165, 167. Distribution of flooring felt and new
uses for asbestos have been banned since 1992; distribution of commercial paper,
corrugated paper, rollboard and specialty paper have been banned since 1997. 40
C.F.R. §169.
The regulations do not ban the sale and resale of asbestos products in all settings.
For example, "distribution in commerce" does not include the resale of homes
that contain banned asbestos-containing materials, see 40 C.F.R. § 763.163, yet
it is a violation, after the ban, for a person to engage in selling rollboard or
flooring felt to anyone.
The removal and disposal of asbestos from facilities (asbestos not associated with
school building abatement) is regulated under the CAA by the asbestos
NESHAPs, as are the transportation and disposal of asbestos waste. 40 C.F.R.
§§ 61.145 and 61.150.
EPA has issued other asbestos regulations under Section 6. Subpart E in 40
C.F.R. Part 763 contains the school identification and notification rules that
require school officials to inspect school buildings, take and analyze samples,
post notices regarding the location of asbestos, and keep records of the findings.
8Asbestos waste is not regulated as a hazardous waste under RCRA, but is treated as a hazardous substance
under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and may trigger
Superfund liabilities. Note that the CERCLA Section 101 definition of "hazardous substance" excludes asbestos
that is a component of a building or structure. 42 U.S.C. § 9601(14).
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40 C.F.R. § 763.80 et seq. If asbestos materials are identified, these regulations
require school officials to formulate appropriate response actions to protect
human health and the environment. 40 C.F.R. § 763.90.
EPA regulations (the "Regulations for Asbestos Abatement Projects," 40 C.F.R.
Part 763, Subpart G) protect public employees who perform asbestos abatement
work who are not otherwise protected by available federal or state OSHA
regulations.
3. Metalworking Fluids
Section 6 regulations govern three types of metalworking fluids: Mixed mono
and diamides of organic acids, triethanolamine salt of a substituted organic acid,
and triethanolamine salt of tricarboxylic acid. The regulations impose certain use
limitations and labelling requirements. 40 C.F.R. Part 747, Subpart B.
4. Hexavalent Chromium
Section 6 of TSCA, 40 C.F.R. Part 749, prohibits the use of hexavalent
chromium (Cr+6)-based water treatment chemicals in comfort cooling towers
(CCTs)9 and the distribution in commerce of the chemicals for use in CCTs. The
rules also require that persons who distribute Cr+6-based chemicals in
commerce label containers of those chemicals indicating the increased risk of
lung cancer from exposure to Cr+6 air emissions and that the use of Cr+6-based
water treatment chemicals in CCTs is prohibited.10 Violations of these
regulations are punishable pursuant to the civil and criminal penalties contained
in 15 U.S.C.§ 2615.
5. Dibenzo-para-dioxins/Dibensofurans
Part 766 of 40 C.F.R. contains testing and reporting requirements to determine
whether chemicals specified at 40 C.F.R. § 766.25 contain Dibenzo-para-dioxins/
Dibensofurans. Any manufacturer, importer or processor of these chemicals
must test as directed and report their findings to EPA. Some precursor
substances manufacturers must test and report as well. 40 C.F.R. § 766.38.
'CCTs are used in beating, ventilation, and air conditioning or refrigeration systems.
1(>The rules do not prohibit the distribution in commerce of Cr+6-based water treatment chemicals and use of
those chemicals in "closed" cooling water systems and in industrial cooling towers.
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D. Imminent Hazards—Section 7 (15 U.S.C. § 2606)
EPA may ask the appropriate U.S. district court for a seizure or other immediate
relief, such as notification of purchasers or recall, when a chemical substance is found
to pose an imminent and unreasonable risk of serious or widespread injury to health or
the environment.
E. Reporting and Retention of Information—Section 8 (15 U.S.C. § 2607)
EPA may require submission of records and maintenance of records and reports.
Under the Act, EPA is required to compile and maintain an inventory of each
chemical substance manufactured or processed in the United States. The initial
Inventory of Chemical Substances was published July 1, 1979. The inventory
reporting regulations are located in 40 C.F.R. Part 710.
Anyone who manufactures, processes, or distributes in commerce any chemical
substance or mixture must maintain records of significant adverse reactions to health
and the environment, as defined by regulation, that are alleged to be caused by the
chemical substance. Title I also requires any person who proposes to manufacture,
process, or distribute a chemical substance or mixture to submit any health or safety
studies regarding that substance conducted for, known to, or ascertainable by that
person. Finally, Section 8(e) requires immediate reporting (that is, within IS working
days) of any information indicating that a chemical poses a substantial risk to human
health or the environment. 15 U.S.C. § 2607(e). For purposes of this chapter, the
terms "manufacture" and "process" refer to manufacture and process for a commercial
purpose.
F. Inspections and Subpoenas—Section 11 (15 U.S.C. § 2610)
Title I authorizes, upon presentation of proper credentials and notice, inspection of
establishments, facilities, and premises where chemical substances, mixtures, or Title
IV lead-based products are manufactured, processed, stored, held, or conveyed
(including the conveyance). See infra part 4 (regarding lead-based paints). The
inspection authority extends to all things within the premises that are regulated under
TSCA. Data regarding finances, sales, pricing, personnel, or research data may not
be inspected unless specified in the Notice of Inspection. Inspection pursuant to this
authority may only be conducted by individuals who have delegated authority from the
Administrator, which includes agents of EPA's Criminal Investigation Division.11
"Although TSCA Section 11 does not contain an express provision for the issuance of administrative search
warrants, they may be obtained under TSCA's authority. For example, in Botiden-Metech, Inc. v. U.S. EPA, 695
(continued...)
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TSCA gives EPA liberal authority to issue administrative subpoenas to compel the
production of documents or secure the appearances of witnesses. Sworn statements
(i. e., interviews under oath) may be taken pursuant to such an administrative
subpoena, and there is no right to have counsel present or to cross-examine a witness
subpoenaed under this provision. EPA routinely issues such subpoenas to investigate
allegations of illegal conduct. Relevant case law is limited but extremely favorable.
For example, in United States v. Atyeska Pipeline Service Co., 836 F.2d 443, 447
(9th Cir. 1988), the Court of Appeals upheld the lower court's approval of EPA's use
of TSCA subpoenas to investigate allegations of misconduct or to assure the
Administrator that violations are not taking place.
G. Exports and Imports—Sections 12 and 13 (15 U.S.C. §§ 2611 and 2612)
TSCA authorizes the regulation of a chemical intended for export only if it presents an
unreasonable risk to health or the environment of the United States. Recordkeeping
and reporting requirements of Section 8, 15 U.S.C. § 2607, apply to exports. EPA is
responsible for notifying the governments of importing countries of any regulatory
restrictions.
Imported chemical substances are subject to all requirements of TSCA. The U.S.
Treasury Department (through the U.S. Customs Service) is responsible for
establishing, in cooperation with EPA, procedures to ensure compliance. See 40
C.F.R. part 707.
H. Disclosure of Data—Section 14 (15 U.S.C. § 2613)
Section 14 of TSCA provides for protection of any confidential business information
obtained under the Act, including data obtained during an inspection. See generally
40 C.F.R. § 2.306. The manufacturer, processor, or distributor may designate
information meeting specified criteria. The final determination of whether the
information is entitled to treatment as confidential business information will be
made by EPA. Willful disclosure of confidential business information by EPA
employees or other government officers or employees or contractors is subject to
criminal penalty.12
(...continued)
F. Supp. 77 (D.R.I. 1988), the court held that under the "inspections and subpoenas" section of TSCA, EPA has
the "implied" authority to obtain ex parte administrative search warrants for purposes of fulfilling its inspection
duties under the Act.
"Such violations are within the investigative jurisdiction of the Inspector General.
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TOXIC SUBSTANCES CONTROL ACT
I. Specific Enforcement and Seizure—Section 17 (15 U.S.C. § 2616)
EPA can request a U.S. district court to take action to compel compliance with, or
restrain a violation of, any provision of the Act or rules under the Act. EPA may also
ask for seizure or condemnation of a chemical substance that has been manufactured,
processed, or distributed in commerce in violation of the Act or rule or order under
the Act.
3. Synopsis of Title II (AHERA)
In 1986, Congress enacted Title II of TSCA, the Asbestos Hazard Emergency
Response Act, 15 U.S.C. §§ 2641-54, applicable only to asbestos abatement in school
buildings.13 AHERA, which commands that EPA issue regulations to abate the
presence of asbestos-containing materials in school buildings, was passed as a
reflection of EPA's failure to take more effective action under Title I of TSCA.
Congress found that EPA's existing rules under TSCA failed to include proper
response actions for asbestos abatement and that schools lacked regulatory guidance
from EPA once they had undertaken asbestos abatement projects.
AHERA directs EPA to develop regulations requiring local educational agencies
(LEAs) to conduct inspections of their school buildings to identify asbestos-containing
materials, to develop asbestos management plans that must be submitted to the state's
governor, and to implement appropriate response actions. EPA is also directed to
develop a model accreditation plan for persons who inspect for asbestos, develop
management plans, and design or conduct response actions.
The Title II (AHERA) regulations (40 C.F.R. Part 763, Subpart E) outline the
responsibilities of LEAs and prescribe abatement measures available. As noted,
AHERA required EPA to develop a model contractor accreditation plan; this plan is
codified at Appendix C to Subpart E. The Subpart E regulations do not mandate the
removal of asbestos, but list five major types of response actions for asbestos
abatement. A brief summary of the regulations follows.
13Asbestos abatement in nonscbool buildings, including removal, transportation, and disposal, is covered by
NESHAPs provisions under the Clean Air Act. 42 U.S.C. §§ 7412, 7413.
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A. Inspection and Reinspection
Under 40 C.F.R. § 763.85, LEAs are required to carry out inspections of school
buildings for asbestos-containing materials (ACMs). The school buildings must be
inspected for the presence of friable and nonfriable ACM by an accredited inspector.
Reinspections are required at least once every three years. General assessment
procedures for accredited inspectors, to be followed during each inspection or
reinspection, are outlined in Section 763.88.
B. Sampling and Analysis
Section 763.86 permits the LEA to assume that suspected materials are ACMs; if the
assumption is not made, then the LEA must use an accredited inspector to collect
samples for analysis. Accredited laboratories must do the analysis. 40 C.F.R.
§ 763.87.
C. Management Plans
Section 763.93 requires LEAs to develop an asbestos management plan that is
prepared by an accredited asbestos management planner. The plan must describe what
is to be done about the ACM identified, how it is to be done, and by whom. A copy
of the management plan must be maintained by the LEA office and submitted to the
state.
D. Response Actions
Response actions are described in Sections 763.90 and 763.91. The regulations offer
five major response actions: operations and maintenance (0 & M), repair,
encapsulation, enclosure, removal, and the appropriate conditions under which each
may be selected by the LEA. LEAs may take into consideration, among other criteria,
which alternative is the "least burdensome." Response action contractors must be
accredited. 40 C.F.R. §§ 763.90, 763.91.
E. Civil Enforcement
Civil penalties of up to $5,000 per day for violations of AHERA may be assessed
against an LEA or responsible individuals when an LEA (1) fails to conduct proper
inspections, (2) knowingly submits false information to the governor, or (3) fails to
develop a management plan. LEAs are not subject to civil penalties under Title I for
failing or refusing to comply with AHERA regulations, but are subject to criminal
penalties and injunctive relief. Title I civil penalties do apply to persons other than
LEAs, such as an inspector, management planner, or other responsible individual.
See 40 C.F.R. § 763.97.
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TOXIC SUBSTANCES CONTROL ACT
4. Synopsis of Title m (Radon)
In 1988, Congress enacted Title III of TSCA (15 U.S.C. §§ 2661-2671) in order to
progress toward the "national long-term goal" of making buildings as free of radon as
the ambient air outside of buildings. See 15 U.S.C. § 2661. Title 01 directs EPA to
develop model construction standards, to publicize radon information, to provide
technical and grant assistance to the states, and to study both the effects of radon and
the feasibility of various regulatory schemes.
Eventually there may be some regulatory scheme applicable to radon which is subject
to criminal enforcement. However, Title m, in its present form, does not enact such
a scheme (nor does it require EPA to do so). At present, there are no substantive
radon regulations. A fee schedule is established in 40 C.F.R. Part 195 to pay for the
examination and evaluation of residential radon testing programs and personnel.
5. Synopsis of Title IV (Lead-Based Paint)
In 1992 Congress added Tide IV to TSCA (15 U.S.C. §§ 2681-2692). This Tide
directed EPA to promulgate regulations governing lead-based paint14 activities to
ensure that individuals and contractors engaged in such activities (i.e., removal,
abatement, renovation of older structures) are properly trained and accredited. EPA
also promulgated regulations, pursuant to Section 403, 15 U.S.C. § 2683, identifying
lead-based paint hazards, lead-contaminated dust, and lead-contaminated soil.
Enforcement may be delegated to the states, but EPA is required to develop a
comprehensive program of monitoring, detection, and abatement.
Congress also addressed environmental lead in the Residential Lead-Based Paint
Hazard Reduction Act, 42 U.S.C. §§ 5451- 4856. This statute provides for programs
to abate the threat of lead poisoning from old lead paint in targeted housing owned by
or subsidized by the federal government. The statute provides for grants to remove
lead paint, and sets guidelines for evaluation and reduction activities. Sellers and
landlords are required by 42 U.S.C. § 4852d to provide purchasers and tenants with
information regarding the hazards of lead paint in targeted housing. Regulations
promulgated by EPA pursuant to the Act are in 40 C.F.R. Part 745. "Violators may
be subject to civil and criminal sanctions pursuant to TSCA section 16 [15 U.S.C.
2615] for each violation." 40 C.F.R. § 745.188(f). Pre-July 1997 per occurrence
14The statute defines lead-based paint as paint containing lead in excess of 1.0 milligrams per centimeter
squared or 0.5 percent by weight. Lower levels may be established for pre-1978 "target bousing." See 15 U.S.C.
§ 2681(9).
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TOXIC SUBSTANCES CONTROL ACT
penalties are limited to $10,000; after that date, the penalty goes up to $11,000 per
occurrence.
6. Enforcement of TSCA
Section 16(a) of Title I, 15 U.S.C. § 2615(a), makes any person who violates Section
15 of Title I, 15 U.S.C. § 2614 subject to civil penalties of up to $25,000 per day per
violation. Section 16(b) of Title I, 15 U.S.C. § 2615(b), makes it a crime for any
person to knowingly or willfully violate any of the provisions of Section 15 of Title I,
15 U.S.C. § 2614, or Section 409 of Title IV, 15 U.S.C. § 2689. (As noted below,
Title II violations are enforceable as prohibited acts under Title I). Violators are
subject to a fine of not more than $25,000 per day for each day of the violation and/or
a term of imprisonment of one year.
A. Prohibited Acts
TSCA makes many of its central provisions and substantive regulations subject to civil
and criminal enforcement.
Section 15 of Title I, 15 U.S.C. § 2614, makes it unlawful for any person to—
(1) Fail or refuse to comply with:
(A) Any rule or order promulgated or issued under Section 4 of Title I, 15
U.S.C. §2603 (required testing of chemical substances).
(B) Any statutory requirement contained in or any rule or order promulgated
or issued under Section 5 (premanufacture notices) or Section 6
(regulation of chemical substances, i.e., PCBs,15 asbestos, metalworking
fluids, etc.), 15 U.S.C. §2604 or 2605.
(Q Any requirement of Title II (AHERA) or any rule or order promulgated or
issued under Title n, 15 U.S.C. §§2641 - 2656.
(2) Use for commercial purposes a chemical substance or mixture which such
person knew or had reason to know was manufactured, processed or
distributed in commerce in violation of Section 5 or Section 6, 15 U.S.C. §
2604 or 2605, or in violation of any order or rule under Section 5 or Section
lsSee, e.g., United States v. Ward, 676 F.2d 94 (4th Cir.), cert, denied, 459 U.S. 835 (1982), United States v.
Pacific Hide & Fur Depot, Inc., 768 F.2d 10% (9th Cir. 1985), and United States v. Catucci, 55 F.3d 15 (1"
Cir. 1995), TSCA cases involving criminal violations of the PCB regulations.
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TOXIC SUBSTANCES CONTROL ACT
6, or order issued in an action brought under Section 5 or Section 7, 15
U.S.C. § 2604 or 2606.
(3) To fail or refuse to establish or maintain records, submit reports, notices, or
other information, or to permit access to or copying of records, as required by
TSCA or any rule under TSCA.
(4) To fail or refuse to permit entry or inspection as required by Section 11 of
Title I, 15 U.S.C. § 2610.
Section 409 of Title IV, 15 U.S.C. § 2689 makes it unlawful for any person to fail or
refuse to comply with any provision of Title IV (relating to lead-based paint) or with
any rule promulgated or order issued under Title IV.
B. Criminal Enforcement
Section 16(b), 15 U.S.C. § 2615(b), provides that "any person who knowingly or
willfully violates any provision of Section 2614 or 2689 of this title [Section 15 of
Title I or Section 409 of Title IV], shall, in addition to or in lieu of any civil penalty
which may be imposed under subsection (a) of this section for such violation, be
subject, upon conviction, to a fine of not more than $25,000 for each day of violation,
or to imprisonment for not more than one year, or both."
C. Elements
I. In General
The specific elements will vary, depending on the language of the regulation
violated.16 The general elements necessary to prove a violation of these
regulations are—
(1) The defendant knowingly or willfully17
(2) Failed or refused to comply with [insert text of regulation or
order violated]
(3) Regarding a substance regulated under TSCA or AHERA.
,6The elements for violating the PCB tracking regulations are the same as the RCRA elements, because EPA
used the RCRA regulations as a model for die PCB waste regulations.
11 See discussion of proof of general intent for "knowing violations" elsewhere in this manual.
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The following are examples of the elements of various violations that may be charged
pursuant to TSCA:
2. Violation of PCB Regulations
(1) The defendant knowingly or willfully
(2) Failed or refused to comply with [a PCB regulation], and
(3) The PCB substance contained 50 ppm or greater PCBs.18
3. Violation of the Premanufacture Notice Requirements
(1) The defendant knowingly or willfully
(2) Failed or refused to submit the notice requirement, and
(3) The chemical substance was a new chemical, or the chemical substance
was manufactured or processed for a use designated by regulation as a
new use.
4. Use for a Commercial Purpose of Substances Manufactured or Distributed in
Violation of Sections 5, 6, or 7 of TSCA, 15 U.S.C. § 2604, 2605, or 2606
(1) The defendant knowingly or willfully
(2) Used a chemical substance under TSCA
(3) For a commercial purpose
(4) That was manufactured, processed, or distributed by defendant in
violation of Section 5 or 6 or an order or rule under Section 5, 6, or 7.
5. Reporting Violations
(1) The defendant was subject to a recordkeeping, reporting, or access
for copying requirement under TSCA, and
(2) The defendant knowingly or willfully
18The concentration level set forth in the third element must be included because, with exceptions noted in the
regulation, TSCA regulations generally apply to substances containing SO ppm or more PCBs. 40 C.F.R
§ 761.1(b).
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TOXIC SUBSTANCES CONTROL ACT
(3) Failed or refused to comply with the requirement.
6. Denial of Entry
(1) EPA provided appropriate written notice to the owner, operator, or
agent in charge of the facility prior to the inspection.
(2) The facility was subject to inspection under the TSCA.
(3) An EPA representative thereafter sought entry to the premises for a
legitimate purpose under the TSCA.
(4) The EPA representative presented appropriate credentials.
(5) The defendant thereafter knowingly or willfully denied the EPA
representative access to the premises.
7. AHERA Violations
(1) The defendant knowingly or willfully;
(2) failed or refused to comply with [an AHERA regulation, requirement, or
order]
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Chapter 13
Federal Insecticide, Fungicide, and
Rodenticide Act
(7 U.S.C. §§ 136-136y)*
Table of Contents
Page
1. Introduction 13-3
2. Overview: Statutory and Regulatory Framework 13-3
A. Registration, Classification, and Labeling of Pesticides (FIFRA § 3,7 U.S.C. § 136a) 13-3
B. Experimental Use Permits (FIFRA § 5,7 U.S.C. § 136c) 134
C. Cancellation and Suspension of Pesticides (FIFRA §6,7 U.S.C. §136d) 13-5
D. Registration of Establishments (FIFRA § 7,7 U.S.C. § 136e) 13-6
E. Inspection of Establishments (FIFRA § 9,7 U.S.C. § 136g) 13-6
F. Use of Restricted-Use Pesticides; Certified Applicators (FIFRA §11,7 U.S.C. § 136i) .... 13-7
G. Unlawful Acts (FIFRA § 12, 7 U.S.C. § 136j) 13-7
H. Penalties (FIFRA § 14,7 U.S.C. § 1361) ....: 13-7
I. Stop Sale, Use, Removal, and Seizure (FIFRA § 13,7 U.S.C. § 136k) 13-8
J. Imports and Exports (FIFRA § 17,7 U.S.C. § 136o) 13-8
K. Storage, Disposal, Transportation, and Recall (FIFRA § 19,7 U.S.C. § 136q) 13-9
"Original version prepared by Susan B. Squires (formerly with the Environmental Crimes Section);
revised by Jeremy F. Korzenik, Trial Attorney, and James A. Morgulec, Senior Trial Attorney, Environmental
Crimes Section.
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L. State Primary Enforcement Responsibility (FIFRA § 26,7 U.S.C. § 136w-1) 13-9
M. Failure by the State To Assure Enforcement of State Pesticide Use Regulations
(FIFRA § 27, 7 U.S.C. § 136w-2) 13-10
3. Unlawful Acts and Criminal Penalties 13-10
A. Unlawful Acts (FIFRA, § 12, 7 U.S.C. § 136j) 13-10
B. Criminal Penalties (FIFRA §14,7 U.S.C. § 1361) 13-12
1. Criminal Penalties for Registrants, Applicants, and Producers Who Commit
Knowing Violations of Substantive Provisions of the Statute 13-12
2. Criminal Penalties for Commercial Applicators and Distributors and Sellers
Who Commit Knowing Violations of Substantive Provisions of the Statute 13-14
a. Issue: Determining Whether a Pesticide Is Registered or Unregistered 13-15
b. Issue: Whether the Term "Distribution''of a Pesticide
Includes "Use" of the Substance 13-17
3. Criminal Penalties for Private Applicators and Others Who Commit Knowing
Violations of Substantive Provisions of the Statute 13-19
4. Criminal Penalties for Unlawful Disclosure of Information 13-20
4. Relevant Terminology (FIFRA § 2,7 U.S.C. § 136) 13-22
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FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
1. Introduction
The primary purpose of the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA or the Act) is to regulate the sale, distribution, and use of pesticides.1 The
Act, which is enforced by the Environmental Protection Agency (EPA),
accomplishes its goals primarily through a statutory and regulatory framework that
requires that pesticides be classified, registered, labelled, sold, distributed, used, and
disposed of in accordance with applicable rules. Violators may be subject to civil or
criminal sanctions. 7 U.S.C. §§ 136j, 1361.
The following analysis of FIFRA is divided into three main parts: Part 2, largely a
"walk-through" of relevant statutory and regulatory provisions, is intended to
provide an outline of how the statute is organized and how it operates to achieve its
objectives. Part 3 is a more detailed discussion of criminal enforcement aspects of
the statute. Part 4 sets forth relevant terminology.
2. Overview: Statutory and Regulatory Framework
A. Registration, Classification, and Labeling of Pesticides
(FIFRA § 3,7 U.S.C. § 136a)
Registration and labeling of pesticides comprise the mainstays of the FIFRA
regulatory program. To register a pesticide, a person must first submit data to the
EPA Administrator for review. The required submission should include the
pesticide's proposed use and sample label. 7 U.S.C. § 136a(c).
Once registered, pesticides must be labeled consistently with their registration and
then used as directed by the label.2 Deficiencies in the label may amount to
"misbranding" as defined in the Act, as false and misleading statements.
See 7 U.S.C. § 136(q). The regulations provide examples of false and misleading
statements. See, e.g., 40 C.F.R. § 156.10(a)(5).3
Except as otherwise provided in the Act, no person may distribute or sell any
unregistered pesticide. 7 U.S.C. § 136a(a). There are exceptions: (1) an
unregistered pesticide may be transferred from one registered establishment to a
second registered facility solely for packaging or use as a constituent part of
another pesticide; or (2) if the transfer is pursuant to an experimental use permit.
7 U.S.C. § 136a(b).
'7 U.S.C. §§ 136-136y. Regulations promulgated under the Act begin at 40 C.F.R. Part 152.
2"Label" is defined in Section 136(p) of the Act. Regulations pertaining to labeling can be found at
40 C.F.R. Pan 156.
3All C.F.R. citations are to the 1994 edition.
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FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
The Act sets forth registration and data collection procedures in considerable detail.
7 U.S.C. § 136a(c).
The Act also requires EPA to classify pesticides for either "general" or "restricted"
use according to general criteria specified in the Act. 7 U.S.C. § 136a(d). A
pesticide will be classified for "general" use if the Administrator determines that it
will not generally cause unreasonable adverse effects on the environment when
applied according to directions or in accordance with commonly recognized
practice.4 The Administrator will classify a pesticide for "restricted" use if he
determines that the pesticide, when applied either according to directions or in
accordance with a widespread and commonly recognized practice, may cause
unreasonable adverse effects on the environment, including injury to the applicator.5
A single pesticide may be classified for "general use" in some instances and for
"restricted use" in others, depending on how it is going to be used. In such
instances, the pesticide must be marketed and labeled separately for the different
uses. 7 U.S.C. § 136a(d)(l)(C); 40 C.F.R. § 156.10. Restricted-use pesticides must
be applied "by or under the direct supervision of a certified applicator." 7 U.S.C.
§ 136a(d)(l)(C).6
B. Experimental Use Permits (FIFRA § 5,7 U.S.C. § 136c)
Any person may apply to the Administrator for an experimental use permit.
7 U.S.C. § 136c(a). Within 120 days of receipt of the application and supporting
data, the Administrator must either issue the permit or notify the applicant that a
permit will not be issued. Id A permit may be issued only if the Administrator
determines that the applicant needs the permit in order to accumulate information
necessary to register a pesticide. Id Experimental use permits may be revoked at
any time if their conditions are violated. 7 U.S.C. § 136c(e). States may also be
authorized to issue their own experimental use permits. 7 U.S.C. § 136c(f).
The Administrator may require that studies be conducted to determine whether the
use may cause unreasonable adverse effects on the environment, and the results must
be reported to the Administrator before such pesticide may be registered. 7 U.S.C.
§ 136c(d).
4The definition of "environment" includes man and other animals. 7 U.S.C. § 136(j).
sGenerally, EPA only classifies restricted-use pesticides. Pesticides whose uses are not restricted are left
unclassified. If that is the case, they may be handled as general-use pesticides. See 40 C.F.R. § 152.160.
'"Direct supervision" does not usually mean that the certified applicator must be present; a certified
applicator must physically be present only if EPA has specified this requirement in the registration or
classification and the requirement appears on the label. See 7 U.S.C. § 136(eX4); 40 C.F.R. § 156.10(i)(x)(E).
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A one-year experimental use permit may be issued to agricultural research agencies,
provided that the pesticide is used only for purposes of experimentation. 7 U.S.C.
§ 136c(g).
C. Cancellation and Suspension of Pesticides (FIFRA § 6,7 U.S.C. § 136d)
FIFRA requires the Administrator to cancel a pesticide's registration after five years
unless the registrant requests re-registration. 7 U.S.C. § 136d(a)(l). Even though
the registration is canceled, the Administrator may allow the continued use and sale
of existing stocks if he determines that the purposes of FIFRA are met and that no
unreasonable adverse effects on the environment would result. Id.
If at any time following registration a registrant has factual information regarding a
pesticide's unreasonable adverse effects on the environment, the registrant must
submit that information to the Administrator. 7 U.S.C. § 136d(a)(2).
Apart from the automatic cancellation provisions, the Act also authorizes the
Administrator to cancel or suspend a registered pesticide: (1) if the labeling or other
required submissions do not comply with the Act; or (2) if, according to common
practice, the use generally causes adverse effects on the environment. 7 U.S.C.
§ 136d(b). Advance notice and/or an opportunity for a hearing are given unless the
Administrator determines that an imminent hazard exists. 7 U.S.C. § 136d(b)
and (c) and 7 U.S.C. § 136a(c)(2)(A)(iv). Under these circumstances, an immediate
suspension may be ordered, accompanied by an expedited hearing. Id. Final orders
of the Administrator are subject to judicial review. See 7 U.S.C. § 136n.
Proposed action by the Administrator becomes final and effective 30 days after
receipt of the notice by the registrant or publication unless the registrant corrects the
situation or requests a hearing. 7 U.S.C. § 136d(b).
Certain classes of individuals, including producers, exporters, registrants, and those
who distribute or sell pesticides, must notify the Administrator if they possess any
canceled or suspended pesticide. 7 U.S.C. § 136d(g). The notice must include the
amount and location of the stored pesticide. Failure to notify the Administrator of
such possession is a violation of the Act. 7 U.S.C. § 136j(a)(2)(K).
Once canceled or suspended, the distribution, sale, or use of the pesticide except in
accordance with the cancellation or suspension notice is a violation of the Act.
7 U.S.C. § 136j(a)(l); 40 C.F.R. §§ 152.148(f), 152.150(d).7 The Act also arms
EPA with the authority to issue a "stop sale, use, or removal order" for canceled or
suspended pesticides or for those pesticides that it has a reason to believe are in
violation of the Act. 7 U.S.C. § 136k. Stop sale orders may be issued to anyone
7These acts could probably be charged either under Section 136j(a)(l)(A) (distribution or sale of a canceled
or suspended pesticide) or Section 136j(a)(2)(J) or (K) (violation of a cancellation or suspension order).
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FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
owning, controlling, or in custody of such pesticides. Violating a stop sale order
after receipt is also an offense. 7 U.S.C. § 136j(a)(2)(I).
D. Registration of Establishments (FIFRA § 7,7 U.S.C. § 136e)
All establishments that produce pesticides or active ingredients used in pesticides
must be registered with EPA and assigned an establishment number. 7 U.S.C.
§ 136e(a) and (b); 40 C.F.R. § 167.20. Producers must, within 30 days of
registration, inform the Administrator of the types and amounts of pesticides being
produced. 7 U.S.C. § 136e(c)(l). Registered establishments must maintain
production, sales, and distribution information; producers must also submit annual
reports containing such information to the Administrator. Id; 40 C.F.R. § 167.85.
Upon request, producers must supply the Administrator with the name and address
of any recipient of any pesticides they produce to aid in the issuance of a stop sale
order under Section 136k. 7 U.S.C. § 136e(c)(2).
All producers, distributors, carriers, dealers, and transporters of pesticides must also
make certain other information available to EPA upon request, including records and
information relating to the delivery, movement, or holding of pesticides. 7 U.S.C. §
136f(b).
E. Inspection of Establishments (FIFRA §9,7 U.S.C. §136g)
FIFRA authorizes entry, at reasonable times, of any establishment or other place
where pesticides are held for distribution or sale or any place where suspended or
canceled pesticides are being held. 7 U.S.C. § 136g(a). Before conducting an
administrative, inspection, government officials must present their credentials and a
written statement of the reason for the inspection, including whether a violation is
suspected. Id If no violation is suspected, an alternative justification for the
inspection must be given. Id. If investigators take samples during an inspection,
split samples must be given to the operator of the establishment if they are
requested. Id.
Administrative search warrants may also be obtained by officers or employees so
empowered by the Administrator. 7 U.S.C. § 136g(b). Such warrants authorize
entry for inspection and reproduction of records and seizure of any pesticide or
"device" in violation of this subchapter. Id
This section also directs that if, after examination of a pesticide, a violation is
suspected, the person against whom criminal or civil proceedings are contemplated
must be given notice of the violation and the opportunity to respond to the
allegations. 7 U.S.C. § 136g(c)(l). If a proceeding is still contemplated following
the notice and response, the Administrator must certify the facts to the Attorney
General. Id. However, notice of contemplated proceedings is not a prerequisite to
the institution of proceedings by the Attorney General. 7 U.S.C. § 136g(c)(2).
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FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
F. Use of Restricted-Use Pesticides; Certified Applicators (FIFRA §11,
7 U.S.C. § 136i)
The Act provides that the Administrator must set up a program for the certification
of applicators of restricted-use pesticides and prescribe standards that ensure that, in
order to be certified, an individual is competent in the use and handling of
pesticides. 7 U.S.C. § 136i(a)(l).
If a state desires to perform its own certification of applicators, the governor of that
state may submit a state plan that conforms to federally determined requirements.
7 U.S.C. § 136i(a)(2). Once the state program is approved, the state is empowered
to issue certifications. Id.-, 7 U.S.C. § 136i(b). When a proposed state plan is not
approved, the Administrator retains authority to perform certifications. The
Administrator also may, after providing notification and a hearing, withdraw its
approval of any state plan that is not being properly administered. Id
There are separate standards for commercial and private applicators. 7 U.S.C.
§ 136i(e). Private applicators may not be required to maintain any records or file
any reports or other documents. 7 U.S.C. § 136i(d).
G. Unlawful Acts (FIFRA § 12,7 U.S.C. § 136j)
Section 12, FIFRA, contains a long list of "unlawful acts" or prohibitions. 7 U.S.C.
§ I36j(a). These prohibitions, which may form the basis for either civil or criminal
enforcement action, are summarized in Part 3 below. Section 12 also lists
exemptions from some of the prohibitions, 7 U.S.C. § 136j(b). See Part 3, infra,
Unlawful Acts and Criminal Penalties.
H. Penalties (FIFRA § 14,7 U.S.C. § 136I)
Civil penalties of up to $5,000 per offense may be imposed for violations of the Act.
7 U.S.C. § 1361(a). Criminal misdemeanor penalties of up to one year and/or
$50,0008 also are set forth. 7 U.S.C. § 1361(b). See Part 3, infra, Unlawful Acts
and Criminal Penalties. Most of the unlawful acts that might form the bases for
civil enforcement actions or criminal prosecutions are set forth in the list of
prohibitions found in Section 12, FIFRA, 7 U.S.C. § 136j(a).
FIFRA grants primary civil enforcement responsibility for pesticide use violations to
states, provided that the Administrator has approved the state enforcement plan or
the state has entered into a cooperative program with EPA. In emergencies,
however, EPA may still enforce the statute regardless of whether a state has primary
authority. See 1 U.S.C. § 136w-2(a). Note, however, that the United States has
always taken the position that this provision in no way limits the Attorney General
from prosecuting criminal violations; limitations on prosecutorial authority must be
'These penalties may be increased pursuant to 18 U.S.C. § 3571. See section on Criminal Penalties.
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FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
clearly and unambiguously expressed. See, e.g., United States v. Morgan, 222 U.S.
274, 282 (1911).9
The Act also sets forth guidelines for protection of trade secrets, including felony
criminal provisions that are enforceable against federal employees or others who
willfully disclose protected information. 7 U.S.C. § 136h.
I. Stop Sale, Use, Removal, and Seizure (FIFRA § 13,7 U.S.C. § 136k)
The Administrator may issue a "stop sale, use, or removal" order when a pesticide
or device is in violation of any provision of the statute, or when the registration has
been suspended or canceled. 7 U.S.C. § 136k(a). Any pesticide may be seized if it
is adulterated or misbranded, not registered, mislabeled, "improperly colored," or if
the claims made for the pesticide or directions for use differ from representations
made during registration. 7 U.S.C. § 136k(b)(l). A "device" may be seized if it is
misbranded. 7 U.S.C. § 136k(b)(2). Finally, a pesticide or device may be seized if
it causes unreasonable adverse effects to the environment 7 U.S.C. § 136k(b)(3).
J. Imports and Exports (FIFRA § 17,7 U.S.C. § 136o)
Section 17 of the Act specifies requirements for the importation and exportation of
pesticides and devices. Subject to certain limitations, pesticides produced for export
are exempt from the registration requirements of section 136a, 7 U.S.C. However,
producers of pesticides to be exported are required to register the establishments that
produce the pesticides, and they are subject to the same recordkeeping requirements
as other producers. 7 U.S.C. § 136o(a) (referencing 7 U.S.C. §§ 136e and 136f).
They are, moreover, subject to many of the labeling requirements. For example, the
label of an unregistered pesticide produced for export must specifically state that it
is not for use in the United States. 40 C.F.R. § 168.65.
The Act also requires that foreign purchasers be notified that a pesticide is
unregistered in the United States, and that they acknowledge such notification.
7 U.S.C. § 136o(a)(2). A copy of the statement of nonregistration must be sent to
"an appropriate official of the government of the importing country." Id. In
practice, however, EPA has only required an annual statement for the first shipment
of an unregistered pesticide. (For further discussion on EPA's policies
implementing the export and import provisions, see 45 Fed. Reg. 50, 274 (July 28,
1980); 55 Fed. Reg. 4,967 (February 12, 1990); 55 Fed. Reg. 4,956 (February 12,
1990); 19 C.F.R. § 12.110.)
®In United States v. Orkin Exterminating Co., Inc., 688 F. Supp. 223 (WD. Va. 1988), the defendant sought
to dismiss a five-count indictment, arguing that state primary enforcement authority precluded federal criminal
enforcement except in the limited circumstances provided by statute. The United States argued that limitations
on the prosecutorial authority of the Attorney General had to be expressly stated (and no such limitation appears
in FIFRA). The court accepted the United States' argument and denied the motion. The defendant later
petitioned for mandamus to force the district court judge to dismiss the indictment on the same grounds (In re
Orkin Exterminating Co., Inc., No. 88-5821 (4th Cir. 1988)). The petition was denied.
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K. Storage, Disposal, Transportation, and Recall (FIFRA § 19,7 U.S.C. § 136q)
The Administrator has authority to require data from registrants or applicants on safe
storage and disposal of pesticides; issue regulations or orders concerning the storage,
transportation, or disposal of suspended or canceled pesticides and their containers,
rinsates, or other materials; provide for recalls, including reimbursement in some
circumstances; and conduct a pesticide container study. 7 U.S.C. § 136Q.
The section also provides that nothing in it shall "diminish the authorities or
requirements of the Solid Waste Disposal Act (42 U.S.C. § 6901 et seq.) [otherwise
known as the Resource Conservation and Recovery Act—or RCRA]." 7 U.S.C.
§ 136q(h). The interrelationship between FIFRA and RCRA in this area, however,
remains largely untested.10
L. State Primary Enforcement Responsibility (FIFRA § 26,7 U.S.C. § 136w-1)
States have primary enforcement responsibility for pesticide use violations when the
Administrator determines that the state:
1. Has adopted adequate pesticide use laws and regulations;
2. Has adopted and is implementing adequate procedures for the enforcement
of such state laws and regulations; and
3. Will keep such records and make such reports showing compliance with
(1) and (2) above.
7 U.S.C. § 136w-l(a). In addition, any state that has entered into a cooperative
agreement with the Administrator pursuant to 7 U.S.C. §§ 136u and 136i will have
primary enforcement responsibility. It should be noted, however, that this does not
limit federal criminal enforcement. See United States v. Corbin Farm Service, 444
F. Supp. 510 (E.D. Cal.), ajfd in part, 578 F.2d 259 (9th Cir. 1978).
10Pursuant to regulations promulgated under RCRA, 42 U.S.C. § 6901 et seq., EPA lists certain pesticides as
hazardous wastes. See, e.g., 40 C.F.R. § 261.33. FIFRA regulations recommend that owners of "excess
pesticides" first use them (if allowed by law) or return them to the manufacturers or distributors for potential
relabeling, recovery, or reprocessing. "Excess pesticides" include all pesticides that cannot be legally sold
pursuant to FIFRA, or that are to be discarded. 40 C.F.R. § 165.1(pXl). FIFRA regulations require that certain
U.S. Department of Transportation requirements be met, but do not specifically mention RCRA requirements. 40
C.F.R. § 165.2. As noted above, the storage and disposal provision in FIFRA states that nothing in the section
"shall diminish the authorities or requirements of the Solid Waste Disposal Act [RCRA] (42 U.S.C. § 6901 et
seq.)." 7 U.S.C. § 136q(h).
RCRA requirements, therefore, may apply when the pesticide becomes a "waste." 40 C.F.R. § 261.2 et seq.
This determination, however, should be carefully considered in instances where a canceled or suspended pesticide
is being returned to a manufacturer who may find another use for the substance. [See RCRA chapter discussion
on "Relationship With Other Environmental Statutes" and on the definition of "hazardous waste."] See also
discussion, infra, on exempting individuals from certain penalties.
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FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
M. Failure by the State To Assure Enforcement of State Pesticide
Use Regulations (FIFRA § 27,7 U.S.C. § 136w-2)
If, within 30 days after receiving a complaint or information alleging a significant
violation, a state has not commenced appropriate enforcement action, the
Administrator may act upon the complaint or information to the extent authorized
under the statute. 7 U.S.C. § 136w-2(a). EPA has entered into agreements with
states defining the violations to be deemed significant under this provision. Where
the Administrator determines that a state has not carried out its responsibility for
enforcement, action may be taken to remove the program from the state. 7 U.S.C.
§ 136w-2(b).
3. Unlawful Acts and Criminal Penalties
Sections 12 and 14 of FIFRA, 7 U.S.C. §§ 136j and 1361, provide the principal
criminal enforcement tools in the Act. Section 12, 7 U.S.C. § 136j(a), consists
largely of two lists of "unlawful acts," the violation of which may form the basis
for criminal prosecution under Section 14, 7 U.S.C. § 1361. 7 U.S.C. §§ 136j(a)(l)
and (a)(2). Section 12 also contains a list of exemptions that exclude certain
persons or categories of persons from prosecution pursuant to the first of the two
lists. 7 U.S.C. § 136j(b). This arrangement is spelled out in detail in Parts 3.A. and
3.B. below.
A. Unlawful Acts (FIFRA, § 12,7 U.S.C. § 136j)
Section 13 6j (a)(1) provides that, except as provided in subsection (b) of section
136j, it shall be unlawful for any person in any state to distribute or sell to any
person—
1. Unregistered pesticides, or those whose registration has been canceled or
suspended (unless otherwise authorized by the Administrator).
2. Pesticides where claims made for distribution or sale differ substantially
from registration statements.
3. Pesticides where the composition differs from that made in the registration
statement.
4. Pesticides that have not been colored or discolored, pursuant to Section
136w(c)(5).
5. Adulterated or misbranded pesticides.
6. Misbranded devices.
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Section 136j(a)(2) also provides (without qualification) that it shall be unlawful for
any person—
1. To detach, alter, deface, or destroy, in whole or in part, any labeling
required under this subchapter.
2. To refuse to (a) prepare, maintain, or submit any records; (b) submit any
reports required under Sections 136c (experimental use), 136d (cancellation
and suspension), 136e (registered establishments), 136f (books and records
required of producers, registrants, and applicants for registration), 136i
(restricted use pesticides; applicators), or 136q (storage, disposal,
transportation, and recall); or (c) allow entry, inspection, record copying, or
sampling authorized by the Act.
3. To give a false guaranty.
4. To use for his or her own advantage or reveal confidential information
provided pursuant to the Act.
5. Who is a registrant, wholesaler, dealer, retailer, or other distributor, to
advertise a registered product for restricted use without giving the
classification assigned to it.
6. To distribute, sell, make available for use, or use a registered, restricted-use
pesticide other than in accordance with Section 136a(d).
7. To use any registered pesticide in a manner inconsistent with its labeling.
8. To use any experimental use pesticide contrary to its permit.
9. To violate any stop sale order.
10. To violate any suspension order.
11. To violate any cancellation order, or fail to give notice to the Administrator
of possession of a canceled or suspended pesticide.
12. Who is a producer, to violate the establishment requirements under
Section 136e.
13. Knowingly to falsify all or part of any application for registration or for an
experimental use permit, or any records or reports required to be filed
or maintained.
14. Who is a registrant, wholesaler, dealer, retailer, or other distributor, to fail to
file required reports.
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FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
15. To add or delete any substances to or from a pesticide in a manner to defeat
the purpose of the statute.
16. To use humans in testing pesticides unless they are fully informed of
the nature and reasonably anticipated consequences and unless they
freely volunteer.
17. To falsify all or part of any information relating to the testing of any
pesticide or ingredient, including protocols, procedures, observations,
conclusions, or opinions submitted to the Administrator (or which the person
knows will be submitted or kept as part of a record required by the Act).
18. To submit data known to be false in support of a registration.
19. To violate any regulation related to Section 136a(a) (registration) or 136q
(storage, disposal, transportation, or disposal).
Section 136j(b) lists certain exemptions, specifically, that the prohibitions set forth
in Section 136j(a)(l) do not apply to—
1. Any person who establishes or receives a guaranty that the pesticide in
question is lawfully registered and otherwise complies with all requirements.
2. Any carrier while lawfully shipping, transporting, or delivering any pesticide
or device if such person produces its records upon request
3. Any public official engaged in the performance of his official duties.
4. Any person possessing a pesticide pursuant to an experimental use permit.
5. Any person who ships a substance or mixture for testing, the purpose of
which is to determine the value of the substance for pesticide purposes or to
determine its toxicity or other properties and the user does not expect to
receive any benefit in pest control from its use.
B. Criminal Penalties (FIFRA § 14,7 U.S.C. § 1361)
The following is an analysis of the criminal provisions of the statute. As noted
above, these provisions set forth criminal sanctions for violations of the unlawful
acts listed above, and/or for other proscriptions found within the statute.
1. Criminal Penalties for Registrants, Applicants, and Producers Who Commit Knowing
Violations of Substantive Provisions of the Statute
Section 1361(b)(1)(A), 7 U.S.C., the first of the criminal provisions listed in
Section 1361(b) provides that—
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Any registrant, applicant for registration, or producer who knowingly
violates any provision of this subchapter may be fined up to a
maximum of $50,000", or imprisoned for not more than one year,
or both.
The elements of this offense are as follows:
(1) Any registrant, applicant for registration, or producer who
(2) Knowingly
(3) Violates any provision of the subchapter
(4) Shall be guilty of an offense.
7 U.S.C. § 1361(b)(1)(A).
As is apparent from the first of the above elements, the violation is
applicable only to certain categories of persons. The term "registrant" refers
to "a person who has registered any pesticide pursuant the provisions of
[FIFRA]." 7 U.S.C. § 136(y). It is reasonable to assume that the term
"applicant for registration" refers to one who has applied to register a
pesticide and/or an "establishment" that manufactures or produces pesticides.
The term "producer" means "the person who manufactures, prepares,
compounds, propagates, or processes any pesticide or device or active
ingredient used in producing a pesticide." 7 U.S.C. § 136(w).
The second element is that the violation be undertaken "knowingly." An act
is done "knowingly" by a person if the person was "conscious and aware" of
his act (or omission), if he "realized what he was doing" or "what was
happening around him," and if he did not act or fail to act because of
ignorance, mistake, or accident. 1 E. Devitt, C. Blackmar, M. Wolff &
K. O'Malley, Federal Jury Practice and Instructions, § 17.04 (4th ed.
1992).12
"The maximum fines shown here and in the following paragraphs are those set out in FIFRA. The
applicable maximums may, of course, be higher in accordance with provisions of the Alternative Fines Act, 18
U.S.C. §3571.
I2Proof of specific intent, or "willfulness," is not required. In United States v. Corbin Farm Service, 444 F.
Supp. 510 (E.D. Cal.), off"d in part, 578 F.2d 259 (9th Cir. 1978), the court considered the meaning of the term
"knowingly" in the criminal provision set forth above. 7 U.S.C. § 1361(b). The defendants in that case were
charged with violating FIFRA by applying or causing to be applied a registered pesticide in a manner contrary to
its labeling. Id. In finding FIFRA analogous to other regulatory "public welfare" statutes, the court held that
knowledge of the facts is required, but that specific intent to violate the law, i.e., knowledge of the specific
regulation, is not a necessary element of the crime. Corbin Farms, 444 F. Supp. at 519. See generally sections
of this manual addressing knowledge and intent
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Under FIFRA, any criminal acts undertaken by persons falling within the
categories of persons potentially liable are also attributable to the employers
of those persons. Section 1361(b)(4) states—
When construing and enforcing the provisions of this subchapter, the
act, omission, or failure of any officer, agent, or other person acting for
or employed by any person shall in every case be also deemed to be
the act, omission, or failure of such person as well as that of the
person employed.
7 U.S.C. § 1361(b)(4). This provision, which is highly analogous to various
theories that attribute criminal liability to "responsible corporate officers,"
has seldom, if ever, been tested. It therefore is unclear what level of
knowledge, if any, is required to hold employers or other supervisory
personnel criminally liable for the acts of employees. The above criminal
provision is applicable to all of the criminal provisions in FIFRA. 7 U.S.C.
§ 1361(b)(4). See generally sections of this manual addressing knowledge
and intent.
The third element, that there be a violation of "any provision of this
subchapter," suggests that the range of potential criminal conduct is broad,
and includes all or substantially the same categories of conduct for which
civil enforcement action might also be justified. 7 U.S.C. § 1361(b)(1)(A).
These categories of conduct include, but are not limited to, those listed in
Sections 136j(a)(l) and (a)(2). 7 U.S.C. § 136j(a). Deciding which of the
various substantive provisions to charge is sometimes one of the most
challenging parts of a FIFRA case.
2. Criminal Penalties for Commercial Applicators and Distributors and Sellers Who
Commit Knowing Violations of Substantive Provisions of the Statute
The second criminal provision, 7 U.S.C. § 1361(b)(1)(B), is substantially the
same as the first, inasmuch as both involve (1) certain categories of persons;
(2) who knowingly; (3) violate substantive provisions of FIFRA. There are,
however, two significant differences. First, the provision applies to
"commercial applicators of restricted use pesticide[s]" and others who are
not included as potential defendants in Section 1361(b)(1)(A) who distribute
or sell pesticides or devices. Id. Second, the maximum fine is set at
$25,000 instead of $50,000.13
13The section, in its entirety, is as follows:
Any commercial applicator of a restricted use pesticide, or anyone not covered by (a), above, who
distributes or sells pesticides and who knowingly violates any provision of this subchapter is subject
to a fine of not more than $25,000, or imprisonment for not more than 1 year, or both.
7 U.S.C. § 1361(bXl)(B).
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To establish a violation of Section 1361(b)(1)(B), the government must prove
the following elements:
(1) Any commercial applicator of a restricted use pesticide or any other
person not described in [§ 1361(b)(1)(A)] who distributes or sells
pesticides or devices who
(2) Knowingly
(3) Violates any provision of the subchapter
(4) Shall be guilty of an offense.
7 U.S.C. § 1361(b)(1)(B).
The term "commercial applicator" is defined to include "an applicator
(whether or not the applicator is a private applicator with respect to some
uses) who uses or supervises the use of any pesticide which is classified for
restricted use for any purpose or on any property other than as [a private
applicator]." 7 U.S.C. § 136(e)(3).
For a detailed discussion of issues arising in connection with the knowledge
element and the requirement that the defendant commit a substantive
violation of the statute, see Part 3.B.I. above.
a. Issue: Determining Whether a Pesticide Is Registered or Unregistered
The most serious violations of FIFRA often involve pesticide misuse.
The two FIFRA substantive provisions that most directly address
pesticide misuse are 7 U.S.C. § 136j(a)(2)(F), which prohibits the use
of a registered pesticide in a manner inconsistent with the terms of its
registration, and 7 U.S.C. § 136j(a)(2)(G), which prohibits the use of
any registered pesticide in a manner inconsistent with its labeling.
Pesticide misuse might also be chargeable under 7 U.S.C.
§ 136j(a)(2)(I), (J), and (K), which prohibit the violation of EPA orders
regulating the use or distribution of pesticides. All of these provisions,
however, apply only to registered pesticides.14
14A pesticide the registration of which has been suspended or canceled is an unregistered pesticide. Thus,
the sale or use of such a pesticide could be charged both as a distribution of an unregistered pesticide under
Section 136j(a)(l)(A) and as a violation of an EPA suspension or cancellation order under Section
136j(a)(2)(D,(J), or (K).
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The only enforcement section that regulates unregistered pesticides is
7 U.S.C. § 136j(a)(l)(A).ls It prohibits the sale or distribution of any
unregistered pesticide or any pesticide the registration of which has
been canceled or suspended. Id. Since different enforcement
provisions of FEFRA apply to unregistered and registered pesticides,
one must first determine the regulatory status of the pesticide involved
before identifying the appropriate charging section. Often, this is not
an easy task.
As discussed in Part 1 above, under FIFRA, a pesticide is registered if
it was manufactured by a registered establishment as a pesticide that
the manufacturer was authorized to produce and if it was distributed in
a container bearing an EPA approved label prescribing its approved
uses. Thus, laboratory analysis identifying a substance to have the
chemical constituents of a particular pesticide often will not be
sufficient to determine whether the pesticide sampled was registered or
unregistered.
When a pesticide is found in its original container, with a registered
EPA label, the pesticide is a registered pesticide unless the registration
for all of the uses prescribed on the label have been suspended or
canceled. The status of a pesticide is far more difficult to determine
when it is found in an unmarked container or after it has been applied.
