Beginning in the 1970s, Congress enacted a set of laws to protect the nation’s air, water, and lands from uncontrolled pollution. These laws responded to the consequences of unregulated industrial development that had fouled those resources to the point where rivers were not fishable, air was unhealthy to breathe, and land contamination put Love Canal at the forefront of national consciousness. Over time, environmental regulation has been very successful at reducing the amount of pollution Americans face every day (see sidebar).
Because the substantial gains from these environmental statutes were accompanied by significant compliance costs, criminal provisions were included or added to deter illegal shortcuts. Managers and executives of businesses that produce pollutants are sometimes tempted to break the law to avoid the costs of treatment equipment and disposal fees. Most ECS prosecutions target those who have knowingly chosen to break the law because they feel environmental responsibility is too much work or too expensive. An early and continuing goal of criminal enforcement is to ensure that businesses that intentionally disregard environmental statutes do not gain a competitive advantage over those that bear their share of the cost of clean air, water, and land. In addition, criminal prosecution acknowledges that environmental stewardship has become a mainstream value, such that most Americans recognize that polluting and the illegal taking of wildlife are repugnant.
To achieve its mission, the Environmental Crimes Section (ECS) works closely with criminal investigators from a variety of agencies to develop evidence to support prosecutions under a broad array of statutes. Most environmental crimes require proof of a pollution event (i.e. discharge of a pollutant into a water of the United States, emission of an air pollutant, or dumping of waste on land) and proof of criminal intent. In most cases, the government proves that intent by showing that the defendant acted “knowingly.” That is, the government must show voluntary and intentional conduct, not conduct that is the result of an accident or mistake of fact. For other crimes, such as crimes involving asbestos removal or pollution from ships in international waters, the intentional failure to comply with workplace safety standards or the intentional falsification of records may be what drives the analysis of intent.
Once the prosecution team gathers sufficient evidence, the ECS attorney will present the case to a grand jury for indictment. After the case has been indicted, the work parallels that of any white collar criminal practice, with the addition of legal wrangling regarding the environmental statutes themselves. Because these cases routinely involve medium to large corporations, sophisticated white collar crime defense counsel are our usual adversaries, which means that our cases must be airtight.
During both the investigatory and prosecutorial phases, ECS attorneys pay careful attention to victims and victim rights. Although some environmental crimes may occur without direct harm to people (e.g., illegal discharges into a sewer system that is capable of treating the pollutant before it enters a water supply), in other cases there are numerous victims whose voices must be heard and whose injuries need to be addressed. Asbestos cases, toxic spills, dumping onto private land, and industrial “accidents” are examples of cases where victim rights are frequently implicated.
Whether a case goes to trial or is settled through a plea agreement, sentencing is one of the most important mileposts for an ECS case. In many cases, prison time for environmental crime is the one cost that a company manager or executive cannot pass on to customers and represents the ultimate deterrent.
The Environmental Crimes Section prosecutes a wide variety of cases. Here are some examples, beginning with the Resource Conservation and Recovery Act:
On March 11, 2011, Honeywell International Inc. pleaded guilty to knowingly storing hazardous waste without a permit, a felony under the Resource Conservation and Recovery Act. Uranium hexafluoride is used in the manufacture of fuel for nuclear reactors. Honeywell operates a uranium hexafluoride conversion facility near Metropolis, Illinois. At the Metropolis facility, air emissions from the conversion process are scrubbed with potassium hydroxide (KOH) prior to being released. The KOH scrubbers and associated equipment generate uranium compounds as a slurry that is pumped into 55-gallon drums. This “KOH mud” is a corrosive hazardous waste. To store KOH mud for any period longer than 90 days, Honeywell needed, but did not have, a permit from the state of Illinois. When it eventually obtained the necessary permit, it was subject to the condition that Honeywell build a storage area that would contain any spills, leaks or precipitation that accumulates near the drums of KOH mud. In 2009, criminal investigators from the U.S. Environmental Protection Agency searched the facility and found nearly 7500 illegally stored drums containing waste that was both radioactive and hazardous. Honeywell was sentenced to five years of probation and was required to pay a fine of $11.8 million. As a term of probation, Honeywell must comply with a 2010 consent order it entered into with the Illinois Attorney General’s Office and the Illinois Environmental Protection Agency, which imposes a schedule for the processing of KOH mud. As a further condition of probation, Honeywell must implement a community service project in the community surrounding the Metropolis facility, whereby Honeywell will develop, fund and implement a household hazardous waste collection program and arrange for proper treatment, transportation, and disposal of this waste.
The Clean Air Act is one of the Section’s core statutes:
In September of 2011, a jury found Keith Gordon-Smith guilty of Clean Air Act asbestos crimes related to the removal of copper pipes and scrap metal in a building that contained over 70,000 square feet of asbestos. Gordon-Smith knew that workers would have to tear through substantial amounts of asbestos insulation to recover the metal, but told them that there was no contamination. He sent his employees to their jobs without protective equipment and without any training on how to handle asbestos. At trial, a former employee testified that toxic insulation fell “like snow” and that he undoubtedly brought asbestos home on his clothes and equipment after work. As the removal project finished, Gordon-Smith left loose asbestos in exposed, outdoor heaps. Gordon-Smith was also prosecuted for failing to notify the EPA about asbestos-related work he performed at other sites, including: schools, colleges, and a hospital complex. He was sentenced to 72 months in prison.
