EPA's Criminal Enforcement Program was established in 1982 and was granted full law enforcement authority by Congress in 1988. It enforces the nation's laws by investigating cases, collecting evidence, conducting forensic analyses and providing legal guidance to assist in the prosecution of criminal conduct that threatens people's health and the environment.
Each month the EPA publishes the Environmental Crimes Case Bulletins, summarizing investigative activity and adjudicated cases by EPA's Criminal Enforcement special agents, forensic specialists, and legal support staff. The bulletins specifically discuss targeted industries or pollution problems—such as a bulletin from 2013 highlighting Clean Water Act Crimes ‐ Illegal Pollution by Animal Confinement Operations Punished by Fines and Incarceration. These cases are in the public interest and bulletins name names, the amounts of fines and jail time. They are also highly searchable through all the internet engines! So in addition to following EPA regulations as part of sound environmental health and safety policy, the negative publicity that it brings should be another deterrent!
Also, there is no real way for any company or operation to hedge their bets! Within the EPA’s Criminal Enforcement Policy, there are no set penalties, but instead a complex series of equations in place to determine the fine. These equations add up variables such as severity of the infringement, past negligence or fines, and how much damage came about as a result. Below are outlined the two variables with the most impact to help highlight the importance of EPA compliance.
Deviation from Requirements
In layman's terms, deviation from requirements is like asking the phrase, "I know we got it wrong, but how wrong, exactly?" This is one of the variables in determining the non-compliance fine, and can be one of three;
- Minor - A minor violation just means one deviated only slightly from the recommended requirements, but most were met. An example of this would be failing to keep track of every maintenance record on one's properly installed cathodic protection for their underground steel storage tank.
- Moderate - A moderate penalty results from the user having deviated by a considerable amount from recommended requirements. An example being a user’s cathodic protection for their steel tank was improperly installed/constructed or neglected.
- Major - A major charge results from either complete or moderate deviation from requirements. For example, installing an underground steel tank without any cathodic protection.
As it sounds, the potential for harm section rates how much damage could have come about (or did) as a result of non-compliance. It is named as such because charges are based on what could have happened, not taking into consideration if it actually did. It is the EPA's belief that violators should not be given a lower fine simply because no (or minimal) harm came of the violation. As with the deviation section, the potential harm section is measured in three tiers.
- Minor - A minor risk is defined as being a violation which causes or could pose a minor risk to human health and/or the environment. An example being failure to provide adequate paperwork for UST installation.
- Moderate - A moderate risk is one which could or has caused a significant risk to human and environmental health. An example of this tier being installing a storage tank that does not meet corrosion protection standards.
- Major - A major violation is one which caused or may cause substantial damage to human or environmental health and wellbeing. An example being improper installation of a fiberglass reinforced plastic tank, posing the risk of a possible catastrophic spill.
An example being the case against Freedman Farms Inc; on February 13th, 2012 the president of this company, William Freedman, was sentenced to six months jail time and six months house arrest for illegally dumping 324,000 gallons of hog manure into a nearby waterway, resulting in fish death and a host of other consequences. In addition, the company was to pay 1.5 million in combined fees, community service, and restitution as well as being on probation for five years. Mr. Freeman also had the pleasure of having his story told in the July 2013 Environmental Crimes Case Bulletin. If you google Freeman Farms, it is the first search result.
The two outlined variable classes, along with other factors such as cooperation/noncooperation, degree of willfulness/negligence, history of noncompliance violations, and other unique conditions will define possible fees to be paid as well as the possibility of jail time.
Non-compliance has many negative impacts—not only to the environment but also to the bottom line—which is the intent of these laws in the first place (even the most minor offenses can result in at least $10,000 in fees ) and to a company’s reputation, which can ultimately have the worst have financial consequences. If you are unsure about your compliance status, seek the advice of experts to help your company avoid fines and penalties as a result of accidental non-compliance. Emilcott has been assisting our clients meet EPA requirements for over 25 years.
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