Laboratory analysis might identify it as a chemical that EPA has
registered as a pesticide. It might, however, be a chemical that is
regularly manufactured not only for use as a pesticide but for other
purposes as well. If so, it may be difficult to determine whether the
chemical came from a container registered by EPA as a pesticide or
from a container of the material distributed for another use.16
Similarly, one might find a chemical registered by EPA as a pesticide
for which some, although not all, uses and corresponding labels have
been canceled.17 If such a pesticide were found in an unlabeled
"Section 136a contains the same prohibition as in Section 136j (a)(1)(A), forbidding the sale or distribution
of an unregistered pesticide.
"For example, sodium cyanide, a poison, is employed in mining operations and in electroplating processes.
If cyanide is found in an unlabeled container or in a poisoned bait placed on a rancher's grazing lease, absent a
can with a pesticide registration number, it might be difficult to prove that the chemical was a registered
pesticide. It could have been manufactured and distributed as an industrial chemical that never was registered as
a pesticide.
"This is the case, for example, with strychnine, where all predicidal uses have been banned, but the pesticide
remains registered for subsurface applications. Likewise, prior to its total ban, Compound 1080 was registered as
a rodenticide, although its registration for use as a predicide had been canceled.
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container or in the field after application, it would be difficult to
characterize it as a registered or unregistered pesticide. Thus, it may
be difficult to determine which statutory section should be charged
since all enforcement provisions of FIFRA are specific to registered or
unregistered pesticides. Pesticides registered for restricted use are
listed in federal regulations. 40 C.F.R. § 152.175. However, if there
is any question as to the regulatory status of a pesticide, prosecutors
should check with EPA before charging.18
b. Issue: Whether the Term "Distribution" of a Pesticide Includes "Use"
of the Substance
As stated above, the one provision in FIFRA that applies to
unregistered pesticides prohibits their distribution or sale. 7 U.S.C.
§ 136j(a)(l)(A). If the term "distribution" is limited purely to the
movement of pesticides in commerce, i.e., from one location to
another, then it becomes difficult or impossible' to charge defendants
with unlawful use of an unregistered pesticide. Such an interpretation
would produce bizarre results, inasmuch as pesticides that EPA deemed
too dangerous to register for use could be applied without fear of
prosecution, whereas the improper application of other less hazardous
registered pesticides could subject applicators to criminal sanctions.
Although the issue is not free of controversy, there are historical
reasons for including use within the definition of "distribute."
The definition of "distribute or sell" in Section 136(gg), suggests
that the term, particularly in Section 136j(a)(l)(A), should be
broadly construed:
The term "to distribute or sell" means to distribute, sell, offer for
sale, hold for distribution, hold for sale, hold for shipment, ship,
deliver for shipment, release for shipment, or receive and (having
so received) deliver or offer to deliver. The term does not
include the holding or application of registered pesticides or use
dilutions thereof by any applicator who provides a service of
controlling pests without delivering any unapplied pesticide to
any person so served.
7 U.S.C. § 136(gg). The above exception for those applying
registered pesticides (without reference to unregistered pesticides)
suggests that the term "distribution" may include the application of
unregistered pesticides.
"In addition to consulting 40 CFR §152.175, it is important that a prosecutor know the regulatory history of
the pesticide and the chemical's industrial and commercial uses.
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FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
This interpretation generally is consistent with EPA's historical
enforcement practices. Household exterminators who misapplied
pesticides, until the definition was amended in 1978, were deemed to
have been pesticide distributors under Section 136j(a)(l)(A), and,
therefore, subject to enforcement actions. The exclusion at the end of
the definition for the application of registered pesticides was inserted in
order to stop EPA from bringing enforcement proceedings against
pesticide applicators for pesticide distribution. However, the limitation
on this use of the term "distribution" explicitly relates only to
registered pesticides, not to unregistered pesticides and, thus, it may be
argued that the term distribution still covers the application of
unregistered pesticides.
There is other support for the inclusion of use or application within
the meaning of the word "distribute." For example, in 1982 EPA
issued a policy directive providing an exemption from registration
requirements for individuals producing pesticides for their own use.
This exemption supports the use of Section 136j(a)(l)(A) as a
prohibition against the application or use of unregistered pesticides.
EPA, FIFRA Compliance Program Policy No. 3.5 (May 10, 1982).19
Specifically, the directive states—
The Agency considers any application of an unregistered pesticide
for other than personal use to be a distribution of an unregistered
pesticide, a violation under Section 12 [136j] (a)(1)(A).20
Although the use of the term "distribute" in Section 136j(a)(l)(A),
7 U.S.C., to reach the application or use of unregistered pesticides is
less explicit that one might wish, it is consistent with the general
purposes of FIFRA. As noted above, a narrower interpretation of the
term "distribution" would create a huge loophole in the statute. The
existence of such a hole would be inconsistent with a statute that
"The directive offered an exemption from registration requirements under 40 C.F.R. Pari 167 for persons
producing pesticides for their own use. The directive limits this exemption to producers employing the pesticides
they produce for personal use. Most significantly, the policy document substantiates the expansive interpretation
of the term distribute under which the application of an unregistered pesticide may be deemed to be a
"distribution," chargeable under Section 136j(a)(l)(A).
20This policy statement supports the use of Section 136j(a)(lXA) to reach the application of unregistered
pesticides, but might raise the parenthetical question as to whether a farmer's or rancher's use of poisons on his
own land would fall within the personal use exemption. In most cases it would not, since the exemption and the
entire policy statement apply only to unregistered pesticides actually produced for personal use. The use of an
industrial chemical as a poison does not render die user a "producer" as the term is defined in Section 136(w),
7 U.S.C. It would also be appropriate to presume that a distinction exists between personal and business uses.
A commercial agricultural operation would have to strain to claim that its widespread misapplication of an
unregistered pesticide was for a "personal use."
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defines pesticides rather broadly and purports, in the interests of
environmental protection and human safety, to regulate their
distribution and use. In the proper factual context, therefore, it may be
possible to charge the use or application of an unregistered pesticide as
an illegal distribution under 7 U.S.C. § 136j(a)(l)(A). On the other
hand, there is no case law supporting this view, and it plainly is not
possible to predict how a court would view such an expansive
definition of the term "distribute."
3. Criminal Penalties for Private Applicators and Others Who Commit Knowing
Violations of Substantive Provisions of the Statute
The third criminal provision, 7 U.S.C. § 1361(b)(2), is again substantially the
same as the first, with two significant differences: (1) the provision applies
to "private applicators" and other persons not included in the preceding
criminal provisions; and (2) the penalties, which include fines of up to
$1000 (enhanced under 18 U.S.C. § 3571) and imprisonment for not more
than 30 days, are substantially lower than those in the preceding provisions.
7 U.S.C. §§ 1361(b)(1)(A) and (b)(1)(B).21
To establish a violation of Section 1361(b)(2), the government must prove
the following elements:
(1) Any private applicator or other person not included in
[§ 1361(b)(1)(A) or (b)(1)(B)] who
(2) Knowingly
(3) Violates any provision of the subchapter
(4) Shall be guilty of an offense.
7 U.S.C. § 1361(b)(2).
The term "private applicator" means "a certified applicator who uses or
supervises the use of any pesticide which is classified for restricted use for
purposes of producing any agricultural commodity on property owned or
rented by the applicator or the applicator's employer or (if applied without
compensation other than trading of personal services between producers
21Section 1361(b)(2), in its entirety, reads as follows:
Any private applicator or other person not included in (a) or (b) above, who knowingly violates any
provision of this subchapter may be fined not more than $1,000, or imprisoned for not more than 30
days, or both.
7 U.S.C. § 1361(b)(2).
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of agricultural commodities) on the property of another person." 7 U.S.C.
§ 136(e)(2).
For a detailed discussion of issues arising in connection with the knowledge
element and the requirement that the defendant commit a substantive
violation of the statute, see Part 3.B.I. above.
4. Criminal Penalties for Unlawful Disclosure of Information
FIFRA contains two criminal provisions that provide sanctions for the
unlawful disclosure of information. Section 1361(b)(3), 7 U.S.C.,
provides that—
Any person who, with intent to defraud, uses or reveals
information relative to formulas of products acquired under the
authority of Section 136a is subject to a fine of not more than
$10,000^, or imprisonment for not more than 3 years, or both.
Significantly, this provision, the violation of which may result in a
three-year prison term, provides the only felony sanctions in the statute.
7 U.S.C. § 1361(b)(3). The elements of this offense are as follows:
(1) Any person who
(2) With intent to defraud
(3) Uses or reveals information relative to formulas of products acquireu
under the authority of Section 136a
(4) Is guilty of an offense.
7 U.S.C. § 136(b)(3).
The term "person" includes "any individual, partnership, association,
corporation, or any organized group of persons whether incorporated or not."
7 U.S.C. § 136(s).
The phrase "intent to defraud" is not defined in the statute. It is, however,
a standard that is applied in a number of Title 18 offenses. See, e.g.,
18 U.S.C. § 1341 (mail fraud). One leading authority has defined "intent to
defraud" as follows:
To act with "intent to defraud" means to act knowingly and with
the intention or the purpose to deceive or to cheat.
J2This fine may be enhanced under 18 U.S.C. § 3571.
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An "intent to defraud" is accompanied, ordinarily, by a desire or
a purpose to bring about some gain or benefit to oneself or some
other person or by a desire or a purpose to cause some loss to
some person.
1 E. Devitt, C. Blackmar, M. Wolff & K. O'Malley, supra, at § 16.04.23
The third element, that the person use or reveal information that was
acquired pursuant to FIFRA, suggests that at least some potential targets
of prosecution under this provision may include government employees
involved in the collection of data pursuant to requirements set forth
under FIFRA.
In this regard, it is noteworthy that the "willful" disclosure of FIFRA-related
confidential information by federal employees or contractors to any person
not entitled to receive such information is a Class A misdemeanor—
regardless of the purpose of the disclosure. Section 136h(f) provides that—
Any officer or employee of the United States or former officer or
employee of the United States who, by virtue of such employment or
official position, has obtained possession of, or has access to, material
the disclosure of which is prohibited by [this section—relating to
protection of trade secrets and other information], and who, knowing
that disclosure of such material is prohibited by such subsection,
willfully discloses the material in any manner to any person not
entitled to receive it, shall be fined not more than $10,000 or
imprisoned for not more than one year, or both. Section 1905 of title
18 shall not apply with respect to the publishing, divulging, disclosure,
or making known of, or making available, information reported or
otherwise obtained under this subchapter.
7 U.S.C. § 136h(f)(l).
The elements of this offense are as follows:
(1) Any present or former officer or employee of the
United States,24 who
"Use of the phrase "intent to defraud" suggests a higher level of intent that more closely approximates the
"specific intent" requirements of Title 18 offenses than the "general intent" requirements commonly found in
environmental criminal statutes. See, e.g., 33 U.S.C. § 1319(c) (proscribing knowing or negligent violations of
the Clean Water Act).
/
24For purposes of this section, any contractor with the United States who is furnished information as
authorized by subsection 136h(e) (authorizing disclosure of trade secrets and other information to contractors), or
any employee of any such contractor, is considered an employee of the United States. 7 U.S.C. § 136h(f)(2).
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FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
(2) By virtue of such employment or position has access to information
that is confidential pursuant to Section 136h of FIFRA, and
(3) Who knowing that disclosure of such material is prohibited
(4) Willfully discloses such information to any person not entitled to
receive it
(5) Is guilty of an offense.
7 U.S.C. § 136h(f)(l).
As is true of other FIFRA criminal statutes, there is little, if any, case law
interpreting this provision. It may, however, safely be asserted that, like
Section 1361(b)(3), 7 U.S.C., set forth above, Section 136h(f)(l) imposes a
significantly more burdensome intent requirement than is common in
environmental statutes. The "specific intent" arises from elements requiring
proof that the defendant (1) knew that disclosure of information was
prohibited; and (2) that the defendant "willfully" disclosed the information to
someone not entitled to receive it. Id.
4. Relevant Terminology (FIFRA § 2,7 U.S.C. § 136)
See also pertinent regulations beginning at 40 C.F.R. Part 152.
Certified Applicator—Any individual certified under Section 136i as authorized to use
or supervise the use of any pesticide that is classified for restricted use. A person
who holds, uses, or applies pesticides without delivering any unapplied pesticide to
any person so served is not a seller or distributor.
Private Applicator—A certified applicator who uses or supervises the use of any
restricted-use pesticide for purposes of producing any agricultural commodity on
property owned or rented by him or his employer or (if applied without
compensation other than trading of personal services between producers of
agricultural commodities) on the property of another person.
Commercial Applicator—Any applicator who uses or supervises the use of any
restricted-use pesticide for any purpose or on any property other than as provided in
the definition of private applicator, above.
Environment—Includes water, air, land, and all plants and man and other animals
living therein and the interrelationships that exist among these.
Imminent Hazard—A situation that exists when the continued use of a pesticide during
the time required for cancellation proceedings would be likely to result in
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unreasonable adverse effects on the environment or would involve unreasonable
hazard to the survival of a species declared endangered or threatened.
Misbranded—A pesticide is misbranded if its label is false or misleading, if it is
contained in a package or container that does not conform to the standards set out in
FIFRA, if it is an imitation, if it lacks a registration number, or if the labeling does
not contain directions for use or warnings.
Person—Any individual, partnership, association, corporation, or any organized group
of persons whether incorporated or not.
Pest—Any insect, rodent, nematode, fungus, weed, or any other form of terrestrial or
aquatic plant or animal life or virus, bacteria, or other microorganism declared to be
a pest. (The definition exempts viruses, bacteria, and other micro-organisms on or
in living humans or other animals.)
Pesticide—Any substance or mixture of substances intended for preventing,
destroying, repelling, or mitigating any pest and any substance intended for use as a
plant regulator, defoliant, or desiccant, except that it does not include any "new
animal drugs" under 21 U.S.C. § 321(w).
Unreasonable Adverse Effects on the Environment—Any unreasonable risk to man or the
environment, taking into account the economic, social, and environmental costs and
benefits of the use of any pesticide.
Producer—The person who manufactures, prepares, compounds, propagates, or
processes any pesticide or device or active ingredient used in producing a pesticide.
Those individuals who dilute formulated pesticides for their own use and according
to the directions on registered labels are not considered producers under the Act.
Establishment—Any place where a pesticide or device or active ingredient used in
producing a pesticide is produced or held for distribution or sale.
To Use Any Registered Pesticide in a Manner Inconsistent With Its Labeling—To use any
registered pesticide in a manner not permitted by the labeling, except that the team
does not include—
• Applying it at a lesser dosage, concentration, or frequency, unless specifically
prohibited.
• Applying a pesticide against a target pest not specified, unless the label specifies
that it may be used only against the pests listed on the label.
• Employing a method of application not prohibited by the label, unless the label
specifies it may only be applied by the methods listed.
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• Mixing pesticides or mixing pesticides with fertilizers unless prohibited
by the label.
• Any use of pesticides in conformance with Sections 136c, 136p, or 136v.
• Any use of a pesticide in a manner that the Administrator determines to be
consistent with the Act.
Distribute or Sell—To distribute, sell, offer for sale, hold for distribution, hold for sale,
hold for shipment, ship, deliver for shipment, release for shipment, or receive and
(having so received) deliver, or offer to deliver. The term does not include the
holding or application of registered pesticides or use of dilutions thereof by any
applicator who provides a service of controlling pests without delivering any
unapplied pesticide to any person so served.
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CHAPTER 9
Water Pollution Statutes
Subchapter B
Federal Water Pollution Control Act
or
Clean Water Act
(33 U.S.C. § 1251 et seq.)*
Table of Contents
Page
A. Introduction and Structural Overview 2
B. Criminal Violations 2
1. Direct Discharges to Waters of the United States 2
a. Definitions and Case Law 4
b. United States v. Ahmad and United States v. Wilson 12
2. Discharges to Sewer Systems; Pretreatment Violations 28
3. Wetlands and Filling Violations 34
4. Knowing Endangerment 42
5. Falsification and Tampering 44
6. Oil or Hazardous Substances Violations 46
a. Introduction 46
b. Prohibited Discharges of Oil or Hazardous Substances 47
c. Failure To Report Spills 51
*Contributors: Raymond W. Mushal, Senior Counsel, Environmental Crimes Section; James C. Howard, Assistant
United States Attorney, District of Maryland; Peter Crane Anderson and Janet Loduca, former Trial Attorneys,
Environmental Crimes Section
Environmental Crimes Manual
Volume 1; Chapter 9B
January 2001
-------
A. Introduction and Structural Overview
Water pollution violations remain among the most common types of federal criminal
environmental prosecutions. While there are a number of federal statutes that seek to control
water pollution, the statute most often relied upon is the Federal Water Pollution Control Act
(FWPCA), 33 U.S.C. §§ 1251 et seq., also known as the Clean Water Act (CWA). That statute
was enacted into law in 1972 (Pub. L. 92-500) and, despite a number of amendments, its basic
form remains intact. The Act's purpose continues to be the restoration and maintenance of the
chemical, physical, and biological integrity of the nation's waters. 33 U.S.C. § 1251(a). For
purposes of criminal enforcement, the most significant legislative changes were enacted in 198'
See Pub. L. 100-4.
There are other criminally enforceable laws that also relate to water pollution, among them the
Rivers and Harbors Act of 1899, the Marine Protection, Research, and Sanctuaries Act (Ocean
Dumping Act), and the Act to Prevent Pollution from Ships, all of which are covered in
succeeding subchapters. Moreover, the Safe Drinking Water Act, 42 U.S.C. § 300f et seq., and
the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42
U.S.C. § 9603(b) (requirement to report hazardous substance releases into the environment,
including into the water), also may apply to water pollution violations and are dealt with in
separate chapters. In some instances, these additional statutory provisions overlap with the
CWA, while others extend to areas that cannot be reached under the authority of that statute.
Thus, even if the CWA does not cover particular circumstances regarding water-related
environmental contamination, another path to the criminal prosecution of a responsible party
may be available and should be explored.
With regard to CWA violations, this overview discussion is limited to the regulatory areas that
are most relevant to criminal enforcement. The general categories that form the basis of federal
criminal CWA prosecutions, and that will be discussed in greater detail, include (1) "direct
discharges" involving the release of pollutants directly to bodies of water either without a permit
or in violation of a permit; (2) "indirect discharges" from industrial users into publicly owned
sewer systems {i.e., sanitary sewers, not storm sewers) in violation of pretreatment standards or
requirements; (3) wetlands violations (i.e., destruction of wetlands by filling with dredged or
other materials); (4) falsification of information and tampering; (5) knowing endangerment; and
(6) spills of oil or hazardous substances into waters of the United States.
B. Criminal Violations
1. Direct Discharges to Waters of the United States
"Direct discharges", as used here, are those that go straight to surface waters, rather than into
sewers that lead to publicly-owned sewage treatment plants. (Wetlands violations may be a form
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of "direct discharges," but they are treated separately below.) Such discharges may originate
from an almost limitless variety of sources, although the primary regulatory mechanism of the
FWPCA focuses mainly upon discharges from industrial sources and those from the sewage
treatment plants themselves. Central to that mechanism are two provisions—one setting forth
a basic prohibition, and the other establishing a permit program for surface water discharges.
The key prohibition is in Section 301(a) of the Act, 33 U.S.C. § 1311(a), which makes it
unlawful to discharge pollutants except in compliant with certain specified provisions of the
FWPCA. It reads as follows:
Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and
1344 of this title, the discharge of any pollutant by any person shall be unlawful.
[Emphasis added.]
With respect to direct discharges, the most important reference in that section is to 33 U.S.C.
§ 1342, because that is the provision under which Congress established the National Pollutant
Discharge Elimination System (NPDES), the effluent discharge permit program of the Act.1
Thus, for a pollutant discharge to be lawful, the discharger must have an NPDES permit and the
discharge must be in compliance with that permit.
NPDES permits may.be issued by the Environmental Protection Agency (EPA). 33 U.S.C.
§ 1342(a). However, that program also may be delegated to the various states. 33 U.S.C.
§ 1342(b). Both federally-issued and state-issued NPDES permits are federally enforceable. 33
U.S.C. § 1319(c)(1)(A) and (2)(A).
To understand the basic prohibition in 33 U.S.C. § 1311(a) and the operation of its related
criminal provisions, it is important to pay close attention to the statutory definitions of the
FWPCA and to be aware of the historical and evolving case law surrounding those terms. The
definitions are set out primarily in 33 U.S.C. § 1362 and are discussed here along with some
relevant case law. Definitions of terms found in 33 U.S.C. § 1362 and others important to the
operation of the Act also appear in 40 C.F.R. § 122.2, inter alia.
- Most of the other references in Section 1311(a) are to limitations and standards established by
regulation under the Act. They include effluent limitations for existing private and public sources, 33 U.S.C. §
1311(b); water quality-related effluent limitations, 33 U.S.C. § 1312; new source performance standards, 33 U.S.C.
§ 1316; and toxic pollutant standards, 33 U.S.C. § 1317(a). These provisions and related regulations generally are
not independently involved in criminal enforcement actions, primarily because the standards and limitations they set
forth commonly are applied to individual dischargers through permits. Therefore, it is more likely that enforcement
relating to these sections will take the form of actions for permit violations. Section 1328 authorizes special permits
and regulations for aquaculture discharges.
Section 1344 is the provision establishing the permit program that covers dredge and fill discharges and
often is associated with wetlands protection. It is discussed separately in Subpart 3 of this subchapter.
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a.
Definitions and Case Law
The fundamental prohibition in 33 U.S.C. § 1311(a) is against "the discharge of any pollutant."
The meaning of that phrase, though, involves a number of interconnected terms.
Discharge of a pollutant (33 ILS.C. § 1362(12)) —The term "discharge of a pollutant"
and the term "discharge of pollutants" each means (A) any addition of any pollutant to
navigable waters from any point source, and (B) any addition of any pollutant to the
waters of the contiguous zone or the ocean from any point source other than a vessel or
other floating craft. [Italics added for other terms also defined by the statute.]
Pollutant (33 U.S.C. § 1362(6)) —The term "pollutant" means dredged spoil, solid
waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
biological materials, radioactive materials, heat, wrecked or discarded equipment, rock,
sand, cellar dirt, and industrial, municipal, and agricultural waste discharged into water.
This term does not mean (A) "sewage from vessels" within the meaning of Section 1322
of this title; or (B) water, gas, or other material which is injected into a well to facilitate
production of oil or gas, or water derived in association with oil or gas production and
disposed of in a well, if the well used either to facilitate production or for disposal
purposes is approved by authority of the State in which the well is located, and if such
State determines that such injection or disposal will not result in the degradation of
ground or surface water resources.2
For FWPCA purposes, the term "pollutant" has been construed very broadly by courts.3 Thus, it
may encompass virtually anything added to water other than pure water.4 Note that even heat
(e.g., from a power plant cooling system) is a pollutant because it certainly may alter the physical
and biological integrity of water by creating conditions harmful to certain animal or plant
- While "pollutant" is the critical operative term here, the definition of "pollution," also provided in
the statute, may help to define the meaning of "pollutant." The term "pollution" means the "man-made or
man-induced alteration of the chemical, physical, biological, and radiological integrity of water." 33 U.S.C.
§ 1362(19).
^ Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 923-25 (5th Cir. 1983) (redeposit of
land clearing materials is a pollutant); United States v. Robinson, 570 F. Supp. 1157, 1163 (M.D. Fla. 1983) (fill
material and wet cement is a pollutant); United States v. Bradshaw, 541 F. Supp. 880, 882 (D-. Md. 1981)
(demolition debris is pollutant); United States v. Weisman, 489 F. Supp. 1331, 1337 (M.D. Fla. 1980) (fill material
for road is pollutant).
- The material discharged must fall within one of the terms identified in the
statutory definition; however, those terms are broad and flexible. For example, dirt is not
specifically identified as a "pollutant", but it can be characterized as a combination of rock, sand,
and biological materials, all of which are identified specifically as "pollutants".
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species.
As noted in the definition of the "discharge of a pollutant," the pollutant also must be discharged
through a "point source."
Point source (33 U.S.C. § 1362(14)) —The term "point source" means any discernible,
confined, and discrete conveyance, including but not limited to any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal
feeding operation, or vessel or other floating craft, from which pollutants are or may be
discharged. This term does .not include agricultural storm water discharges and return
flows from irrigated agriculture.
Courts also have given broad meaning to the term "point source." See Avoyelles Sportsmen's
League v. Marsh, supra, 715 F.2d at 922 (bulldozers and backhoes); United States v. Larkins,
657 F. Supp. 76, 78 n. 2 (W.D. Ky. 1987), ajfd, 852 F.2d 189 (6th Cir. 1988), cert, denied, 489
U.S. 1016 (1989); United States v. Tull, 615 F. Supp. 610, 622 (E.D. Va. 1983), ajfd, 769 F.2d
182 (4th Cir 1985), cert, granted in part, 476 U.S. 1139 (1986), rev'd and remanded, 481 U.S.
412 (1987); United States v. Robinson, supra, 570 F. Supp. at 1163; United States v. Weisman,
supra, 489 F. Supp. at 1337 ("it is clear that... bulldozers and dump trucks are point sources");
see also United States v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir. 1979) ("the concept
of point source was designed to further the [Clean Water Act] scheme by embracing the broadest
possible definition of any identifiable conveyance . .."); United States v. Holland, 373 F. Supp.
665, 668 (M.D. Fla. 1974).
An exception to that generally broad reading of the term "point source" is the opinion in United
States v. Plaza Health Laboratories, Inc., 3 F.3d 643 (2d Cir. 1993), cert, denied, 512 U.S. 1245
(1994). In that case the individual defendant, having deposited numerous vials of human blood
on bulkheads bordering the Hudson River in New Jersey where waves and tides would carry
them into the water, was convicted of knowingly discharging pollutants without a permit. Those
vials came from a blood testing laboratory (which the defendant co-owned) and some of the
blood was infected with the hepatitis-B virus. Some of the vials washed up on the New York
shoreline and were found by school children. The Second Circuit reversed the conviction and
ruled that it was "at best ambiguous" whether discharges that result from the individual acts of
human beings (i.e., releases from a human hand) satisfy the threshold definition of being
discharges from a "point source," in contrast to those arising from industrial or municipal
sources.5 Id: at 649. As a result of this distinction, the court found that the release of the blood
vials by the defendant was not covered by the prohibition against discharges found in 33 U.S.C.
§ 1311(a) and the act could not be prosecuted under 33 § U.S.C. 1319(c). Relying on the rule of
J The Second Circuit ignored the fact that although Villegas was an individual,
what he was disposing of was waste from an industrial source, a commercial laboratory. He was
acting as a "discrete conveyance" from an industrial source to a water of the United states.
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lenity, the court then dismissed the prosecution. Id.
A careful reading of the Second Circuit's opinion reveals an incorrect description of the FWPCA
program. Moreover, the overly narrow construction is highly questionable.6 Prosecutors in other
circuits should not necessarily feel bound by the Second Circuit opinion. The broader
interpretations of the term "point source" are not only legally sound, they are appropriate to and
consistent with the purposes of the Act. A better interpretation can be found in the district court
opinion, United States v. Villegas, 784 F.Supp. 6 (E.D.N. Y. 1991), which held that the vials, the
human hand, or the bulkhead could have constituted the "point source" under the FWPCA.
In addition to being through a point source, the discharge must be into a "navigable water"(which
includes the "territorial seas") or into the "contiguous zone" or the "ocean" if the discharge is
from a source other than from a vessel or other floating craft.
Navigable water (33 U.S.C. § 1362(7)) —The term "navigable waters" means the waters
of the United States, including the territorial seas.
Territorial seas (33 U.S.C. § 1362(8)) —The term "territorial seas" means the belt of the
seas measured from the line of ordinary low water along that portion of the coast which is
in direct contact with the open sea and the line marking the seaward limit of inland
waters, and extending seaward a distance of three miles.
Under the Rivers and Harbors Act of 1899, infra, 33 U.S.C. § 401 et seq., navigability was
limited to waters subject to actual past or present commercial navigability or potential future
commercial navigability and to waters subject to the ebb and flow of the tide. However, the
concept of navigable waters and the jurisdictional reach of the FWPCA's provisions were
broadened significantly by the 1972 congressional enactment.7 Congress intended it to extend
beyond the traditional limits of actual navigability and of ebb and flow because those
ecologically irrelevant lines would have prohibited federal agencies from reaching the sources of
- The prohibition in 33 U.S.C. § 1311(a) specifically applies to a "person" as do the
criminal provisions in 33 U.S.C. § 1319(c)(1) and (2) through which that prohibition is enforced
- and 33 U.S.C. § 1362(5) specifically defines "person" as including an individual. Thus, while
corporations and municipalities may be the major sources of pollution at which the FWPCA is
aimed, its prohibitions and criminal sanctions also were intended by Congress to apply to
individual polluters.
lj The term "navigable waters" in the FWPCA means the waters of the United States. 33 U.S.C. §.
1362(7). Therefore, federal jurisdiction under the Act extends beyond waters that meet.traditional tests of
navigability. Wyoming v. Hoffman, 437 F. Supp. 114, 117 (D. Wyo. 1977) (citing Weiszmann v. Corps of
Engineers, 526 F.2d 1302 (5th Cir. 1976); see also United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir. 1979);
United States v. Earth Sciences, Inc., 599 F.2d at 375; Ward v. Coleman, 598 F.2d 1187, 1188 n. 1 (10th Cir. 1979),
rev'd on other grounds, 448 U.S. 242 (1980).
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pollution that affect interstate commerce.8 For EPA's regulatory definitions of "navigable
waters" and "waters of the United States," see, e.g., 40 C.F.R. §§ 112.2(k), 122.2, and 232.2.
For pollutants discharged from point sources other than vessels and other floating craft (e.g., lon<*
publicly owned treatment works discharge pipes and oil-drilling platforms), jurisdiction extends
to the "contiguous zone" and the "ocean."9
^ The term "navigable waters," as defined in 33 U.S.C. § 1362(7), applies to all water bodies within
the United States, including streams and their tributaries. United States v. Ashland Oil & Transportation Co., 504
F.2d 1317, 1325 (6111 Cir. 1974); United States v. Oxford Royal Mushroom Products, Inc., 487 F. Supp. 852, 854
(E.D. Pa. 1980). It applies to all waters in the geographical sense, and the government is not required to prove that
the receiving water is navigable in the traditional sense. United States v. Byrd, supra, 609 F.2d at 1209; United
States v. Earth Sciences, Inc., supra, 599 F.2d at 375; Ward v. Coleman, 598 F.2d at 1188 n.l, rev'd on other
grounds, 448 U.S. 42 (1980); United States v. Ashland Oil, supra, 504 F.2d at 1320-1329. Moreover, as intended
by Congress, the definition of navigable waters is as broad as possible, broad enough to reach, for example,
normally dry arroyos. United States v. Phelps Dodge Corp., 391 F. Supp. 1181, 1187 (D. Ariz. 1975). It also
extends to man-made structures, including drainage ditches, mosquito ditches, canals, and diked evaporation ponds.
United States v. Eidson, 108 F.3d 1336, 1341-1343 (11th Cir.), cert, denied, 522 U.S. 899, 1004
(1997); Leslie Salt Co. v. Froehlke, 578 F.2d 742, 756 (9th Cir. 1978); United States v. Saint
Bernard Parish, 589 F. Supp. 617, 620 (E.D. La. 1984); United States v. Holland, supra, 373 F.
Supp. at 668. The court in Phelps Dodge Corp., supra, 391 F. Supp. at 1187, explained the
scope of 33 U.S.C. § 1362(7) very clearly:
For the purposes of this Act to be effectively carried into realistic achievement,
the scope of its control must extend to all pollutants which are discharged into any
waterway, including normally dry arroyos, where any water which might flow
therein could reasonably end up in any body of water, to which or in which there
is some public interest, including underground waters.
However, in the case of Solid Waste Agency of Northern Cook County v. Corps of
Engineers, 531 U.S. , 2001 WL 15333 (January 9, 2001), the Supreme Court held that the Corps of Engine
could not assert wetlands protection jurisdiction under the FWPCA over non-navigable, isolated, intrastate wa
basis of their habitat use by migratory birds. Whether 33 C.F.R. 328.3(a)(3) (the provision at issue in the case
corresponding provisions elsewhere in the environmental regulations otherwise remain viable is not yet clear,
did not invalidate the regulation itself, and it left intact federal jurisdiction over traditionally navigable waters,
tributaries, and wetlands adjacent to either of those types of waters. For any potential cases involving isolated
intrastate waters, prosecutors should work closely with the appropriate regulatory agencies to
assure consistency with agencies' view of their regulatory jurisdiction in light of the SWANCC
case.
When presented with facts involving water pollution discharges that occur at sea,
the prosecutor must initially address certain variables and answer the following threshold
questions which will determine whether the FWPCA is the appropriate statute for charging the
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Contiguous zone (33 U.S.C. § 1362(9)) —The term "contiguous zone" means the entire
zone established or to be established by the United States under article 24 of the
Convention of the Territorial Sea and the Contiguous Zone (i.e., between 3 and 12 miles).
Ocean (33 U.S.C. § 1362(10)) —The term "ocean" means any portion of the high seas
beyond the contiguous zone.
The provisions most commonly relied upon for criminal prosecutions under the FWPCA are 33
U.S.C. § 1319(c)(1)(A) and (c)(2)(A). Negligent violations are treated as misdemeanors under
(c)(1), while (c)(2) sets out felony sanctions for knowing violations.10 The latter provision,
(c)(2), is reproduced below. It is identical to (c)(1) except for the state of mind factor, and the
sanctions are lower in the misdemeanor provision."
potential crime: (1) What is the source of the discharges (is it a vessel, a discharge pipe, or a
platform)? (2) What is the exact nature of the pollutant that is being discharged (e.g., sewage
from a vessel which is not within the "pollutant" definition in 33 U.S.C. § 1362(a))? (3) Where
did the discharge occur (because coverage of discharges from vessels depends upon their location
when the discharge occurs)? No case law has yet emerged under the FWPCA relating to the
contiguous zone and oceans.
- Before February 4, 19S7, the Act included only misdemeanor sanctions for either negligent or
willful violations. Despite use of the word "willfully," in light of its disjunctive negligence standard, the provision
was not treated as a crime requiring knowledge of illegality.
Maximum imprisonment for any crime prosecuted under 33 U.S.C. § 1319(c)(2) is three
years, the statutory fine range being $5,000 to $50,000 per day of violation. For the negligent
misdemeanor under 33 U.S.C. § 1319(c)(1) the maximum incarceration is one year, and the
statutory fine range is $2,500 to $25,000 per day of violation. Sanctions can be doubled for
repeat offenses. These fine levels, of course, must be considered in light of the Alternative Fines
Act, 18 U.S.C. § 3571.
The government's position that the standard in 33 U.S.C. § 1319(c)(1) is simple negligence has
been consistent over time, and it finds support in the language of the statute and its legislative history. In the only
case to date that has yielded an opinion on this issue, United States v. Hanousek, 176 F.3d 1116
(9th Cir. 1999), the court of appeals ruled that negligence within the context of 33 U.S.C. §
1319(c)(1) means simple negligence, not some elevated form of negligence. The Supreme Court
denied certiorari in Hanousek, although two Justices filed a dissent to that denial, 528 U.S. 1102
(2000), their objections focusing upon the Ninth Circuit's treatment of the FWPCA crimes as a
"public welfare offenses".
Some judges may want to apply what they consider to be a higher standard (e.g., gross
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Any person who—
(A) knowingly violates Section 1311, 1312, 1316, 1317, 1318, 1321(b)(3), 1328, or
1345 of this title, or any permit condition or limitation implementing any of such
sections in a permit issued under Section 1342 of this title by the Administrator or
by a State, or any requirement imposed in a pretreatment program approved under
section 1342(a)(3) or 1342(b)(8) of this title or in a permit issued under section
1344 of this title or by the Secretary of the Army or by a State; or
(B) knowingly introduces into a sewer system or into a publicly owned treatment
works any pollutant or hazardous substances which such person knew or
reasonably should have known could cause personal injury or property damage or,
other than in compliance with all applicable Federal, State, or local requirements
or permits, which causes such treatment works to violate any effluent limitation or
condition in a permit issued to the treatment works under section 1342 of this title
by the Administrator or a State;
shall be punished by a fine of not less than $5,000 nor more than $50,000 per day of
violation, or by imprisonment for not more than 3 years, or by both. If a conviction of a
person is for a violation committed after a first conviction of such person under this
paragraph, punishment shall be by a fine of not more than $100,000 per day of violation,
or by imprisonment of not more than 6 years, or by both.
Direct pollutant discharges, without or in violation of a permit, by either private sources or
negligence when criminal liability is at issue; however, the scant history of the negligence
standard in 33 U.S.C. § 1319(c)(1) indicates that the Hanousek decision is correct, that Congress
intended no more than simple negligence. See Committee Print, "A Legislative History of the
Federal Water Pollution Control Act Amendments of 1972," Congressional Research Service of
the Library of Congress, Serial No. 93-1 (1973), vol. 1, at 530 (Statement of Rep. Harsha).
Note that in United States v. Ahmad, 101 F.3d 386, 391-393 (5th Cir. 1996), the court concluded in dicta
that negligent violations of the FWPCA are lesser included offenses of knowing felonies.
With respect to the standard in 33 U.S.C. § 1319(c)(2), congressional substitution of the less rigorous
"knowing" mental state standard for the earlier "willful" standard should leave no doubt as to the legislative intent
that for felony violations the government is required to prove knowledge of the facts constituting the offense, not
knowledge of the law or of the unlawfulness of the act. See Bryan v. United States, 524 U.S. 184 (1998); Staples v.
United States, 511 U.S. 600 (1993); United States v. International Minerals & Chemical Corp., 402 U.S. 558
(1971); see also United States v. Sinskey. 119 F.3d 712 (8111 Cir. 1997); United States v. Hopkins, 53 F.3d 533 (2d
Cir. 1995), cert, denied, 516 U.S. 1072 (1996); United States v. Weitzenhoff, 35 F.3d 1275, 1286 (9th Cir. 1993),
cert, denied, 513 U.S. 1128 (1995) Two cases that have somewhat clouded application of the knowing mental state
standard, United States v. Ahmad, supra, and United States v. Wilson, 133 F.3d 251 (4th Cir. 1997), are discussed in
detail, infra.
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publicly owned treatment works (POTWs), are charged under 33 U.S.C. § 1319(c)(1)(A) or
(c)(2)(A) as violations of 33 U.S.C.§ 1311(a). The elements of the offense are as follows:12
(1)
A person13
(2)
Discharged a pollutant
(3)
From a point source
(4)
Into a water of the United States
(5)
Without or in violation of a permit,14 and
He or
she acted knowingly [or negligently].15
While the term "person" is defined very broadly in 33 U.S.C. § 1362(5) to include individuals,
corporations, partnerships, associations, states, municipalities, commissions, political
subdivisions of states, and interstate bodies, for purposes of criminal enforcement, that definition
specifically is enlarged to include "responsible corporate officers." 33 U.S.C. § 1319(c)(6).
Although that term is not explicitly defined in the statute, it is apparent that it is intended to
include corporate officers who exercise supervisory authority and responsibility over acts of
employees that give rise to criminal violations. In a pretreatment (i.e., sewer discharge) case,
- Note that in United States v. Wilson, supra, the Fourth Circuit used a formulation
that divided water from water of the United States. The Wilson approach is discussed, infra.
- For guidance on relevant jury instructions, see Volume 3, Chapter 1, of this
Manual.
For a permit violation to be criminally enforceable, it must be of a provision that
implements one of the statutory sections identified in 33 U.S.C. § 1319(c)(2)(A). A numerical
limitation in an NPDES permit, for example, in most instances would be derived from the
categorical treatment standards developed under 33 U.S.C. § 1311(b). Therefore, violation of it
would amount to violation of a limitation implementing one of the identified sections of the
statute. Similarly, failure to submit reports required under a permit would be a violation of a
condition implementing 33 U.S.C. § 1318, another identified provision. On the other hand, if the
permit condition or limitation were one derived solely from state law, it probably would not be
federally enforceable.
- Violation of a permit may not always involve a discharge. For example, a
violation may relate to a failure to submit discharge monitoring reports (DMRs) or some other
report required by the permit.
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United State v. Iverson, 162 F.3d 1015, 1022-1025 (9th Cir. 1998), the court of appeals approved
a jury instruction stating that the defendant could be liable as a "responsible corporate officer" if
he (1) had knowledge of the fact that pollutants were being discharged into the sewer system by
employees of his company, (2) had the authority and capacity to prevent that activity, and (3)
failed to prevent the discharge. Rejecting arguments that a corporate officer is "responsible"
only when he or she in fact exercises control over the unlawful activity or has an express
corporate duty to oversee the activity, id. at 1022, the court said, "There is no requirement that
the officer in fact exercise such authority or that the corporation expressly vest a duty in the
officer to oversee the activity." Id. at 1025.
In any case involving violation of a discharge permit, it is imperative that the pertinent terms of
the permit itself be thoroughly understood. It also may be useful to leam something of the
history of the permit's issuance. By statute, the terms of a federally-issued permit cannot be
reviewed in any civil or criminal proceeding for enforcement. See 33 U.S.C. § 1369(b)(2).16
However, defense lawyers, using a variety of approaches, nonetheless may attempt to challenge
the terms of a permit during a prosecution.
Another noteworthy issue that has received recent attention surrounds the scope of an NPDES
discharge permit - commonly referred to as the "permit-as-a-shield" issue. For all practical
purposes, the proper issuance of a permit serves as the legal vehicle for implementing the
statutory and regulatory requirements of the CWA. In short, the permit is the law. As a result, if
an investigation reveals a violation of a permit limitation for a specified pollutant, the law has
been violated.
However, what if the investigation and sampling results reveal the presence of a pollutant that is
not specifically covered within the permit? Does the CWA serve as a general prohibition against
all discharges, unless specifically authorized within the terms of the permit, or does the permit
only prohibit discharges of pollutants that it expressly restricts? In Atlantic States Legal
Foundation v. Eastman Kodak Co., 12 F.3d 353 (2d Cir. 1993), cert, denied, 513 U.S. 811
(1994), the court of appeals adopted the latter interpretation of the Act.
b. United States v. Ahmad and United States v. Wilson
Two appellate court decisions have focused upon the elements of unpermitted discharge offenses
and, particularly, upon how the knowing mental state standard of the felony provision in 33
U.S.C. § 1319(c)(2) relates to those elements. Because unpermitted discharges are among the
most commonly prosecuted water pollution violations, those two decisions, United States v.
Ahmad, supra, and United States v. Wilson, supra, will be discussed at length here.
— Under 33 U.S.C. § 1369(b)(1) an EPA action, including issuance or denial of an NPDES permit,
may be reviewed only on petition to the appropriate United States court of appeals within 120 days of the
Agency's action. See 5 U.S.C. §703.
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United States v. Ahmad
The Ahmad decision, dealing with both an unpermitted surface water discharge and an unlawful
discharge into a sewer, raised the question of how knowledge should be treated in relation to the
various elements of those offenses, but then failed to give a clear answer to that question. The
court reviewed an unpermitted discharge jury instruction in which the word "discharged"
appeared with the word "knowingly" as one element, while "pollutant" appeared as a separate
element without the word "knowingly". 101 F.3d at 389. The narrow issue actually before the
court was whether the instructions given in that case made it clear that the defendant must know
the nature of the material being discharged, that is, that it was gasoline and not just water.
Unfortunately, the Ahmad court went beyond that narrow issue. It misread Staples v. United
States, 511 U.S. 600 (1994), as setting the dangerousness of a machine gun as the standard by
which to measure whether a crime is a "public welfare offense," and then applied that test to an
unpermitted discharge of gasoline into the water and the sewer. Reasoning that gasoline is no
more dangerous than a machinegun and that in Staples the Supreme Court had concluded that the
failure to register a fully automatic weapon was not a "public welfare offense," the Fifth Circuit
became the only court of appeals to hold that water pollution crimes of the sort committed by
Ahmad were not "public welfare offenses."17 101 F.3d at 391 (note that the two Justices who
13 The position of the Fifth Circuit in Ahmad is in direct conflict with the position
taken by numerous other federal district and circuit courts that have held that violations of the
Clean Water Act and other environmental statutes are public welfare crimes. See, e.g., United
States v. Kelley Technical Coatings, Inc., 157 F.3d 432 (6th Cir. 1998); United States v.
Weitzenhoff, supra; United States v. Laughlin, 10 F.3d 961 (2d Cir. 1993), cert, denied, 511 U.S.
1071 (1994); United States v. Buckley, 934 F.2d 84 (6th Cir. 1991); United States v. Sellers, 926
F.2d 410 (5th Cir. 1991); United States v. Hoflin, 880 F.2d 1033 (9th Cir. 1989), cert, denied, 493
U.S. 1083 (1990); United States v. Corbin Farm. Serv., 444 F. Supp. 510 (E.D. Cal.), off d, 578
F.2d 259 (9th Cir. 1978).
For its "public welfare offense" view the Ahmad court also relied in part on the fact that
violations of 33 U.S.C. § 1319(c)(2)(A) are "felonies punishable by years in federal prison." 101
F.3d at 391. This seems ironic in view of its citation to the circuits earlier opinion in United
States v. Zfarytank (Houston), Inc., 934 F.2d 599 (5th Cir. 1991). 101 F.3d at 390. In Baytank the
court followed other circuits - and it relied upon International Minerals - in finding that RCRA
is a public welfare statute. 934 F.2d at 613. With regard to the relationship between public
welfare analysis and felony sanctions, the maximum imprisonment for the RCRA offenses in
Baytank was five years, while the maximum for the FWPCA violations in Ahmad was only three
years, and yet the Fifth Circuit applied the doctrine in Baytank, but not in Ahmad..
A crime's felony status alone does not seem determinative of. whether it is a "public
welfare offense". United States v. Freed, 401 U.S. 601 (1971), a firearms case like Staples,
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dissented from the denial of certiorari in United States v. Hanousek, 258 U.S. 1102 (2000), were
not inclined to treat water pollution crimes as "public welfare offenses"). The panel went on to
say, "With the exception of purely jurisdictional elements, the mens rea of knowledge applies to
each element of the crimes." Id.] emphasis added. However, the court gave no hint as to which
elements it considered to be "purely jurisdictional," thereby raising a question as to what
constitutes a sound unpermitted discharge jury instruction in the Fifth Circuit.
Ahmad can be analyzed from two perspectives: (1) the accuracy of its analysis of Staples, which
is a central support of the opinion, and (2) how the knowledge requirement relates to the various
elements of the unpermitted discharge crime, regardless of the quality of the court's reading of
Staples. Because the government agrees that it must prove knowledge of the discharge and of the
nature of the pollutant discharged, the focal point here is mental state with respect the other three
elements involved in Ahmad: point source, water of the United States, and permit status.
The Fifth Circuit's reading of Staples is erroneous. The Supreme Court did not set up the
relative dangerousness of a machine gun as the standard by which to measure whether a crime
was or was not a "public welfare offense". Rather, the Staples court looked not just to the
potential dangerousness of a firearm, but also to the nature of the activity at issue - in that case
the ownership of a firearm — as it would affect what the government must prove. Because gun
involved a hand grenade. In that case the Supreme Court applied "public welfare offense"
reasoning. 401 U.S. at 609. The International Minerals court relied upon Freed, and in Staples
the court distinguished Freed, but notably left its reasoning intact.
The focus upon sanction levels in Staples and in the Hanousek dissent seem to ignore a
critical underlying rationale of the "public welfare offense" doctrine, which was described in
United States v. Dotterweich, 320 U.S. 277, 280-281 (1943):
* * * The purposes of this legislation thus touch phases of the lives and health of people
which, in the circumstances of modern industrialism, are largely beyond self-protection.
Regard for these purposes should infuse construction of the legislation if it. is to be treated
as a working instrument of government and not merely as a collection of English words. *
* * Such legislation dispenses with the conventional requirement for criminal conduct -
awareness of some wrongdoing. In the interest of the larger good it puts the burden of
acting at hazard upon a person otherwise innocent but standing in responsible relation to a
public danger. * * * [Citations omitted.]
This description better fits environmental crimes committed by those involved in industry than it
does firearms violations by individuals. However, if Hanousek actually does reflect the court's
hostility toward applying that reasoning to water pollution crimes, then prosecutors would be
better off relying upon other grounds in developing their cases.
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ownership is very common in the United States, it alone is not an activity that would justify
dispensing with proof that the defendant actually knew the fact of the fully automatic firing
capacity of his assault rifle. (While possessing gasoline in a fuel tank may be even more
common than gun ownership, query how common is the activity of pouring thousands of gallons
of gasoline into public streets and sewers.) Thus, he had to have knowledge of the fact that
brought his weapon within the scope of the regulation. 511 U.S. at 605-616. The Supreme Court
also made it clear that its decision did not require the defendant's knowledge of the legal point
that his weapon was unregistered. Id. at 609.
In this regard the Staples decision is consistent with the court's earlier decision in United States
v. International Minerals & Chemical Corp., 402 U.S. 558 (1971), a case often relied upon by
courts interpreting criminal environmental statutes. In International Minerals the court held that
a defendant's factual knowledge that he was handling dangerous materials was sufficient to put
him on notice of the likelihood of regulation of that activity. Thus, the message of International
Minerals is the same as that of Staples, that the government must prove a defendant's knowledge
of the facts that make his action unlawful, riot his knowledge of the law itself; a mistake of fact
defense is preserved, but a mistake of law defense is not permitted.
That conclusion was reaffirmed by the Supreme Court in Bryan v. United States, 524 U.S. 184
(1998), another gun case. In Bryan the court said of Staples, "It was not, however, necessary to
prove that the defendant knew that his possession was unlawful." Id. at 193. Interpreting a
statute that includes both "knowing" and "willful" crimes, the Court said that "unless the text of
the statute dictates a different result, the term 'knowing' merely requires proof of knowledge of.
the facts that constitute the offense." Id. \ footnote omitted; see also Rogers v. United States, 522
U.S. 252 (1998)(plurality opinion). The court continued in its explanation of why a "knowing"
standard does not require proof of knowledge of the law, saying that "the background
presumption that every citizen knows the law makes it unnecessary to adduce specific evidence
to prove that 'an evil-meaning mind' directed the 'evil-doing hand.'" Id.; footnote omitted.
According to Bryan, even a "willful" standard normally requires only general knowledge of the
unlawfulness of an act, not specific knowledge of the law making the act illegal. Id. at 191-196.
The court pointed out that only in the limited circumstance of tax and currency transaction
violations, "involving] highly technical statutes that present[] the danger of ensnaring
individuals engaged in apparently innocent conduct," would knowledge of the specific provisions
of the law be required. Id. at 194-195. The mental state standard for 33 U.S.C. § 1319(c)(2)(A)
is "knowing," not "willful," and the simple prohibition in 33 U.S.C. § 1311(a) against
discharging pollutants into the Nation's waters without a permit can hardly be described as a
"highly technical statute."18
^ Bryan, Rogers, Staples, and International Minerals all support the proposition
that in a water pollution case a "knowing" violation requires proof of knowledge of the facts
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Permit Element and Other Matters of Law
In Staples and Bryan the Supreme Court has made it plain that for a "knowing" unpermitted
discharge the United States does not have to show a defendant's knowledge of the law. Thus, the
government does not have to prove that a defendant knew of the applicable statutory definitions,
that is, that a material met the legal definition of a "pollutant," that a conveyance met the legal
definition of a "point source," or that a water body or wetland met the legal definition of a
"navigable water" or a "water of the United States," all of which are matters of law, not of fact.
Those cases also make it clear that the government need not prove that the defendant knew about
the legal requirement of having a permit. An NPDES permit is a legal requirement equivalent to
a gun registration, and the Supreme Court left no doubt that "a defendant need not know that his
weapon is unregistered". 511 U.S. at 609 and 524 U.S. 192-193; see also Rogers, 522 U.S. at
258. In her Staples concurrence Justice Ginsburg properly recognized that a knowledge
requirement in such circumstances actually would create a mistake of law defense:
Knowledge of whether the gun was registered is so closely related to knowledge of the
registration requirement that requiring the Government to prove the former would in
effect require it to prove knowledge of the law. [511 U.S. at 622, n. 3.]
Requiring the United States to prove a defendant's knowledge of whether there was an NPDES
permit for a discharge in effect also would require the government to prove his or her knowledge
of the law.
Not requiring proof of knowledge of the permit requirement or status is consistent with the
position taken by the three circuit courts that have reviewed permit violation convictions.19 See
United States v. Sinskey, 119 F.3d 712, 715-717 (8th Cir. 1997); United States v. Hopkins, 53
F.3d 533, 537-541 (2d Cir. 1995), cert, denied, 516 U.S. 1072 (1996); United States v.
(which facts will be discussed below), but not of the law, without resort.to "public welfare
offense" arguments. Those statutes reflect well-established principles of statutory interpretation
that apply to federal criminal statutes, generally, not just to environmental violations. Assuming
that the very negative treatment afforded that doctrine as applied to a felony in Staples, 511 U.S.
at 606-607, an opinion with which five of the Justices were in agreement, as well as in the dissent
from denial of certiorari by two Justices in Hanousek v. United States, supra, reflect the Supreme
Court's attitude toward the "public welfare offenses" in a water pollution context, prosecutors
may wish to avoid relying upon that doctrine. A satisfactory result can be reached without it.
