The Environmental Protection Agency (“EPA”) enforces federal environmental laws, although the actual enforcement often falls to state and local agencies with oversight by the federal government. As discussed previously, the mens rea component of many environmental laws is negligible.
Environmental laws encompass a wide range of subjects, and the major statutory provisions are listed below:
· The Clean Air Act (“CAA”), found at 42 U.S.C. § 7401 et seq., governs air emissions as they relate to public health. Limited case law discussing criminal violations of the CAA include: United States v. Desnoyers, 637 F.3d 105 (2d Cir. 2011) (reversing a Rule 29 dismissal of mail fraud conspiracy related to asbestos violations); United States v. Chau, 293 F.3d 96 (3d Cir. 2002) (sentencing issues regarding repetitive discharge of asbestos and obstruction of justice); United States v. Thorn, 317 F.3d 107 (2d Cir. 2003) (sentencing issues regarding asbestos violations and money laundering); United States v. Maury, 695 F.3d 227 (3d Cir. 2012) (regarding mens rea for negligence).
· The Clean Water Act (“CWA”), codified at 33 U.S.C. §§ 1251-1387), establishes regulations governing discharge of pollutants into water and quality standards for surface waters. The limited case law includes: United States v. Phillips, 367 F.3d 846 (9th Cir. 2004), cert. denied 543 U.S. 980 (2004) (conviction for diverting water without permit and obstruction of justice sentencing enhancement for attempting to influence a witness); United States v. Cota, No. C-08-00160 SI, 2008 U.S. Dist. LEXIS 65911 (N.D. CA July 21, 2008) (false statement and discharging oil in navigable waters of the U.S.); United States v. Curtis, 988 F.2d 946, 949 (9th Cir. 1993) (federal employees in course and scope of employment not immune to prosecution under CWA).
· The Safe Drinking Water Act (“SDWA”), found at 42 U.S.C. §§ 300f- 300j-25, applies to above and underground water intended for drinking, and regulates operators of public water drinking systems. One criminal case discussing the SDWA is United States v. Lewis, No. 4:09CR-2-M, 2009 U.S. Dist. LEXIS 97959 (W.D. KY Oct. 16, 2009) (denial of Rule 29 motion for acquittal for conspiracy to violate SDWA and making false statements to the EPA).
· The Ocean Dumping Act (Marine Protection, Research, and Sanctuaries Act), located at 33 U.S.C. §§ 1401-1445, 2801-2805, 16 U.S.C. §§ 447f, covers materials originating from the U.S. to be dumped into the oceans, dumping by U.S. agencies and vessels, and materials from outside the U.S. dumping in U.S. territorial waters. A few criminal cases involving this Act include: United States v. West Indies Transport, Inc., 127 F.3d 299 (3d Cir. 1997) (convictions for dumping scrap metal in ocean without permit despite claims of reasonable reliance on signs indicating dumbing was prohibited within 12 miles of shore); United States v. Reilly, 827 F. Supp. 1076 (D.Ct. DE May 13, 1993) (denying motion to dismiss because accused did not have to have knowledge of regulations, only knowledge of committing illegal act of dumping material in ocean required).
· The Resource Conservation and Recovery Act, and The Solid Waste Disposal Act (“RCRA”), codified at 42 U.S.C. §§ 6901- 6992k, regulates “cradle-to-grave” handling of hazardous waste, including generation, transportation, treatment, storage, and disposal. Substantial criminal case laws address violations of the RCRA, including a pivotal U.S. Supreme Court decision that found “the rule of Apprendi applies to the imposition of criminal fines,” meaning the jury must determine any fact (other than a prior conviction) that increases a criminal defendant’s maximum potential fine. Southern Union Co. v. United States, 132 S. Ct. 2344, 2357 (2012). Southern Union involved the imposition of a per-day fine for improper mercury storage that the trial court imposed without a jury determination of the number of days the company violated the provision. Id. at 2351. See also United States v. Fiorillo, 186 F.3d 1136, 1149 (9th Cir. 1999) (liability for the transport of hazardous waste); United States v. Humphries, 728 F.3d 1028, 1033 (9th Cir. 2013) (no instructional error and conviction affirmed for unlawful storage of waste without a permit during period company was winding down); United States v. Elias, 269 F.3d 1003, 1012 (9th Cir. 2001) (federal government retains criminal and civil enforcement powers under RCRA even though a comprehensive state program exists); United States v. Barken, 412 F.3d 1131, 1136 (9th Cir. 2005) (statute of limitations and Rule 48(b) motion to dismiss regarding RCRA charges filed days before the statute of limitations period expired);
· The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), located at 42 U.S.C. §§ 9601-9675, 26 U.S.C. §§ 4611, 4661, 4671, 59A, 9507, and 10 U.S.C. §§ 2700- 2710, establishes a “Superfund” to allow the federal government to clean up uncontrolled or abandoned waste sites, as well as prosecute responsible parties. Some cases pertaining to CERCLA include: United States v. Omega Chem. Corp., 156 F.3d 994, 1001 (9th Cir. 1998) (company not in violation of CERCLA for refusing to sign a unconditional written consent to allow EPA unfettered access to facility when company never denied or impeded access); United States v. Torf (In re Grand Jury Subpoena), 357 F.3d 900, 911 (9th Cir. 2003) (reversing district court order denying motion to quash grand jury subpoena and civil contempt ruling because an attorney was hired in anticipation of litigation and the work-product doctrine applied).
