Vol. 13, No. 1
January 2012
MESSAGE FROM THE CHAIR
agencies, the House Committee on Natural Resources,
and the Senate Committee on Environment and Public
Works. We have had a bit of a delay in adding jury
instructions from the most recent criminal
environmental trials, but anticipate that being on the site
as well by January 2012. We hope you enjoy the
timely articles in the current newsletter. If you have an
enforcement-related topic you’d like to write about,
please contact our newsletter editor, Ben Lippard, at
[email protected]. I wish everyone a happy and
healthy holiday season.
Bruce Pasfield
Chair, Environmental Enforcement and
Crimes Committee
This is an interesting time to be an environmental
litigator. The Environmental Protection Agency (EPA)
has been busy on the rulemaking front, particularly in
the Clean Air Act arena, but many of its efforts are
being delayed and challenged. Further, on January 9,
2012, the Supreme Court is set to hear oral argument
in Sackett v. EPA, a case that brings into question
EPA’s ability to issue administrative consent orders
without allowing for pre-enforcement judicial review.
At the same time, the Obama administration now has
its full complement of investigators in place and
enforcement is on the upswing. Members of our
committee have been busy tracking these events and
have several programs planned to highlight the legal
issues that environmental practitioners and the
regulated industry are facing. For example, our
committee will be sponsoring a panel at the ABA’s 41st
Annual Conference on Environmental Law on March
22–24, 2012, that will focus on EPA’s implementation
and enforcement of its greenhouse gas emissions rules
and the various challenges to those rules that are
filtering through the court system. We are also planning
a Quick Teleconference to coincide with the Supreme
Court’s decision in Sackett.
Visit the Committee Web site
www.ambar.org/EnvironCommittees
Ever needed to find a quick link to a state agency’s
Web site? If so, we now have one stop shopping for
you on our committee’s new Web site. We’ve created
a “relevant links” page that will give you easy access to
the Web sites for the environmental agencies for all 50
states. We also include links to relevant federal
1
Upcoming Section Programs—
Environmental Enforcement and
Crimes Committee Newsletter
Vol. 13, No. 1, January 2012
Benjamin S. Lippard, Editor
For full details,
please visit
www.ambar.org/
EnvironCalendar
In this issue:
Message from the Chair
Bruce Pasfield ......................................... 1
January 18, 2012
Beyond 2012: Meeting the Nation’s Environmental,
Energy and Resources Challenges
Live CLE Webinar
District Court Dismisses Clean Air Act
Enforcement Lawsuit Against Current and
Former Owners of a Coal-Fired Power Plant
Benjamin Lippard .................................... 3
January 25, 2012
Crop and Livestock Insurance Law From the
Ground Up
Primary Sponsor: General Practice, Solo and
Small Firm Division
Live CLE Webinar
Numeric Nutrient Standards: The View from
the Office of Civil Enforcement, EPA
Adam Kushner and Irene Hantman ........ 8
Environmental Crimes Enforcement Act Is
Unnecessary and Carries Risk of Severely
Punishing Simple Negligence
Bruce Pasfield and Elise Paeffgen ........ 10
February 1-7, 2012
ABA Midyear Meeting
New Orleans
EPA Is Cracking Down on Criminal Lead
Paint Violators
Roger Allen ............................................ 16
February 22-24, 2012
30th Annual Water Law Conference
San Diego
New Vehicle Testing Technology Makes
Inspection Fraud Easier to Detect, Spurs
Increased EPA Criminal Enforcement
Roger Allen ............................................ 18
March 22-24, 2012
41st Annual Conference on Environmental Law
Salt Lake City
April 19-20, 2012
2012 ABA Petroleum Marketing Attorneys’ Meeting
Washington, DC
Copyright © 2012. American Bar Association. All
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electronic, mechanical, photocopying, recording,
or otherwise, without the prior written permission of
the publisher. Send requests to Manager,
Copyrights and Licensing, at the ABA, e-mail:
[email protected].
June 1, 2012
2012 National Spring Conference on the
Environment
Baltimore, MD
Past program materials and podcasts
are available for purchase. Please click
on the shopping cart icon on the
Section Calendar Archive located here:
Any opinions expressed are those of the
contributors and shall not be construed to
represent the policies of the American Bar
Association or the Section of Environment,
Energy, and Resources.
http://www.americanbar.org/groups/
environment_energy_resources/events_cle/
section_calendar_archive.html
2
DISTRICT COURT DISMISSES CLEAN AIR
ACT ENFORCEMENT LAWSUIT AGAINST
CURRENT AND FORMER OWNERS OF A
COAL-FIRED POWER PLANT
and operators on all counts and dismissed the action in
its entirety. While such dismissal of an environmental
enforcement lawsuit at the rule 12(b)(6) stage is a
relatively unusual result, the court’s analysis was
thoughtful and well reasoned, applying the clear
statutory language and well-settled principles of
equitable jurisprudence to the claims asserted by the
United States and the intervenor states. Judge
McVerry’s decision has been apealed to the Third
Circuit.
Benjamin Lippard
On October 12, 2011, Judge McVerry of the U.S.
District Court for the Western District of Pennsylvania
decided United States v. EME Homer City
Generation et al., —F. Supp. 2d —, 2011 WL
4859993, a 2011 Clean Air Act enforcement lawsuit
brought by the United States and New York, New
Jersey, and Pennsylvania (collectively, the plaintiffs or
the government). The lawsuit alleged that the current
and former owners of the Homer City electric
generating station had violated the Clean Air Act’s
prevention of significant deterioration (PSD) program
by modifying the Homer City station in the 1990s
without applying for a PSD permit for those
modifications and installing the best available control
technology (BACT). The lawsuit also alleged that the
failure to incorporate the allegedly applicable BACT
requirements into the Homer City station’s title V
permit violated that program as well; it also alleged
violations of state air permit requirements.
I. Factual Background
The Homer City generating station is a coal-fired
electric power plant located in western Pennsylvania.
The plant was originally owned and operated by two
companies, Pennsylvania Electric Company and New
York State Electric and Gas Corporation, from 1968
until 1999, when the plant was sold to EME Homer
City Generation LP. 2011 WL at *1. EME Homer City
sold the plant in 2001 and leased it back from a
number of limited liability companies. The projects that
allegedly gave rise to PSD violations were
replacements of several components of the boiler in
1991, 1994, 1995, and 1996; the former owner/
operators did not apply for a PSD permit for any of
these alleged modifications, and denied in the lawsuit
that these projects triggered any obligations under the
PSD program. Id. The former owner/operators timely
applied for a title V permit in 1995, which was
ultimately issued in 2004 (after they had sold the plant).
The government brought suit against both the current
and former owners of the Homer City plant, likely
prompted by the fact that several district court
decisions had—in litigation dealing with such owners
separately—held that current operators not involved in
the alleged past violations were not liable under the
Clean Air Act at all, and that former operators were
not appropriately subject to injunctive relief because
they had no ability to access or control the facility and
no prospects for future violations at that facility. See
United States v. Midwest Generation, LLC, No. 09cv-5277, 2011 WL 1003916 (N.D. Ill. Mar. 16,
2011) (former owner not subject to injunctive relief to
correct past PSD violations); New Jersey v. Reliant
Energy Mid-Atl. Power Holdings LLC, No. 07-cv5298, 2009 WL 3234438 (E.D. Pa. Sept. 30, 2009)
(same); United States v. Midwest Generation, LLC,
694 F. Supp. 2d 999 (N.D. Ill. 2010) (current owner
not liable under Clean Air Act for PSD violations
allegedly committed by past owner). The district
court’s October 12, 2011, decision granted motions to
dismiss filed by both the current and former owners
In June of 2008, EPA issued a notice of violation
(NOV) to the current owners of the Homer City
Station, with NOVs issued to the other defendants in
the Homer City litigation in 2010. 2011 WL at *2. The
United States filed suit on January 6, 2011, with state
intervenors joining the case shortly thereafter. The
lawsuit alleged violations of the PSD program, the title
V program, and a number of state law requirements.
