Saturday, June 16, 2007
The Washington Legal Foundation has petitioned "the Environmental Protection Agency (EPA) to revise its criminal enforcement policy and practices to ensure that more reasonable non-criminal remedies - including administrative and civil remedies - are utilized as Congress intended to address alleged violations of the myriad of complex environmental laws and regulations." Press Release here -
The 13 page filing by this organization provides an array of examples to support its position. and further describes the prosecutorial discretion that permits "a growing number of unwarranted and abusive criminal prosecutions, particularly against smaller businesses, and their owners, and employees, for violations of federal laws and regulations." It will be interesting to see if the government responds.
Their petition can be found here-
Sunday, January 28, 2007
The sentences for two individuals who plead guilty to a 3 count indictment that related to polluting navigable waters were: 1) 5 months in prison and 2 months supervised release and 2) 3 years probation. Both individuals had restrictions placed upon them to preclude them from polluting U.S. waters. According to the DOJ press release,
"A joint factual statement filed in federal district court in New Jersey stated that on the night of Jan. 3, 2006, U.S. Coast Guard inspectors boarded the Sun New and discovered that members of the engine room crew had used bypass hoses to discharge oily wastes overboard into the ocean without using the vessel’s oily water separator. Upon further investigation, inspectors discovered that the crew of the Sun New had disposed of significant amounts of oil waste into the ocean at least twice during the voyage from South Korea to New Jersey. In September a grand jury in Newark, N.J., returned a three-count indictment charging Chang-Sig O and Mun Sig Wang with conspiracy, obstruction of justice, and a violation of the Act to Prevent Pollution from Ships in connection with the use of the two bypass hoses."
It is interesting to see the sentences given with respect to an environmental offense, albeit an obstruction of justice charge in one case and a violation of the Act to Prevent Pollution from Ships in the other case. Perhaps the greatest deterrent in this sentence was their restrictions on operating ships in U.S. navigable waters. The company, Sun Ace Shipping Company, had previously plead guilty and was "fined $400,000 [and] ordered to pat $100,000 as a community service payment. They were prohibited from "returning to the U.S. for three years for similar violations in conjunction with this case."
Sunday, December 24, 2006
As noted here an Alaskan state representative was recently indicted. But it looks like this might not be the end of things. According to the Anchorage Daily News , the investigation continues. Richard Mauer of the Anchorage Daily News provides an incredible detailed account of the investigation from start to present. But what remains to be seen is if the feds have a direction that is causing them to subpoena certain records. And is that direction one that looks at possible state corruption or federal corruption.
Thursday, December 21, 2006
The Department of Justice announced that Overseas Shipholding Group Inc., a large publicly-traded tanker company, entered a guilty plea to thirty-three counts of environmental and other violations from ocean dumping by a number of its vessels. The charges include illegal dumping of waste oil, violations of the Clean Water Act/Oil Pollution Act, the Act to Prevent Pollution from Ships, conspiracy, false statements and obstruction of justice The company will pay $37 million as part of its guilty plea, which involves $27.8 million in criminal fines and $9.2 million to fund various environmental projects. According to a DoJ press release (here):
The government’s investigation was initiated after the Coast Guard in Boston received a referral from the Marine Safety Branch of Transport Canada, indicating that records for the M/T Uranus showed that bilge waste was being disposed while the official Oil Record Book failed to account for the disposal of waste. It was determined that these illegal discharges occurred within U.S. waters off-the-coast of Maine and Massachusetts. During this time, crew members discharged approximately 150,000 gallons of oil-contaminated waste while “tricking” the Oil Content Meter designed to detect and prevent discharges containing more than 15 parts per million oil, the international limit established by the MARPOL Protocol, an international treaty implemented by the Act to Prevent Pollution from Ships.
