An environmental crime is a violation of environmental legislation – legislation put into place to protect the environment. The Environmental Protection Agency (EPA) has the responsibility to investigate environmental crimes. An environmental violation is any act by an individual or company that is against environmental laws or regulations in the United States. The violations can be charged as either federal or state crimes, depending on the facts and circumstances. EPA is the primary federal agency that investigates alleged federal environmental crimes and the Environmental Crime Section (E.C.S.) is the main prosecuting agency that brings federal criminal cases against both individuals and organizations.
There are three federal environmental statutes that are the source for many federal environmental criminal prosecutions, they are:
- The Clean Water Act – 33 U.S.C § 1251-1388 (1972): Under the Clean Water Act (CWA), the E.P.A. sets pollution control standards for wastewater and quality control standards for surface waters. The CWA is the basic structure for the regulation of discharging pollutants into the waters of the United States. The EPA implemented pollution control programs like setting wastewater standards for industry.
- The Clean Air Act – 42 U.S.C. § 7401-7671(q) (1970): Under the Clean Air Act, the E.P.A. set national air quality standards for air emissions from both mobile and stationary sources. The CAA is the comprehensive federal law regulating air emissions and authorizes the EPA to establish National Ambient Air Quality Standards (NAAQS) to protect public health and to regulate emitting hazardous air pollutants.
- The Resource Conservation and Recovery Act (RCRA) – 42 U.S.C. § 6901-6992(k) (1976): Under this Act, the E.P.A. has the authority to control hazardous waste relating to its generation, storage, treatment, transport, and disposal. RCRA also created a framework for the management of non-hazardous solid wastes. Amendments to the RCRA in 1986 enabled the EPA to deal with environmental problems that might occur from underground tanks storing petroleum and other hazardous substances.
Environmental crimes are also regulated at the state and local level in addition to the federal laws described above. At the state level, the Attorney General is tasked with enforcing state laws regarding the environment.
There are several California state statutes that are the source for most state prosecutions of environmental law violations, they are:
- The California Environmental Quality Act (CEQA) – California Public Resources Code § 21000 et seq. (1970): Under the CEQA, all state and local agencies are required to consider environmental protection when regulating both public and private activities, and projects should not be approved if there is a better way to mitigate environmental damage and risk.
- The Safe Drinking Water and Toxic Enforcement Act (Proposition 65) (1986): Under Proposition 65, a voter-led initiative aims to protect drinking water from toxic elements that cause cancer, birth defects, or other serious health issues. Proposition 65 requires that the state to maintain an updated list of chemicals known to be the cause of cancer or reproductive toxicity.
- Hazardous materials charges under California Health and Safety Code (H&S) Section 25510 requires handlers, employees, or agents of any type of hazardous materials, such as chemicals or flammable liquids, to immediately contact government authorities upon notice of a spill or other type of release.
A violation can result in significant fines that can easily reach millions of dollars, custody time, subject to federal sentencing guidelines if you are convicted and costs associated with the “cleanup.” One distinguishing feature of environmental crimes is that, while they can be intentional especially in the case of illegal dumping, they do not necessarily require intent that anyone be endangered by the unlawful conduct. A defendant who is simply negligent in handling dangerous substances and thereby endangers the community may be convicted of one or more environmental crimes.
PUBLIC NUISANCE LAW – PENAL CODE (PC) 372
PC 372 criminalizes the creation, maintenance, or failure to remove of a “public nuisance.” A nuisance is anything that affects or endangers the health, safety, or morals of the community. As used in this context, the word “public” means that the nuisance in question must endanger third parties.
There are hypothetical situations one could imagine where a purely private nuisance is created, such as by a defendant who improperly handles toxic substances purely within their own home such that no one else is potentially harmed. Creating, maintaining, or failing to cure a public nuisance is a misdemeanor under California law which is punishable by a maximum of six months in county jail, the imposition of a $1,000 fine, or both the fine and imprisonment.
Defenses to a nuisance charge under PC 372 include lack of notice to the defendant of the existence of the dangerous condition or that the condition in question was purely private, meaning it only endangered the defendant him or herself and not the community at large.
HAZARDOUS MATERIALS: H&S 25510 requires any handler of hazardous materials – whether chemicals, flammable liquids, or any other dangerous item – or the employees or agents of any such handler who become aware of a spill or other release, or threatened release, of dangerous substances to immediately contact government authorities.
- “The handler or employee, representative or agent shall immediately report any release or threatened release of a hazardous material or substance defined in PC 374.8 to the UPA and to the office. They must also provide all state, city, or county fire or public health and emergency personnel with access to the handler’s facilities.”
The failure to notify the relevant environmental protection agencies when a release or threatened release is identified is a criminal offense.
IMPROPER DISPOSAL OF HAZARDOUS WASTE – HS 25189.5
H&S 25189.5 addresses the improper disposal of hazardous waste. Three different scenarios are covered by Section 25189.5. First, this provision criminalizes the knowing disposal, or causing of disposal, of hazardous waste at a facility which does not have a permit for such activity.
Second, Section 25189.5 criminalizes the transportation of, or causing to be transported of, hazardous waste to a facility which does not have a permit for disposal of hazardous waste from the government.
Third, this section prohibits the treating or storage of hazardous waste at any unpermitted facility. Each of these violation types can be prosecuted as either a felony or a misdemeanor under California law.
In the case of a felony, the maximum punishment is 16 months, 2 years, or 3 years in the California state prison. In the case of a misdemeanor, the maximum punishment is one year in the county jail plus a fine.
RECKLESS HANDLING OF HAZARDOUS MATERIALS – HS 25189.6 criminalizes the knowing or reckless treatment, handling, transportation, disposal, or storage of hazardous materials specifically where that conduct creates an unreasonable risk of fire, explosion, serious injury, or death.
Section 25189.6 is a “wobbler” under California law, meaning it can be prosecuted as either a felony or a misdemeanor. However, in more aggravated cases where someone is placed in imminent danger of serious bodily injury, or death due to the defendant’s conduct, the offense is an automatic felony.
Over the years, environmental crimes have evolved from pollution or poaching crimes to include criminal conspiracies in such areas as international wildlife trafficking, seafood mislabeling, federal program and consumer fraud, or even interstate dog fighting. It continues to evolve into more complex investigations with more benefit to the environment and public health.
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