^ In a permit violation context defense attorneys may argue that the "highly
technical statute" exception in Bryan applies. The flaw in that argument is that, from the broad
array of environmental regulations, the permit distills out the limited number of regulatory
provisions that apply to a particular discharger.
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Weitzenhoff, 35 F.3d 1275, 1283-1286 (9th Cir. 1993), cert, denied, 513 U.S. 1128 (1995). (Note
that in United States v. Cooper, 173 F.3d 1192,1201 (9th Cir.), cert, denied, 528 U.S. 1019
(1999), the district court instructed the jury that the government had to show the defendant's
knowledge of the permit; however, that case was unique in that the defendant was a third-party
contractor, not the permittee or one of its employees. The Ninth Circuit did not address whether
that instruction was necessary, and it did not back away from its Weitzenhoff decision.)
The Ahmad court distinguished Weitzenhoff and Hopkins away as mistake of law rulings, 101
F.3d at 390-391, but did not question their holding that permits and their conditions and
limitations are matters of law, a defendant's knowledge of which the government is not required
to prove. Thus, the Fifth Circuit apparently has accepted the Second and Ninth Circuits' views
on the permit as a matter of law not requiring proof of knowledge, a position consistent with
Staples and Bryan}0
Water of the United States Element
Turning to Ahmad's undefined exception, a "jurisdictional element" is a statutorily specified
prerequisite that must be met in order for federal jurisdiction to be asserted under the particular
statute. It "is not in itself an evil that Congress seeks to combat." United States v. Hairston, 64
F.3d 491, 496 (9th Cir. 1995)(citation omitted). The primary purpose of a jurisdictional element
is to limit the reach of the statute by identifying "the factor that makes the [offense] an
appropriate subject for federal concern." United States v. Yermian, 468 U.S. 63, 68 (1984).
"Jurisdictional language need not contain the same culpability requirement as other elements of
the offense," and '"the existence of the fact that confers federal jurisdiction need not be in the
mind of the actor at the time he perpetrates the act made criminal by the federal statute.'" Id. at
68-69, citing United States v. Feola, 420 U.S. 671, 676-677, n. 9 (1975). In other words, the
government is not required to prove a defendant's factual knowledge of a jurisdictional element.
The Fifth Circuit made that clear in United Slates v. Cisneros, 203 F.3d 333, 343 (5th Cir. 2000):
Labeling this requirement [use of interstate or foreign commerce facility in a murder-for-
hire offense] "jurisdictional," however, does eliminate the need to prove scienter of that
- Some defense lawyers have argued that Ahmad required knowledge of the law,
not just of the facts that made the acts criminal, basing that argument upon a footnote in a later
non-environmental case, United States v. Myers, 104 F.3d 76,.81, n. 4 (5th Cir. 1997). That
footnote alludes to Ahmad as requiring "specific intent" as to each element. Despite its choice ot
language - which does not accurately reflect what Ahmad actually said - what the Myers court
apparently meant was that Ahmad required specific knowledge, not specific intent with its
connotation of knowledge of the law, as to each element. Thus, the Myers reference looks more
like inarticulate opinion writing than it does an effort to turn FWPCA offenses into specific
intent crimes.
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element. It is enough that the proof showed interstate or foreign commerce in the
commission of the offense and that Cisneros had knowledge of the nature of the offense
that she promoted. The government did not need to establish that Cisneros intended to
cause interstate/foreign commerce or even that she knew it occurred. [Citations omitted.]
Although discussions of them may be interwoven in some instances, at least two types of
jurisdictional elements can be distinguished in cases that have touched upon the subject. One
type is an element that establishes basic constitutional federal jurisdiction. Often that is the
interstate nexus of the activity that brings it into the federal sphere under the Commerce Clause.
Examples include the telephone usage in Cisneros, supra, and the interstate communication
element of wire fraud and the interstate commerce element of credit card fraud. See, e.g., United
States v.Blackmon, 839 F.2d 900, 907 (2d Cir. 1988), and United States v. DeBiasi, 712 F.2d
785, 790 (2d Cir. 1983). A second type is an element that establishes federal jurisdiction because
the crime has a direct relationship to the federal government itself. Yermian and Feola, both
cited above, deal with this type of jurisdictional element. In Yermian the element was the fact
that the false statement was in a matter within the jurisdiction of a federal agency, while Feola
involved an assault upon a federal officer. See, also, Hairston, supra, and United States v.
Gibson, 820 F.2d 692 (5th Cir. 1987), both involving theft on and of federal property.
Congressional intent is critical to a finding that a particular element is jurisdictional and,
therefore, dispensing with the knowledge requirement for it. Yermian, 468 U.S. at 74; Feola,
420 U.S. at 676, n.9; United States v. Leon, 534 F.2d 667, 674 (6th Cir. 1976).
Also important is whether knowledge of the element affects the basic culpability of the unlawful
act. In United States v. Bryant, 766 F.2d 370, 375 (8th Cir. 1985), for example, the court held that
the interstate nature of a communication in furtherance of a scheme to defraud under 18 U.S.C. §
1343 "seems clearly to be jurisdictional only." Having noted that an interstate nexus "is most
often solely for the purpose of conferring federal jurisdiction rather than defining substantive
elements of an offense," what the court found determinative as to whether the element was
jurisdictional was whether "the interstate nature of the communications [makes] the fraud more
culpable." Reasoning that "whether or not a defendant knows or can foresee that a
communication is interstate, the offense is still every bit as grave in the moral sense," the court
ruled that the interstate element was jurisdictional only; hence the government was not required
to prove a defendant's knowledge of it. Id.
When Congress amended the Federal Water Pollution Control Act in 1972, it used the term
"navigable waters" (which it defined in 33 U.S.C. § 1362(7) to mean "waters of the United
States") to describe the regulatory reach of the Act. "Interstate waters," used in prior legislation,
had proven to be too narrow a concept to adequately protect the Nation's waters. S. Rep. No. 92-
414, 92 Cong., 2d Sess.; 1972 U.S.C.C.A.N. 3742-3743. Thus, Congress chose to exercise
federal control over discharges into "waters of the United States," but not those into local bodies
of water that would remain under the jurisdiction of the states. The goals of the 1972
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Amendments being to "restore and maintain the natural chemical, physical, and biological
integrity of the Nation's waters", the expanded jurisdiction of "waters of the United States" was
better able to protect that federal interest. Id. at 3672, 3674, 3678.
The Supreme Court recognized the jurisdictional nature of the term "navigable water" as it is
used in the FWPCA in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132-135
(1985)(a wetlands case). Based upon the term's legislative history, the Court ruled that by
defining "navigable waters" as "waters of the United States", "Congress evidently intended to
repudiate limits that had been placed on federal regulation by earlier water pollution control
statutes and to exercise its powers under the Commerce Clause to regulate at least some waters
that would not be deemed 'navigable' under the classical understanding of that term." See also,
e.g., United States v. Hartsell, 127 F.3d 343, 348-349 (4th Cir. 1997), cert, denied, 523 U.S. 1030
(1998); United States v. Ashland Oil Company, 504 F.2d 1317, .1323 (6th Cir. 1974).
The "navigable water" or "water of the United States" element of an unpermitted discharge crime
under 33 U.S.C. § 1319(c)(2)(A) provides the constitutional basis for the exercise of federal
authority over what otherwise would fall under the jurisdiction of individual states. (State
jurisdiction over water pollution abatement is specifically recognized and preserved in 33 U.S.C.
§§ 1251(b) and 1370.) It reflects a decision by Congress to exercise federal jurisdiction over
what clearly is a federal interest, the protection of the Nation's waters from pollution. The
pollution of those waters is not made more culpable, though, by the fact that they may fall within
federal jurisdiction; hence there is no hazard that an innocent defendant may be ensnared in a
federal prosecution. The essence of the crime remains simply the discharge of pollutants into the
water, and polluting the water is not "apparently innocent conduct". Liparota v. United States,
471 U.S. 419, 426 (1985); Bryan, supra, 524 U.S. at 195. Presumably, the Fifth Circuit
considered the "navigable waters" or "waters of the United States" element, which does not go to
the essence of the crime, to be jurisdictional only, not requiring proof of a defendant's factual
knowledge.
Point Source Element
The "point source" element may present a somewhat different situation from the "water of the
United States" element. In most cases there is abundant evidence that the defendant knew of the
conveyance from which the discharge occurred - the pipe, ditch, hose, or truck. Wilson said the
government must prove such knowledge, but did not focus upon the element. In other
prosecutions the instructions have not included knowledge of the point source, and that issue has
not been raised on appeal. Thus, treatment of it is not a settled matter.
In a sense the "point source" is an adjunct to the "water of the United States." In the FWPCA
Congress decided that federal regulatory jurisdiction - and, therefore, criminal enforcement
jurisdiction - under the Commerce Clause would extend to pollutant discharges into all "waters,
of the United States," but only if they came from "point sources." Regulation of non-point
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sources was left to the states, if they chose to undertake it, just as the decision as to whether to
regulate waters that are not "waters of the United States" is left to the states.21 (Certainly
Congress has the power to regulate pollutant discharges from other than point sources and to
criminalize such discharges. It has been doing so for more than a century under the Refuse Act
of 1899, 33 U.S.C. § 407, which has no point source requirement and which includes a clause
covering materials placed on the banks where they may be washed into navigable waters,
regardless of their source.) As with the "waters of the United States"-, whether or not a pollutant
comes from a "point source" does not materially affect whether or not the receiving waters are
contaminated.
The situation, therefore, is similar to that in DeBiasi, suprsjll F.2d at 790-791, in which the
Second Circuit determined that the government did not have to prove defendant's knowledge of
^ The point source element was added to the law by the 1972 Amendments as a
very deliberate delineation of responsibility between the states and the federal agencies for
regulating discharges of pollutants. Federal agencies would regulate only those discharges into
waters of the United States originating from point sources, while the states would remain
responsible for all non-point source pollution.
During committee hearings on the 1972 Amendments, Congress clearly recognized the
destructive impact of non-point source pollution on the Nation's waters, but the legislators
expressly restricted federal jurisdiction to pollution coming from point sources. 1972
U.S.C.C.A.N. at 3705. The definition of the term "discharge of a pollutant," 33 U.S.C. §
1362(12), including the reference to point source, was added to "indicate the scope of control
requirements under the Act."
The legislative history of the 1972 Amendments is explicit with respect to the decision to
federally regulate only point source discharges:
In order to further clarify the scope of the regulatory procedures in the Act, the
Committee has added a definition of point source to distinguish between control
requirements where there are specific confined conveyances, such as pipes, and
the control requirements which are supposed to control runoff. The control of
pollutants from runoff is applied pursuant to section 209 and the authority resides
in the State or local agency. [1972 U.S.C.C.A-N. at 3744; emphasis added.]
EPA's sole involvement with respect to non-point sources of pollution was to develop and
publish "information" that would provide guidance to the states. Following publication of that
guidance, the states then were to submit plans to EPA for programs dealing with non-point
source pollution. Id. at 3706. It is unmistakable that Congress intended the "point source" to
draw a clear demarcation line of federal jurisdiction.
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the $1,000 threshold for federal credit card fraud. Congress exercised its Commerce Clause
jurisdiction to criminalize credit card fraud, but then limited that jurisdiction to cases exceeding
that threshold. (Note that the court assumed state courts could handle cases involving lesser
amounts without determining whether all states actually did have statutes that would cover the
same activities.) There are other federal crimes for which Congress similarly has imposed
thresholds that limit federal jurisdiction, but for which courts have not required knowledge of
those thresholds. See, e.g., Ninth Circuit Manual of Model Jury Instruction for theft of
government property, 18 U.S.C. § 641, embezzlement, 18 U.S.C. § 656, interstate transportation
or receipt of stolen goods, 18 U.S.C. §§ 2314 and 2315. Moreover, for a basic false statement
crime under 18 U.S.C. § 1001 materiality is a jury question, but the United States is not required
to prove the defendant's knowledge of materiality.
In terms of moral culpability, a person's deliberate pollution of the Nation's water does not
change because the pollutant reaches the water from a pipe rather than from run-off. Congress
recognized the gravity of non-point source discharges at the same time that it left regulation of
them to the states. The reasoning of Leon, supra,534 F.2d at 675, "that the danger to society
does not differ depending on whether the defendant was specifically aware of the fact that five or
more persons would be involved in the illegal gambling enterprise he agreed to join" should
apply here. The danger to society is not changed depending on whether a defendant knows the
discharge is from a point source. Moreover, a reasonable person would not draw a line between
innocent and criminal conduct merely because the polluter disposed of his waste through a pipe
and not by just spreading it on the ground where the rain will wash it into a river.22 When a
person knowingly discharges a pollutant, he is no longer "an innocent defendant [who] could be.
ensnared in a federal prosecution" for unknowing conduct. Id. Accordingly, there is a good
argument that the point source element does not go to the essence of the crime and should not
require a defendant's knowledge of it.23
- In some instances, when an pollutant is discharged onto the ground, but
subsequently flows to a water, the device by which it was transported to the discharge site may be
treated as a "point source". See Concerned Area Residents v. Southview Farm, 34 F.3d 114, 119
(2d Cir. 1994), cert, denied, 524 U.S. 1082 (1995)(manure spreader vehicle).
- All of that having been said, whether prosecutors can present a reasonable
argument that the point source element is jurisdictional is a different matter from whether they
should do so. In practice, prosecutors may choose not to take on this fight if, as often is the case,
there is clear evidence that the defendant well knew the conveyance by which the pollutant
entered the water. As a tactical matter a prosecutor with such evidence may accept an instruction
on point source knowledge, but he or she should not take a position that such knowledge is
required for conviction of the crime.
On the other hand, there may be cases in which that evidience is not available. For
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United States v. Wilson
The Fourth Circuit's opinion in United States v. Wilson, supra, involving the filling of wetlands
without a Corps of Engineers Section 404 permit, is directly relevant to both discharging without
a Section 402 (33 U.S.C. § 1342) NPDES permit and discharging without a Section 404 (33
U.S.C. § 1344) Corps permit because both are essentially the same crime: discharge of a
pollutant into a water of the United States without a permit. The crime is defined by the same
statutory provisions, so the elements of the offense should be the same. The only difference lies
in which discharge permit the person failed to obtain. There is no indication in legislative history
that Congress intended any variation in elements depending upon whether a crime involved the
NPDES program or the Section 404 program.
Wilson is a very fragmented opinion, with all three members of the appellate panel agreeing on
only two points, one of which was mental state in relation to the elements of the unpermitted
discharge offense. Whether or not its ultimate conclusions regarding jury instructions are
accepted, the court's analysis of case law relevant to the mental state issue can be useful. Most
importantly, the Fourth Circuit read International Minerals and Staples in harmony with one
another, recognizing that both — regardless of the applicability or inapplicability of the "public
welfare offense" doctrine — turn on knowledge of facts relevant to the elements of the offense
and neither requires evidence of knowledge of the law. Moreover, the court specifically
recognized that Liparota v. United States, 471 U.S. 419 (1985), with its mistake of law defense is
not applicable to these cases.24 133 F.3d 261-264. In those respects Wilson is consistent with
example, on Friday evening a supervisor tells a weekend employee that she wants a chemical
storage tank cleaned out over the weekend. When asked what should be done with the waste
chemicals, the supervisor says they should go into the nearby river, but says nothing of how that
should be done. On Monday the tank is clean and there are dead fish for miles down the river.
However, there is no evidence of the supervisor's knowing how the chemicals reached the river.
(Note that, with respect to knowledge of the point source, the government might proceed under a
willful blindness or deliberate ignorance theory, assuming there is evidence of affirmative
avoidance of such knowledge, or by circumstantial evidence that the supervisor knew the waste
could only reach the river through some form of discrete conveyance.) For such situations
prosecutors should hold open the option of arguing that the point source element is jurisdictional.
Therefore, if a prosecutor chooses to accept an instruction that requires factual knowledge of the
point source, he or she should make it clear on the record that this instruction was given out of an
abundance of caution and does not represent a concession by the United States.
- Defense lawyers may argue that Liparota requires the government to prove a
defendant's knowledge of the law with regard to a permit. In that case, involving food stamp
fraud, the Supreme Court read a "knowing" mental state standard as requiring knowledge of
illegality. It reasoned in part that there was inadequate evidence of legislative intent to
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Bryan.
The Wilson court divided the unpermitted discharge crime into the following six elements:
1.
discharge
2.
of a pollutant
3.
from a point source
4.
into a wetland [or a non-wetland water body]
5.
that qualifies as a water of the United States
6.
without a permit
This is somewhat different from the configurations often used by prosecutors, particularly in its
separation of the pollutant's entry into water from the status of that water as a "water of the
United States."
Regarding those six elements, the Fourth Circuit said that the government must "prove the
defendant's knowledge of the facts meeting each essential element of the substantive offense and
not the fact that defendant knew that his conduct was illegal". Id. at 264. The court's view that
the prosecution must prove that the defendant knew the nature of the material involved, knew
that he discharged it, and knew that it went to a water is undisputed. However, the Wilson
opinion is flawed in its treatment of knowledge of jurisdictional elements and matters of law.
The Point Source Element
The third element, the point source, has been addressed at length above in the Ahmad discussion.
Water Body and Water of the United States
The fourth and fifth elements of the Wilson formulation present an interesting situation. The
criminalize an array of innocent forms of conduct, including some that could be wholly
accidental. Id. at 426-427. The Fourth Circuit in Wilson, 133 F.3d at 262-263, specifically
rejected the applicability of Liparota to an unpermitted discharge violation, relying upon the
legislative history of the FWPCA and the similarity between the language in 33 U.S.C. § 1319(c)
and that involved in International Minerals. In other words, the text of that criminal provision
does not "dictate[] a different result" requiring proof of knowledge of the law. Bryan, supra, 524
U.S. at 193.
In Liparota the court rejected the government's arguments that the crime should be
treated as a "public welfare offense", not requiring knowledge of illegality, since a food stamp
violation did not threaten public health or safety. 471 U.S. at 432-433.
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opinion treats the entry of the pollutant into a water and the connection that makes that water a
"water of the United States" as two separate elements. This treatment of the receiving water as
an independent element has not been the norm in unpermitted discharge cases; however, it can be
an analytically useful formulation.
While Wilson does not discuss any underlying reasoning, this separate treatment is consistent
with the relevant FWPCA provisions. According to the definition in 33 U.S.C. § 1362(6), a
material is not a "pollutant" unless it is "discharged into water." In that definition no mention is
made of the receiving water being a "navigable water" or a "water of the United States", but who
has legal jurisdiction over the particular water is immaterial to whether the water is polluted.
"Pollution" is "the man-made or man-induced alteration of the chemical, physical, biological, or
radiological integrity of water", 33 U.S.C. § 1362(19), regardless of whose water it is, and
whether a water has a pollutant discharged into it is a matter of fact.25
On the other hand, sovereignty is important in the context of the central proscription of the
FWPCA. What 33 U.S.C. §1311(a) prohibits (among other things) is the "discharge of any
pollutant" without a permit. For that act to be subject to federal jurisdiction, it must involve a
water that is within federal jurisdiction. Therefore, the definition of "discharge of a pollutant"
requires that the water the pollutant enters be a "navigable water" (that is, a "water of the United
States"). 33 U.S.C. § 1362(12)(A).
^ Ahmad did not specifically discuss whether the government must prove that the
defendant knew the discharge was likely to reach water, an issue that may arise in cases in which
the discharged pollutant reached water by an indirect route. As to the likelihood of a discharge
reaching water or a sewer, in United States v. United States Gypsum Co., 438 U.S. 422, 445
(1978), the Supreme Court cited with approval the following language regarding purpose or
awareness:
[I]t is now generally accepted that a person who acts (or omits to act) intends the result of
his act (or omission) under two quite different circumstances: (1) when he consciously
desires that result, whatever the likelihood of that result happening from his conduct [e.g.,
Ahmad's pouring gasoline directly into the sewer]; and (2) when he knows that the result
is practically certain to follow from his conduct, whatever his desire may be as to that
result [e.g., Ahmad's pouring gasoline into the street, where it flowed by gravity along
gutters, into a storm drain, and into a river, just as any liquid poured on a street could be
expected to do]. [Citations omitted.]
In circumstances of a roundabout discharge path, prosecutors may look to Section
2.02(2)(b) and (7) of the ALI Model Penal Code to construct an appropriate instruction around a
"practically certain" or "high probability" standard. As a matter of common sense, liquids flow
downhill, gravity being what it is, eventually draining into water bodies or sewers.
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From the perspective of what must be proven at trial, the Fourth Circuit's view that the
government must prove the defendant's factual knowledge of linkage to waters of the United
States is contrary to the case law on jurisdictional elements. Moreover, it creates a hurdle to
criminal enforcement that it is doubtful Congress ever intended. The legal status "water of
United States" — the heart of the fifth Wilson element — may derive from any of several
different factors that trigger Commerce Clause authority, among them tributary connections to
commercially navigable waters or historical usage in interstate commerce. See, e.g., 40 C.F.R. §
122.2. Wilson says the government must prove "that the defendant was aware of the facts
establishing the required link between the wetland and waters of the United States.". This could
amount to an evidentiary burden upon the United States that would be impossible to meet in
some cases. Certainly the burden could be met if the discharge were directly into a river that
clearly was presently commercially navigable, for example, directly into the Ohio River.
However, if the discharge were into a small tributary of a distant commercially navigable river,
the government likely would have no way of proving a defendant's knowledge of the creek's
tributary status in relation to that river. A shrug and a disclaimer of any knowledge of where a
small creek went beyond what was visible from the discharge point could be a viable defense to a
water pollution felony. Because streams may wander around the landscape for miles before
joining with other streams and finally reaching classically "navigable" waters, the Fourth
Circuit's language invites defenses that are the equivalent of a defendant's "simply claiming that
he had not brushed up on the law." Hamling v. United States, 418 U.S. 87, 123 (1974). A
defendant could claim that he had "not brushed up on" local maps (that plainly show the
connection), so he could not know that the stream into which he had discharged pollutants was
connected to any other water body. In the case of a wetland, he could claim that he did not walk
the perimeter of the swamp, so he never knew that it drained out to any other water body. The
Wilson court's view of the law would put a premium on ignorance and indifference in an area
where Congress clearly intended that people be accountable for their actions.
Three unpermitted discharge hypotheticals may help to illustrate the flaws in the Fourth Circuit's
position:
Hypothetical 1
Castor is hauling a truckload of waste chemicals that he wants to dispose of without cost.
He drives off into the countryside in an effort to get as far away from prying eyes as
possible. Finally, he comes to a stream some 10 feet across: Because the stream
meanders through dense woodlands, Castor cannot see more than a hundred feet in either
direction. He does not know the name of the stream or where it goes, but the remote
location serves his needs, so he dumps the chemicals into the stream and drives away. He
has no permit of any kind for this activity. The chemicals kill fish and other biota over a
20-mile stretch of the river downstream from the point of the discharge. The stream is
the Potomac River a few miles below its headwater.
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Hypothetical 2
Pollux purchases a piece of property that includes part of a swamp. Through the trees and
underbrush he cannot see the rest of the swamp, and he neither explores the remainder of
it nor consults a map to determine what is in the vicinity of the swamp. Pollux uses his
part of the swamp as a disposal site for truckloads of infectious medical wastes and
animal wastes from a concentrated animal feeding operation. He has no permit of any
kind for this activity. Gradually the entire swamp turns into a noxious black ooze. The
ooze exits the far end of the swamp from Pollux's property by way of a small stream that
flows approximately a quarter of a mile before it empties into the Mississippi River.
Hypothetical 3
The Gemini brothers dispose of spent electroplating wastes, including acids, cyanides,
and heavy metal sludges by dumping them into Long Bog, a land-locked swampy area
high in the Appalachians. The discharge kills both flora and fauna in the swampland.
Although nothing flows out of Long Bog, in the early history of America fur trappers and
traders in their canoes plied its open water lanes as a link between river systems that
flowed, respectively, to the Atlantic Ocean and the Mississippi Basin. The Geminis have
no interest in early American history; in fact both of them failed the subject before
dropping out of high school after their third year as freshmen.
In none of these hypothetical situations could the government prove the defendants' knowledge
of the facts establishing water of the United States jurisdiction. Therefore, under the Fourth
Circuit's formulation, none of the persons could be prosecuted criminally even though all three
hypotheticals involve unpermitted pollutant discharges into what are by law waters of the United
States. It is difficult to believe that Congress intended such an ignorance defense that would
make the statute unenforceable against exactly the types of offenders who should be criminally
prosecuted, and "[t]here is a presumption against a construction which would render a statute
ineffective or inefficient or which would cause grave public injury or even inconvenience."
United. States v. Powers, 307 U.S. 214, 217 (1939)(citation omitted).
In a footnote at page 264 the Wilson panel recognized that "jurisdictional facts" need not be
proven by the prosecution. However, the court, relying upon Feola, dismissed application of that
concept to an unpermitted discharge because of the supposed absence of an equivalent state
crime. The court ignored the realities of state water pollution enforcement in relation to federal
law. As of this writing, 44 of the 50 states (i.e., all except Alaska, Arizona, Idaho, Maine,
Massachusetts, and New Mexico) have been delegated the authority to run the NPDES program.
That means that in at least those 44 states unpermitted water pollution discharges are crimes
under state law. See 33 U.S.C. § 1342(b)(7) and 40 C.F.R. § 123.27(a)(3). Within those states
there may be variations as to how different waters that would be waters of the United States are
treated in terms of criminal enforcement. If the Fourth Circuit were correct, then the status of the
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mental state relationship to waters of the United States would vary from state to state and site to
site within a state depending upon the idiosyncracies of state laws. Water of the United States
would be a jurisdictional element, knowledge of which would not have to be proven, in at least
some waters in 44 states, but not in the remaining six states. There is no indication in the
FWPCA or its legislative history that Congress intended such a fluctuating mental state factor for
water pollution crimes.
What is clear is that Congress recognized the fundamental wrongness of water pollution (in the
FWPCA, generally, and as far back as the Refuse Act of 1899), preserved the rights of the states
to protect their waters from pollution, 33 U.S.C. §§ 1251(b) and 1370, and required adequate
enforcement mechanisms for any states operating the NPDES or Section 404 program, 33 U.S.C.
§§ 1342(b)(7) and 1344(h)(1)(G).
The Permit Element
In describing the sixth element of its formulation, the Wilson court said that the United States
must prove "that the defendant knew he did not have a permit." 133 F.3d at 264. Trying to
straddle the tension between mistake of law and mistake of fact, the panel then elaborated on its
view:
The 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 [defense] if the
defendant has something he mistakenly believed to be a permit to make the
discharges for which he is being prosecuted. [Id.]
The flaw in that reasoning is that whether or not the "something" the defendant had constituted
an NPDES or Section 404 permit is a matter of law. Thus, his mistaken belief as to its nature
would be a mistake of law, not a mistake of fact. Wilson's confusion on this matter may stem
from a misunderstanding of the Supreme Court's ruling in Staples. The Wilson court correctly
read Staples as preserving a mistake of fact defense, but failed to recognize that Staples said
more than that. It both preserved a mistake of fact defense with respect to knowledge of the
assault rifle's firing capability and stated that "a defendant need not know that his weapon is
unregistered." 511 U.S. at 609; see also Rogers, supra,522 U.S. at 258-259, and Bryan, supra,
524 U.S. at 193.
The mistake of fact defense over an assault rifle's firing capacity preserved by Staples is
analogous to a factual mistake over what was discharged in a water pollution context, for
example, whether it was clean water requiring no permit or acid or some other pollutant requiring
an NPDES permit. Staples did not suggest, though, that a mistake of fact defense would be
allowed for a defendant's claim that he had "something" that he thought was a registration for a
fully automatic weapon. What the Wilson opinion does in its treatment of the permit element is
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open the door for mistake of law defenses in the guise of mistakes of fact. As has been discussed
in relation to the Ahmad decision, plainly that was not what the Supreme Court had in mind in
Staples, Rogers, and Bryan. In practice the Wilson approach would create the mistake of law
defense of which Justice Ginsburg warned in her Staples concurrence; supra.
2. Discharges to Sewer Systems; Pretreatment Violations
In addition to pollution discharges directly to surface waters (and thus regulated by NPDES
permits), large quantities of industrial wastewaters, as well as domestic wastes, are discharged
indirectly into surface waters through sewer systems that are connected to sewage treatment
plants or POTWs. The discharge of wastewater from these POTWs can have significant impacts
upon the quality of the surface waters that receive their effluent.
Although they often are very large and complex, most POTWs are designed to treat conventional
pollutants or domestic sewage and, thus, do not have the capacity to treat every type of industrial
waste that might come to them through their sewer systems, especially toxic pollutants. Some
wastes have the potential to disrupt the operation of a POTW, causing it to violate its own
NPDES discharge permit, or physically damage the system, thereby requiring additional public
funds for costly repairs. Moreover, some wastes can pass through the POTW, thereby either
contaminating the receiving water or degrading the quality of the sludge (solid residues)
produced at the sewage treatment plant, transforming it into hazardous waste, which is costly to
dispose of and which prevents beneficial recycling or reuse. Other wastes can even threaten the
safety of the sewer system workers. Unfortunately, numerous investigations have revealed that
sewer systems have become convenient receptacles for liquid hazardous wastes since the
discharges are often easy to conceal. These are just some of the many reasons why the regulation
of these "indirect" industrial sewer discharges is a very important function of the FWPCA. The
control mechanism selected by Congress to prevent these environmental ills is referred to
as "pretreatment."
To protect the substantial public investments in POTWs and to lessen the likelihood of POTWs
violating their own discharge permits, otherwise generating environmental contamination, or
placing sewer workers at risk, EPA has developed regulations that require "industrial users," see
40 C.F.R. § 403.3(h), that are connected to the sewer lines to adequately treat the wastewaters
they generate before they discharge them into the public sewer system that leads to POTWs.
Thus, the term "pretreatment" refers to the treatment requirements that govern the introduction of
pollutants to the sewers and POTWs. See 40 C.F.R. § 403.3(q). The regulations set forth
pretreatment standards that must be met by those entities discharging to POTWs. They apply
chiefly to industrial and commercial dischargers because they are the most likely sources of
damaging or disruptive effluents.26 Individual state or local POTW authorities also may establish
— Note, though, that those dischargers are not the exclusive focus of pretreatment requirements. Some
standards also apply to the public at large, since individuals are capable of discharging materials into sewer systems
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federally enforceable pretreatment standards or requirements in their efforts to protect the
operations of their plants.
Indeed, the comprehensi ve coverage of these indirect sewer discharges was a major innovation
when the statute was enacted in 1972. Before that time the Refuse Act, 33 U.S.C. § 407, covered
direct discharges to navigable waters, but it did not apply to pollutant discharges that went into
sewers and thence to navigable waters.
In 1972 Congress took a new direction by recognizing the critical part sewer systems play in
water pollution abatement. Among other things, Congress devised a massive financing program
for the construction and upgrading of sewer systems and treatment plants.27 33 U.S.C. § 1281 et
seq. It also brought treatment plants within the regulated community by requiring the
development of effluent limitations for POTW discharges (33 U.S.C. § 1311(b)(1)(B)); by
subjecting plants to the general proscriptions against unlawful discharges of pollutants found in
33 U.S.C. § 1311(a), hence the enforcement provisions—including the criminal provisions—of
33 U.S.C. § 1319; by authorizing regulations setting pretreatment standards for discharges into
POTWs (33 U.S.C. § 1317(b) and (c)); and, finally, by establishing a specific prohibition against
operating in violation of those standards (33 U.S.C. § 1317(d)).
The last provision, 33 U.S.C. § 1317(d), is the one most commonly used in criminal pretreatment
cases brought under FWPCA. It provides that "[a]fter the effective date of any . . . pretreatment
standard promulgated under this section, it shall be unlawful for any owner or operator of any
source to operate any source in violation of any such ... pretreatment standard."
The pretreatment standards that may be enforced under 33 U.S.C. §§ 1317(d) and 1319(c)
include those promulgated directly by EPA. However, as discussed later, they also may include
pretreatment standards adopted at the state or local level.
Federal pretreatment standards are of three types. The first two groups, in 40 C.F.R. § 403.5,
apply to all discharges, regardless of their sources. The first of those, known as "general
prohibitions" (40 C.F.R. § 403.5(a)), proscribes the discharge of any pollutant into a sewage
system that causes "pass-through" of the pollutant (i.e., the pollutant passes through a POTW
into a receiving body of water without adequate treatment) or "interference" with the operation
of the POTW.28 The second group, known as "specific prohibitions" (40 C.F.R. § 403.5(b)),
that may damage or disrupt those systems, for example, a homeowner's discharging old gasoline that had been
stored for use in home power equipment.
— The 1972 amendments were enacted over a presidential veto based largely upon the magnitude of the
federal financing program for public treatment systems.
^ "Interference" and "pass through" are defined in 40 C.F.R. § 403.3(i) and (n), respectively.
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includes, inter alia, prohibitions against the introduction into POTWs of flammable, explosive,
viscous, and corrosive materials, which can physically damage the system. These general and
specific prohibitions serve as "catch-all" or "default" limitations that apply to the broad spectrum
of potentially harmful pollutants.
Federal regulations in the third group are known as "categorical standards" because they have
been developed for, and applied to, specific industrial categories. See 40 C.F.R. Parts 405-471.
These categorical standards are numerical pollutant reduction requirements or limitations for
waste streams resulting from particular industrial processes, and they are designed to prevent the
occurrence of pass through and interference. In addition, these numerical limitations are
technology-based, meaning that they are derived from the capability of specific wastewater
treatment technology to reduce pollutant discharges. For example, pretreatment standards
developed specifically for the electroplating industry (which are among the most commonly
enforced) are found in 40 C.F.R. Parts 413 and 433.
As noted earlier, certain elements of local (or state, see 40 C.F.R. § 403.10(e)) pretreatment
programs also may be federally enforced. There are two paths by which this may be done. First,
according to 40 C.F.R. § 403.5(d), specific local pretreatment limitations or prohibitions are
treated as federal standards for purposes of 33 U.S.C. § 1317(d); thus, they are enforceable under
that provision and 33 U.S.C. § 1319(c). Second, the criminal provisions in 33 U.S.C.
§ 1319(c)(1)(A) and (2)(A), by reference to 33 U.S.C. § 1342(a)(3) and (b)(8), make violations of
the "requirements," see 40 C.F.R. § 403.3(r), of approved local pretreatment programs subject to
federal criminal enforcement.29 The latter route, which stands alone and does not operate
through the prohibition in 33 U.S.C. § 1317(d), may involve a broader scope of enforcement
authority than does the former. Only local prohibitions and limitations are mentioned in
40 C.F.R. § 403.5(d), while 33 U.S.C. § 1319(c)(1)(A) and (2)(A) speak of "any requirement" in
an approved program. Such a "requirement" might involve a local sewer discharge permit
program or the submission of a periodic report, for example.30
— When enforcement of local slandards or requirements is contemplated, it is critical to explore the
history and status of the local program with respect to approval by EPA. The obligation of POTWs to establish
pretreatment programs arises from the NPDES permit program under 33 U.S.C. § 1342, not from 33 U.S.C. § 1317.
A POTWs approved pretreatment program is incorporated into its NPDES permit. In a state to which the NPDES
program has not been delegated, EPA remains the approval authority for a local pretreatment program. In a state to
which NPDES authority has been delegated by EPA, though, the state must approve such a program.
In some instances the local limitation, prohibition, or requirement (including a permit requirement) may be
implementing a federal pretreatment standard. In suchcircumstances, the enforcement action is effectively for
violation of both the federal and the local standard.
- For a discussion of the relationships among federal, state, and local pretreatment
standards and requirements, see United States v. lverson, 162 F.3d 1015 (9th Cir. 1999).
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The elements of an offense for violation of a pretreatment standard under 33 U.S.C. § 1317(d)
are as follows:
(1) A person31
(2) Operated a source
(3) In violation of a pretreatment standard
(4) After the effective date of that standard;32 and
He or she acted knowingly [or negligently].
The elements of a pretreatment requirement offense under 33 U.S.C. § 1319 (c)(1)(A) or (2)(A)
are as follows:
(1) A person
(2) [Committed an act that constituted a violation of a requirement imposed in a
pretreatment program approved under 33 U.S.C. § 1342(a)(3) or 1342(b)(8)]; and
He or she acted knowingly [or negligently].
During the development of a case for the violation of a pretreatment standard, several important
points should be considered. First, whatever type of requirement may be involved (e.g., permit
or prohibition), that requirement must be carefully scrutinized. If it is a permit, the prosecutor
must pay particular attention to all the terms and definitions (e.g., required methods of sampling),
as well as to the history surrounding its issuance (e.g., due process issues, including whether any
notice or comment period was provided to the permittee or other users). Also, the prosecutor
must strive to understand fully the operations, processes, and common practices of the industry
to which the target company belongs. (It may be useful to visit the POTW involved in the case
in order to better understand its operation and the nature of any pretreatment violation.)
^ For guidance on relevant jury instructions, see Volume 3, Chapter 1, of this
Manual.
^ Federal indictments sometimes have cited both 33 U.S.C. §§ 1317(d) and 1311(a) in charging
pretreatment violations. (Occasionally, they also have referred to 33 U.S.C. § 1342.) When a violation of 33 U.S.C.
§ 1317(d) is charged, no reference should be made to either Sections 1311(a) or 1342. Any such reference might be
improperly interpreted to suggest that the government must offer evidence that the violative discharge to the sewer
actually passed through the POTW to the surface water and/or that the discharge caused the POTW to violate its
NPDES permit. Neither is an accurate representation of the law; thus, both citations should be avoided.
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Second, for purposes of a pretreatment violation, a POTW does not necessarily include only the
plant itself; it also includes the "sewers, pipes, and other conveyances" when they are connected
to the plant. 40 C.F.R. § 403.3(o).33 Thus, a violation occurs when an offensive material is
discharged into the sewer system. It is not necessary to prove that the material actually reached
the plant proper as long as the sewer line is running to the plant proper.
Third, while sanitary sewers lead to a POTW, in some places separate storm sewers carry
material directly to waterways without any passage through or treatment by a POTW.34
Theoretically, separate storm sewers should carry only uncontaminated runoff waters. In fact,
however, pollutants sometimes are discharged into them. When such a discharge occurs, it
cannot be charged as a pretreatment violation because it is not destined for a POTW. If the storm
sewer empties into a water of the United States, however, it can be charged as a direct
unpermitted pollutant discharge in violation of 33 U.S.C. § 1311(a). The storm sewer can be
considered the point source, since there is no requirement that the discharger be the owner of the
point source, or the ultimate source of the pollutant (for example, a tank truck from which
chemicals are illegally poured down a storm drain) can be treated as the point source with the
storm sewer simply acting as a conduit.
Fourth, POTWs are built with "bypass" systems allowing sewage flows to be diverted around the
plants and discharged directly into surface waters (for example, to protect the POTW from
damage when explosive materials are detected in a sewer). Thus, if a pollutant is discharged into
a sewer system that normally connects to a POTW, but at the time of the discharge the POTW
happens to be operating in a bypass mode, the discharge will be diverted around the POTW. In
fact, the effect is a direct discharge to a water of the United States through the sewer as a
conduit.35 Since the discharger need only know that he did an act, not that it constituted a
particular crime, the proper charge in those circumstances probably should be for a direct
discharge. (One example of a situation where this approach could be appropriate is where the
discharger's effluent is of such a nature that the POTW goes into bypass specifically to avoid the
hazards associated with that waste.)
^ See 40 C.F.R. § 403.3 for other definitions specifically applicable to pretreatment.
— In a third type of system, a "combined" system, both sanitary sewage and storm waters flow
through the same lines, and both go to the POTW.
^ This is not a pretreatment. violation because the discharge is not to a POTW, the reason being that
the sewer system is not part of the POTW when it is not carrying sewage to the POTW according to 40 C.F.R. §
403.3(o).
The conduit concept has been used in a number of criminal cases; however, none of them has yielded an
opinion on the issue. The concept is traceable, though, to a civil action, United States v. Velsicol Chemical Corp.,
438 F. Supp. 945 (W.D. Tenn. 1976).
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The pretreatment violations discussed above arise from the nature of material discharged to a
POTW, regardless of whether any harm actually occurs. In short, environmental harm is not an
essential element of a violation of the statutory sections previously discussed. However, since
the 1987 amendments, the Act also provides criminal sanctions in certain situations relating to
POTWs in which the focus is potential harm, not pretreatment standards. Under 33 U.S.C.
§ 1319(c)(1)(B) and (c)(2)(B), additional crimes are set out for discharges into sewer systems
that have the potential of causing injury or damage or that in fact cause the POTW to violate its
NPDES permit:
Any person who [knowingly/negligently] introduces into a sewer system or into a
publicly owned treatment works any pollutant or hazardous substance which such person
knew or reasonably should have known could cause personal injury or property damage
or, other than in compliance with all applicable Federal, State, or local requirements or
permits, which causes such treatment works to violate any effluent limitation or condition
in permit issued to the treatment works under Section 1342 of this title by the
Administrator or State [is subject to criminal sanctions].
These provisions obviously raise some issues of knowledge and of causation, among other
things. They have not yet been the subject of federal litigation, so little can be said of them
beyond pointing out their elements:
(1) A person36
(2) Introduces into a sewer system or POTW a pollutant or hazardous substance37
(3) Which the person knew or reasonably should have known could cause personal
injury or property damage
or
(except in compliance with all applicable federal, state, or local requirements)
which causes the POTW to violate a federal or state NPDES permit; and
He or she acted knowingly [or negligently].
- For guidance on relevant jury instructions, see Volume 3, Chapter 1, of this
Manual.
^ The term "hazardous substance," as used here, is specially defined in 33 U.S.C. § 1319(c)(7) to
include substances deemed hazardous or toxic under CERCLA, RCRA, the Toxic Substances Control Act, or two
other parts of the FWPCA. This legislative approach of sweeping in substances from other programs by reference
also is found in 42 U.S.C. § 9601(14).
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Two of the reasons for so much attention in the FWPCA to sewer systems have been discussed
earlier: (1) the impact of untreated or inadequately treated sewage upon receiving waters and (2)
the enormous public investment in POTWs. If a third reason is necessary, consider the fact that
sewer systems run under streets, sidewalks, and buildings. When such a system exploded in
1981 in Louisville, Kentucky, because a highly combustible solvent had been discharged into it
in violation of the pretreatment prohibitions against discharges of flammable or explosive
materials, see 40 C.F.R. 403.5(b)(1), the streets and sidewalks above it were destroyed, and both
commercial and residential buildings sustained severe damage. The explosions occurred under
what was a heavily used commuter artery, and the only thing that prevented substantial loss of
life was the fortuity of the explosions occurring at 5:15 a.m., before there was any traffic on the
road.
In that case, the sewer system spread a combustible liquid downstream from the discharge point.
If a toxic gas had been involved instead, it could have been dispersed even more widely through
the affected community, because gases would not follow the gravity flow pattern of the liquid
and solid materials in a sewer system, but instead would be spread by the winds that blow in
random patterns within a sewer system.38
3. Wetlands and Filling Violations
The third major regulatory area under the FWPCA is wetlands protection. Wetlands perform
important ecological functions. Among other things, they act as fish nurseries and trap pollutants
that otherwise would enter surface waters. However, large portions of the nation's wetlands have
been destroyed, often by developers. To protect wetlands, Congress established in the FWPCA a
permit program that regulates the deposit of fill material and dredged spoil.into wetland areas,
inter alia.
Unlike the programs described above, the wetlands permit program at the federal level is
administered by the Army Corps of Engineers rather than by EPA. It is a program that has
generated a good deal of controversy because of its extensive jurisdictional reach.39
— Interestingly, the pretreatment standard in 40 C.F.R. § 403.5(b)(7) deals with toxic vapors, but
only insofar as they may affect worker health and safety. Query whether it takes into account the health and safety
of people other than POTW workers.
^ The jurisdictional issue (particularly, jurisdiction being defined by biological criteria) has been a
major factor in the controversy surrounding the Section 404 wetlands program, but there are others. One is the
constitutional takings issue. Another is more a matter of strategy by those opposed to wetlands regulation than it is
an issue, as such. Basically, those opponents have attempted to portray defendants in criminal wetlands cases as
unfortunate victims of excessive and misdirected government zeal. Their approach has been more one of media
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Section 404 of the Federal Water Pollution Control Act, 33 U.S.C. § 1344, regulates the
discharge of dredged or fill material into waters of the United States. This section is the central
provision in the federal wetlands protection program, because wetlands are defined by regulation
as waters of the United States. They include swamps, bogs, and other areas that historically have
not been considered worthy of preservation in this country.40 Often they have been considered
worthless lands, which would become valuable only if they could be drained or
filled—sometimes filled with trash and garbage as dump sites on which sports complexes and
other facilities later could be built.
In recent decades, though, the inherent ecological values of wetlands finally have been
recognized. Among other things, they provide habitat for valuable wildlife resources, they aid in
flood control and they are essential foundations for food chains that ultimately may feed human
beings. Prosecuting wetlands cases, though, often involves dealing with mindsets that are not
sensitive to the value of wetlands. Certainly this is true of defendants, who frequently are
attack than legal argument. In the case of United States v. Ellen, 961 F.2d 462 (4th Cir.), cert, denied, 506 U.S. 875
(1992), the United States Attorney's Office for the District of Maryland very aggressively faced such a media assault
head-on and effectively blunted efforts to make a sympathetic defendant out of an individual who was
knowledgeable of wetlands regulation.
In the Ellen case a significant issue was the criteria used by federal regulators to determine what parts of
the affected property were wetlands. Because that matter of criteria still may be in an evolving state, a prosecutor
developing a wetlands case should pay special attention to exploring how the wetlands delineation was made in the
case, any policy shifts that may affect the delineation, and any potential controversies over the methods of
delineation.
— Wetlands are not defined by statute in 33 U.S.C. § 1362. However, they are referred to in the
definitions of "waters of the United States" ("Wetlands adjacent to waters (other than waters that are themselves
wetlands) identified [in other paragraphs or sections]") and they are thereafter independently defined in 40 C.F.R. §
232.2 and 33 C.F.R.. § 328.3(b), inter alia, as follows:
Wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and
duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs,
and similar areas.
See Corps of Engineers Wetlands Delineation Manual, Technical Report Y-87-1 ("1987 Manual") for
wetlands identification procedures; United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).
Note that in United States v. Wilson, supra, 133 F.3d at 255-258, the Fourth Circuit invalidated 33 C.F.R. §
328.3(a)(3) insofar as it extended jurisdiction to waters, the degradation of which could affect interstate
commerce. Also, as discussed earlier, in Solid Waste Agency of Northern Cook County v. Corps
of Engineers , supra, the Supreme Court invalidated the "migratory bird rule" as a basis for
establishing "waters of the United States" jurisdiction over isolated, non-navigable, intrastate
waters.
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concerned only with their own economic benefits. A prosecutor also may be faced with a court
and/or jury that does not entirely understand the importance of wetlands protection and the
criminality of wetlands destruction.
The program for controlling deposit of dredged or fill material is similar to that applicable to
other types of pollutant discharges to waters of the United States in that it also relies upon a
permit system as its chief regulatory mechanism. That permit system, frequently referred to as
the "404 program" after its section number in the FWPCA, is administered by the Army Corps of
Engineers, rather than by EPA. See 33 U.S.C. § 1344(a). However, EPA reviews Corps-issued
permits and has authority to effectively veto a Corps permit. See 33 U.S.C. § 1344(c).
As with the NPDES permit program, supra, a state may administer its own program under 33
U.S.C. § 1344(g) and (h). Only two states—Michigan and New Jersey—have chosen to
administer their own programs.
No matter who may be administering that program, the statutory prohibition upon which it
hinges is the same one that underlies the NPDES program, that is, 33 U.S.C. § 1311(a), supra.
Under that provision, "[e]xcept as in compliance with ... 33 U.S.C. § 1344, the discharge of any
pollutant by any person shall be unlawful." Also, the same sections that define criminal
sanctions for NPDES violations, 33 U.S.C. § 1319(c)(1)(A) and (2)(A), apply to violations of 33
U.S.C. § 1344, and those sections make it clear that the federal government can prosecute for
violations of either federally issued or state-issued permits. Thus, the elements of an offense
relating to wetlands and dredged or fill material disposal are virtually the same as those for other
surface water violations:41
(1) A person42
(2) Discharged a pollutant43
— For statutory definitions and case law relevant to key terms such as "point source" and
"pollutant," see notes and citations under direct discharge violations, supra.
% For guidance on relevant jury instructions, see Volume 3, Chapter 1, of this
Manual.
— In wetlands cases some defendants have argued that all they discharged was "clean fill," "clean
dirt," or some such innocuous-sounding substance. They then argue that, because an innocuous substance does not
put them on notice of the likelihood of regulation, they cannot be convicted under a general intent standard. As has
been pointed out, common salt applied as a seasoning to food may not be dangerous, but it can be lethal to marine
biota if it is discharged into a water of the United States. Ordinary dirt is a harmless addition to a vegetable garden,
but it can eradicate a wetland.
Note that on January 17, 2001, EPA and the Corps of engineers jointly published
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(3) From a point source
(4) Into a water of the United States (including a wetland)44
(5) Without a permit or in violation of a federal or state permit under 33 U.S.C.
§ 1344;45 and
He or she acted knowingly [or negligently].
Prosecutors should be aware that cases arising under 33 U.S.C. § 1344 may have certain unique
aspects that should be resolved as early as possible in the course of an investigation. One issue
that may arise is whether the actions fall under the regulatory program of 33 U.S.C. § 1344 or
whether they are treated as point source discharges under the 33 U.S.C. § 1342 NPDES permit
program. While the distinction may seem academic, given the permit requirements of both
programs, the prosecutor must settle upon one or the other in deciding how to charge and
develop a case.46
regulatory amendments of 40 C.F.R. § 232.2 and 33 C.F.R. § 323.2 exempting "incidental
fallback" from the definition of "discharge of dredged material." Users should review the
publication of those amendments, 66 Fed. Reg. 4550, for the specific terms of those amendments
and for discussion of related issues.
- Keep in mind that in United States v. Wilson, supra, the Fourth Circuit treated the
receiving water as a separate element from that water's status as a "water of the United States."
- For Corps of Engineers regulations on discharges that do and do not require
Section 404 permits, see 33 C.F.R. Part 323.
- The unique aspect of a 404 case is that the pollutant is "fill material." Under Corps regulations,
fill material is "any material used for the primary purpose of replacing an aquatic area with dry land or of changing
the bottom elevation of an [sic] water body. The term does not include any pollutant discharged into the water
primarily to dispose of waste, as that activity is regulated under Section 402 of the Clean Water Act." 33 C.F.R. §
323.2(e) (emphasis added). EPA, though, uses a different definition of fill material. Under the EPA definition, fill
material is any "pollutant which replaces portions of the Waters of the United States with dry land or which changes
the bottom elevation of a water body for any purpose." 40 C.F.R. § 232.2 (emphasis added). The differing EPA
and Corps definitions create a regulatory conundrum as to whether a Corps Section 404 permit or an EPA NPDES
permit is required for discharges of solid wastes to the waters of the United States. The resulting conflict has been
"resolved" by a memorandum of agreement (MOA) between the Corps and EPA establishing that discharges of
solid waste materials will be treated as fill material. Under the MOA criteria for determining which regulatory
program will apply, the 404 program will regulate the discharge if waste disposal is one of the primary purposes of
the fill, the discharge results from construction-type activity (e.g., demolition), the effect of the discharge is to
smother habitat, and/or the discharge is heterogeneous and of the type associated with sanitary landfill discharges.
See Army Corps/EPA MOA on Solid Waste, 51 Fed. Reg. 8871 (March 14, 1986).
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A second issue likely to arise is whether the activity actually occurred in an area that is within
federal regulatory jurisdiction. This issue often is the most hotly contested one in a wetlands
case.
Under Corps regulations, the term "waters of the United States" means the following:
(1) All waters which are currently used, or were used in the past, or may be
susceptible to use in interstate or foreign commerce,47 including all waters that are
subject to the ebb and flow of the tide;48
(2) All interstate waters including interstate wetlands;49
The court of appeals addressed interstate commerce in Utah v. Marsh, 740 F.2d 799, 802-803
(10lh Cir. 1984) (citations omitted):
* * * It is generally agreed that Congress .. . intended to assert federal jurisdiction over the nation's waters
to the maximum extent permissible under the Constitution, unlimited by traditional concepts of
navigability. * * *
* * * Article I, § 8, cl.3, confers on Congress the power "[t]o regulate Commerce . . . among the several
states . . . "Thus the power of Congress to promote interstate commerce also includes the power to
regulate the local incidents thereof, including local activities in both the States of origin and destination,
which might have a substantial and harmful effect upon the Commerce." This is so irrespective of whether
such an effect is what at some lime earlier was defined as "direct" or "indirect" Moreover the triviality of
an individual's act is irrelevant so long as the class of such acts might reasonably be deemed nationally
significant in their aggregate economic effect.
See also discussion of cases in Quivera Mining Co. v. United States, 765 F.2d 126 (lO01 Cir. 1985), cert, denied, 474
U.S. 1055 (1986).
