Criminal Provisions of Federal Environmental Law

Jereme M. Altendorf, CHMMAltendorf Regulatory Consultants, LLC

US Coast Guard, LCDR Reserve

An overview

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Teaching Modules

Module 1: Environmental Law History

Module 2: Environmental Law Potpourri

Module 3: The ‘Majors’

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Law Enforcement

Regulatory concepts

Regulators

Criminal procedures

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Why Do I Need This Course?!?

States must meet or exceed federal law

So you know who to call4

MODULE ONE

Environmental Law

History

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...And you may ask

yourself...

Is there too much regulation?

Why do we need so much?

Is all of this really necessary?

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Defining the Problem

“The one who does not

remember history is

bound to live through it again.” -George Santayana, 1863-1953, American philosopher

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It All Started Here...Rivers & Harbors Act

(Refuse Act) 33USC§407

First Environmental Law: 1899

Prohibits discharge of refuse into navigable waterways

ACOE and USCG

Discharge or excavation/filling of navigable waterway$2500 Fine and One year jail

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YET LITTLE CHANGED...

...Until The Modern Environmental Movement

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DONORA PA

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Donora, PA at noon on Oct. 29, 1948 as deadly smog envelops the town.(Pittsburgh Post-Gazette Photo)

atmospheric weather inversion + zinc smelter stacks

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TIM

ES BEACH

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LOVE CANAL

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LOVE CANAL

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Divide into teams and obtain scenariosPrimary applicable statute and regulations

Any secondary legal considerations

Reportable quantity/health based standards etc.

State and/or local agencies that may assist

Determine brief-out representative

Group Project

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Team #1

Two commercial pesticide applicators operated separate unlicensed structural pest control businesses for at least three years, applying

restricted use agricultural pesticides indoors and distributing unlabeled pesticides in food and

beverage containers. The most recent case involved the use of eldrin.

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Team #2

Federal Custom’s Inspectors in Los Angeles, CA, discovered approximately 278,256

kilograms of hydrochlorofluorocarbon - 22 (HCFC-22), in an abandoned warehouse near

the Port of LA.

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Team #3

Drums of pentachlorophenol (PCP) were found at a wood treatment facility. The EPA had issued a RCRA

Corrective Action order against the facility for improper storage, and during the follow-up

inspection the drums were gone. An anonymous tip to a local city inspector enabled EPA to confirm that

the PCP drums were dumped in a nearby creek.

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Team #4

During their last Coast Guard inspection at the Port of San Diego the crew of the M/V

CAPITOLA confidentially reported to one of the Coast Guard inspectors that they had an illegal oily waste bypass system. The “magic

pipe” proved to be a bypass hose that allowed the dumping of waste oil overboard.

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Team #5

While working on a sewer line in Orange County, POTW employees discover the pH levels of the water had plummet to below 1.0. Luckily, only

one company on the line in that area uses sulfuric acid and copper sulfate in the manufacturing

processes. During the initial investigation, several storage deficiencies are discovered as well as a

pipe that connected to a storm sewer outfall towards the back of the property.

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Quick Facts

Fig. 1: Growth of Environmental Laws in the US from 1945-1990

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Quick Facts

Fig. 2: Growth of Federal environmental regulations.

**Pages in the Code of Federal Regulations totaled 16,400 in 1999—almost 10 percent growth in one year.**

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Quick Facts

Fig. 4: A New Direction for Corporations

Where are we Today? What did the last decade look like?

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Quick Facts

Fig. 3: Trends in EPA Enforcement

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Environmental Crime Stats

0

75

150

225

300

375

450

FY04 FY05 FY06 FY07 FY08

5764

154

186

77

176

248

278

320

293319

340

305

372

425

Cases initiatedDefendants chargedYears of incarceration

Figure 125

Environmental Crime Stats

*Inflation adjusted to FY08 Dollars*

$0M

$25M

$50M

$75M

$100M

$125M

$150M

FY04 FY05 FY06 FY07 FY08

$12

$141

$31$29

$7

$64$66

$46

$111

$54

Fines and restitutionCourt ordered environmental projects

Figure 2

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FY09 & FY10 Environmental Crimes

0

100

200

300

400

FY 2009 FY 2010

7276

289

200

346

387

Cases initiatedDefendants chargedYears of incarceration

$0

$25

$50

$75

$100

FY2009 FY2010

$18

$10

$41

$98

Fines and restitutionCourt ordered environmental projects

Figure 3 Figure 427

How is environmental law different?

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State and Local Role

0%

15%

30%

45%

60%

75%

90%

CAA CWA FIFRA RCRA SDWA

78%73%

77%

67%

82%

Fig. 5: Percent of statute delegated to states

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Public Welfare Offense Doctrine

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Responsibility

Authority to preventAbility to remedy

IntentKnowledge of regulation

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In what ways does the Public Welfare Offense

Doctrine differ from traditional law enforcement?

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What does this mean for the

regulated community?

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Take Home Points

Massive regulatory scheme exists for a reason: historical pollution events

Role of state & local officials: enforce federal law

Intent to violate or knowledge of regulation: not required for enforcement

LE and regulators: cooperation required

for success

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All Module References

1. Cole, Joseph E. “Environmental Criminal Liability: What Federal Officials Know can Hurt Them -- Or Should Know.”

2. Sullivan, Thomas. “Environmental Law Handbook” 21st Edition, Gov’t Institutes.

3. Selected Environmental Law Statutes 2007-2008

4. LaGrega et al. “Hazardous Waste Management” 2nd Edition.

5. Mason, Steve. “You Mean There is More than Superfund...? Basics of Environmental Statutes”

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Contact information:Jereme M. Altendorf

Phone: 619-630-5325Email: Altendorf@regulatoryconsultants.org

Twitter: @AltRegConsult

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