· The Oil Pollution Act (“OPA”), codified at 33 U.S.C. § 2701 et seq. (1990), pertains to catastrophic oil spills and a fund financed by taxes on oil to provide clean up when the responsible party is unwilling or unable to respond. Cases concerning the OPA include: South Port Marine, LLC v. Gulf Oil Ltd. Pshp., 234 F.3d 58, 64 (1st Cir. 2000) (affirming Seventh Amendment right to civil jury trial on tort actions related to damages from gas spill in marina); Exxon Shipping Co. v. Exxon Seamen’s Union, 11 F.3d 1189, 1196 (3d Cir. 1993) (affirming district court refusal to order reinstatement of seaman who failed breathalyzer because of strong public policy of eliminating risks of injury and liability under OPA).
· The Toxic Substances Control Act(“TSCA”), located at 15 U.S.C. §§ 2601- 2697 (1976), pertains to reporting, record-keeping, and testing requirements for certain chemical substances and mixtures. United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096, 1099 (9th Cir. 1985) (because TSCA proof of knowing or willful violations of regulations, use of Jewell/deliberate avoidance instruction was erroneous); United States v. Ward, 676 F.2d 94, 97 (4th Cir. 1982) (no Fifth Amendment double jeopardy for federal criminal TSCA charges when defendant acquitted by state of malicious damage to property because elements differed); In re Search of 4801 Flyer Ave., 879 F.2d 385, 390 (8th Cir. 1989) (must wait until indictment filed to challenge the search in a suppression hearing unless the movant could justify the exercise of equitable jurisdiction by the court).
· The Federal Insecticide, Fungicide, and Rodenticide Act(“FIFRA”), found at 7 U.S.C. §§ 136-136y (and related Federal Food, Drug, and Cosmetic Act (“FFDCA”), codified at 21 U.S.C. §§ 321- 346a), regulates the distribution, sale, and use of pesticides. For example, the court determined that the FIFRA was not unconstitutionally vague in United States v. Corbin Farm Service, 444 F. Supp. 510, 540 (E.D. Cal. 1978). As for related civil claims, the Ninth Circuit held that a state claim for “failure to warn” about harmful pesticides was preempted by FIFRA, whereas strict liability and breach of implied warranties of fitness and merchantability could be maintained notwithstanding the FIFRA. Arnold v. Dow Chemical Co., 91 Cal. App. 4th 698, 729 (Cal. App. 2d Dist. 2001).
© 2014 Knut S. Johnson & Emerson Wheat. May not be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law.
 The EPA provides a database to search all criminal prosecutions by defendant, location, date, case attributes, statute, and/or keywords. Database available at: http://cfpub.epa.gov/compliance/criminal_prosecution/index.cfm?
Numerous other provisions exist and summaries can be found on the EPA’s website. http://www2.epa.gov/laws-regulations/laws-and-executive-orders (last visited Dec. 22, 2014).
 J. Manly Parks, The Public Welfare Rationale: Defining Mens Rea in RCRA, 18 Wm. & Mary Envtl. L. & Pol’y Rev. 219 (1993), available at: http://scholarship.law.wm.edu/wmelpr/vol18/iss1/6 (last visited Dec. 23, 2014) (“By borrowing from strict liability rationales, courts have fashioned a rule of construction and applied it to the mental state requirement in public welfare regulations. This rule reverses the traditional rule requiring strict interpretation of a criminal statute against the state. Nowhere have courts applied this rule of construction more extensively than in the interpretation of the knowing requirement of RCRA.”)
The U.S. Supreme Court endorsed the Jewell instruction in the patent case Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2069 (2011); citing United States v. Jewell, 532 F.2d 697, 700 (9th Cir. 1976) (en banc). However, Justice Kennedy’s dissent caution an overbroad reading of this finding in the context of criminal cases, which the Court was not charged with deciding in Global-Tech. Id. at 2072-2074 (Kennedy, J., dissenting).