II. Legal Analysis
Pursuant to rule 12(b)(6), the defendants moved to
dismiss the complaints on a number of different
grounds, not all of which were reached by the district
court. Due to this procedural posture, the district court
was required to assume that the factual allegations
3
made by the plaintiffs were true—so, for purposes of
its decision, it assumed that the projects undertaken by
the former owner/operators triggered the PSD
requirements, and had been constructed without the
required permit. 2011 WL at *3. Even assuming that
the government was correct in alleging that there had
been past PSD violations at the Homer City plant,
however, the district court ultimately concluded that the
claims for civil penalties and injunctive relief against
both the current and former owners failed as a matter
of law.
looking and framed in terms of that which utilities must
do before commencing construction,” and noted that
the operator’s duty is not “prescience” but merely a
requirement to make “a reasonable estimate [prior to
commencing construction] of the amount of additional
emissions that a change will cause.” 2011 WL at *6.
The court noted that “there are no clear, bright-line
rules” regarding the applicability of PSD to existing
sources, and cited to judicial decisions lamenting “an
abysmal breakdown in the administrative process”
addressing this fundamental issue. Id. Indeed, the court
characterized the PSD program as passed by
Congress as “somewhat reliant on the proverbial fox to
guard the henhouse,” 2011 WL at *9, but, even so,
was critical of the courts that have allowed
“understandable frustration with apparent efforts to
evade the PSD program” to color their interpretation
of the statute and “construe [it] more broadly[.]” 2011
WL at *10. Expanding the scope of PSD enforcement
beyond the statutory language is particularly
problematic, in the district court’s view, where “it is
unclear, even in retrospect, whether the operators or
the government regulators are correct” about the
applicability of PSD, and that accordingly “it is
reasonable to construe [the Clean Air Act] in
accordance with its plain text as being directed to the
initial decision of whether or not to obtain a PSD
permit.” 2011 WL at *10.
The district court began by providing a detailed
overview of the complex statutory scheme set forth by
the Clean Air Act, discussing the purposes of the act
and the specific programs at issue in the case: the
prevention of significant deterioration (PSD) program,
42 U.S.C. §§ 7470–90, which regulates new and
modified sources of air pollution to ensure that air
quality is not degraded in areas that meet federal
standards, and the title V program, see 42 U.S.C. §
77661a–c, which is designed to gather the
requirements that apply to emissions from a particular
facility into a single enforceable document. 2011 WL at
*4–7. In its discussion of the overall statutory
framework, the district court recognized a tension that
is often implicated in environmental enforcement
litigation: while the government urged a broad reading
of the statute and claimed that the court’s “decision in
this case should uphold the fundamental purpose of the
Clean Air Act to reduce pollution,” the district court
recognized that “[a]s with most legislation, the Clean
Air Act amendments reflected a congressional
compromise.” 2011 WL at *4. The district court’s
decision was animated by its careful consideration of
the statutory text, and while it repeatedly observed that
certain aspects of the PSD program as passed by
Congress rendered that program less effective than it
otherwise might be, the court considered itself
constrained by the statutory language and did not
follow the decisions of other courts that had adopted a
broader reading of the statute in an effort to make the
PSD program more effective. See 2011 WL at *10.
While this discussion provides context as to why the
district court interpreted the Clean Air Act as it did, the
core of the court’s reasoning was based on a
straightforward interpretation of the act’s language.
While the government pressed the argument that the
PSD program forbids the operation of a modified
source without obtaining a PSD permit or applying
BACT, the court looked to the statutory language and
concluded that the only enforceable PSD violations, as
a matter of law, involve actual construction, not
ongoing operation, of a modified source: “the only
actual, actionable prohibition in § 7475(a) is that ‘no
major emitting facility . . . may be constructed.’” 2011
WL at *12. Accordingly, “the Court conclude[d] that
the alleged PSD violations constitute singular, separate
failures by the Former Owners to obtain preconstruction permits, rather than ongoing failures to
comply with whatever hypothetical conditions might
A. PSD Claims
In its analysis of the PSD program, the district court
explained that the PSD requirements are “forward4
have been imposed during the PSD permitting
process.” Id. This result is consistent with the weight of
judicial authority considering PSD enforcement actions.
See 2011 WL at *11 (collecting cases). The court also
noted in passing that the United States’s position to the
contrary was based, in part, on a misquotation of the
statutory text, 2011 WL at *12 n.9; while this error
was likely a minor factor in the court’s ruling, it no
doubt underscored the inconsistency between the
position taken by the United States and the statutory
text itself.
to the procedural posture of the motions, the
underlying merits question as to whether or not the
projects actually triggered PSD was not before the
court, which was obliged to assume that those
violations had in fact occurred.
Even so, the district court concluded that the
government’s PSD claims failed. While it did not reach
the question of whether the Clean Air Act’s language
authorized injunctive relief against the former owner/
operators, the district court determined that traditional
principles of equity established that the government
was not entitled to injunctive relief. The district court
reasoned that the plaintiffs “must demonstrate not only
that injunctive relief is within the Court’s power in
theory, but also that there is a plausible basis for
granting such relief in this case,” 2011 WL at *14,
emphasizing the Supreme Court’s holding that “a
federal judge as chancellor is not mechanically obliged
to grant an injunction for every violation of law.” Id.
(citing Weinberger v. Romero-Barcelo, 456 U.S. 305,
313 (1982)). Rather than mechanically awarding
injunctive relief whenever the government can
demonstrate a past violation of law, courts must apply
general principles of equity, in light of the consideration
that “injunctive relief is a rare and extraordinary
remedy which should be granted only in limited
circumstances.” 2011 WL at *14. As further support
for its conclusion that the government was not entitled
to injunctive relief against the former owner/operators,
the court observed that the Plaintiffs’ proposed relief—
an injunction against a former owner with no ability to
access or control the facility and no prospects for
future violations at that facility—had been rejected in
earlier cases by two other district courts. Id.
Moreover, “the purpose of an injunction is to prevent
future violations” and in order to make injunctive relief
appropriate, “the court must find that there exists some
cognizable danger of recurrent violation.” Id. In this
case, there was no such prospect.
Having rejected the government’s characterization of
the scope of potential PSD violations to include
operation, instead of construction, the court had no
trouble concluding that the current owner/operators
were not liable under the Clean Air Act: “Because the
Current Owners were not involved in this conduct”—
i.e., the alleged construction—“they cannot be held
liable under the PSD provisions of the Clean Air Act.”
2011 WL at *11. The district court’s conclusion on this
point extended to both civil penalties and injunctive
relief. Courts have routinely relied on the statute of
limitations to dismiss civil penalty claims for historic
PSD violations. But as the district court observed,
“[t]he Current Owners contend that they cannot be
held liable for injunctive relief because they did not
violate the PSD program. The Court agrees. . . . It is
axiomatic that in order to obtain injunctive relief, a
Plaintiff must first establish a successful claim on the
merits.” 2011 WL at *13. Accordingly, the district
court’s decision squarely held that mere ownership of a
facility where EPA alleges historic violations is not a
sufficient basis for a PSD enforcement action.
Importantly, the court reached a similar conclusion as
to the former owner/operators. The government had
not sought penalties from the former owner/operators,
likely due to statute-of-limitations concerns, but it had
sought injunctive relief. The former owner/operators
raised several arguments in opposition to the
government’s claims, including that the plain language
of the Clean Air Act did not authorize injunctive relief
against a former owner of a facility alleged to have
violated the PSD program and that under general
principles of equity the government was not entitled to
relief against the former owners. 2011 WL at *13. Due
The court also rejected the government’s argument
that, absent the threat of future violations of law,
injunctive relief was appropriate to remediate alleged
continuing harm caused by past violations. 2011 WL at
*15. In addressing these issues, the district court noted
the “nearly two decade delay in enforcement,” as well
5
as Pennsylvania’s review and issuance of a title V
permit for the facility—both of which undermined the
government’s “theory of harm.” Id. Additionally,
because “there is no risk of a PSD violation in the
future because the Former Owners no longer own or
operate the Plant . . . an injunction against the Former
Owners is not warranted.” Id.
“alleged deficiencies and omissions in the underlying
application[.]” 2011 WL at *18.