The Clean Air Act also addresses mobile sources of pollution—cars and trucks—which can be difficult to regulate because each contributes a small amount to a much larger problem. In Nevada, the Environmental Crimes Section, together with the United States Attorney’s Office, took a proactive step to deter a group that contributes substantially to this problem, emissions inspectors who pass failing cars for a fee:
Ten Nevada automobile emissions inspectors were indicted on the same day in January of 2010 for Clean Air Act violations. Automobile emissions inspections are very important in Las Vegas, where there can be dangerously high levels of carbon monoxide and ozone. Despite the importance of emissions testing, unscrupulous inspectors issued false emissions certificates by “clean scanning” cars for a fee. To clean scan a car, an inspector would run emissions tests on a vehicle that was sure to pass, but enter the vehicle identification number of a customer’s vehicle that would have failed. The emissions testing system then uploaded a passing inspection report to a state database for the noncompliant vehicle. Eventually this scheme came to light and ten inspectors—each of whom acted alone—were identified and indicted for falsifying inspections though clean scanning. Nine of the ten defendants falsified more than 200 inspection reports. One defendant, William Joseph McCown, falsified 758. All 10 inspectors pleaded guilty and were sentenced. Although each clean scanning event resulted in relatively small amounts of pollution, the aggregate of the violations had a substantial environmental impact. By aggregating charges over ten individual defendants, this section sent a significant deterrent message.
Whether through deterrence or through special conditions of probation and compliance plans, the Section always seeks positive environmental impact. That impact can frequently be seen in cases involving oceangoing ships, whose diesel engines are the size of small factories:
On September 21, 2011, the U.S. Coast Guard conducted an inspection of the M/V Gaurav Prem in the Port of Mobile, Alabama. During the inspection, crewmembers told inspectors that senior officers had caused the overboard discharge of oily bilge waste from the M/V Gaurav Prem many times during the voyage from South Korea to Mobile. Although illegal, such discharges had to be recorded in the vessel’s Oil Record Book, but they were not. Although the United States does not have direct jurisdiction over dumping in international waters, it does have jurisdiction over the use of false records in port. On May 30, 2012, Target Ship Management Pte., Ltd., M/V Gaurav Prem’s operating company, pleaded guilty to violating the Act to Prevent Pollution from Ships by failing to maintain an accurate Oil Record Book. Target was sentenced to pay a $1 million fine and to make a $200,000 community service payment to the National Fish and Wildlife Foundation. The company must also complete a three-year term of probation and implement an environmental compliance plan. The Chief Engineer and Second Engineer of the vessel also pleaded guilty, were sentenced to probation, and were ordered to leave the country.
In a related case, the ship’s captain, Prastana Taohim, was convicted by a jury of two counts of obstruction. Those convictions stemmed from his ordering crewmembers to throw hundreds of plastic pipes overboard. These pipes had been used to fumigate a grain shipment with insecticide. Taohim then ordered that the ship's Garbage Record Book be falsified to conceal the disposal. On August 15, 2012, Captain Taohim was sentenced to serve a year and a day of incarceration followed by three years’ supervised release.
Similarly, in September 2009, Polembros Shipping Ltd. pleaded guilty to crimes involving the Act to Prevent Pollution from Ships, the Nonindigenous Aquatic Nuisance Prevention and Control Act, and the Ports of Waterways Safety Act. The company also admitted that it had illegally concealed the fact that fuel oil leaked into the forepeak ballast tank of its ship, the M/V Theotokos. Upon conviction, Polembros was ordered to pay a $2.7 million criminal fine, as well as a separate $100,000 community service payment to the Smithsonian Environmental Research Center. Polembros was also placed on 3 years probation, during which all of the company’s 20 ships were barred from entering U.S. ports and territorial waters.
The Section has been leading a nationwide effort to make the workplace safer for America's workforce by bringing cases against employers who flaunt both environmental and workers safety laws.
Atlantic States Cast Iron Pipe Co. (a division of McWane Inc.), and four of its managers were prosecuted for violations of environmental and worker safety laws, as well as for obstructing federal investigations into their conduct. The company, through its managers, engaged in an eight-year conspiracy to discharge oil and other pollutants into the Delaware River (violating the Clean Water Act), to falsify air pollutant emissions tests (violating the Clean Air Act), and to conceal serious worker injuries from health and safety inspectors (violating the Occupational Safety and Health Act). In the pursuit of profit, corporate managers created a very dangerous workplace, causing employees to suffer severe burns, broken bones, amputations, and even death. These practices—where worker health and safety and environmental protections were traded for corporate profits—became known as the “McWane Way.” After an eight-month jury trial, the company was sentenced in April 2009 to pay a fine of $8 million and serve a four-year probationary period, during which it is subject to oversight by a court-appointed monitor. The trial court also sentenced McWane managers to incarceration ranging from six to seventy months.