THREE DECADES OF GLOBAL ENVIRONMENTAL AWARENESS:
THE CHANGE OF FOCUS FROM SOLID WASTE MANAGEMENT TO FEDERAL ENFORCEMENT OF HAZARDOUS WASTE ENVIRONMENTAL CRIMES
Alicia M. Phidd [a]
Copyright; 1998 by St. Thomas University School of Law White Collar Crime Seminar; Alicia M. Phidd
THE FIRST EARTH DAY-1970: GENERAL CONCERNS
On April 22, 1970, we embarked upon a mission to save and sustain the earth. There was a demonstration of people in excess of 20 million supporting the environmental movement . This move by our society was sparked by several incidents, one of which involve the Silent Springs by Rachel Carson . This movement lead to the legislators passing the Clean Air Act, The Clean Water Act and the Solid Waste Disposal Act . The Resource Conservation And Recovery Act (RCRA) was enacted by congress in 1976, amending the Solid Waste Disposal Act (SWDA). This statute was enacted in response to the increase in public awareness of serious problems related to the disposal of hazardous wastes.
This statute defines solid waste as:
Any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities.
One of RCRA?bjectives is to encourage resource conservation and assist the states in implementing an ?ironmentally sound??lid waste management program. Solid waste management is the process by which solid waste is collected, transported, stored separated, processed or disposed of in any other way, according to an orderly purposeful and planned program, which includes closure and long term maintenance. RCRA requires research and development in solid waste disposal. It includes public education and non-legal studies pertaining to resource recovery.
A. SOLID WASTE MANAGEMENT- RECYCLING
During the mid-seventies to mid-eighties, the focus of the environmental movement was on solid waste management, particularly recycling, as we pursue civil litigation. RCRA gave the states the authority to set general recycling goals. In Florida, The Department Of Commerce has the duty to assist and encourage the recycling industry. This focus lead to a wave of consciousness in communities with respect to saving the environment. This lead to the nationwide attempt to recycle more. To achieve this, landfills were banned and eventually neighborhoods were mandated to recycle newspaper and plastics bottles. In Florida each county is mandated to have a recycling program that recover plastic bottles, glass, aluminum cans, steel cans and newspaper.
In Florida, the state comprehensive plan is to properly manage all solid waste with their main purpose to eliminate the use of landfills. Each county solid waste management and recycling program shall try to reduce the waste by 30% in 1994. However, if the county has a population of 50,000 or less, the county can recycle in lieu of achieving the aforementioned goal. The goal of 30% can be reduced if the county proves that:
? to achieve it will have an adverse effect on the financial obligations of a county that are directly related to the waste to energy facility owned or operated by or on behalf of the county and the county cannot remove normally combustible materials from solid waste that is to be processed at a waste to energy facility because of the need to maintain a sufficient amount of solid waste to ensure the financial viability of the facility. Each county has to develop a recycling program no matter what.??
The public policy behind this statute is to ?ourage the research, development and implementation of recycling, resource recovery, energy recovery, and other methods of using garbage, trash, sewage, slime, sludge, hazardous waste, and other waste.
In 1995 almost $2.8 billion was invested in Florida?cycling infrastructure. Take for instance the solid waste plastics. Overall, the rate of plastic recycling is not up to par with the other solid waste. In 1995, 0 percent of the counties achieved the plastic bottles recycling goals. Sadly, Florida is leading what some industry officials warn is a trend in decreasing funding for local recycling programs. In 1997, the state passed a one-year, 40-percent reduction of funding for recycling education, shifting money from recycling to clean-water programs. An interim study committee is now considering the continuation of this reduction. In Dade County, it is mandatory for businesses to recycle but not homeowners. The Florida government?ecommended recycling rate of 30% was achieved in Dade County according to the solid waste management department in Metro Dade. Currently, Florida along with nine other states participates in the bottle bill.
