The criminal prosecution of environmental wrongs is not new to society. In the l970s, however, the regulation of activity affecting the environment virtually exploded resulting in greater types of conduct being declared criminal. Allegations of criminal activity (crimes against nature and now “environmental terrorism”) typically also include allegations of “traditional” criminal activity such as conspiracy, aiding and abetting, mail fraud and perjury. The investigation of environmental criminal activity usually encompasses scrutiny of multiple individuals and/or entities. As a result, it is absolutely critical to obtain at least some knowledge of the steps available to protect the entity being investigated whether it is a company, an individual or both.
Environmental criminal provisions have been “on the books” since the late-1800s, with the enactment of the Rivers and Harbors Act of 1890. However, it was not until the l970s that environmental criminal statutes began to fully blossom. Currently, there are twelve major environmental criminal statutes that govern the actions of the regulated community. These are the Clean Air Act, 42 U.S.C. § 7413(c); the Clean Water Act, 33 U.S.C. § 1319(c); the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9603(b); the Resource Conservation and Recovery Act, 42 U.S.C. § 6928(d) and (e); the Marine Protection, Research and Sanctuaries Act, 33 U.S.C. § 14ll and 1415(b); the Toxic Substance Control Act, 15 U.S.C. § 2615(b); the Emergency Planning and Community Right to Know, 42 U.S.C. § 11045(b)(4); the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136(j) and (1); the Migratory Bird Treaty Act, 7 U.S.C. § 703; the Endangered Species Act, 16 U.S.C. § 1538 and 1540; and the Transportation of Hazardous Materials Act, 49 U.S.C. § 1809.
In addition to the environmental criminal provisions, prosecutors “supplement” indictments with the addition of what are considered typical criminal statutes, such as conspiracy, aiding and abetting and others. These include: Conspiracy, 18 U.S.C. § 371; Aiding and Abetting, 18 U.S.C. § 2; False Statement, 18 U.S.C. § 1001; Mail Fraud, 18 U.S.C. § 1341; Wire Fraud, 18 U.S.C. § 1343; Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1963; False Claims, 18 U.S.C. § 287; Perjury, 18 U.S.C. § 1623; and Obstruction of Justice, 18 U.S.C. § 1503. This “stacking” of offenses is important as in the event of a conviction, all of the activity charged is considered in the sentencing phase even though some of the charges may have been dropped or have resulted in an acquittal.
Criminal sanctions can be imposed under standards of strict liability, negligence, knowing conduct and intentional misconduct. Virtually all federal environmental statutes create general intent crimes, which means the government is not obliged to prove specific intent to violate the law or a ‘black heart.” Ignorance of the law is no excuse. The government must prove as part of its prima facie case that the defendant knowingly permitted, directed or participated in acts which are shown at trial to violate the law, irrespective of intent. A “knowing endangerment” charge under RCRA, CAA and/or the CWA could net a jail term of 15 years even in the absence of intent to do actual harm.
How does this play out in real life? On August 9, 2006, a federal grand jury in Corpus Christi, Texas, returned a 10-count indictment today, charging Citgo Petroleum Corporation, its subsidiary, Citgo Refining and Chemicals Co., and the environmental manager at its Corpus Christi East Plant Refinery with criminal violations of the Clean Air Act and the Migratory Bird Treaty Act (MBTA). According to the Department of Justice press release, Citgo was indicted on two counts of operating its refinery in Corpus Christi in violation of the National Emission Standard for Benzene Waste Operations and two counts of operating open top tanks as oil water separators without first installing the emission controls required by federal and state regulations.
The indictment also charges the refinery’s environmental manager, Philip Vrazel, with failing to identify in a report filed with the Texas Commission on Environmental Quality for the year 2000 all of the points in the refinery wastewater system where a potentially harmful chemical, benzene, was generated.
According to the indictment, Citgo operated its Corpus Christi refinery in 2000 with more than 57 megagrams of benzene in waste streams that were exposed to the air. A megagram is equal to one metric ton. Federal regulations limit refineries to operating with no more than six megagrams of benzene in their exposed waste streams. Citgo is also charged with operating in 2001 with more than seven megagrams of benzene in its exposed waste streams. It is also alleged that Citgo used two large open top tanks as oil water separators between January 1994 and May 2003 without the required emission controls. The indictment alleges that during an unannounced inspection in March 2002, inspectors found approximately 4.5 million gallons of oil in the two open top tanks. Citgo Refining and Vrazel are also facing five counts of violating the Migratory Bird Treaty Act for the illegal taking of protected birds. The indictment alleges that birds were found coated with oil as a result of landing in the open top tanks.
If convicted, Citgo faces up to $500,000.00 in fines, or twice the gross economic gain, whichever is greater, and five years of probation. Vrazel faces fines of up to $500,000.00 and up to five years in prison.
More later.
As always, e-mail me with any comments or questions at walter.james@jamespllc.com
WDJiii