25 ELR 10459 | Environmental Law Reporter | copyright © 1995 | All rights reserved

Criminal Enforcement of Environmental Laws: Part I

Editors' Summary: In this first of a three-part series, the authors examine the history and general operation of the federal environmental crimes program. The authors first describe how an effective enforcement program emerged in the Justice Department and EPA despite various obstacles — including disagreements between and within the agencies about prosecutorial decisions — and how the program's history continues to influence decisions about what conduct EPA will investigate and what violations Justice will prosecute criminally. The authors also identify the major issues the program currently faces. The authors then discuss how the criminal enforcement program operates within a framework of civil rules and reporting obligations. They emphasize that the unique features of the system are that some instances of noncompliance will occur at even the best managed facilities and that virtually every act of noncompliance may be prosecuted criminally. The authors describe the case selection guidelines that EPA uses to decide which violations to investigate and refer to Justice, and that Justice uses to decide which cases to prosecute criminally. They also discuss the structure and enforceability of the permit system under major environmental laws, the crime of knowing endangerment, and the relationship between federal and state criminal enforcement efforts.

John F. Cooney is a partner in the Washington, D.C., law firm of Venable, Baetjer, Howard & Civiletti. Mr. Cooney is a former Deputy General Counsel in the Office of Management and Budget, and a former Assistant to the Solicitor General, U.S. Department of Justice. Judson W. Starr is a partner in the Washington, D.C., law firm of Venable, Baetjer, Howard & Civiletti. Mr. Starr is a former Chief of the Environmental Crimes Section, U.S. Department of Justice. Joseph G. Block is a partner in the Washington, D.C., law firm of Venable, Baetjer, Howard & Civiletti. Mr. Block is a former Chief of the Environmental Crimes Section, U.S. Department of Justice. Thomas J. Kelly Jr. is a partner in the Washington, D.C., law firm of Venable, Baetjer, Howard & Civiletti. Mr. Kelly is a former Assistant U.S. Attorney.

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Background

Environmental prosecutions involve a unique mixture of civil and criminal elements. The defense lawyer is constantly torn between two basic and contradictory instincts: The desire to cooperate with the regulator and the adversarial instinct to give the prosecutor information only when it will support a decision not to indict. Civil litigators and white-collar defense lawyers will approach this problem from different angles. But both types of lawyers will encounter the same immutable conflict, and will find that there are aspects of the problem that do not respond well to their normal operating style.

The civil litigator is used to dealing with the regulator and appealing for exercise of its discretion. Environmental lawyers are more forthcoming with information and hope to explain away the violation, or at worst negotiate a sanction that minimizes compliance costs and preserves the company's operational flexibility. The civil lawyer may be taken aback when a criminal prosecutor enters the scene, because the prosecutor has different powers, plays by more stringent rules, and has goals different from regulatory enforcers.

The criminal lawyer is used to dealing with prosecutors, and is trained to disclose information grudgingly and only when it may deflect the matter to a civil resolution or reduce the charges. Criminal counsel is frustrated by the constant disclosures about its operations that the regulated entity must continue to provide the regulatory agency, and thus the prosecutor, during the investigation. The criminal lawyer may be frustrated that the client has to be forthcoming because the regulator has leverage over its business fortunes through the ability to withhold discretion under existing permits or to impose stringent new requirements long after the criminal matter becomes history.

Criminal enforcement is an indispensable feature of effective environmental regulation. Its significance will increase in the future, as augmented appropriations and favorable judicial decisions facilitate the initiation of more prosecutions. The critical aspect of any criminal investigation is the government's exercise of discretion whether to [25 ELR 10460] pursue an environmental violation civilly or criminally. Therefore, it is important to examine the policy factors that enter into this decision and how these considerations developed as the program matured.

History of the Federal Environmental Crimes Program

The federal environmental crimes program developed as an outgrowth of the civil enforcement effort. The program was developed in piecemeal stages, with Congress giving little systematic consideration to the policy goals, the institutional structure, or the elements of the offenses. Some argue that the original congressional objective for the effort was to promote regulatory compliance; others, prevention of pollution; and still others, imposing punishment on violators and leveling the playing field between honest and dishonest competitors. Despite the confusion about its goals, between 1980 and 1990 dedicated prosecutors at the U.S. Department of Justice (Justice) and criminal investigators at the U.S. Environmental Protection Agency (EPA) demonstrated the crucial need for an environmental crimes program. They devised sensible enforcement priorities and won a series of court victories that established the foundation for a successful effort. The program has enjoyed broad public support, and its development has been replicated at the state and local levels.

At the same time, the criminal enforcement program has suffered from the lack of comprehensive thought paid to its organizing principles and the ad hoc nature of succeeding congressional reactions. Enforcement policies and techniques have evolved only after protracted wrangling by competing bureaucracies over issues that appear incapable of permanent resolution. Nevertheless, an effective criminal enforcement program emerged despite the obstacles, and the program's history continues to influence decisions about what conduct will be prosecuted criminally and under what circumstances.

Spontaneous Origin of the Program

Congress first made environmental pollution a federal crime in the Refuse Act of 1899, which made it a misdemeanor to "throw, discharge, or deposit" any refuse matter in navigable waters without a permit.¹ Violation of the Refuse Act is a public welfare offense, for which violators are held strictly liable.² This provision, although enforced infrequently, survived to serve as the model for criminal provisions when the new era of environmental consciousness dawned in 1970.³ It established the vital precedent that environmental crimes could be treated as public welfare offenses.

The first modern attempt to devise an environmental crimes provision was § 113(c) of the Clean Air Act (CAA) Amendments of 1970,⁴ which punished violations of the Act as a misdemeanor. The statute proved substantially unenforceable, however.⁵ Enforcement was not based on a permitting system, so there was no clear delineation of the particular legal obligations applicable to a source. In addition, because there were few reporting and recordkeeping obligations, enforcement authorities could not routinely and cost effectively review whether an individual source had violated its obligations.

Congress learned quickly from its mistakes. In 1972, substantial improvements were incorporated in the criminal enforcement provision of the Federal Water Pollution Control Act (FWPCA).⁶ Section 309(c) provided misdemeanor penalties for any "negligent or willful" discharge of pollutants into navigable waters without a permit or in violation of a permit issued under the Act.⁷ The crucial breakthrough was tying enforcement to the permit system. This allowed systematic and cost-effective detection and punishment of violations, either by environmental groups, which could bring suits for damages,⁸ or by federal or state governments, which could prosecute violations criminally, civilly, or administratively. The threat of criminal punishment added an additional compliance incentive for sources that already were within the permit system. The most common targets of criminal prosecutions in the early years, however, were so-called midnight dumpers — individuals or entities operating outside the system without the required permits.⁹

The FWPCA proved enforceable and produced some of the first precedents that demonstrated the feasibility of a large-scale environmental crimes effort.¹⁰ Further, investigation of potential crimes under the Act gave prosecutors firsthand experience discovering traditional Title 18 crimes while in pursuit of novel environmental cases. In fact, environmental crimes frequently are charged in conjunction with conspiracy, aiding and abetting, submission of false statements, mail fraud, perjury, and obstruction of justice.¹¹

The environmental crimes program accelerated with passage of the Solid Waste Disposal Act Amendments of 1980, [25 ELR 10461] which provided, for the first time, felony penalties for treatment, storage, or disposal of hazardous wastes without a permit.¹² The amendments coincided with the effective date of the provisions delegating permit writing authority to states with EPA-approved programs.¹³ These events led to issuance of large numbers of enforceable limits in a relatively short period of time. The statute proved to be an effective way of prosecuting both midnight dumpers and permitted firms that tried to reduce waste treatment costs through unauthorized disposal.¹⁴

Especially in the program's early years, the vast majority of environmental prosecutions involved violations of the Resource Conservation and Recovery Act (RCRA) or the FWPCA.¹⁵ RCRA prosecutions in particular were popular at the local level because they gave U.S. Attorneys the means to respond to public outcries about the dumping of hazardous wastes. In the 1970s and early 1980s, however, EPA and Justice concentrated their enforcement efforts on civil cases and did not specifically dedicate resources to a criminal effort.

Development of a Formal Enforcement Program

Systematic efforts to think through the application of criminal provisions to environmental violations can be traced to a series of speeches given in the late 1970s by then-Assistant Attorney General James Moorman. In 1978, Moorman announced that Justice would prosecute "willful, substantive violations of the pollution control laws," and that grand jury investigations had been convened against both corporations and individuals.¹⁶ In 1979, Moorman announced in congressional testimony that he was reallocating resources from the original enforcement strategy of seeking to compel compliance with the regulatory deadlines of the CAA and the FWPCA to a more ambitious strategy of seeking to punish actual instances of regulated sources noncompliance.¹⁷

At the outset of the criminal enforcement effort, Moorman clearly articulated two issues that have proved controversial throughout the life of the program. First, he directly challenged EPA to upgrade its inspection resources to accommodate the special investigative demands of criminal cases.

We must move, particularly in the field of toxics and hazardous waste, to a different type of case. These cases will require a substantial improvement in EPA's investigative capability. EPA must improve its ability to audit the pollution control operations of plants; the ability to obtain and analyze samples of many toxic pollutants; and the ability to track down and identify surreptitious discharges.¹⁸

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Second, he identified the importance of clearly defined standards to delineate the kinds of cases that should be prosecuted criminally.

This investigatory capability should be directed toward situations where there exists the greatest likelihood of abating significant environmental harm or damage to the public health, or where there appears to be a serious offender involved, either in terms of repeated and continuing violations or violations of a serious magnitude.¹⁹

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In 1980, Attorney General Benjamin Civiletti reinforced this enforcement initiative by serving notice that Justice would target individuals as well as corporate offenders.

We will also emphasize personal responsibility. I do not view violations of pollution laws as simply the acts of corporations. It is self-evident that the work of corporations is carried out by individuals. . . . Thus, we shall attempt to identify the corporate acts so that the law may be truly enforced and its real deterrent effect mobilized.²⁰

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But despite these intellectual breakthroughs, Justice had no criminal enforcement structure or formal environmental program in place as the Carter Administration left office. In January 1981, the environmental crimes program had few resources, limited statutory authority, no enforcement principles or priorities, and little track record in court. Development of the institutional mechanisms and enforcement policy was left to the Reagan Administration. Despite the controversy surrounding EPA throughout the 1980s, the Reagan years witnessed the successful launch and consolidation of an effective criminal enforcement program.

Institutional Structures

Before large-scale efforts could succeed, Justice and EPA had to evolve internal organizational arrangements to prosecute environmental crimes. In these initial efforts, fault lines clearly emerged, both within Justice and between EPA and Justice, that continue to mark the program.

Justice initially sidestepped the question whether to locate the criminal enforcement program in the Lands and Natural Resources Division²¹ or in the Criminal Division. Instead it created an informal coordination mechanism between the two divisions. The Criminal Division assumed responsibility for cases involving Title 18 crimes, such as false statements, obstruction of justice, or mail fraud; the Lands Division prosecuted violations of environmental regulations. This institutional arrangement proved unwieldy and failed to provide programmatic leadership. Further, the client [25 ELR 10462] agency — EPA — had a marked preference toward working with the Lands Division, whose environmental lawyers already represented the Agency in civil cases. EPA perceived the Lands Division to be more receptive to its concerns and maintained regular communications with its attorneys, to the exclusion of the Criminal Division.

Eventually, the ever-increasing number of criminal cases forced Justice to establish a permanent institutional arrangement. In November 1982, a three-lawyer Environmental Crimes Unit was established in the civil Environmental Enforcement Section of the Lands Division to focus exclusively on criminal cases. Part of the impetus for creating this specialized unit was the difficulty Justice had encountered in dealing with EPA. During the Carter Administration, EPA enforcement personnel had referred many cases for prosecution that Justice rejected for poor investigatory work. Nearly 60 percent of EPA's criminal referrals were declined.²²

In response to these problems, EPA created a separate Office of Criminal Enforcement in January 1981.²³ As part of this initiative, each EPA Region was authorized to hire its own criminal investigators. Criminal enforcement languished, however, under Anne Gorsuch's regime as EPA Administrator. The program suffered from slow hiring practices and the first outbreak of what has been a cyclical argument within EPA over the proper organization of its enforcement effort.²⁴ Finally, in October 1982, the first cohort of experienced criminal investigators reported to work at EPA. They gradually introduced a more practical law enforcement perspective to EPA's investigative efforts. For a long time, however, the criminal program remained something of a poor relation in contrast to EPA's core civil enforcement program.²⁵

Thus, by November 1982, both Justice and EPA had developed appropriate institutional structures within which to pursue environmental violators. Each agency began a long-term educational program to persuade Congress to expand its resources to amplify the program's reach. For example, in May 1987, Justice upgraded its criminal enforcement efforts by creating a freestanding. Environmental Crimes Section (ECS) within the Lands Division. By 1992, the ECS had grown to 28 attorneys. Its work was complemented by the FBI, which had 100 special agents working on environmental criminal cases. Between 1982 and 1992, EPA's staff grew from 6 to 62 criminal investigators.²⁶ The Pollution Prevention Act of 1990 further established as a goal that EPA would employ a total of 200 criminal investigators by October 1995.²⁷

Expansion of Statutory Authority

The environmental crimes initiative benefitted from improved institutional structures, but suffered from limited resources and inadequate statutory authority. In particular, many U.S. Attorneys displayed little interest in pursuing expensive and difficult environmental cases when the crimes could be punished only as misdemeanors, and there was little prospect that individual defendants actually would be incarcerated upon conviction. Despite an agreement with EPA to become more active, the FBI also was reluctant to commit its investigative resources to support misdemeanor prosecutions.

