We have all seen the mother of all environmental disasters in the Gulf now for several months. And, more recently another threat from yet another burning oil platform. Many believe that not only companies but individuals, including corporate officers and managers, will also soon feel the hammer of the U.S. Justice Department’s environmental section bringing criminal indictments for violations of the Clean Water Act, and perhaps other environmental laws. BP of course comes to mind but there are others waiting in the wings to keep our Justice Department and the President’s Attorney General busy for a long time.
Although one might think that the accidental spilling of hazardous waste is just that … an accident … few think about the criminal penalties that are also provided for in the law. Civil fines are of course common but if you add criminal sanctions then things get much more serious. One must remember, that almost every environmental violation can be punished, at the discretion of the Justice Department’s enforcement agency, as a civil or criminal violation. A compliant Chicago-like response by a violator is important to avoid the available criminal sanctions as well as fines.
Concorde case
I can’t help but see some possible parallel with penalties in the recently completed criminal trial in France that involves the Concorde accident, more than 10 years ago. We should have a final verdict there in December. Obviously, it was not an environmental thing. It was clearly an accident, like the oil spill, but the French authorities see fit to go after three U.S. mechanics and others alleging various crimes resulting from their maintenance duties. They did not intend for an accident to take place. There is no evidence of an intentional act. But, nonetheless, in accord with usual European standards, they bring criminal actions against the people concerned. These actions are authorized under French and European laws.
The French prosecutors also brought charges against some of the original people concerned with the design of the aircraft more than 40 years ago! The examination of technical faults with the Concorde 40 years after it was designed has no merit and seems pointless at best. This is yet another step on the road to criminalizing civil aviation accidents and spreading it to other countries.
Crimes require intent
In order for criminal sanctions to be attached to laws in the United States there usually must be knowledge of a violation and a degree of intent involved. However, the environmental laws in the United States can sanction a criminal action from simple negligent acts with no specific intent involved at all. These environmental laws can be very serious in that they provide for felony convictions, huge fines, business closure, and sometimes, seizure of assets.
Proving intent in these federal cases is not difficult even if it is needed. An additional companion view of these violations is that you are “strictly liable” for polluting, without the necessity of finding you intended to pollute. Also, some state courts have followed the concept that ordinary civil negligence is sufficient to convict a polluter of a criminal violation, holding that the violation was a public welfare offense. The bottom line is simply that no proof of fault is required to convict in environmental cases.
Speaking of fines in the oil spill cases, determining the amount of oil spilled is a critical factor because oil companies pay fines based on the amount of oil released into the water. BP, for example, is looking at being charged from $1,100 to $4,300 per gallon of oil spilled into the Gulf under the terms of the Clean Water Act alone. Calculating the amount of oil spilled is a significant effort. The Clean Water Act (CWA) sometimes called the Federal Water Pollution Act, regulates discharges into waters of the United States. This, by the way, includes not only common rivers, streams, and inland ocean areas, but also storm drain systems at your place of business, artificial waters, and wetlands.
Needless to say oil is a pollutant along with rocks, sand, dredge spoils, soapy water, metals, heat, and of course deice fluids, and paint removal debris at your airport business. Permits from the EPA are required to discharge just about anything. As we all know in the aviation business, this has led to taking paint jobs out of the United States and into Mexico and other less restrictive painting countries. Outsourcing at its best. Operators have been nailed for failing to capture and store deice fluids during winter operations. All the fluid that falls from an aircraft during treatment must be recovered and stored, likewise washing water must also be collected and stored.
The Clean Air Act (CAA) regulates stationary and mobile sources of air contaminants. This act was the first to be formulated by the EPA and has been around for the longest time. It is routinely involved along with Clean Water Act enforcement. This act also provides for criminal penalties along with the usual huge fines. The power of the Justice Department in the wrong hands is the power to control the economic well-being of the country. Nobody was watching Congress when these oppressive environmental laws were passed. Some have now argued that criminal penalties should be repealed.
Crimes are prosecuted faster
Many prosecutors in government today are not satisfied with the efficiency of the civil (fines) enforcement of our environmental laws. As most can see in the case of BP, remediation (cleanup) will take years to complete, and to resolve all the damage claims.
On the other hand the necessity for speedy trials in criminal cases guaranteed under our Constitution, requires only a short time to complete, months rather than years. Again, in the case of BP’s spill, the government has been for some time gathering the necessary evidence to support criminal indictments against companies and individuals concerned.
As we speak, the BP blow-out valve is being brought to the surface to be examined for defects that probably will result in criminal action against the maker and others. Reports say that it will be escorted to the inspection site by FBI agents to prevent any pre-inspection tampering.
Criminal penalties present a much more severe result on small business as well as large corporations, bringing felony convictions and jail. The government believes that many companies (and their managers) simply adjust and factor any fines and other civil penalties into the cost of doing business and gladly accept these penalties for intentional polluting. Criminal penalties on the other hand affect companies and employees much more severely and affect the companies’ goodwill and each individual’s reputation directly.
Many observers see the ultimate results as predictable. Through the use of carefully drafted and passed legislation, our Congress has effectively through EPA, now put government in control of our manufacturing process, and only recently, a major portion of our auto industry. One-sixth of our economy will now be controlled through health care administration. Add to this, control of the energy part of our economy through the so-called cap and trade program and it is very clear where we are going. Think about it … comments to [email protected].
Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. He is a USAF veteran. Send comments to [email protected].