C. State Law Claims
The district court dismissed parallel claims alleging
violations of Pennsylvania’s air pollution control
regulations, largely for the same reasons and following
the same interpretive approach as for the federal
regulations. The court also dismissed state law public
nuisance claims asserted by the intervenor states as
preempted by both federal and state regulatory
programs governing air emissions from power plants.
2011 WL at *19–22.
B. Title V Claims
The government also alleged that the failure to include
BACT requirements allegedly triggered by historic
PSD violations in the Homer City Plant’s title V
operating permit rendered the operation of the plant a
violation of title V. Importantly, the government did not
allege that the current or former owners operated the
plant in violation of any specific term of the title V
permit. (Indeed, as to the former owner/operators, the
government did not even allege that a permit had been
issued during their ownership of the plant.) Rather, the
government alleged that “Title V incorporates the PSD
and BACT requirements” and that “defendants do not
have a valid Title V permit.” 2011 WL at * 16. The
district court rejected both these arguments as to the
current owner/operators, and also held that the former
owner/operators, which had never been issued a title V
permit at all, could not be held liable for violating such
a permit.
III. Implications
The district court’s dismissal of all claims against both
the current and former owners reflects a well-reasoned
approach that is faithful to the statutory text of the
Clean Air Act and the general legal principles that
govern the equitable powers of the federal courts. The
government sought relief against both the current and
former owners of the Homer City generating station in
an attempt to avoid the results it had experienced in
earlier Clean Air Act cases, where—in different
cases—current owners had prevailed on arguments
that they were not liable for Clean Air Act violations
allegedly committed by others, and former owners of
facilities where PSD violations were alleged to have
occurred had prevailed on arguments that they were
not appropriately subject to injunctive relief requiring
changes to facilities they no longer owned or operated.
The court noted that “the incorporation argument is
contrary to the statutory text” because the Clean Air
Act only makes it unlawful “to violate any requirement
of a permit issued under” title V itself, not other
portions of the Clean Air Act. Id. Accordingly, alleged
violations of the PSD program did not give rise to an
enforcement action under title V: “the Clean Air Act
does not incorporate PSD requirements into Title V
permits, but instead carefully distinguishes violations of
permits issued under the Title V ‘subchapter’ from
violations of preconstruction permits obtained under
the PSD program.” Id. Moreover, because “a facially
valid Title V permit was, in fact, duly issued,” and
because “Plaintiffs have not alleged any affirmative
condition in the Title V permit which is being violated,”
the government’s claims were dismissed. 2011 WL at
*17. Current owners or operators of a facility alleged
to have failed to comply with the PSD requirements in
the past are not subject to enforcement action due to
The government’s tactical litigation choice to bring the
claims together was clever, as it allowed the
government to argue that it should not be left without
any remedy at all. But, as the district court correctly
concluded, the mere fact that the claims were asserted
in the same lawsuit did not change the legal rules that
had compelled the results in earlier cases. As to the
current owner/operators, the district court followed the
well-established rule that PSD violations only occur at
the time of construction, and that an entity that had not
been involved in the projects alleged to violate the
PSD program could not be held liable for that alleged
violation. The district court also applied the plain
language of the Clean Air Act’s title V program, which
6
in light of the traditional equitable discretion afforded to
the federal courts. In some cases—such as here,
where the government sought impracticable relief from
a former owner that had no ability to control the plant
and posed no risk of future violations there—these
equitable principles compel the conclusion that claims
for injunctive relief should be dismissed on the
pleadings, and courts should and do follow those
principles, as Judge McVerry’s opinion demonstrates.
states that only violations of a term or condition of an
issued title V permit give rise to liability under title V.
As to the former owner/operators, the district court
applied well-settled principles of equitable
jurisprudence that emphasize the extraordinary nature
of injunctive relief and its function of preventing future
violations; in this case there was no risk of future
violations because the former owner/operators no
longer controlled the plant and no future violations
could occur there. The court also reached the
unsurprising conclusion that the former owner/
operators could not be held liable for violating a title V
permit that was not issued until after they sold the
facility.
Ben Lippard is a partner in the Washington, D.C.,
office of Vinson & Elkins, LLP, and represented one
of the former owner/operators in the EME Homer
City matter. His practice focuses on environmental
litigation, enforcement defense, site remediation,
and compliance counseling.
The district court’s opinion thus stands for the
proposition that courts considering environmental
enforcement lawsuits must apply the language of the
statute, rather than reaching results that are inconsistent
with the language in purported service of policy goals
or broad purposes that such environmental laws seek
to achieve, no matter how laudable. As Judge McVerry
concluded:
The Court appreciates Plaintiffs’ frustration that
the expectations of the PSD program have not
been achieved as to the Homer City plant and
that society at large continues to bear the brunt
of significant SO2 emissions from that
grandfathered facility. Nevertheless, the Court
must adhere to the plain text of the Clean Air
Act.
Trends: Section newsletter now in
new electronic format
Trends can be found in a new electronic format
at www.ambar.org/EnvironTrends. Beginning
with the November/December 2011 issue,
individual articles will be posted in html format
and will contain hyperlinks to important cases
and other resources cited in the articles.
2011 WL at *21.
Perhaps more importantly, the district court’s opinion
establishes that environmental enforcement claims are
not exempt from general principles of jurisprudence,
especially when the government seeks the
extraordinary remedy of injunctive relief to address
alleged environmental violations. Simply put, and as the
Supreme Court itself recognized in Weinberger v.
Romero-Barcelo, the United States is not automatically
entitled to equitable relief in environmental enforcement
actions—even if it can prove the existence of
underlying legal violations—and its claims to such relief
must be weighed against generally applicable principles
When a new issue becomes available online,
Section members will be sent an e-mail
announcement. Open that announcement and
the latest issue of Trends will be available on
your desktop, laptop, tablet, or smart phone.
Trends will be made available to Section
members exclusively in electronic format. There
are plans for continued optimization of the
Trends electronic format to better serve
Section members. The Section is also
developing enhanced electronic formats for
Natural Resources & Environment and The Year
in Review.
7
NUMERIC NUTRIENT STANDARDS: THE
VIEW FROM THE OFFICE OF CIVIL
ENFORCEMENT, EPA
Across the country, narrative standards have failed to
prevent hazardous algal blooms. Florida, Iowa, Illinois,
Louisiana, Minnesota, Oregon, Wisconsin, Texas and
many other states have reported such incidents. These
blooms are dangerous to human health. Algal blooms
produce dermatoxins, neurotoxins, hepatotoxins, and
other hazardous compounds. Recreational and
commercial activities bring people’s skin, intestinal
tracts, and respiratory tracts into contact with these
toxins. This exposure can cause rashes, skin and eye
irritation, allergic reactions, gastrointestinal upset, and
other serious illness. For example, Florida red tide
events have been associated with significant numbers
of gastrointestinal emergency room admissions.
Adam Kushner and Irene Hantman
Clean water is invaluable. Yet thousands of U.S.
waters remain contaminated by excess nutrients
despite nearly 40 years of pollution prevention and
remediation efforts under the Clean Water Act (CWA).
To reach the CWA mandate that all waters be fishable
and swimmable, water protection efforts must be more
effectively targeted. A significant impediment to
achieving fishable, swimmable waters is the lack of
numeric water quality standards (WQS) for nitrogen
and phosphorus. These nutrients impair rivers, lakes,
streams, and estuaries across the country. To revive
these water bodies, regulators need actionable
information; regulators need to be able to easily identify
WQS violations and impairments. Yet many states still
rely on narrative nutrient WQS. The lack of numeric
nutrient standards (NNS) impedes regulation,
restoration, and enforcement efforts. This failure also
exposes states and the Environmental Protection
Agency (EPA) to citizen suits.
Algal blooms are costly to businesses serving
recreational and commercial users. Blooms result in
water contact bans, beach closures, fish kills, and
reduced spawning grounds and nursery habitats. For
example, Madison, Wisconsin, reported multiple algal
bloom–related closures of 10 beaches during the
summer of 2008. Iowa closed seven different beaches
in 2006. Blooms in Texas lakes and rivers have killed
millions of fish.