B. HAZARDOUS WASTE-LOVE CANAL STORY
However, our society is now faced with hazardous waste and its disposal. EPA Part 261 regulations list materials that are hazardous waste or that have the characteristics of hazardous materials. RCRA Part C regulates the materials listed in the EPA Part 261 regulations. RCRA defines hazardous waste as:
[A] solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may??ose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.
The solid waste disposal act was implemented to protect the public welfare. It was enacted to provide protection against the dangers of improper hazardous waste disposal. The ?e Canal??ory best exemplify the need to have this protection. In 1894, Venturist William Love began the construction of a ?er canal??th the purpose to supply hydroelectric power. However, soon after the ditch was built, there was an economic crisis and William had no investors. The ditch was subsequently used by the locals to ice skate, among other entertainment purposes.
In 1947, Occidental Chemical Company bought the land and its surroundings, after a few years of leasing it to dump their chemicals. There were no complaints by the locals about the dumping of the chemicals because they were the largest employer in the area. By 1953, the Niagara Falls School Board bought the property and the contract stated that the school board would assume the risk associated with the buried chemicals. In 1970 and thereafter the sewers, creeks and water supply was contaminated by the chemicals leaching into the ground. This resulted in an evacuation of the area when the community started to get seriously ill. There were criminal enforcement then and thus Occidental Chemical Company was pursued civilly. They have since then settled but not all the money has been paid to the government. The estimated cost to clean up is two hundred and fifty thousand million dollars ($250,000,000) In order to reduce the present and future threat to the public health and the environment, congress required federal enforcement of proper waste disposal.
ENVIRONMENTAL CRIMES PROSECUTION & TRENDS
Environmental protection involves science, legal issues, philosophical issues, political and social issues. There are several definitions for environmental crime but the following is best suited for this paper: ?environmental crime is an act committed with the intent to harm or with the potential to cause harm to ecological and/or biological systems, for the purpose of securing business or personal advantage, and in violation of state or federal statutes for which criminal sanctions apply.??lt;br>Environmental criminal prosecutions are very aggressive both on a federal and state level. However, enforcement officials face lack of precision in the Environmental Protection Agency implementing regulations, which makes it difficult to define what constitutes a violation. In addition, they face legal and prudential problems involved in determining the showing of intent that warrants criminal prosecution. It is within the discretion of the prosecutor, the cases to pursue criminally due to the muddled line between civil and criminal violations. However, The Environmental Protection Agency (EPA) uses two major criteria to determine whether a case should be prosecuted criminally. They are culpable conduct along with significant environmental harm. In a six year span, the Department of Justice(DOJ) had a conviction rate of ninety one percent (91%) with more than one-third of them receiving prison terms. In the Criminal Enforcement Program Department of the Environmental Protection Agency (EPA), within a ten year span out of 911 corporations and individual indictments, two-thirds resulted in guilty pleas and convictions. These convictions imposed jail time collectively of 388 years of which only 191 years were served. To date, ten years is the longest conviction for committing only an environmental crime and this judgment was levied in State v. Ingram in 1988. In this case, Albert Ingram was convicted of unlawfully dumping hazardous waste at the U.S. Army Corps of Engineers site, which did not have a permit from the New Jersey Department of Environmental Protection.