The government’s investigation grew to include evidence of deliberate violations of the MARPOL Protocol and U.S. law by the following 12 oil tankers: M/T Ania, M/T Cabo Hellas, M/T Neptune, M/T Overseas Alcesmar, M/T Overseas Cleliamar, M/T Overseas Shirley, M/T Overseas Portland, M/T Pacific Sapphire, M/T Pacific Ruby, M/T Rebecca, M/T Uranus, and M/T Vega.
Prosecutions for violating the environmental laws are one of the primary areas in which corporations are charged with offenses and not just individuals. Often it is difficult to identify the particular employee responsible for the dumping, and the misconduct can be company wide, involving a number of facilities or vessels, as in this case. (ph)
Monday, July 3, 2006
After seeing the movie "An Inconvenient Truth," a good question to ask is to what extent does the Department of Justice prosecute those who fail to abide by environmental laws in the United States.
To start, one might glance at the EPA's webpage titled summary of criminal prosecutions (here). But one finds an immediate problem - it says -
"The Summary of Criminal Prosecutions resulting from environmental investigations provides information to the public and regulated community on concluded criminal enforcement cases, by the U.S. Government's Fiscal Year (October to September). The Summary will be updated regularly, and currently contains cases through 2001."
Did we stop prosecuting cases after 2001? Unlikely, as one finds occasional press releases on a variety of prosecutions post 2001.(see, e.g., here)
So I went to the link for the Environmental Crimes Task Force and found this.
I then went to the Syracuse Trac and found some interesting reports including the prosecution numbers for Federal Pollution Enforcement here. The opening sentences are not a good sign for recent prosecutions in this area.
Addendum - Accomplishments of the Environmental & Natural Resources Division can be found here.
Sunday, June 25, 2006
Puerto Rico Aqueduct & Sewer Authority were indicted for environmental crimes and entered into a settlement with the government that calls for payment of Ten Million Dollars in Criminal and Civil Fines. The agreement also requires the authority to "spend $1.7 Billion Improving Wastewater Treatment." The Authority plead guilty to 15 counts of violating the Clean Water Act. The consent decree is subject to a 30 day comment period. The consent decree is 162 pages long and can be found here.
Wednesday, September 28, 2005
According to a press release here of the U.S.Attorneys Office for the Northern District of California, a major international company, "A.P. Moller-Maersk, A/S of Denmark (“Maersk”) pleaded guilty today to providing false documents to the U.S. Coast Guard" resulting in a fine of $500,000 and an agreement to abide by an environmental compliance program. The fine is the maximum fine allowed by law for this offense, a violation of 18 U.S.C. s 1001.
The press release states that
"[t]he government’s investigation began on May 25, 2004, when members of the U.S. Coast Guard Marine Safety Office discovered waste oil in the overboard piping of the M/V Jane Maersk during a routine inspection. Further investigation by the Coast Guard and U.S. Environmental Protection Agency’s Criminal Investigation Division also uncovered evidence of false entries made in the Oil Record Book (ORB), a document required by MARPOL, a treaty ratified and implemented by the United States and other countries."
One individual previously plead guilty and received a sentence of four months community confinement for "destroying records, in violation of 18 U.S.C. § 1519."
Interestingly, the press release says at the bottom that "[t]he prosecution is the result of a 15 month investigation by the U.S. Coast Guard Investigative Services and the U.S. Environmental Protection Agency Criminal Investigation Division, with assistance from the Coast Guard Pacific JAG Office."