Nutrient pollution also poses a great expense to
drinking water systems. EPA’s Drinking Water
Protection Division estimates that upgrading municipal
water systems to remove excess nitrate from source
water will cost millions. For example, California is
spending tens of millions of dollars to upgrade public
water operating systems to address nitrate
contamination in drinking water supplies. High nitrogen
levels can also cause pH fluctuations that corrode
distribution pipes.
EPA has been prodding states to develop NNS for
more than a decade. The 1998 National Nutrient
Strategy mandated state NNS development by 2003.
However, it only committed EPA to promulgating
regional NNS if state standards were not scientifically
defensible or not protective of designated uses, or if
states failed to demonstrate reasonable progress
toward developing NNS. In 2007, EPA called on
states to take bold steps to adopt NNS that are
protective of designated uses. The 2007 call to action
stressed the importance of NNS to watershed
protection.
Standards are important. NNS are necessary to
facilitate watershed restoration, permitting, and
enforcement. Florida, for example, reports extensive
nutrient reduction efforts to date. However, these
efforts have not curbed incidents of harmful algal
blooms or the presence of nutrients in the public water
supply.
Environmental advocates are frustrated with states’
failure to develop NNS. The Sierra Club, the Natural
Resources Defense Council, and local conservation
organizations have challenged EPA for failing to
establish numeric nutrient criteria in Florida, Wisconsin,
and in the Mississippi River Basin states. Their filings
stress the inadequacies of narrative nutrient standards
to protect human health, aquatic life, and to sustain
recreational and commercial uses.
The 2009 EPA determination that NNS were
necessary for Florida to meet CWA requirements
noted that identifying tolerable nutrient loads on a
water-by-water basis, for thousands of waters, would
8
water quality standards. For permitted nutrient
discharges, state departments of the environment
employ technical experts who spend hundreds of hours
computing effluent limits for individual permittees. This
is necessary in states without NNS because detailed
site-specific analyses are needed to estimate the level
above which nutrient discharge would exceed narrative
criteria. Facilities covered by general permits do not
have the capacity to perform these analyses. Thus
these facilities are unable to comply with permit
parameters—they cannot manage what they cannot
measure.
be a very lengthy undertaking. The determination
stressed that these analyses are not always possible in
the context and time frame of the NPDES permitting.
Where time does not allow these complex analyses, it
is likely that permits will be issued with nutrient effluent
limits that cannot protect water quality. Such actions
impede compliance and enforcement efforts.
Enforcement is hampered for many water bodies
impaired by nutrients. For example, industrial permits
for discharge into rivers are issued after state
departments of the environment determine that
compliance with permit terms and conditions should
assure compliance with applicable water quality
standards. However, without NNS, noncompliance
cannot be easily measured. Time-consuming and laborintensive effort is necessary to identify violations of
narrative nutrient criteria. Often this is impracticable.
CWA enforcement efforts cannot protect human health
and the environment without good data. NNS are
critical to meet this obligation. In addition, accurate
data on water quality impairments will improve the use
of limited enforcement resources.
Adam Kushner is the director of the Office of Civil
Enforcement, EPA. Irene Hantman is a legal fellow
in the Office. This work is not a product of EPA;
the views expressed are those of the authors only
and do not represent those of EPA.
Ensuring compliance of entities covered by general
permits is also complicated by the difficulty of
identifying water quality violations in states that lack
NNS. In addition, it is nearly impossible for these
facilities to comply with CWA requirements. Permittees
are instructed to control discharges to meet applicable
Save the Date!
41st Annual
Conference on
Environmental
Law
March 22–24, 2012
The Grand America
Salt Lake City, Utah
This year’s conference theme
reflects the core areas of
environmental practice and
the emerging and evolving
legal issues surrounding them:
air, land, and water.
Presentations and activities
are geared toward
experienced lawyers and
young lawyers and law
students alike. The
conference also continues its
tradition of presenting
leading experts, including
top federal and state
government officials, on
almost every panel
discussion.
www.ambar.org/EnvironACEL
9
ENVIRONMENTAL CRIMES
ENFORCEMENT ACT IS UNNECESSARY
AND CARRIES RISK OF SEVERELY
PUNISHING SIMPLE NEGLIGENCE
Bruce Pasfield and Elise Paeffgen
Reproduced with permission from Daily
Environment Report, 170 DEN B–1, 9/1/11, 09/01/
2011. Copyright 2011 by The Bureau of National
Affairs, Inc. (800–372–1033) http://www.bna.com
The Environmental Crimes Enforcement Act (ECEA)
of 2011 was drafted by the Senate Judiciary
Committee in direct response to the Deepwater
Horizon incident in the Gulf of Mexico. The bill seeks
to direct the U.S. Sentencing Commission to review
and amend the Federal Sentencing Guidelines to
increase penalties for criminal Clean Water Act
offenses and seeks to mandate restitution for such
offenses. The unfortunate impacts of the Deepwater
Horizon incident may make criticism of this bill
unpopular. However, lawmakers would be well
advised to carefully review its provisions before voting
in favor. A close examination of the ECEA reveals that
it is an unnecessary piece of legislation because the
guidelines already account for the serious nature of
CWA offenses and other environmental crimes, and the
Department of Justice is already mandated to seek
restitution for CWA violations under the Crimes
Victims’ Rights Act (CVRA), 18 U.S.C. § 3771. Any
proposed changes could have the unintended
consequence of criminalizing simple negligence to the
point that defendants will face significant jail time in
many cases where it is not warranted. Moreover,
although the bill is a response to the Gulf spill, it would
subject defendants to stricter penalties for a wide range
of CWA and other environmental offenses unrelated to
oil drilling.
I. ECEA Sentencing Directive Puts Cart
Before the Horse
The ECEA contains a directive that the “United States
Sentencing Commission shall review and amend the
Federal Sentencing Guidelines . . . applicable to
persons convicted of offenses under the Federal Water
Pollution Control Act . . . in order to . . . appropriately
account for the actual harm to the public and the
environment from the offenses.” See Environmental
Crimes Enforcement Act of 2011, S. 350, 112th Cong.
§ 2(a)(1) (2011). The bill was approved by the Senate
Judiciary Committee May 19, 2011, on a vote of 13–3
(98 DEN A–1, 5/20/11). The bill also includes a
requirement that in “amending” the guidelines, the
Commission “shall” ensure the guidelines reflect certain
factors, including the serious nature of the offenses, the
need for an effective deterrent, and actual harm to the
public and the environment resulting from the offenses.
This language puts the cart before the horse. Instead of
directing the Commission to review the guidelines to
determine if changes are necessary, the bill assumes
changes are required and directs the Commission to
make the necessary amendments.
Blanket and reckless mandates to increase criminal
penalties may be popular, but they are often
dangerous. For example, under environmental
sentencing guideline § 2Q1.2, mentioned in the ECEA,
there is little distinction made between the calculations
for felony versus negligent conduct. Unless the
Sentencing Commission were to create separate and
distinct guidelines for negligent and felony offenses, the
increase in penalties would apply across the board.
Since at least two appellate courts have ruled that the
level of negligence required for a CWA criminal
violation is simple negligence, a defendant convicted of
simple negligence for merely flipping the wrong switch
would be subject to the same guideline and same
increase in penalties as someone who knowingly
polluted the environment.
If the bill were to advance, its language should be
changed to provide the Commission with the discretion
to make changes, if appropriate. The authors believe
that if the Commission conducts a careful review of the
sentencing guidelines, it will advise Congress that the
federal government has ample authority to properly
punish CWA offenses and no further increases in
penalties are needed.