— "Tidal waters" means those waters that rise and fall in a predictable and measurable rhythm or
cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water
surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other
effects. 33 C.F.R. § 328.3(f). See Leslie Salt Co.-v. United States, 700 F. Supp. 476, 484 (N.D. Cal. 1988) (tidal
flow must be measurable).
^ See footnote 40, supra, regarding definition of "wetlands."
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(3) All other waters such as intrastate lakes,50 rivers, streams51 (including intermittent
streams),52 mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows,
playa lakes, or natural ponds, the use, degradation, or destruction of which could
affect interstate or foreign commerce, including any such waters:53
(i) Which are or could be used by interstate or foreign travelers for
recreational or other purposes; or
(ii) From which fish or shellfish are or could be taken and sold in interstate or
foreign commerce; or
(iii) Which are used or could be used for industrial purpose by industries in
interstate commerce;
(4) All impoundments of waters otherwise defined as waters of the United States
under the definition;54
(5) Tributaries of waters identified in paragraphs (a) (1) through (4) of this section;
(6) The territorial seas;
— Technically, artificial "lakes" may not fit the definition of lakes at 33 C.F.R. § 323.2(b).
However, borrow pits, when abandoned, may acquire the jurisdictional characteristics of waters of the United States
and thus become subject to federal jurisdiction like other man-made waters. For examples of waters of the United
States jurisdiction in man-made waters, see United States v. Eidson, supra (drainage canals), and United States v.
Holland, supra (non-navigable, man-made mosquito canals).
— United States v. Ashland Oil, supra\ United States v. Oxford Royal Mushroom, supra.
— United States v. Phelps Dodge Corp., supra (normally dry arroyos).
— Keep in mind, though, the earlier-mentioned Fourth Circuit's invalidation of this
regulation to the extent that it involves speculative effect upon interstate commerce in United
States v. Wilson, supra, and the Supreme Court's ruling on the "Migratory Bird Rule" in Solid
Waste Agency of Northern Cook County v. Corps of Engineers, supra.
— "Impoundment" is not defined in the regulations. For cases specifically relying on impoundments
of tidal waters, see Leslie Salt v. Froehlke (diked salt water evaporation ponds). Most prior cases seem to involve
wetlands and discussions of adjacency of wetlands separated by an impoundment. See, e.g.. United States v. Tilton,
705 F.2d 429 (lllh Cir. 1983) (adjacent wetlands with "likely" groundwater connection and occasional surface water
connection on "extreme high tides and hurricane situations" is water of the United States); United States v. St.
Bernard Parish, 589 F. Supp. 617 (E.D. La. 19R4) (flood control canal); United States v. Ciampitti, 583 F. Supp.
483, 494 (D.N.J. 1984).
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(7) Wetlands adjacent to waters (other than waters that are themselves wetlands)
identified in paragraphs (a) (1) through (6) of this section.55
Waste treatment systems, including treatment ponds or lagoons designed to meet the
requirements of CWA (other than cooling ponds as defined in 40 C.F.R. § 123.1 l(m), which also
meet the definition of "waters of the United States," are not waters of the United States. 33
C.F.R. § 328.3(a); compare 40 C.F.R. § 232.2 (EPA regulations); see also definitions in 33
C.F.R. § 323.2.
Third, with regard to potential cases relating to 33 U.S.C. § 1344, prosecutors and investigators
must be alert to the fact that the statute identifies certain discharges that are not prohibited and
hence do not require permits, and it provides for general permits for certain types of activities
involving lesser adverse environmental effects. See 33 U.S.C. § 1344(f) and (e), respectively.
Regulations relating to discharges not requiring permits and to nationwide general permits are
published in 33 C.F.R. § 323.4 and Part 330, respectively.56 The significance of these factors to
enforcers is that, while at first blush a particular activity may appear to be criminal, upon closer
examination it may turn out that the activity requires no permit or is properly within the
nationwide permit program. Plainly, this should be determined before any substantial resources
^ The term "adjacent" means bordering, contiguous, or neighboring. Wetlands separated from other
waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the .like are
"adjacent wetlands." 33 C.F.R. § 328.3(c). This regulation and the prior reference to adjacent wetlands would seem
to limit this definition to wetlands. See 33 C.F.R. § 328.4(b)(2) referring to "adjacent non-tidal waters." EPA
wetlands expert William Kruczynski in United States v. Key West Towers, Inc. (S.D. Fla., 7-10034-Civ.) used four
additional factors to determine an adjacency question: reasonable proximity, historical connection, potential
connection, and biologic connection.
^ Activities exempted under 33 C.F.R. § 323.4 include normal farming (see definitions);
maintenance of currently serviceable structures; construction or maintenance of farm ponds; temporary construction
of sediment basins; construction and maintenance of farms, forest, and mining roads; and projects specifically
authorized by Congress. Fills involving listed toxic pollutants are not exempted.
Nationwide permits regulate certain activities having minimal impact. They involve little, if any,
paperwork or delay. The permits themselves are subject to public notice and comment, 33 C.F.R. § 330.1(b), but
individual activities under them are not. Any such activities must satisfy all of the terms and conditions of the
respective nationwide permit, and a person who fails to comply with those terms and conditions may be subject to
enforcement action. 33 C.F.R. §§ 330.1(c). 330.4. Under some nationwide permits, prior notice to the Corps is
required, and in some cases a party may not proceed with an activity until the Corps has verified compliance with
the terms and conditions of the nationwide permit. 33 C.F.R. §§ 330.1(e), 330.6. A nationwide permit does not
relieve a party from the obligation to secure and comply with other federal, state, or local administrative
requirements that may apply to a project. 33 C.F.R. § 330.4(a).
The activities that are subject to nationwide permits and the conditions attaching to those permits are
set out in Appendix A to 33 C.F.R. Part 330. Nationwide permits cover aids to navigation, maintenance of
previously authorized structures, bank stabilization, "minor dredging," oil spoil cleanups, and removal of man-made
obstructions to navigation, among others.
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are committed to an investigation.
A fourth point, which might best be described as a caveat, is that in some circumstances the
Corps of Engineers will issue to a party an after-the-fact permit for work already done.57 See 33
C.F.R. § 326.3(e). Of course the issuance of such a permit could make a shambles of an
enforcement action, and subjects of investigations have been known to seek such permits once
they have become aware of investigatory interest in their activities. In a case referred by the
Corps of Engineers, of course, permitting officials should be well aware of the intentions of their
enforcement counterparts. However, in any case involving potential fill violations that are
received from an investigative agency other than the Corps, coordination with the Corps is
imperative so that the latter will be alert to any effort by a potential defendant to secure an after-
the-fact permit to disrupt the enforcement action.
A final noteworthy point is that, while 33 U.S.C. § 1344 may cover the deposit of dredged
material, it does not directly cover the dredging itself, that is, the removal of material as
distinguished from where that material may go once it has been dredged. However, dredging
itself in navigable waters of the United States is regulated under the Rivers and Harbors Act, 33
U.S.C. §§ 403 and 406. (Keep in mind, though, that federal jurisdiction under that Act is
narrower than under the FWPCA.)
4. Knowing Endangerment
The knowing endangerment provision in 33 U.S.C. § 1319(c)(3) was added by the 1987
amendments to the FWPCA. It is modeled on the knowing endangerment provisions of the
RCRA, 42 U.S.C. § 6928(e) and (0, as amended in 1984. Thel990 Clean Air Act amendments
included a similar sub-section in that statute, 42 U.S.C. § 7413(c)(5). While the three are not
absolutely identical, they are similar enough that their case law should be largely
interchangeable. Under each, if a person commits certain other offenses under the respective
statute and knows at the time that he thereby places another person in imminent danger of death
or serious bodily injury, he may be found guilty of knowing endangerment. The sanctions for
such a crime are up to 15 years' imprisonment and up to a $250,000 fine for an individual or up
to a $1,000,000 fine for an organization.
The elements of 33 U.S.C. 1319(c)(3) offense are as follows:
(1) A person58
-1 Some Corps offices also may allow work to proceed while a permit application is pending.
^ For guidance on relevant jury instructions, see Volume 3, Chapter 1, of this
Manual
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(2) Knowingly committed a specified predicate felony
(3) And he knew at the time that he thereby put another person in imminent danger of
death or serious bodily injury.59
The predicate offenses for knowing endangerment are almost, but not quite, the same as those
covered in 33 U.S.C. § 1319(c)(2)(A). Oddly, Congress added violations of 33 U.S.C. § 1313
(water quality standards), which cannot be enforced under the Act's basic misdemeanor or felony
provisions. More importantly, though, in (c)(3) there is no reference to approved state and local
pretreatment requirements. Thus, on the face of the statute, it would appear that only violations
of federal pretreatment standards (which can include approved state or local pretreatment
prohibitions or limitations, according to 40 C.F.R. §§ 403.5(d) and 403.10(e)) can be predicate
offenses for knowing endangerment violations. Also missing as predicate offenses are the
violations under 33 U.S.C. § 1319(c)(2)(B).60
In United States v. Borowski, 977 F.2d 27, 29-31 (lsl Cir. 1992), the defendants were convicted
by a jury on two counts of knowing endangerment under the CWA for dumping plating wastes
into sinks leading to a municipal sewer system in violation of pretreatment standards and for
exposing company employees to health risks. However, the court of appeals vacated the
convictions, holding that a prosecution for knowing endangerment under the CWA cannot be
premised upon danger that occurs before the pollutant reaches publicly owned sewers or
treatment works. Thus, while defendants had knowingly violated pretreatment standards, the
court found they had not "thereby" placed the employees in imminent danger since the risk of
harm would have been the same even had the discharge never reached the municipality's sewer
— In United States v. Protex Industries, Inc., 874 F.2d 740 (10111 Cir. 1989), which was a RCRA
knowing endangerment case, the circuit court approved the district court's jury instruction defining "imminent
danger" as the combination of conditions "which could reasonably be expected to cause death or serious bodily
injury." In so doing, the court rejected defendant's contention that the statute required a showing of causation of
such injuries with "substantial certainty." Id. at 744.
In United States v. Villegas, 784 F.Supp. 6, 12-13 (E.D.N. Y. 1991), the district court
concluded that knowing endangerment under the FWPCA requires a showing that the defendant
was subjectively aware of a "high probability" that his conduct would cause death or serious
bodily injury to another, rather than mere possibility or risk. In the appeal of that case, sub nom.
United States v. Plaza Health Laboratories, Inc., 3 F.3d 643, 649-50 (2d Cir. 1993), cert,
denied, 512 U.S. 1245 (1994), the court of appeals chose not to address an issue raised by the
government relating to the definition of "imminent danger," as well as the required level of
knowledge surrounding the danger.
— In most instances violations of 33 U.S.C. §1319 (c)(2)(B) probably can be developed along more
conventional pretreatment felony lines within the scope of 33 U.S.C. §1317 (d), thereby making them predicate
offenses for purposes of 33 U.S. C. §1319 (c)(3).
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system.
The Borowski court took a narrow view that pretreatment standards were designed to only protect
sewers and sewer workers, and noted that the CWA does not extend to protecting employees
working with the wastes at the point of discharge or working within the discharging industries,
referring to other laws, such as the Occupational Safety and Health Act (OSHA), as protecting
industrial health and safety. The court also noted that since the CWA generally does not cover
the handling of pollutants, the knowing endangerment provision of the Act applies only to
persons "downstream" of the discharger. Thus, the court adopted the view that the
environmental crime must be completed or perfected before "knowing endangerment" can occur.
5. Falsification and Tampering
As with other environmental statutes, the effectiveness and integrity of the CWA is heavily
dependent upon truthful and accurate self-reporting by the regulated community. There are
simply not enough resources available for the government itself to try to monitor all water
pollutant discharges or activities that have potential adverse environmental impacts. The
governmental agencies must rely heavily upon the information submitted by the regulated
community. When false information is placed into the regulatory system, permits can be
improperly issued and violations can go completely undetected. When such information-based
violations are discovered, the false statement prosecution is an essential weapon in the CWA
enforcement arsenal. Because of its dependence upon the truthful information from the regulated
community, the CWA has its own falsification and tampering felony provision, 33 U.S.C.
§ 1319(c)(4), which reads as follows:
Any person who knowingly makes any false material statement, representation, or
certification in any application, record, report, plan, or other document filed or required to
be maintained under this chapter or who knowingly falsifies, tampers with, or renders
inaccurate any monitoring device or method required to be maintained under this chapter,
shall upon conviction, be punished by a fine of not more than $10,000, or by
imprisonment for not more than 2 years, or by both. If a conviction of a person is for a
violation committed after a first conviction of such person under this paragraph,
punishment shall be by a fine of not more than $20,000 per day of violation, or by
imprisonment of not more than 4 years, or by both.
To date this provision has been used chiefly in cases involving falsifications of discharge
monitoring reports (DMRs) or monthly monitoring reports, which are required to be maintained
or submitted to federal or state agencies by holders of NPDES permits, although an increasing
number of cases are being prosecuted for unlawful tampering with monitoring devices or methods. See, e.g.,
United States v. Sinskey, supra, and United States v. Hopkins, supra.
Functionally, the falsification portion of 33 U.S.C. § 1319(c)(4) is very similar to the general
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federal false statement statute, 18 U.S.C. § 1001. They are largely interchangeable, and
prosecutors (and judges) may feel more comfortable with the latter than the former. However,
the choice between the two may affect sentencing after a conviction. Sentencing for 33 U.S.C.
§ 1319(c)(4) is under either U.S.S.G. § 2Q1.2 or § 2Q.1.3 of the sentencing guidelines
(depending upon the nature of the pollutant), while violations of 18 U.S.C. § 1001 are sentenced
under § 2F1.1. The problem with 33 U.S.C. § 1319(c)(4), in a one-count context and assuming
that the purpose of the falsification was to conceal a substantive violation, is that its two-year
sentencing cap on incarceration may prohibit imposition of the full prison term generated by the
Part 2Q guideline. On the other hand, 18 U.S.C. § 1001 has a higher cap at five years. However,
the specific offense characteristics of § 2F1.1 on their face are not designed to capture the.
characteristics of environmental crimes. Thus, charging under 18 U.S.C. § 1001 offers a higher
cap, but it would appear to generate a lower total offense level and, therefore, a lower sentencing
range.
Application Note 13 in the commentary to § 2F1.1, though, offers a possible escape from this
apparent dilemma. That note authorizes sentencing under another guideline if the particular
offense is "more aptly covered" by that other guideline. Thus, assuming that § 2Q1.2 or 2Q1.3 is
such a guideline, a one-count falsification could be charged under 18 U.S.C. § 1001 with its five-
year incarceration cap, but with the offense level calculated under the appropriate Part 2Q
guideline.
Offenses under 33 U.S.C. § 1319(c)(4) include falsifications in documents that must be
maintained, as well as in those that must be filed, and it extends to causing inaccuracies in
monitoring devices or methods. Similarly, this provision could also be utilized when evaluating
information submitted in the context of permit applications. Since states or local government
entities may be the ones implementing the statutory programs, the provision is not written in
terms only of federal requirements.
The elements of an offense under 33 U.S.C. § 1319(c)(4) are as follows:
(1) A person61
(2) Makes a false material statement, representation, or certification in any
application, report, record, plan, or other document62
^ For guidance on relevant jury instructions, see Volume 3, Chapter 1, of this
Manual.
— Note that, unlike the corresponding RCRA and Clean Air Act provisions, 42 U.S.C. §§ 6928(d)(3)
and 7413(c)(2), respectively, this subsection does not specifically criminalize omissions. However, it should be
possible to characterize many material omissions in an affirmative manner as falsifications since their ultimate effect
is to convey an inaccurate picture of a given situation.
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or
Falsifies, tampers with, or renders inaccurate any monitoring device or method,63
(3) And the document was required to be filed or maintained or the device or method
was required to be maintained under the Act; and
He or she acted knowingly [or negligently].
6. Oil or Hazardous Substances Violations
a. Introduction
Following a rash of oil spills in 1989 and 1990, including the Exxon Valdez in Prince William
Sound, the Mega Borg in the Gulf of Mexico, and the Shinoussa in Galveston Bay, Congress
enacted the Oil Pollution Act of 1990 (OPA). The 1990 amendments chiefly affect Section 311
of the CWA, 33 U.S.C. § 1321. Although the Clean Water Act, as it existed before the OPA
amendments, already prohibited discharges of oil and hazardous substances, those amendments
made that prohibition specifically criminally enforceable, while making the failure to report a
spill a felony and restricting the immunity applicable to such a report. The amendments also
dramatically increased liability of vessels for clean up costs and instituted the Oil Spill Liability
Trust Fund.
b. Prohibited Discharges of Oil or Hazardous Substances, 33 U.S.C.
§ 1321(b)(3)64
Section 1321(b)(3) of Title 33 prohibits discharges of oil or hazardous substances in quantities
that "may be harmful." Section 1319(c) makes negligent or knowing violation of this prohibition
a criminal offense.65
— See United States v. Hopkins, supra, for the mental state standard applicable to a 33 U.S.C. §1319
(c)(4) violation.
— Depending on the facts of the case, a violation of Section 1321(b)(3) also may be a violation of
the Act to Prevent Pollution from Ships (APPS), 33 U.S.C. § 1908, as well as of other statutes. The CWA and
APPS have somewhat different elements and penalties. For a detailed discussion of APPS, see Subchapter 9E.
Also, a discharge at sea of a hazardous substance (but not of oil) may constitute a violation of the Ocean Dumping
Act, 33 U.S.C. §1401 et seq. See Subchapter 9D.
— The 1990 OPA amendments added Section 1321(b)(3) to the list of sections for which violations
can be prosecuted under Sections 1319(c)( 1)(A) and (c)(2)(A). Prior to that amendment, such spills were
prosecuted as unpermitted discharges from point sources in violation of 33 U.S.C. § 1311(a), and in some
circumstances they still may be. See, e.g., United. States v. Hamel, 551 F.2d 107 (6th Cir. 1977)
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The elements of an offense under 33 U.S.C. §§ 1319(c) and 1321(b)(3) are as follows:
(1) A person66
(2) Discharged oil or a hazardous substance
(3) Into water of the United States or
upon adjoining shorelines or
into the contiguous zone or
in connection with activities under the Outer Continental Shelf Lands Act or the
Deepwater Port Act,67 or that may affect natural resources belonging to the United
States
(4) In a quantity that may be harmful;68 and
He or she acted knowingly [or negligently].
The following definitions relate to violations under 33 U.S.C. 1321:
• Person—The term "person" is broadly defined by the statute to include
individuals, firms, corporations, associations, and partnerships. 33 U.S.C.
§ 1321(a)(7).69
• Negligently/Knowingly—The mental requirements are discussed in detail in this
^ For guidance on relevant jury instructions, see Volume 3, Chapter 1, of this
Manual.
^ The Outer Continental Shelf Lands Act is at 43 U.S.C. § 1331 et seq. and the Deepwater Port Act
is at 33 U.S.C. § 1501 et seq.
— The elements of an offense charged under 33 U.S.C. § 1321(b)(3) differ from an unpermitted
discharge under 33 U.S.C. § 1311 in several ways. Under § 1321(b)(3), (1) a discharge heed not be from a "point
source" (although it is likely to be in any event); (2) geographic jurisdiction is broader, in that the discharge can be
to "adjoining shorelines" and the "contiguous zone" (or beyond in some instances), as well as to navigable waters;
and (3) the amount discharged must be a quantity that "may be harmful."
^ For regulatory definitions applicable to 33 U.S.C. § 1321(b), see 40 C.F.R. §§ 110.1 and 117.1. Note
that the general definitions in 33 U.S.C. § 1362 apply unless other specific definitions, such as those in 33 U.S.C.
§1321(a), are provided.
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subchapter in relation to unpermitted discharge violations and in Chapter 7 of this
manual.
• Discharged—Discharges include any spilling, leaking, pumping, pouring,
emitting, emptying, or dumping. 33 U.S.C. § 1321(a)(2). Note that the definition
of discharge under Section 1321 differs from that under Sections 1311 and 1362
in that Section 1321 does not refer to "point sources" and specifically excludes
discharges relating to NPDES permits.
• Oil—"Oil" as defined by the statute means oil of any kind or in any form,
including petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other
than dredged spoil. 33 U.S.C. § 1321(a)(1).
• Hazardous Substances—"Hazardous substances" are those substances that
create a potential for imminent and substantial danger to public health or welfare,
including fish and wildlife, when discharged. 33 U.S.C. §§ 1321(a)(14),
1321(b)(2)(A). For a list of the substances designated as hazardous by EPA, see
40 C.F.R. Parts 116 and 117.
• Waters of the United States and Adjoining Shorelines—"Waters of the United
States" include rivers as well as ocean waters that extend three miles from the low
tide mark. 33 U.S.C. §§ 1362(7), 1362(8).
• Contiguous Zone—The "contiguous zone" is the area beyond the territorial sea
(three miles from the low tide mark) out to 12 miles. 33 U.S.C. § 1362(9).
• Affect Natural Resources—The Act prohibits discharges that may affect natural
resources belonging to, appertaining to, or under the exclusive management
authority of the United States (including resources under the Magnuson Fishery
Conservation and Management Act). This would potentially include waters out to
200 miles (also known as the Exclusive Economic Zone (EEZ)) upon a showing
that the natural resources therein might be affected.
• Quantities That May Be Harmful—For oil, EPA has determined that any
discharge that violates water quality standards or causes a film or sheen upon the
surface of the water or adjoining shoreline or causes sludge or emulsion to be
deposited beneath the surface of the water may be harmful to the environment. 40
C.F.R. § 110.3(b). The regulations also expressly forbid the use of dispersants or
emulsifiers that circumvent the harmful quantity definition. 40 C.F.R. § 110.4.
Discharges of oil from a properly functioning vessel engine and discharges of oil
accumulated in a vessel's bilge that are in compliance with MARPOL (that is,
passed through a properly operating oil-water separator) are not treated as harmful
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quantities. See 40 C.F.R. § 110.5. (However, an oily bilge discharge that is not in
compliance with MARPOL can be subject to enforcement under both MARPOL
and Section 1321.)
For hazardous substances, EPA has set individual harmful (or reportable)
quantities measured in pounds and kilograms. 40 C.F.R. Part 117.70
Prior to 1978, 33 U.S.C. § 1321(b)(3) prohibited discharges of oil or hazardous substances "in
harmful quantities." This language led courts to conclude that Section 1321 exempted certain
"de minimis" discharges that caused no actual harm. See United States v. Boyd, 491 F.2d 1163,
1168 (9th Cir. 1973) (pre-amendment case recognizing congressional intent to exclude certain de
minimis discharges from the statute); United States v. Chevron Oil Co., 583 F.2d 1357, 1363 (5th
Cir. 1978) (pre-amendment case holding that "sheen test" could be rebutted by defendant's proof
that no actual harm resulted from the spill). However, in 1978 Congress amended § 1321 to
prohibit discharges "in such quantities as may be harmful." 33 U.S.C. § 1321(b)(3) (emphasis
added). As a result, some courts have held that the statute no longer requires discharges to result
in actual harm to the environment. See Chevron, U.S.A., Inc. v. Yost, 919 F.2d 27, 30-31 (5th
Cir. 1990) ("1978 amendments gave the EPA broader authority to regulate small spills" that may
not cause actual harm); Orgulf Transport Co. v. United States, 711 F. Supp. 344, 347 (W.D. Ky.
1989) ("Whether a spill resulted in actual harm to the environment is irrelevant to the
determination of whether Section 31 l's prohibition of discharges of oil in quantities which may
be harmful has been violated.").
Prosecutors should be aware that some discharges of oil under 33 U.S.C. § 1321(b)(3) maybe
subject to an exception created by the MARPOL Protocol.71 The MARPOL exception varies
depending on the vessel, type of waste, and location. The requirements established by
MARPOL, and the exceptions thereto, are set forth in the U.S. Coast Guard's implementing
regulation, 33 C.F.R. Part 151. However, it is worth checking MARPOL and relevant United
— Since hazardous substances under 33 U.S.C. § 1321 are also considered "pollutants" under 33 U.S.C.
§ 1311(a), some violations may fall under both Sections 1321 and 1311. However, since the applicability of
33 U.S.C. § 1311(a) is limited to discharges into navigable waters (inland waters and those out to three miles from
shore), vessel source pollution beyond three miles may only be violative of 33 U.S.C. § 1321. On the other hand,
within the navigable waters prosecution under 33 U.S.C.•§ 1311(a) may be more feasible in instances when clear
evidence of a harmful or reportable quantity is not available.
— MARPOL refers to the International Convention for the Prevention of Pollution from Ships, 1973, and
the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973.
Together referred to as the MARPOL Protocol or MARPOL 73/78, these treaties, to which the United States is a
signatory, contain several general axioms and five annexes that provide specific substantive regulations. Annex I
regulates discharges of oil; Annex II covers the discharges of noxious liquid substances in bulk; Annex III regulates
harmful substances carried by sea in packaged forms or in freight containers, portable tanks, or road and rail
wagons; Annex IV regulates sewage pollution from ships; and Annex V regulates the disposal of sewage (including
plastics) from ships. MARPOL is discussed in greater detail in Subchapter 9E.
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States regulations in each case involving oil discharges or spills from vessels. For example, 33
U.S.C. § 1321(b)(3) (A) exempts discharges in the contiguous zone (i.e., waters 3-12 miles from
shore) and in waters outside of the contiguous zone that are from ships operating in compliance
with MARPOL. Under MARPOL, ships (other than oil tankers) within 12 miles from shore may
discharge oily water if the following limited conditions exist: the oil or oily mixture does not
originate from the cargo pump room bilges; the oil or oily mixture does not mix with oil cargo
residues; the ship has an operational pollution prevention device known as an oil/water separator
(bilge/water separator), and an alarm; and the oil content of the discharge contains less than 15
parts per million. 33 C.F.R. § 151.10(b). For discharge beyond 12 miles the oil content of the
discharge must be less than 100 parts per million. 33 C.F.R. § 151.10(a). The MARPOL
exception in Section 1321(b)(3)(A) does not apply to discharges within the navigable waters (i.e.,
waters within three miles of shore and internal waters of the United States).
The provision through which violations of the prohibition in 33 U.S.C. § 1321(b)(3) are
prosecuted is 33 U.S.C. § 1319(c)(1) and (2), discussed earlier in this subchapter.
c. Failure To Report Spills, 33 U.S.C. § 1321(b)(5)
The second criminal offense under 33 U.S.C. § 1321 is the failure to report a spill to the
government, a five-year felony with fines tied to the Alternative Fines Act, 18 U.S.C. § 3571.
The elements of the offense are as follows:
(1) A person72
(2) In charge of a vessel or of an onshore or offshore facility
(3) From which oil or a hazardous substance is discharged in a reportable quantity
(i.e., such quantity as may be harmful)
(4) Into a navigable water of the United States [or other area specified in 33 U.S.C.
§ 1321(b)(3)]
(5) Fails to immediately notify the appropriate federal agency
(6) As soon as he has knowledge of the discharge.
The following definitions relate to failure to report violations (in addition to those already noted
under 33 U.S.C. § 1321(b)(3), supra)'.
1Jl For guidance on relevant jury instructions, see Volume 3, Chapter 1, of this
Manual.
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• In Charge of an Onshore or Offshore Facility—The term "in charge" is not
defined by statute or regulation. However, courts have held that a corporation can
be a "person in charge." Apex Oil Co. v. United States, 530 F.2d 1291, 1293 (8th
Cir.), cert, denied, 429 U.S. 827 (1976); United States v. Mobil Oil Corp., 464
F.2d 1124, 1127 (5Ul Cir. 1972).
Furthermore, the term has been construed to allow the prosecution of multiple
defendants because individuals can be "in charge" at varying levels. For example,
a plant manager may fail to report a known spill, and the corporate officer over
him, knowing of the spill and knowing it has not been reported, also can be held
responsible for that failure. Additionally, the corporate or other organizational
owner of a vessel or facility may be charged along with whichever of its
individual personnel failed to report a spill.
• Failure to Notify Appropriate Federal Agency—The federal agency to which
spills are to be reported is the United States Coast Guard, which operates the
National Response Center (NRC), reachable around the clock through a toll-free
800 telephone number. 40 C.F.R. § 110.10. Whenever charging is contemplated
under 33 U.S.C. § 1321(b)(5), NRC should be contacted to determine whether it
received notice of the spill.73 The NRC toll-free number can be found in
telephone directories, and often it can be found posted, along with notification
procedures, in locations where large volumes of oil and other reportable materials
are handled. Such a posted notification may be of evidentiary value in a
prosecution.
• As Soon as Person Has Knowledge of the Discharge—A spill is supposed to be,
reported immediately upon receipt of knowledge of it by the person in charge.
What constitutes immediate notice, though, may depend upon circumstances
unique to the case. See United States v. Messer Oil Corp., 391 F. Supp. 557, 562
(W.D. Pa. 1975).
Violation of 33 U.S.C. § 1321(b)(5) is a crime of omission. The only knowledge required is that
of the occurrence of the discharge on the part of the person in charge of the vessel or facility.
The spill, though, must be of a sufficient amount to constitute a reportable quantity (often
referred to as the "RQ" for the material involved). Reportable quantities are the same as
"quantities which may be harmful" as discussed above.74
To anticipate possible defenses, it also may be wise to check with the EPA region and with state
agencies to determine whether they received notice even if NRC did not.
^ Note that for hazardous substances in solution, only that portion of the solution that actually is the
hazardous substance is counted toward the reportable quantity requirement. For example, the RQ for malathion is
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Section 1321(b)(5) prohibits the use of spill notifications in criminal prosecutions against
"natural persons." Consequently, although individuals who make spill notifications may still be
charged criminally, prosecutors and investigators may not use evidence of a notification against
the notifying individual. However, such information may be used against a corporate defendant
or against individuals other than the person who made the notification.75
Note, also, that CERCLA contains a notification requirement, applicable only to releases of
hazardous substances, that includes release into the waters. 42 U.S.C. § 9603(b). That provision
gives use-immunity to all persons, including corporations, and bars usie of information obtained
through exploitation of the notification. Thus, where a case involves a properly reported spill of
hazardous substances in circumstances where both 33 U.S.C. § 1321(b)(5) and 42 U.S.C.
§ 9603(b) may apply, it must be assumed that the broader use-immunity under CERCLA applies.
In those cases, it may be necessary for a "tainted" investigator or attorney to screen evidence to
determine whether it was derived from the immunized report before providing it to the
prosecution team.
100 pounds. If 100 pounds of a 50-percent (by weight) solution of malathion and water were discharged, the total
amount of malathion actually discharged would be only 50 pounds (0.50 x 100); hence the RQ would not have been
met. For 100 pounds of the malathion to have been discharged, a total of 200 pounds of the 50-percent solution
would have to be discharged. 44 Fed. Reg. 50765, 50767 (August 29, 1979).
For exceptions to the reporting requirement, see 40 C.F.R. §§ 117.11-117.14. Also, the
reportable quantity of hazardous substance has to have been discharged within a 24-hour period.
40 C.F.R. § 117.21.
— Before its amendment by the Oil Pollution Act of 1990, 33 U.S.C. § 1321(b)(5) provided for
derivative use immunity by excluding "information obtained by the exploitation of such notification" and extended
the use immunity to all persons including corporations. The amendment was intended to narrow substantially the
scope of use immunity and to eliminate all derivative use immunity. See Conf. Rep. for H.R. 1465, Oil Pollution
Act of 1990, July 30, 1990, at 122.
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Chapter 9
Water Pollution Statutes
Subchapter A
Introduction to Criminal Statutes
Relating to Water Pollution*
Table of Contents
Page
Introduction to Criminal Statutes
Relating to Water Pollution 9.A-4
1. Summary of Criminal Provisions of Several Water Pollution Statutes 9.A4
A. Federal Water Pollution Control Act (Clean Water Act), as Amended by the Oil Pollution
Act of 1990 (33 U.S.C.§§ 1251-1387) 9.A4
B. Rivers and Harbors Act of 1899 (33 U.S.C. §§ 401-418) 9.A-5
C. The Marine Protection, Research, and Sanctuaries Act (Ocean Dumping Act) (33 U.S.C.
§§ 1401-1445) 9.A-5
D. Act to Prevent Pollution From Ships (APPS) (33 U.S.C. §§ 1901-1912), the International
Convention for the Prevention of Pollution From Ships of 1973 (MARPOL), and the
Protocol of 1978 Relating to the International Convention for the Prevention of
Pollution From Ships (MARPOL Protocol) 9.A-6
2. Applicability of Various Water Pollution Statutes 9.A-6
A. Geographical Jurisdiction of Different Water Pollution Statutes 9.A-7
1. Commonly Used Terms 9.A-7
2. Geographic Jurisdiction of the CWA, as Amended by the Oil Pollution Act 9!A-8
3. Geographic Jurisdiction of the Rivers and Harbors Act of 1899 9.A-9
"Prepared by T. Neal McAliley, Trial Attorney, Environmental Crimes Section.
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4. Geographic Jurisdiction of the Ocean Dumping Act 9.A-9
5. Geographic Jurisdiction of the MARPOL Protocol and the Act to Prevent Pollution From
Ships 9.A-10
B. Application of Different Statutes to Different Pollutants Discharged From Vessels 9.A-11
1. Oil 9.A-11
2. Plastic 9.A-12
3. Garbage Other Than Plastic 9.A-12
3. Interaction of Different Water Pollution Statutes and Practical Issues
Related to Criminal Enforcement 9.A-13
A. Legal Interaction 9.A-13
B. Practical Issues 9.A-13
1. Mental State Requirements 9.A-13
2. The "Point Source" Requirement 9.A-14
3. Agencies Administrating Different Statutes 9.A-14
4. Venue 9.A-15
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WATER POLLUTION STATUTES/INTRODUCTION TO CRIMINAL STATUTES
RELATING TO WATER POLLUTION
Introduction to Criminal Statutes
Relating to Water Pollution
Water pollution continues to be one of the most active areas of federal criminal
environmental enforcement However, all cases cannot be developed or prosecuted
under a single unified statutory scheme. Several different regimes may apply,
depending on the nature of the pollutant, the location of the activity, or the manner in
which the pollutant enters the water. The purpose of this introduction is to help the
reader sort through the potential options and to focus upon the statute or statutes most
appropriate to a particular set of facts.
The lines among the various statutory regimes are not always absolute. In some areas
there is overlap that may expand the prosecutorial options available in particular
circumstances or allow a case to be developed under one statute even though the
evidence is not available to meet all of the elements under another.
The reader should keep in mind that this chapter is only an introduction. While it
discusses some of the relevant statutory provisions, one must refer to those
subchapters on the individual statutes for a full understanding of their provisions and
their limitations.
The material that follows in this introduction is divided into three parts. Part 1 briefly
outlines the criminal provisions of some of the more significant water pollution
statutes. Part 2 discusses distinctions among water-related statutes based on the
nature of the pollutants involved and the geographical location where the pollution
occurred. Part 3 outlines how the different statutes interact with one another and
discusses some of the practical advantages and disadvantages of using different statutes
in a criminal prosecution.
1. Summary of Criminal Provisions of Several Water
Pollution Statutes
A. Federal Water Pollution Control Act (Clean Water Act), as Amended by the Oil
Pollution Act of 1990 (33 U.S.C. §§ 1251-1387)
The Federal Water Pollution Control Act, commonly known as the Clean Water Act
(CWA), is the most comprehensive federal statute concerning water pollution. It
establishes a complex regulatory scheme administered by federal agencies and by the
states, the goal of which is to eliminate the pollution of the waters of the United
States. Under the Act, the most commonly prosecuted crime is the discharge of a
pollutant into the waters of the United States without a permit or in violation of the
terms of a permit 33 U.S.C. § 1311(a), 1319(c). The CWA also criminalizes the
discharge of dredged or fill material into wetlands except in compliance with a
permit, 33 U.S.C. §§ 1319(c), 1344, and makes criminally enforceable the limits on
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the discharges of certain pollutants into publicly owned sewer systems, 33 U.S.C.
§§ 1317, 1319(c). When violations are committed knowingly, they are felonies.
When violations are committed negligently, they are misdemeanors. Additional
felony provisions apply to violations that may compromise the Act's information-
gathering mechanisms, 33 U.S.C. § 1319(c)(4), and to violations of the Act that
result in the knowing endangerment of a person, 33 U.S.C. § 1319(c)(3).
The CWA was amended in 1990 by the Oil Pollution Act Under those
amendments, it is a felony to knowingly discharge harmful quantities of oil or
hazardous substances into the waters of the United States or into the contiguous
zone, and a misdemeanor to do so negligently. 33 U.S.C. §§ 1319(c), 1321(b).
Also, the failure to report a discharge of oil or a hazardous substance above a
specified amount in violation of the Act is a felony. 33 U.S.C. § 1321(b)(5).
The Clean Water Act is discussed in detail in Subchapter 9B of this manual.
B. Rivers and Harbors Act of 1899 (33 U.S.C. §§ 401-418)
The Rivers and Harbors Act of 1899 is the oldest federal environmental law. The
Act makes it a misdemeanor to discharge refuse matter of any kind into the
navigable waters of the United States without a permit; this specific provision is
known as the Refuse Act 33 U.S.C. §§ 407, 411. The Rivers and Harbors Act also
makes it a misdemeanor to excavate, fill, or alter the course, condition, or capacity
of any port, harbor, channel, or other areas within the reach of the Act without a
permit 33 U.S.C. §§ 403, 406. Although many activities covered by the Rivers
and Harbors Act are regulated under the Clean Water Act, the 1899 Act retains
independent vitality. The Rivers and Harbors Act is administered by the U.S. Army
Corps of Engineers.
The Rivers and Harbors Act is discussed in detail in Subchapter 9C of this manual.
C. The Marine Protection, Research, and Sanctuaries Act (Ocean Dumping Act)
(33 U.S.C. §§ 1401-1445)
The Marine Protection, Research, and Sanctuaries Act, more commonly known as
the Ocean Dumping Act regulates the overall dumping of material into the ocean.
The centerpiece of the Act is its permitting system, which allows ocean dumping
activities to occur only pursuant to the Environmental Protection Agency (EPA) and
Army Corps of Engineers permits. It has two important felony criminal provisions.
First, the Act prohibits the transportation of material from the United States for the
purpose of dumping it into ocean waters without a permit Second, the Act also
prohibits the dumping of material transported from outside the United States into
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American waters and some nearby waters without a permit 33 U.S.C. §§ 1411,
1415(b). The Ocean Dumping Act is administered primarily by EPA.
The Ocean Dumping Act is discussed in detail in Subchapter 9D of this manual.
D. Act to Prevent Pollution From Ships (APPS) (33 U.S.C. §§ 1901-1912), the
International Convention for the Prevention of Pollution From Ships of 1973
(MARPOL), and the Protocol of 1978 Relating to the International Convention
for the Prevention of Pollution From Ships (MARPOL Protocol)
The 1973 International Convention for the Prevention of Pollution From Ships, and
its 1978 Protocol, together commonly referred to as the "MARPOL Protocol,"
establish a comprehensive set of international rules relating to the discharge of oil,
plastic, garbage, and other pollutants from ships. APPS implements the MARPOL
Protocol and makes it enforceable under federal law. The U.S. Coast Guard is
responsible for administering the law, and has promulgated a complex set of
regulations governing ship-based pollution. APPS makes it a felony to knowingly
violate the MARPOL Protocol, APPS itself, or regulations written by the Coast
Guard pursuant to APPS. 33 U.S.C. § 1908(a). The main provisions of APPS are
those relating to the operational discharge of oil from vessels and the prohibitions on
the discharge of plastic and other garbage into most waters.
APPS and the MARPOL Protocol are discussed in detail in Subchapter 9E of
this manual.
2. Applicability of Various Water Pollution Statutes
The criminal statutes relating to water pollution do not entirely overlap, either in
what they prohibit or to which waters they apply. Some of the differences in
jurisdiction are outlined below.
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A. Geographical Jurisdiction of Different Water Pollution Statutes
1. Commonly Used Terms1
Baseline—The point on the ocean coast of the United States from which
the territorial sea is measured, generally the ordinaiy low water mark of
the coastline.2
Contiguous Zone—The contiguous zone is the area of ocean extending from
three miles from the baseline (the seaward limit of the territorial seas) to 12
miles from the baseline.3
Internal Waters or Inland Waters—All waters inland of the territorial sea
baseline, including rivers, bays, wetlands, etc.4
International Waters or High Seas—All ocean waters that are not part of the
territorial seas or the internal waters of the United States.5
Navigable Waters of the United States—As used in the Rivers and Harbors Act of
1899, this generally means inland waters that are subject to tidal influence,
other inland waters that in fact are, have been, or could be used as highways
for interstate commerce and the territorial seas.6 As used in the Clean Water
'The definitions provided in ibis section are intended to serve as a general reference. The precise meaning
of each term may vary by statute, however, so one must always check all applicable definitions under the
statutory regime that is the basis of an enforcement proceeding.
*The baselines of the United States are defined in the Convention on the Territorial Sea and the Contiguous
Zone, April 29, 1958, 15 U.S.T. 1606. See also 33 U.S.C. § 1362(8) (CWA definition of territorial seas as "the
belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct
contact with the open sea and the line marking the seaward limit of inland waters [Le., the baseline]");
33 C-FJR. § 2.05-10 (Coast Guard definition of "territorial sea baseline"); 33 C.F.R.. § 329.12(a)(1) (Army Corps
of Engineers definition of "baseline").
Convention on the Territorial Sea and the Contiguous Zone, April 28, 1958, 15 U.S.T. 1606; see also
33 U.S.C. § 1362(9) (CWA definition of "contiguous zone"); 33 CJ'JL § 2.05-15 (Coast Guard definition
of "contiguous zone"); 40 C.F.R. § 110.1 (EPA definition of "contiguous zone" for purposes of oil
discharge regulations).
*33 C.F.R. § 2.05-20 (Coast Guard definition of "internal waters and inland waters").
^3 CJF.R. § 2.05-1 (Coast Guard definition of "high seas"); see also United States v. Davis, 905 F2d 245
(9th Cir. 1990) cert, denied, 498 U.S. 1047 (1991); United States v. Rubies, 612 F2d 397, 402 n. 2 (9th Cir.
1979), cert, denied, 446 U.S. 940 (1980).
6See 33 CJF.R § 2.05-25 (Coast Guard definition), pt. 329 (Corps of Engineers definition).
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Act, "navigable waters" means "waters of the United States" (defined
below),7 which is a more inclusive term than "navigable waters" as used in
the Rivers and Harbors Act
Ocean Waters—The term is used in the Ocean Dumping Act to mean all waters
seaward of the baseline, including the territorial seas, the contiguous zone,
and international waters.8 As used in the Clean Water Act, the term "ocean"
means any portion of the high seas beyond the contiguous zone.9
Territorial Sea or Territorial Waters—The area of ocean extending three miles
outward from the baseline.10
Waters of the United States—As used in the CWA, this phrase is equated with
"navigable waters," and it generally means most inland surface waters
whether or not they are navigable in fact or influenced by the tides, wetlands
adjacent to surface waters and some other wetlands that affect interstate
commerce, and the territorial sea.11
2. Geographic Jurisdiction of the CWA, as Amended by the Oil Pollution Act
The geographic jurisdiction of the Clean Water Act, as amended by the Oil
Pollution Act, varies depending on the type and the source of the pollutant
For oil and hazardous substances, CWA jurisdiction reaches the discharge of
oil in internal waters, the territorial sea, and the contiguous zone (i.e., out to
twelve miles from the baseline).12 The Oil Pollution Act also reaches
beyond the contiguous zone if the oil discharge "may affect natural resources
733 U.S.C. § 1362(7); 40 CPJL §§ 110.1, 1163 (EPA definitions of "navigable waters" for purposes of oil
and hazardous substance discharge regulations); see also 33 C.F.R. § 328.3(a) and 40 C.FJR.. §§ 122.2, 2303(s)
(almost identical Corps of Engineers and EPA definitions of "waters of the United States").
*33 U.S.C. § 1402(b) (Ocean Dumping Act definition of "ocean waters").
933 U.S.C. § 1362(10).
1033 U.S.C. § 1362(8) (CWA definition of "territorial seas"); 33 C.F.R. § 2.05-5 (Coast Guard definition
of "territorial sea").
uSee supra note 7.
,233 U.S.C. §§ 1321(b)(3) (discharge of oil prohibited in "navigable waters of the United States, adjoining
shorelines, or into or upon the waters of the contiguous zone"), 1321(a)(9) (defining contiguous zone [generally
the area extending out 12 miles from the baseline]), 1362(7) (defining "navigable waters of the United States"
as "waters of the United States"); 40 CJF.R. § 122.2 (defining "waters of the United States" to include
inland waters).
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belonging to, appertaining to, or under the exclusive management authority of
the United States."
For pollutants other than oil, the Clean Watex Act's jurisdiction depends on
the source of the pollutant The Act governs the discharge from vessels of
pollutants other than oil only in internal waters and in the territorial sea {i.e.,
only out to three miles from the baseline).13 The Act governs the discharge
of non-oil pollutants that are not from vessels (such as from offshore oil
drilling platforms) anywhere, including internal waters, the territorial sea, the
contiguous zone, and in international waters.14 As most ocean pollution
comes from vessels, die reach of the Clean Water Act over non-oil pollutants
is therefore somewhat limited.
3. Geographic Jurisdiction of the Rivers and Harbors Act of 1899
The jurisdiction of the Rivers and Harbors Act is the same regardless of the
type of pollutant or the source of pollution. In all cases, the Act applies to
internal waters that are tidally influenced or navigable in fact, and to the
territorial seas.15 The Rivers and Harbors Act, therefore, has a more limited
jurisdiction over water pollution than the CWA in both inland waters and in
waters beyond the baseline.
4. Geographic Jurisdiction of the Ocean Dumping Act
The jurisdiction of the Ocean Dumping Act differs by the type of violation.
The primary criminal provision of the Act prohibits the knowing
transportation of material from the United States for the purpose of dumping
it into ocean waters. Since the crime is the transportation of the material with
the intent of disposing of it into the ocean, the disposal can take place
anywhere in the ocean, including the territorial sea, the contiguous zone, and
international waters.16 The Ocean Dumping Act provision that prohibits the
"33 U.S.C. §§ 1319(c) (violation of 33 U.S.C. § 1311 is a crime), 1311(a) (prohibiting "the discbarge of
any pollutant"), 1362(7) (defining "navigable waters" as "waters of the United States, including territorial
seas '); 40 CPU. § 1222(f) (defining "waters of the United States" as various types of inland waters and "the
territorial sea").
uSee 33 U.S.C. §§ 1319(c) (violation of 33 U.S.C. § 1311 is a crime), 1311(a) (prohibiting "the discharge of
any pollutant"), 1362(12) (defining "discharge of a pollutant" by point sources other than vessels as the addition
of pollutants "to navigable waters," the "waters of the contiguous zone[,] or the ocean"), 1362(7) (defining
"navigable waters" as "waters of the United States, including the territorial seas"), 1362(9) (defining the
"contiguous zone" [generally out to 12 miles from the baseline]), 1362(10) (defining "ocean" as "any portion of
the high seas beyond the contiguous zone").
,5See 33 CPJR. § 2.05-25, pt 329 (definitions of "navigable waters of the United States").
1633 U.S.C. § 1402(b) (defining "ocean waters" as all waters of the open sea lying seaward of the baseline).
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ocean dumping of material transported from outside of the United States
requires that the material be dumped in the territorial seas or in the
contiguous zone "to the extent that it may affect the territorial sea or the
territory of the United States."17 The Act does not cover the dumping or
transportation for the purpose of dumping in internal waters (i.e., waters
inland from the baseline).
5. Geographic Jurisdiction of the MARPOL Protocol and the Act to Prevent
Pollution From Ships
Jurisdiction of the MARPOL Protocol and APPS depends on the nationality
of the vessel and the type of pollutant being discharged. For American-
flagged oceangoing vessels, the oil regulations in the MARPOL Protocol and
APPS apply anywhere in the world's oceans, including the territorial sea, the
contiguous zone, and international waters, in addition to ports and terminals
under the jurisdiction of the United States.18 The garbage regulations apply
anywhere in the world's oceans and also in many internal waters of the
United States.19
For practical U.S. law enforcement purposes, the MARPOL Protocol and
APPS apply to foreign-flagged vessels in more limited circumstances. The
oil regulations apply only when the vessel is located in the navigable waters
of the United States (i.e., the territorial seas and many internal waters) or in a
terminal or port under U.S. jurisdiction,20 and the garbage discharge
provisions apply to foreign vessels only in internal U.S. waters and within the
Exclusive Economic Zone (i.e., within 200 miles of the shore of the United
States).21 None of the MARPOL and APPS oil or garbage regulations apply
to public vessels of any country.22
1733 U.S.C. § 1411(b).
I833 CJF.R. § 151.09(a)(lM4) (application of Coast Guard regulations promulgated under APPS).
"33 CJFJL § 151.51(a) (application of Coast Guard regulations promulgated under APPS).
C.F.R. § 151.09(a)(5) (application of Coast Guard regulations promulgated under APPS).
2133 C.F.R. § 151.51(a)(2) (application of Coast Guard regulations promulgated under APPS).
H33 C.F.R. §§ 151.09(b)(1) (APPS oil regulations), 151.51(b)(1) (APPS garbage regulations).
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B. Application of Different Statutes to Different Pollutants
Discharged From Vessels
In addition to having differing geographical jurisdictions, the water pollution statutes
have different levels of effectiveness for different pollutants. This section of the
chapter briefly discusses how different statutes deal with specific types of pollution.
1. Oil
If there is one pollutant that has been a central part of modern federal water
pollution control efforts, it is oil In most cases the CWA, as amended by the
011 Pollution Act, is the most useful criminal statute for prosecuting oil
discharge cases. The statute draws almost no distinctions between conduct
based on how the oil was discharged,23 allows prosecution for both knowing
and negligent discharges, and has a relatively simple set of elements. Its
drawback is its limited geographical reach, since it will not extend beyond
12 miles from the American coast except in a narrow set of circumstances.
APPS and the MARPOL Protocol are also very useful because they contain
the most detailed sets of regulations concerning the discharge of oil in the
normal operation of vessels. APPS' greatest advantage over the CWA is that
it has a longer geographical reach at sea. While it does not apply in inland
waters, APPS does apply beyond the contiguous zone into international
waters to a polluting vessel flying the American flag. A good deal of care
should be taken in developing any APPS prosecution because its complex
series of elements have seldom been used in criminal cases. Even if a
prosecution is based on the CWA, one should be aware of the APPS
provisions regarding the defendant's conduct, because they may affect the
applicability of the Clean Water Act and the defendant's understanding of his
or her legal duties.
Other statutes also may be used to reach instances of oil pollution. The
Ocean Dumping Act may apply if the vessel transported oil from the United
States for the purpose of dumping it into ocean waters. The Act permits
prosecution regardless of where the oil was actually discharged if the oil was
taken on board the vessel for the purpose of dumping; however, the Act does
not apply to oil discharges that are incidental to the routine operation of
motor-driven vessels.24
23The one way in which the Oil Pollution Act distinguishes between conduct based on how the oil reached
the water is its language pennitting oil discharges into the contiguous zone and international waters (but not into
territorial waters or inland waters) that comply with APPS. See 33 U.S.C. § 1321(b)(3)(A).
™See 33 U.S.C. §§ 1402(c) (defining "material" to include oil "only to the extent that such oil is taken on
board a vessel... for the purpose of dumping'*), 1402(f) (defining "dumping" to exclude "a routine discharge of
effluent incidental to the propulsion of, or operation of motor-driven equipment on, vessels").
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While the Rivers and Harbors Act of 1899 also could be used in an oil
pollution prosecution, it has the narrowest geographical reach (only applying
in certain inland waters and in the territorial sea) and is only a misdemeanor.
Unlike the Oil Pollution Act and APPS, the Rivers and Harbors Act is a strict
liability statute.
2. Plastic
Another pollutant that has received special attention in water pollution control
efforts is plastic. If plastic is discharged from a vessel, APPS has the best
provision to use because it flatly prohibits the discharge of plastics into the
sea. APPS' plastics provision also applies to American vessels anywhere in
the world and to foreign-flagged vessels within 200 miles of the U.S.
coast,25 and, unlike its oil provisions, in the United States' inland waters as
well. APPS applies not just to plastic items such as bottles, but also to
plastic bags containing other material.
Although APPS has the best provisions, other statutes could apply to plastic
pollution as well. If the plastics were transported from the United States
for the specific purpose of dumping them at sea, then the Ocean Dumping
Act would apply. If the plastics were discharged in inland waters or
in the territorial sea, then the CWA and the Rivers and Harbors Act also
could apply.
3. Garbage Other Than Plastic
The discharge of other kinds of garbage than plastic can also be the basis of
criminal prosecution, with the choice of statute depending on the specific kind
of discharge involved. Garbage can mean just about anything for purposes of
the Rivers and Harbors Act and the CWA; for APPS, it means any waste
generated during the normal operation of a ship that is liable to be disposed
of continuously or periodically, other than substances otherwise regulated
under MARPOL.26
If the garbage is dumped in inland waters and in the territorial sea, then the
CWA and the Rivers and Harbors Act both apply. While the Clean Water
Act contains both misdemeanor and felony provisions, the Rivers and Harbors
Act is only a misdemeanor. However, the Rivers and Harbors Act is a strict
liability statute, and it lacks the CWA's requirement that the discharge be
from a "point source."