Throughout the 1980s, Congress gradually clarified the scope of the environmental criminal provisions, upgraded the crimes from misdemeanors to felonies, and provided for greater fines and longer terms of imprisonment. Major benchmarks included the Hazardous and Solid Waste Amendments of 1984,²⁸ the Superfund Amendments and Reauthorization Act of 1986,²⁹ and the Water Quality Act of 1987.³⁰ In particular, favorable public response to RCRA felony charges was largely responsible for turning local federal prosecutors into champions of the environmental crimes program. Finally, in the CAA Amendments of 1990,³¹ Congress upgraded its penalty provisions to felonies and converted air enforcement to a permit program.³² This initiative will result in more effective civil and criminal enforcement against a large universe of regulated entities.

Success of the Program

From the crucial events of October 1982 until April 7, 1995, Justice obtained indictments against 443 corporations and 1,068 individuals. During that time, 334 organizations and 740 individuals were convicted by plea or verdict.³³ Justice recovered $ 297 million in criminal penalties, $ 125 million of which was obtained from the Exxon Valdez oil spill alone. Sentences totaling 561 years of imprisonment (not counting actual time served) were imposed against those convicted.

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Development of Formal Enforcement Standards

Justice and EPA have enormous latitude in deciding which cases to prosecute criminally. This discretion has sparked complaints from both the regulated community, which contends that there is little predictability about which violations will be prosecuted criminally as opposed to civilly, and from congressional critics, who argue that more criminal cases should be filed.

The agencies' formal policy guidance about the decision to prosecute simply identifies criteria that may be considered. For example, in October 1982 EPA issued a memorandum identifying five factors to determine when criminal prosecution is appropriate: (1) the degree of scienter, or intent to violate the law; (2) the nature and seriousness of the offense; (3) the need for deterrence; (4) the violator's compliance history; and (5) the need for simultaneous civil or administrative enforcement actions.³⁴ Like most multi-factor analyses, the memorandum provides few concrete tests for determining whether a particular case will be handled criminally or civilly. In many respects, it simply establishes the terminology within which the arguments for and against prosecution should be framed.

Justice's policy has concentrated on persons operating outside the regulatory or permit system, such as midnight dumpers, and persons operating inside the system who seek to avoid detection of regulatory violations by submitting false or incomplete information.³⁵ In 1987, Assistant Attorney General Henry Habicht stated that Justice brings environmental cases against individuals who are fully knowledgeable of the regulatory requirements.

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These cases do not involve technical breaches of rules that require a Ph.D. to fathom; rather they mainly involve blatant failures to obtain any of the required permits for toxic pollutant disposal or deliberate falsification of required discharge-monitoring reports. . . .³⁶

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In January 1994, EPA publicly responded to criticism of its criminal referrals by reiterating that criminal prosecution was inappropriate when there was no evidence of evil intent and when there was no actual or threatened harm to the environment or human health.³⁷ Justice has never publicly adopted or disallowed this position. But these public statements are not legally binding on the agencies. The actual policy is established by the pattern of charging decisions. There remains substantial controversy over whether the cases that are prosecuted do, in fact, exhibit actual mens tea and harm.

Despite the experience gained in hundreds of cases over the years, EPA and Justice have not better defined the standards for prosecution. Early in the program, a balancing factor compensated for the lack of external guidance: Justice was concerned that it had to make some showing of mens tea in court. Recent judicial decisions have effectively eliminated this requirement, however. Now, once a decision is made to prosecute a case criminally, the government can make out a prima facie case simply by proving that a violation occurred and that the defendant was aware of its actions. Thus, the most important aspect of a case is the government's wholly discretionary determination whether to proceed criminally or civilly, and if thedecision is to proceed criminally, then whether to charge only the corporation or to include individuals as well.

As a result of this development, virtually every violation of the principal environmental statutes, however technical, may now be prosecuted criminally. But regulatory requirements range from the simple to the enormously complex. Few entities can be expected to attain 100 percent compliance, especially at large facilities. Criminal prosecution is a possibility in all such cases. Thus, it is important that the government carefully weigh the decision to impose the ultimate sanction of criminal prosecution.

Defining prosecutorial guidelines is difficult, and law enforcers instinctively shy away from any statement or action that might signal what violators can get away with. Nonetheless, there are compelling public policy reasons why Justice and EPA should undertake the effort to identify clearly for the regulated community what conduct the government will not tolerate and will prosecute criminally.

The reality is that enforcement agencies cannot police the field by themselves, but must rely on corporations to regulate themselves. From an environmental protection standpoint, it is vital that companies understand what the government considers to be the most important problems, so that the regulated entity can determine how to formulate its corporate policy, prioritize its compliance efforts, and allocate its internal resources. This is especially important when prosecutorial decisions may be based, in part, on a company's compliance attitude. If the government is going to punish companies for failing to assign the right priority to particular environmental problems, then it is critical — both from a pollution avoidance and a fair notice perspective — that the government set forth in advance what it deems important, and not force regulated entities to read its mind.

There is a second significant reason for clear prosecutorial guidance: The absence of more sharply defined principles has contributed significantly to the political problems the environmental crimes program has experienced in recent years.³⁸

Just as nature abhors a vacuum, bureaucracies despise subjective standards and the exercise of judgment. In many instances, there has been little difference between the cases that Justice has prosecuted criminally and those that have proceeded civilly — other than the decisionmaker's intuition as to whether a case warranted indictment. On close issues, reasonable people will disagree. For every decision not to indict, proponents of prosecution can accurately point to the cases in which similar facts led to criminal charges. In [25 ELR 10464] such subjective decisions, it is difficult for the official to provide a concrete explanation that will satisfy all critics. And there is no way to resolve policy disputes by recourse to neutral principles.

This problem is especially acute when the mental component — ordinarily, the principal determinant of criminal cases — is no longer an element of the offense. Any effort to differentiate among violations based on the guilty intent of the offender is subject to the retort that the reviewer is attempting to stifle a potential prosecution by introducing nonstatutory factors. Critics rationally can ask "Why should the prosecutor hold back?" when the law does not impose such a constraint.

In the final analysis, the indeterminate nature of environmental crimes has contributed heavily to the politicization of the program. In their efforts to avoid giving violators arguments against indictment, prosecutors have rendered themselves defenseless against critics.

Problems in Managing the Program

The success of the environmental crimes program is, to a substantial degree, the product of Justice's original policy decision to maintain a degree of centralization in the administration of the program. By placing formal responsibility for approval of significant criminal prosecutions in the ECS, and ultimately the Assistant Attorney General in Washington, D.C., Justice tried to ensure that cases would be selected in a manner that minimized risk to crucial EPA regulatory interpretations; that similar cases would be treated alike, even though they arose in different parts of the country; and that potentially precedent setting cases would be carefully presented and would have the attention of Justice's high-level management. As a result, Justice's case selection decisions have been highly effective in producing good precedents in court.

As the program grew successful, however, the policy of centralization increasingly generated friction, both between Justice and its client EPA and between Washington and the U.S. Attorneys. EPA believed that Justice was not sufficiently aggressive in bringing criminal cases. The U.S. Attorneys also responded negatively to efforts by Washington to assert more actual control over case selection and management. They chafed at clearing potentially popular cases through Washington and argued strenuously for a more distributed system in which they would regain their discretion and responsibility.

Disagreements With EPA About Prosecutorial Decisions

At the beginning of the criminal enforcement program, Justice adopted a conservative position about the kinds of cases it would bring and the level of evidentiary support necessary to approve an indictment. Prosecutors understood that case selection was critical in the early stages of developing legal doctrine, and that a precedent setting loss could have been fatal to the entire effort. Further, Justice reviewers concluded that the quality of the cases referred from EPA was often poor and failed to reflect an understanding of the evidentiary demands necessary to prove guilt beyond a reasonable doubt. This lack of confidence in the quality of EPA's investigations strained working relations.

From EPA's viewpoint, Justice appeared to be interested in bringing only cases that were certain victories. Justice declined to pursue many cases that EPA referred for prosecution, and did not adequately explain why. Many EPA staffers — who were not the ones having to stand up in court — did not receive Justice's response as an implicit criticism of EPA's investigatory work. Instead, they came to believe that Justice was more interested in not losing cases than in winning major victories, and that Justice would pursue only those cases for which it ran no risk at trial — after EPA had handed Justice all the evidence necessary to convict. EPA was concerned that this bureaucratic attitude slowed down the development and referral of cases, inefficiently concentrated investigative resources on a small number of cases, and generally created significant but unnecessary obstacles to bringing environmental violators before juries.

EPA's critique is a variant of familiar complaint within government — that Justice's litigating divisions tend to treat other agencies in a bureaucratic fashion rather than as clients with whom maintenance of a dialogue is important. The solution is simply stated but hard to implement under the daily pressure of litigation. Justice staff need to do a better job of explaining their reasoning to EPA, so that the Agency understands the decision in the instant case and can fine tune its investigative efforts to anticipate Justice's concerns in the next case.

The Struggle for Primacy Within Justice

The environmental crimes program originally featured a greater degree of energy in Washington and a lesser degree of initiative by U.S. Attorneys. Local prosecutors had limited familiarity with environmental law, and some offices faced resource constraints that made it difficult to pursue misdemeanor cases. At the same time, there were compelling reasons for centralizing these cases in a national office. First, environmental regulations are complex, and special expertise is needed to understand what constitutes a crime under the regime. Second, many environmental rules were not written with criminal enforcement in mind, and delicate judgment is required in order to determine whether a technical violation can or should be prosecuted criminally. Third, centralized case selection and case preparation by environmental experts helped ensure success in the initial generation of cases that established the crucial precedents for the program's development. Finally, given the difficulty in defining whether cases should be prosecuted criminally, civilly, or administratively, centralized policy control furthered the goal of consistency in charging decisions.

During the program's early years, there was little friction. The ECS prosecuted many of the most sensitive cases itself. For cases in which U.S. Attorneys had the lead role, procedures adopted in 1984 provided that all proposed RCRA indictments had to be submitted to the Assistant Attorney General, and that the charges could not be filed until Washington had completed its review.³⁹ But Washington exercised its formal authority with a light hand, and local prosecutors had few complaints about limits on their discretion.

In the late 1980s, however, the situation began to change. By then, a series of disasters (Love Canal, Times Beach, [25 ELR 10465] Chernobyl, Bhopal, and the Exxon Valdez) had persuaded the public that the threat of environmental degradation was real and that criminal prosecutions were warranted in many instances.⁴⁰ Environmental cases also became more attractive due to enhancement of the crimes to felonies and issuance of Sentencing Guidelines for individual offenders, virtually assuring incarceration for persons convicted of environmental felonies.⁴¹ Local prosecutors also had developed considerable expertise and believed that they could better evaluate the wisdom of a potential case because it had to compete for their attention with possible prosecutions under dozens of other statutes. At the same time, the rationale for centralized control began to diminish somewhat, ironically because of the precedents the ECS established through successful prosecutions.

The issue was squarely joined in 1990, when Washington began to exercise more aggressively the authority formally reserved to it by Justice policies. A group of U.S. Attorneys used internal Justice processes to challenge the Assistant Attorney General's authority to approve the filing of indictments and the acceptance of plea bargains in many kinds of environmental prosecutions. The battle coalesced around one of the most common issues in bureaucracies: Whether the U.S. Attorney's obligation to provide Washington with prior notice of its intent to file charges in a case in which it had the lead role carried with it the requirement to obtain advance approval, or whether Washington's role was merely consultative and advisory.

In January 1993, the departing Bush Administration attempted to establish a new line of demarcation between Washington and the U.S. Attorneys. This policy reserved to the Assistant Attorney General the right to veto proposed indictments in 10 priority areas that experience showed to be the most sensitive types of environmental prosecutions:

(1) RCRA violations, where a defense has been raised, or is reasonably likely to be raised, that an alleged hazardous waste is not a "solid waste";

(2) wetlands violations;

(3) charges under provisions of the 1990 CAA Amendments;

(4) knowing endangerment cases;

(5) charges based on negligence (except as part of a plea bargain);

(6) violations based on a strict liability theory (except as part of a plea bargain);

(7) charges based on the "responsible corporate officer" doctrine;

(8) charges involving federal facilities;

(9) cases in which evidence to be presented was derived from self-auditing by regulated entities, or otherwise implicated the Department's policy on audits and voluntary disclosure;⁴² and

(10) any matter of national interest, including the first prosecution under a particular statute or role, or a prosecution involving application of a role whose validity is significantly in doubt.⁴³

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U.S. Attorneys maintained their opposition to this document, and the issue was introduced into oversight hearings that the House Energy and Commerce Committee was conducting on the environmental crimes program. The effort to promote more decentralization gained support from EPA's Director of Criminal Enforcement. To increase the pressure on the Justice Department, Congress also deferred confirmation of the Assistant Attorney General-designate.