II. Advisory Nature of Guidelines Makes
Changes Unnecessary
The Federal Sentencing Guidelines are nonbinding
rules that set out a uniform sentencing policy for
10
individuals and organizations convicted of felonies and
misdemeanors in the U.S. federal court system. The
guidelines were drafted in 1987 by the U.S. Sentencing
Commission. The Commission was created by the
Sentencing Reform Act of 1984 and members are
appointed by the President and confirmed by the
Senate. Originally, the federal sentencing statute
contained a provision that made the guidelines
mandatory. However, in the 2005 case United States
v. Booker, the U.S. Supreme Court struck down this
provision, and the guidelines are now advisory. 543
U.S. 220 (2005). The now-advisory nature of the
guidelines makes an increase in penalties for CWA
violations unnecessary. The Supreme Court in Booker
instructed district courts to focus on a wide range of
factors in determining a sentence. Id. at 261. Following
this direction, if a court believed that a particular CWA
violation warranted greater punishment, it could depart
upward from the guidelines and sentence a defendant
up to the statutory maximum provided by law. Since
CWA knowing endangerment charges are already
punishable by up to 15 years in prison, 33 U.S.C. §
1319 (c)(3)(a), and felony offenses by up to three
years in prison, id. at (c)(2), courts have ample
authority to severely punish a defendant in the
appropriate case.
Further, a court can, without departing from the
guidelines, “stack” multiple felony counts to increase a
sentence above a statutory maximum if the guideline
calculation calls for a higher sentence. Under guideline
§ 3D1.1, “Procedure for Determining Offense Level
on Multiple Counts,” offense levels for multiple counts
are consolidated into a single “combined offense level.”
In turn, guideline § 5G1.2, “Sentencing on Multiple
Counts of Conviction,” provides that where the
sentence imposed on the count carrying the highest
statutory maximum is less than the total punishment that
the combined offense level dictates, then the sentence
imposed on one or more of the other counts shall run
consecutively to produce a combined sentence equal
to the total dictated punishment. See, e.g., United
States v. Elias, 27 Fed. Appx. 750, 753 (9th Cir.
2001). For example, if a two-count CWA offense
resulted in a guideline offense level of 22,
corresponding to a 41–51 month term of incarceration,
a court could stack the two counts to reach above the
36 month CWA statutory cap and impose the
calculated guideline sentence. What is more, if a judge
failed to account for the harm to the public and the
environment from a particular offense, the sentence
could be overturned, as sentences are still subject to
appellate review for “reasonableness.” United States
v. Booker, 543 U.S. at 261.
In short, the Supreme Court in Booker already gave
courts discretion to increase or decrease penalties
beyond what is provided for in the guidelines. Short of
increasing the statutory maximum penalties—which the
ECEA does not do—the bill cannot further alter that
traditional
power.
III. Sentencing Guidelines for CWA Offenses
Are Adequate
Assuming arguendo that courts do not regularly depart
from the guidelines in sentencing defendants, an
examination of sentences for CWA offenses reveals
that the guidelines provide ample authority to punish
the full range of CWA offenses. We examine each
major category of offenses and provide examples of
how the guidelines are applied in environmental crimes
cases.
A. Knowing Endangerment Offenses
The most serious environmental crimes offense is
known as knowing endangerment. This offense is often
equated to state manslaughter statutes as the harm and
intent standards are similar. Knowing endangerment
offenses are defined as “offenses committed with
knowledge that the violation placed another person in
imminent danger of death or serious bodily injury.”
Federal Sentencing Guidelines Manual § 2Q1.1,
Background (2010). Sentences for such offenses are
calculated pursuant to § 2Q1.1 of the guidelines titled
“Knowing Endangerment Resulting From Mishandling
Hazardous or Toxic Substances, Pesticides or Other
Pollutants.” A straightforward knowing endangerment
charge has a base offense level of 24, which equates to
51–63 months of imprisonment. Further, an application
note to § 2Q1.1 suggests an upward departure if
actual (as opposed to possible) death or serious bodily
injury results, which could extend the sentence up to
the statutory maximum of 15 years imprisonment. As
11
shown by § 2Q1.1, the ability to strictly punish
egregious crimes is already present in the guidelines.
In the case of United States v. Elias, a federal district
court judge sentenced Allen Elias, the owner of a
chemical processing and fertilizer company, to 17 years
imprisonment for knowingly exposing his employees to
cyanide gas and making false statements to the
government. 269 F.3d 1003 (9th Cir. 2001). Elias
ordered his employees to clean a cyanide storage tank
without taking the proper Occupational Safety and
Health Administration–required safety precautions. Id.
at 1007. As a consequence, an employee suffered
permanent brain damage. Id. at 1014. Elias was
convicted under the knowing endangerment provision
of the Resource Conservation and Recovery Act. Elias
was found guilty on four counts. The first count
“charged that Elias had stored or disposed of
hazardous waste without a permit, knowing that his
actions placed others in imminent danger of death or
serious bodily injury in violation of 42 U.S.C.
§ 6928(e), the Resource Conservation and Recovery
Act (RCRA). Counts II and III . . . charged him with
improper disposal of hazardous waste without a permit
in violation of 42 U.S.C. § 6928(d). Count IV charged
Elias with a violation of 18 U.S.C. § 1001 for making
material misstatements relating to the [OSHA] confined
space entry permit.” Id. at 1008.
An almost identical provision is found in the CWA as
both offenses are subject to the same guideline
calculation (§ 2Q1.1), contain similar proof
requirements, and have the same 15 year statutory
maximum penalty. It is worth noting that in Elias the
government had ample evidence that at the time of
committing the offense, Elias knew he was placing his
employee in danger of death or serious bodily injury.
To the authors’ knowledge, no such evidence exists in
the facts of the Deepwater Horizon spill. Thus the
knowing endangerment guideline is unlikely to come
into play in the Deepwater Horizon context, but if the
appropriate circumstances exist in another case, that
guideline calculation provides for ample punishment.
B. Knowing Violations Involving Hazardous
Substances or Pollutants
The next most serious environmental crimes offense
involves felony-level violations of the CWA and other
environmental statutes. In the environmental crimes
context all felony offenses require at least “knowing”
conduct. Knowing conduct generally requires a
defendant to have acted with the intent to perform a
certain act. A full examination of the exact definition of
“knowingly” as used in the CWA is beyond the scope
of this article and is not necessary for examination of
the application of the guideline. For simplicity, readers
should assume that felony CWA offenses require a
violator to act with some level of intent as opposed to
acts performed negligently or with no intent at all, i.e.,
strict liability. Felony violations of the CWA and other
environmental statutes are calculated pursuant to either
§ 2Q1.2, titled “Mishandling of Hazardous or Toxic
Substances or Pesticides; Recordkeeping, Tampering,
and Falsification; Unlawfully Transporting Hazardous
Materials in Commerce,” or § 2Q1.3, titled
“Mishandling of Other Environmental Pollutants;
Recordkeeping, Tampering, and Falsification.” There is
debate in the legal community about whether the
environmental guidelines calculation for the routine
felony offense may result in too severe of a penalty.
The authors defer this discussion to other articles. For
purposes of examining the current bill, it is clear that
the guidelines are sufficiently severe.
The main distinction between § 2Q1.2 and § 2Q1.3 is
the base-level offense. § 2Q1.2 applies to offenses
involving substances that are specifically defined as
hazardous or toxic substances or pesticides by statute
and carries a base-level offense of 8, whereas § 2Q1.3
applies to offenses involving all other environmental
“pollutants” not specifically identified by statute and
carries a base-level offense of 6. Most CWA sentences
are calculated using § 2Q1.3 because CWA offenses
involve substances identified broadly as pollutants and
the prosecution would need to separately prove that a
particular pollutant was also listed as hazardous
substance by statute for § 2Q1.2 to apply. However,
as shown below, most of the same specific offense
characteristics are considered in both § 2Q1.2 and
§ 2Q1.3 and it is the specific offense characteristics
that have the greatest potential to increase sentences
under either provision:
•
12
§ 2Q1.2, Mishandling of Hazardous or Toxic
Substances or Pesticides; Recordkeeping,
Tampering, and Falsification; Unlawfully
Transporting Hazardous Materials in
Commerce:
o Base Offense Level 8
o Specific Offense Characteristics:
• Ongoing discharge - hazardous/toxic
substance, pesticide 6
• Substantial likelihood of death/serious
bodily injury 9
• Disruption of utilities/evacuation/
expensive cleanup 4
• Transport, treat, store, dispose w/o
permit/in violation of permit 4
o Maximum offense level 31
o 108–135 months of imprisonment =
possible maximum sentence
If a judge were to stack multiple counts, the sentence
could easily exceed both the statutory maximum of 36
months for felonies and the 51–63 months of
imprisonment the guidelines recommend for a knowing
endangerment charge. Thus authority to punish
egregious cases already exists. Again we note § 2Q1.2
and § 2Q1.3 are unlikely to come into play in the
felony context for the Deepwater Horizon spill
because, to the authors’ knowledge, there is no
evidence of knowing conduct related to the spill. Yet in
the appropriate felony cases involving serious
environmental harm, sufficient authority already exists
to adequately punish a defendant.