Ci\R- § 151.51(a)(2) (making plastic provisions of APPS apply to all vessels in the Exclusive
Economic Zone).
^E.g., 33 CJrR. § 151.05 (APPS definition of "garbage").
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If a vessel discharged garbage generated in the course of its normal operation
and is liable to be disposed of continuously or periodically, then the felony
provision of the MARPOL Protocol and APPS can be used in many cases.
The garbage provisions of APPS apply in many inland waters as well as
ocean waters, but the regulations allow some garbage to be discharged
beyond 12 miles from shore and all garbage to be discharged beyond 25
miles from shore.
If garbage is transported from the United States for the purpose of dumping it
into ocean waters, then the felony provision of the Ocean Dumping Act
would apply. The Ocean Dumping Act applies regardless of where in the
ocean the garbage actually is dumped.
3. Interaction of Different Water Pollution Statutes and
Practical Issues Related to Criminal Enforcement
A. Legal Interaction
There is substantial overlap among some water pollution control laws, but it is not
necessarily total. A practical effect of this situation is that in some instances, when
prosecution for a particular act may not be feasible under one statute, it still may be
pursued under another. Therefore, prosecutors must be aware of the options
available to them in such cases.
There arc some notable places where compliance with one statute does insulate a
person from prosecution under another. Hie Oil Pollution Act, for instance,
specifically states that its provisions do not apply if the oil discharge occurred in the
contiguous zone or beyond and if the discharge complied with the rules set forth in
APPS. The Ocean Dumping Act excludes from its definition of "dumping" the
disposition of effluent from an outfall structure regulated under the CWA. There are
other such provisions located in the statutes, so prosecutors must be aware of them
in deciding how to charge a case.
B. Practical Issues
In addition to the jurisdictional reach of the different statutes and the differences in
their provisions, there are other practical issues that can affect a criminal
prosecution. Some of these issues are as follows:
1. Mental State Requirements
There are important differences in the mental state requirements under the
various water pollution statutes. The felony provisions of the CWA, the
Ocean Dumping Act, and APPS all require that a person's conduct be
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"knowing." The Department of Justice's position, supported by the major
cases on the subject, is that the "knowing" language requires proof that the
defendant intentionally engaged in the prohibited conduct, not that he or she
knew the conduct was illegal.27
The misdemeanor provisions relating to water pollution require lesser degrees
of intent The CWA misdemeanor provision only requires that a person's
conduct be negligent The Rivers and Harbors Act is a strict liability statute.
2. The "Point Source" Requirement
One required element of a CWA prosecution is that a discharge into
navigable water come from a "point source." A "point source" is "any
discernible, confined, and discrete conveyance."28 This requirement may
present problems in a CWA case, depending on how a pollutant was
discharged. One count of appeals, for example, has held that it does not
extend to discharges made by hand.29 Other water pollution statutes,
including the Rivers and Harbors Act, APPS, and the Ocean Dumping Act,
do not require that a discharge come from a "point source." Accordingly,
these statutes may be more useful in some circumstances.
3. Agencies Administrating Different Statutes
Several different federal agencies administer the water pollution statutes, and
the administering agency is often not the source of a prosecution referral.
Which agency administers a statute may have significant practical
implications. First, that agency is most likely to have expertise regarding the
statutory scheme and industry practices. Second, regulatory cultures vary
among agencies (and even within specific agencies), and those variations may
extend to attitudes, practices, and policies relevant to criminal enforcement
These differences may be significant in the context of investigating and
charging water pollution offenses and they make it worthwhile to contact the
administrating agency before charging a case.
"See, e.g.. United States v. Weitzenhoff, 35 R3d 1275 (9th cir. 1994) (CWA a general intent crime), cert,
denied, 115 S. Ct. 939 (1995); United States v. Reilty, 827 F. Supp. 1076 (D. Del 1993) (Ocean Dumping Act a
general intent crime), conviction affirmed, 33 F3d 1396 (3d Cir. 1994).
*33 U.S.C. § 1362(14).
29See, e.g.. United States v. Plaza Health Laboratories, Inc., 3 F.3d 643 (2d Cir. 1993) (Clean Water Act
conviction reversed where a person threw medical waste into Hudson River by hand), cert, denied, 114 S. Ct.
2764 (1994).
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4. Venue
Since many ocean pollution violations occur beyond the territorial seas and,
therefore, outside any district, there are often questions about the proper
venue for a prosecution. There are no special venue provisions in the
commonly used water pollution statutes, so the general venue rules apply.
The general venue statute for offenses "begun or committed on the high
seas," 18 U.S.C. § 3238, provides that the defendant be prosecuted in the
district in which he or she (or another joint offender) "is arrested or first
brought," or if the person was not arrested or forcibly brought to a district,
then in the district of last known residence of the defendant, or if that is not
known, in the District of Columbia. Because the "arrested or first brought"
language requires that the defendant be forcibly brought to a district,30
prosecutors should not assume that the defendant can be prosecuted in a
vessel's first port of call.
Similarly, it may be difficult to establish where in a river, and in what
corresponding district, a vessel was in at the time of an illegal discharge.
30See, e.g., United States v. Hilger, 867 F2d 566, 568 (9th Cir. 1989); United States v. Catino, 735 F.2d 718,
724 (2d Cir.), cert, denied, 469 U.S. 855 (1984).
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Chapter 10
Clean Air Act
(42 U.S.C. § 7401 et seq.)'
Table of Contents
Page
Introduction 10-3
1. Synopsis of Criminally Enforceable Provisions 10-3
A. State Implementation Plans 10-3
1. Criteria Pollutants 10-4
2. National Ambient Air Quality Standards 10-4
3. State Implementation Plan Requirements 10-5
B. Prevention of Significant Deterioration of Air Quality 10-5
1. SIP Requirements, Region Classifications, and Increments 10-6
2. Affected Facilities 10-7
3. Preconstruction Permit and Review Requirements 10-8
C. SIP Requirements for Nonattainment Areas 10-9
1. Nonattainment Areas 10-9
2. Preconstruction Permit Requirements 10-9
D. Performance Standards 10-10
1. New Source Performance Standards (NSPS) 10-10
2. Air Toxics Program: National Emissions Standards for Hazardous Air
Pollutants (NESHAPs) 10-11
E. Title V: Operating Permits 10-13
1. Timetable for implementation of the Operating Permits Program 10-13
2. Sources Required To Obtain Operating Permits 10-14
3. Permit Requirements 10-14
F. Acid Rain Control 10-14
1. Allowance Trading Program 10-14
2. Acid Rain Operating Permits 10-15
"Prepared by Jim Miskiewicz, Trial Attorney, Environmental Crimes Section.
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G. Stratospheric Ozone Depletion Provisions 10-15
1. Nonessential Products Ban 10-15
2. Production, Importation, and Consumption Controls 10-16
3. Recycling and Emissions Control 10-16
4. The Venting Prohibition 10-20
2. Criminal Provisions and Elements of Offenses 10-20
A. Violation of a State Implementation Plan 10-21
B. Violation of Preconstruction Permit Requirements 10-22
C. Violation of a New Source Performance Standard or National Emissions Standard for
Hazardous Air Pollutants 10-23
D. Violation of Operating Permits Provision 10-28
*
E. Violation of Stratospheric Ozone Protection Provisions 10-30
F. Violation of Acid Rain Provisions 10-33
G. Knowing Violation of Information-Gathering Provisions 10-34
H. Violation of an Emergency Order 10-35
I. Knowing and Negligent Endangerment 10-36
J. Shifting Scienter and the Definition of Criminally Liable "Persons" 10-39
Appendix A: Jury Instructions/Description of NESHAP 10-43
Appendix B: SIP Information and Plea Agreement (United States vs.
Norwood Industries) 10-47
Appendix C: Asbestos NESHAP Indictment 10-57
Appendix D: CFC Illegal Importation Indictment 10-63
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iv. Finally, the sale of refrigerants is prohibited to all but certified
technicians and manufacturers. Id. § 82.154(n).
The practice standards apply to the servicing, repair, or disposal of an
"appliance" or "industrial process refrigeration," two terms that come from
Section 608's venting prohibition. 42 U.S.C. § 7671g(c). EPA has defined
"appliance" to include virtually every household or commercial device that
uses one of the substances listed in 42 U.S.C. § 7671a as a refrigerant. 40
C.F.R. § 82.152(a).
"Industrial process refrigeration" is defined by regulation to include any
"complex customized appliances used in the chemical, pharmaceutical,
petrochemical, and manufacturing industries" and expressly includes industrial
ice machines and ice skating rinks. 40 C.F.R. § 82.152(g).
These definitions potentially cover a broad range of equipment; however,
important exceptions apply. The most significant relates to so-called "small
appliances," i.e., devices that contain no more than five pounds of refrigerant.
40 C.F.R. § 82.154(v). Because these devices are serviced less frequently
and contain small amounts of refrigerant, EPA promulgated somewhat less
stringent recycling and technician certification requirements for those persons
who repair or service small appliances. See generally 40 C.F.R. § 82.156; 58
Fed. Reg. 28660, 28672 (May 14, 1993) (preamble).
The "small appliance" exception shifts much of the responsibility of
controlling emissions from small appliances to the point of disposal,
and specifically to "persons who take the final step in the disposal process
(including but not limited to scrap recyclers and landfill operators)
40 C.F.R. § 82.156(f). As of July 13, 1993, those persons must either
recover any refrigerants remaining in a small appliance, or verify from
the person disposing of the small appliance that refrigerant has been
removed. Id.
Although it does not appear in either the statute or regulations, EPA also
exempts from the term "appliance" any "equipment designed and used
exclusively for military purposes" from which it is usually impossible to
recover refrigerants. 57 Fed. Reg. 28660, 28669-70 (May 14, 1993). The
Agency stressed that the device must be uniquely designed for military
purposes. Thus, an air conditioner used on a military base is still an
"appliance," or perhaps a "small appliance," that may not be serviced,
repaired, or disposed of without following required emissions standards, and
whose refrigerants may not be knowingly vented. Id.
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4. The Venting Prohibition
In addition to the recycling, disposal, and emissions control standards, the
Act prohibits—
[A]ny person, in the course of maintaining, servicing, repairing, or
disposing of an appliance or industrial process refrigeration, to
knowingly vent or otherwise knowingly release or dispose of any
[CFCs or HCFCs] used as a refrigerant * * * in a manner which
permits such substance to enter the environment.
42 U.S.C. § 7671g(c).
De minimis releases, i.e., those that occur despite good faith efforts to comply
with recycling and emissions control practices, do not constitute violations of
§ 7671g(c). See 40 C.F.R. § 82.154(a). However, the knowing violation
of this prohibition, or the recycling and disposal rules promulgated under
§ 7671g(a) or (b), is a crime pursuant to 42 U.S.C. § 7413(c)(1).
2. Criminal Provisions and Elements of Offenses
This section highlights the criminal provisions of the Clean Air Act Amendments of
1990, and discusses issues related to proof.7 In general, the criminal provisions
apply to any natural person, including responsible corporate officers. 42 U.S.C.
§§ 7413(c)(6), 7602(e). The criminal provisions also apply to any governmental,
corporate, or other legal entity included in the definition of a person under 42 U.S.C.
§ 7602(e).8 With the exception of the crime of negligent endangerment, 42 U.S.C.
§ 7413(c)(4), the Act penalizes the knowing violation of various requirements. The
general proof requirements of mental state in the context of environmental criminal
activity, including crimes under the Clean Air Act, is covered elsewhere in this
manual. Special concerns raised by the so-called "Nuremburg defense" provisions of
the Clean Air Act's definition of an "operator," see 42 U.S.C. § 7413(h), are
discussed below in Part 2.J. of this chapter.
'Offenses committed prior to November 15, 1990, are governed by the pre-1990 version of the Act Given
that the statute of limitations will shortly run on those offenses, this section will not discuss those provisions
here. Readers should refer to the 1991 edition of the Environmental Crimes Manual, or contact the
Enivronmental Crimes Section for information regarding pre-amendment violations.
'The one exception relates to the prosecution of an "organization" for knowing endangerment, where the
"organization" is a government agency. Government agencies are specifically omitted from the definition of
"organization." See 42 U.S.C. § 7413(c)(5)(E) and Part 2J. of this chapter. Special rules also apply with
respect to the prosecution of responsible corporate officers for knowing endangerment. See 42 U.S.C.
§ 7413(c)(5)(B) and Part 2J. of this chapter.
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A. Violation of a State Implementation Plan
Section 113(c)(1) makes it a felony for any person to knowingly violate "any
requirement or prohibition of an applicable implementation plan . . . 42 U.S.C.
§ 7413(c)(1). In general, the elements of a knowing SIP violation are as follows:
1. The defendant, who is a person as defined in Section 302(e) of the Act,
42 U.S.C. § 7602(e)
2. Knowingly9
3. Violated a requirement of an applicable SIP
4. a. During a period of federally assumed enforcement, or
b. More than 30 days after having been notified by the Administrator under
Section 113(a)(1), 42 U.S.C. 7413(a)(1) that the defendant was in
violation of such SIP requirement.
Section 113(a)(1) has always required that a violator be notified of the violation
before commencement of a civil, criminal, or administrative enforcement action.
42 U.S.C. § 7413(a)(1). Before the 1990 amendments, this subsection allowed EPA
to commence an enforcement action if the violation "extends beyond the 30th day
after the date of the Administrator's notification." At least one court construed this in
a civil action to mean that EPA was empowered to commence an enforcement action
"only where that specific violation has continued for 30 days." See U.S. v.
Louisiana-Pacific Corp., 682 F. Supp. 1141, 1155 (D. Colo. 1988).
The current version of Section 113(a)(1) makes it clear that "at any time after
expiration of 30 days following the date on which such notice of a violation [NOV] is
issued, the Administrator may, without regard to the period of violation," commence
an enforcement action. 42 U.S.C. § 7413(a)(1). The amendment thus allows
prosecution of a SIP violator regardless of the length of the violation so long as it
was knowing and occurred after the 30-day notice period had run.
'There have been very few prosecutions for knowing SIP violations largely because of the 30-day notice
requirement discussed below. See Appendix B for sample information and plea agreement. In the context of a
knowing violation of asbestos NESHAP requirements, the Sixth Circuit upheld a general intent instruction on
knowledge that stated, in part, that "the government must prove that the defendant knew the general nature of the
asbestos material [removed in violation of applicable standards]. * * * The government does not have to show
that the defendant knew the legal status of the asbestos materials or that he was violating the law." United
States v. Buckley. 934 F.2d 84, 87 (6th Cir. 1991).
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A violator who temporarily remedies a violation within 30 days after notification and
then falls out of compliance again once the grace period has lapsed may not raise the
30-day notice provision as a bar to subsequent enforcement efforts.
[T]his jurisdictional prerequisite exists solely for the purpose of giving the
source fair warning of the problem and a reasonable period of time to
clean up its act. Thus, . . . this jurisdictional requirement has been met if
the source commits the specific violation alleged in the NOV anytime after
the 30-day grace period has run.
Louisiana-Pacific Corp., 682 F. Supp. at 1156.
The prosecution of a SIP violator must be based on the same type of violation that
had been previously noticed by the Administrator. See 42 U.S.C. § 7413(a)(1) ("If
such violation extends beyond the 30th day . . . then enforcement proceedings can
commence). Thus, if a notice of violation had been previously issued for an opacity
violation, prosecution cannot be based on a failure to operate control equipment
properly unless it can be established that some nexus exists between the two
violations. Additionally, the notice must be issued by EPA and not the state, which
actually receives a copy of the notice. Id.
Finally, note that the 30-day notice requirement applies to any enforcement action
brought against a person alleged to be violating an SIP. It does not apply to other
violations. See 42 U.S.C. § 7413(a)(3).
B. Violation of Preconstruction Permit Requirements
As of November 15, 1990, it is a felony to knowingly violate any requirement or
prohibition of a preconstruction permit issued to new or modified "major emitting
facilities" located in PSD areas, or "major stationary sources" located in
nonattainment areas, or to operate such sources without a permit. The elements of
such an offense are—
1. The defendant,
2. Who is an owner or operator of:
a. For nonattainment area preconstruction permits: A "major stationary
source," see 42 U.S.C. §§ 7502(c)(5), 7602(j); 40 C.F.R.
§ 52.24(f)(4)(i); and also part l.C. of this chapter, supra.
or
b. For PSD preconstruction permits: A "major stationary source" or
"major emitting facility," see 42 U.S.C. §§ 7479, 7602(j); also
Part l.B. of this chapter, supra.
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3. Subject to the preconstruction permitting provisions
4. Knowingly
5. Constructed or operated such a facility:
a. Without a preconstruction permit, or
b. In violation of permit requirements.
Determining whether an affected facility is operating in violation of a permit
requirement can be a very technical, complex, and interpretive task. See, e.g., United
States v. Louisiana-Pacific Corp., 682 F. Supp. 1141 (D. Col. 1988). Unlike civil
enforcement matters, the government cannot rely on burden-shifting to require
defendants to rebut the inference that source emissions will "cause or contribute to" a
violation of ambient air quality standards in the immediate area, or other applicable
standards. See 42 U.S.C. § 7475(a)(3). Thus, criminal enforcement of
preconstruction permit provisions will likely focus on those violations that can be
clearly and readily proven beyond a reasonable doubt, and without resort to modelling
or other technical devices used to estimate the emissions from a source. Examples
include operation of a plant without a permit, failure to comply with stated emissions
control procedures, false reporting in permit applications or reports, or monitoring
equipment tampering.
C. Violation of a New Source Performance Standard or National Emissions
Standard for Hazardous Air Pollutants
In general, Section 113(c)(1)(C), 42 U.S.C. § 7413(c)(1)(C), provides criminal
penalties for the violation of any New Source Performance Standard (NSPS)
promulgated under 42 U.S.C. § 7411, or any National Emissions Standard for
Hazardous Air Pollutants (NESHAP) promulgated pursuant to 42 U.S.C. § 7412.
Where it is not feasible to promulgate or enforce an emissions standard based on the
numeric measurement of an air pollutant, EPA is allowed to promulgate work practice
standards that require certain procedures be followed when handling these substances.
Work practice standards are treated as emissions standards. See 42 U.S.C.
§§ 7411(h), 7412(d)(2)(D), 7412(h)(1). Subject to certain waivers and exemptions
provided in § 7412(c), NESHAPs apply to all emissions sources regardless of whether
they are new, old, or modified.
In order to sustain a conviction for violation of the NSPS, the following elements
must be established:
1. An owner or operator
2. Of a "new" stationary source
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3. Knowingly
4. Operated the new source in violation of an applicable category source
performance standard.10 See 40 C.F.R. Part 60.
The elements of a NESHAP violation are as follows:
1. The defendant, who is an owner or operator11
2. Of a stationary source
3. Knowingly
a. Constructed a new source, or
b. Modified an existing source, or
c. Emitted a hazardous pollutant, or
d. Failed to comply with a design, equipment, work practice, or operational
standard
4. In violation of an applicable NESHAP.
Assuming that an emission of a reportable quantity of asbestos can be proven,
conduct amounting to a knowing violation of a NESHAP may also constitute a
violation of the reporting requirements of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9602-9603, as
well as a violation of 18 U.S.C. § 1001. U.S. v. Consolidated Edison of New York,
Inc., 39 Env't Rep. Cas. (BNA) 1892 (S.D.N.Y. 1994).
10Many performance standards promulgated under Section 111, 42 U.S.C. 7411, are work practice and
design standards, rather than standards that impose numeric limitations of the amount of pollutant a source
may emit into the air. A discussion of the enforceability of such work practice standards follows at Part 2.C.
of this chapter.
""Owner or operator" is defined as any person who owns, leases, operates, controls, or supervises a
stationary source. 40 C.F.R. § 61.02. It has been interpreted to make the standard applicable to both the owner
of a facility and the contractor hired to perform the actual demolition. U.S. v. Geppert Bros., Inc., 638 F. Supp.
996 (E.D. Pa. 1986).
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The Asbestos National Emissions Standard for Hazardous Air Pollutant Violation
Asbestos was one of the first substances to be designated a hazardous air pollutant by
EPA.12 36 Fed. Reg. 5931 (Mar. 31, 1971). Although the 1990 amendments
significantly amended how hazardous air pollutants are identified and emissions
standards promulgated, existing NESHAPs, like the one for asbestos emissions during
the demolition or renovation of a facility, remain in force. 42 U.S.C. § 7412(q)(l).
Friable asbestos, that is, asbestos that can be crumbled by hand when dry, 40 C.F.R.
§ 61.141, is a well-documented carcinogen, and has been linked to several fatal lung
diseases including mesothelioma, which is the gradual thickening and constriction of
the pleural sack that surrounds the lungs.
A major source of asbestos emissions is the demolition or renovation of facilities that
contain finable and some kinds of nonfriable asbestos-containing material (ACM).
See 40 C.F.R. § 61.141 (definitions of regulated asbestos-containing material
(RACM)). EPA and the states receive approximately 80,000 notices of such
demolition or renovation projects each year. Thus, EPA has promulgated asbestos
emission standards specifically for demolition and renovation projects. These
standards are found at 40 C.F.R. §§ 61.145, 61.150. They require in part—
1. That the owner or operator provide written notice to EPA of, among other
things, the intent to demolish or renovate a specified facility, the estimated
amount of friable asbestos contained in the facility, the scheduled starting and
stopping dates of the operation, and the procedures to be used for removal
and disposal, and disposal site where the waste is to be hauled. The written
notice is to be postmarked or delivered to EPA at least 10 working days
before the asbestos removal work begins.
2. That all RACM be removed from certain facilities being demolished or
renovated before any wrecking or dismantling begins that would break up
the material.
3. That friable asbestos material be adequately wetted, or otherwise captured in
an approved ventilation system, to reduce asbestos dust during all stages of
demolition or renovation until the asbestos is collected for disposal.
4. That all RACM be carefully lowered to the ground, not dropped.
5. That all friable asbestos-containing material be kept wet and sealed in a
leak-tight container bearing certain approved warning labels.
6. That all RACM waste be deposited at acceptable disposal sites.
13Congress has found independently that "medical science has not established any minimum level of exposure
to asbestos fibers which is considered safe to individuals exposed to the fibers." See Asbestos School Hazard
Abatement Act of 1984, 20 U.S.C. § 3601(a)(3).
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These requirements of the asbestos NESHAP (items 2 through 6 above) apply to any
demolition operation where the entire facility contains at least 260 linear feet of
friable asbestos on pipes or 160 square feet on other facility components, or to any
renovation where an equal amount of asbestos is stripped or removed.13
The elements of an asbestos NESHAP violation involving these amounts of asbestos
in a facility being renovated or demolished are—
1. The defendant was an owner or operator14
2. Of a demolition operation involving a facility that contained at least
260 linear feet of friable asbestos material on pipes or 160 square feet of
friable asbestos material on other facility components, see 40 C.F.R.
§ 61.145(a), and
3. The defendant knowingly
4. Failed or caused another person or employee to fail to comply with any of
the work practice standards in 40 C.F.R. § 61.145, or waste disposal
standards in 40 C.F.R. § 61.150.
Work Practice Standards
Because NESHAP's are "emissions" standards, defendants in both civil and criminal
enforcement actions have argued that the government must prove that asbestos was
"emitted" into the air outside of the facility being demolished or renovated in order to
prove an asbestos NESHAP violation.
In Adamo Wrecking Company v. United States, 434 U.S. 275 (1978), the Supreme
Court held that the 1970 Clean Air Act did not authorize EPA to promulgate work
practice standards as substitutes for hazardous air pollutant emissions standards that
imposed numerically quantifiable emissions limits. In response, Congress first passed
as part of the Clean Air Act Amendments of 1977 a provision that specifically
authorized the Administrator to promulgate non-numerical emissions controls
whenever it was not feasible to enforce a numerical standard because it is impractical
to capture or measure emissions. 42 U.S.C. § 7412(e) (1977).
l3Where a facility contains less asbestos and the facility is being demolished, the owner or operator must still
provide EPA with written notice of intent to demolish as provided in 40 C.F.R. § 61.145(b). However, such an
operator is not required to follow other procedures (e.g., wetting, disposal, etc.) in the asbestos NESHAP.
l*See Part 2 J. of this chapter for a discussion of the Gean Air Act's definition of "operator."
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The following year, Congress enacted additional amendments clarifying the
enforceability of work practice standards.15
These amendments notwithstanding, the argument continued to have some weight
given the language of the pre-1990 version of Section 112(c)(1), which prohibited
construction or modification of a source that "will emit an air pollutant to which such
a standard applies." 42 U.S.C. § 7412(c)(1). And the asbestos regulations themselves
make reference to or imply a need to prove emissions. See, e.g., 40 C.F.R. § 61.150
("Each owner or operator . . . shall ... (a) Discharge no visible emissions to the
outside air . . . .")
In 1990, Congress amended the definition of the term "emission limitation" and
"emission standard" to specifically include design, work practice, or operational
standards. 42 U.S.C. § 7602(k). It also amended Section 112(d)(2)(D) to clarify that
the new technology-based NESHAPs can include measures that are design,
equipment, operational, or work practice standards. 42 U.S.C. § 7412(d)(2)(D).
Similarly, Section 111(h) authorizes the promulgation of a work practice or other
standards in lieu of a NSPS, where it is "not feasible to prescribe and enforce a
standard of performance . . . ." 42 U.S.C. § 7411(h).
The prohibitory subsection of Section 112 still provides that "[n]o air pollutant. . .
may be emitted ... in violation of such standard . . . ." 42 U.S.C. § 7412(f)(4).
However, given the lengthy history of the question of whether EPA can promulgate
and enforce work practice standards as well as emissions limits, it seems clear that
Congress' intent in enacting these amendments was to make any violation of a design,
15In Adamo, Justice Stevens' dissent questioned the enforceability of work practice standards even after the
1977 amendments:
The Clean Air Act treats the Administrator's power to promulgate emissions standards separately
from his power to enforce them. While it is § 112(b) that gives the Administrator authority to
promulgate an "emissions standard," it is § 112(c) that prohibits the violation of an "emissions
standard." Presumably the Court's holding that a work-practice rule is not an "emissions standard"
applies to both of these sections. Under that holding a work practice rule may neither be enforced
nor promulgated as an emission standard. This holding will not affect the Administrator's power to
promulgate work practice rules, because the 1977 Amendments explicitly recognize that power. But
Congress has not amended 112(c), which continues to permit enforcement only of "emissions
standards." Accordingly, the Court's holding today has effectively made the asbestos regulation,
and any other work practice rule as well, unenforceable.
434 U.S. at 306 (Stevens, J. dissenting).
In response, Congress amended Sections 111 and 112 to provide that "any design, equipment, work practice, or
operational standard . . . shall be treated as" a standard of performance or an emissions standard for all purposes
under the Act. 42 U.S.C. §§ 7411(h)(5), 7412(e)(b) (as amended 1978).
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equipment, work practice, or operational standard as much a prohibited act as
exceeding numerical emissions limits.16
Since Adamo, no court has accepted the argument that an emission must be proved in
order to find an asbestos NESHAP violation. In United States v. Ben's Truck &
Equipment, Inc., 25 Env't Rep. Cas. (BNA) 1295 (E.D. Cal. 1986), the district court
held in a civil enforcement action that the government need not prove that an
emission of asbestos occurred in order to prove a NESHAP violation. At issue in that
case was whether defendants had adequately wetted asbestos insulation during
stripping as required by 40 C.F.R. § 61.147(d). Although there was little doubt the
asbestos had not been wetted properly, the defendants argued that the government
also needed to prove that asbestos had been emitted into the air to find a violation.
The district court rejected this argument stating: "It is the failure to follow the work
practice to wet adequately rather than the release of visible emissions which creates
liability." Id.
Other courts have relied solely upon observations of inspectors to determine whether
asbestos was adequately wetted to establish liability and have not required any
additional showing of emissions. See, e.g., United States v. MPM Contractors, Inc.,
767 F. Supp. 231 (D. Kan. 1990); United States v. Sealtite Corp., 739 F. Supp. 464,
467 (E.D. Ark. 1990); United States v. Tzavah Urban Renewal Corp., 696 F. Supp.
1013, 1022 (D.NJ. 1988).
D. Violation of Operating Permits Provision
Modelled after the NPDES permit program under the Clean Water Act, the Clean Air
Act operating permits work in addition to, rather than as a replacement of
preconstruction permit requirements for PSD and nonattainment areas.17 The
16 The little legislative history that exists on this point comes from the Senate proposal, which did not differ
much on the question of work practice standards from the conference committee agreement ultimately enacted by
the House and Senate. It is clear that Congress considered the unique problems of hazardous air pollution that is
not emitted through any measurable point source:
Work practice standards and other requirements. Generally, the requirements of section 112 of
the Clean Air Act, both current law and as amended by the bill, are implemented by the
promulgation of numerical emissions standards applicable to point sources of release (such as
stacks, vents, pipes, etc.) from stationary sources of the listed air pollutants. However, in some
cases regulation in this form would not be effective or appropriate for significant source
categories. For instance, emissions of asbestos fibers from construction or demolition sites
cannot be controlled or even measured by focusing on a point source of emissions. To assure
that adequate control is, nevertheless, achieved, it is in some cases possible to prescribe the use
of specific equipment or procedures in the design of a facility or conduct of an activity.
(discussing Clean Air Act Amendments of 1989), S. Rep. No. 101-228, 101st Congress, 1st Sess. at 182 (1989).
17 See supra footnote 3.
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operating permit will put into a single document any SEP, NSPS, NESHAP, or other
standard that might apply to an affected source. Therefore, as with the NPDES
program, the Clean Air Act operating permits should serve as an important tool for
investigators and prosecutors. The permit will clearly put the source on notice of
applicable standards, and thus serve as a critical component in the government's proof
that the defendant acted "knowingly." Self-monitoring and reporting requirements
may also provide useful information on whether a source was complying with the
terms of the permit, and the falsification of such reports or tampering with monitoring
equipment may constitute separate violations under the Act.
Pursuant to 42 U.S.C. § 7413(c)(1), the elements of an operating permit violation are
as follows:
1. The defendant, who is an owner or operator of
2. A source subject to the operating permits program, see 42 U.S.C. §§ 7661(1),
(2), 7661a(a), and Part l.E. of this chapter,
3. Knowingly
4. Operates the source
a. Without an operating permit, or
b. In violation of a permit requirement.
At least two provisions18 within the operating permits program could limit the
government's ability to reach certain violations, and must be considered early in an
investigation. These are—
Application Shield
Once an application for an operating permit is filed with the state permitting
authority, it affords the source an "application shield" against enforcement actions for
operating without a permit. This allows a source to continue operating without a
permit as long as the application has been timely filed and deemed "complete."
40 C.F.R. § 70.7(b). An application is "complete" if it contains the information
required in 40 C.F.R. § 70.5(c). Also, unless the permitting authority requests
additional information or notifies the permit applicant within 60 days that the
I8In addition to the enforcement shield discussed herein, the Act and implementing regulations also provide
for "operational flexibility" within the permit program. 42 U.S.C. § 7661a(b)(10); 40 C.F.R. § 70.4(b)(12).
Operational flexibility allows a source to make certain changes within a facility without re-applying for a permit
so long as they are not considered "major" modifications, see Part l.B.2. of this chapter, or exceed emissions
allowed under the permit. Investigators will need to consider whether a difference between stated operations in a
permit application and current operations are lawful within the parameters of "operational flexibility," or whether
they constitute actual violations.
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application is missing something, the application is automatically deemed "complete,"
and the shield against prosecution for operating without a permit takes effect until the
application is approved or rejected by the state. 40 C.F.R. §§ 70.5(a)(2), 70.7(a)(4).
Permit Shield
The Act provides that compliance with a permit issued under the operating permits
program "shall be deemed compliance with [the Act]." 42 U.S.C. § 7661c(f). EPA
has authorized state permitting authorities to issue permits that may state that
compliance with the conditions of the permit shall be deemed compliance with any
applicable requirements of the Act, as of the date the permit was issued. 40 C.F.R.
§ 70.6(f). This would then shield permittees against any enforcement action for
violations of provisions not covered by the permit, and which the state has determined
do not apply to that source. Cf Atlantic Legal Foundation, Inc. v. Eastman Kodak
Co., 12 F.3d 353 (2d Cir. 1993) (construing the permit shield under the Clean Water
Act's NPDES permit program).
State programs may vary on whether to offer a permit shield option in their programs.
And authorities may differ about what non-permit requirements should or should not
apply to a given source. Consequently, prosecutors and investigators must determine
whether the state permitting authority has ever issued to the permittee any document
that could be construed as a shield against enforcement of non-permit violations.
E. Violation of Stratospheric Ozone Protection Provisions
The precise elements for charging a violation of the Stratospheric Ozone Protection
provisions will vary depending on the nature of the offense. Generally, the
government may prosecute persons for knowingly violating—
1. The non-essential products ban;
2. The production, importation, and consumption controls;
3. Any requirement of the national emissions control, disposal, and recycling
program for motor vehicle air conditioners (MVACs);
4. Any requirement of the national emissions control, disposal, and recycling
program for appliances or industrial process refrigeration equipment;
5. The prohibition against knowingly venting any Class I or Class II substance
used as a refrigerant.
Effective Dates
The effective date of the prohibition against the knowing venting of a CFC or HCFC
from an appliance, or the rules governing the servicing of motor vehicle air
conditioning units, as provided by the statute, is January 1, 1992. 42 U.S.C.
§ 7671g(c), 7671h(c). Operators of facilities that serviced fewer than 100 MVACs
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during 1990 were given an additional year to comply with the recycling and training
requirements as long as they first certified to EPA that they fell within the exception.
Id. § 7671h(c). However, prosecutors and agents faced with historical violations
going back to 1992 should note that EPA's final rule creating a national program for
MVAC emission control did not become effective until August 13, 1992. 40 C.F.R.
§ 82.34. The compliance grace period for certified small entities still ended at
January 1, 1993. Id.
Knowledge of Venting Versus Deliberate Ignorance
At least where a defendant claims a lack of guilty knowledge, it is permissible for
a jury to infer such knowledge from evidence that the defendant deliberately avoided
or wilfully blinded herself to a violation. U.S. v. Jewell, 532 F.2d 697 (9th Cir.) (en
banc), cert, denied, 476 U.S. 951 (1976). Cf U.S. v. Pacific Hide & Fur Depot, Inc.,
768 F.2d 1096 (9th Cir. 1985).
EPA's preamble to the rules governing the servicing, disposal, and recycling of
refrigerant from appliances {i.e., those promulgated under 42 U.S.C. § 767 lg),
includes an interpretation of knowledge with respect to the prohibition against venting
of CFCs or HCFCs. That interpretation somewhat narrows the use of a deliberate
ignorance instruction to infer guilty knowledge.
First, the Agency stated that a knowing release constitutes any conduct that allows
refrigerant—
to enter the environment and takes place with the knowledge of the
technician during the maintenance, servicing, repairing, or disposal of
air conditioning or refrigeration equipment.
58 Fed. Reg. 28660, 28672 (May 14, 1993) (preamble) (emphasis added).
This is consistent with the government's position in other environmental criminal
contexts that the mens rea required to prove a criminal violation means knowledge of
the conduct constituting the violation, not knowledge of the specific statutory and
regulatory requirements of the Act. Cf United States v. Buckley, 934 F.2d 84
(6th Cir. 1991).
The question arose during EPA's rulemaking whether technicians who refill or "top
off' known leaking devices are guilty of knowingly venting refrigerants in violation
of 42 U.S.C. § 7671g(c). 58 Fed. Reg. at 28672. EPA concluded that it would not
be a violation of the venting prohibition of Section 7671g(c) for a person to "top off"
a refrigeration system, which in turn leads to the subsequent emission of some
refrigerant during the use of the device. Id. But the Agency added that a knowing
release would include—
situations in which a technician is practically certain that his or
her conduct will cause a release during the maintenance, service, repair,
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or disposal of equipment * * * [or] closes his or her eyes to
obvious facts or fails to investigate them when aware of facts that
demand investigation.
Id. (emphasis added).
At a minimum, it would appear that prosecution of a service technician under
42 U.S.C. § 7671g(c) for refilling a known leaking device would require evidence of
a release of refrigerant while the person was still working on the device "during
the maintenance, service, [or] repair ... of equipment"), and evidence, perhaps
through records of past servicing of that device, that the person was "practically
certain" that his conduct would cause the release. Given the rest of EPA's
interpretation, it remains open whether a person, who repeatedly refills a known
leaking device, might be prosecuted for a knowing release absent evidence that the
release occurred, or at least began, while the person was still present and working on
the device.
Interestingly, with respect to rules governing the servicing of MVACs (those
promulgated under 42 U.S.C. § 767lh), EPA concluded that it would be a violation to
perform any work on a motor vehicle "that may release refrigerant into the
atmosphere" including "topping off' systems that might be leaking. 57 Fed. Reg.
31242, 31246 (July 14, 1992) (preamble).
It should also be noted that owners of leaking refrigeration equipment (as opposed to
technicians who service those devices) have an affirmative duty to prevent continuing
leaks, and thus cannot simply ignore facts that would alert them of releases. Owners
of leaking equipment are required to repair, retire from service, or retrofit equipment
within a certain period of time. 40 C.F.R. § 82.156(i). The knowing failure, and
presumably the deliberate avoidance of facts from which an owner could conclude
that a device is leaking, is a violation of Section 767 lg.
Release Into the Environment
Another issue regarding the venting prohibition that deserves attention is the reference
to release or disposal "in a manner which permits [CFCs or HCFCs] to enter the
environment." 42 U.S.C. § 7671g(c). The term "environment" is not defined by the
Clean Air Act or its implementing regulations. Definitions for "environment" appear
in only two other federal environmental statutes. One is in the Toxic Substances
Control Act, 15 U.S.C. § 2601, et seq., where the term broadly includes, "water, air,
and land and the interrelationship which exists among and between water, air, and
land and all living things." 42 U.S.C. §2602(5); see also 40 C.F.R. §§ 355.20, 370.2
(identical definition promulgated pursuant to Emergency Planning and Community
Right-to-Know Act, 42 U.S.C. § 11001, et seq.). Following this definition,
virtually any emission of a CFC or HCFC would appear to constitute a release into
"the environment."
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The second statutory definition appears in CERCLA, 42 U.S.C. § 9601, et seq.,
which limits the term "environment" to, among other things, the "ambient air
within the United States." 42 U.S.C. § 9601(8). Elaborating on the reference to
"ambient air," EPA construed this to mean "air that is not completely enclosed in
a building or structure and that is over and around the grounds of a facility."
50 Fed. Reg. 13456, 13462 (April 4, 1985) (preamble). A release into the
environment under CERCLA has been construed to require evidence of actual
movement or emission of the regulated substance into the air outside a facility.
Fertilizer Institute v. EPA, 935 F.2d 1303 (D.C. Cir. 1991); see also 3550 Stevens
Creek Assoc. v. Barclays Bank, 915 F.2d 1355, 1360 n. 9 (9th Cir. 1990) (in dicta,
air inside a building is not included in CERCLA's definition of "environment"), cert,
denied, 500 U.S. 917 (1991).
Interpretations of "environment" under CERCLA have usually involved solid or liquid
wastes, contained within enclosed structures, where the possible migration of the
waste to the "outside" was purely speculative. On the other hand, CFCs and HCFCs
are incredibly durable. Some have atmospheric lifetimes of 120 years because they
do not break down in the lower atmosphere. 52 Fed. Reg. 47489 (December 14,
1987) (preamble to final and proposed rules implementing Montreal Protocol).
Consequently, these gases disperse widely as they slowly drift to the stratosphere
where they do their damage to the earth's layer of ozone. Id. It was in fact this very
propensity that led to efforts to address the ozone depletion problem through
international efforts. Id; see also 53 Fed. Reg. 30566 (August 12, 1988) (final rules).
Thus, it seems a reasonable argument that even within the narrower CERCLA-derived
definition any emission of CFCs or HCFCs, short of emissions that are contained
within a sealed structure, will constitute releases that will permit movement of these
gases into the ambient air and hence the environment.
The Element of Consideration
Section 7671h(c) prohibits anyone from repairing or servicing an MVAC "for
consideration" unless they follow prescribed rules. The element of consideration
limits the statute's reach to those cases where someone is paid to work on an MVAC.
EPA believes this applies not only to repair shops, but also to fleet operators whose
employees service and repair the fleet's MVACs. 57 Fed. Reg. 31242, 31246 (July
14, 1992).
F. Violation of Acid Rain Provisions
The precise elements of a violation of these provisions will vary depending on the
conduct of the defendant and the exact provisions that have been violated.
Obviously, the knowing emission of some amount of sulfur dioxide from an affected
plant in excess of the allowances held by the utility could be a violation. Absent the
utility's own self-reported violation, however, it remains unclear how such an
exceedance would be detected. Given the novelty of this regulatory program, the
contours of a prosecutable case may be years away from development. In fact, while
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the program itself officially goes into effect January 1, 1995, it is already clear that
the program, and legislative responses by the states to this program, will likely
generate substantial debate and litigation for years to come. See, e.g., Note, Sulfur
Dioxide and the Constitution: Legal Doctrine and Responses to the Clean Air Act
Amendments of 1990, 13 Stan. Env. L.J. 349 (1994).
On the other hand, sources affected by the Acid Rain Provisions will be required to
conduct continuous emissions monitoring, keep records of operation and compliance,
and report quarterly to EPA, among other things, tons of sulfur dioxide emitted
during the previous quarter. 42 U.S.C. § 7651k; 40 C.F.R. Part 75. The knowing
violations of monitoring and reporting requirements, including falsifications of such
reports, will be prosecutable under Section 7413(c)(2).
G. Knowing Violation of Information-Gathering Provisions
The 1990 amendments to the Clean Air Act imposed a variety of new recordkeeping
and reporting requirements upon emission sources, and thus shifted the burden to
require sources to show they were operating in compliance. For example, the Tide V
Operating Permits Program and the Acid Rain Provisions will impose monitoring and
compliance certification requirements upon affected sources. See Part F on previous
page. The Stratospheric Ozone Protection Provisions also require producers of ozone
depleting chemicals, and owners and servicers of appliances using such chemicals to
certify that they are handling and disposing of such equipment in accordance with
regulations. See part 1 .G. above. The knowing failure to provide required
information, or falsification of reports, is a violation of Section 7413(c)(2). The
following elements must be demonstrated:
1. The defendant
2. Knowingly
3. Makes a false material statement
4. In a document
5. Filed under the Clean Air Act or required to be maintained under the Act.
Section 113(c)(2) was amended in 1990 to make explicit that knowing omissions, as
well as affirmative false statements were prosecutable under the Act. Presumably,
questions of materiality will be matters of law for the court rather than a jury to
decide. Cf. Kungys v. United States, 485 U.S. 759, 772 (1988) (prosecution for false
statements under 18 U.S.C. § 1001). In addition, the knowing tampering with
monitoring equipment required under the Act is also a violation of Section 7413(c)(2).
Section 114, 42 U.S.C. § 7414, also provides broad information-gathering authority
for EPA. For instance, for the purpose of developing any implementation plan, or
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any NSPS, or NESHAP, any solid waste incineration standards pursuant to
Section 129, or for the purpose of determining whether a person is in violation of any
standard, EPA or the state may require the owner/operator of any emissions source to
establish and maintain records, make reports, install, use, and maintain monitoring
equipment or methods, take emissions samples, and provide other information as may
reasonably be required. 42 U.S.C. § 7414(a). In addition, Section 114 authorizes the
entry upon the premises of an emissions source as well as the copying of any records,
and prohibits a state agency from alerting a target of a proposed entry. Id.
§ 7414(a)(2)(B), 7414(d).
Amended Section 113(c)(1) makes it a felony, punishable by up to five years
imprisonment, for any person to knowingly violate any requirement imposed pursuant
to "Section 7414 of this title (relating to inspections, etc.)." 42 U.S.C. § 7413(c)(1).
At the same time, the generic false reporting provision of Section 7413(c)(2) provides
only a two-year penalty for tampering with monitoring equipment or false reporting
or certification in "any notice, application, record, report, plan, or other document
required [by the Clean Air Act] to be filed or maintained . . ." and regardless of
whether the requirement is imposed by the Administrator of the EPA or a state.
42 U.S.C. § 7413(c)(2)(A). This raises the question of whether to charge a defendant
who knowingly violated a reporting, recordkeeping, or monitoring requirement
promulgated pursuant to Section 7414 under Section 7413(c)(1) or Section 7413(c)(2).
"[W]hen an act violates more than one criminal statute, the Government may
prosecute under either so long as it does not discriminate against any class of
defendants." United States v. Batchelder, 442 U.S. 114, 123-24 (1979).
Given the broad overlap of the enhanced monitoring and reporting provisions, careful
attention must be paid to the stated statutory source for the report alleged to have
been falsified. For instance, while Section 7414 authorizes the imposition of
monitoring requirement to implement a SEP, 42 U.S.C. § 7414(a), the new state
operating permits, which will also set forth SIP requirements for emissions sources,
must also contain their own monitoring and recordkeeping requirements. See 42
U.S.C. §§ 7661a(b)(2), 7661b(b)(2).
H. Violation of an Emergency Order
Section 303 of the Act, 42 U.S.C. § 7603, authorizes EPA, where appropriate state or
local authorities have not acted, to issue an emergency order immediately restraining
any person from causing or contributing to any alleged pollution that presents "an
imminent and substantial endangerment to the health of persons." It is a felony for
any person to knowingly violate any requirement or prohibition of an emergency
order. 42 U.S.C. § 7413(c)(1). The elements of the offense are—
1. The defendant
2. Knowingly
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3. Violated a prohibition or requirement of
4. An emergency order issued by EPA pursuant to Section 303, 42 U.S.C.
§ 7603.
However, prosecuting such cases may present the complication of a defendant seeking
judicial review of an administrative determination during a criminal proceeding.
Section 307(b), 42 U.S.C. § 7607(b)(1), allows for the filing of petitions for review of
EPA actions taken under certain enumerated sections of the Act. EPA action taken
under any one of those sections "shall not be subject to judicial review in civil or
criminal proceedings for enforcement." 42 U.S.C. § 7607(b)(2). However,
emergency orders are not among the agency actions for which a petition of review
may be filed, raising the question of whether Section 7607(b)(2) would apply or
whether a defendant could substantively challenge EPA's action in issuing an
emergency order during the criminal proceeding. See Adamo Wrecking Company v.
United States, 434 U.S. 275 (1978).
I. Knowing and Negligent Endangerment
As of 1990, the Clean Air Act included two new provisions criminalizing the
knowing or negligent releases of hazardous air pollutants that thereby place others in
imminent danger of death or serious bodily injury. 42 U.S.C. § 7413(c)(4)-(5). To
sustain a conviction under Section 7413(c)(4) (negligent endangerment) or
Section 7413(c)(5) (knowing endangerment), the government must prove that—
1. The defendant
2. a. Negligently (for violations of § 7413(c)(4))
or
b. Knowingly (for violations of § 7413(c)(5))
3. Released
4. Into the ambient air
5. Any hazardous air pollutant listed under Section 7412 of the Clean Air Act,
or any extremely hazardous substances listed pursuant to Section 302(a)(2) of
the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C.
§ 11002(a)(2), not included in the Section 112 list,
6. And at the time of the release, thereby negligently (§ 7413(c)(4)) or
knowingly (§ 7413(c)(5))
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7. Placed another person in imminent danger
8. Of death or serious bodily injury.
The Act provides misdemeanor penalties for negligent endangerment, Id.
§ 7413(c)(4), and 15-years imprisonment for a conviction for knowing endangerment.
Id § 7413(c)(5)(A). Fines for negligent endangerment convictions may be imposed
upon individual or organizational defendants pursuant to Title 18 of the United States
Code. See 18 U.S.C. § 3571. Where the defendant convicted of knowing
endangerment is an organization, the Act provides a maximum fine of $1 million.
42 U.S.C. § 7413(c)(5)(A). However, for purposes of imposing fines upon an
organizational defendant for knowing endangerment, the term "organization" excludes
government agencies. Id. § 7413(c)(5)(E); see also 18 U.S.C. § 18 ('"organization'
means a person other than an individual"). This would appear then to make fines
upon government agencies convicted of knowing endangerment controlled by 18
U.S.C. § 3571(c), which provides fines up to $500,000 for any felony conviction.
To date, no cases have been prosecuted under Section 7413(c)(4) or (c)(5).
Presumably, the element of guilty knowledge (both of the release and its potential for
endangerment of others) will be interpreted in accord with caselaw defining
knowledge generally. See United States v. Buckley, supra, and chapter entitled
"Mental State" in this manual.
Juries may infer guilty knowledge on the basis of a person's position and
responsibility within an organization, and the relationship of that person's position
with the charged offense. United States v. MacDonald & Watson Waste Oil Co., 933
F.2d 35 (1st Cir. 1991). And Section 7413(c) explicitly defines criminally responsible
persons to include "responsible corporate officers." 42 U.S.C. § 7413(c)(6).
However, as to the offense of knowing endangerment, the defendant can only be held
responsible for actual awareness of, or belief in facts from which she would have
known that a violation placed another person in imminent danger.
As for negligent endangerment, no similar provision exists under any other federal
environmental statute. The only federal case defining, in part, criminal negligence in
the context of an environmental crime found that to sustain a conviction under a
"willful or negligent" standard, the government did not need to prove specific intent
to violate the law. United States v. Frezzo Brothers, Inc., 546 F.Supp. 713 (E.D. Pa.
1982), ajf d per curiam, 703 F.2d 62 (3d Cir.), cert, denied, 464 U.S. 829 (1983).
Release Into Ambient Air
To prove either negligent or knowing endangerment, the government must first prove
a release of one of the covered air pollutants "into the ambient air." 42 U.S.C.
§§ 7413(c)(4), 7413(c)(5)(A). The term "ambient air" is not defined in the Clean Air
Act. However, under CERCLA, which requires among other things reporting the
release of a hazardous air pollutant into the "environment," see 42 U.S.C.
§§ 9601(14)(E), 9603(b), the term "environment" is limited in part to the "ambient air
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within the United States." 42 U.S.C. § 9601(8). Elaborating on the reference to
"ambient air" in CERCLA's definition of "environment," EPA said this means "air
that is not completely enclosed in a building or structure and that is over and around
the grounds of a facility." 50 Fed. Reg. 13456, 13462 (April 4, 1985) (preamble).
Relying in part upon the limitation of "ambient air," CERCLA has been construed to
require evidence of actual movement or emission of the regulated substance into the
air outside a facility. Fertilizer Institute v. EPA, 935 F.2d 1303 (D.C. Cir. 1991); see
also 3550 Stevens Creek Assoc. v. Barclays Bank, 915 F.2d 1355, 1360 n. 9 (9th Cir.
1990), (in dicta, air inside a building is not included in CERCLA's definition of
"environment") cert, denied, 500 U.S. 917 (1991).
At the very least then, it would seem that a violation of a work practice standard, in
the absence of any proof of an actual emission of a hazardous air pollutant, will not
be sufficient to meet the element of a release.
More troubling, however, is that this interpretation of "ambient air," albeit outside the
Clean Air Act, would seem to require that the government prove that a defendant
knowingly released a covered air pollutant into air that is not completely enclosed
within a facility, but rather over and around the grounds of a facility. 50 Fed. Reg.
13456 (April 14, 1985). This construction would severely limit the reach of the
Clean Air Act endangerment provisions, as compared to RCRA or the Clean Water
Act, and offer little if any protection to workers within a facility who are repeatedly
exposed to emissions of hazardous air pollutants. Cf United States v. Protex
Industries, Inc., 874 F.2d 740 (10th Cir. 1989). Nevertheless, those types of exposure
may still be prosecutable under the endangerment provisions of RCRA or the Clean
Water Act.
Imminent Danger of Death or Injury
The Act defines "serious bodily injury" to mean a bodily injury that "involves a
substantial risk of death, unconsciousness, extreme physical pain, protracted and
obvious disfigurement, or protracted loss or impairment of the function of a bodily
member, organ, or mental faculty." 42 U.S.C. § 7413(c)(5)(F). This would appear
broad enough to include exposure to hazardous substances that do not cause
immediate harm, such as asbestos, but still pose a substantial risk of protracted loss
or impairment of bodily functions.
On the other hand, while the danger need not manifest immediate harm, courts have
differed as to the degree of proof necessary to show "imminent danger." See United
States v. Plaza Health Laboratories, Inc., 3 F.3d 643 (2d Cir. 1993), (imminent
danger means something more than the theoretical possibility of harm); cert, denied,
114 S.Ct. 2764 (1994) United States v. Protex Industries, Inc., supra (imminent
danger can be proven through a combination of conditions that could reasonably be
expected to cause death or serious bodily injury).
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Affirmative Defenses
The Act specifically provides that it is an affirmative defense to any prosecution for
knowing endangerment that the conduct was freely consented to by the person
endangered and that the danger and conduct charged were "reasonably foreseeable"
hazards of an occupation, business, profession, or medical treatment or
experimentation. 42 U.S.C. § 7413(c)(5)(C).