In order to put this inherited issue behind her, Attorney General Janet Reno issued a new policy directive on August 23, 1994, that will result in returning to U.S. Attorneys some of the authority Washington attempted to claim in 1990.⁴⁴ The 1994 policy divides prosecutions into "national interest cases" and lower priority cases.⁴⁵ The ECS and U.S. Attorneys will jointly handle national interest matters. These include cases that present novel issues of law (including the first case under a statute or rule); simultaneous investigations in multiple federal judicial districts; cases with foreign policy implications; and urgent or sensitive issues, including those of major interest to Congress or the President.⁴⁶ Through this mechanism, Washington is assured of policy primacy in cases of national significance, if only by its greater ability to raise disputed issues to a policy level within Justice. In lower priority cases, the 1994 policy makes clear that Washington has no formal veto authority over indictments or pleas.⁴⁷ Although the Assistant Attorney General still must be notified in such cases, the clear thrust of the policy change is to grant far greater autonomy to local prosecutors in the types of environmental Prosecutions that have become routine as the program has matured.⁴⁸

Recent Changes in the Environmental Crimes Program

The environmental crimes program has shown significant changes over the last few years. Understanding the thrust of these developments is critical for any practitioner asked to advise a client whether a civil investigation may take a sudden turn toward criminal enforcement.

The most important change is that Justice and EPA have become more aggressive in their charging decisions and are now prosecuting different and more complicated kinds of cases. In earlier years, criminal prosecutions were largely [25 ELR 10466] restricted to entities operating without a required permit, persons who falsified or fabricated reporting data, and egregious violations of easily understood regulatory provisions. Now, Justice is willing to bring criminal charges against both companies and individuals for a broader variety of regulatory violations.

Second, because courts have defined the mens rea requirement as rather minimal, there is noticeably less emphasis on the scienter criterion in charging decisions, regardless of what the formal guidance documents may state. Instead, the amount of environmental harm that occurred is the primary influence in the exercise of prosecutorial discretion. Simply stated, the more serious the harm, the greater the likelihood of criminal prosecution.⁴⁹ The factor of prior compliance history also has taken on increased significance. Violations that once might have been handled civilly are now being prosecuted in order to impose individual deterrence on an entity that has repeatedly broken the law.⁵⁰

Third, U.S. Attorneys are making prosecutorial decisions more frequently. Local prosecutors are more sensitive to community sentiment, and may be attracted to different cases than are Washington staff, who are better attuned to more abstract policy impulses. Who prosecutes the case makes a definite difference in the priority attached to a violation.

Fourth, questions have arisen repeatedly about the need for a qualified privilege or other safe harbor for companies that conduct effective internal audit programs, through which they report environmental violations that the government is not aware of and otherwise might never detect.

From a regulatory policy perspective, the best method of protecting the environment is for facilities themselves to detect and remediate environmental problems as early as possible, so that harmful discharges never occur. And from an engineering and management perspective, the best approach is to conduct periodic audits and systematically document for corporate policymakers all violations or potential problems, so that responsibility can be assigned and compliance monitored. The paper records that allow for management coherence could be a two-edged sword, however. The same documents could give a prosecutor an ironclad criminal case, especially in a universe where mens rea is irrelevant. This risk could make companies reluctant to institute formal self-audit programs, to the detriment of the environment.⁵¹

From an enforcement perspective, however, prosecutors naturally oppose any evidentiary restrictions that might create impediments to successful litigation. Enforcement personnel thus have reacted negatively to recognition of a privilege that might hinder their ability to rely on internal corporate audit documents, which might well provide a road map for successful prosecution of a violation. EPA and Justice have adopted guidance to attempt to ease concerns.⁵² But many in the regulated community object that the documents have had the opposite effect, because they clearly show that the enforcers intend to preserve their options to use these reports in prosecutions.

The regulated community continues to express concern that the narrow focus on facilitating those few prosecutions that do occur would adversely affect or deter a great deal of unambiguously pro-environmental conduct by the large number of companies that are sincerely interested in complying with their environmental obligations. Several states have already adopted statutory audit privileges, and the issue continues to gain visibility.⁵³

Major Outstanding Issues for the Program

As the environmental crimes program enters its mature years, there are five outstanding policy questions around which the debate over the future of the effort will revolve:

(1) Should environmental crimes be strict liability offenses, or should some showing of intent to violate the law or a discharge permit be required?

(2) Should an internal audit privilege be recognized?

(3) How should policy disagreements be resolved between Justice and EPA about case selection and the sufficiency of the evidence necessary to justify proceeding with a criminal prosecution?

(4) Should Justice's program be run in a centralized manner, by policy officials in Washington? Should leadership rest with the U.S. Attorneys? Or should the answer be different depending on whether cutting-edge cases or garden-variety prosecutions are involved? If authority is distributed to U.S. Attorneys and EPA Regions, should more precise policy guidance be issued to define the circumstances in which criminal prosecution is appropriate?

(5) What is the appropriate period of incarceration for a criminal conviction? Are the Sentencing Guidelines too severe in this respect?

Lawyers defending environmental investigations that may have criminal implications must remain aware of these questions at all times. Their resolution will significantly affect the ultimate policy decision whether to pursue a particular environmental violation civilly or with the full weight of the criminal law.

How the Environmental Crimes Program Operates

The environmental crimes program works from the baseline created by EPA's civil reporting and enforcement mechanisms. The unique features of this system are that (1) some instances of noncompliance are expected from even the best [25 ELR 10467] managed facilities and (2) virtually every act of noncompliance may be prosecuted criminally.

Criminalization of All Civil Rules

Criminal enforcement can be divided, in conceptual terms, into charges against three classes of defendants: (1) those who operate without a required permit; (2) those who violate the terms of a permit; and (3) those who violate a self-enforcing EPA rule, or an administrative or judicial order. Essentially every violation of a civil rule or permit is technically subject to criminal prosecution. There is no minimum quantitative requirement to differentiate which illegal discharges should be prosecuted civilly or criminally. And with infrequent exceptions such as "knowing endangerment" prosecutions,⁵⁴ there is no meaningful knowledge requirement to serve as a filter.

Environmental requirements are drafted in such minute detail that rule and permit violations occur frequently. As former Associate Attorney General Webster Hubbell stated:

the complex and ever-expanding array of environmental statutes and regulations [and] the inevitability of some degree of non-compliance . . . creates an understandably daunting climate for corporate management.

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Studies have shown that even the environmental managers of companies with the most aggressive compliance programs have concluded that 100 percent compliance is not possible, given the detailed nature of the requirements and the trip wires intentionally built into rules and permits.⁵⁶

There is little, if any, difference among the essential elements of administrative, civil, and criminal charges. For example, FWPCA § 309(c)⁵⁷ establishes a six-tier hierarchy of enforcement provisions, including:

. two levels of administrative penalties;

. civil penalties enforceable in court;

. misdemeanor offenses;

. ordinary felonies; and

. aggravated felonies (knowing endangerment).

Under this carefully calibrated scheme, all essential elements of the first five levels of offense are the same except for the mental element. And the courts have interpreted the knowledge provision to require proof of only the most general showing of the defendant's awareness of his or her own actions in order to obtain a felony conviction.⁵⁸

In sum, virtually every civil case represents a potential criminal case. The government has enormous discretion whether to proceed civilly or criminally, or to decline to act altogether. Thus, agency policy guidelines on case selection and prosecution are critically important.

EPA Case Selection Guidelines

EPA Investigation and Referral Policy

An October 1982 memorandum from EPA's then-Associate Administrator for Enforcement stated that criminal referrals will be confined to "the most serious cases of environmental misconduct."⁵⁹ While recognizing that EPA "is free to pursue criminal sanctions in every situation presenting evidence supporting the requisite elements of proof," the memorandum concludes that as a matter of both enforcement policy and resource allocation, such "unrestrained use of criminal sanctions is neither warranted nor practical."⁶⁰ The memorandum identifies five criteria that should be addressed in determining whether a criminal referral is appropriate:

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. the scienter requirement — criminal prosecution is normally limited to cases in which the prospective defendant has "guilty knowledge" or intent to violate the law;

. the nature and seriousness of the offense — this factor focuses on the "extent of environmental contamination or human health hazard" resulting from the prohibited conduct. It considers the duration of the conduct, toxicity of the pollutants, proximity to humans, quality of the receiving media, and "public sentiment supporting strong enforcement action." It also considers the impact of the conduct on EPA's regulatory functions, e.g., falsification of reports, tampering with monitors;

. the need for deterrence — this factor primarily targets particularly deliberate offenses or those that result in serious environmental contamination or human health hazard;

. compliance history — repeated environmental violations may trigger criminal enforcement to achieve effective individual deterrence; and

. the need for simultaneous civil or administrative enforcement actions — this factor addresses cases of noncompliance that pose ongoing risks to the environment or human health that must be addressed in separate civil action for an injunction. However, because of differing civil and criminal standards of proof and constraints on criminal discovery, initiation of parallel proceedings "should be avoided except where clearly justified."⁶¹

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The memorandum also sets forth EPA's investigative priorities under various statutes. The highest priority is reserved for cases in which the violation caused or threatened significant environmental contamination or risk to human health. Other priority areas involve willful violations of regulatory requirements including destruction, falsification, or concealment of records or tampering with monitoring devices.⁶²

[25 ELR 10468]

The factors and priorities EPA identified in 1982 have not been refined significantly since. Consequently, they continue to serve as the best guide to when EPA will initiate a criminal investigation or refer a case to Justice for possible prosecution. For example, the next significant EPA enforcement policy memorandum, circulated broadly within the Agency in September 1987, largely reiterated the 1982 list of factors, including: knowing or willful behavior; careful attention to the elements of the offense (including scienter); the adverse impact on EPA's regulatory functions if reporting information is falsified or concealed; harm to human health or the environment; "patterns or practices" (i.e., the subject's compliance history); and deterrence of others within the regulated industry.⁶³

In 1990, EPA restated its enforcement priorities in the course of attempting to enhance coordination and case selection by the regional offices.⁶⁴ The guidance attempts to focus resources better on EPA programmatic goals, rather than on simply responding to events. Reflecting the case law, it also deemphasizes the role of guilty knowledge in the institution of criminal cases. The guidance provides that review for possible criminal prosecution is appropriate when there has been misconduct that threatened EPA program goals or priorities and one or more factors indicating aggravated environmental misconduct, including: a history of repeated violations; deliberate, knowing, or willful misconduct; concealment of misconduct or falsification of required records; tampering with monitoring or control equipment; operation of pollution-related activities without a permit; and actual illegal discharges that create a threat of harm to the environment or human health.

In 1994, the head of EPA's criminal investigations division attempted to differentiate the most significant and egregious cases, in which criminal investigation is appropriate, from those in which civil or administrative action should be pursued.⁶⁵ The two principal criteria are significant environmental harm and culpable conduct.⁶⁶

"Significant environmental harm" may consist of actual or threatened harm to human health or the environment. The source's failure to report an actual discharge serves as additional factor favoring criminal investigation.⁶⁷ Further, such an investigation may be appropriate if the illegal conduct represents a trend or common attitude in the regulated community, and a single criminal case could have substantial deterrent effect on many firms.

"Culpable conduct" may be inferred from several factors, including a history of repeated violations, deliberate misconduct, concealment of misconduct or falsification of required records, tampering with monitoring or control equipment, and operating a business without required permits. With respect to the mental element, the memorandum simply notes that although federal environmental statutes do not require proof of specific intent, evidence "that a violation was deliberate will be a major factor indicating that criminal investigation is warranted."⁶⁸

EPA Policy on Enforcement Based on Ambiguous Rules

EPA issued a second policy document in 1990 that responded to perceived enforcement problems stemming from the ambiguity in certain substantive Agency rules defining impermissible conduct.⁶⁹ The document promulgated additional procedures to be followed before initiating a criminal investigation, if the case presents either a factual or legal issue of first impression. The memorandum notes that such cases may have national repercussions and deserve careful attention because of the need in criminal cases for clear and unambiguous legal standards and facts that prove guilt beyond a reasonable doubt. For this reason, the policy — which coincided with passage of the 1990 CAA Amendments — establishes procedures for greater internal coordination in potentially precedent-setting cases.

