Even with the COVID-19 pandemic keeping many workers home in 2021, environmental prosecutions increased.

It is worthwhile for plant managers and environmental managers to pay attention to the types of cases involving environmental violations which are selected by regulators and prosecutors for criminal enforcement. That is particularly true now that enforcement is on the upswing.

At the beginning of every Democratic administration, prognosticators project increases in federal enforcement. However, statistics recently released by the United States Environmental Protection Agency (EPA) show that criminal enforcement of environmental crimes were already on the upswing in 2020, hindrance from the pandemic notwithstanding. 

The number of criminal cases opened by the EPA in fiscal year 2020 increased 45 percent from fiscal year 2019, for the highest number of new criminal environmental cases since fiscal year 2014, according to a recent press release.

Following EPA Guidelines is More Important Than Ever

The EPA was particularly diligent in opening new criminal cases during the pandemic. According to statistics maintained by the EPA’s Office of Enforcement and Compliance Assurance (OECA), almost 60 percent of its new criminal cases for the fiscal year were opened from March to September 2020.

OECA claims that, with regard to both civil and criminal enforcement, in the first five months of fiscal year 2020, prior to the virus outbreak, the EPA was already “on track to significantly exceed traditional numeric metrics in many categories with more compliance monitoring activities in the first five months than in any year since 2013, more in assessed penalties the first five months than in seven out of the previous ten years, more injunctive relief in the first five months than in FY 2019, and more concluded cases in the first five months than in either FY 2018 or FY 2019.”

Businesses obligated by environmental regulation to manage wastewater, air emissions, hazardous and other types of regulated wastes should note the types of cases selected for criminal enforcement so that these types of enforcement actions may be avoided. A review of recent cases prosecuted criminally by the USEPA identifies consistent characteristics of the types of cases that are referred to U.S. Attorney’s offices for criminal enforcement

Violations the EPA is Cracking Down On

Noncompliance Following Notice of an Environmental Risk 

A dentist and the contractor who renovated the dental office were recently convicted and sentenced after proceeding to renovate a building without taking any steps to abate the risk of the release of asbestos into the air. Prior to the renovation, an inspection of the building revealed the presence of asbestos.

Noncompliance Followed by More Noncompliance. 

A consistent characteristic of criminal cases over the years has been and continues to be offenders having received notice of non-compliance and continuing to cut corners instead of timely righting the ship. 

For example the EPA recently publicized a sentencing in August 2020 of a bottled water company that drew groundwater and used sand filters to reduce the concentration of naturally occurring arsenic. The company flushed the filters, generating arsenic-contaminated wastewater. The company discharged the wastewater into an artificial pond. Local regulators tested the pond and found that the arsenic concentration was several times in excess of the hazardous waste limit. 

The state tested the wastewater, confirmed the earlier findings of excesses of the hazardous waste limit and ordered the company to remove the arsenic pond. In the removal, the company (1) failed to use proper manifesting; (2) failed to identify the wastewater as hazardous; and (3) transported the wastewater to a facility that was not permitted to receive hazardous waste. As a result, the wastewater was discharged into a sewer without appropriate treatment. The company was hit with a 5 million dollar fine.

Compromises to Pollution Control Devices

 Environmental violations are often regarded by regulators as deserving of criminal enforcement where there is some overt act of willfulness, an intentional violation of environmental law. Guilty pleas have recently been entered by employees of a waste management company involved in the installation of “defeat devices” on diesel trucks, disabling the trucks’ emissions diagnostic systems. 

The EPA investigated this case with the U.S. Department of Transportation. Douglas Shoemaker, a DOT investigator in the case, stated that, “Businessmen and companies that intentionally falsify records in order to circumvent federal laws and regulations will be held accountable for their actions.”

How to Make Sure to Follow EPA Guidelines & Standards

Asbestos removal plans should meet all state and federal regulations to ensure the job is being done correctly. Contractors should also be able to provide references from other customers, as well as proof of workers’ certifications.

Before any renovation or demolition on an older building, owners should consider contacting an asbestos professional for testing. Safe handling and removal of asbestos can prevent exposure and ensure proper disposal.

For more information on finding a local contractor, check the resources below:

• Illinois Environmental Contractors Association Members
• IECA Common Questions & Answers
• Illinois Environmental Organizations & Related Agencies

If you have further questions, please don’t hesitate to contact one of our associates to find an answer to your situation. With more than 40 Illinois-licensed companies represented by IECA members, we believe that collective action through association is the most effective way to deal with the changing demands of doing business.