It has often been said that the only difference between an environmental criminal investigation and civil enforcement is who discovers the violation first. And how does a violation get uncovered, as there are numerous instances of a company thinking it is in full compliance when in fact it is not? It can happen in a number of ways, such as happenstance (the criminal investigator just happens to be driving by and sees something deemed “suspicious”), or by design (a review of reporting submissions by the company). It can happen from within the company (a disgruntled employee, a pissed off ex-employee for instance). The public, in general, can get involved (the USEPA has a link on its web-site to report violations or the citizen can just pick up the telephone and call). It is not always a case of midnight dumping or a catastrophic event.
There are numerous examples of how an investigation gets started. There is active law enforcement. For those of you familiar with the City of Houston, they have a very active environmental enforcement team that cruises the city looking for violations (the City of Houston brings in more revenue from its environmental enforcement than any other criminal enforcement initiative). There is, what I will call, passive law enforcement (the USEPA has tagged it “Next Gen.”). While not criminal in nature, yet, the USEPA Region 6 has been reviewing documents submitted regarding generator status and comparing that to the company’s waste disposal activities and when they do not match, issuing a Consent Agreement and Final Order (“CAFO”) to the company, which is, essentially, non-negotiable and carry stiff penalties.
I have had cases where a current employee was upset about getting passed over for a promotion and in an attempt to “show them” contacted the USEPA about the company activities and to provide internal documents and other information. I have had cases where neighboring businesses have made odor or noise complaints that have developed into environmental crimes investigations. I have had cases where the criminal investigation began as a result of a voluntary disclosure to the USEPA.
The upshot is, that you never know, necessarily, what or who will trigger the investigation. The Louisiana Department of Environmental Quality (“LDEQ”) recently announced the arrest of an individual for alleged felony illegal disposal of harmful substances and aggravated criminal damage to property as he allegedly hauled and dumped chemicals to a vacant lot near a storm drain. The investigation started when some employees of the New Orleans City Council made a complaint to the Fire Department about leaking drums of chemicals. The LDEQ’s CID investigators went to the site, retrieved identification labels from the drums and traced them back to the original owner. It was there that the investigators learned that a former employee took the drums without permission, dumped them in the vacant lot and intentionally punctured them, allowing their contents to spill out.
So, the next questions are, what does the government do when it starts an investigation and what should the company do when it finds out an investigation is under way? And can the company avoid the process altogether? Those will be topics of future blog posts.
As always, feel free to contact me at firstname.lastname@example.org