Justice's Prosecution Policy

Justice bases its decisions to bring environmental criminal cases on the Federal Principles of Prosecution, which follows a conservative charging philosophy and provides that the government will decline to prosecute if the evidence does not support a reasonable probability of conviction.⁷⁰ Even where the evidence is sufficient to convict, a prosecutor may decide not to bring a case if no substantial federal interest would be served, or if civil or administrative remedies would provide an adequate noncriminal alternative to prosecution.⁷¹

As previously noted, Justice's environmental criminal prosecutions have concentrated on persons operating outside the regulatory or permit system, e.g., midnight dumpers, and persons operating inside the system who seek to avoid detection of violations of regulatory requirements by submitting false or incomplete information.⁷² From the outset, Justice has been aware that criminal prosecutions against corporations alone are insufficient to create proper incentives for deterrence, because artificial entities can shrug off a fine as a cost of doing business. Thus, Justice has long prosecuted both companies and the individuals within them, in the expectation that a realistic threat of imprisonment would change behavior. On the basis of its experience, Justice defined in 1987 the situations in which it would prosecute individuals, as well as corporations, for environmental offenses. Justice's policy emphasizes the factor of "willful, deliberate, [25 ELR 10469] rational, and pre-meditated" violations in prosecuting individuals.⁷³ Justice formally stated that it brings environmental cases against individuals who are fully knowledgeable of the regulatory requirements.⁷⁴

Prosecution of Individuals

Justice has long had a policy — not committed to formal guidance documents — of prosecuting the highest ranking individual in a company responsible for a violation. In 1984, a Justice official stated:

[I]f fines alone were all the Government sought in prosecuting environmental crimes, the responsible decision-makers and actors would not be exposed and would go substantially unpunished — only the shareholders would suffer. Therefore, to achieve the desired level of deterrence and respect for environmental laws, those individuals who are themselves responsible for any wrongdoing must face the risk of imprisonment.⁷⁵

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In a 1987 interview, the official further noted that the most effective use of the environmental criminal investigation is to ferret out the individual corporate officer who is responsible. Experience shows that this is the best means of galvanizing corporate action.⁷⁶

Until the mid-1980s, courts generally were disinclined to sentence environmental offenders to serve actual terms of imprisonment. Justice waged a long policy battle to persuade federal judges of the appropriateness of incarceration in environmental cases.⁷⁷ The Sentencing Guidelines that the U.S. Sentencing Commission issued on November 1, 1987, reinforced these arguments by officially confirming the appropriateness of incarceration of individuals for crimes involving hazardous wastes.⁷⁸

Justice Policy on Prosecutions Based on Ambiguous Rules

The cases Justice is asked to prosecute increasingly involve allegations of departures from complicated regulatory provisions, which were not written with an eye toward criminal enforcement.⁷⁹ These provisions can be difficult even for experts to interpret, because EPA rule writers frequently employ open-ended and flexible terms in order to sweep within the civil regulatory system as much of the targeted conduct as possible.

Justice recognizes the sensitivity of the question whether to apply a complex rule for the first time in the context of a criminal prosecution. In part, this concern reflects the prosecutor's desire to win whichever of the many potential cases competing for attention that he or she decides to bring. In part, it recognizes the fairness problem involved in announcing an interpretation for the first time in an indictment⁸⁰ or seeking to incarcerate a person for not following a construction of a rule or permit term that previously was implicit.⁸¹ Finally, the policy tacitly recognizes the operation of the rule of lenity, which requires the court in a criminal case to resolve any ambiguity in a statute or rule in favor of the accused.⁸² For these reasons, the 1993 Justice bluesheet revision⁸³ made cases of first impression a priority case for Washington involvement.

Justice currently follows a relatively aggressive charging philosophy with respect to ambiguous environmental rules. In 1993, Associate Administrator Hubbell stated:

Because environmental law is complex and rapidly evolving, it is sometimes appropriate to use civil enforcement to clarify the law, explain regulations, and create legal standards before seeking to apply the law in a criminal context.

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By contrast, other divisions within Justice traditionally follow a more conservative philosophy. For example, the Antitrust Division would refuse to prosecute criminally when any of four special factors were present: (1) confusion of the law; (2) truly novel issues of law or fact; (3) confusion caused by past prosecutorial decisions;⁸⁵ or (4) clear evidence that the defendants did not appreciate the consequences of their actions.⁸⁶

Of these factors, the first two appear to be of particular concern for the new generation of environmental crimes cases. EPA is now referring, and Justice is under considerable political pressure to consider for criminal prosecution, [25 ELR 10470] cases in which the agency rules are susceptible to multiple readings or where the theory of liability has not previously been invoked in a civil or criminal case. Experience in other litigation divisions indicates that "[c]riminal indictments, particularly felony indictments, in such cases raise important issues of fairness which in turn may affect the likelihood of obtaining a conviction."⁸⁷

Thus, as Justice considers initiating a criminal case based on a potentially ambiguous construction of a rule or permit term, prosecutors face an unavoidable question: Whether their zeal to pursue the violator rigorously should be tempered by equitable considerations or the possibility that a judge's or jury's sympathy for a defendant who appears unfairly charged may check the development of a promising line of cases.

Civil Rules and Reporting Obligations

Periodic reporting obligations incorporated within permits serve as built-in triggers for enforcement actions. Permits issued under federal environmental statutes traditionally have specific, extensive data-collection and paperwork generation obligations. Indeed, the breadth, cost, and burden of the monitoring obligations necessary to meet EPA information demands are one of the most frequent policy criticisms of environmental regulation.⁸⁸

EPA vigilantly polices industry compliance with the monitoring and reporting obligations. Justice frequently brings cases for tampering with detectors or falsifying reporting data.⁸⁹ Regulated companies often complain about criminal prosecution for what are essentially "paperwork" violations, and which may not involve any actual discharge of pollutants to the environment.

But the literature on the appropriateness of criminal sanctions squarely supports the government's decision to make the integrity of the reporting system a high priority. Absent honest reporting, the cost to society of detecting excessive discharges would be high. An accurate reporting system, on the other hand, significantly reduces the amount of pollution discharged into the environment because a company or municipality that complies faithfully with permit conditions will detect and self-report most actionable exceedances of its permit. This self-reporting reduces search and detection costs, and allows regulators to enforce the law cheaply and efficiently. Indeed, for statutes having a civil monetary enforcement program that "private attorneys general" may invoke, environmental groups also may be active enforcers, thus further reducing the budgetary costs for government agencies.⁹⁰

The Relationship Between the Source and the Regulator

A company that is under investigation for environmental violations cannot maintain the same formal, adversarial posture toward the government as is typically followed in other white-collar criminal fields. The regulatory agency has the authority to demand continuing information disclosures while the criminal case proceeds, and it often has the power to impose significant controls over operations at the company's facilities. These two factors — the source's self-interest and the ability of the government to compel continuing disclosure — force the company, like it or not, to maintain a working relationship with the government even while the company is under criminal investigation or prosecution.

[] Self-Interest. The permit writer has enormous power over the regulated source, through its discretion to impose onerous substantive obligations, tight deadlines for compliance, or implicit requirements to purchase expensive pollution-control equipment. On the other hand, if the relationship between the regulator and the company is good, the permit authority can exercise its discretion in a manner that reduces compliance costs substantially.

This point is dramatically illustrated by the following civil regulatory matter. EPA originally proposed that the owners of the Navajo Generating Station — a large electric power plant in Arizona that was built to pump water from the Grand Canyon — reduce its sulfur dioxide emissions by 70 percent, measured on a 30-day average basis, in order to protect wintertime visibility in the Grand Canyon. The plant operator estimated that this would require installation of two scrubber modules per unit, at a total cost of $ 4.4 billion over the life of the plant. The owners countered with a proposal that EPA adopt an annual averaging time, which would permit the plant to achieve 90 percent reduction while requiring only one module per unit This approach would produce better environmental protection and reduce compliance costs to $ 2 billion. Because of the trust developed through a regulatory negotiation, EPA eventually agreed to annual averaging, apparently for the only time in the history of CAA implementation.⁹¹

The reverse of the Navajo power plant situation is also possible — the permitting authority can impose regulatory terms that can drive up costs and put a company it distrusts at a significant competitive disadvantage. Intransigent behavior can make a bad relationship worse. Further, most environmental criminal cases end in settlements or litigated orders that require the company to take significant remedial actions. Accordingly, even when it is under investigation or indictment, a regulated entity has strong incentives to preserve working relations with the permit writer who largely will dictate these future compliance terms.

[] Compulsory Disclosure. The government has many ways besides grand jury process to obtain information from a source during a criminal investigation. First, all permitting and reporting obligations continue during the investigation and prosecution of a crime at an operating facility. The regulator's data demands are both unilateral and unremitting. Second, the defendant corporation may not invoke the Fifth Amendment privilege against self-incrimination to prevent disclosure of [25 ELR 10471] these reporting documents.⁹² Any withholding or misleading modification of these documents is likely to be punished severely as obstruction of justice. Third, regulatory authorities have administrative authority to visit the facility under investigation, and as long as the administrative entry is not a sham to facilitate a warrantless search for purely criminal purposes, evidence discovered during the visit likely will not be stricken under the entrapment by estoppel doctrine.⁹³

In sum, the regulator has multiple ways to harm or shut down a company aside from obtaining an environmental criminal conviction. Although the situation may be somewhat different for individuals who are targets of such an investigation, it is usually essential to the company's long-term business interest to preserve a relationship with the civil authorities even as the prosecution against it proceeds.

The FWPCA Permit Program

Most major EPA enforcement programs are based on the original FWPCA permit program.⁹⁴ Under this approach, each source is required to obtain a permit that collects in one place (either in specific terms or by reference) all the pollution-control obligations to which the source is subject at each discharge point. Permits often go into enormous detail, specifying such factors as what pollutants the source may discharge and in what quantities, the averaging times that will be used in measuring compliance, the monitoring techniques that the source must use, and what information the source must disclose to the regulator and how frequently. In cases where the permit is defective and does not accurately reflect all legal obligations to which the source is subject, the source has the benefit of the so-called permit shield, under which proof that a facility has complied with all permit terms is a complete defense to allegations that it violated the law.⁹⁵

The CAA Permit Scheme

Under the CAA Amendments of 1990,⁹⁶ EPA is implementing an operating permit system that represents the first significant improvement to the FWPCA approach. Within the next few years, every source of significant air emissions in the country (an estimated 34,000 facilities) will be required to obtain a comprehensive permit from EPA or an authorized state. The permit will set forth all air emission requirements to which the source is subject; a schedule of compliance with new requirements; and monitoring, record-keeping, and reporting requirements.

In creating the operating permit system, Congress expressly intended to facilitate more aggressive enforcement of the CAA. Few criminal cases have ever been brought under this law because of the difficulty prosecutors have faced in proving that an emissions violation at one plant caused an entire area to exceed levels established by the governing state implementation plan. The new permitting system will allow more effective enforcement by both defining precisely the individual emissions requirements applicable to each source and consolidating all applicable restrictions in one document.

Other aspects of the 1990 Amendments will require many sources to monitor emissions more intensively. In combination with the permitting system, these requirements will provide enforcement personnel with clear, plant-specific standards against which to measure compliance, as well as the data necessary to detect and prosecute violations.

Several innovations in the enforcement system created by the 1990 Amendments will facilitate the initiation of criminal prosecutions. These factors include:

A requirement that in applying for a permit, each covered facility must submit a certification from a responsible corporate official either stating that the facility is in compliance with an applicable emission requirements or disclosing any violations that exist.⁹⁷ In order to avoid subjecting the certifying official to prosecution for submitting false statements, this provision will require each facility to conduct an extensive pre-submission audit of its operations to detect any violations. There is no permit application shield for such disclosures. Either EPA or an authorized state will be free to prosecute the plant for any existing violation it self-reports. And the permit application will provide a blueprint for enforcement officials on how to bring such a case.

Creation of a bounty scheme, under which persons who report a violation leading to a criminal conviction under the Act may obtain a payment of up to $ 10,000.⁹⁸ In April 1994, EPA issued regulations to implement this provision, including a mechanism to hide the identity of whistleblowers.⁹⁹ Disgruntled plant employees are expected to be a major source of reporting permit violations under this program.

Regulated facilities will bear the cost of the enforcement program. In order to obtain authorization of its air permit program, each state must demonstrate that the fees it receives from applicants for operating permits will be sufficient to make the state's clean air enforcement system self-supporting.¹⁰⁰ By essentially earmarking permit revenues to support enforcement programs, Congress has assured that there will be significantly more resources devoted to enforcement, and that state legislatures cannot undermine the program by underfunding state agencies.