§ 2Q1.3, Mishandling of Other Environmental
Pollutants; Recordkeeping, Tampering, and
Falsification
o Base Offense Level 6,
o Specific Offense Characteristics:
• Ongoing discharge 6
• Substantial likelihood of death/serious
bodily injury 11
• Disruption of utilities/evacuation/
expensive cleanup 4
• Discharge w/o permit/in violation of
permit 4
o Maximum offense level 31
o 168–210 months of imprisonment =
possible maximum sentence
Further, in cases involving less serious harm, the
guidelines still provide ample punishment. In United
States v. Goldfaden, defendant Goldfaden was
convicted of discharging hazardous and industrial
waste into a sewer system without a permit. 959 F.2d
1324, 35 ERC 1177 (5th Cir. 1992). In applying the
specific offense characteristics, the court increased the
defendant’s sentence six levels for causing repetitive
releases and four levels for discharge without a permit,
and Goldfaden was sentenced to the statutory
maximum of three years imprisonment. Id. Although on
appeal the Fifth Circuit found that the district court
erred in applying § 2Q1.2, rather than § 2Q1.3, it
upheld all of the sentencing enhancements. The
sentence was further enhanced two levels for
obstruction of justice, but even without the obstructive
conduct, Goldfaden would have been subject to 27–
33 months of imprisonment.
An examination of these provisions in the felony
context reveals that the penalties under § 2Q1.2 or
§ 2Q1.3 are ample to punish the more egregious
conduct of concern in the ECEA. For example, in
felony conduct involving death or serious bodily injury,
where knowing endangerment is not charged or
provable, a court can still impose up to nine additional
points under § 2Q1.2 and 11 points under § 2Q1.3.
Further, an offense in which this specific characteristic
applies, and where there were repetitive releases of
pollutants into the environment without a permit (two
specific offense characteristics that apply to nearly all
felony CWA offenses), would be punished by 70–87
months imprisonment.
A considerable sentence was also imposed in United
States v. Weitzenhoff where a plant manager who
discharged waste activated sludge (WAS) directly into
the ocean without treatment was found guilty of CWA,
conspiracy, and false statement charges and sentenced
to 21 months imprisonment. 1 F.3d 1523, 1528 at n.1,
1536, 38 ERC 1365 (9th Cir. 1993). Weitzenhoff’s
co-defendant, Mariani, was given an upward departure
for his obstructive conduct and sentenced to 33
months of imprisonment. Obstructive conduct often
increases sentences, but is not a core environmental
crime offense, thus we do not include a discussion of
Mariani’s sentence for illustrative purposes in this
article.
•
13
As demonstrated above, the possible penalties under
§ 2Q1.2 and § 2Q1.3 already reflect the seriousness
of the offense, and meet the goals of effective
deterrence, punishment, and rehabilitation. Heightened
sentences, as called for by the ECEA, are not required
and could lead to injustice, especially in a simple
negligence setting as discussed below.
C. Negligence Violations Involving
Hazardous Substances and Other
Pollutants
Negligence violations under the CWA and other
environmental statutes are also calculated pursuant to
either § 2Q1.2 or § 2Q1.3. The guideline calculation
for negligence violations does not differ significantly
from the calculation for knowing felony violations. For
example, if negligent conduct was at issue in
Goldfaden, the court would have applied the same
base-level offense and the same specific offense
characteristics, and Goldfaden would have had the
exact same total offense level calculation. In order for a
court to distinguish between felony and negligent
conduct under the current guideline scheme, a court
would need to apply a downward departure, as
recommended in an application note to each guideline.
Federal Sentencing Guidelines Manual § 2Q1.2,
Application Note 4, § 2Q1.3, Application Note 3
(2010).
Since Booker, the overriding majority of courts have
not departed from the guidelines in imposing sentences.
Thus, if the sentencing guidelines for environmental
crimes are further increased, those charged with simple
negligence will presumably be subject to the same
offense level as those convicted of felonies, and the
only way to account for the disparate intent will be
through a downward departure. At least two federal
appellate courts have interpreted the
degree of negligence that triggers criminal liability as
simple negligence, which is “[n]egligence in which the
actor is not aware of the unreasonable risk that he or
she is creating, but should have foreseen and avoided
it.” Black’s Law Dictionary, at 1063. Essentially,
simple negligence can amount to no more than a plant
manager’s switch of the wrong valve. In contrast, gross
negligence—“a conscious, voluntary act or omission in
reckless disregard of a legal duty and of the
consequences to a party,” id. at 1062, is the minimum
level of negligence required for criminal liability under
other statutes. The heightened gross negligence
standard is significantly different from simple
negligence, requiring distinctly different mental states.
Although negligence violations have a one year
misdemeanor statutory cap, as with the case of felony
violations, this cap does not necessarily protect from
too stringent a sentence because multiple counts may
be stacked. In United States v. Hong, the defendant
was convicted and sentenced on 13 counts of
negligently violating pretreatment requirements of the
CWA. 242 F.3d 528, 51 ERC 2185 (4th Cir. 2001).
The defendant was sentenced to 36 months
imprisonment for these misdemeanor violations. Id. at
530. To achieve a 36 month sentence, the judge
stacked the one year statutory maximum on the first
three counts – each one year term to be served
consecutively. “In calculating the appropriate term of
incarceration, the magistrate judge first determined that
Hong was subject to a sentencing range of 51–63
months pursuant to the sentencing guidelines. After
departing downward four levels to a guideline range of
33–41 months, the magistrate judge concluded that the
appropriate sentence under the guidelines was 36
months imprisonment.” Id. The court imposed the
statutory maximum on all 13 counts, but did not stack
the later ten counts, directing them to be served
concurrent with the three year sentence on the first
three counts. Id. As shown in Hong, stacking can
occur for negligence violations and, especially in the
context of simple negligence conduct, presents a
serious potential for abuse.
The Deepwater Horizon case presents a significant
threat for such abuse as an overzealous prosecutor
may attempt to fix criminal liability on one or more
individuals to “send a message” about the seriousness
of the offense. While there may be ample blame for the
spill, it would be a miscarriage of justice to use the
current guidelines, let alone an amended set of
guidelines with greater penalties, to make a scapegoat
of a single individual for a single act of simple negligent
conduct in violation of the CWA. In this respect, the
Sentencing Commission should consider amending the
guidelines to allow courts to impose lesser sentences
for simple negligent conduct without having to depart
downward from the guidelines.
14
IV. The ECEA’s Restitution Provision Is
Unnecessary
The ECEA makes restitution to identifiable victims
mandatory for criminal CWA violations. See
Environmental Crimes Enforcement Act of 2011, S.
350, 112th Cong. (2011) (proposing to amend 18
U.S.C. § 3663A(c)(1)(A)). Currently, discretion to
impose restitution lies with the federal judge hearing the
case. See 18 U.S.C. §§ 3553, 3663. DOJ has
authority to seek restitution, and the Crime Victims’
Rights Act, 18 U.S.C. § 3771, guarantees victims of
crime “[t]he right to full and timely restitution as
provided in law.” 18 U.S.C. § 3771(a)(6). Although
the ECEA does change existing law by making
restitution mandatory rather than discretionary, for
criminal CWA violations restitution is already imposed
in cases where it is justified, and a historical
examination of CWA criminal enforcement cases
demonstrates this.
