Environmental Crimes Bulletin - DOJ Reports Banner Year for Environmental Criminal Enforcement, But What Does That Mean?, October 1998

As the dog days of summer wind down each year, the Department of Justice (DOJ) publicizes its enforcement accomplishments for the prior fiscal year (which runs from July to July). And, as surely as the sun rises and sets, the environmental enforcement juggernaut reports a staggering number of environmental cases reaching critical milestones. In Fiscal Year 1997, DOJ garnered 292 indictments and 172 pleas/convictions in environmental cases either referred by EPA or initiated by DOJ prosecutors. Make no mistake, these impressive numbers are an important measure of DOJ's work toward achieving deterrence. However, they are not the only measure of DOJ's success. If the recent wave of DOJ and EPA statements aimed toward encouraging corporate self-policing and voluntary disclosure is ultimately to take root in the regulated community, there needs to be some means for determining whether these enforcement numbers reflect sincere efforts by the government to seek out meaningful violations. A brief survey of some recent cases serves to illustrate this point. According to EPA and DOJ guidelines, criminal enforcement for environmental violations is appropriate predominantly where (1) substantial harm to the public or environment resulted, or could have resulted, from the violation; (2) the violation resulted from particularly culpable conduct; or (3) some combination of the two. That being the case, it comes as no surprise that DOJ has invested extensive amounts of time and resources in investigating a case in which hazardous wastes were improperly stored in an unlocked trash bin and, as a result, caused the deaths of two small boys who played in the bin - i.e., substantial harm. In July of this year a federal grand jury indicted the owner of the company, the company itself having pled no contest to a charge of knowing endangerment and having been assessed a $1.5 million fine in 1995. Similarly, one would expect DOJ to continue to vigorously pursue criminal pleas like the one that the Department finalized in July of this year with a company which had been falsifying Clean Air Act testing that it performs for major fuel corporations - i.e., culpable conduct. Numerous similar cases, involving other lab testing companies, are pending. In contrast, however, DOJ continues to maintain a steady diet of cases which do not clearly satisfy either prong of the "substantial harm/culpable conduct" test. For example, DOJ continues to criminally prosecute a ferry boat service in the U.S. Virgin Islands and its owner for a small discharge of oil from one of its ferry boats, despite the cooperation of the defendant (who consented to initial searches and waived Miranda rights) at the outset of the investigation. Similarly, according to reports published in August of this year, DOJ finalized a guilty plea by a producer of hot sauce for discharging tap water (used to wash chili peppers) into a drainage ditch that runs to the Rio Grande River, even though the company had applied for, and was awaiting the processing of, the appropriate Clean Water Act discharge permit prior to the time of violation. Trust between the regulated community and enforcement officials is critical to encouraging companies to proactively identify and correct their environmental problems, because the diluted standard of intent for proving environmental crimes leaves enforcement officials with enormous discretion. If the government's message of deterrence is to be heeded, the regulated community must know that the cases which DOJ brings at least meet the government's own standards for criminal prosecutions.