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[25 ELR 10472]

Problems With the Regulatory and Permit Systems

The difficulty of prosecutorial decisionmaking is compounded by the fact that significant questions of interpretation remain in important EPA rules. Especially for the early sets of implementing regulations, EPA fashioned its rules to include within the permit systems as many discharge streams as possible, as quickly as possible. Working under tight congressional deadlines, basic structural decisions about the regulatory scheme were poorly understood, fudged, or compromised.¹⁰¹ Little, if any, thought was given to criminal enforcement at the time. While EPA's understanding and precision in drafting have improved substantially in recent years, many of these problematic early rules remain in effect, with little clarification or correction.

For example, there are several recognized gaps in the definition of what constitutes a "hazardous waste," the central provision of the entire RCRA regulatory scheme. In order to qualify as "hazardous," a waste must first be classified as a "solid waste." A "solid waste" is a "discarded" material that is not excluded from regulation.¹⁰² Recycled materials can be deemed discarded if they are recycled (or if they are accumulated, stored, or treated before recycling) in certain ways, and not discarded if they are recycled in other ways.¹⁰³ Over the last 15 years, EPA has had great difficulty in defining when "recycled" material will not be deemed hazardous.¹⁰⁴

Similarly, some hazardous wastes are defined in functional, rather than chemical terms. A used solvent that is further used as a commercial chemical product in manufacturing is not classified as hazardous, even though a chemically identical waste stream from the same production line may be subject to the full panoply of hazardous waste controls.¹⁰⁵ For these reasons, the hazardous waste rules are particularly difficult to enforce, a problem EPA has recognized for many years but has been unable to repair completely.

EPA's regulatory system includes many ambiguous provisions, which lie at the heart of the civil, and therefore the criminal, enforcement system. Prosecutors who investigate possible cases based on a common sense reading of the rules may learn about these ambiguities well after the fact. Indeed, an emerging feature of environmental criminal cases is that as Justice tries to prosecute substantive violations under more complicated EPA rules, both prosecutors and the courts are required to undertake a lengthy statutory and regulatory exegesis to define what the "crime" is. In pre-indictment negotiations, arguing that the regulations are ambiguous often may be the only way to persuade Justice not to prosecute. Defense counsel almost never deflect prosecution with arguments that the company or the individual is a solid citizen who would not and has not done anything wrong. Rather, if justice is to be persuaded not to prosecute, counsel must point to a legal deficiency in the government's case. Interpreting EPA rules often is a battle of the regulatory experts. In these analyses, the prosecutor has to live with prior EPA statements, in preambles and guidance documents, about the rules' meaning. These documents frequently contain ambiguities or admissions that may be fatal to Justice's chances of obtaining a conviction.

The Crime of Knowing Endangerment

Facilities that generate highly toxic substances are subject to enhanced charges if environmental violations result in "knowing endangerment" of workers or the community. This regulatory scheme is proving to have unexpected ambiguities that make its application more difficult than Congress expected.

As ordinary environmental crimes were upgraded to felonies, Congress created the new crime of knowing endangerment, with significantly heightened penalties, to deal with particularly offensive conduct that directly threatens human life. Knowing endangerment has been added to each of the major federal environmental statutes since 1980.¹⁰⁶ The constitutionality and feasibility of knowing endangerment prosecutions have been demonstrated in court.¹⁰⁷ Nonetheless, Justice has experienced difficulty in determining when to use this weapon and in actually obtaining convictions. Because of the turbocharged nature of the penalties involved, e.g., up to 15 years' imprisonment and a $ 250,000 fine for an individual under RCRA, Justice has given careful policy consideration to invoking the knowing endangerment charge.¹⁰⁸

The knowing endangerment provisions impose substantial criminal penalties on a person who knowingly violates an environmental standard, and who knows at the time of the violation that he or she thereby places another person in imminent danger of death or serious bodily injury. Proof only of a risk of harm, and not actual harm, is required for conviction. An affirmative defense is available that the conduct was consented to by the person endangered and was a reasonably foreseeable hazard of an occupation.

The knowledge element for the predicate environmental offense is a general intent requirement, which is satisfied by evidence that the discharger knew it was dealing with a material that could harm humans or the environment. The second knowledge element requires a showing of specific intent, which ordinarily requires proof that the defendant [25 ELR 10473] was aware that the substance could pose a severe health hazard to anyone who came into contact with it. Evidence on the second knowledge element also may be provided in substantial part by the prior permitting of the pollutant, efforts by the regulatory authority to apply its rules to the substance, or safety practices followed by the facility with respect to the material.¹⁰⁹

The more toxic the discharger's effluent, e.g., dioxin from paper mills, arsenic from metal operations, vinyl chloride or other volatile organic compounds from other industries, the lower the requisite factual threshold to justify a charge of knowingly exposing others to death or serious health risks. Thus, categorical discharges to surface waters and unauthorized disposal of hazardous wastes are likely to be held to a more stringent standard than, for example, violations at sewage treatment plants and discharges of non-process wastewater. As the air toxics program is implemented,¹¹⁰ sources of hazardous air emissions also will be increasingly vulnerable to knowing endangerment charges. In addition, for highly toxic compounds, courts are likely to construe more broadly the zone of persons placed in "imminent danger," and to be less receptive to the defense that a discharger was unaware of the risk of death or serious health effects.

The knowing endangerment provision thus effectively establishes a higher standard of care for discharges of highly toxic substances. While Congress may or may not have intended this result, dischargers within this category must be aware that the knowing endangerment provisions are targeted against them.

The first major conviction for knowing endangerment under RCRA was United States v. Protex Industries, Inc.¹¹¹ The case involved charges that a drum recycling plant maintained woefully inadequate safety provisions to protect employees from the dangers of toxic chemicals to which they were exposed as a result of the plant's RCRA violations. The evidence at trial included results of a 1984 EPA investigation that found elevated levels of metals in the ground; physical documentation of earlier spills; corroded, leaking, and improperly stacked drums; and evidence of illegal dumping. Samples taken at the site in 1985 showed that RCRA hazardous wastes were present. EPA special agents witnessed a Protex employee dumping the contents of a barrel on the ground, and an employee told a special agent that drums were emptied, their contents diluted and then flushed off the property. Government experts testified that two Protex employees were suffering from some reversible and irreversible health effects (psychoorganic syndromes).

Justice argued at trial that to show knowing endangerment, it had to prove only that defendants acted voluntarily, with knowledge of their actions, and with an awareness that they were dealing with something dangerous, as opposed to something harmless. Justice also contended that such knowledge could be shown by contacts with environmental agencies about similar problems in the past. Justice argued successfully that it could show culpable knowledge through deliberate avoidance, reckless disregard, or lack of due diligence; that the corporation's knowledge could be inferred from its organizational indifference to violations; and that circumstantial evidence could be used to show individual defendants' knowledge based on their responsible positions or on the particular regulatory scheme.

On appeal of their convictions, the court rejected defendants' claim that the knowing endangerment provision was unconstitutionally vague in that it did not require that the bodily injury be manifested immediately. The court concluded that evidence that the two employees had an increased risk of contracting cancer at some point in the future was sufficient to show that they had suffered serious bodily injury within the meaning of the statute).¹¹² Finally, the court specifically approved a jury instruction that defined "imminent danger" as "the existence of a condition or combination of conditions which could reasonably be expected to cause death or serious bodily injury unless the condition is remedied."¹¹³

Since Protex, Justice has experienced surprising resistance by courts and juries to returning convictions in knowing endangerment cases. For example, in United States v. Borowski,¹¹⁴ a knowing endangerment conviction under the FWPCA was overturned on causation grounds, despite clear evidence that employees were put at risk by their company's violations of the Act and that the company president personally knew of this danger. The employees were placed in imminent danger of serious bodily injury when they illegally dumped chemical solutions into sinks that led to a treatment works, in violation of pretreatment standards. The court of appeals, however, read literally the statutory requirement that a defendant must know at the time of the violation that he thereby places another person in imminent danger.¹¹⁵ The court reasoned that the danger to employees would have been identical if they had lawfully poured the chemicals into drums, or if the sinks had not led to a regulated treatment works. Accordingly, the court concluded that the violations were not properly linked by causation to the kind of endangerment for which Congress intended to impose criminal penalties. Rather, the court suggested that such charges should have been brought under RCRA or the Occupational Safety and Health Act.¹¹⁶

Similarly, in United States v. Villegas,¹¹⁷ a district court acquitted an FWPCA defendant post-trial on knowing endangerment charges, despite the jury's verdict. The defendant had disposed of vials of blood, some of which contained hepatitis, from his medical testing laboratory by placing them in the Hudson River. Some of the vials later washed ashore and were traced to the laboratory. At trial, the government showed that the defendant knew the dangers of hepatitis and that some of the vials of blood he placed in the Hudson River were hepatitis-infected. The district court nevertheless ruled that the evidence did "not support the conclusion that when he placed the vials in the Hudson [25 ELR 10474] River, [the defendant] knew there was a high probability that he was thereby placing another person in imminent danger of death or serious bodily injury."¹¹⁸ Rather, the evidence showed that the principal risk of hepatitis infection as a result of exposure to a vial of contaminated blood would arise if a vial were to break and a piece of glass were to penetrate the skin. An expert witness presented by the government testified that the risk of such an occurrence was "very low." Because there was no evidence showing that the defendant knew of this affection pathway when he dumped the vials into the river, or that he knew people would walk where they were hidden, the court overturned the jury's verdict.

These decisions suggest that Justice needs to exercise great care in setting potential knowing endangerment cases for prosecution.

State Criminal Enforcement

Under the dual sovereignty doctrine, both the federal and state governments may independently prosecute a person for environmental crimes without violating the Double Jeopardy or Due Process Clauses of the U.S. Constitution.¹¹⁹ Counsel representing a facility in an environmental investigation therefore must be aware of the activities of state criminal enforcement personnel, and their potential for competition or cooperation with federal prosecutors. The role of state agencies is likely to expand in the future, as local prosecutors increase their expertise and federal resources are squeezed. The prosecutor's identity can be a crucial factor in determining whether a criminal charge is filed, because local officials are more likely to be responsive to local publicity and community expressions of concern.

State Program Examples

Many states have developed effective environmental criminal enforcement programs.¹²⁰ States generally are required to demonstrate the existence of criminal enforcement capacity in order to obtain EPA authorization to administer the RCRA, FWPCA, or CAA program locally. Until recent years, however, some of these programs had more nominal than actual capabilities.

Both state and local prosecutors now actively prosecute environmental crimes. New Jersey, Pennsylvania, and Ohio have long maintained criminal enforcement programs that are both well-organized and effective. For example, New Jersey has 35 criminal investigators devoted solely to environmental enforcement.¹²¹ At the local level, Los Angeles County maintains its own inter-agency Environmental Crimes Strike Force with eight full-time investigators.¹²²

Two of the most effective state programs are in California and Ohio. California's Environmental Protection Agency (Cal/EPA), created in 1991, has developed an integrated environmental enforcement program to coordinate the previously disjointed activities of many state and local agencies.¹²³ In particular, it attempts simultaneously to detect, investigate, and remediate all violations occurring at a facility. This integrated program is similar to a statewide "strike force" approach to enforcement. Cal/EPA pulls together administrative, civil, and criminal enforcement capability in all media. It gives special consideration to criminal prosecution in cases of intentional or reckless conduct, or actions that constitute a serious threat to human health.

Cal/EPA has developed a centralized data management system to support its coordinated activities. A special Manifest Enforcement Unit targets significant or repeat violators. Further, the state agency promotes uniform enforcement by allocating resources to areas where local agencies are unable or unwilling to deal with significant violators. A number of specific illegal activities have been targeted, including mishandling of pesticides, failure to report leaking underground storage tanks, falsification of environmental documents, and illegal discharges that occur on federal facilities. Finally, Cal/EPA has concentrated resources in critical geographic areas, with special attention to the Mexican border.

In Ohio, the enforcement effort has gradually shifted its target from midnight dumpers of hazardous waste to established businesses seeking to obtain a competitive advantage by keeping their disposal costs down. The program targets falsification of documents that sources are required to submit to the Ohio EPA. In addition, it seeks to identify and prosecute companies that intend to keep operating and that systematically violate environmental rules in search of greater profits. Such companies may simply regard civil penalties as a cost of doing business, and can be brought into compliance only through the individual deterrent effects of a criminal prosecution.¹²⁴

The high visibility and potential political attractiveness of some environmental cases, especially in the hazardous waste area, have led many state attorneys general and local prosecutors to give environmental cases a far higher priority than a decade ago.

