The mining industry has again become the subject of criminal environmental enforcement, this time in Alaska, and it is likely to remain a target of future enforcement actions. With scrutiny on the industry, mining companies should consider carefully reviewing their environmental compliance and management programs. It may also be useful to bring in Environmental Counsel to conduct a periodic review of compliance or if violations are suspected or have occurred.
Background
Earlier this month, a geologist with XS Platinum, Inc. (XSP) pled guilty to criminal violations of the Clean Water Act (CWA) for intentional discharges into Alaskan salmon streams adjacent to the company's Platinum Creek Mine in western Alaska. He now faces a $10,000 fine and up to five years in jail. Three top company officials and XSP have also been charged, and a former process plant manager has already pled guilty.
According to the indictment, the company told regulators during permitting that the mine would re-use all of its wastewater and would be a "zero discharge" facility. However, the defendants allegedly knew that wastewater containing toxic metals was seeping from the mine's settling ponds and that the mine was generating more wastewater than it was consuming. Lining the settling ponds was discussed, but allegedly dismissed by senior management. In order to get rid of the excess wastewater, the defendants allegedly discharged wastewater into nearby streams without a CWA permit and then submitted required reports stating there was zero discharge.
Why Criminal Instead of Civil Enforcement?
Generally speaking, criminal enforcement actions tend to focus on environmental violations that a prosecutor finds egregious or show a pattern of behavior. In order to charge a defendant, the prosecutor must prove that he intended to commit the act, but does not necessarily need to prove that he intended to break the law. Top company officials, although usually not the ones to have committed the overt act(s), are often charged under a conspiracy theory. Corporations are typically charged because they are responsible for (most) actions of their employees.
Lessons for the Mining Industry
Permit applications should include detailed descriptions of the proposed discharges, measures to guarantee compliance, and procedures to be followed in the event that actual waste streams are not as anticipated. During operations, mine operators should exercise diligent environmental management and use routine controls to adhere to permit conditions. Periodic compliance reviews are also prudent.
Although this is the first federal criminal CWA case against a mining company in Alaska, it follows similar cases in other jurisdictions. The mining industry will likely continue to be highly scrutinized going forward. For that reason, it is important that companies support their employees' efforts to diligently comply with all permit terms and conditions. Questionable issues may be best resolved through the assistance of Environmental Counsel.
Venable's Environmental Group has significant experience in permitting complex mines as well as defending criminal environmental enforcement actions against corporations and employees, including those brought under the CWA. Please contact the authors or your Venable counsel with any questions or for assistance.