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The Responsible Corporate Officer Doctrine in RCRA Criminal Enforcement: What You Don't Know Can Hurt You

February 1992

Citation: 22 ELR 10099

Issue: 2

Author: James M. Mesnard and Keith A. Onsdorff

Editors' Summary: EPA and the Department of Justice are aggressively enforcing the criminal provisions of federal environmental laws. Companies and their officers are subject to large fines and jail terms if convicted. Corporate officers should be aware of a recent trend in RCRA criminal enforcement in which the Justice Department has attempted to hold corporate officers and chief executive officers criminally liable for the actions of their subordinates, even when the officers did not have actual knowledge of their employees' illegal conduct. The Justice Department has attempted to apply a theory known as the responsible corporate officer doctrine to override the knowledge requirements in RCRA's criminal liability provision. This Article traces the development of the responsible corporate officer doctrine and analyzes the Justice Department's attempt to apply the doctrine to RCRA cases. The authors observe that although the Justice Department has not been outwardly successful in advancing this approach, it may have shifted the burden of proof in RCRA cases. The authors outline what corporations and their officers can do in response to the expansion of RCRA criminal liability, and conclude that Congress should examine the issue during the upcoming RCRA reauthorization.

Mr. Onsdorff is of counsel and Mr. Mesnard is an associate in the Washington office of the national law firm of Seyfarth, Shaw, Fairweather & Geraldson. Until November of 1990, Mr. Onsdorff was the Director, Office of Criminal Enforcement, U.S. Environmental Protection Agency, Washington, D.C.

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