Because of the increasing importance of state and local enforcement programs, in August 1994 Attorney General Reno directed all federal prosecutors to cooperate closely with their counterparts at other levels of government in reaching prosecutorial decisions on cases of common interest.¹²⁵

[25 ELR 10475]

State Authorization to Enforce Federal Laws

The three major federal environmental laws — RCRA, the FWPCA, and the CAA — provide that EPA may authorize a state to administer and enforce the federal regulatory program within its borders, upon EPA's determination that the state has a program in place that is the functional equivalent of the EPA program.¹²⁶

Under all three statutes, the state assumes primacy upon authorization for implementing and enforcing the federal regulatory program, including such matters as permit issuance, receipt of monitoring reports, and civil enforcement. Each law also provides, however, that the federal government retains full, independent enforcement authority.¹²⁷ This provision is of crucial significance because it allows federal prosecutors to bring criminal cases if a state cannot or will not bring the case. In some instances, local prosecutors may refuse to proceed due to concern about the effects on a large local employer. In other situations, local politics — colloquially, the "good old boy network" — may lead state officials to derail efforts to remediate an important environmental violation. In such cases, federal enforcement — including criminal prosecution if warranted — may be the only method of breaking the local political impasse and responding to public complaints. Federal intervention is particularly dangerous for the offending facility, because state personnel whose earlier enforcement efforts were thwarted often have both the motivation and the information to assist federal prosecutors. Indeed, the history of fruitless, prior state efforts may be sufficient to prove the knowledge element under the federal statute.

It is important to understand that federal environmental standards do not preempt state laws that contain "more stringent" or "broader" provisions than the federal counterpart. A more stringent state provision is deemed part of the approved federal program and may be enforced by Justice in a federal criminal prosecution. Federal prosecutors may not, however, enforce a broader state provision that lacks a counterpart in the federal program. The state, however, may enforce that unique Provision independently in a state criminal prosecution.¹²⁸

EPA first issued implementing guidance on the limitations on federal enforcement authority in March 1982.¹²⁹ But EPA and the states continued to have difficulty determining which state rules should be deemed broader than the federal program. As a result, in May 1984, EPA issued further guidance,¹³⁰ which established a two-part test for determining if a state rule is broader in scope than the federal program, and therefore unenforceable at the federal level:

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(1) whether the state requirement increases the size of the regulated community beyond that of the federal program; and, if not,

(2) whether the state requirement has a direct counterpart in the federal program.¹³¹

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Although originally drafted in the context of RCRA, EPA now applies these memoranda to resolve the same issues under the FWPCA and the CAA.

The importance of state authorization will increase substantially with the implementation of the CAA's operating permit program. Section 502(b)(3) provides that in order to obtain authorization, the state permit program must provide for the assessment of user fees sufficient to finance an effective state air program, including its enforcement components.¹³² Delegation of implementation authority is of compelling concern to the states, and EPA's rule defining the CAA permit issuance process has been among its most controversial regulatory actions in many years.¹³³

Legal Issues Created by the Cooperative Federalism Structure

Although the federal/state relationship has worked well, legal issues have arisen in anomalous cases when the two programs do not mesh perfectly. The two most notable examples, which have arisen particularly in the context of RCRA, are: (1) when the underlying federal rule is invalidated; and (2) where there are enforcement gaps in the RCRA state authorization process.

[] When the Federal Rule Is Invalidated. Experience in the aftermath of the demise of EPA's mixture rule under RCA¹³⁴ demonstrates how both pending federal and state criminal prosecutions based on a defective EPA rule may fail automatically.

The mixture rule is one of three pathways through which solid waste may become classified as hazardous waste under RCRA. Under EPA's 1980 RCRA implementing rules, a solid waste could be defined as hazardous if it were "listed";¹³⁵ if it exhibited the characteristics of ignitability, corrosivity, reactivity, or toxicity;¹³⁶ or, under the mixture rule, if it constituted a post-use mixture of a listed hazardous waste and another solid waste.

From the beginning of the environmental crimes program, Justice has relied heavily on the mixture rule in RCRA prosecutions. The "listing" branch of the definition applies [25 ELR 10476] to only a relatively few, unmixed waste streams. And in order to demonstrate that the characteristics tests are satisfied, the government must take samples and conduct analyses of individual wastes on a case-by-case basis, which can be both expensive and subject to scientific challenge. On the other hand, the mixture rule is relatively easy and inexpensive to implement. Justice need only prove that a measurable quantity of a chemical was found in a mixed waste stream. If the government can prove that the source of that chemical was a listed hazardous waste, then the entire mixture is regarded as a hazardous waste. Reliance on the mixture rule thus eliminates the burdens involved in proving that the waste exhibited a hazardous characteristic.

In December 1991, the U.S. Court of Appeals for the D.C. Circuit held in Shell Oil Co. v. U.S. Environmental Protection Agency¹³⁷ that the mixture rule was void from the date of its promulgation in 1980, because of procedural defects in its issuance. The Eighth Circuit subsequently held in United States v. Goodner Bros. Aircraft, Inc.,¹³⁸ that the Shell Oil decision is fully retroactive in criminal cases, and bars prosecution for charges based on the mixture rule.

After Shell Oil and Goodner Bros., Justice and EPA attempted to salvage mixture rule prosecutions by generating novel arguments that the rule was somehow redundant of other RCRA provisions, and that its demise did not upset the basis for criminal or civil enforcement actions. These arguments were consistently rejected.¹³⁹

Justice and EPA also attempted to shift the basis for pending prosecutions from the invalidated federal mixture rule to the counterpart state version. A state mixture rule was a mandatory element in every state that had been authorized to administer its own RCRA program. Reviewing courts found that in the absence of a federal mixture rule, the state mixture rule (even if still valid) would be broader than the federal law in effect at the time the conduct in question occurred. Applying EPA's own regulations and guidance documents, a district court held that the federal government may not lawfully enforce state rules that were broader than existing federal standards.¹⁴⁰

The mixture rule experience thus stands as a lesson for the states about the need for attention to detail in adopting the rules necessary to obtain local program authorization.

[] Enforcement Gaps in the RCRA State Authorization Process. RCRA provides that the grant of authorization to a state means that its program operates "in lieu of" the federal program.¹⁴¹ As originally conceived, implementation of the state authorization process would not have been difficult. The state would submit an application describing the statutes and rules it had adopted, modeled on the federal provisions. EPA would analyze the state enactments and grant approval to state programs that were the functional equivalent of the federal counterpart. This approach might have worked effectively in a static world, where EPA adopted all RCRA rules at one time and updated them infrequently. In practice, however, the state authorization process worked poorly because EPA constantly adopted new rules that increased the scope of the RCRA program. States were aiming at a moving target, and could not update their proposed programs fast enough to keep up with EPA's frequent changes. As a result, the rate at which EPA could grant authorization to individual states lagged far behind schedule.

Congress attempted to solve this problem in the Hazardous and Solid Waste Amendments of 1984 (HSWA).¹⁴² Congress amended RCRA § 3006(b) to allow EPA to approve a state program that was the functional equivalent of the EPA program in place one year before submission of the state's application.¹⁴³ In addition to this one-year grace period, Congress enacted a new § 3006(g)(1), which provided that any requirement imposed pursuant to HSWA shall take effect in each authorized state on the "same date as such requirement takes effect in other states."¹⁴⁴ In other words, any new EPA rule based on HSWA provisions would take effect in each authorized state on the effective date of the new EPA rule. In the interim, until an authorized state affirmatively adopts a new HSWA-based requirement, EPA enforces that provision directly.¹⁴⁵

However, these two amended provisions have the unintended synergistic effect of creating the potential for an enforcement gap in authorized states regarding new rules that were: (1) issued after a state obtained final program approval, and (2) based on RCRA provisions that were in existence before passage of HSWA. As EPA has conceded repeatedly, new RCRA-based rules do not become effective in a previously authorized state until that state updates its program, submits an application for approval of that specific program element, and receives formal approval from EPA.¹⁴⁶ Consequently, until EPA grants separate approval [25 ELR 10477] for the update, the new rule is not federally enforceable in an authorized state, even though the EPA rule is fully effective in nonauthorized states.¹⁴⁷ This result occurs because the authorized state program continues to operate in lieu of the EPA program, but the state program does not yet contain the new rule.¹⁴⁸

Thus, for rules based on RCRA (pre-HSWA) provisions, there is a risk that the intended grace period may become an inadvertent enforcement gap, in which no level of government can enforce a validly promulgated federal rule.¹⁴⁹ To avoid such gaps, EPA must be diligent in requiring states to update their programs in a timely fashion to incorporate new EPA rules. Congress gave EPA the authority to prevent such gaps by adding § 3006(e), which empowers the Agency to withdraw its authorization for states that fail to submit program updates promptly.¹⁵⁰ But ensuring that authorized states updated their programs was a low priority at EPA during the 1980s. States routinely fell several years behind in applying and receiving EPA authorization for new RCRA program elements. EPA never revoked a final program approval for a state for delay in seeking approval for new RCRA elements. Under these circumstances, substantial enforcement gaps opened.

Where a gap exists, it gives the polluter a threshold legal defense to any prosecution based on the federal rule. Neither Justice nor the state had the authority to enforce the new RCRA-based rule under federal law, even though it was effective in nonauthorized states and in other authorized states that had updated their programs. In terms of federal enforcement, the gaps closed only when the state applied for and received program approval for that separate rule. The pattern is a crazy quilt, without rhyme or reason. The same rule may be federally enforceable in California during one year, but not in Texas, simply because it took the Texas legislature longer to adopt implementing legislation or because the state agency was slow in adopting its rules and applying for approval.

The enforcement gap problem is a potential obstacle that government prosecutors must look for before proceeding with criminal charges based on RCRA rules authorized by portions of the statute that were not added by HSWA in 1984.

Conclusion

In retrospect, the most remarkable feature of the environmental crimes program is how quickly Justice and EPA managed to develop an effective enforcement program out of difficult materials. The statutes they administer are complex, the implementing rules are technical and hardly user-friendly, and the federalism scheme is unwieldy in many respects. Further, the program developed at a time when appropriations were tight and political disputes about environmental policy were only too frequent.

Nonetheless, the two agencies persevered, and in 15 short years developed functional institutional structures and won a series of breakthrough victories in court. As the environmental crimes program nears bureaucratic maturity, the principal question concerns what should be its goals: What role should prosecution play in the overall fabric of environmental policy? As the upcoming installments of this Article will show, environmental prosecutors have an extraordinary set of tools at their command, which — used wisely — can encourage voluntary environmental protection and effectively deter violations.

1. 33 U.S.C. §§ 407, 411.

2. See, e.g., United States v. White Fuel Corp., 498 F.2d 619, 4 ELR 20531 (1st Cir. 1974).

3. Importantly, in United States v. Standard Oil Co., 384 U.S. 224 (1966), which was handed down just before the effort to draft new environmental laws began, the U.S. Supreme Court held that the Refuse Act could be used to combat pollution as well as to remove obstacles to navigation.

4. Pub. L. No. 91-604, 84 Stat. 1676, § 113(c) (1970).

5. James Miskiewicz and John S. Rudd, Civil and Criminal Enforcement of the Clean Air Act After the 1990 Amendements, 9 PACE ENVTL. L. REV. 281 (1992). Most successful prosecutions under this provision were for violations of the work rules under the asbestos national emission standard for hazardous air pollutants, rather than for core air pollution violations. See, e.g., United States v. Buckley, 934 F.2d 84, 21 ELR 21113 (6th Cir. 1991).

6. Pub. L. No. 92-516, 86 Stat. 816 (1972).

7. 33 U.S.C. § 1319(c).

8. Michael S. Greve, Private Enforcement, Private Rewards: How Environmental Citizen Suits Became an Entitlement Program, in MICHAEL S. GREVE AND FRED L. SMITH JR., ENVIRONMENTAL POLITICS (1992).

9. See United States v. Ward, 676 F.2d 94, 12 ELR 20285.(4th Cir.), cert. denied, 459 U.S. 835 (1982) (defendants unlawfully disposed of PCB-laced oil, in violation of the Toxic Substances Control Act, by spraying it along a highway from a truck).

10. See, e.g., United States v. Phelps Dodge Corp., 391 F. Supp. 1181, 5 ELR 20308 (D. Ariz. 1975); United States v. Frezzo Bros., 602 F.2d 1123, 9 ELR 20556 (3d Cir. 1979), cert. denied, 444 U.S. 1074 (1980); United States v. Distler, 671 F.2d 954, 11 ELR 20340 (6th Cir.), cert. denied, 454 U.S. 827 (1981).

11. See, e.g., United States v. Brittain, 931 F.2d 1413, 21 ELR 21092 (10th Cir. 1991), where the utilities director of a small city was convicted of 18 felony counts of submitting false data on monitored effluent data, in violation of 18 U.S.C. § 1001, and two misdemeanor counts under FWPCA § 309(c)(1), 33 U.S.C. § 1319(c)(1), ELR STAT. FWPCA § 309(c)(1), for directing his staff not to report discharges that were required by permit.

12. Resource Conservation and Recovery Act, 42 U.S.C. § 6928(d), ELR STAT. RCRA § 3008(d), as amended by Pub. L. No. 96-482, 94 Stat. 2334 (1980).

13. Pub. L. No. 94-580, 90 Stat. 2809, § 2 (1976), codified as 42 U.S.C. § 6926.

14. E.g., United States v. Greer, 850 F.2d 1447, 18 ELR 21387 (11th Cir. 1988); United States v. Protex Indus., Inc., 874 F.2d 740, 19 ELR 21061 (10th Cir. 1989).