J. Shifting Scienter and the Definition of Criminally Liable "Persons"
The 1990 amendments added a new subsection (h) to the Section 113. 42 U.S.C.
§ 7413(h). This provision offers alternative definitions of the terms "operator" and
"persons," which in effect thereby heighten, for certain types of persons, the level of
criminal intent necessary to prove criminal liability.
The term "operator" is now defined as "any person who is senior management
personnel or a corporate officer." 42 U.S.C. § 7413(h). With the exception of
knowing and willful violations, the term "operator" does not include "any person who
is a stationary engineer or technician responsible for operation, maintenance, repair, or
monitoring of equipment and facilities and who often has supervisory and training
duties but who is not senior management personnel or a corporate officer." Id.
For purposes of criminal liability under the negligent endangerment provisions,
42 U.S.C. § 7413(c)(4), the new definition of "person" excludes "an employee who is
carrying out his normal activities and who is not a part of senior management
personnel or a corporate officer" unless the violation is "knowing and willful."
Id. § 7413(h).
In cases that charge knowing violations of a SIP, NESHAP, or any other predicate
listed in Section 7413(c)(1), the false statements provisions of Section 7413(c)(2), the
failure to pay fees provisions of Section 7413(c)(3), and the knowing endangerment
provisions of Section 7413(c)(5), the definition of a "person" excludes "an employee
who is carrying out his normal activities and who is acting under orders from the
employer" unless the employee's conduct was "knowing and willful." Id. § 7413(h).
Therefore, these provisions do not so much define what constitutes a criminally liable
"person," a term already defined at 42 U.S.C. §§ 7413(c)(6), 7602(e), as they do
create different scienter requirements (knowing versus knowing and willful) for
defendants depending on their employment responsibilities within an organization. In
fact, Section 7413(h) creates the possibility that certain employees who actually
perpetrate a Clean Air Act offense may seek to avoid criminal liability by claiming
that they were merely following orders from above. Such a defense to criminal
liability is unprecedented in any environmental or other federal criminal statute.
Raising the defense will also create a variety of questions of fact and law. For
instance, courts and juries will have to construe, without statutory aid, the meaning of
the phrase "normal activities." Similarly, while the term "corporate officer" may be
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CLEAN AIR ACT
well fixed by an entity's articles of incorporation or state law, Section 7413(h) does
not define "senior management personnel." Thus, in a negligent endangennent
prosecution, courts will have to decide how far down in the organization's structure
the label "senior management" will attach.
It may be argued that the term "knowing and willful," as used in Section 7413(h),
requires a showing of specific intent to violate some requirement of the Act, i.e., an
intentional violation of a known legal duty. See, e.g., United States v. Bishop, 412
U.S. 346, 360 (1973). The government has successfully argued that environmental
offenses are general intent crimes. See United States v. Frezzo Brothers Inc., supra,
(negligent or willful requirement under the pre-1987 version of the Clean Water Act
construed as general intent crime). A Senate report accompanying the conference
committee agreement suggests some lesser standard than specific intent may be
sufficient to convict such employees. The report states in part—
The changes adopted by the conference agreement [sic] is designed to
eliminate and has the effect of eliminating the special treatment afforded
"non-management employees" in cases of knowing and willful
violations. A person who knows that he is being ordered to commit an
act that violates the law cannot avoid criminal liability for such act by
hiding behind such "orders." The "knowing and willful" standard does
not require proof by the government that the defendant knew he was
violating the Clean Air Act per se. It is sufficient for the government
to prove the defendant's knowledge that he was committing an
unlawful act
These provisions create a new affirmative defense to criminal actions under
certain parts of Section 113(c). As such, once the government has satisfied
its burden to prove a "knowing" violation in the traditional sense, the burden
will shift to the person seeking to claim the defense and the defendant must
prove that he was acting under his employer's orders or carrying out normal
activities. Only after a defendant has satisfied that burden will the
government be required to prove that the defendant's actions were "willful."
Chafee-Baucus Statement of Senate Managers, S. 1630, The Clean Air Act
Amendments of 1990, 101st Cong. 2d Sess. (October 2, 1990), reprinted in 136
Cong. Rec. 16933, 16952 (daily ed. October 27, 1990).
Unfortunately, the Statement was signed by only two members of Congress in an
effort to provide some interpretive legislative history that was absent from the
conference committee report that accompanied the final bill enacted by the House and
Senate. See H.R. Conf. Rep. No. 952, 101st Cong., 2d Sess. 347, reprinted in 1990
U.S. Code Cong. & Admin. News 3867. Thus, the Statement is not likely to be
afforded much, if any, weight by courts interpreting the scope of Section 7413(h).
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More importantly, the Statement's assertion that the '"knowing and willful' standard
does not require proof by the government that the defendant knew he was violating
the Clean Air Act per se," seems to conflict with interpretations of willfulness. The
purpose of requiring the government to prove a defendant's specific intent to violate a
legal requirement is to protect individuals from being prosecuted for innocent
violation of highly complex statutes. Cheek v. United States, 111 S. Ct. 604, 609
(1991). Thus, an act is done willfully if it is done "voluntarily and intentionally and
with specific intent to do something which the law forbids, that is to say with bad
purpose either to disobey or disregard the law." Pomponio v. United States, 429 U.S.
10, 11 (1976); United States v. Bishop, 412 U.S. 346, 360 (1973). The element of
wilfulness also requires that the government negate a claimed defense of good faith
belief that the violation was the result of a misunderstanding of the law. Cheek v.
United States, 111 S. Ct. at 609-11. Notwithstanding the Statement of Managers, it
becomes difficult to conceive how the government might prove the violation was
committed "with specific intent to do something that the law forbids" without some
proof that the defendant claiming to fall under the knowing and willful provisions of
Section 7413(h) specifically knew his conduct was a violation of the Clean Air Act.
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Chapter 12
Emergency Planning and Community
Right-to-Know Act
(42 U.S.C. §11001 etseq.)*
Table of Contents
Page
1. Introduction 12-3
2. Synopsis of Relevant Statutory Sections 12-4
A. Emergency Planning 12-4
1. Establishment Of State Emergency Response Commissions,
Emergency Planning Districts, and Local Emergency Response
Committees—Section 301; Comprehensive Emergency Response
Plans—Section 303 (42 U.S.C. §§ 11001 and 11003) 12-4
2. Facility Obligations—Section 302 (42 U.S.C. § 11002) 12-4
3. Facilities Covered 12-5
4. Extremely Hazardous Substances 12-5
5. Threshold Planning Quantities 12-5
B. Emergency Notification—Section 304 (42 U.S.C. § 11004) 12-6
1. Introduction 12-6
2. Releases Subject to Reporting Obligations 12-6
a. Category I 12-6
b. Category II 12-7
c. Category III 12-7
3. Notice Contents 12-7
4. Exemptions and Limitations 12-7
"Original version prepared by Bruce Pasfield, Assistant Chief, and edited by Deborah K. Woitte, Former
Senior Trial Attorney, Environmental Crimes Section; revised by Mark M. Kotila, Trial Attorney, Marty
Woelfle, Trial Attorney, Environmental Crimes Section; and James C. Howard, Assistant United States Attorney,
District of Maryland (formerly with the Environmental Crimes Section).
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5. Criminal Provisions and Elements of the Offenses—Section 325
(42 U.S.C. § 11045(b)(4)) 12-8
Table 1. Comparison of Failure To Report Crimes Under CERCLA and
EPCRA 12-9
6. Sentencing 12-10
7. Emergency Training and Review of Emergency Systems—Section 305
(42 U.S.C. § 11005) 12-10
C. Reporting (Inventory) Requirements 12-10
1. Introduction 12-10
2. Material Safety Data Sheets—Section 311 (42 U.S.C. § 11021) 12-11
3. Emergency and Hazardous Chemical Inventory Forms—Section 312
(42 U.S.C. § 11022) 12-11
4. Toxic Chemical Release Forms—Section 313 (42 U.S.C. § 11023) ... 12-12
D. General Provisions 12-13
1. Relationship to Other Laws—EPCRA Section 321 (42 U.S.C. § 11041) 12-13
2. Trade Secrets—EPCRA Section 322 (42 U.S.C. § 11042) 12-13
3. Relevant Terminology 12-14
Appendix: State Emergency Response Commissions and State-
Designated Agencies for EPCRA 12-15
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EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT
1. Introduction
One of the basic tools of modern environmental law is the collection of self-reported
information about potential threats to the public health and environment This
information is used to make informed regulatory judgements and to facilitate the
organized response to emergency situations. Just as the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) (see
Chapter 11) requires information collection and notice to federal authorities regarding
the release of hazardous substances into the environment, the Emergency Planning and
Community Right-to-Know Act (EPCRA or EP&CRTKA) performs a similar function
at a local level by providing for emergency planning, emergency notification, and a
variety of information collecting activities generally referred to as community right-to-
know. The integrity of this information collection system is critical to federal, state,
and local government's ability to plan and respond to local environmental and public
health threats.
Title IE of the Superfund Amendments and Reauthorization Act of 1980 (SARA)
created the Emergency Planning and Community Right-to-Know Act, 42 U.S.C.
§ 11001 et seq., as a separate and freestanding Act passed in response to the Bhopal
disaster and the release of hazardous substances in Institute, West Virginia. Many
state and local governments also have right-to-know laws that are not preempted
by EPCRA.
EPCRA establishes obligations for federal, state, and local governments and industry
regarding emergency planning and community right-to-know reporting on hazardous
and toxic chemicals based on the type and amount of chemical present at a facility.
EPCRA accomplishes this by establishing the following four information
gathering/planning or response programs:
• Emergency Planning (EPCRA §§ 301-303, 42 U.S.C. §§ 11001,11003).
• Emergency Hazardous Chemical Release Notification (EPCRA § 304,
42 U.S.C. § 11004).
• Community Right-To-Know, Material Safety Data Sheet (MSDS) and
hazardous chemical inventory reporting (EPCRA §§311 and 312,
42 U.S.C. §§ 11021, 11022).
• Toxic Chemical Release Reporting (EPCRA § 313, 42 U.S.C. § 11023).
Similar to CERCLA, under EPCRA government authorities must be notified of the
release of certain substances in reportable quantities, and the failure to make such a
report may be a crime under 42 U.S.C. § 11045(b)(4).
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2. Synopsis of Relevant Statutory Sections
A. Emergency Planning
1. Establishment Of State Emergency Response Commissions, Emergency
Planning Districts, and Local Emergency Response Committees—Section 301;
Comprehensive Emergency Response Plans—Section 303 (42 U.S.C. §§ 11001
and 11003)
Section 301 of EPCRA requires each state to establish an Emergency Response
Commission with the obligation to designate local emergency planning districts
and appoint local planning commissions. 42 U.S.C. § 11001.
State emergency response commissions—The state commission is required to
designate local emergency planning districts and appoint local emergency
planning committees. As of December 1989, every state had established an
emergency response commission and designated emergency planning districts.
Local emergency planning committees —The primary responsibility of each
local emergency planning committee is to collect information from covered
facilities and develop an emergency response plan. Each local committee is
required to have one member from a law enforcement agency. The level of
participation, information collection and extent to which emergency response
plans have been completed varies from district to district and state to state.
When completed, emergency response plans should identify—
• Covered facilities.
• Response methods and procedures.
• Community and facility emergency coordinators.
• Notification procedures.
• Methods for determining the occurrence of a release.
• Emergency response procedures.
• Evacuation plans.
• Training programs.
2. Facility Obligations—Section 302 (42 U.S.C. § 11002)
Section 302 of EPCRA requires that any facility with a quantity of an extremely
hazardous substance (EHS) in excess of the threshold planning quantity (TPQ)
must comply with the emergency planning requirements of this subchapter. A
covered facility must notify the state commission that it is subject to these
requirements. The state must in turn notify the Environmental Protection Agency
(EPA).
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Covered facilities are required to promptly provide, upon request, the
information necessary to develop the emergency response plan. These local
emergency response plans and the information provided can be an important
source of information about covered facilities, the hazards present, the action or
inaction by a facility to address those hazards, and the awareness or knowledge
of facility managers regarding hazards in the facility. Emergency response plans
are public information [42 U.S.C. § 11044]. Providing false information to a
local emergency planning committee can be the basis for charges under
18 U.S.C. § 1001.
The appendix contains a list of each state's emergency planning commission and
a contact person who can provide information pertaining to local emergency
planning districts and perhaps emergency response plans for a particular area.
3. Facilities Covered
Facilities can become subject to EPCRA emergency planning obligations in
three ways:
• If required to provide emergency notification pursuant to EPCRA Section
304, 42 U.S.C. § 11004;
• If an "extremely hazardous substance" is present in an amount in excess of
the "threshold planning quantity"; or
• If designated by the governor of a state after notice and public comment. 42
U.S.C. § 11002(b).
4. Extremely Hazardous Substances
Pursuant to Section 302, EPA published a list of extremely hazardous substances,
which are found at 40 C.F.R. Part 355, Appendixes A (alphabetical order) and B
(Chemical Abstract Service (CAS) number order).
An EHS should not be confused with a "hazardous substance" under CERCLA.
There are more than 700 hazardous substances under CERCLA, many of which
are also EHSs. However, the lists are not identical.
5. Threshold Planning Quantities
EPA has also established threshold planning quantities for certain chemicals. A
TPQ is the minimum quantity of a particular chemical for which the emergency
planning coordinator at a facility must establish a planned response.
The TPQ is different from a "reportable quantity" (RQ) under CERCLA. An RQ
triggers certain notification requirements under CERCLA and EPCRA when
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there are "releases" of chemicals (discussed below). Typically, the TPQ for an
EHS is 500 or 1,000 pounds; the RQ for an EHS that is not on the CERCLA
hazardous substance list (with its own RQ) will run between 1 and 10 pounds.
The appendixes listing extremely hazardous substances at 40 C.F.R. Part 355
also set forth the TPQs for each EHS.
EPA publishes a "Title Hi-List of Lists" of all CERCLA hazardous substances
and EPCRA extremely hazardous substances with the respective RQ and TPQ for
each. The List of Lists also lists Section 313 Toxic Chemicals.1
B. Emergency Notification—Section 304 (42 U.S.C. § 11004)
1. Introduction
Section 304 of EPCRA creates an overlapping regime with CERCLA for
notification of releases of hazardous substances and EHSs. (See Table 1,
Comparison of Failure To Report Crimes under CERCLA and EPCRA.)
Section 304 requires, with certain conditions, that notice must be given whenever
there is a release of an EPCRA EHS or a CERCLA hazardous substance in
excess of its RQ. Notice must be given to the local community emergency
coordinator for any area likely to be affected and to the state emergency planning
commission of any state likely to be affected by the release. That notice must be
given immediately. If the release is incident to transportation, notice may be
given by calling 911 or, in the absence of 911, the operator.
For all releases of hazardous substances in excess of the RQ published under
CERCLA, 40 C.F.R. § 302.4 (some of which may also be EHSs), notification
must be made to the state commission and local committee pursuant to EPCRA,
as well as to the National Response Center pursuant to CERCLA. If an EHS is
not listed as a hazardous substance, a person need contact only the relevant state
and local bodies.
2. Releases Subject to Reporting Obligations
Section 304 sets forth three types of releases requiring emergency notification to
state and local governments:
'The substances and quantities can be changed by EPA from time to time. Up-to-date information on the List
of Lists can be obtained through the EPA Hot Line at 1-800-535-0202.
12-6 ENVIRONMENTAL CRIMES MANUAL
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EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT
a. Category I
Category I includes releases of EHSs for which the release would also
require notification under CERCLA, that is, the EHS is also on the list of
CERCLA hazardous substances, and the release is greater than the
CERCLA RQ for that substance.
b. Category II
Category 2 includes releases of EHSs that are not subject to the notification
requirements under CERCLA, provided that—
1. The release is not a federally permitted release as defined m
Section 101(10) of CERCLA, 42 U.S.C. § 9601(10).
2. The release is greater than the RQ designated for the EHS (generally
1 to 10 pounds).
3. The release occurs in a manner that would require notification
under Section 103(a) of CERCLA, 42 U.S.C. § 9603(a). See
Chapter 11, supra.
c. Category III
Category DI includes releases of CERCLA hazardous substances that
are not EHSs, and that require notification under CERCLA (subject to
certain qualifications).
3. Notice Contents
Section 304 notice must include the chemical name, the quantity released, and the
medium or media into which the release occurred. Because immediate
notification may preclude a facility from collecting all the relevant information,
Section 304(b) states that the information may be provided "to the extent known
at the time of the notice and so long as no delay in responding to the emergency
results . . .". As soon as practicable after the release, a written follow-up notice
must be submitted. False statements in EPCRA notices can be prosecuted under
18 U.S.C. § 1001. See, e.g., United States v. Consolidated Edison, 1994 WL
414407 (S.D.N.Y.)
4. Exemptions and Limitations
a. Worker Exposure Rule —The EPCRA emergency notice provisions do "not
apply to any release which results in exposure to persons solely within the site
or sites on which a facility is located." 42 U.S.C. § 11004(a)(4). cf. United
States v. Baytank, 934 F.2d 599, 620 n. 33 (5th Cir. 1991) (in a CERCLA
ENVIRONMENTAL CRIMES MANUAL 12-7
JANUARY 1999
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EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT
prosecution "all the Government was required to prove . . . was that at least [a
reportable quantity] evaporated . . . into the ambient air, not that such a
quantity left the borders of the Baytank property").
b. Produced, used, or stored requirement —The emergency notification
requirement is triggered only if the "release occurs from a facility at which the
hazardous chemical is produced, used, or stored." 42 U.S.C. § 11004(a)(1),
(2), (3). See discussion of the term "hazardous chemical" under MSDS, Part
2.C.2. of this chapter. The terms "produced, used, or stored" are not defined
inEPCRA.
5. Criminal Provisions and Elements of the Offenses—Section 325
(42 U.S.C. § 11045(b)(4))
a. 42 U.S.C. § 11045(b)(4) states that-
Any person who knowingly and willfully fails to provide notice in
accordance with Section 11004 [42 U.S.C. § 11004, EPCRA Section
304] shall, upon conviction, be fined not more than $25,000, or
imprisoned for not more than 2 years, or both (or in the case of a second
or subsequent conviction, shall be fined not more than $50,000, or
imprisoned for not more than 5 years, or both).
b. The elements of a criminal EPCRA violation are—
1. A release of an RQ of a hazardous substance or extremely hazardous
substance requiring notice;
2. From a facility at which a hazardous chemical is produced, used,
or stored;
3. The defendant was the owner or operator of the facility;2
4. The defendant "knowingly and willfully"3 failed to provide notice as
required by Section 304(b).
2EPCRA § 304(a)(2) (42 U.S.C. § 11004(a)(2)) defines the person responsible for making notification as
the "owner or operator." This is not defined under EPCRA. It appears to be narrower than CERCLA § 103
(42 U.S.C. § 9603) or the Clean Water Act § 311 (33 U.S.C. § 1321), which use the phrase "any person in
charge" to define individuals required to report releases. See United States v. Can, 880 F.2d 1550 (2d Cir.
1989); United States v. Greer, 850 F.2d 1447, 1453 (11th Cir.) reh'g. denied 860 F.2d 1092 (11th Cir. 1988);
Apex Oil v. United States, 530 F.2d 1291, 1294 (8th Cir.), cert, denied, 429 U.S. 827 (1976). See also
discussion of "person in charge" under CERCLA in Chapter 11 of this manual. Compare also, Clean Air Act
definition of "owner or operator." 42 U.S.C. § 7412(a)(9).
3EPCRA § 324(4) (42 U.S.C. § 11045(4)) specifically requires a showing of knowing and willful failure
to provide notice. Please refer to Chapter 7 of this manual for a discussion of mental state in environmental
prosecutions.
JANUARY 1999
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EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT
c. No immunity—
Unlike CERCLA, EPCRA does not provide limited immunity to the person
making the notification of a release.
Table 1. Comparison of Failure To Report Crimes Under CERCLA and EPCRA
Elements
CERCLA—42 U.S.C. §
9603
EPCRA—42 U.S.C. § 11004
RELEASE
"into the environment"
EXEMPTIONS
42 U.S.C. 9601(22)
(including abandonment*)
42 U.S.C. § 9601(8)
A) Workplace
B) Engine exhaust
C) Nuclear incidents
D) Normal fertilizer
42 U.S.C. 11049(8)
(including abandonment*')
40 C.F.R. §§ 355.20 and 372.3
Exposure to persons solely within site(s) on
which a facility is located
42 U.S.C. 11004(a)(4)
SUBSTANCES
COVERED
Hazardous substances
42 U.S.C. § 9601 (14)
40 C.F.R. Part 302
42 U.S.C. § 11004(a)
Extremely Hazardous Substances
+ CERCLA hazardous substance (1)
+ not CERCLA hazardous substance (2)
+ Not extremely hazardous substance but
CERCLA hazardous substance (3)
FACILITY
42 U.S.C. 9601 (9) = site
42 U.S.C. 11049(4) = site
+ single ownership/common control
+ at which hazardous chemical is
produced, used or stored, 42
U.S.C. 11004(a)
REPORTABLE
QUANTITY
40 C.F.R. §302
40 C.F.R. Part 355
DUTY TO REPORT
Person in charge
Owner or operator of the facility
MENTAL STATE/
KNOWLEDGE
"knowledge of a release"
US v. Buckley
934 F. 2d 84 (6th Cir. 1991)
"knowingly and willfully fails to provide
notice" 42 U.S.C. § 11045(b)(4)
TIMELINESS
Immediately upon knowledge
of release
Immediately upon release
REPORT TO
USCG-NRC
Local/state
IMMUNITY
Personal use + derivative
NONE
PENALTY
3 years/Title 18 fines
5 years (2nd offense)
2 years/$25,000
5 years/$50,000 (2nd offense)
* Note the slight difference in the definitions of abandonment.
ENVIRONMENTAL CRIMES MANUAL 12-9
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EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT
6. Sentencing
a. Penalties —Any person who knowingly and willfully fails to provide the
Section 304 notification is subject to criminal penalties of a $25,000 fine
and/or 2 years imprisonment pursuant to Section 325(b)(4) of EPCRA,
42 U.S.C. § 11045(b)(4).
b. Guidelines —The EPCRA crimes are not listed in the Sentencing Guidelines
Statutory Index, so the most analogous guidelines are to be applied. See
2X5.1. Depending on the circumstances this might be the 2F, 2J, 2Q, or
2X guidelines.
c. Alternative Fines Act —The Alternative Fines Act, 18 U.S.C. § 3571,
allows a fine the greater of (1) $250,000 or (2) twice the gross gain or
loss that results from an offense unless the imposition of a fine would
unduly complicate or prolong the sentencing process.
The $250,000 fine is increased to $500,000 for organizations.
7. Emergency Training and Review of Emergency Systems—Section 305
(42 U.S.C. § 11005)
This section authorizes federal emergency training assistance and grants of
federal monies. It may be significant to demonstrate materiality in a prosecution
under 18 U.S.C. § 1001.
C. Reporting (Inventory) Requirements
1. Introduction
This subchapter is designed to provide the information necessary for emergency
preparedness to local emergency planning commissions and districts. It provides
emergency planning coordinators and the general public with information
regarding use, volume, location, and waste stream of potentially harmful
chemicals. This information is available to law enforcement and can be a
valuable tool in investigating cases.
The subchapter defines the chemicals and quantities of chemicals subject to its
inventory reporting requirements.4 Failure to include chemicals as required or
false reporting is subject to criminal sanctions for concealment or false statements
under 18 U.S.C. § 1001. There is no criminal penalty under EPCRA for false
reporting or failing to report chemicals at all.
'"Reporting" in EPCRA is distinguished from "notice." Reporting refers to the requirement of preparing
an "inventory" of chemicals on facility property. It does not include emergency notice of releases as
discussed above.
JANUARY 1999
12-10 ENVIRONMENTAL CRIMES MANUAL
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EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT
2. Material Safety Data Sheets—Section 311 (42 U.S.C. § 11021)
a. Section 311 covers "hazardous chemicals" and provides that facilities that are
required to have MSDSs under Occupational Safety and Health Act (OSHA)
regulations must either submit copies of the MSDS for each hazardous
chemical or a list of such chemicals. The MSDSs or lists must be submitted
to the appropriate local emergency planning committee, the state emergency
response commission, and the local fire department.
b. For the purposes of EPCRA Section 311, the term "hazardous chemical" is
borrowed from the Occupational Safety and Health Act of 1970. 29 U.S.C.
§ 651 et seq. OSHA regulations define hazardous chemicals as any chemical
that is a health hazard or physical hazard. (29 C.F.R. § 1910.1200(c).)
There is no accompanying list of hazardous chemicals in OSHA or other
regulations, and the scope of the term is intentionally broad. EPCRA Section
311(e), 42 U.S.C. § 11021(e), lists five exceptions to the OSHA definition,
including food, additives, drugs, or cosmetics regulated by the Food and Drug
Administration; household substances; substances used in a research
laboratory or medical facility; and fertilizers.
c. Obligation to update MSDS information—if an owner or operator of a facility
discovers significant new information concerning an aspect of a hazardous
chemical, a revised MSDS must be provided within three months of that
discovery. § 11024(d)(2).
3. Emergency and Hazardous Chemical Inventory Forms—Section 312
(42 U.S.C. § 11022)
Every facility that is required to prepare or have MSDSs for hazardous chemicals
under OSHA must submit an emergency and hazardous chemical inventory form
to the agencies listed in Section 311 (local committees, state commissions, and
local fire departments). The information required to be reported in the inventory
forms is divided into two tiers. The first tier of information must be provided by
all covered facilities and updated annually. Tier II reporting is more extensive
than Tier I. Tier II reporting is not triggered unless a request is made by one of
the three previously noted agencies, by local or state officials, or if required by
state statute. Tier II information can be very valuable because it is chemical
specific and not categorical.
Tier I information includes—
• An estimate of the maximum amount of hazardous chemicals for each
category5 present at a facility at any time during the preceding year;
5The categories here axe those established under the Occupational Safety and Health Act, 29 U.S.C. § 651 et
seq., and its regulations.
ENVIRONMENTAL CRIMES MANUAL 12-11
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EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT
• An estimate of the daily amount in each category; and
• The general location of the chemicals for each category.
Tier II information includes—
• The chemical name or common name of each chemical as it appears on
its MSDS;
• Annual and daily estimates of the amount of each hazardous chemical at the
facility;
• A brief description of the manner of storage,
® The location at the facility of each chemical; and
• Whether the owner elected to withhold location infonnation from the
general public pursuant to Section 324, 42 U.S.C. § 11044.
Public access—
The public can request access to Tier II information. This request must be
directed to either the state emergency response commission or the local
emergency planning committee and not to the facility. The agency must
respond if, at any time during the preceding calendar year, the facility stored
more than 10,000 pounds of any hazardous chemical. If the amount of any
hazardous chemical stored was less than 10,000 pounds, response to the
request is discretionary.
Threshold quantities-
Section 312 also establishes "threshold quantities" for hazardous chemicals that
trigger this reporting requirement. The threshold quantity is different from
others listed in EPCRA (i.e., threshold planning quantity). All chemicals
have one of two threshold quantities depending on whether they are EHSs or
simply hazardous chemicals. These quantities are (1) either 500 pounds for
hazardous chemicals that are also listed as EHSs under Section 302 of
EPCRA, or the TPQ under Section 302, whichever is less; or (2) 10,000
pounds for hazardous chemicals that are not EHSs.6
4. Toxic Chemical Release Forms—Section 313 (42 U.S.C. § 11023)
Section 313 contains the final inventory requirement and an independent list of
chemicals that are subject to the inventory requirements. The chemicals listed
6These quantities are listed in 40 C.F.R. Part 355, App. A.
JANUARY 1999
12-12 ENVIRONMENTAL CRIMES MANUAL
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EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT
are called toxic chemicals. Although many of the toxic chemicals are the samft
substances that are listed elsewhere in EPCRA, the lists are not identical.7
For each toxic chemical that was manufactured, processed, or used in amounts
exceeding the toxic chemical threshold quantity during the previous year, a
facility must complete a toxic chemical release form that must include the
following information:
• Whether the toxic chemical is manufactured, processed, or otherwise used;
• An estimate of the maximum amount of the chemical at the facility;
• The disposal method for each waste stream and an estimate of treatment
efficiency; and
• The annual quantity of the toxic chemical entering each environmental
medium.
The National Library of Medicine maintains a database containing all the
information provided by these toxic chemical release forms. Law enforcement
officials may establish an access account through EPA.
Generic threshold quantities that trigger the reporting requirement have been
established for toxic chemicals as follows:
• If the chemical is used at the facility—10,000 lb/year.
• If the chemical is manufactured or processed at the facility—25,000 lb/year.
D. General Provisions
1. Relationship to Other Laws —EPCRA Section 321 (42 U.S.C. § 11041)
The Act does not preempt any state or local law.
2, Trade Secrets -EPCRA Section 322 (42 U.S.C. § 11042)
This section allows anyone subject to the provisions of EPCRA to withhold the
specific chemical identity of a substance if all listed conditions are met.
7The initial list of toxic chemicals was set by the Senate Committee on Environment and Public Works. EPA
updates the list by regulation. See Staff of Senate Comm. on Env. and Public Works, 99th Cong. 2nd Sess.,
Toxic Chemicals Subject to Section 313 of the Emergency Planning and Community Right-to-Know Act (Comm.
Print 1987), found at 40 CFR § 372.65. The list is also found in EPA's "List of Lists." See supra at 12-7.
ENVIRONMENTAL CRIMES MANUAL 12-13 JANUARY 1999
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EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT
3. Relevant Terminology
Environment —Includes water, air, and land and the interrelationship that exists
among and between water, air, and land, and all living things.
Extremely Hazardous Substance —A substance on the list described in Section 302
(42 U.S.C. § 11002(a)(2)). This list is contained in 40 C.F.R. § 355.
Facility —All buildings, equipment, structures, and other stationary items that are
located on a single site or on contiguous or adjacent sites and that are owned or
operated by the same person (or by any person who controls, is controlled by, or
under common control with, such person). For purposes of Section 304 (42 U.S.C.
§ 11004), the term includes motor vehicles, rolling stock, and aircraft. Unlike
CERCLA Section 103, the definition does not include maritime vessels.
Hazardous Chemical —Has the meaning given such term by Section 311 (42
U.S.C. § 11021(e)).
Material Safety Data Sheet —The sheet required to be developed under 29 C.F.R.
§ 1910.1200(g), as amended.
Person —Any individual, trust, firm, joint stock company, corporation (including a
government corporation), partnership, association, state, municipality, commission,
political subdivision of a state, or interstate body.
Release —Any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing into the environment (including
the abandonment or discarding of barrels, containers, and other closed receptacles) of
any hazardous chemical, extremely hazardous substances, or toxic chemical.
State —Any state of the United States, the District of Columbia, the Commonwealth of
Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Northern
Mariana Islands, and any other territory or possession over which the United States
has jurisdiction.
Toxic Chemical —A substance on the list described in Section 313
(42 U.S.C. § 11023), codified at 40 CFR § 372.65.
JANUARY 1999
12-14 ENVIRONMENTAL CRIMES MANUAL
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Developing
Interviewing Skills:
An Introduction to Interviewing for Regulatory Personnel
-------
The Communication Process
Let's say a guy named Roger is attracted to a woman named Elaine. He asks her out to. a
movie; she accepts; they have a pretty good time.
A few nights later he asks her out to dinner, and again they enjoy themselves. They continue
to see each other regularly, and after a while neither one of them is seeing anybody else.
And then, one evening when they're driving home, a thought occurs to Elaine, and, without
really thinking, she says it aloud: "Do you realize that, as of tonight, we've been seeing each
other for exactly six months?" And then there is silence in the car.
To Elaine, it seems like a very loud silence. She thinks to herself: Gee, I wonder if it bothers
him that I said that. Maybe he's been feeling confined by our relationship; maybe he thinks I'm
trying to push him into some kind of obligation that he doesn't want, or isn't sure of.
And Roger is thinking: Gosh. Six months.
And Elaine is thinking: But, hey, I'm not so sure I want this kind of relationship, either.
Sometimes I wish I had a little more space, so I'd have time to think about whether I really want
us to keep going the way we are, moving steadily toward. . . I mean, where are we going?
Are we just going to keep seeing each other at this level of intimacy? Are we heading toward
marriage? Toward children? Toward a lifetime together? Am I ready for that level of
commitment? Do I really even know this person?
And Roger is thinking:. . . so that means it was. . . let's see February
when we started going out, which was right after I had the car at the dealer's, which means,
lemme check the odometer. . Whoa! I am way overdue for an oil change here.
And Elaine is thinking: He's upset. I can see it on his face. Maybe I'm reading this completely
wrong. Maybe he wants more from our relationship, more intimacy, more commitment; maybe
he has sensed - even before I sensed it — that I was feeling some reservations. Yes, I bet
that's it. That's why he's so reluctant to say anything about his own feelings. He's afraid of
being rejected.
And Roger is thinking: And I'm gonna have them look at the transmission again. I don't care
what those morons say, it's still not shifting right. And they better not try to blame it on the cold
weather this time. It's 87 degrees out, and this thing is shifting like a garbage truck, and I paid
those incompetent thieves $600.
And Elaine is thinking: He's angry. And I don't blame him. I'd be angry, too. Man, I feel so
guilty, putting him through this, but I can't help the way I feel. I'm just not sure.
And Roger is thinking: They'll probably say it's only a 90-day warranty. That's exactly what
they're gonna say; the scumbags.
And Elaine is thinking: maybe I'm just too idealistic, waiting for a knight to come riding up on
his white horse, when I'm sitting right next to a perfectly good person, a person I enjoy being
-------
with, a person I truly do care about, a person who seems to truly care about me. A person
who is in pain because of my self-centered, schoolgirl romantic fantasy.
And Roger is thinking: Warranty? They want a warranty? I'll give them a warranty. I'll take
their warranty and ...
"Roger," Elaine says cnuuu.
"What?" says Roger, startled.
"Please don't torture yourself like this," she says, her eyes beginning to brim with tears.
"Maybe I should never have...Oh man, I feel so...." (She breaks down, sobbing.)
"What?" says Roger.
"I'm such a fool," Elaine sobs. "I mean, I know there's no knight. I really know that. It's silly.
There's no knight, and there's no horse."
"There's no horse?" says Roger.
'You think I'm a fool, don't you?" Elaine says.
"No!" says Roger, glad to finally know the correct answer.
"It's just that... It's that I. . . I need some time," Elaine says.
(There is a 15-second pause while Roger, thinking as fast as he can, tries to come up with a
safe response. Finally he comes up with one that he thinks might work.)
"Yes," he says.
(Elaine, deeply moved, touches his hand.)
"Oh, Roger, do you really feel that way?" she says.
"What way?" says Roger.
"That way about time," says Elaine.
"Oh." says Roger. 'Yes."
(Elaine turns to face him and gazes deeply into his eyes, causing him to become very nervous
about what she might say next, especially if it involves a horse. At last she speaks.)
'Thank you, Roger," she says.
'Thank you." says Roger.
Then he takes her home, and she lies on her bed. a conflicted, tortured soul, and weeps until
dawn, whereas when Roger gets back to his place, he opens a bag of Doritos. turns on the TV,
-------
and immediately becomes deeply involved in a rerun of a tennis match between two
Czechoslovakians he never heard of. A tiny voice in the far recesses of his mind tells him that
something major was going on back there in the car, but he is pretty sure there is no way he
would ever understand what, and so he figures.
it's better if he doesn't think about it. (This is also Roger's policy regarding world hunger.)
The next day Elaine will call her closest friend, or perhaps two of them, and they will talk about
this situation for six straight hours. In painstaking detail, they will analyze everything she said
and everything he said, going over it time and time again, exploring every word expression,
and gesture for nuances of meaning, considering every possible ramification. They will
continue to discuss this subject, off and on, for weeks, maybe months, never reaching any
definite conclusions, but never getting bored with it, either.
Meanwhile, Roger, while playing racquetball one day with a mutual friend of his and Elaine's,
will pause just before serving, frown, and say:
"Norm, did Elaine ever own a horse?"
-------
Developing
Good Interviewing Skills
Doubt leads to inquiry and inquiry leads to truth"
'W
Course Goals
¦ Bask: communication process.
¦ Obstacles to efficient "active listening*.
¦ Techniques to detect deception
¦ Enhance interview results thru preparation.
¦ Build & use rapport
¦ Five stages of an interview
This is a 1 Yz hour overview class. Interviewing
skills require good practice and more training to become
really proficient Better still, seek the assistance of CID in
cases that warrant in depth interviews.
Communications Basics
¦ Can't effectively Interview without
understanding Communications
¦ Communications is an interdependent
event or interaction
¦ During each communication people
are continually offering definitions or
images of themselves & responding to
perceived images of others
1
-------
"God, in his great wisdom, gave us two ears
and one mouth so that we might hear twice as
much as we say."
Levels of listening:
¦ Not hearing at all
¦ Listening but not
processing
¦ Actively Listening
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o,
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^
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< '{LKrS'A h
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¦ J No V.\ wykr
2
-------
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Verbal/Nonverbal Behavior
¦ Actively listen to verbal & nonverbal
¦ Read clusters of behavior; do not rely
on a single observation.
¦ Persist until we reach our goal—"the
objective truth."
¦ There are no absolutes.
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f)rt C a ry VtA
kl J Ve^A ^
3
-------
o4ye _£l
6t//
i> /\njprS
n M < rflrV
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Nonverbal Behavior
¦ Symbolic Gesture
¦ Facial Expressions
¦ Protective Gesture
¦ Face Color
¦ Grooming Gesture
¦ Eye Contact
¦ Perspiration
¦ Body Movements
¦ Digestive Signs
¦ Body Postures
Beware of Limitations & Exceptions
- fjd^c'b^y ^ ^^*-f7^r^-
*m£> -f (K Ji^r/c ?A*>r
4
-------
Perspectives &
Representational Systems
The three primary systems or maps are:
¦ Visual "Do you see what I mean."
¦ Auditory "Don't you hear what I'm
saying?"
¦ Kinesthetic "/ had a gut feeling something
was wrong."
Neuro-Linguistic
Effective Communication Assumptions
¦ Communication is the achieved outcome.
¦ A person can't fail to respond.
¦ Our reality is based on our perceptions.
¦ People pick the best choice.
¦ Most flexible person will be the most
controlling.
¦ There are no mistakes, only outcomes.
¦ No limitations, only opportunities.
-------
The Interview Process
Terms
¦ Interview
¦ Interrogation
¦ Admission (see these the most)
¦ Confession
Preparation Considerations
'fi" 6
¦ Background & Research
¦ Question Outline 'ICQjJz? | tI}
¦ Psychological Factors
¦ Physical Influences
¦ Single vs. Two Interviewers
Physical Influences
¦ Location
¦ Time
¦ Food & Drink
¦ Smoking
¦ Age
¦ Drugs
¦ Interview
¦ Coffee & Tea
Environment
¦ Proxemics
-------
Single vs. Two Interviewers
Single vs. Two Interviewers
7
-------
Single vs. Two Interviewers
# ¦
•
Five Steps of a
Law Enforcement Interview
¦ Introduction / Identification
¦ Rapport building
¦ Topic Questions - general to specific
V V*\ . ij, * ' *'
¦ Summary / Review \ ^, /
\ -v, )'4 ^
¦ Closing
c,
-rr
-------
The Good Interviewer
¦ Honesty & integrity - seeks only the
TRUTH.
¦ Capability to build rapport quickly. y yff
m Ability to listen & evaluate responses.
¦ NON JUDGEMENTAL
» Maintain self-control & be flexible.,
Ju>*~
5
b/ turned
Problem Areas
¦ Terms and Expressions — J1
¦ Use of an interpreter in questioning
¦ Hostile Witnesses
¦ Friendly Witness
¦ Confidential Informants
_ az-t
Frequent Concerns
¦ When do I read the Miranda Rights?
¦ How do 1 interview a C.I.?
These functions only involve law enforcement so
don't let these issues concern you.
9
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Course Review
Basic communication process.
Obstacles to efficient "active listening"
Techniques to detect deception
Enhance Interview results thru preparation.
Build & use rapport
Five stages of an Interview
Practice, Practice, Practice
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interviewing and Interrogation
The spoken word is potentially the greatest of all sources of information. A
proficiency in interviewing will assure a high degree of reliability in the results achieved
and will help prevent surprise testimony from arising later.
Development of good interviewing skills assists any investigation, whether it is
criminal or civil in nature. Even though regulators gather the majority of the
information they require by asking questions, most agencies devote little time or
resources to the development of good interviewing skills.
Neither the ordinary experiences of growing up and living among people nor a
public school education is of much value in learning how to obtain information from
reluctant individuals. Even when interviewing cooperative witnesses, there is
frequently an inability to acquire all the pertinent facts they possess.
This situation arises from our normal associations with others. As a rule family, friends
and associates only tell us the things that reflect their mood, and this seldom includes
admissions that are detrimental to their self-interests. Attempts to get such admissions
are usually limited to appeals based on family relationship, honor, civic responsibility,
job loyalty or religion. These methods are only moderately effective with people we
know and have very little effect on the uncooperative witness.
Even when inquiries are made to agreeable persons, we usually limit the discussion
to the areas of mutual interest and seldom explore all details of a matter in an
unbiased manner.
Effective interviewing is a specialized skill that must be learned by specialized
training and experience. Although this course can not provide experience, it will
introduce you to some basic training concepts in the proper way to conduct an
interview. At the conclusion of this course, the student will be familiar with:
1. The basics of the communications process.
2. The obstacles to efficient listening and the process of "active listening".
3. How to prepare for an interview and the physical and psychological conditions
that enhance results.
4. How to use empathy statements to cement rapport and establishing a climate for
confessions.
5. Techniques to detect deception and guilt on the part of the interviewee by his
verbal and non-verbal behavior.
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6. The benefits of developing a personality profile of your target before conducting
the interview.
Since this is a one hour class, it is only an overview. Students are encouraged to
seek additional training from local law enforcement academies in their area or
from the numerous private firms that offer these courses.
Since interviewing involves the development of good effective communication
skills, lets explore some of the basics.
Communications Basics
Human communications is an interdependent event or interaction.
Ever/time people communicate, they are continually offering definitions or images of
themselves and responding to the images or definitions of the other(s) that they
perceive. Appearance, tone of voice, touch, distance, eye contact, and choice of
words all contribute to self image.
The four necessary ingredients to effective communications:
• Sender
• Message
. Receiver
• Feedback
Factors to consider in facilitating good communication:
• Verbal and Nonverbal Behavior
• Perspectives and Representational Systems
• Deception and Neuro-Linguistic Clues
listening
"God, in His great wisdom, gave us two ears and one mouth so that we might hear
twice as much as we say:"
unknown author
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There are three levels of listening:
• Not hearing at all
• Listening but not processing
• Actively Listening
Guides to active listening:
• Find areas of interest ( common ground).
• Evaluate content and not delivery.
• Hold your fire. Don't interrupt. Let people finish.
• Listen for ideas and not just facl.
• Don't be a paper and penal listener.
• Work at listening. Give the speaker your complete attention.
• Give feedback (a smile, a nod or encouraging word or two).
• Resist distraction. Use eye contact but not a penetrative stare.
• Keep you mind open (be aware of your "psychological deaf spots".
• Ask relevant questions to keep control and stay on track.
Barriers to active listening.
• Prior expectations.
• Listening only for the facts.
• Daydreaming or losing interest
• The desire to interrupt
Verbal/Nonverbal Behavior
It is important that the investigator "actively listen" to both the verbal and
nonverbal communication process throughout the interview. The investigator must
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read clusfers of behavior, do not rely on a single observation. When analyzing
behaviors, you must first determine what the "normal" behaviors are for the
interviewee. In establishing this "norm" keep in mind the context of the environment
and the intensity of the setting. Look for changes/variations in this "norm." Be aware of
cultural differences. Evaluate for timing (when the behaviors occur) and consistency
(how often the behaviors occur); to be reliable indicators of truth or deception,
behavioral changes should occur immediately in response to a question or
simultaneously with the interviewee's response. There are no absolutes. Remember,
you are "seeing" the stress response. The interviewee may indeed be deceptive; or,
he/she may be truthful, but experiencing a negative emotion such as fear, anxiety,
anger, or mistrust. We, as investigators, must persist until we reach our goal—"the
objective truth."
Verbal Behavior Symptoms
Verbal behavior is more controlled than nonverbal. We think before we talk. The
verbal content must be put in perspective by the observations of. nonverbal
behavior. Most of us are not aware of our nonverbal behavior. This means that
nonverbal behavior can often be more indicative of the truth.
Some General Observations
a. Deceptive suspects tend to deny their crime specifically while the truthful suspect
will deny the crime in general.
• '7 didnt take that $500.00..." (specific)
• '1 didn't take anything." (general)
b. Deceptive suspects tend to avoid realistic or harsh language while the truthful do
not. (Guilty people avoid the use of terms like rape, arson, steal, while truthful persons
do not.)
c. Truthful persons generally answer specific inquires with direct and spontaneous
answers. The answers are "on time" with no behavioral pause.
d. Deceptive suspects may fail to answer or delay answers. They may ask you to
repeat the question. This allows them time to think of an answer. They may also
give '^non-answers".
e. Deceptive suspects may have a memory failure or have too good a
memory. For example, "I don't know...," or "I can't remember...," or the answer will
be very exact as if it were rehearsed.
f. Deceptive suspects may evade answering by talking off the subject.
-*c jiuf-hL ^ ^ ^
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g. Deceptive suspects tend to qualify their answers more than truthful persons.
For example, you will hear "...as.far as I remember" or "to the best of my knowledge..."
h. Deceptive suspects may support their answers with religion or oaths. For example.
"I swear to God...,"; "Honest...," or "As God is my witness..." The truthful person rarely
employ these.
i. Deceptive suspects tend to be overly polite and it is more difficult to arouse their'
anger. The truthful person will be quick to anger and their denial will grow stronger.
j. Deceptive suspects may pretend to be indignanl or anger initially but will quit as
the interrogation continues.
Nonverbal Behavior Symptoms
Facial Expressions
Facial expression help identify the emotional state of the interviewee. No facial
expression indicates deception.
• Fear—more indicative of guilt.
• Anger (i.e.: cold stare)—more indicative of innocence.
• Defiance (coupled with crossed arms and/or legs) may indicate guilt.
• Acceptance (sad expression, eyes dropped)—typical expression of guilt.
• Pleasure (cocky, challenging)—typical expression of guilt. Exceptions may be
juveniles.
Face Color Changes
• Blanching (fear)—more indicative of guilt.
• Blushing—more indicative of embarrassment than guilt.
Eve Contact
There is an old saying, 'The eye is the window to the soul." Ninety percent (90%) of
facial information comes from "eye expressions." Normal eye contact is maintained
approximately 30 - 60% of the time between two people conversing.
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Interviewers have greater freedom in maintaining or breaking eye contact than
interviewees.
Too long a gaze by an interviewee may be a challenge; a glance may indicate
some interest in something said.
Truthful subjects look at you longer in your interview than deception, iruinrui eyes
are:
• direct but not overly so.
• open with a good portion of the whites showing.
• attentive and look at you.
Deceptive interviewees tend to avert their gaze (action generated by guilt?).
Deceptive eyes:
• avoid direct eye contact.
• range from evasive to the cold stare.
• may appear tired and have a glassy look.
Body Movements
a. Shifting of the torso shows internal conflict when the movement is consistently in
time with the question.
b. Deceptive people will unconsciously retreat from a threatening situation. You may
see the person move the chair away from the investigator. The deceptive person
may lean back away from the investigator, toward the door or window as if looking
for an escape route.
c. Sometimes people, truthful or deceptive, will stand and attempt to leave the room.
This can be minimized by the proper positioning of the chairs and of the
interviewers.
Body Postures for the Truthful
a. Sit upright and appear comfortable.
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b. Frontally aligned—facing you.
c. Lean forward with interest.
d. More relaxed and casual with some nervousness.
e. Make smooth changes in posture1 with no pattern to the changes.
Body Postures for the Deceptive
a. Sit slouched in chair—prevents you from getting close.
b. Unnaturally rigid.
c. Lack frontal alignment.
d. Tend to retreat behind physical barriers.
e. Erratic changes in posture—they can't sit still.
f. Exhibit a closed posture—elbows close to their sides; hands folded on their laps;
legs crossed; ankles crossed; etc.
g. Sometimes exhibit the "runner's" position—one foot back as if they are runners at a
track.
h. May exhibit the head and body slump—this is a defeated posture; may indicate
suspect is close to confessing.
Symbolic Gestures
a. Sincerity—open arms, palms up.
b. Disbelief—hands to chest, "who me?"
c. Denials—head shaking.
d. Accusation—pointing of the finger (usually exhibited by innocent person).
e. Threats—pounding, slamming of fist (usually exhibited by innocent person).
f. Helplessness—the hands to the ceiling, "please believe me," more commonly seen
in guilty people.
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g. Disgust—turn the head away and sign (more commonly seen in guilty people).
h. Agreement—nodding of the head (if accompanied by a drop in eye contact, it
may indicate an admission).
Supportive and Protective Gestures
a. Head or chin in hand—with head cocked, shows lack of interest; with head
straight, shows interest.
b. Crossing of arms, legs, ankles—closed posture.
c. Hiding of mouth or eyes—unconscious gesture to prevent you from discovering a
lie.
d. Hiding of hands or feet—more frequently seen in women, closed posture.
Grooming Gestures
The body needs stress and tension relievers. Grooming gestures keep the hands
busy and may allow the subject a delay in answering questions. They usually occur
while subject is lying and are inappropriate for the situation.
a. Rubbing and wringing of the hands—nervous frustration.
b. Scratching, stroking, picking, and pinching—unconscious actions to relieve tension.
c. Pulling of nose, earlobes, hair, and clothing—nervousness.
d. Licking of lips and swallowing—dry mouth; physiologically indicative of stress, may
be due to varying degrees of deception. (It may also be caused by certain
medications.)
e. Clearing of the throat, coughing—delay tactic to give the suspect time to answer.
f. Sighs and yawns—breathing becomes difficult under stress (from lying?),
sometimes necessitating a sigh or yawn to replenish oxygen.
g. Chewing the lip, nails, gum—nervousness.
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h. Wiping sweat—excessive perspiration, trying to hid it.
i. Shuffling, tapping, and swinging the feel—a psychological desire to leave,
j. Probing body orifices (i.e.: nose, ear, etc.)—tension reliever.
k. Crying (real or contrived)—tension reliever and/or delay tactic.
I. Smoking—tension reliever. Do not allow smoking,
m. Cosmetic needs:
• Adjusting clothing—usually after a question, tension reliever.
• Dusting, lint picking, thread pulling —tension reliever.
• Nail inspection—focus eye contact elsewhere.
Perspiration
Look for excessive perspiration; forehead, palms of hands, underarm, etc.
Physiological response to stress (deception?).
Digestive Disturbances
Physiological stress responses (growling stomach, burping, etc.).
Limitations and Exceptions
The Intelligence of the Interviewee—the higher the level of intelligence, the more
reliable his/her behavioral symptoms are as an indicator of guilt or innocence. Low
intelligence individuals may not understand the questions or the potential ramifications
of being "caught." The same corollary holds true for the level of maturity and social
responsibility. Higher equals more reliable.
Emotional Stability of the Interviewee—you cannot rely on behavioral symptoms
as an indication of guilt or innocence if the interviewee has known serious emotional
or psychological problems.
Cultural Variations—know the cultures that you are dealing with. For example,
oriental cultures do not feel it is polite to maintain eye contact with persons in
authority. This does not indicate guilt; it is merely a "norm" of their culture.
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Children and Juveniles—you must be cautious in interpreting the behavior
symptoms of children and juveniles. They may not have a developed sense of social
responsibility and lack fear of the consequences of their crime.
Drugs and Alcohol—the use of drugs or alcohol will modify behavior. Conduct your
interviews when the interviewee is free from their influence.
NOTE: Veibal/Nonveibal information obtained from: Buckley. Joseph P. III. and PhiBp A. Mullenix. "Ihe Use of Behavior
Symptoms in the Search for Ihe Truth; A Tool for Ihe Prosecutor." The Prosecutor Spring 1985:41-44.
Representational System or Maps
This is the way the human mind leams about the outside world. We learn
everything though experiences (Even training is an experience.). Everything that
we experience, we do through perceptional channels. These channels are the
only way that information can be received by the brain. Just like a computer
program that receives and sends information, the brain also responds through
these channels.
It is important that, as interviewers, we realize this because it is easier to obtain
information if we can find the right "computer program" that allows access to that
information.
The three primary systems or maps are:
• Visual "You don't see things the way I do."
• Auditor/ "Don't you hear what I'm saying?"
• Kinesthetic (feeling) "I had a gut feeling something was wrong."
These "maps" can be used during communication to manipulate. To do this you
want to identify what channel the individual is in and then go into that channel
with them and then take the individual from that channel to whatever channel
you desire to put them in. Eventually you want to move them into the Kinesthetic
channel. This is the most primitive channel and is the one where decisions are
made. The feeling channel is the only one in which you will get a confession.