CRIMINAL PENALTIES OF HAZARDOUS WASTE DISPOSAL
Environmental Protection was primarily the responsibility of the states until the 1970? The New Jersey Environmental Crimes Bureau, instituted in1978, is the first statewide criminal environmental enforcement program in the nation. Due to the global awareness of environmental issues during the 1970?the federal government involvement increased. In 1982 institutionalized criminal enforcement began. This was based on the notion that criminal penalties unlike civil penalties could not be passed off as a cost of doing business and that criminal convictions is more of a deterrent than civil penalties. The Office of Criminal Enforcement was established by the U.S. Environmental Protection Agency (EPA) which adamantly pursued ?ironmental violators criminally rather than civilly.??n the meantime, The Department of Justice (DOJ) created the Environmental Crimes Section of the Environment and Natural Resources Division, whose primary purpose is to prosecute environmental criminal cases. This is in addition to the cases referred to the DOJ by other agencies such as the Environmental Protection Agency (EPA). ?icials in charge of the criminal enforcement program described their policy as generally targeting person operating outside the regulatory program, without any compliance, or companies and individuals operating within the system, but surreptitiously avoiding or violating regulatory requirements.??lt;br>However, DOJ has been criticized ?unwilling to prosecute difficult but meritorious cases.??In addition, some critics feel the department have been reluctant to prosecute major corporate executives but zealous in its prosecution of small businesses and business owners. The defenders of DOJ viewed their prosecution efforts differently. One critic opined:
[S]mall businesses are, perhaps disproportionately, the focus of environmental criminal prosecutions. This is not because the Justice Department targets small businesses for prosecution. Rather, economists have long noted that there are substantial economies of scale in responding to environmental controls. Because environmental compliance requirements have come to effect all aspects of industrial activity and are, at the same time, terribly complex, even a small company may need a full-time employee with environmental expertise. Many small companies have been unable or unwilling to make that commitment. Increased emphasis on criminal prosecution thus may, inadvertently, impose greater relative burdens on this part of industry.
Many businesses are ?sciously and systematically violating environmental laws to save money and increase profit margins.?? This is a result of regulated businesses finding it difficult and expensive to comply with the new environmental statutes. Environmental law is built on voluntary compliance and thus fair enforcement requires that these volunteers are not at a disadvantaged compared to those that do not.
Environmental crimes merged the need to protect the environment with the need to punish and this merger has created concerns for our society. The concern probably came about because environmental law was once viewed as ?e economic/regulatory offenses lacking an element of moral delict.??nvironmental law is ?irational and is not intended to codify existing norms of behavior, but to force dramatic changes in existing behavior.??n addition, ?ironmental law has a dynamic and evolutionary tendency and therefore its regulation and solution are under constant revision. Generally, criminal law focuses on conduct that warrant the use of incarceration as a sanction and environmental law focuses on the need for risk reduction. It focuses on punishing past wrongful behavior and thus focus on ?tled societal norms of conduct, rather than sharply disputed matters.??Criminal law focuses on morality such as the defendant?orally culpable mental state, while environmental law traditionally involves strict liability.
A. THE MENTAL STATE
?minal penalties attached to regulatory statutes intended to protect public health, in contrast to statutes based on common law crimes, are to be construed to effectuate the regulatory purpose.??CRA has criminal penalties for transporting without a manifest, making misrepresentation on applications, manifest or records and treating, disposing or storing hazardous waste knowing of a violation on the permit. ? ?tal state?quirement is one of the most confusing elements of federal criminal law. The first provision of RCRA?riminal penalties states:
? person who knowingly transports or causes to be transported any hazardous waste identified or listed under this subchapter to a facility which does not have a permit under this subchapter, or pursuant to title I of the Marine Protection, Research, and Sanctuaries Act (86 Stat. 1052) [33 U.S.C.A. ??11 et seq.] Shall upon conviction be subjected to a fine of not more than $50,000 for each day of violation, or imprisonment not to exceed five years, or both. If the conviction is for a violation committed after a first conviction of such person under this paragraph, the maximum punishment under the respective paragraph shall be doubled with respect to both fine and imprisonment.??lt;br>
The ?tal state?? this federal statute has created dissention in the circuits because federal criminal statutes are rarely specific about the mental state needed for conviction. A regulatory crime felony statute such as section (d)(1) is placed into one of two categories by the courts in order to interpret the mens rea. The categories are ?lic Welfare Offense??d ?ocent Activity Offense.??Mandiberg and Smith interpret the classifications as follows :
?public welfare offense?iminalizes an activity that a ?sonable person should know is subject to stringent public regulation and may seriously threaten the community?ealth or safety.? person has notice of probable regulation when the activity at issue is both dangerous and uncommon. All regulatory crimes that are not ?lic welfare offenses??e ?ocent activity offenses??Thus, the category includes both non-dangerous activities and dangerous activities that are commonplace.??lt;br>There are two classifications of public welfare offense (1) statutes within which mens rea is included in the language, but the courts construe only the intended prohibited activity to be modified by the mens rea terminology and (2) statutes in which mens rea in the statutory language has been intentionally omitted by congress.