15. Between fiscal years 1983 and 1992, 317 defendants were charged under RCRA, 205 under the FWPCA, and only 68 under the CAA. Miskiewicz and Rudd, supra note 5, at 374.

16. James W. Moorman, Assistant Attorney General, Land and Natural Resources Division, U.S. DOJ, Address at the ALI-ABA Course of Study on Environmental Law, Washington, D.C. (Feb. 10, 1978) (transcript available from the ALI-ABA Course Department, 4025 Chestnut St., Philadelphia, PA 19104).

17. Enforcement of Environmental Regulations, 1979: Hearings Before the Subcomm. on Environmental Pollution of Senate Comm. on Environment and Public Works, 96th Cong., 1st Sess. 339 (1979) (statement of James W. Moorman, Assistant Att'y Gen. Lands and Natural Resources Division, DOJ).

18. Id. at 348-49.

19. Id. at 349.

20. Benjamin R. Civiletti, U.S. Attorney General, Address at the University of Michigan Law School Senior Day Ceremony, 14-15 (May 17, 1980) (transcript on file with the authors).

21. In 1990, the division was renamed the Environment and Natural Resources Division.

22. EPA's Law Enforcement Authority, 1983: Hearings Before the Subcomm. on Oversight and Investigations of the House Comm. on Energy and Commerce, 98th Cong., 1st Sess. 92 (1983) (testimony of F. Henry Habicht II).

23. Memorandum from Barbara Blum, Deputy Administrator, U.S. EPA, to EPA's Regional Administrators, the Director of the National Enforcement Investigation Center (NEIC), and the Acting Assistant Administrator for Enforcement (Jan. 5, 1981) (discussing creation of the Office of Criminal Enforcement).

24. See Carol M. Browner, Environmental Protection Agency, in ABA, SECTION ON NATURAL RESOURCES, ENERGY, AND ENVIRONMENTAL LAW, 1993: THE YEAR IN REVIEW, at 142 n.2.

25. During the early and mid-1980s, both EPA and Justice concentrated their resources on the use of administrative and civil sanctions to bring polluters into compliance with RCRA.

26. Joseph G. Block, Environmental Criminal Enforcement in the 1990's, 3 VILL. ENVTL. L.J. 33, 34-35 (1992).

27. Pub. L. No. 101-593, 104 Stat. 2962, Title II, § 202 (1990). The authorizing language simply establishes a goal; whether it is reached depends on whether different committees approve, and the full Congress enacts, sufficient appropriations.

28. Pub. L. No. 98-616, 98 Stat. 3221 (codified as amended at 42 U.S.C. §§ 6901-6992).

29. Pub. L. No. 99-499, § 109, 100 Stat. 1613, 1632-33 (codified as amended at 42 U.S.C. § 9603(b)(d)).

30. Pub. L. No. 100-4, § 312, 101 Stat. 7, 42-44 (codified at 33 U.S.C. § 1319(c)). This law also eliminated the prior "negligent or willful" mental element and replaced it with a hierarchy of offenses, under which negligent violations could be punished as misdemeanors and knowing acts as felonies. 33 U.S.C. § 1319(c), ELR STAT. FWPCA § 309(c).

31. Pub. L. No. 101-549, § 701, 104 Stat. 2399, 2672 (codified as amended at 42 U.S.C. § 7413(c)).

32. The need for an air permit program modeled on the FWPCA system was foreseen as early as 1981, William F. Pedersen Jr., Why the Clear Air Act Works Badly, 129 U. PA. L. REV. 1059 (1981).

33. Memorandum from Peggy Hutchins, Paralegal, to Ronald A. Sarachan, Chief, Environmental Crimes Section, Environmental Criminal Statistics FY83 Through FY94 (Apr. 7, 1995).

34. Memorandum from Robert M. Perry, Associate Administrator for Enforcement, U.S. EPA, to Regional Counsels, Criminal Enforcement Priorities for the Environmental Protection Agency (Oct. 12, 1982) [hereinafter Perry Memorandum].

35. Interview with Judson Starr, Corporation Crime Reporter 5, 7 (May 4, 1987) [hereinafter Staff Interview]; F. Henry Habicht II, The Federal Perspective on Environmental Criminal Enforcement: How to Remain on the Civil Side, 17 ELR 10478, 10481 (Dec. 1987).

36. Memorandum from F. Henry Habicht II, Assistant Attorney General, to Arnold I. Burns, Deputy Attorney General, Appropriateness of Incarceration in Environmental Criminal Cases (Sept. 5, 1986) [hereinafter Habicht Memorandum].

37. Memorandum from Earl E. Devaney, Director, Criminal Enforcement, U.S. EPA, to All EPA Employees Working in or in Support of the Criminal Enforcement Program, The Exercise of investigative Discretion (Jan. 12, 1994) [hereinafter Devaney Memorandum].

38. The struggle between Justice headquarters in Washington, D.C., and local U.S. Attorneys is discussed more fully infra.

39. DEPARTMENT OF JUSTICE MANUAL § 5-3.724 (1984).

40. A 1991 public opinion survey by Opinion Research Corporation on behalf of Arthur D. Little found that 84 percent of adults surveyed rated pollution and environmental damages as more serious business crimes than price-fixing or insider trading. Seventy-four percent of the respondents also stated that business executives should be held personally liable for environmental injuries caused by their companies. Jack Doyle, Audits Are Their Own Reward, ENVTL. F., Jan./Feb. 1992, at 38.

41. U.S. SENTENCING COMMISSION, FEDERAL SENTENCING GUIDELINES (1987).

42. U.S. DOJ, FACTORS IN DECISIONS ON CRIMINAL PROSECUTIONS FOR ENVIRONMENTAL VIOLATIONS IN THE CONTEXT OF SIGNIFICANT VOLUNTARY COMPLIANCE OR DISCLOSURE EFFORTS BY THE VIOLATOR (July 1, 1991) [hereinafter FACTORS IN DECISIONS ON CRIMINAL PROSECUTIONS].

43. DEPARTMENT OF JUSTICE MANUAL § 5-11.110E (1993 Supp.).

44. OFFICE OF THE ATTORNEY GENERAL, BLUESHEET REVISION TO THE U.S. ATTORNEYS' MANUAL ON ENVIRONMENTAL CRIMES (Aug. 23, 1994) [hereinafter 1994 BLUESHEET REVISION].

45. Id. at 3 (amending DEPARTMENT OF JUSTICE MANUAL § 5-11.105).

46. Id.

47. Id. (amending DEPARTMENT OF JUSTICE MANUAL § 5-11.104).

48. Id. at 4 (amending DEPARTMENT OF JUSTICE MANUAL § 5-11.107).

49. Remarks of Richard B. Stewart, Assistant Attorney General. A Day With Justice, to the National Law Center for the Public Interest. at 11 (May 30, 1990) (transcript on file with the authors). The criminal prosecutions following the Exxon Valdez disaster and the Ashland Oil tank collapse are the most visible examples of this factor's influence.

50. James M. Strock, Protecting the Environment: EPA After 20 Years, TRIAL, Aug. 1990, at 1, 2.

51. For example, in a 1993 survey of corporate legal officers, 70 percent responded that they did not believe that full compliance with the matrix of federal and state environmental requirements was possible. Marianne Lavelle, Environment Vise: Law, Compliance, NAT'L L.J., Aug. 30, 1993, at S1, S2.

52. See FACTORS IN DECISIONS ON CRIMINAL PROSECUTIONS, supra note 42; U.S. EPA, Voluntary Environmental Self-Policing and Self-Disclosure Interim Policy Statement, 60 Fed. Reg. 16875 (Apr. 3, 1995).

53. Particular state statutes will be discussed in greater detail in the third installment of this Article.

54. The crime of knowing endangerment is discussed more fully infra.

55. Webster L. Hubbell, Department of Justice — A Tough but Fair Approach to Environmental Crimes, in ABA, SECTION ON NATURAL RESOURCES, ENERGY, AND ENVIRONMENTAL LAW, 1993: THE YEAR IN REVIEW, at 145 (emphasis added).

56. See Judson W. Starr et al., Prosecuting Pollution, LEGAL TIMES, May 31, 1993, at 6 (Special Report).

57. 33 U.S.C. § 1319(c), ELR STAT. FWPCA § 309(c).

58. United States v. Weitzenhoff, 1 F.3d 1523, 23 ELR 21322 (1993), amended, 35 F.3d 1365, 24 ELR 21504 (9th Cir. 1994), cert. denied, 115 S. Ct. 939 (1995); United States v. Hopkins, 53 F.3d 533, 25 ELR 21178 (2d Cir. 1995).

59. Perry Memorandum, supra note 34, at IV-5.

60. Id.

61. Id. at IV-7 to IV-10.

62. Id. at IV-10 to IV-18.

63. Memorandum from Thomas L. Adams Jr., Assistant Administrator, to Assistant Administrators et al., Environmental Criminal Conduct Coming to the Attention of Agency Officials and Employees (Sept. 21, 1987).

64. Memorandum from James M. Strock, Assistant Administrator, to Deputy Regional Administrators et al., Regional Enforcement Management: Enhanced Regional Case Screening (Oct. 10, 1990).

65. Devaney Memorandum, supra note 37.

66. EPA also acknowledges in the memorandum the role of legislative intent concerning case selection, and criticism that "EPAs criminal program is imposing its powerful sanctions indiscriminately." Id. at 2, 7.

67. EPA's "investigative resources should generally be targeted toward those cases in which the failure to report is coupled with actual or threatened environmental harm." Id. at 4.

68. Id. at 5.

69. Memorandum from James M. Strock, Assistant Administrator, to Director, National Enforcement Investigations Center et al., Initiation of Criminal Investigations in Cases Presenting an Issue of First Impression (Oct. 22, 1990).

70. U.S. DOJ, FEDERAL PRINCIPLES OF PROSECUTION 8-10 (1980).

71. Hubbell, supra note 55, at 144.

72. Starr Interview, supra note 35; Habicht, supra note 35.

73. Judson W. Starr, Chief, Environmental Crimes Section, U.S. DOJ, Countering Environmental Crimes in the United States, Remarks Before the Environmental Law Committee of the International Bar Association 6-7 (Sept. 5, 1984) (transcript on file with the authors) [hereinafter Starr Remarks].

74. See supra note 36 and accompanying text.

75. Starr Remarks, supra note 73, at 6-7.

76. Starr Interview, supra note 35.

77. As late as September 1986, then-Assistant Attorney General Habicht sought to counteract this history by making a case for seeking incarceration in environmental criminal cases. He argued that incarceration is appropriate in certain cases, such as those of midnight dumpers, who willfully evade the law for profit. See Habicht Memorandum, supra note 36.

78. U.S. SENTENCING COMMISSION, FEDERAL SENTENCING GUIDELINES §§ 2Q1.2-.3 (1987).

79. See John F. Cooney, Defenses to the Second Generation of Environmental Criminal Prosecutions, in ALI-ABA, CRIMINAL ENFORCEMENT OF ENVIRONMENTAL LAWS 41-44 (1994).

80. In General Electric Co. v. U.S. Environmental Protection Agency, the D.C. Circuit recently summarized the law as follows:

In the absence of notice — for example, where the regulation is not sufficiently clear to warn a party about what is expected of it — an agency may not deprive a party of property by imposing civil or criminal responsibility. Of course, it is in the context of criminal liability that this "no punishment without notice" rule is most commonly applied. . . .

Although the agency must always provide "fair notice" of its regulatory interpretations to the regulated public, in many cases the agency's pre-enforcement efforts to bring about compliance will provide adequate notice.

25 ELR 20982, 20983-84 (D.C. Cir. May 12, 1995).

81. See United States v. Heuer, 4 F.3d 723, 23 ELR 21357 (9th Cir. 1993), cert. denied, 114 S. Ct. 1190 (1994).

82. See, e.g., United States v. Bass, 404 U.S. 336 (1971).

83. OFFICE OF THE ATTORNEY GENERAL, BLUESHEET REVISION TO THE U.S. ATTORNEYS' MANUAL ON ENVIRONMENTAL CRIMES (Jan. 12, 1993) [hereinafter 1993 BLUESHEET REVISION]. This revision was superseded in 1904 by Attorney General Reno. See supra note 44 and accompanying text.

84. Hubbell, supra note 55, at 144 (emphasis added).

85. See United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 670, 3 ELR 20401, 20407 (1973) (defendant entitled to present evidence to establish defense that it was "affirmatively misled" by the long-standing official interpretation of the Refuse Act into believing its conduct did not violate that law).

86. Donald J. Baker, To Indict or Not to Indict: Prosecutorial Discretion in Sherman Act Enforcement, 63 CORNELL L. REV. 405 (1978).

87. Id. at 415.

88. See, e.g., Remarks of Vice President Gore on the 25th Anniversary of Earth Day, reported in 25 Env't Rep. (BNA) 2538 (Apr. 28, 1995) (EPA project to cut paperwork burden by 25 percent or 20 million hours).

