Monthly Archives: December 2013

The Perils of Environmental Crimes and How to Avoid them

ImageEPA’s enforcement data over the most recent 9 years shows a relatively small number of environmental crime cases initiated by the federal government.

The fact that less than 300 persons are charged by the federal government for environmental crime in a year points to several interesting facts. Why are there so few cases at the federal level with hundreds of thousands of companies operating in the country? There are two answers to this questions. The first one is that most environmental crime cases are prosecuted at the state or county levels. The second reason is that EPA mainly targets only the most egregious kinds of environmental violations for prosecution.

Internal memos with EPA show that the federal government looks at several factors before pursuing an environmental crime case. The first thing they look for is public endangerment. Any illegal activities that impact or have the potential to endanger the general public will be prime candidates for prosecution. For example, if a waste generator were to abandon its hazardous wastes at or near a school yard or discharge its toxic effluents into a public waterways that impact a public beach, the perpetrator will likely be prosecuted.

Another factor the agencies often consider is the mindset or behavior of the violator before the violations are committed. Although most environmental laws carry strict liability and do not require proof of intent, the agencies will still want to know what the violator was thinking. Did he intentionally commit the unlawful act in order to save money? Or did he knowingly operate a facility without an environmental permit knowing full well such a permit is required? Did he receive ample warnings from an agency inspector but choose to ignore the warnings and correct the violations? 

All of these factors go into the decision by the federal government on whether or not to file environmental crime charges against a violator.

The best way to avoid being targeted or appearing on the federal government’s radar screen is to heed the following advice:

  1. Always be responsive to an agency inspector’s warning and directive to correct a violation – no matter how small that violation may seem to be at the time. Many large enforcement cases started as a minor violation that management ignored and allowed it to fester into a negligent or knowing violation. Ignoring a agency’s first warning is never a good strategy under any circumstances.

  2. Perform internal environmental review or audit on a regular basis. It is like doing a regularly scheduled medical checkup. The sooner you discover a minor problem, the less costly it will be for you to fix it if you do it in a timely manner. Early detection is the key here. A small tumor can grow into a cancerous one if left untreated.

  3. Make sure your staff have sufficient knowledge of regulations to recognize a festering environmental problem. Your staff do not need to be environmental experts. But they do need to know enough to ask the right questions or stop a pending illegal act. Ignorance of environmental regulations is not blitz and is no excuse in the agency’s eyes.

  4. Always read your permits and understand what they require you to do in terms of operational conditions and recordkeeping. Seek outside help if you are not sure. Never wait for an inspection so that you can ask the inspector about your permit. By the time the inspector is at your facility, it is too late. The inspector is there not to provide you with free consulting advice. He is there to evaluate how well you are performing under your permit conditions.

  5. Do your own due diligence when it comes to hiring vendors to dispose of your hazardous wastes. If they offer you something that sounds too good to be true, it probably is.

  6. Never ever lie to a federal investigator or provide false information to the agency. Bad things will happen to you if you do. As with most white collar crimes, the cover-up is much more problematic than the actual crime itself.

Last but not least, always try to develop and maintain a cordial and professional working relationship with your agencies. If you are constantly “at war” with the regulatory agencies, you are diverting much needed energy and resources from your production and you also instill a high level of mistrust within the agencies about you. And that’s not a good position to be in.