When identifying an individuals primary representational system you must listen and
watch over a period of time in order to establish a "norm". It is possible for a person
to process and response using more than one map. Once a determination has
been made as to the individual's predominant representational system, this
information can be used in conjunction with verbal and non-verbal expressions to
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monitor deception. This process is known as Neuro-Unguistic Programming and
involves observation of eye accessing cues.
Representational Systems Predicates
Visual
Auditory
Kinesthetic
Appear
Audible
Bounce
Clear
Babble
Caress
Cockeyed
Boisterous
Catch
Colors
Buzz
Clutch
Conspicuous
Discord
Cold
Disappear
Dissonant
Feel
Enlighten
Droning
:irm
Farsighted
Drumming
:umble
Features
Earshot
Gfasp
Focus
Echo
Grope
Foresee
Grumble
Handle
Glance
Harmony
Hard
Hindsight
Hear
Hold
Horizon
Hiss
Hustle
Illusion
listen
Impressed
Illustrate
Loud
Kiss
Image
Muffled
Lukewarm
Inspect
Mumble
Nudge
Keen
Murmuring
Play
Look
Noisy
Poke
Neat
Pronounced
Press
Observe
Prattle
Sensitive
Overview
Quiet
Sensuous
Perspective
Resound
Soft
Picture
Ringing
Strike
Resemble
Roar
Stroke
Scan
Rumbling
Tender
Scope
Screech
Tension
See
Shriek
Ticlde
Show
Silence
Tough
Sketchy
Sound
Vibes
Tint
Squawk
Beside yourself
Vague
Squeal
Break down
Vision
Stammer
Cut-up
Watch
Thundering
Dig in
Blind to
Whispering
Get in touch
Green with envy
Clear as a bell
Have a feel for
In the clear
Double talk
Hit me like a ton of bricks
In the dark
Give a hoot
Iron out
Point out
Hear from
Keep your shirt on
Red tape
Hem and haw
Rack your brain
Seeing red
In tune with
Raising hell
The whole picture
Keep your ears open
Ran up against
Clarity
Lend an ear
Rub me the wrong way
Unsightly
Rings a bell
Run through
Star studded
Sound Judgment
Stumble upon
Keep your eyes open
Sound off
Toss around
Talk of the town
Back away
Unheard of
Gabby
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Visual
/©®\
Auditory
Kinesthetic
Construction Recall
Neuro-Linguistic Programming
If you watch the first movement of the individual's eyes as they are thinking about
their answer to the question that was just asked of them, we can confirm whether
they are visual, auditory or kinesthetic by the direction of the eye movement.
As with listening for clue words when identifying an individual's primary map, the
eye accessing clues must be monitored over a period of time in order to establish a
"norm". By watching the eye movement the interviewer may determine if the
answer that is being formulated is reflection (remembering) or construction (lying).
Construction signals may also be viewed during times when the individual is editing
their answer such as a politician at a press conference.
Visual accessing clues - A person who relates to sight stimulus, as they are reflecting,
their eyes move upward.
Auditory accessing clues - A person who relates to sound stimulus, as they are
reflecting, their eyes move straight across.
Kinesthetic access clues - A person who relates to feelings, moods and emotions, as
they reflect, their eyes move down and to the right, 45 degrees from center.
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This process is effected by whether the individual's brain is right hemisphere or left
hemisphere dominant. That is why observation to establish a "norm" is extremely
important.
Note: Establishing the norm is done during the "rapport building"stage of the interview
when the individual does not feel threatened.
Since mastering this process takes much practice, you can train your senses by:
• Watching the eye movements of people you engage in general conversation on a
daily basis.
• Intentionally ask question that require people to recall information.
• Tune in television interview shows and watch the eye response to the questions
asked.
• Turn off the television sound and focus on only eye response to questions.
• As you get proficient, watch the interplay between the eyes and facial expression.
Assumptions of Effective Communication
a. Communication is the outcome (response) that is achieved.
b. A person can't fail to respond - evervthina we do, whether good or bad, is
manipulative.
c. An individual's "reality" is based on their perceptions or internal map
(representational System). The internal map is the way we each process the in
coming stimulus.
d. People make the best choice for themselves at any given time.
e. The person with the most flexibility will be the most controlling element in the
process.
f. There are no mistakes, only outcomes.
g. There are no limitations, only opportunities.
Now let's apply these communication concepts to
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' The Interview and Interrogation Process
Definitions
Interviewing - is simply a structured conversation with a purpose. The process by
which information is sought, obtained and evaluated from persons having
knowledge of events or circumstances relating to an investigation. An interview is
more formal, structured an more goal oriented than a normal conversation.
Interrogation - is the art and mechanics of questioning for the purpose of exploring
/ resolving issues. The process by which acquired information is matched to a
particular suspect for the purpose of gaining an admission or confession. An
interrogation occurs whenever a law enforcement officer engages in any conduct
they know is likely to draw an incriminating response from a suspect. Interrogations
are conducted only by law enforcement.
Admission - is a statement or acknowledgment of fact or circumstance. These are
just as important as a confession as it provides the investigator the opportunity to
prove or disprove the witness or suspect's accounting of events. Many cases are
solved by disproving admissions. Confession - is an admission of guilt. A confession
should be substantiated by further inquiries as to the "how's and why's" the suspect
committed the violation. So just don't stop with the "I did it."
Preparation
Background & Research
The time invested in interview preparation is wisely spent. Whenever possible,
background information should be gathered so that you know something about
the person, the company and their history.
Review the files, including:
• old inspection reports,
• NOV's, orders, etc.,
• check with other regulatory personnel, both inside and outside your agency,
that have conducted past inspections
• Previous statements or correspondence
• Maps, photos, etc.
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Can you think of any other sources?
If you're in the field and there is no opportunity to review files, research as best you
can by:
• Call back to the office to have someone review quickly for you
• Ask others about the person you intend to interview such as neighboring
businesses, the person who complained or employees of the person to be
interviewed.
• Ask the person you are interviewing during the "friendly rapport building" stage
of the interview.
Question Outline
In addition, prepare a list of highlights or topic areas that you wish to cover.
Remember this is a planned process with a goal. It is often better just to have
highlights because written questions cause the interview to be unnatural and
choppy.
Psychological Factors
There are a number of psychological influences that have a bearing on
interviewing as well as on the reliability of the information obtained. The
knowledge of the presence or nature of these factors enables us to better
evaluate the information we gather during the interview. Some of the more
important factors are:
• Emotions - primarily anger, fear and neutral excitement.
• Perceptions - how information is received through the senses.
• Memory - reflection - Some people's memory is better that others.
• Personal factors - inclinations, occupation, more aware emotional.
• Suggestion - open to suggestion such as with leading questions.
• Bias - intentional or unintentional prejudices or distortions.
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• Deception - The average person deceives 7-14 times a day.
Physical Influences
Location
It is always better to conduct interviews in an area where interruptions are keptto a
minimum. This enables the interview to flow more easily. Try to find a quiet place.
A noisy work shop or near heavy equipment that is running is no place to conduct
an interview. It will be hard to hear questions as well as the answers.
Conduct interviews in person, if possible, rather than over a telephone. There are
two main reasons for this:
• It is harder for an individual to lie in person than over a phone.
• The interviewer can evaluate the verbal &. nonverbal behavior when the
interview is done face to face.
Time
Try to make sure the individual being interviewed has set aside a sufficient time for
you, so that you will not be interrupted. Continued interruptions cause you to lose
track of questions and answers.
In cases where time is limited, ask the important questions during the time allowed
and then ask the person when would be a convenient time to continue or finish
the interview. Don't let them control when the interview is over. Remember in
these cases, your first interview should remain friendly so that it is easier to schedule
the follow up.
Since the attentiveness of the individual being interviewed is essential, try to avoid
bad times to interview such as:
• Just prior to lunch
• While other problems exist: either in the work place or at home
• Friday afternoon
• Just prior to holidays or vacation
Can you think of other examples of bad timing?
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Other Physical Influences
There are other physical factors that effect how an individual reacts. In order to
properly evaluate the information that you gather during the interview, vou should
consider the following factors:
• Smoking - decreases both mental and physical efficiency. It should not take
place during an interview, but if it does, take note of the change in smoking habits
as the interview progresses.
• Drugs - Whenever possible, an interview of a person under the influence of
drugs should be delayed.
• Alcohol - Caution should be used because intoxicated individuals have a
reduced ability to lie, their senses of judgment and reason have also been
impaired. May not make a good witness.
• Coffee & Tea (caffeine) - stimulates the body's mental and physical activities.
Moderate consumption of caffeine can be of assistance during certain situations.
• Food & Drink - Distractions from the discomforts of hunger and thirst interfere
with interviews. The reverse can also be true in cases of 1oo much food or drink (e.i.
The need to use a restroom.)
• Age - Should be considered relating to the reliability of memory.
Interview Environment
Try to eliminate physical barriers in the interview environment. Objects such as
desks, tables, etc. that are between the interviewer and the individual help to create
and maintain mental or control barriers. Move around objects and sit face to face. This
means you may have to take control and move your chair, if possible.
Proxemics
The study of body space or established territories is known as proxemics.
Behaviorists have shown that while tower mammals learn territoriality, humans beings
leam appropriate social distances as a result of interaction with their culture. Social
distances may vary from person to person depending on cultural differences and
gender. Dr. Edward T. Hall categorized 'body space" as follows:
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• Public Distance - conferences, lectures, etc. Usually 12 - 25 feet.
• Formal Social Distance - business transactions. Usually A - 7 feet
• Personal/Informal Distance - conversations. Usually 11/2-3 feet.
• Intimate Distance - Body temperature can be sensed. 0 - 11 /2 feet
Single Interviewer vs. Two Interviewers
If at all possible, have two (2) people present during an interview. More
'importantly, "two heads are better than one." The two interviewer process allows for
the second interviewer to cover an area you may have missed. This also gives you the
benefit of having another person confirm what was said during the interview should
the individual later deny what was discussed.
If the two interviewer system is used, it is important that both interviewers know and
stay within their roles. This is harder than is sounds.
Two interviewer Interview
• Primary and Secondary interviewer decided prior to interview.
• The Primary "takes charge" - purpose, rapport, etc.
• The Secondary takes notes and observes nonverbal behavior.
• Interviewers must refrain from interrupting each other.
• Use proxemics to your advantage. Secondary should position themselves-so
that the individual is looking at and directing answers to the Primary.
• When cued or asked, the Secondary takes over from Primary and asks the
unasked questions and then does summary.
One interviewer interview
• The most difficult type.
• You must be totally prepared.
• Best not to take notes the first time through to view nonverbal behavior.
• Don't write while they are talking; look at them.
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• Use words familiar to the interviewee.
• Make your volume, tone, and speed appropriate to the situation.
The Interview
The more interviews you conduct, the easier these become. Really!
The five Steps of a Law Enforcement interview:
• Introduction / Identification
a. interviewer(s)
b. Individual interviewed
c. Purpose of interview
• Rapport building
• Topic Questions - general to specific
• Summary / Review
• Closing
Introduction
Simply the stage when all parlies get to meet each other and the interviewee
leams why you are there. This can also be considered part of rapport building
because each party is establishing first impressions. Remember that first impressions
can be lasting ones.
Rapport Building
There is little chance of a successful interview unless the subject can be induced to
talk. Most people resist giving information to a stranger. In order to over come this
reluctance, a good interviewer will take the time to establish rapport. Rapport is a
relationship; especially one of sincerity and mutual trust.
Some recommended procedures for establishing rapport are:
• Properly identify yourself and state your purpose at the beginning of the
interview. This clears up confusion.
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• Begin the discussion by commenting on a topic of apparent interest to the
subject.
• Establish confidence and trust. Talk for a period about ever/day topics. Just
appear to have a "friendly visit."
• Keep the conversation informal and easy. Stay away from controversial topics.
• Display pleasant emotional responses and avoid unpleasant expressions.
• Urge the subject but never try to huiry them.
• Don't ask questions that lead the subject to believe you are suspicious of them,
either because of the question's composition or your method of asking. Watch your
verbal & nonverbal signs.
• Be interested and sympathetic to the subjects problems.
• Don't move to the next stage of the interview process until the subject appears
friendly and cooperative.
• Try to rebuild rapport at any time during the questioning when the subject
appears to become reserved or hostile.
During the interview, we want to determine and/or confirm background
information about the person being interviewed, as well as what they may know. This
information will allow you and others the ability to evaluate the significance of the
witness. The following information can be covered during the rapport building stage.
Personal Information
• Proper spelling of person's name - Don't Guess
• Home address and phone number - if phone number is unlisted, be sure to
note that on your report
• Work address and phone number
• Date of birth
• Social Security number
You should get in the habit of asking for this information during every interview you
. conduct. This information is critical if a witness can not be located at a later date. In
addition, this information can also be very useful during investigation of any future
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(maybe years down the road) violations to confirm who it was that you spoke with.
Suggestion: Ask in a nice, but authoritative way, you're more likely to get the
information you want!
Education Background
• Formal education - hiah school, college, etc.
• Special Training
• Licenses, certificates held - numbers and expiration dates
Work History
• Go back as far as you need to
• Get titles held and responsibilities that went along with them
• Account for gaps in time
Relationship to Investigation
• Neighbor
• Worker at site
• Emergency Personnel
• Ex-employee
• Victim, etc.
This allows you, and the reader of your report, to better understand what this
individual should or should not know and any prejudices that individual might bring to
the investigation.
Topic Questioning
• Have a plan.
• Stay on subject matter - try not to deviate from the areas of concern. Try to
keep interview in order; going systematically from one area to the next. Make
questions short and confined to one topic. Make questions clear (use the same
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22
terminology) and understood. Do not ask questions that are likely to get "yes"/"no"
answers, unless that's the type of answer wanted.
• A good complete interview will involve:
WHO
WHAT Complete answers to these "6"
WHEN questions will result in any issue
WHERE being satisfactorily explored.
WHY
HOW (Much)
• Separate facts from opinions. Accept and rely on facts. DonY be gullible.
• Be stern if the situation calls for this method. If you know the interviewee is not
being totally truthful, you may want to push harder for the truth. Challenge answers
you know to be wrong or hard to believe.
Characteristics of good questions:
How to compose and ask questions.
In interviewing, the nature of your questions and persuasions will follow your
pattern of thinking. Most questions or assertions are based on assumptions. It is highly
essential that the assumptions are not based on faulty information or deductions.
Fundamental characteristics of good question construction:
• Make questions short and confined to one topic
• Make questions clear and easily understood.
• Avoid the use of "frightening" or judgmental words.
Type of Questions
Close ended or precise questions are important - they tend to bring precise
answers. They help keep the discussion and the pattern of thinking moving toward a
particular goal. Usually, they will extract the desired information quickly and with
minimum effort.
A precise question is one that calls for a specific or an exact answer. It limits the
requested answer to a definite item of information.
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23
Soliciting "yes" or "no" answers usually restricts the information that the subject may
be inclined to give and usually is inadequate to completely answer the inquiry.
Questions requiring a "yes" or "no" answer, frequently are leading or verifying
information and even desirable during cross-examination, but should not be used
when seeking new information.
Open ended or extended answer questions are generally framed, tn require a
narrative answer. This is the best type of question when gathering information both
verbal and nonverbal.
Leading or suggestive questions tend to influence the answers given by a subject
and should be avoided while asking for original information. Leading or suggestive
questions are those which:
• Suggest the desired answer; or
• Assume something to be a fact which has not been established as a fact; or
• Embody a fact and require a simple negative or affirmative answer
a. Example bad leading questions:
"Mr. Baldhead, I've had several employees tell me vou gave the orders to
dump waste down the drain, instead of getting rid of it properly. Isn't that correct?"
This example above is "bad" for three reasons:
• Gives Mr. Baldhead too much information at first
• Asks for a "yes" or "no" answer
• Puts the interviewee in a defensive posture
b. A better question style might be:
"Mr. Baldhead, could you describe to me the specific instructions you gave
your employees with regard to handling the waste streams within the plant?"
This style is not as combative or judgmental, an open-ended answer is required,
and allows him to "sink his own ship" with a wrong answer.
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24
Suggestive or leading questions, however, do have value in testing or breaking
down previous assertions, in getting a particular answer, or in refreshing a subject's
memory.
Questions to avoid.
Do not use double or triple negative questions - they are confusing and often
suggest an answer opposite of the correct answer. They should never be used.
a. Examples are as follows:
• "Didn't he have no dinner?"
• "He couldn't hardly stand up."
• "He never said nothing to nobody."
• "Couldn't you see him neither?"
• "He didn't do it, I don't believe."
Estimates of quantity
You will rarely get the right answer the first time you ask for the number or quantity
of anything.
To determine a more specific time or quantity of space and material, the following
types of question sequences may be of value:
Change of Reference Point - When description of quantities are complicated or
hard to understand, they frequently can be simplified by changing the reference
point. Examples:
a. a witness describes the location of an illegal dump site as 4 miles east, 1
mile south, and 2 miles southeast of town. It's difficult to comprehend where this
location is exactly. If guided, the witness may be able to simplify the description of
the location to a "1/2 mile west of the Long Lake Town Hall."
b. it does not mean much to the average person for a witness to talk about
seven "containers" of waste. If the witness will convert the amount to gallons,
pounds or drums, it gives a clearer picture of the quantity. Comparison - When
descriptions of quantities are vague or indefinite, they can often be made more
specific by comparing them with similar items of known quantity.
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25
a. Examples:
"Was he taller than I am?"
"Which one was the largest?"
"Was there more than a 55 gallon drum dumped?"
In some cases where quantities are persistently given in generalities, it is productive
to bracket the probable amount by suggestive quantities by enlarging or subdividing
the suggested quantity to get the witness to be more specific on an amount.
b. Examples:
Question: How far away was Smith?
Answer. He was a long way down the road.
Question: Would you say it was closer to 1/4 or 1/2 mile'
Ans:wer. It was closer to 1 /4 mile.
Question: Then, would it be a little more than 1 /4 mile?
Answer: That would be about right.
Summary or Review
During this stage of the interview the interviewer(s) go over any notes and confirm
with the individual that the interviewer(s) understand and have the correct
information.
This is an important stage because the interviewee may change some of the
answers upon reflection. If this happens it may put you back into the Topic Question
Stage and you come back to the summary step later.
Closing
Just like any good sales pitch, don't overlook the close. Ins is the point where you
possibly answer some of the interviewee's concerns and leave the door open should
you have further questions. You want to trv to leave on friendly terms in case you
have to return for more information.
The Good Interviewer
The most Important Qualities of a Good Interviewer are:
• Honesty and integrity with the ability to impress upon all interviewees that you
seeks only the TRUTH.
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26
• The ability to build rapport quickly under many diverse conditions.
• The ability to listen to interviewee and evaluate responses.
• The ability to maintain self-control, be flexible during interviews and not
become emotionally involved in the investigation.
To be a Good Interviewer you must utilize a great variety of your personality traits.
You must be able to adjust your disposition to harmonize with the many traits and
moods of the interviewee.
• Do not prejudge a suspect or witness.
• Subdue all prejudices.
• Keep an open mind, receptive to all information regardless of its nature.
• Try to evaluate each development on its own merit.
• Deliberate lies or false promises cannot be justified.
• Refrain from trying to impress the interviewee, unless such action is specifically
used as an interviewing technique.
A poor interviewer may unintentionally conduct themselves and ask questions in a
manner designed to impress the subject with his importance or capabilities. This
may cause the interviewer to exhibit sarcasm, anger, disgust, and other undesirable
acts that diminish his stature in the eyes of the subject. The interviewer(s) should
always suppress their own emotions and apply all their faculties toward the
immediate official objective.
Problem Areas in Interviewing
Terms and Expressions
Be sure that you, the interviewer, and the person being interviewed completely
understand the words and manner of speech. Trade terms, local expressions,
uncommon words, speech accents, and imprecise sentence construction may result
in a misunderstanding. Try to talk at the level and use the speech mannerisms of the
subject to the extent necessary for him to understand. If there appears any doubt
about what is meant, if should be immediately explained and clarified so that each of
you has the same understanding.
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27
Use of an interpreter in questioning
When using an interpreter in interviewing or interrogating, it is important that they
be fluent in the exact dialect spoken by the subject. Merely learning a foreign
language in school is usually not enough. It is also unsatisfactory to use a person who
has a poor command of English.
The interpreter must know your language well enough to understand exactly what
you wish to convey. They must have a sufficient vocabulary and knowledge of
sentence structure in both languages to make an accurate translation. They must be
able to pass on to the subject the information, as well as reflect the attitude and
manner of expression you wish to convey. Furthermore, they must be able to
recognize any idiosyncrasies in the subject's answers and bring them to your attention,
along with the reply information.
A male interpreter is generally preferable as the status of women is considered
inferior by men in many foreign countries and a female interpreter may be resented.
If the interpreter is a foreigner, be sure he is not from the same area as the subject,
to avoid any personal element, such as friendship, prejudices, or common interests.
The subject should generally be seated in a chair opposite you, with the interpreter
between, but slightly to one side, so that by merely turning his head, he directly faces
either you or the subject as the conversation switches back and forth.
It is desirable to orient the interpreter prior to the questioning as follows:
• He should merely act as a vehicle for accurately interpreting and -passing the
information back and forth between you and the subject.
• He should imitate your voice inflection and gestures as much as possible.
• There should be no conversation between the interpreter and the subject,
other than what you tell him to say.
• No matter what the subject says, the interpreter should pass it on to you, rather
than evaluate its worth himself. Including even the most trivial remarks or
exclamations.
• Even if the subject has some knowledge of English, if you have decided to use
an interpreter, you should pass all information through the interpreter to avoid
confusion as to whom 1he subject should answer.
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28
You must completely control the interpreter and, through him, control the subject.
Usually, you are restricted to use of the more routing methods of interviewing or
interrogating because of the limitations of the interpreter.
At the conclusion of the questioning, after the subject has left the room, it is often
worthwhile to ask the interpreter how he evaluates the subject. In spite of the
limitations and difficulties involved in using an interpreter, you can often conduct very
successful interviews and interrogations if they are well planned and controlled.
Hostile Witnesses
Hostile witnesses may have hidden fears that perpetuate their hostility. This
undesirable motivation may exist for many reason, but the following appear to be the
most common:
• They are reluctant to get involved.
• They are reluctant to involve others.
• They are not impressed with the importance of cooperation.
• They are unfriendly toward the interviewer of their agency.
• They have been threatened.
• They dislike the inconvenience of appearing in court.
• They may be co-conspirators or involved in other undetected crime.
The procedure for handling hostile witnesses is somewhat contrary to that used
then handling cooperative witnesses. They never volunteer information of value and
frequently become uncommunicative, unless property stimulated to talk.
Begin the questioning period discussing and asking for unobjectionable
background information. Do not ask questions directly related to matters under
investigation, until it appears the subject will respond to such questions. Start off with
easy questions that may be readily answered. Ask for cooperation. Use leading
questions that are positive in nature and convey the impression that there is no doubt
of the witness' desire to cooperate; capture and retain control of subject's "submission,"
such as:
"You do want the truth to be known, don't you?"
"If you have any knowledge, I know you'd be happy to help us get justice
in this matter?"
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29
'Then, I'm sure you have no objection to discussing this matter with me, do you?"
Persuade the reluctant witness, they would expect others to help if they were the
victim or in trouble so, they should assist in this case. Motivate them to give
information. Ask what they would conclude if a person refused to talk about a matter.
Imply other people may conclude that the reluctant witness might be implicated in
the matter. Have a friend, employer, relative, or an attorney request him to
cooperate.
Friendly Witness
You should keep in mind that potentially friendly and cooperative witnesses still
may not give truthful information because:
• They have faulty perception:
• They do not rememuer.
• They do not completely understand what is wanted.
• They are not aware that they possess worthwhile information.
• They are reluctant to get involved.
• They are reluctant to involve others.
• They are not impressed with the importance of cooperation.
• They do not feel friendly toward the interviewer or their agency.
• They have been threatened or are fearful.
• They dislike possible inconvenience or appearing in court.
• The interview time or place may interfere with their "busy schedule".
• They are unknowingly prejudiced.
• Their logic or cbnclusions are faulty.
• They mistake inferences for facts-
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30
Confidential Informants
For the most part, the criminal courts have recognized the need for law
enforcement to have confidential informants. There is very specific criteria required by
the court when a C.I. is used.
Criminal courtsin many states don't recognize the ability of regulator/ agencies to
have "confidential informantsIt is important that you determine the standing of the
courts in your state before you promise a complainanl/witness that their name will be
kept confidential.
If the courts in your state recognize the right of the regulator to have "C.l.'s",
before you offer this protection to a witness, make sure you, personally, are prepared
to protecl this witness at all costs. Some law enforcement officers have spent time in
jail for contempt rather than reveal the name of a confidential source. If your not
prepared to do this, then don't offer the protection that "confidantial informant"
provides.
Most people that say they don't want their name used are looking for some
assurance that the interviewer won't freely spread their name around. Try to stay
away from the word "confidentiaf. These people are usually satisfied if you tell them:
'The information will be used for official purposes only."
Specific Environmental Question Topics
Information and areas of concern that should be obtained from cooperative
witnesses who report environmental violations. It is extremely important to obtain as
much detailed information as possible from those individuals wanting to remain
anonymous because you'll only get one chance.
I. Incident Details
What Kind of Violation (spill, dumping, air, etc.) Chemicals Involved Accidental
Violation vs. Intentional Violation
When Did It Occur (how long ago/day or night)
Where Did It Occur (specific locations, addresses, etc.)
Length of Time Exposed to Environment
Number of Drums Dumped, Buried, Stored, etc.
Eye Witnesses
Complainant's Personal Knowledge of Violation/Involvement
Proximity to Residential Areas
Proximity to Waterways
Who Else Reported To
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31
II. Background and Education:
High School
College
Trade School
Special Schools
Degrees
Advance Programs
O.J.T.
Courses:
Science
Chemistry
Engineering
Health
Environmental
Business
Personal History (DOB, SSN, DLN, etc.)
III. Employment History:
Environmental Knowledge
Chemical Knowledge
Knowledge of Facility Process
Position(s) Held
Training Received and/or Given
IV. Employment History at Suspect Facility
Jobs Performed/Positions Held
Training Received
Salary Range/Bonuses (Optional)
V. Company Organizational Structure:
Corporate Board
President/C.E.O.
Plant Manager
Supervisor(s)
Office and Plant Layout
Number of Employees
Number of Facility Locations/Subsidiaries
VI. Facility Operations:
Types of Chemicals Used (MSDS Sheets)
Process -Storage of Raw Materials (Products)
How Wastes Are Generated
Types of Wastes
Who Handles Wastes
Waste Disposal/Processing
Localion and Types of Records Generated
-------
32
Process Records-Strip Charts, etc.
VII. Facility Procurement Department - Process / Disposal:
Separate Section
Location
Types of Records
Location of Records
Employees
Chemical Supplies
Waste Disposal Companies Used
VIII. Environmental Structure/Safety Offices:
Employees
Structure
Location, of Offices
Records and Location
Equipment Provided
Training Given
Citizen Complaints
Corporate Policies
Handling Procedures
Spills
Testing Performed
Laboratory on-site or off-site
Inspections by Company
Inspections by Government
Inquiries/Workman's Comp Claims
Accidents
Law Suits
OSHA, SPCC
IX. Fellow employees:
Involved in Waste Generation/Production
Involved in Handling -Involved in Disposal
Knowledge of Illegal Activities
Employees willing to cooperate
Employees not willing to cooperate
Union Representatives, etc.
X. Former Employees:
Quit
Rred
Inquiries/Workman's Comp Claims.
Past or present suits against company
-------
33
XI. Reasons for Reporting:
Personal
Revenge
Disgruntled
Disciplinary Problems
Disciplinary Actions
Complaint(s)
XII. Problems Reporting to Others:
Fellow Employees
Management
Union Representatives
News Media
Special Interest
Family
Other State Regulatory Agency
Other Government Agencies
XIII. Main Objectives:
Obtain the Scientific High Ground
Obtain Samples of Suspected Waste
Development of Probable Cause for.
Samples of Waste
Document Process
Collect Documents
Document Handling
Document Disposal
Document Knowledge
Duration of Suspected Activity
Locations of Violations
Run off
Ground Water Effected
-------
ppfi
- T", -J
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by Elizabeth AgnvalB
-------
In the winter of 1997, Dwayne Crispell went through a
snowstorm to arrive at his job removing asbestos from die
Campbell Plastics facility in Schenectady, N.Y. When he
walked into the warehouse where workers were removing
asbestos, Crispell testified in an October 2000 trial in Syracuse,
N.Y., "it snowed harder inside dian it did outside," from all die
locce asbestos flying around inside the building.
Crispell called the Campbell Plastics work a "rip-and-skip"
job and said many of die workers didn't use respirators or other
protective equipment. They conducted dry removal of asbestos
without using any of the proper procedures and carried out
asbestos in bags that had holes.
On asbestos-removal jobs in peoples homes, Crispell charged
that Jay Thorn, his boss and owner of A+ Environmental Ser-
vices Inc., told workers to pur dark plastic bags over the win-
dows. "The faster you did a job, die better off you were reward-
ed .lor it," Crispell told the prosecutor. Crispell said he quit soon
after because he feared for his health.
Crispell was just one of many witnesses in a series of pros-
ecutions resulting from a recent federal investigation of the
?vbestos-abatement industry. Prosecutors have identified
more than 1,500 buildings where illegal asbestos-removal
activities occurred. Hundreds of workers and potentially
d:ousands of citizens have been exposed to asbestos in schools,
hospitals, homes and workplaces throughout upstate and
central New York.
According to federal prosecutors, die work violated asbestos
laws at every level. Owners of asbestos-abatement companies
and laboratories allegedly orchestrated the illegal removal of
asbestos, falsified results from labs and faked asbestos-abate-
ment training certificates. Several asbestos-training providers
in Albany, N.Y., gave training certificates to companies in
exchange for money or cars. One asbestos-abatement compa-
ny owner illegally owned the very labs that did "independent"
testing of his company's work.
So far, prosecutors have announced convictions of 27 indi-
viduals and six corporations in 33 separate cases relating to crim-
inally violating asbestos laws. The investigation is far from over,
and safety experts say the New York trials may reflect a nation-
wide problem.
"The breadth and scope of these crimes are startling and
illustratfi the basest form of greed," U.S. Attorney Daniel French
says. "Over and over again, these defendants willingly put the
public at risk to line their own pockets. They will now face die
consequences of their horribly irresponsible acts."
Fueled by greed
Prompted by an anonymous tip in 1997, EPA special agents
began to unravel a tangled web of illegal asbestos abatement in
New York.
To remove asbestos properlv, trained workers wearing
cial protective suits and respirators must construct a negative
air system and containment system, wet tin- material situl rctiuivc
it in special bags. When they leave the site, workers decontam-
inate in three stages, including taking a shower. Water Irom the
decontamination showers goes to a filtration system, and all
safety equipment is cleaneJ.
OS HA requires a percentage of removal workers to wear
equipment that monitors the level of asbestos in the air.
Abatement companies send samples to independent labo-
ratories to confirm that asbestos is being completely removed
from buildings, and the labs send technicians for onsite air
monitoring.
Craig Benedict, the assistant U.S. attorney who prosecuted
the New York cases, says workers on many of the illegal job*.
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Websites
.• EPAasbestos bome^qv:vww.epa.govMsbest^ir^xAitrni.
• OSHA asbestos page:'www/dsha-sic.gov/SiTC/asbestOpy-
index.html. •:
• NIOSH: www.cdc.gov/niosti/asbestos.htmf. '.
• The Environmental Information Association: wyyw.eia-usa.org.
• The Asbestos Institute: www.asbestosinstitLrte.ca/main.htnit.
• American Lung Association: www.lungusa.org
Bio
Elizabeth Agnvall is a freelance writer who regularly coniriDuies.
to Safety+Health.
Safety+Heallh/February 2001 37
-------
worked without respirators or other protective equipment,
negative pressure, glove bags, containment or air monitoring.
After the jobs were finished, laboratories certified that the sites
were asbestos-free even when layers of asbestos dust were left in
the building
Benedict says the asbestos contractors charged with involve-
ment in the scam knew the working hours of inspectors and
brought in crews after hours and on weekends to avoid inspec-
tions. On public jobs with independent monitors, they per-
formed jobs correctly.
"That's what makes it all the more criminal in my mind,"
Benedict says. "They know how to follow the law."
Web of deceit
Benedict claims one of the most egregious violators was Jay
Thorn, owner of A+ Environmental Services Inc. Benedict says
that to avoid inspections, Thorn often directed his workers not
to inform EPA and the New York Department of Laboi that
removal w is being done. Thorn then allegedly conducted jobs
in schools, churches, nursing homes, hospitals and private
homes with complete disregard to the regulations governing
asbestos removal.
To avoid detection by audioritics and building owners, Bene-
dict charges that Thorn instructed supervisors to fill out air-
Finding an Honest Contractor
Steve Luse, CEO and president ot the Luse Co., an asbestos-
abatement oro'jp in Chicago, says, "for every contractor doing
it right, there's someone out there doing it wrong." So how can
a building owner or safety and health manager make sure the
contractor is following the law? Luse offers some tips:
• Hire an independent consultant who has no affiliation with
asbestos-abatement companies to run the project. Run a Dun
& Bradstreet check (www.dnb.com) to check on the owners
of both the consultant firm and the abatement company.
• Ask local or state agencies if they rate or recommend contractors.
• Call local or state asbestos-abatement associations to see which
contractors are members. "Most of the contractors that are in
the associations want to do it by the book." Luse says. Those
who don't join are generally those who want to keep a low prof ile.
• Ask for details: Where are the showers going to be? What are
your methods of working — are you going to use glove bags
or contain the entire area? How many negative air machines will
you need? Make sure the plan is followed.
• Beware of contractors who want to work only at night. "Most
of the contractors that do it illegally always want to work at
night, because the regulatory agencies don't come out at
night," Luse notes.
• Ask contractors to install a Plexiglas window so owners can
view the containment area — then make sure to look during
both business hours and odd hours. "If you see guys without
respirators, you know something is very wrong," Luse says.
Asbestos covered pipe in the rafters at the former Campbell
Plastics facility.
monitoring forms as if employees were wearing OSHA-required
air pumps, yet "there were no OSHA personnel on any project
during the entire conspiracy." The supervisors would then fax
the forms to the accredited laboratory, when they should have
sent filters from the devices by express mail. The air tech at the
lab would receive the fax, take a new paper filter, base results
on the new filter and fax results back to Thorn, who would
show clients the approved paperwork.
"Final sample results were falsified at the request o! Mr.
Thorn," Benedict claims. "He had a secret arrangement with
the lab for not doing required work."
In exchange, two separate accredited laboratories gave Thorn
whatever results he requested.
In October 2000, a jury convicted Thorn of conspiracy to
launder money and for the illegal abatement of asbestos from
1995 through 1999 throughout central and upstate New York.
He also was fined $1 million.
Benedict says this type of asbestos abatement had become
so common in the area that honest contractors couldn't get jobs
because they were always underbid. Laboratories found that if
they didn't agree to falsify information, they couldn't stay in
business.
"What's happening that is so dangerous is when you get the
overlap — the abatement companies, air monitoring compa-
nies, laboratories," Benedict notes. "What we have to do is dra-
matically weed out the cheaters so the honest people can get
projects and won't be put out of business."
Covert operations
How could all of this happen under the noses of OSHA, EPA,
the New York Labor Department and other government agen-
cies sworn to protect the public, the environment and work-
ers? Critics and inside sources say a combination of limited
resources for inspectors, poor coordination among govern-
ment groups and political pressure on regulatory agencies to
go easy on small business aided contractors bent on subvert-
38 Safety+Health I February 200)
-------
ing the law.
Asbestos-abatement contractors are required to notify both
the New York Labor Department and EPA of al! but the small-
est jobs. Betsy McCormack, spokesperson for the New York
Labor Department, says the agency has 19 inspectors who con-
duct about 3,000 inspections a year— 70 to 75 percent of all
notifications. Foi the 10,000 notifications each year for New
York and New Jersey, EPA has only three inspectors. Both agen-
cies are stretched thin trying to cover the known sites, and on
many of the illegal jobs, neither agency received notification.
"Regulations are for people who abide by regulations," says
Bob Fitzpatrick, regional asbestos coordinator for EPA's Region
2, which covers New York, New Jersey, Puerto Rico and the
U.S. Virgin Islands. Fitzpatrick says these asbestos-abatement
contractors and labs knew how to get around the laws.
"If somebody is going to do a covert operation, these are
done in basements and sub-basements at midnight. It's not in
plain sight," Fitzpatrick adds.
John Hogan, a local asbestos workers' union leader, says he
became suspicious when asbestos contractors were paying pre-
vailing wages but still underbidding other contractors. He said
the contractors would often bring in vans full of immigrants
who probably knew neither the laws nor the dangers.
"This was embarrassing for the state of New York," Hogan
says. "They were totally left out of the loop."
Dangers off Asbestos
When people inhale odorless, tasteless asbestos fibers, the
fibers lodge in the lungs where the body cannot get rid of them:
The asbestos fibers can permanently scar lung tissue arid cause
cancer.
Asbestosis
A progressive disease caused by scarring of lung tissue from
the inhalation of asbestos fibers. Characterized by shortness of
breath and coughing, it ranges in severity from mild impairment
to severe disability and can be fatal.
Malignant mesothelioma
A rare cancer of the lining of the lung, abdomen or intestines
that may spread to tissue surrounding the lungs or other
organs. Virtually all mesothelioma cases are caused by
asbestos exposure.
Lung cancer
Asbestos and smoking both cause lung cancer, but smoking
combined with occupational exposure to asbestos creates a
much higher risk of developing the disease.
Other cancers
Breathing asbestos fibers may also cause cancer of the esoph-
agus, stomach and intestines.
Source: American Lung Association and NIOSH
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Circle 10 on Reader Card
-------
And what about OSHA, the agency responsible for pro-
tecting workers? Diane Brayden, OSHAs Syracuse director, said
her office generally refers criminal violations to other agencies.
She said OSHA has very limited criminal prosecution power, and
a statute of limitations prohibits the agency from citing a vio-
lation that occurred more than six months in the past.
Brayden did testify in the Thorn trial about one incident,
but says her office had not been involved in the investigation.
Silent, slow killer
Part of the problem lies in the insidious nature of asbestos.
Although the substance is regulated as a hazardous air pollu-
tant and EPA has said there is no known safe exposure level,
diseases caused by asbestos often have an incubation or latency
period of 10 to 40 years.
The dangers of asbestos are frighteningly real. Asbestos expo-
sure causes asbestosis, lung cancer and mesothelioma, an oth-
erwise rare cancer of the chest lining. According to NIOSH,
asbestosis deaths have increased from fewer than 100 in 1968
to nearly 1,200 annually in the mid-1990s, with no apparent lev-
eling off through 1996, the most recent year lor which data is
available. OSHA estimates 1.3 million workers in construction
and general industry continue to face significant asbestos expo-
sure on the job.
Asbestos exposure endangers not only abatement workers
and people working or living in buildings where asbestos dust
is left, but also, family members not in direct contact with
asbestos themselves. In Libby, Mont., EPA has been investi-
gating the deaths and illnesses of hundreds of miners, their
wives and their children who were exposed to vermiculite
laced withasbestos.
A national problem
Many of the asbestos contractors in New York who were vio-
lating the law have been brought to justice, but the New York
cases illustrate what is most likely a national problem.
"If its going on in central and upstate New York, I see no
reason why it can't be going on elsewhere," contends Bill
Lometti, EPA's special agent in charge of New York's criminal
nvestigation division. "We pulled one little thread, and the
whole sweater unraveled."
He says his division is working with other EPA investigators
across the country to crack similar cases in other areas.
Brent Kynoch, managing director of the Environmental
information Association in Washington, D.C., agrees that this
problem is not endemic to New York Kynoch estimates that
at least one-third of the asbestos-abatement work in the Unit-
ed States is done improperly, and that both regulatory agencies
and building owners have become lax.
"The reality is that building owners have relaxed their over-
sight of asbestos abatement projects. Worse than that, the reg-
ulators and OSHA inspectors are almost nonexistent today,"
Kynoch claims. Many building owners "are clearly burying their
heads in the sand," he says.
He adds that one way to improve oversight would be to
change the laws so that local building inspectors could with-
hold building permits until they see a copy of the asbestos inspec-
tion. Also, if EPA issued a recommendation that building own-
ers engage in independent oversight, that would act as a strong
deterrent for those tempted to break the law.
"The bottom line is that if we have regulations then we have
to enforce it," Kynoch explains. "That's what we're up against
— the regulations are not being enforced." S+H
d Exposurd for S hours/d3y,y80jlays/^ear. frorri age 5 tolS years.''"^ ; >;
i; %•, Occupational exposure for slhSdVdav. "240 days/year, from^age 25 to 45 years.
< ' ' CUrifent' tiSHAPEL and NI(^§}-| fi£C4>roccup3tional exposure fo, airborne asbestos.
' ' ;; •" / ' ' -
40 Safety+Health I February 2001
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*7ftooJ
U.S. Department of Justice
United States Attorney
Northern District of New York
P.O. Box 719&
100 South Giftio* Slrtsei
Syracuse. A'ffw Yurk 1326l-?}9$
NEWS RELEASE
October 17,2000
Daniel J. French, United States Attorney for the Northern District of New York and
Jeanne M. F ox, Regional Administrator of the United States Environmental Protection Agency,
announced today the conviction after trial of Joseph P. Thorn, for conspiracy to launder money
and for the illegal abatement of asbestos from 1995 through 1999 throughout Central and
Upstate New York. Thom was also ordered to forfeit to the United States $939,079.98 in funds
he utilized to promote his illegal activities.
Thorn, 38, of408 Washington Avenue, Rensselaer, New York, was the former owner
of A+ Environmental Services, Inc., an asbestos abatement company which had been located
at 10 Forbes Avenue, Hilton Industrial Park, Building E, Rensselaer, N. Y. The evidence at
trial established the illegal removal of asbestos at more than 1,000 facilities in Central and
Upstate New York including elementary schools, churches, nursing homes, hospitals, State
Police barracks, the New York Legislative Office Building, and enumerable other public
buildings and private residences. Witnesses including former employees testified to "rip and
skip" activities directed by Mr. Thorn that included indoor "snow storms", a euphuism for the
release of large amounts of visible asbestos into the air during the removal process. Evidence
established that workers were knowingly sent into asbestos "hot zones" without respirators or
without being directed to wear respirators and withoutbeing given sufficent replacement filters
for the respirators. Thorn falsified medical clearance evaluations required to be completed by
doctors prior to workers performing asbestos abatement work.
Thom conspired with accredited laboratories to falsify air monitoring required by law
to measure asbestos exposure to workers and those who occupy the buildings following the
purported removal. The evidence established that in enumerable instances falsified air results
were submitted to clients to fraudulently demonstrate that the asbestos had been fully removed.
In at least one instance government witnesses testified to finding large quantities of asbestos
remaining after the purported cleanup. Workers from that business had been present in the
315-US-0672
FAX: 31S-44K-Q68f
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facility for several years prior to the discovery. A worker testified that he and co-workers
frequently had a white substance fajl down on them from pipes throughout the building prior
to learning that it was asbestos. The facility was immediately closed following the government
inspection.
/The jury determined that nearly one million dollars was subject to forfeiture upon
Thorn's conviction for money laundering, The proof demonstrated that the defendant obtained
this money by fraudulently promising to perform the abatements in compliance with all federal,
state and local laws, despite having no such intent.
The United States has contacted all identifiable victims of the illegal asbestos practices
of Thorn and A+ Environmental Services, Inc. However, records relating to many private
residences where illegal work was performed were not kept by A+ Environmental after several
years. Therefore, the United States urges any homeowner who had asbestos abatement done
by this company or its predecessor A+ Asbestos Abatement to have the work rechecked.
Asbestos had been determined to cause various forms of cancer and asbestosis, a nearly
always fatal lung disease. The Environmental Protection Agency has determined that there is
no safe level of exposure to asbestos.
The conviction carries a maximum possible penalty of sixty-five years in jail and a
$4,128,000.00. fine. The Hon. Frederick J. Scullin presided over the three week trial.
Sentencing has been set for February 13,2001 at 2:00 p.m. in Syracuse, New York.
Investigation of this matter was conducted by Special Agents of the United States
Environmental Protection Agency, Internal Revenue Service, U. S. Postal Inspection Service.
U.S. Army Criminal Investigation Division, and the New York State Office of Inspector
General. Assistance was also provided by representatives of the N.Y.S. Departments of Labor
and Health. The matter was prosecuted by Assistant United States Attorney Craig A. Benedict,
who can be reached at 315-448-0672. ^
i
t
1 /
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EPA Home > Region 2 > News and Speeches > 2000 > More Than a Dozen Defendants Plead Guilty
to Violating Asbestos Rules; One Indicted for Numerous Allegations of Wrong-Doing
More Than a Dozen Defendants Plead
Guilty to Violating Asbestos Rules; One
Indicted for Numerous Allegations of
Wrong-Doing
FOR RELEASE: Thursday, February 24, 2000
(#00034) Albany, New York - Daniel J. French, United States Attorney for the
Northern District of New York and Jeanne M. Fox, Regional Administrator, United
States Environmental Protection Agency, announced today the criminal convictions
by guilty pleas of twelve individuals and two corporations in seven separate cases
relating to widespread asbestos violations occurring throughout central and upstate
New York. In addition, Mr. French and Ms. Fox announced the Indictment of a
fifteenth defendant for money laundering and clean air act violations.
Criminal investigations of the asbestos abatement industry by the United States
throughout central and upstate New York have revealed widespread non-
compliance with asbestos laws at virtually every level, including illegal asbestos
abatement; false laboratory analysis; improper/fraudulent compliance monitoring;
and falsified asbestos abatement training. The United States has identified in
excess of two hundred (200) buildings at which illegal asbestos activities have
occurred. In addition to these two hundred, hundreds of additional buildings are
anticipated to be identified in the near future.
Investigations into illegal asbestos activities are ongoing, and the government
anticipates that additional prosecutions will be forthcoming. The investigation to
date has revealed significant violations in every major metropolitan area with the
Northern District of New York including Albany, Schenectady, Troy, Syracuse,
Utica, Watertown, Auburn and Binghamton.
United States Attorney French stated, "The breadth and scope of these crimes are
startling and illustrates the basest form of greed. Over and over again, these
defendants willingly put the public at risk to line their own pockets. They will now
face the consequences of their horribly irresponsible acts."
"By thumbing their noses at the Clean Air Act, these defendants put workers and
others in harms way," said Jeanne M. Fox. "There is a reason for restrictions on
asbestos removals—asbestos is a dangerous substance if it is mishandled. Make
no mistake, where protecting human health and the environment are concerned,
the federal government does not fool around. These pleas and indictments prove
that environmental criminals will pay dearly for dodging the law."
THE THORN INDICTMENT
On February 16, 2000, a Grand Jury sitting in Syracuse, N.Y. returned an
Indictment charging JOSEPH "JAY" THORN, 408 Washington Ave., Rensselaer, N.
Y., former owner of A+ Environmental Services, Inc. of Rensselaer, N. Y., with
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y-v ixcgiun z. zuuu iNews Keleases: More Than a Dozen Defendants Plead Guilty to Viol... Page 2 of 5
widespread illegal asbestos activities and
related money laundering. Specifically, THORN was charged with supervising
activities relating to dozens of illegal asbestos abatement projects in the
central/upstate New York area. The activities included falsifying and obtaining
falsified test results for asbestos removal projects at elementary schools, nursing
homes, State Police barracks, and the New York State Legislative Building, among
up to 130 other illegal projects. The Indictment charges that, in numerous
instances, THORN violated the Clean Air Act by illegally removing the asbestos in a
manner not permitted by law. In other instances, he obtained falsified laboratory
results purportly to demonstrate that he had successfully finished a project when he
had not, so as to make it appear to a broad range of clients that he had, in fact,
complied with all Federal, State and local laws. He repeatedly falsified Medical
Surveillance Certificates to document medical clearance for workers to participate
on asbestos projects when no such clearances had actually been obtained.
THORN is charged with laundering in excess of $870,000 connected with the illegal
asbestos projects.
If convicted, THORN could receive a maximum possible sentence sixty-five years
in jail and a fine of in excess of six million two hundred thousand ($6,200,000.00)
dollars.
EMPLOYEES OF ANALYTICAL LABORATORIES OF ALBANY, INC.
Analytical Laboratories of Albany, Inc. (hereinafter ALA), 31 Railroad Ave., Albany,
N. Y., is an asbestos laboratory that analyzes samples from abatement projects
and monitors for compliance the work being done by the abatement company.
Laboratories performing analyses or monitoring compliance are required by law to
be wholly independent of the asbestos abatement firms performing the asbestos
removal.
ERIC FARBENT, 248 Meadlowlark Drive, Chief Executive Officer of ALA, PHILIPE
GOYEAU, 26 Greenridge Drive, Clifton Park, N. Y., former ALA Executive Director,
ALISON GARDNER, 713 County Route 351, Medusa, N. Y , ALA Laboratory
Directory and BRADFORD HALL, 1 Rose Lane, Rensselaer, NY, ALA Project
Manager, plead guilty today to conspiracy to violate the Clean Air Act and to
commit mail fraud. In their pleas of guilty these four individuals acknowledged that
for years, their purportedly independent laboratory had been secretly and illegally
owned in part by the owner of AAR Contractors, Inc . AAR Contractors is one of the
largest asbestos abatement companies in New York State At the direction of AAR
and ALA owners, ALA employees falsified for years the air monitoring and
laboratory analysis on AAR projects and failed to properly monitor projects for
compliance with asbestos laws. Farbent and Hall acknowledged that they and other
ALA employees personally participated in "after hours" illegal abatement for AAR.
Further, Hall admitted to engaging in "bid rigging" to aid AAR in obtaining contracts
for asbestos work that might have gone to other competitors. (Note - AAR is under
criminal investigation but has not been charged with criminal activity at this time.
AAR is presumed innocent unless and until proven guilty in a court of law.)
FARBENT, GOYEAU, GARDNER and HALL each face maximum possible
sentences of five years in jail and a fine of two hundred and fifty thousand dollars
($250,000.00). Sentencing has been set for July 24, 2000 before the Hon. Howard
G. Munson in Albany, NY
FISHER ENVIRONMENTAL SERVICES AND "THE LAB-
DANIEL FISHER, 403 Michigan Ave., Schenectady, N Y., President of Fisher
Environmental Services, Inc., 2940 Curry Road, Schenectady, N. Y., and WILLIAM
CHRISTENSON, 15 Salem Drive, Saratoga Springs, N. Y., owner of'The Lab"
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trA Kegion 2 2000 News Releases: More Than a Dozen Defendants Plead Guilty to Viol... Page 3 of 5
located at 6 Brookman Avenue, Delmar, NY, pled guilty to conspiracy to violate the
Clean Air Act and to commit mail fraud. For four years DANIEL FISHER operated
Fisher Environmental Services, Inc., an air monitoring company. Also, under the
assumed name "Robert Rivers", FISHER secretly owned and operated "Empire
Remediation", an asbestos abatement company. Empire Remediation worked on
many of the same projects as Fisher Environmental despite not being allowed by
law to do so because of the requirement that monitoring companies be independent
from abatement companies. Fisher Environmental regularly falsified samples or
failed outright to take samples at Empire projects, and otherwise failed to comply
with the Clean Air Act requirements for the proper removal of asbestos. FISHER
obtained from WILLIAM CHRISTENSON and his company, "The Lab," hundreds of
false air monitoring reports. Fisher Environmental sent some of those false lab
results to other asbestos abatement companies (including A+ Environmental
Services and JAY THORN) for use in their efforts to falsely and fraudulently
document proper asbestos abatement at projects for which they violated Federal,
State and local laws.
FISHER and CHRISTENSON each face maximum sentences of five years in jail
and a two hundred and fifty thousand dollar fine. Sentencing has been set by the
Hon. Howard G. Munson for July 25, 2000 in Albany, NY.
OWNERS OF ENVIRONMENTAL SUPPORT SYSTEMS (ESS)
JAMES D. MILLER, 27 Webster Street, Fort Plain, N. Y., Director of Environmental
Support Systems and PRESTON YOUNG, 11 Limerick Drive, Albany, N. Y.,
Assistant Director, pled guilty to conspiracy to commit mail fraud. From 1996-1998,
ILLER and YOUNG operated an asbestos training academy and provided hundreds
of false asbestos training certifications to numerous asbestos workers who did not
receive required training. Many of these workers thereafter worked on asbestos
abatement projects, notwithstanding their lack of sufficient training to ensure proper
removal and knowledge of basic safety precautions necessary to protect their
health and those of individuals who came into contact with the asbestos at various
projects.
MILLER and YOUNG each face a maximum possible sentence of five years in jail
and a two hundred and fifty thousand dollar ($250,000.00) fine. Sentencing has
been set by the Hon. Howard G. Munson for July 25, 2000 in Albany, NY.
