Civil vs. Criminal Environmental Violations

Posted on 11/14/2023 by Lion Technology Inc.

Most weeks, we cover civil settlements between the Environmental Protection Agency (EPA) and companies found by compliance officials to be out of compliance with environmental regulations. But not all compliance issues are resolved in civil settlements.

Civil violations may result from mistakes, oversights, or a lack of awareness about relevant regulations. EPA is not required to prove any “fault” or “intent” before issuing a citation for a civil penalty. The fact that noncompliance occurred is all that is needed for a company to be penalized for violating the regulations.

The key difference between a criminal and civil penalty is that a civil penalty is paid out by the company, whereas an individual could be subject to the payment of a criminal penalty. That person could even serve a sentence in jail.

A civil environmental case may not include the threat of individual prosecution or jail time, but still represent far more than “the cost of doing business.” Civil penalties increase on an annual basis and, depending on the program, can be as high as about $100,000 per day, per violation.

For an environmental violation to be considered a criminal act, the US Department of Justice (DOJ) and US EPA must believe that the person or company involved “knowingly” violated the law/regulations. In other words, the company or person involved was aware that their actions violated the regulations/law before the violation was committed.

To compare the two types of violations, consider the difference between these two instances of noncompliance:

  1. Employees at a hazardous waste generator facility fail to mark a waste drum with one or more required information (i.e., accumulation start date or a precise description of the waste).
  2. The facility manager at a generator facility instructs employees to remove required markings and labels from some waste drums before shipping them off site so that the company can avoid higher disposal costs.

In the first example, the inspector could cite the generator for failure to properly mark drums. Some RCRA refresher training may be in order for the personnel who goofed on the drum markings, but they did not act with intent to harm anyone, reap any benefit from their actions, or mislead anyone.

In the second example, someone made a clear decision to violate the law. EPA and the DOJ could easily bring a criminal case against the individual who ordered employees to violate the law. And, if recent trends are any indication, a guilty conviction is a near certainty.

EPA opened 123 new criminal cases in FY 2021 and 117 new cases in 2022. Most of those proceedings involved the prosecution of an individual defendant (88%).

The conviction rate for criminal enforcement cases brought by EPA in 2021-22 was about 95%.

Criminal Enforcement Examples

These examples of criminal enforcement for environmental violations provide more insight into the real-world decisions that can lead to massive financial penalties, probation from working in the field, and jail time for individuals involved.

  • Leaders of a rail car cleaning service sentenced to prison and financial restitution for “knowing violations” of the RCRA hazardous waste requirements and submitting false documentation to OSHA.
  • An auto manufacturer sentenced for “conspiracy to defraud regulators and customers” after making false statements about vehicle emissions systems.
  • A pipeline operator who “negligently caused the discharge” of nearly 30 million gallons of a water-oil mixture (produced via hydraulic fracturing) into the water and “deliberately failed to immediately report the spill” as required.

Recently, EPA's Criminal Investigation Division completed the criminal investigation of a corn mill explosion. The Office of Public Affairs reported that the company and several officials were convicted of criminal violations related to Clean Air Act and Occupational Safety and Health Act compliance. The company is set to pay $11.25M in fines and restitution, and convicted parties will have their sentence hearings at a later date to determine their individual criminal penalties.

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