89. See, e.g., United States v. Hopkins, 53 F.3d 533, 25 ELR 21178 (2d Cir. 1995) (corporate vice president convicted of ordering employees to tamper with water discharge monitoring samples).

90. Greve, supra note 8, at 109.

91. See Central Ariz. Water Conservation Dist. v. U.S. Environmental Protection Agency, 990 F.2d 1531, 23 ELR 20678 (9th Cir.), cert. denied, 114 S. Ct. 94 (1993); see also Michael D. Rappoport & John F. Cooney, Visibility at the Grand Canyon: Regulatory Negotiations Under the Clean Air Act, 24 ARIZ. ST. L.J. 627 (1992).

92. See, e.g., Wilson v. United States, 221 U.S. 361 (1991).

93. See, e.g., United States v. Bosse, 898 F.2d 113 (9th Cir. 1990); United States v. Tallmadge, 829 F.2d 767 (9th Cir. 1987).

94. 33 U.S.C. § 1342, ELR STAT. FWPCA § 402.

95. EPA has defined the FWPCA § 204(k) permit shield as applying to three types of pollutants, provided they are clearly identified in the permit application: (1) pollutants specifically limited in the permit through indicator parameters; (2) pollutants for which the permit authority has not established limits, but that are specifically identified as present in discharges; and (3) pollutants not identified as present, but that are constituents of waste streams that were clearly identified during the permit process. Memorandum from Robert Perciasepe, Steven A. Herman, and Jean C. Nelson, to Regional Administrators and Regional Counsels, Policy Statement on Scope of Discharge Authorization and Shield Associated With NPDES Permits 2 (July 1, 1994). By regulation, EPA has adopted a RCRA permit shield, under which compliance with a permit is considered compliance with all hazardous waste rules, except for subsequently enacted statutes. 40 C.F.R. § 270.4(a). There is also a permit shield under the CAA. 42 U.S.C. § 7661c(f), ELR STAT. CAA § 504(f).

96. Pub. L. No. 101-549, Title V, 104 Stat. 2635 (1990).

97. 40 C.F.R. § 70.5(c)-(d).

98. 42 U.S.C. § 7413(f), ELR STAT. CAA § 113(f).

99. Notice of Proposed Rulemaking, 59 Fed. Reg. 22795 (May 3, 1994).

100. 42 U.S.C. § 7661a(b)(3), ELR STAT. CAA § 502(b)(3).

101. See Writing the Resource Conversation and Recovery Act Regulations, in MARC K. LANDY, MARC J. ROBERTS, & STEPHEN R. THOMAS, THE ENVIRONMENTAL PROTECTION AGENCY: ASKING THE WRONG QUESTIONS 89 (1990).

102. 40 C.F.R. § 261.2(a)(1).

103. 40 C.F.R. § 261.2(c).

104. See, e.g., United States v. Self, 2 F.3d 1071, 23 ELR 21301 (10th Cir. 1993).

105. See 50 Fed. Reg. 618, 624 n.8 (Jan. 4, 1985); United States v. Recticel Foam Corp., 858 F. Supp. 726, 730-35, 25 ELR 20093, 20094-97 (E.D. Tenn. 1993).

106. The first knowing endangerment provision was added to RCRA in 1980. 42 U.S.C. § 6928(e), ELR STAT. RCRA § 3008(e). In 1984, Congress relaxed several of the elements originally required for conviction because the original formula proved unworkable. See United States v. Greer, No. 85-105-Cr-Orl-18 (M.D. Fla. 1986). judgments of acquittal on two counts rev'd, 850 F.2d 1447, 18 ELR 21387 (11th Cir. 1988). Similar provisions were added to the FWPCA in 1987, 33 U.S.C. § 1319(c)(3), ELR STAT. FWPCA § 309(c)(3), and the CAA in 1990, 42 U.S.C. § 7413(c)(5), ELR STAT. CAA § 113(c)(5).

107. See United States v. Protex Indus., Inc., 874 F.2d 740, 19 ELR 21061 (10th Cir. 1989).

108. Knowing endangerment was one of the 10 priority areas reserved for prosecution by Washington in the January 1993 Justice policy bluesheet revision later superseded by Attorney General Reno. 1993 BLUESHEET REVISION, supra note 83. This suggests that knowing endangerment charges present sensitive policy issues.

109. See United States v. Rutana, 932 F.2d 1155, 21 ELR 21241 (6th Cir.), cert. denied, 112 S. Ct. 300 (1991). The knowing endangerment charges were later dismissed pursuant to a plea bargain.

110. See 42 U.S.C. § 7412, ELR STAT. CAA § 112.

111. 874 F.2d 740, 19 ELR 21061 (10th Cir. 1989)

112. Id. at 743, 19 ELR at 21062.

113. Id. at 744, 19 ELR at 21062-63.

114. 977 F.2d 27, 23 ELR 20102 (1st Cir. 1992).

115. Id. at 30, 23 ELR at 20103.

116. Id. at 31, 23 ELR at 20103-04.

117. United States v. Villegas, 784 F. Supp. 6, 22 ELR 21027 (E.D.N.Y. 1991), conviction on other counts rev'd sub nom. Plaza Health Labs, Inc. v. United States, 3 F.3d 643, 23 ELR 21526 (2d Cir. 1993), cert. denied, 114 S. Ct. 2764 (1994).

118. 784 F. Supp. at 13, 22 ELR at 21031.

119. See Petite v. United States, 361 U.S. 529 (1960); see also DEPARTMENT OF JUSTICE MANUAL § 9.2-142 (setting forth procedures for bringing prosecution under the dual sovereignty doctrine).

120. New Jersey, Maryland, Ohio, New York, California, and Arizona have long had sophisticated environmental crimes programs. In recent years, EPA has spent considerable money and time training law enforcement authorities from almost every state at the Agency's training facility at the Federal Law Enforcement Training Center in Glynco, Georgia.

121. Block, supra note 26, at 35.

122. THEODORE M. HAMMETTE & JOEL EPSTEIN, PROSECUTING ENVIRONMENTAL CRIME: LOS ANGELES COUNTY, NATIONAL INSTITUTE OF JUSTICE 10 (Aug. 1993). In 1990 alone, the program led to criminal charges against 107 defendants, of whom 75 percent were convicted. Id. at 20.

123. James M. Strock & William W. Carter, Cal/EPA's Integrated Enforcement Programs: State, Federal and Local Coordination, in ALI-ABA COURSE OF STUDY, CRIMINAL ENFORCEMENT OF ENVIRONMENTAL LAWS 53 (1993).

124. Lee Fisher, Enforcement Trends and Developments in Ohio, in ABA, SECTION ON NATURAL RESOURCES, ENERGY, AND ENVIRONMENTAL LAW, 1993: THE YEAR IN REVIEW, at 147-49.

125. 1994 BLUESHEET REVISION, supra note 44, § 5-11.113.

126. 42 U.S.C. § 6926, ELR STAT. RCRA § 3006; 33 U.S.C. § 1342(b), ELR STAT. FWPCA § 402(b); 42 U.S.C. § 7661a, ELR STAT. CAA § 502. There are compelling policy rationales for devolving such authority, where possible. State regulators are closer to the regulated firms and may be better able to fine tune the application of rules to reduce compliance costs without compromising the level of environmental protection. And environmental restrictions may be more acceptable politically if imposed locally rather than by Washington.

127. 42 U.S.C. § 6928(a)(2), ELR STAT. RCRA § 3008(a)(2); 33 U.S.C. § 1319(a)(3), ELR STAT. FWPCA § 309(a)(3); 42 U.S.C. § 7413(a)(3), ELR STAT. CAA § 113(a)(3). See Wyckoff Co. v. U.S. Environmental Protection Agency, 769 F.2d 1197, 16 ELR 20866 (9th Cir. 1986); United States v. Environmental Waste Control, Inc., 710 F. Supp. 1172, 20 ELR 20035 (N.D. Ind. 1989).

128. See Section 42 U.S.C. § 6929, ELR STAT. RCRA § 3009; 40 C.F.R. § 271.1(i); United States v. Recticel Foam Corp., 858 F. Supp. 726, 740-43, 25 ELR 20093, 20100-01 (E.D. Tenn. 1993).

129. Memorandum from William A. Sullivan Jr., Enforcement Counsel, to Regional Administrators and Regional Counsels, EPA Enforcement of RCRA-Authorized State Hazardous Waste Laws and Regulations (Mar. 15, 1982).

130. Memorandum from Lee M. Thomas, Assistant Administrator for Solid Waste and Emergency Response, to PIGs Addresses, Determining Whether State Hazardous Waste Management Requirements Are Broader in Scope of More Stringent Than the Federal Program (May 21, 1984).

131. Id. at 2.

132. 42 U.S.C. § 7661a(b)(3), ELR STAT. CAA § 502(b)(3).

133. See Notice of Proposed Rulemaking, 60 Fed. Reg. 20804 (Apr. 27, 1995).

134. 40 C.F.R. § 261.3(a)(2)(iii).

135. Id. § 261.3(a)(2)(ii).

136. Id. § 261.3(a)(2)(i).

137. 950 F.2d 741, 22 ELR 20305 (D.C. Cir. 1991, amended 1992).

138. 966 F.2d 380, 22 ELR 21201 (8th Cir. 1992), cert. denied, 113 S. Ct. 967 (1993). EPA repromulgated the mixture rule in March 1992. 57 Fed. Reg. 7628 (Mar. 3, 1992). The new rule thus applies to all waste streams disposed of after its effective date. But for wastes disposed of before March 1992, the role is not a viable basis for prosecution.

139. See United States v. Recticel Foam Corp., 858 F. Supp. 726, 735-40, 25 ELR 20093, 20097-100 (argument that separate mixture rule was not necessary because the concept was inherent in the other RCRA rules, rejected in criminal case); United States v. Bethlehem Steel Corp., 38 F.3d 862, 24 ELR 21499 (7th Cir. 1994) (civil enforcement).

140. Recticel Foam Corp., 858 F. Supp. at 740-43, 25 ELR at 20100-01; see also In re Hardin County, Ohio, 1994 RCRA LEXIS 6, RCRA (3008) Appeal No. 93-1, ELR ADMIN. MAT. II 40313 (EPA EAB Apr. 12, 1994). Once it was established that federal enforcement was precluded, environmental prosecutors made a last-ditch effort to determine whether the state mixture rule could be enforced in an independent state prosecution. Analysis of the situation, however, revealed the possibility of unexpected state administrative law problems involving the process of adopting the state versions of federal rules that may preclude state prosecutions. See Equidae Partners v. Oklahoma State Dep't of Health, No. C-91-532 (D. Ct. Wash. County, Okla. Jan. 16, 1992) (state mixture rule falls with federal rule); New York State Coalition of Pub. Employers v. New York Dep't of Labor, 457 N.E.2d 785 (1983) (mere incorporation of federal rules into state rules is invalid).

141. 42 U.S.C. § 6926(b), ELR STAT. RCRA § 3006(b).

142. Pub. L. No. 98-616, 98 Stat. 3254 (1984).

143. 42 U.S.C. § 6926(b), ELR STAT. RCRA § 3006(b); 40 C.F.R. § 271.21(e)(2).

144. 42 U.S.C. § 6926(g)(1), ELR STAT. RCRA § 3006(g)(1).

145. See Adam Babich, Is RCRA Enforceable by Citizen Suit in States With Authorized Hazardous Waste Programs?, 23 ELR 10536, 10538 (Sept. 1993). Babich correctly observes that "if Congress had tried, it could hardly have made its 1984 amendments to RCRA's cooperative federalism scheme more confusing." Id.

146. For example, in adopting used oil management standards in September 1992, EPA stated:

Today's rules . . . are promulgated under section 3014(a) for RCRA, a provision that predates the 1984 amendments. The rules will take effect in states that do not have final authorization six months from the date that this rule is published in the Federal Register. In authorized states, the rules will not be applicable until a State revises its program to adopt equivalent requirements under State law.

57 Fed. Reg. 41566, 41605 (Sept. 10, 1992) (emphasis added).

147. States, of course, may enforcetheir own laws and regulations without waiting for EPA approval. 42 U.S.C. § 6929, ELR STAT. RCRA § 3009.

148. By contrast, for rules based on the provisions added by HSWA, no enforcement gap can open. For HSWA-based regulations, the RCRA enforcement program operates much like the FWPCA and CAA state authorization programs. The federal rule is effective in all 50 states from its stated effective date. Thus, at least one jurisdiction— either the state or federal government — will always have authority to enforce the EPA rule at any given time.

149. As Babich notes, "the existence of a grace period (during which a regulatory change may go unimplemented) . . . depends not on when EPA promulgates the change but, instead on when Congress amended RCRA to provide authority for it." Babich, supra note 145.

150. 42 U.S.C. § 6926(c), ELR STAT. RCRA § 3006(e).

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