Sunday, September 11, 2005
Either September so far has been an unusually high month for tax and environmental prosecutions, or the DOJ has decided to specifically report these prosecutions this month. For tax offenses, the DOJ this month has the following press releases:
- #469: 09-09-05 SELF-PROCLAIMED “TAX LAW SPECIALIST” IN OHIO IS SENTENCED TO 70 MONTHS IN PRISON
- #465: 09-08-05 FIVE DEFENDANTS CONVICTED OF TAX CRIMES IN CONNECTION WITH PROMOTION OF ABUSIVE TRUST SCHEME
- #463: 09-08-05 GRAND JURY INDICTS “SURVIVOR” WINNER RICHARD HATCH ON CHARGES OF TAX EVASION AND DEFRAUDING CHARITABLE CONTRIBUTORS
- #460: 09-08-05 LAS VEGAS TAX-RETURN PREPARER ARRESTED
- #457: 09-06-05 FEDERAL COURT BARS NORTH CAROLINA MAN FROM PREPARING TAX RETURNS FOR OTHERS
In the environmental area, the following press releases were issued:
- #458: 09-07-05 DIVISION OF MCWANE, INC. SENTENCED TO $4.25 MILLION IN CRIMINAL FINES & COMMUNITY SERVICE RELATED TO WORKER SAFETY, ENVIRONMENTAL CRIME
- #449: 09-01-05 FACT SHEET: CLEAN AIR ACT SETTLEMENT WITH CARGILL, INC.
- #448: 09-01-05 FEDERAL, MULTI-STATE CLEAN AIR ACT SETTLEMENT WITH CARGILL, INC. SECURES MAJOR POLLUTION REDUCTIONS
Sunday, August 21, 2005
DOJ and EPA have entered into a settlement (subject to 30 day public comment and court approval) with Cosmed-Group, Inc. for environmental violations. The DOJ press release states that the settlement reached is for Clean Air Act violations and
"[u]nder the consent decree, . . . Cosmed will pay a $500,000 civil penalty and spend an additional $1 million to perform supplemental environmental projects that will improve air quality in urban areas. Cosmed also will complete environmental audits at all eight of its current and former facilities, and establish an environmental management system that will help ensure that the company fully complies with environmental regulations in the future at its three remaining facilities."
A Copy of the Complaint can be found here.
A copy of the consent decree can be found here.
Sunday, June 19, 2005
Many cases are resolved by the government civilly. In some cases it is because the element needed to proceed criminally is not present. That is the government may not have acted willfully. It is possible in some cases that Congress only permitted civil penalties, as opposed to criminal sanctions. In other cases it is because a satisfactory resolution is reached, that is the government is willing to accept a civil settlement as opposed to proceeding criminally.
This past week a civil resolution was reached on an environment case between the government and Volkswagon. In a press release of DOJ it is reported that
"The U.S. Department of Justice and the U.S. Environmental Protection Agency (EPA) today announced a Clean Air Act settlement with Volkswagen of America, Inc. Under the agreement, filed with the U.S. District Court for the District of Columbia, Volkswagen will pay $1.1 million to resolve its failure to promptly notify and correct a defective oxygen sensor affecting at least 326,000 of their 1999, 2000 and 2001 Golfs, Jettas, and New Beetles. This is the largest civil penalty to date for this type of violation."
Civil penalties of this nature are not automatic. As noted in the press release:
"In addition to paying the civil penalty, pursuant to the consent decree lodged today, Volkswagen will also improve its emissions defect investigation and reporting system to ensure future compliance.
The proposed consent decree is subject to a 30-day public comment period and final court approval"
Friday, May 20, 2005
Dupont reports here that they have in fact received a subpoena from the Environmental Crimes Section of the Environment and Natural Resources Division of the U.S. Department of Justice (DOJ). On their website they state that the subpoena:
"relates to perfluorooctanoic acid (PFOA) and its salts, C8, ammonium perfluorooctanoate, and FC-143. The subpoena calls for the production of documents previously produced to the U.S. Environmental Protection Agency and other documents related to those chemicals."
As one might anticipate, Dupont's counsel is also stating that "[w]e will be fully responsive to the DOJ in this matter."
Cooperation with the government is a key factor that can assist a company should there be evidence of any wrongdoing. Providing this information to the public and expressing a desire to cooperate is certainly a helpful move for a company. A key concern for a company here is not only a government investigation but the possibility of civil collateral consequences that might come from a government investigation or action. The Wall Street Journal provides here more details on a civil settlement of last year.