A recent case in the U.S. District Court for the Central
District of California, United States v. Davis Wire
Corp., is such an example. No. 2:10-cr-00966-AGR
(C.D. Cal. sentencing Oct. 26, 2010). Davis Wire
discharged highly acidic wastewater into the sewer
system in violation of the CWA. Davis Wire was
sentenced to pay $1.5 million in restitution to the Los
Angeles County Sanitation District for the damages the
wastewater caused. Furthermore, mandatory
restitution required under the ECEA would only be for
identifiable victims, not for harm to natural resources or
communities. The term “crime victim” defined in the
CVRA and the term “victim” that would apply in the
ECEA are defined identically, “a person directly and
proximately harmed as a result of the commission of
[an offense].” Therefore, the bill does little to change
existing legal authority. Neither current law, nor the
ECEA, provides for restitution to communities that
suffer from a crime or for the harm to natural
resources.
a difference in punishment for negligent conduct except
by use of a downward departure. Thus a significant
penalty is possible for a mere accidental flipping of the
wrong switch. An increase in penalties, as called for
under the ECEA, would only make this possibility
worse.
Bruce Pasfield is a partner in Alston & Bird’s
Washington, D.C., office. His practice focuses on
environmental crimes defense, environmental
permitting, and compliance counseling. He holds a
J.D. from Vermont Law School and a B.A. from
Gettysburg College. He is licensed in Maryland, the
District of Columbia, and Florida. Elise Paeffgen
is an associate in Alston & Bird’s Environment &
Land Development Group. Her practice focuses on
environmental enforcement defense, climate
change, and environmental permitting and
compliance counseling. She holds a J.D. from
Vermont Law School, a Masters in Environmental
Management, M.E.M., from Yale University' s
School of Forestry and Environmental Studies, and
a B.A. from Oberlin College. The opinions
expressed here do not represent those of BNA,
which welcomes other points of view.
Beyond 2012: Meeting the Nation’s Environmental,
Energy and Resources Challenges
Wednesday, January 18, 2012
Live CLE Webinar, 10:30 a.m. – 12:00 p.m. (eastern)
This program will focus on law and policy challenges
the nation is likely to face in mid-2013 in the
environmental, energy, and resource areas, and
possible approaches to address them. These
challenges will exist regardless of who controls the
White House and Congress at that time. For that
reason, the speakers will concentrate on assisting
lawyers and clients in anticipating and responding to
critical issues without regard to the outcome of the
2012 election.
Alexandra Dapolito Dunn (Moderator), Executive Director
and General Counsel, Association of Clean Water
Administrators, Washington, DC
John C. Cruden, President, Environmental Law Institute,
Washington, DC
Suedeen G. Kelly, Partner, Patton Boggs LLP, Washington,
DC
Eugene E. Smary, Partner, Warner Norcross & Judd LLP,
Grand Rapids, MI
V. Conclusion
The Sentencing Guidelines already contain sufficient
penalties for criminal CWA offenses. The possible
penalties under § 2Q1.1, § 2Q1.2, and § 2Q1.3
demonstrate the seriousness of the offense. They meet
the goals of effective deterrence, punishment, and
rehabilitation. Further, the guidelines fail to account for
www.ambar.org/EnvironCalendar
15
EPA IS CRACKING DOWN ON CRIMINAL
LEAD PAINT VIOLATORS
Roger Allen
Exposure to lead can seriously impact human health,
leading to learning disabilities, hearing loss, and violent
behavior. Children six years old and younger are most
at risk. Lead-based paint was used in more than 38
million homes until it was banned for residential use in
1978 by the Consumer Product Safety Commission.
The Environmental Protection Agency (EPA) requires
that landlords and property owners give renters and
buyers of houses built before 1978 the pamphlet
“Protect Your Family from Lead in Your Home” and
inform renters and buyers of known lead-based paint
in the home. Buyers may have the property inspected
by a certified lead hazards firm at their own expense.
EPA rules also cover renovation, repair, and painting
activities involving lead-based paint. In general, any
activity that disturbs paint in housing and childoccupied facilities built before 1978, including
remodeling, electrical work, window replacement, and
painting, is subject to the rule. Some minor repair and
maintenance activities are exempt from the
requirements. For more information, go to
www.epa.gov/lead or contact the National Lead
Information Center at 1-800-424-LEAD (TDD: 1800-526-5456).
To protect the public, EPA helps tenants and home
owners understand the dangers of lead; ensures that
building managers and property sellers comply with the
law; and brings enforcement actions against violators.
The cases included in this enforcement alert involve
criminal prosecutions of building managers and licensed
inspectors who failed to meet their responsibilities
under the laws, putting children and residents at risk.
Lead Poisoning Took Life of Two-Year-Old
Girl
Sunday Abek was two when her parents brought her
to the United States from Sudan. In March 2001, the
family moved into an apartment in Manchester, New
Hampshire. One week after her arrival, Sunday
became ill, vomiting and running a high fever. She was
rushed to the hospital and died from lead poisoning
three days later. Her death initiated an eight-month
investigation by city, state, and federal authorities. EPA
and state investigators reviewed samples taken from
Sunday’s neighborhood, consulted national experts on
childhood lead poisoning, and undertook a
sophisticated isotope analysis that compared paint
samples collected in Sunday’s apartment with lead in
her body. This forensic work determined that Sunday
was killed by the peeling and flaking gray paint that
covered the porch outside her Manchester apartment.
Sunday’s blood lead level was 391 micrograms per
deciliter, nearly 40 times higher than the level in the
commonly used definition of lead poisoning. Under the
Residential Lead-Based Paint Hazard Reduction Act,
James Aneckstein, who managed the apartment
building in which Sunday died, was required to supply
the Abek family with proper notification of the
presence of lead-based paint in their apartment.
Aneckstein provided regulators with a photocopy of a
lead disclosure form that contained a suspicious
signature purporting to be that of Sunday’s mother,
acknowledging receipt of the required notification. In
April 2001, EPA investigators served a federal search
warrant at Aneckstein’s office and residence. The
original lead disclosure form for Sunday’s apartment—
with the forged signature of Sunday’s mother—was
found at the bottom of a trash can, torn into pieces.
Aneckstein was sentenced on December 20, 2001, to
15 months in prison. He and his company, JTA Real
Estate Brokerage and Property Management, pleaded
guilty to obstructing justice, making false statements to
investigators, and failing to provide prospective tenants
with required disclosure information.
City Lead Inspector Gets Nearly Four-Year
Jail Sentence
Donald Patterson was sentenced on February 8, 2011,
to three years and 10 months in prison and 24 months
of supervised release on wire fraud charges stemming
from an EPA investigation. Patterson was a Detroit
lead inspector assigned to investigate possible lead
hazards in homes. His job was to ensure that all paintbased lead hazards were safely removed. He used his
position to obtain money from the owners and renters
16
of these homes in exchange for falsely certifying that
the homes were lead free. He also offered inadequate
lead removal training. He admitted that between
October 2008 and August 2009 he had accepted cash
payments totaling $1,350 in connection with fraudulent
abatement in homes where children were being
exposed to lead. In one situation, instead of inspecting
a home with high levels of lead—in which a child was
living—he accepted $200 and falsely recommended
ways to get rid of the problem. The child was exposed
to lead and may experience the impacts of lead
exposure for the rest of his life.
“The actions of this public official put the health and
lives of children at risk,” said Cynthia Giles, assistant
administrator of EPA’s Office of Enforcement and
Compliance Assurance. “In this case, the local
inspector failed to do his job by submitting false
reports for personal gain.”
Lead Poisoning Prevention Manager
Pleads Guilty
Anthony Sharpe and his company, Sharpe
Environmental Testing and Consulting, pleaded guilty
on January 27, 2011, to one count of mail fraud for
using the mail to submit false lead paint inspections.
Sharpe falsified lead sample results for a multi-unit
apartment building located in Detroit and several other
multifamily units in the Detroit metro area and Ohio. At
the time of the falsified reports, Sharpe was serving as
manager of Detroit’s Childhood Lead Poisoning
Prevention Program. Sharpe, his company, and
Moreno Taylor were indicted on September 30, 2010,
on charges of interstate transportation of money
acquired by fraud, mail fraud, and making false
statements. Taylor pleaded guilty on January 19, 2011,
to making false lead-based paint inspection reports.
