Here are the highlights from U.S. EPA’s July Environmental Crimes Case Bulletin:
Failure to Notify Regarding Asbestos
A Company had sampling performed to determine if the walls and ceiling of a riverboat they were going to demolish contained asbestos. The samples indicated they did contain asbestos. According to U.S. EPA, the company hired a demolition contractor and told the contractors that the walls and ceiling "may" contain asbestos. The contractor proceeded to perform the demolition work without instructing its workers to take proper precautions. A key reason why U.S. EPA elected to pursue a criminal case versus civil enforcement was likely the potential exposure of workers to asbestos.
Waters of the United States
An area of environmental law with continued uncertainty is which streams and wetlands are considered "Waters of the United States" and, therefore, fall under the jurisdiction of the Clean Water Act. The U.S. EPA’s "Waters of the U.S." Rule has been stayed by the 6th Circuit. The test for determining which waters/wetlands are federally protected continues to be the "Significant Nexus" Test as established by Justice Kennedy in Rapanos.
The "Significant Nexus" test is rather vague. Under the test, a waterway or wetland is evaluated to determine whether it impacts the "chemical, physical, and the biological integrity" of a navigable water. If it does impact a navigable water in that manner, then it falls under federal jurisdiction
A key issue at the trial of Joseph David Anderson was whether the ponds Mr. Anderson created resulted in dredged material and sediment which impacted "Waters of the U.S." The Army Corps of Engineers and EPA provided the scientific evidence to support a finding the impacted waters had a "significant nexus" to downstream waters and were, therefore, federally protected. Testimony included fishery biologists from U.S. Fish & Wildlife that the headwater streams impacted provided critical support of trout in downstream rivers.
Despite the vague legal standard at issue, it is interesting that the Government successfully applied the "Significant Nexus" test during a criminal trial.
A common criminal charge in environmental white collar cases is falsification of records required to be kept under environmental permits or regulations. The latest criminal bulletin includes a case of a German shipping company and its employees that did not record transfers of oily waste-water on the M/V Cornelia, a German-owned commercial vessel. EPA charged the company with falsified record keeping stating the omissions were a attempt to conceal discharges of oily-waste water overboard.
The case is a reminder that it is not just the act of entering false data that can lead to a charge of falsification. It can also be the omission of important information.