Monday, April 11, 2005
Mobil Exploration & Producing U.S. Inc. has agreed to settle with the DOJ and EPA on clean air act violations. The DOJ press release states that:
"The company will pay a $350,000 penalty and spend about $500,000 on operation improvements to control air pollution at its oil field.
"Mobil will also spend $99,849 on a public health project that will provide X-ray equipment, an X-ray processor and a pulmonary function testing machine to the Montezuma Creek Community Health Center in Montezuma Creek, Utah."
The government had filed a complaint in the US District Court of Utah alleging "that Mobil operated unpermitted equipment, exceeded air pollution emission limits for sulfur dioxide and volatile organic compounds, failed to monitor its main flare and equipment leaks, and failed to notify the EPA that the company was demolishing its gas plant that may have contained asbestos."
Thursday, March 17, 2005
Looks like Detroit is doing a cleanup --
The Department of Justice reports that "former Vice President of the City Environmental facility in Detroit, formerly owned by Texas-based U.S. Liquids, Inc., was sentenced today to 27 months imprisonment and a fine of $60,000, after pleading guilty to felony violations of the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA)." This is hardly a light sentence, another indication that Booker has not destroyed significant sentences being handed out in white collar cases.
According to a DOJ Press Release, the case involved the following:
"City Environmental was a waste treatment facility located at 1923 Frederick Street in Detroit, Michigan. It was in the business of receiving, treating, hauling and disposing of liquid and solid hazardous and non-hazardous waste. City Environmental was authorized to introduce pollutants to the Detroit Water and Sewerage Department (DWSD) system pursuant to a permit that the DWSD issued to the facility. City Environmental's permit set forth limits on the types and concentrations of pollutants that the company could discharge. The permit also required that City Environmental regularly take samples of its effluent to determine whether the facility was in compliance with permit requirements. In order to comply with permit discharge requirements, City Environmental was required to treat much of the wastewater before discharging it into the sanitary sewer.
"During the period from September 1998 until August 1999, as a result of the defendant’s conduct, millions of gallons of untreated waste went into the sewers of Detroit, and from there to the Detroit DWSD and to the Detroit River. The conduct also resulted in thousands of tons of hazardous waste being sent to a landfill that was not designed to handle hazardous waste."
Tuesday, February 8, 2005
W.R. Grace & Co., an industrial company currently in bankruptcy, and seven of its current and former executives were indicted by a federal grand jury in Montana for violating the Clear Air Act related to a now-closed mine in Libby, Montana, that emitted asbestos into the air (indictment here). The company and Alan Stringer, the former manager of the mine, were also charged with Obstruction of Justice for allegedly provided false and misleading information to the Environmental Protection Agency (EPA) during its investigation of the mine for possible CERCLA violations and preventing a Superfund team from gaining access to the mine. According to the government's charges, asbestos from the mine caused 1,200 people to become ill. (ph)
Saturday, November 27, 2004
W.R. Grace & Co., a large chemicals company that filed for bankruptcy due to asbestos liabilities, disclosed in an SEC filing that it is the target of a federal grand jury investigation related to its vermiculite mining and processing activities in Libby, Montana. According to the company's 8-K filing with the SEC:
Grace understands that the investigation is at an advanced stage and that it is likely to be indicted during the first quarter of 2005, unless a resolution of this matter can be reached with the government within such timeframe. Several current and former senior level employees associated with Grace's construction products business also have been named as targets of the investigation. On November 15, 2004 the U.S. Bankruptcy Court granted Grace's request to advance legal and defense costs to the employees, subject to a reimbursement obligation if it is later determined that the employees did not meet the standards for indemnification set forth under state corporate law.
Under the Department of Justice's Principles of Federal Prosecution of Business Organizations, a company's payment of the legal fees of its employees, at least when they are not required by law to be paid by the organization, can be a basis for finding that the company did not cooperate with the federal investigation. (ph)