On June 23, 2011, he was sentenced to 120 days of
home confinement. On September 26, 2011, Sharpe
was sentenced to 18 months in prison.
for obstructing an investigation by the Department of
Housing and Urban Development and for making false
statements to federal officials about notifying tenants of
the presence of lead hazards. At least eight children
who lived in buildings owned by Nuyen were found to
have elevated levels of lead in their blood. Nuyen
owned and managed 15 low-income apartment
buildings in the District of Columbia and Maryland. He
admitted to being aware of lead paint hazards in one of
his apartment buildings, but failed to disclose potential
lead hazards before leasing to tenants. He also
presented Department of Housing and Urban
Development officials with false and backdated forms.
Roger Allen is a communications specialist, EPA
Office of Criminal Enforcement, Forensics and
Training. EPA’s criminal enforcement program is
part of the Office of Enforcement and Compliance
Assurance. It is headquartered in Washington,
D.C., with investigative offices in EPA’s 10 regional
offices and in more than 30 other locations across
the country. The National Enforcement
Investigations Center in Lakewood, Colorado,
provides forensics, science, and technical support
for environmental investigations. The National
Computer Forensics Laboratory in Jacksonville,
Florida, specializes in the seizure, review, and
analysis of electronic evidence and advanced
undercover surveillance operations. EPA’s more
than 200 special agents have full law enforcement
authority and evaluate leads, interview witnesses,
serve search warrants, carry weapons, and make
arrests.
Failure to Give Warning of Lead Hazards
Leads to Prison
David D. Nuyen, of Silver Spring, Maryland, was
sentenced on March 13, 2002, to two years in prison
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NEW VEHICLE TESTING TECHNOLOGY
MAKES INSPECTION FRAUD EASIER TO
DETECT, SPURS INCREASED EPA
CRIMINAL ENFORCEMENT
Roger Allen
Fraudulent vehicle emissions test schemes have been
around for many years but have been difficult to detect
because inspectors had to be “caught in the act.” The
only way to catch inspectors who issued fraudulent
certificates to vehicle owners, indicating that their
vehicles had passed state inspection when they had
not, was to use undercover agents to take vehicles
that had been set to fail the inspection to be tested, or
to use remote surveillance of inspection stations.
In recent years, however, the majority of vehicle
inspection and maintenance programs across the
country have begun using onboard diagnostic-based
testing in place of traditional tailpipe tests. While
traditional tailpipe tests are relatively easy to trick by
using a clean vehicle in place of a dirty one (a practice
known as “clean piping”), the new testing technique is
capable of detecting when the vehicle information
entered does not match the test results. Armed with
this powerful new enforcement tool, EPA criminal
investigators, state attorney general offices, and public
safety offices have taken a number of enforcement
actions against vehicle emissions inspectors who violate
the Clean Air Act by conducting fraudulent inspections
and issuing fraudulent certificates.
Did You Know?
Ozone pollution is a concern during the summer
months because strong sunlight and hot weather result
in harmful ozone concentrations in the air we breathe.
Many urban and suburban areas throughout the United
States have high levels of “bad” ozone. But many rural
areas of the country are also subject to high ozone
levels as winds carry emissions hundreds of miles away
from their original sources.
Fraudulent Emissions Testing May Be
Widespread
A Case Study: Nevada
The Environmental Protection Agency (EPA) began its
stepped-up enforcement efforts against fraudulent
vehicle inspections in 2009. Investigating alongside the
Nevada Department of Motor Vehicles Law
Enforcement Unit, EPA’s Criminal Investigation
Division focused on ten Nevada emissions inspectors
who, among them, each issued as many as 780
fraudulent smog certificates between November 2007
and early 2009. In what became known as the
Fraudulent Emissions Certificate Operation, ten
inspectors have all been convicted and sentenced.
They are Wajdi Waked, Alexander Worster, Joseph
DeMatteo, David Nelson, Adolfo Silva-Contreras,
Eduardo Franco, William McCown, Louis Demeo,
Pete Escudero, and Gary Smith.
Why Are Fraudulent Vehicle Emissions
Tests a Problem?
Nevada is not the only state where fraudulent vehicle
emissions testing is taking place. Other states where
EPA investigations have led to prosecutions include
Georgia, North Carolina, Missouri, and Texas.
Answer: Emissions from motor vehicle exhaust is one
of the major sources of nitrogen oxides (NOx) and
volatile organic compounds (VOCs) in the air.
Ground-level or “bad” ozone is created by chemical
reactions between NOx and VOCs in the presence of
sunlight. Breathing ozone can trigger a variety of health
problems including asthma attacks and other
respiratory problems—chest pain, coughing, throat
irritation, and congestion. Repeated exposure may
permanently scar lung tissue.
In Georgia, Michael Kelly, of Atlanta, was sentenced in
a federal district court to serve two years in federal
prison for violating the Clean Air Act by fraudulently
issuing emissions certificates to cars that would have
failed the emissions inspection required by law. Two
other collaborators in the crime, Jackie Baker and
James Hinton, were sentenced to home confinement,
community service, and 2 years’ probation. All three
were licensed emissions inspectors working at a
“Stop-N-Shop” in College Park, Georgia, through
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May 2009 when they lost their licenses. During the
five-month period from January to May 2009, they
issued more than 1,400 fraudulent emissions
certificates to car owners, falsely stating that the
owners’ cars had passed the required emissions test.
Kelly issued 476 fraudulent certificates himself.
How It Worked
Their procedure was to connect cars they knew would
pass the test to emissions equipment instead of
connecting the equipment to the owners’ real cars.
During the tests, the computer system automatically
transmitted emissions testing data to a statewide
database accessible by the Georgia Environmental
Protection Division. False information was entered into
the system, such as the make, model, and vehicle
identification number, to make it appear those owners’
real cars, many of which had already failed an
emissions test or showed equipment malfunctions,
were being tested. Owners were charged $100 to
$125 for a fraudulent emissions test, far more than the
usual $20 charged for a legitimate inspection. Georgia
law prohibits inspection stations from charging more
than $25 for an emissions test.
In North Carolina, five individuals have been charged
in federal district court with violating the Clean Air Act.
According to investigators, three former service
technicians of a car dealership and two used-car
salesmen from another car dealership were conducting
clean-scans on vehicles using an illegal simulator
purchased on the Internet. The technicians, one of
which was a state-licensed inspector, confessed to the
scheme and DMV investigators seized the simulator.
In Missouri, the State Highway Patrol reviewed its
database and identified vehicles fraudulently tested by
two licensed emissions inspectors at Clark Tire
Wholesale. The emissions inspectors entered the
correct identifying vehicle information into the
computer but instead connected the equipment to a
vehicle they knew would pass. The two emissions
inspectors pled guilty to violations of the Clean Air Act
for falsifying auto emissions tests. One inspector was
sentenced to one-year home confinement and two
years’ probation. The other was sentenced to two
years’ probation. Both are required to perform 100
hours of community service.
In Texas, the Texas Department of Public Safety has
identified several local car dealerships knowingly
participating in the generation of the fraudulent
emissions tests at state vehicle inspection stations in
Arlington, Texas. Six men who own and operate
Mike’s Auto Care in Arlington, a state vehicle
inspection station, were indicted for violating the Clean
Air Act and conspiracy.
“Fraudulent emissions tests result in increased pollution
from cars and light trucks—the major cause of smog in
the metro Atlanta area. Increased smog is directly
linked to increases in asthma and other respiratory
illnesses, particularly in sensitive populations. By taking
action against the criminals who bypass the federal
emission standards of the Clean Air Act, EPA is taking
the necessary steps to reduce smog and the negative
health impacts where citizens live, work, learn and
play.” EPA Regional Administrator Gwen Keyes
Fleming, speaking about the Stop-N-Shop case in
which a two-year prison sentence was recently handed
down by a federal judge.
The EPA criminal enforcement program is part of
EPA’s Office of Enforcement and Compliance
Assurance. It is headquartered in Washington, D.C.,
with field investigative offices in EPA’s 10 regional
offices and in more than 30 other locations across the
country. The criminal program has specially trained
investigators, chemists, engineers, technicians, lawyers,
and analysts, including 200 federal law enforcement
agents with full federal authority to conduct
investigations, interview witnesses, carry firearms,
make arrests, and execute search warrants; 70 forensic
scientists and technicians; and 45 environmental crime
attorneys.
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