Sometime it is difficult to properly categorize a statute when it is dealing with ?dlife and natural resources crimes, crimes that involve reporting, monitoring, and recordkeeping requirements or crimes that focus on the existence of permits or the interpretation of permit conditions.??However, RCRA is categorized as a public welfare statute by the courts. ? overriding concern of RCRA is the grave danger to people and the environment from hazardous wastes.??t is simply weighing the public interest where the public health and welfare may depend on unhindered enforcement of a federal environmental statute. This comports with the interpretation of ?lic welfare offenses??atute.
In ?lic welfare offense??atutes, ? court has indicated that the government must demonstrate defendant?wareness of the facts making the activity dangerous and uncommon. The court has said that it is not necessary for the government to prove awareness that a required permit or license was lacking. However, ?lic welfare offenses require that the defendant know that he stands in "responsible relation to a public danger." Some courts seem to think that acts that pose a threat to public health and safety are considered sufficient in themselves to place the environmental violator on notice of the likelihood of the regulation. It is somewhat of a reasonable person standard, in that they should know their conduct is ?ject to stringent public regulation and may seriously threaten the community?ealth or safety.??
B. BURDEN ON THE GENERATOR
When a generator improperly disposes of his hazardous waste, he will be subjected to fines and or imprisonment. RCRA has a general concept of ?dle to grave??ich means the liability for the hazardous waste begins from its production until its disposal. ? criminal penalty provision of the Resource Conservation and Recovery Act, covers employees as well as owners and operators of facility who knowingly treat, store, or dispose of any hazardous waste, but employees can be subject to criminal prosecution only if they knew or should have known that there had been no compliance with statutory permit requirement.??
The generator is heavily prosecuted under RCRA. In United States v. MacDonald & Watson Waste Oil Co., a facility used primarily for shoe manufacturing had an underground storage tank of toluene that is used in their process. In 1982 the tank started to leak toluene into the ground and also water was contaminating the toluene in the tank. In 1984, the company was sold, the tank excavated and MacDonald & Watson Waste Oil company was used to transport and dispose of the contaminated soil and tank. However, MacDonald & Watson Waste Oil Company?ermit was for transporting and disposing of waste oils and non-hazardous contaminated soil. The manifest for the toluene contaminated soil described the contaminated soil as non-hazardous and no one reported the release of this hazardous substance into the environment pursuant to the laws of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The generator was held in violation of knowingly transporting hazardous waste. The court reasoned that the regulatory scheme of RCRA places a duty on the generator to make the initial step in arranging transportation and disposal of the waste properly because the generator is in the best position to know the nature of his waste material. The ninth circuit interpret the entire federal enforcement of RCRA as mandating that the generator do more than just monitor their own conduct for compliance with the permit requirements.
C. THE KNOWLEDGE REQUIREMENT
The court?ajor concern with section (d)(1) is ?ther ?wingly? subsection (d)(1) not only requires knowledge as to the nature of the hazardous waste being transported, but also knowledge of the facility?ermit status???lt;br>D. CRIMINAL LAW CONCEPTS
Criminal law address harm, culpability and deterrence. Criminal liability deters environmental misconduct because businesses can treat civil and administrative fines as a cost of doing business. ?cific intent and general intent do not have universally accepted definition.??Generally, specific intent is used for offense that includes the mens rea element of knowledge or intent. This involves an actual subjective intent to cause the proscribed result. In addition, a defendant acts knowingly if he is aware that a specific result is practically certain to follow from his conduct, whatever his desire may be as to that result. The fourth circuit defined ?wingly?? an act done intentionally and voluntarily and due to ignorance, accident, mistakes or other innocent reason. Strict liability crimes occur where the culpability is imposed on a defendant for doing the act, which is prohibited by statute. In interpreting public welfare offenses, the court has avoided construing criminal regulations to impose a stringent form of strict liability.