PREVIOUS CONVICTIONS RELATED TO PHANTOM ESS TRAINING
In crimes related to the pleas of MILLER AND YOUNG, in October, 1999 EDWARD
JUBIC, KEVIN LATANT, KENNETH NUSCA, LAWRENCE ST. ANDREWS, III,
CHARLES JUBREY, JOHN MANTYNEN, ANTHONY PRIORE AND FRANK
COSTELLO were sentenced after pleading guilty to violations of the Toxic
Substances Control Act (and/or conspiracy) for fraudulently obtaining asbestos
handlers or supervisors certificates after falsely claiming to have received required
training from Environmental Support Systems.
NORTHERN ENVIROMENTAL SERVICES, INC.
JOHN PHELPS, 35, 247 Pangborn Road, Hastings, N.Y., THOMAS STRONG, 35,
5994 Jerusalem Drive, Cicero, N. Y., and NORTHERN ENVIRONMENTAL
SERVICES, INC., with offices at 6838 Ellicott Drive, East Syracuse, N. Y., operate
a large asbestos abatement company in the upstate New York area. At the
direction supervisors, NES employees illegally removed, transported and disposed
of asbestos from numerous buildings in the central and upstate area. Phelps pled
guilty to violating the Clean Air Act. THOMAS STRONG pled guilty as an accessory
after the fact to PHELPS' illegal conduct by helping him to hide such activities from
Environmental Protection Agency criminal investigators at the Lamson Building in
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luuu news iveieases: More I han a Dozen Defendants Plead Guilty to Viol... Page 4 of 5
Syracuse, New York. NORTHERN ENVIRONMENTAL SERVICES, INC. was
indicted and pled guilty to conspiracy to violate the Clean Air Act.
Previously, on March 9, 1999, SEAN HALLORAN, 106 Bristol Place, Syracuse, NY,
Project Manager for NORTHERN ENVIRONMENTAL SERVICES, pled guilty to
violating the Clean Air Act. HALLORAN admitted to illegal asbestos removal
without proper containment, respirators, warning signs or disposal at the Lamson
Building in Syracuse, NY. HALLORAN intentionally misrepresented to EPA Special
Agents and a Department of Labor inspector that a "hot zone" (an area from which
asbestos was actively being removed) was inactive. Through this misrepresentation
the agents and inspector entered the hot zone area without respirators or protection
of any sort. No date for sentencing has yet been set.
PHELPS and HALLORAN face a maximum possible sentence of five years in
prison and a two hundred and fifty thousand ($250,000.00) fine. STRONG faces a
maximum possible penalty of two and one half years in prison and a one hundred
and twenty-five thousand dollar fine ($125,000.00). NORTHERN
ENVIRONMENTAL SERVICES, INC., faces a maximum possible fine of Five
Hundred Thousand ($500,000.00). Sentencing has been set before the Hon
Howard G. Munson for July 19, 2000 in Syracuse, NY.
PAUL MANCUSO, OWNER OF AR DIGIMA
PAUL MANCUSO, 35, 1005 Jefferson Avenue, Utica, N. Y., pled guilty to a
violation of the Clean Air Act relating to the illegal removal, storage, and disposal of
friable asbestos on a large asbestos abatement project, the former Woolworth
Building, in Binghamton, N Y. The defendant further admitted that he sought and
obtained false air monitoring tests. MANCUSO is the owner and Operations
Manager of A. R. Digima, an asbestos abatement company located in Utica, N Y.
MANCUSO faces a maximum possible sentence of five years in jail and a two
hundred and fifty thousand ($250,000.00) fine. Sentencing has been set for July 19,
2000 in Syracuse, NY before the Hon. Howard G. Munson.
LAKEWOOD CONSTRUCTION COMPANY, LLC
LAKEWOOD CONSTRUCTION COMPANY, LLC, Utica, N.Y., pled guilty to illegal
asbestos removal in violation of the Clean Air Act. The company is involved in the
renovation of a historic hotel (the Hotel Utica) LAKEWOOD CONTRUCTION
COMPANY engaged in illegal removal and disposal of large quantities of asbestos
while renovating this facility.
LAKEWOOD CONSTRUCTION COMPANY, LLC was today sentenced to pay a
penalty of $75,000 by the Hon. Howard G. Munson, in Albany, NY.
PREVIOUS CONVICTIONS FOR ILLEGAL ASBESTOS ABATEMENT
Previous convictions related to this ongoing investigation include:
STEVEN HUNTER, 42, 276 Wheat Street, Cayuga, New York, owner of Hunter
Heating, Plumbing, and Contracting, was convicted after trial of six separate Clean
Air Act felonies related to the illegal removal and disposal of asbestos at the
Masonic Temple in Auburn, N Y. HUNTER will be sentenced this Spring. The
evidence established that, in addition to committing multiple Clean Air act
violations, he knowingly and intentionally exposed his workers to very significant
amounts of asbestos dust for several months during the removal of boilers and
pipes. The evidence further established that, at least with regard to several of the
workers, the defendant never told them the insulation material they were handling
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crA Kegion I ^UUU News Releases: More Than a Dozen Defendants Plead Guilty to Viol... Page 5 of 5
daily was asbestos. These workers are currently undergoing medical tests to
establish a health baseline in the event of future cancer or asbestosis. HUNTER
faces a maximum sentence of thirty years in prison and a fine of one million five
hundred thousand ($1,500,000.00) dollars. Sentencing has been set for May 12,
2000, by the Hon. Howard G. Munson.
TERENCE CONKLIN, Cape Coral, Florida, was sentenced on April 23, 1999 to ten
(10) months in jail following his conviction upon a guilty plea to illegally removing
asbestos from a Binghamton Office Building without complying with any Clean Air
provision. He buried some of the asbestos in the building basement and
abandoned other asbestos outside of the building without any containment or other
precautions.
THE INVESTIGATION
Investigation of the cases set forth above were conducted by law enforcement
officials from the Environmental Protection Agency, the Internal Revenue Service,
the United States Postal Service, the New York State Office of Inspector General,
the United States Army Criminal Investigation Division and asbestos Inspectors
from the New York State Departments of Labor and Health Asbestos Control
Bureau.
Prosecution of these cases is being handled by Craig A. Benedict, Assistant U.S.
Attorney. Mr. Benedict may be reached at 315-448-0672 with any questions.
EPA Home | Privacy and Security Notice | Contact Us
Last updated on Thursday, September 15th, 2005
URL: http://www.epa.gov/region02/news/2000/00034.htm
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H/22/2005
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Goals
• It is to give you a glimpse of what is
required to convince a jury of 12 that a
crime has occurred.
• Familiarize you with the elements of the
violation so that we can better
communicate.
The Regulatory Foundation
Permitting & Enforcement
• Most people and businesses will conduct
themselves within the confines of the laws
• It's the right thing to do.
• They perceive that getting caught will be too costly.
The Foundation of Criminal Enforcement
• A minority of people and businesses will
conduct themselves outside the confines
of the laws
• Issues with rules and authority.
• They perceive that the benefits outweigh the risk of
getting caught.
1
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Intent ™ Accident
& sometimes negligent
Spectrum of Criminal Intent
• Strict Liability: no knowledge or intent - RHA & MBTA
• Negligence: some CWA Provisions
' Gross Negligence: e.g. vehicular homicide
• Knowing: 'GeneralIntent'-KeyCWA Provisions
• Willful: 'SpecificIntent'-e.g., Tax fraud
Water Resource Protection
Direct Discharges (to Surface Waters)
Discharge without or in violation a
NPDES Permit
• A person
• Discharges a pollutant
• From a point source
• To a water of the United States
• Without or in violation a NPDES permit
• While acting negligently or knowingly
2
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NPDES Permits
• NPDES Permit conditions cover General &
Specific Conditions
- the requirement to comply,
- inspections & entry;
- Permittee, Outfall Location
- Effluent Limits
- Monitoring Requirements
- Definitions
- Narrative standards
- Self-Reporting: Discharge Monitoring Reports (OMRs)
- Incorporation of Regulations by Reference
9
NPDES General Permits
• Issued to facilities with very similar effluent
profiles.
• Examples: landfill leachate, stormwater, non-
contact cooling water, quarries and ready-mix
concrete facilities
"Permit as a Shield" Principle
• Applies to persons who
- honestly and completely filled out a NPDES permit application;
- receh/ed a permit; and
- have not altered their acth/ities from what they accurately
described in the application
• Those persons' discharge obligations are limited
to terms of the permit; they cannot be held liable
for discharging other pollutants not covered in the
permit. 33 USC 1342(k) ("Compliance with a
permit.. . shall be deemed compliance... with
sect ion [J 1311")
States Are Authorized . ..
• Statutory Authority: 33 USC 1342(b)
• Relevant Regulations: 40 CFR Part 123
• Most States Have Authority to Issue NPDES
Permits
- State Authority to Inspect & Enforce
- EPA Keeps its Authority to Inspect & Enforce
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State Authorization (Cont'd)
• Properly Issued Permit is Federally Enforceable
• Permits Incorporate State Regulations by
Reference
• Beware Partially Delegated/Badly Delegated
Programs
• Discharges Without a Permit: Check State Files
for Application
We have successfully prosecuted cases of persons lying to the slate as a
federal violation because the state was acting on EPA's behalf.
13
Core Term
• Person
°an individual, corporation, partnership,
association, State, municipality, commission, or
political subdivision of a State, or any interstate
body."
Core Term
Pollutant
°dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions,
chemical wastes, biological material, radioactive
materials, heat, wrecked or discarded
equipment, rock sand, cellar dirt, and industrial,
municipal, and agricultural wastes discharged to
water"
15
Core Term
Point Source
"any discernible, confined and discrete
conveyance, including but not limited to any
pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock,
concentrated animal feeding operation, or vessel
or other floating craft, from which pollutants are
to may be discharged"
4
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Core Terms
Navigable Waters
"waters of the United States, including the territoiini
seas [which extend three miles from shore]'
Contiguous Zone
Between three and twelve miles from shore.
Ocean
°any portion of the high seas beyond the
contiguous zone"
Direct Discharges:
Investigative Considerations
• Is there a person?
• Is there a Discharge?
• Is a Pollutant being discharged?
' Is the discharge to a Surface Water?
• Is the discharge from a Point Source?
• Does the discharger have a valid NPDES Permit
that authorizes the discharge or is the discharge
occurring without or in violation of a permit?
Water Resource Protection
Discharges to Sewers
Indirect Discharges (to Surface Waters)
16
Indirect (Sewer) Discharges
¦ Disposal method of choice for a variety of
regulated waste streams
' Virtually risk-free as for possibility of detection
• Potentially very dangerous
5
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Purpose of the
"Pretreatment Standards"
• Prevent the POTWFrom Violating Its NPDES
Permit
• Indirect Protection of Waters of the U. S.
• Prevent Harm to POTW. Workers
• Prevent Harm to POTW Equipment
The Pretreatment Program
• Regulates Discharges from Industrial Users to
Publicly Owned Treatment Works (POTWs)
(Definition of POTW 40 CFR 403.3(o))
• General Rule: All Non-Domestic Discharges to
Sewer Systems Must Meet "Pretreatment
Standards"
• General Prohibitions, Specific Prohibitions,
Categorical Standards, & Local Limits
Hazardous Waste Down the
Drain: RCRA or CWA?
• Exclusion for Solid or Dissolved Material in Domestic
Sewage
• Wastewater Treatment Unit Exclusion
• Industrial wastewater discharges that are point source
discharges are not solid wastes.
- This applies only to the discharge; it does not exclude
industrial wastewaters stored or treated before
discharge, nor sludges generated by treatment.
42 USC 6903(27): 40 CFR 261.4
23
General Prohibitions
• 'Users' Prohibited From Causing 'Pass Through" or
'Interference' 40 CFR 403.5(a)(1)
• "Pass Through": 40 CFR 403.3(n)
- Discharge exits POTW; and
- Causes POTW to violate its NPDES Permit Limits
• 'Interference": 40 CFR 403.3(i)
- Discharge inhibits or disrupts POTW,¦ and
- Causes POTW to violate NPDES Permit or Prevents
Use of Sludge
2«
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Specific Prohibitions
• 40 CFR 403.5(b)
• "The following shall not be introduced into a
POTW:"
- fire or explosion hazard (flashpoint <140
degrees F.)
- corrosive damage to POTW/pH<5.0
- solid or viscous pollutants which obstruct flow,
resulting in interference
Specific Prohibitions (Cont'd)
- any pollutant causing interference
- heat causing POTW temp above 104° F.
- pollutants resulting in presence of toxic gases,
vapors, or fumes within POTW in quantity that
may cause acute worker health/safety
problems
- any trucked or hauled pollutants, except at
discharge points specified by POTW
76
Categorical Standards
• EPA developed specific effluent standards for
types of industries
• 40 CFR 403.6
• Must have Pretreatment Systems to Meet
Standards
- Dilution cannot be Solution 40 CFR 403.6(d)
- Upset and By-Pass Provisions 40 CFR 403.16
and 403.17
27
Categorical Standards (Cont'd)
• List of Industries Subject to Categorical
Standards
- 40 CFR 403, Appendix C
• Key: Know What Categorical Standards Apply to
The Target Facility
- Example: Metal Finishing v. Non-Ferrous Metal
Forming
• Check Discharge Permit for Application of
Categorical Standards
-------
Local POTW Limits
• Certain POTWs Required to Have a
Pretreatment Program
- Plants discharging greater than 5 million gpd
- unless state has state-wide pretreatment program
• Program Generally Part of Municipal or County
Bylaws
Local POTW Limits (Cont'd)
• Program will Set General Standards for All
Discharges
' Program will Often Require Permits from the
Municipality to Discharge to the System
• Pretreatment permit, like NPDES permit,
imposes discharge limitations and other
obligations.
Local POTW Limits (Cont'd)
• Will Often Include Inspection and Enforcement
Provisions
• Local Programs are Federally Enforceable if
"approved under 1342(a)(3) or 1342(b)(8)"
Criminal Enforcement
• 33 USC 1319(c) makes it a crime to:
- Knowingly or negligently violate 33 USC 1317,
the federal pretreatment provision
- Knowingly or negligently violate an approved
local pretreatment program
- Knowingly or negligently discharge into sewers
a pollutant known to cause personal injury or
property damage, or which causes a POTW to
Violate NPDES Permit
32
8
-------
Elements of Injury/Harm Crime
• A Person
• Negligently or Knowingly
• Discharges a Pollutant or Hazardous Substance
• Into a sewer system or POTW
• Which the person knew or should have known
such discharge could cause injury or damage
33 USC 1319(c)(1 )(B)&(c)(2)(B)
Knowing Violations of CWA
• Commonly referred to as "general intent crime"
• Defendant has intent to commit the act - hence,
the intent to discharge
• Need to Know it was Pollutant (not just water)
• No need to know it was in violation of law; thus,
no need to know a permit was required
Negligent Violations of the CWA
• Defendant Breaches Duty of Reasonable Care
• Defendant's Negligence Causes Violation
- No Need to Prove Defendant Intended to
Commit Act
• No Need to Know About Violation of Law or that
Permit was Required
15
Conscious Avoidance or
Willful Blindness
• Conscious choice to avoid learning the truth by
deliberately remaining ignorant of facts that
would otherwise be obvious
• Reasonable person would have investigated
further
36
-------
Responsible Corporate
Officers
• A type of"person" subject to the CWA
• Congress °intends that criminal penalties be
sought against those corporate officers under
whose responsibility a violation has taken place,
and not just those employees directly involved in
the operation of the violating source."
• S. Rep. No. 94-717, 94" Cong.. IdSess. 40 flS76)
37
RCOs (cont.)
• Felony liability exists where a person:
- Has authority to exercise control over the corporate
activity causing the illegal discharge;
- Knows of the discharge; and
- Fails to exercise authority to stop discharge.
- See, e.g. U.S. v. Iverson
Knowledge of the Corporate Person
• "Respondent Superior"
- Actions of Individuals Acting within the Scope
of Employment are Attributed to Corporation
- Prove Knowledge Through Individual Acts
• Collective Knowledge Doctrine
- Pull Knowledge of Individuals Together to
Create Single Corporate Mind
Water Resource Protection
Oil and Hazardous Substances
Criminal Discharges & Failure-to-Report
-------
Oil & Hazardous
Substances - Discharges
"The discharge of oil or hazardous substances
into or upon the navigable waters of the U.S.,
adjoining shorelines... or waters of the
contiguous zone ... in such quantities as may
be harmful... is prohibited."
33U.S.C 1321(b)(3)
Elements of Oil & Hazardous
Substances Discharge Crime
Person
Negligently or Knowingly
Discharges Oil or a Haz. Sub.
In a Harmful Quantity
Into or Upon Waters of the U.S.
33 U.S.C. 1319(c)
42
Differences from 33 U.S.C.
1311's Discharge w/o Permit
• No point source requirement
• There is a quantity requirement
• Geographic jurisdiction is broader,
encompassing:
- adjoining shorelines
- contiguous zone (3-12 miles out)
43
Oil & Hazardous
Substances: C.F.R. Definitions
• Harmful quantity of oil 40 CFR 110.3
(Commonly referred to as the '%heen test". It is
much more)
• Addition of dispersants to oil to be
discharged...is prohibited 40 CFR 110.4
-------
Oil & Hazardous
Substances EXCEPTIONS
• Oil discharges that are not considered to
be harmful:
- discharges of oil from a properly functioning
vessel engine.
-discharges of oil in compliance with MARPOL
40 CFR 110.5
45
CFR Sections refOil Discharges
• 40 CFR 110 : Oil Discharges
- 110.1 Regulatory Definitions - 'Navigable Waters'
-110.3 Harmful Quantities of Oil
-110.4 Dispersants Prohibited
- 110.5 Exceptions (not harmful discharges)
-110.6 Notification Requirements
46
Required Reporting
of Discharged Oil & Hazardous
Substances
"Any person in charge of a vessel or of an
onshore facility or an offshore facility shall, as
soon as he has knowledge of any discharge
of oil or a hazardous substance,...
immediately notify...33 use 1321(b)(5)
40CFR 110.6
Failure to Report & Immunity
• "... any such person... who fails to notify immediately
... shall be fined in accordance with Title 18, (and/or)
imprisoned for not more than 5 years.... Notification
received pursuant to this paragraph shall not be used
against any such natural person in'any criminal case,
except a prosecution for perjury or for giving a false
statement."
33 use 1321(b)(5)
• This applies to a "Natural Person"
• A corporation or business is not immunized.
-------
Water Resource Protection
Rivers and Harbors Act Of 1899
49
Rivers and Harbors Act Of 1899
• Section 10-33 U.S.C. 403
• Prohibits the construction of structures or
other obstructions to navigation without
permission of the ACOE
• Regulates excavation
SO
Rivers and Harbors Act Of 1899
• Section 13-33 U.S.C. 407 - the Refuse Act
• Unlawful to deposit or discharge from ship or
shore "any refuse matter of anv kind or description
whatever" to any navigable water of the U.S. or its
tributary or banks, where they are liable to be
washed into a navigable water and impede
navigation. 33 USC 407
Rivers and Harbors Act Of 1899
• Violation is a misdemeanor
• Reward Provision: Court may award 1/2
amount of fine to informant
33 U.S.C. 411
52
-------
Rivers and Harbors Act Of 1899
• Can address non-point sources of water pollution
• Limited to the traditional concept of navigable
waters
- waters subject to the ebb and flow of the tide (below
high water mark) and navigable In fact
• Can charge CWA along with Rivers and Harbors
violations at same time
Water Resource Protection
Ocean Dumping Act (1972)
54
Ocean Dumping Act (1972)
• 33 USC 1401 et seq. and 40 CFR 220-238
• Regulates
- the transportation of material from the U.S for the
purpose of dumplngthe material into ocean waters
- the dumping of material transported from a location
outside the U.S.
33 USC 1411
• If the dumping occurs in the territorial sea or the
contiguous zone of the U.S.
Ocean Dumping Act (1972)
• Ocean dumping is regulated via a permit
system 33 use 1412
• Permit issuance is divided between ACE and
EPA
• ACE: issues permits for dumping of dredged
material
• EPA: issues permits for all other dumping
situations
-------
Ocean Dumping Act (1972)
• General Permits 40 cfr 229
- Burial at sea
- Transport of target vessels
-Transportation and disposal of vessels
• Criminal Penalties 33 use 1415(b)
- Knowing requirement
- Five years imprisonment
- Forfeiture provisions
Water Resource Protection
Act to Prevent Pollution from Ships
(APPS/MARPOL)
sa
APPS/MARPOL
• 33 USC 1901 et seq. and 40 CFR 151
• Addresses waste generated during the
normal operations of a ship i.e. not
transported for the purpose of dumping at sea
• Statute implements an international
convention (MARPOL) and contains
provisions prohibiting the discharge of oil,
noxious liquids, garbage and plastics.
S9
APPS/MARPOL
• MARPOL Annex V imposes:
- an absolute prohibition on the disposal
of plastics from any ship into the sea or
navigable waters of the U.S.
- prohibition on the discharge of garbage
in designated sea areas
-prohibition on the dumping of garbage
into navigable waters of the U.S.
- oil discharge prohibitions and reporting
requirements
15
-------
APPS/MARPOL
• MARPOL Annex V applies to:
- U.S. ships wherever located
- Foreign flag ships while in the navigable
waters or Exclusive Economic Zone of the
U.S.
• Coast Guard administers and enforces
MARPOL provisions
- USCG can inspect at any time for suspected
harmful substance discharges or garbage
disposal violations
Water Resource Protection
Comprehensive Environmental Response,
Compensation and Liability Act
(CERCLA)
CERCLA
• 42 USC 9601 et seq.
• Addresses chemical releases into all
environmental media (including water)
• Criminal provision addresses the failure to
report the release of a reportable quantity of a
hazardous substance_into the environment
42 USC 9603
• Oil and petroleum products are not hazardous
substances for purposes of CERCLA
-------
11/22/2005 TUE 15:23 FAX TAMPA RAC
11/22/2005 14:48 FAX 581 402 7949
nysdoh ASBESTOS UNIT
U. S. Department of Justice
©002/003
l£J UUO
" 'C)
United States A ttamey
Northern District of New York
P.O. Box J/S-448-OS7X
too Sent* Clinton Site* FAX: US-44&-06&
June 16,1999 SynXVM. New York }5261'7193
NEW? RELEASE
Thomas J. Marcmcy, United States Attorney ibr the Northern District of New Yoric
announced today the guilty picas of a oven individuals for conspiracy to violate the Toxic Substance
Control Act in conjunction with efforts to fraudulcqtly obtain asbestos certificates from New York
State authorizing them or individuals they employed to Woiic on asbestos removal projects.
The following individuals pled guilty today:
Edward Jubic, 36 years old, residing at 97.Crescent Drive, Albany, NY
(Directed/Supervised others)
John Mantynen* 23 years aid, residing at New Baltimore, NY
(Directed/Supervised others)
Frank Costello, 29 years old, residing at 9 Rosemary Street, Utica, NY
dharles Jubrcy. 29 years old, residing at 570 Saratoga Street, Cohoes, NY
• Anthony Priare, 40 years old, residing at 4 cemetery Road, Apt. 35-D, Clifton Park,
NY
Kenneth Nusca, 19 years old, residing at 1232 Tamarac.Road, Troy, NY
Lawrence St. Andrews, HI, 20 years old, also residing at 1232 Tamarac Road, Troy,
• NY
Under Federal and State law. individuals who intend to work on asbestos abatement projects
re required to undergo an extensive training course advising them on how to properly and safely
remove asbestos without contaminating cither themselves, co-worieers, or members of the public.
The guilty picas relate to separate instances where the defendants applied for Asbestos Supervisor
Contractor and Asbestos Handler Certificates while falsely and fraudulently representing (or in the
case of supervisory employees directing their workers to falsely represent) that they had taken the
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11/22/2005 TUE 15:23 FAI TAMPA RAC @003/003
11/22/2005 14:48 FAX 581 402 7949 NYSDOH ASBESTOS UNIT ifijuuo
P ¦ Z
required course, passed the exam, and were otherwise entitled to work on such projects involving
asbestos. Id fact, working fraudulently with persons certified to teach the course, they had not taken
the course or passed the exam, but thereafter worked on asbestos abatement projects.
Asbestos has been designated by the United States Environmental Protection Agency and
Congress in the Clean Air Act as a "hazardous" air pollutant Asbestos causes a wide range of
illnesses, including various forms of cancer and asbestosis, a. usually fatal lung disease. The EPA
has determined that there is no safe level of exposal? to asbestos.
Hie pleas of guilty obtained today are part of a continuing investigation into the asbestos
abatement industry in Upstate NewYork, including those who purport to teach the required courses.
The rflajci'mum possible penalty for the guilty pleas is one year in jail and a Si00.000 fine for each
defendant
Investigation of this ease was conducted by Special Agents of the United States
Environmental Protection Agcpcy with assistance from the New York State Department of Health,
Asbestos Training Program, and die New York State Department of Labor, Safety and Health,
Asbestos Control Bureau, The prosecution is being handled by Assistant United States Attorney
Craig A. Benedict Further inquiries can be directed to Mr. Benedict at (315) 448-0672,
2
-------
Hiviei lAvnov\ 5|h|o[ 0^*'
Asbestos firm owners
£21
Sentenced for scheme
K-.-
i
-------
U. S. Department of Justice
United States Attorney
Northern District of New York
P.O. Box 7198
100 South Clinton Street
Syracuse. New York 13261-7198
315-448-0672
FAX: 315-448-0689
NEWS RELEASE
Thomas J. Maroney, United States Attorney for the Northern District of New York
announced today the return of five indictments charging nine individuals for crimes including
conspiracy and the submission of false written statements relating to efforts to fraudulently
obtain asbestos certificates authorizing individuals to work on asbestos removal projects.
Under Federal and State law, individuals who intend to work on asbestos abatement projects
are required to undergo an extensive training course advising them on how to properly and
safely remove asbestos without contaminating either themselves, co-workers, or members
of the public. The indictments returned today relate to numerous instances where persons
applying for an Asbestos Handler Certificate falsely and fraudulently represented (or in the
case of supervisory employees directed their workers to falsely represent) that they had taken
the required course, passed the exam, and were otherwise entitled to work on such projects
involving asbestos. In fact, working fraudulently with persons certified to teach the course,
they had not taken the course or passed the exam, but thereafter worked on asbestos
abatement projects.
The following individuals were charged in the indictments returned today:
-------
Anthony Priore, 40 years old, of 4 Cemetery Road, Apt. 35-D,
Clifton Park, N. Y., charged under Title 18, United States Code
Section 1001 (submission of false statements).
Edward Jubic, 36 years old, residing at 97 Crescent Drive, Albany,
N.Y.; charged under Title 18, United States Code Section 1001
(submission of false written statements), Title 18, United States
Code Section 2 (aiding and abetting), and Title 18, United States
Code Section 371 (conspiracy to make false statements);
Paul Mancuso, 34 years old, residing at 1005 Jefferson Avenue,
Utica, N. Y., charged under Title 18, United States Code Section
1001 (submission of false written statements), and Title 18, United
States Code Section 371 (conspiracy to make false statements);
Frank Costello, 29 years old, residing at 9 Rosemary Street, Utica,
N. Y., charged under Title 18, United States Code Section 1001
(submission of false statements);
Charles Jubrey, 29 years old, of 570 Saratoga Street, Cohoes, N.Y.,
charged under Title 18,-United States Code Section 1001 (submission
of false statements); and
John Mantynen, 23 years old, residing at New Baltimore, N. Y.,
charged under Title 18, United States Code Section 1001 (submission
of false written statements), Title 18, United States Code Section 2
(aiding and abetting), and Title 18, United States Code Section 371
(conspiracy to make false statements);
Kevin Latant, 22 years old, now residing in Cape Coral, Florida,
charged under Title 18, United States Code Section 1001
(submission of false written statements), Title 18, United States
Code Section 2 (aiding and abetting), and Title 18, United States
Code Section 371 (conspiracy to make false statements);
Kenneth Nusca, 19 years old, residing at 1232 Tamarac Road, Troy,
N.Y., charged under Title 18, United States Code Section 1001
(submission of false written statements), Title 18, United States
2
-------
Code Section 2 (aiding and abetting), and Title 18, United States
Code Section 371 (conspiracy to make false statements); and
Lawrence St. Andrew, III, 20 years old, also residing at 1232
Tamarac Road, Troy, N.Y., charged under Title 18, United States
Code Section 1001 (submission of false written statements), Title 18,
United States Code Section 2 (aiding and abetting), and Title 18,
United States Code Section 371 (conspiracy to make false
statements);
Asbestos has been designated by the United States Environmental Protection Agency
and Congress in the Clean Air Act as a "hazardous" air pollutant. Asbestos causes a wide
range of illnesses, including various forms of cancer and asbestosis, a usually fatal lung
disease. The EPA has determined that there is no safe level of exposure to asbestos.
The indictments undertaken today are part of a wide-ranging continuing investigation
into the asbestos abatement industry in Upstate New York, including those who purport to
teach the required courses.
An indictment is a mere accusation, and all defendants are presumed to be innocent
unless and until proven guilty.
Investigation of this case was conducted by Special Agents ot the United States
Environmental Protection Agency. The prosecution is being handled by Assistant United
States Attorney Craig A. Benedict. Further inquiries can be directed to Mr. Benedict at 315-
448-0672.
3
-------
U. S. Department oi jusucc
United States A tlorney
Northern District of New York
P.O. Box 7198
315-448-0672
FAX: 315-448-0689
100 South Clinton Street
Syracuse. New York 0261-7198
May 10, 2001
PRESS RELEASE
Daniel J. French, United States Attorney for the Northern District of New York,
announced today that Preston Young, 35,210McCuIlogh Street, Rensselaer, New York, and
James Miller, 48, 817 First Street, Rensselaer, New York, were sentenced by the Hon.
Howard G. Munson following their guilty pleas to conspiracy to commit mail fraud. Both
defendants jointly owned and operated an asbestos training academy, Environmental Support
Systems. At the time of their pleas the defendants each admitted that they solicited and
accepted payments to arrange for credentials necessary for workers to work in the field of
asbestos abatement and disposal, notwithstanding the fact that the defendants did not provide
these "students" with the required instruction and training. Each acknowledged this fraud
despite knowing that asbestos was a hazardous air pollutant that causes a variety of life-
threatening ailments including cancer if it is not handled and disposed of properly.
Because James Miller provided substantial assistance to the United States in its
ongoing investigation of asbestos-related crimes, the prosecution filed a motion for a
downward departure from the sentencing guidelines, which the Court accepted. Accordingly,
-------
James Miller was sentenced to home confinement for six months as a condition of three years
of probation. He was further ordered to perform 500 hours of community service. On the
other hand, Preston Young provided no substantial assistance to the United States and,
accordingly, the prosecution filed no motion for a downward departure from the sentencing
guidelines. Mr. Young was sentenced to fifteen months in jail followed by three years of
supervised release. He will begin serving his jail term on June 19, 2001.
Criminal investigation of the asbestos abatement industry and asbestos training
academies continue in the Northern District of New York. The investigation of Preston
Young and James Miller was conducted by Special Agents of the United States
Environmental Protection Agency. The prosecution was handled by Assistant United States
Attorney Craig A. Benedict. Further inquires can be directed to Mr. Benedict at 315-448-
0672.
2
-------
rh.
5\vO\b|
. , »t ^IU UU^ilOUl up^tM^ V^V " IwLa vuwU lyrru 1IJU1W illk r -, w "
ers ol a Schenectady-basea had. illegal asbestos removal.. pbrfaritly, the heailih'bf the pep- —^
company that certified people work done on them since 199() pie;in and "around isbcstos jjg; , lt is anot&er exarpple-of. an
to remove asbestos without ' —; jeapordiilng tbe safety of ai- moval" *¦' 'Industry tKat. is.out; of ¦control,
ever -giving them the required bestos workers as well as'the ' -Health. pffjctel?;'have'We'have f6urid',£raud'in every'
(raining were sentenced Tnurs- • public, authorities said. termlned that asbestos caused level of the industry "and there
day* Miller and' Young were lyng cancer and'exposure to,-It stems' to be- a blatant disregard
Gne of the owners of Environ- among more than a dozen' peo1- can.be fatal" The U.S. Environ- for the: rules. and regulations
mental Support Systems, James pie'-arrested''and convicted in mental Protection -^gen'iy.'hij thatare designed to protect peo-
Mille'r of Rensselaer, coopera- the-two-year investigation of determined thattfyereii no saft^ pie's health," French said'.'"It La
ted" with'a federal probe into the fraud inthe asbestos mdustryjn level of exposure to asbestos." -;i mocking and amazing the mrm-
asbes'tos industry-and will hot New York. ' ^'So;lf you hirea'corhpaiiy to; fj>er of' people, in ¦ this" Industry-
spend time in prison. Instead, Environmental Support'Sys- remove asbestos in a school or a who;disregard the rules Ity-an at-
Miller was sentenced to spend terns'was licensed by the state to hpspit'al' or; a public Building;' ieinpt to make money,1'
six • months in home confine- train people how to properly re-' certain precautions'need to'be t ^Jvliil-er'" "4S ¦ and' Y'ourte 35
ment, which means he is not al- moVe asbestos. Instead of tTain- taken 'so that everyone Is- pro- Pleaded' euittV to- coninipinc to
lowd to leave his residence ta„- people. Miller an)-Young lecltdi" :FieiicH Mid. -Because KiTiSiltoiSny
without permission from a pro- tookthelr money and gave them of greed; and avarice smdi, sL.bla- ' £.,:¦«• ¦¦¦¦; , _
bationofficer, certification they heeded'to ° taint" disregard for peopl'e'i > U.S.Distncl-JudgeHowardG.
The other owner,-Preston work in the asbestos Industry. ' \ health,,'these ' defendants"/ wert Munson, c^ingthe sentencing
Young of-Rensselaer, did notco between ;19?<> and 1998, Mlll-. issuing certificates without pro- r1 SjTacruse;.atsb. ordered Miller
operate arid was sentenced'to LS er and Young issued false;certif-' vl'djngaftV training?*' ' , -to. perform 5.00'.hours of corn-
months ia federal prison- icates to at'least 63 people, fed- . 'Miller and Young chaxged^be- jpunity service and placed him
The two -were arrested last eTai proseoi tors said. tween $100 to $500 and'pre--. ri ^eacs t0
yeai
-------
From:
Charles E. Hoffmann
Associate Regional Counsel
for Criminal Enforcement
To:
William V. Lometti
Special Agent in Charge
New York Area Office
Criminal Investigation Division
Re:
Environmental Support Systems
Schenectady, New York
This memorandum provides a brief summary of the statutory and regulatory bases for the
investigation of an accredited asbestos training certification program offered by Environmental
Support Systems (ESS) of Schenectady, New York. In July 1998, the New York: State
Department of Health (NYSDOH) provided information to the Criminal Investigation Division
that ESS had issued asbestos supervisor certifications to local asbestos workers who had not
attended the mandated 40 hour course. This activity would constitute criminal behavior under
various provisions of Titles 15 and 18 of the United States Code.
Factual Background
Information obtained from the NYSDOH and from four asbestos workers indicates that
James Miller of ESS had approached Carl Wolcott concerning a car that Wolcott was selling.
The car was worth about $1,800. Miller offered, in exchange for the car, to provide four asbestos
training licenses' and Carl Wolcott agreed. Four individuals, Allen Pritty, Arnold Cable, Charles
Although the interviewees sometimes refer to them as "licenses," the documents really were
certificates. In New York State, contractors must have asbestos handling licenses in order to conduct
asbestos projects. See 12 N.Y.C.R.R. § 52-2.1. The individuals employed by the contractor must have
asbestos handler certificates. See 12 N.Y.C.R.R. § 52-2.2. The certificates are issued by the. New York
State Department of Labor (NYSDOL) to those who have successfully completed an approved initial
-------
Jubrey, and Carl's brother John Wolcotl (the four), then paid Carl $450 apiece in return for
receiving the training certificates. Pritty, Cable and both Wolcotts indicated in interviews that
they expected the four to actually receive training during a legitimate 40 hour course.2 Whether
this is true or not is perhaps open to question.3 What is not open to question is that, when they
reported on May 11, 1998 to the training site, they were directed by Miller to fill out course
attendance sheets for all five days (May 11-15, 1998) and a registration form, given "cheat
sheets" with correct test answers, told the passing rate was 70% and told to fill out test answer
forms with a few answers deliberately incorrect. They never actually saw the test they were
filling out the answer forms for and never received training from Miller or from Preston Young
who also was at the training site. Pritty recalled that Young showed them a respirator, but none
of those interviewed indicated that he received any other training concerning asbestos handling.
The total time spent at ESS by the four was estimated at between thirty minutes and an hour.
The course paperwork was then delivered to the NYSDOL. Subsequently, the four were
involved in an asbestos abatement project at a high school in Colonie, New York.
Legal Analysis
Congress was concerned with dangers associated with exposure to asbestos in schools.
Accordingly, it amended the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601 et seq.,
by enacting the Asbestos Hazard Emergency Response Act (AHERA), 15 U.S.C. §§ 2641 - 2656
AHERA required EPA to promulgate regulations, pursuant to which local educational agencies
were required to periodically inspect for asbestos and respond to circumstances in which friable
asbestos-containing material (ACM) or its covering is damaged, deteriorated or delaminated or
where there is a reasonable likelihood that the material or its covering will become damaged,
deteriorated or delaminated. See 15 U.S.C. § 2643 and 40 C.F.R. Part 763, Subpart E. AHERA
asbestos safety course, applied for the certificate, and paid the application fee. The NYSDOH accredits
the asbestos safety courses. The NYSDOL has issued a variance, dated April 2, 1997, that grants to
those who have successfully completed the course a 45 day grace period during which they can work on
asbestos projects while waiting for the NYSDOL to issue the certificate. During this interim period, the
worker must provide his employer with the student copy of the NYSDOH Certificate of Asbestos Safety
Training Form (DOH 2832).
Charles Jubrey did not appear for a scheduled interview with CID.
John Wolcott, Allen Pritty and Arnold Cable each admitted in an interview conducted by CID
that he earlier had lied to the NYSDOH concerning fulfilling the requirements when questioned about
the course. John Wolcott further stated in the CID interview that, after being questioned by NYSDOH,
he had gone to ESS to get paperwork and money needed to file for the certification with the NYSDOL.
Wolcon stated that Miller had agreed to file the paperwork and pay the $50 certification fee. Wolcott
told Miller that they had been questioned by NYSDOH concerning the class. Miller told him that they
should continue to tell NYSDOH that they had completed the course. Miller provided Wolcott with the
paperwork and a check for $200 to process the four "licenses." Remarkably, when Wolcott asked Miller
if they could get in trouble for not completing the course, Miller responded by stating "I'll see you in
prison."
-------
further required that persons inspecting schools for ACM, preparing management plans for such
schools, or designing or conducting response actions4 (other than school service and maintenance
personnel5) must be accredited by the State pursuant to a model accreditation plan (MAP). See
15 U.S.C. § 2646 and 40 C.F.R. §§ 763.88(a) and 763.90(g), and Appendix C to Part 763,
Subpart E. Appendix C states that initial training for asbestos workers must be four eight-hour
days in length, including at last 14 hours of hands-on training, individual respirator fit testing,
course review, and an examination. Contractor/supervisors are required to take a five day course.
See Appendix C, /, B - Initial training. EPA had accredited ESS's predecessor, Calibrations, Inc.
to provide training under the MAP. See August 31,1988 Notice, 53 F.R. 33574. New York
State has since been approved to accredit various AHERA courses including the asbestos worker
and contractor/supervisor courses. See February 28, 1991 Notice, 56 F.R. 8396. According to
the NYSDOH webpage listing of accredited NYSDOH asbestos training sponsors,
Environmental Support Systems (formerly Calibrations, Inc.) has been accredited since March
1988 for the asbestos worker initial course and since October 1991 for the asbestos worker
refresher course and for the contractor/supervisor initial and refresher courses.
By falsifying the paperwork to establish that the four workers were properly trained, ESS,
Miller and Young aided and abetted in the violation of AHERA. Pursuant to 15 U.S.C.
§ 2646(a),
A person may not -
(3) design or conduct response actions . . . with respect to friable asbestos-
containing material in such a school or in a public or commercial building,
unless such person is accredited by a State under subsection (b) of this section or
is accredited pursuant to an Administrator-approved course under subsection (c)
of this section.
The initial contractor/supervisor training course offered by EES was accredited in October 1991,
after New York State received authorization to give accreditation to persons pursuant to the
model accreditation plan. Note that the four needed to have the paperwork and fees submitted to
the NYSDOL to get their accreditation, i.e., their asbestos handler certificates. NYSDOL did
not, in fact, issue the certificates to the four. NYSDOL learned in time that there had been a
problem with the course the four had supposedly taken. Further, the variance under which the
NYSDOH Training Form could be used for up to 45 days would not serve in this case as an
accreditation by a State since the course had not been successfully completed and the form had
"Response action" means a method, including removal, encapsulation, enclosure, repair,,
operations and maintenance, that protects human health and the environment from friable asbestos-
containing building material (ACBM). ACBM means surfacing ACM, thermal system insulation ACM,
or miscellaneous ACM that is found in or on interior structural members or other parts of a school
building. See 40 C.F.R. § 763.83.
School operation and maintenance personnel must receive asbestos awareness training. See 40
C.F.R. §§ 763.91 and 763.92.
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been falsely issued by ESS. When the four participated in the asbestos abatement action at the
high school, their action was unlawful; they had not received proper accreditation since they had
not actually taken the course and passed the examination.6 EES, Miller and Young aided and
abetted in this violation. Pursuant to 15 U.S.C. § 2614,
It shall be unlawful for any person to -
(1) fail or refuse to comply with . . . (D) any requirement under subchapter II of
this chapter [i.e., AHERA] or any rule promulgated or order issued under
subchapter II of this chapter; ....
Pursuant to 15 U.S.C. § 2615(b),
Any person who knowingly or willfully violates any provision of section 2614 or
2689 of this title, shall in addition to or in lieu of any civil penalty which may be
imposed under subsection (a) of this section for such violation, be subject, upon
conviction, to a fine of not more than $25,000 for each day of violation, or to
imprisonment for not more than one year, or both.
Pursuant to 18 U.S.C. § 2(a),
Whoever commits an offense against the United States or aids, abets, counsels,
commands, induces or procures its commission, is punishable as a principal.
Accordingly, ESS, Miller and Young, by aiding and abetting the four to conduct response actions
without proper accreditation would have aided and abetted them in violating 15 U.S.C.
§ 2646(a), and therefore § 2614(1), and would be punished pursuant to 1 5 U.S.C. § 2615(b) as
principals.
The elements of the crime under TSCA/AHERA are
1. A person
2. Knowingly or willfully
3. Failed or refused to comply with the requirement under subchapter II that he may not conduct
a response action unless accredited by a State or pursuant to an EPA-approved course.
Carl Wolcott and three of the four were issued letters by the United States Attorney's Office,
Northern District of New York, giving use immunity for their truthful statements in cooperation with this
investigation. Although none received transaction immunity, it is not suggested that they be pursued,
given their cooperation with this investigation. The fourth attendee* Charles Jubrey, did not show up for
the interview and was not given use immunity. He could be charged with a direct violation of § 2646(a)
and with Title 18 offenses since he conducted a response action at the high school and his accreditation
was falsified. Note also that this investigation has uncovered a significant number of additional persons
who have received false accreditations through ESS and who may also be charged with Title 18 offenses
and, if they performed AHERA asbestos abatement work, § 2646(a) offenses.
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1. "Person" is not defined by TSCA or AHERA or generally by Title 18. Miller and Young
would, of course, be persons. ESS is not incorporated and is believed to be a partnership. In
many environmental statutes and in some provisions under Title 18, "person" is explicitly defined
to include a partnership. See, e.g., 33 U.S.C. § 1362(5), 18 U.S.C. § 921(a)(1). Absent such an
explicit provision in TSCA/AHERA, J would refer to 1 U.S.C. § 1. Pursuant to 1 U.S.C. § 1, in
determining the meaning of any act of Congress, unless the context indicates otherwise, the word
"person" includes partnerships as well as individuals.
2. Several environmental statutes, including the Clean Air Act, the Clean Water Act and the
Resource, Conservation and Recovery Act, have been held to be public welfare statutes.
Defendants charged with knowing violations of such statutes need only be shown to have had
general intent. The defendant need not be proven to have knowledge of regulatory requirements
or permits. The defendant need only know in general terms what he is doing. For example, for
an offense under RCRA, a defendant need not know about the regulatory scheme established by
RCRA or whether a waste is a listed or characteristic hazardous waste; he need only be proven to
know the material he was disposing of was harmful. I am aware of no court that has considered
TSCA and found it, too, to be a public welfare statute. I believe that, were a court to consider the
improper handling of toxic substances including asbestos, it would in all probability rule that
TSCA, too, is a public welfare statute. With respect to the willful standard, the most recent case
I am aware of is Sillasse Bryan v. United States. 118 S.Ct. 1939 (1998). The court found in a
case involving the Firearms Owners' Protection Act that, when used in a criminal context, the
term "willful act" is generally One undertaken with a "bad purpose." To establish a "willful"
violation of a statute, the Government must prove that the defendant acted with knowledge that
his conduct was unlawful. The Court rejected defendant's claim that the Government must prove
defendant's knowledge of the law, holding that the defendant need not be proven to be aware of
the specific law that his conduct may be violating. In the present instance, ESS, Miller and
Young were running a training program pursuant to AHERA requirements and had received
approval from EPA (for Calibrations, Inc., EES's predecesor) and NYSDOH to give the courses.
Accordingly, they knew exactly what they were supposed to teach, for what purpose, and under
what laws and regulations. Further, it is clear that by having the four simply fill out attendance
sheets and test answer sheets without actually taking the course and examination, EES, Miller
and Young knew that the accreditiations that the four were to be given would not have been
properly earned and would be used to enable the four to conduct response actions under AHERA
(thereby endangering not only the four, who would not know the risks associated with asbestos
handling and how to minimize such risks, but also all teachers, students, parents and others who
might be exposed to asbestos in the schools due to the uninformed, improper handling of
asbestos at the schools by the four7). Clearly, they acted with a bad purpose to disobey or
disregard the law. Indeed, as noted earlier, when John Wolcott asked Miller if they could get in
trouble for not completing the course, Miller replied "I'll see you in prison."
Note that the four supposedly received training not merely as asbestos handlers but as
supervisors. Given their complete lack of training, this potentially put at risk any asbestos handlers they
may have become responsible for supervising either at the high school or elsewhere.
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3. As noted above, 15 U.S.C. § 2646(a) prohibits any person from conducting a response action
unless that person has been accredited! According to the NYSDOH, the four have since been
involved in an asbestos abatement project at a high school in Colonie, New York.8 Although
each of the four had received temporary accreditation papers, i.e., the NYSDOH Training Form,9
1 do not believe that any could be held out as being actually accredited, given that they had not in
fact taken the training that is the basis for the accreditation. Information from the high school
should establish that the work was a "response action." Therefore, each of the four violated
TSCA/AHERA by performing asbestos abatement at the high school.10 By providing the
fraudulent documentation to establish that the four had taken the training, ESS, Miller and Young
aided and abetted the four in this violation.
In addition to the TSCA/AHERA crime, traditional Title 18 offenses could also be
charged against ESS, Miller and Young. Specifically, they could be charged with violating
§ 1001 (false statement) and possibly § 1341 (mail fraud).
Section 1001 provides:
Whoever, in any matter within the jurisdiction of any department or agency of the
United States knowingly and willfully falsifies, conceals, or covers up by any
trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent
statements or representations, or makes or uses any false writing or document
knowing the same to contain any false, fictitious or fraudulent statemnt or entry,
shall be fined under this title or imprisoned not more than five years, or both.
Since TSCA/AHERA requires training and accreditation either by EPA or by a State for
any person who conducts a response action, such training and accreditation are clearly matters
within the jurisdiction of EPA, an agency of the United States. As discussed above, "willfully"
merely requires proof of bad intent on the part of the defendant, not proof that the defendant
knew exactly what law or regulation he was violating. In the present case, ESS, Miller and
Young were supposed to be giving an accredited course and ESS had been accredited to do so.
Given the falsification of the attendance sheets and test answer sheets at the direction of Miller in
the presence of Young and the falsified NYSDOH Training Forms issued by ESS, there can be
no doubt that the actions of ESS, Miller and Young were knowing and willful. They falsified,
When Agents from CID first attempted to interview them, the Agents traveled to the high
school where the four were working. The four declined to be interviewed at that time.
ESS provided NYSDOH with the list of attendees. NYSDOH then sent by United Parcel
Service (UPS) the forms to be issued to the trainees by ESS for successful completion of the NYSDOH-
accredited training course. Normally, N YSDOL mails the certificates to the trainees after receipt by
NYSDOL of the application, application fee and course completion documentation. In the present case,
the fraud was detected in time and the NYSDOL certificates were not mailed to the four.
As noted above, Charles Jubrey has not cooperated with this investigation to date. He could
be charged directly with violating TSCA/AHERA by conducting a response action without valid
accreditation.
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concealed or covered up a material fact, the non-training of the four, and used the falsified
attendance sheets, test answer sheets and N YSDOH Training Forms to do so. The use of those
falsified documents would be considered a trick, scheme or device. Alternately, in having the
four fill out the false attendance sheets and test answer sheets, ESS, Miller and Young induced or
procured the commission of the § 1001 offense and are principals pursuant to 18 U.S.C. § 2(a)."
Section 1341 provides:
Whoever, having devised or intending to devise any scheme or artifice to defraud,
or for obtaining money or property by means of false or fraudulent pretenses,
representations, or promises, or to sell, dispose of, loan, exchange, alter, give
away, distribute, supply, or furnish or procure for unlawful use any counterfeit or
spurious coin, obligation, security, or other article, or anything represented to be
or intimated or held out to be such counterfeit or spurious article, for the purpose
of executing such scheme or artiface or attempting so to do, places in any post
office or authorized depository for mail matter, any matter or thing whatever to be
sent or delivered by the Postal Service, or deposits or causes to be deposited any
matter or thing whatever to be sent or delivered by any private or commercial
interstate carrier, or takes or receives therefrom, any such matter or thing, or
knowingly causes to be delivered by mail or such carrier according to the direction
thereon, or at the place at which it is derected to be delivered by the person to
whom it is addressed, any such matter or thing, shall be fined under this title or
imprisoned not more than five years, or both. . . .
Based on the interviews conducted to date, ESS provided N YSDOH with the attendance
list for the course to be taken by the four. This caused NYSDOH to send to ESS by UPS the
NYSDOH Training Forms that were then issued to the four by ESS. UPS is a commercial
interstate carrier. The facts establish that there was a scheme to defraud, given the false
documents that were prepared in order to secure the accreditations for the attendees. Note that
the scheme to defraud does not require the loss of money or tangible property.12 Congress passed
Note also that 18 U.S.C. § 2(b) provides that ""Whoever willfully causes an act to be done
which if directly performed by him or another would be an offense against the United States, is
punishable as a principal." By directing the four to falsify the attendance sheets and test answer sheets,
ESS, Miller and Young are as guilty as if they had filled in the sheets themselves.
There is also a possible conspiracy charge that may be considered. Pursuant to 18 U.S.C.
§ 371, "If two or more persons conspire either to commit any offense against the United States, or to
defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of
such persons do any act to effect the object of the conspiracy, each shall be fined under this title or
imprisoned not more than five years, or both." It is well settled law that, for purposes of the conspiracy
violation, the fraud need not be intended to cause pecuniary loss to the United States. A conspiracy to
impair, impede or obstruct a federal agency from discharging its functions may be charged under § 371.
There must be an intent to interfere with or obstruct one of the lawful governmental functions by deceit,
craft or trickery. In the present case, EPA is charged with ensuring that local education agencies properly
address asbestos hazards in schools and use properly trained workers in doing so. The actions of ESS,
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18 U.S.C. § 1346 to include within the term "scheme or artifice to defraud" a scheme to deprive
another of the intangible right of honest services. In the present case, ESS, Miller and Young
certainly did not provide honest services in that they did not provide training to the fours.
"Another" may include a number of people or entities in the present case. If Carl Wolcott's
statement and the statements of three of the four are accepted, they believed that he was trading
the car for actual training courses for four people. Therefore, Carl was defrauded in that he
traded a car estimated to be worth $1,800 for training for four persons that was not provided. It
may be questionable whether the four were defrauded if they, as seems to be the case, accepted
the falsified training and used it to secure their accreditations. Certainly, the local education
agency was defrauded of its right to honest services if it believed it had hired accredited persons
and not untrained workers, to conduct the asbestos abatement. Finally, the EPA and the
NYSDOH were defrauded to the extent they were entitled to have the trainers that they had
accredited under TSCA/AHERA actually train those coming to them to get accredited as
contractor/supervisors or asbestos workers.
In sum, ESS, Miller and Young appear to have engaged in violations of TSCA/AHERA
and also have committed some traditional crimes. Accordingly, I recommend that this matter be
referred for prosecutive assistance.
Miller and Young to falsify training records and get invalid accreditations for personnel who have not
been trained, impair EPA's ability to administer AHERA. The use of falsified attendance records and test
answer sheets establishes the intent of ESS, Miller and Young to do so by deceit, craft or trickery.
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