E. SECTION (D)(1) ANALYSIS
The Eleventh circuit was the first circuit to have addressed the aforementioned issue and determine that the generators need to have knowledge that the waste was hazardous and knowledge that the disposal facility had no permit. The court reasoned that this would prevent criminalizing the innocent conduct of generators who genuinely thought the facility had the proper permit. The Ninth circuit criticized the Eleventh circuit, took a different approach and held that knowledge that the receiving facility lacks the necessary permit is not an element of an offense under section (d)(1). This circuit interpret the statute by a literal reading of it and concluded that the ?d ?wingly?difies transports or causes to be transported any hazardous waste.??
Knowledge of RCRA prohibitions may be presumed and often time knowledge of the law may be inferred. Knowledge of the law can be inferred because knowledge does not require certainty. Circumstantial evidence is usually allowed for the jury to make inferences. If the inference to be drawn is ?missive,??e inference is constitutional only if the ?ical connection between the proved fact (the status) and the inferred fact (the knowledge) is ?e likely than not?ue on the facts of the case. However, ?n the presumed fact (the knowledge) is an element of the crime, it is unconstitutional to instruct the jury to use a conclusive presumption.??
The government need only prove knowledge of the actions taken and not of the statute forbidding the action in certain regulatory statutes requiring ?wing?nduct. Given the current situation of the EPA not properly delineating what constitutes a ?ardous waste??bject to regulation, it follows that the government does not have to prove knowledge of the statute being violated. The supreme held that ?re obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation.??Therefore section (d)(1) does not require proof of the defendant?nowledge that the material was hazardous waste within the meaning of RCRA regulations. The Supreme Court has indicated that ?lic welfare offenses??atute does not require awareness of the permit status as part of the mental-state requirement.
The Eleventh circuit holding gives the violators a way out, if they can prove, that they did not know of the lack of permit. This seem to go against the ?dle to grave??eory that everyone is responsible for the waste that comes into their possession. On the other hand, the Ninth circuit favors the prosecution because they now only must prove knowledge of the hazardous waste.
Generally, ?honest and reasonable mistake of fact will negate criminal liability.??However, in strict liability crimes, since no intent is required then an honest and reasonable mistake will not negate mens rea. In section (d)(1), a mistake of fact defense can be used if the generator has a good faith belief that he was ?pping distilled water when in fact he was shipping some dangerous acid.??There is no mistake of law defense. Therefore the generator or transporter cannot argue mistake as to permit terms since the terms of the permit are legal elements.
The Resource Recovery and Conservation Act has come along way since its inception in 1976. It has a powerful instrument in making the nation more aware of the environmental crisis. Its focus now on environmental crime litigation is even more effective since it affects not only economics but also the liberty of the violators. The definition of ?wing?? not as troubling if we follow the Eleventh Circuit. However, based on the doctrine of ?lic welfare statute??d from a practical perspective, the ninth circuit should be followed. Based on the nature of environmental violations, not punishing the generator because he had no specific knowledge of the permitless facility would put the environmental movement thirty years (30) backwards instead of another fifty years (50) ahead.
The ?wledge??quirement in RCRA?iminal Penalty ??8(d)(1) should be construed according to the Ninth Circuit. If not the generators who knowingly violate environmental laws will make a mockery of the environmental and criminal legal system by claiming lack of knowledge about the facility?ermit.