Module Two: Review of several different common environmental laws that have criminal provisions. A review of their history and applicability within environmental criminal investigations.

1. MODULE TWO
Toxic Substances Control Act
Federal Insecticide, Fungicide, Rodenticide and
Insecticide Act
Comprehensive Environmental Response,
Compensation and Liabilities Act
Safe Drinking Water Act
Ocean Dumping Act
Clean Air Act
Environmental Law Potpourri
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2. TSCA (15USC §2615)
characterize risk a chemical poses to humans and the
environment before its introduced into commerce:
companies that want to manufacture a new chemical
must submit pre-manufacture review (PMN)
Seeks to regulate any chemical that
present an unreasonable risk
2

3. TSCA
Based on broad unreasonable risk
evaluation EPA has authority to regulate:
Manufacture, Use,
Distribution and Disposal
unreasonable risk evaluated via manufacturer
data on health and environmental effects
3

4. Title I: Control of Toxic Substances
(40 CFR Parts 700-766)
Title II: Asbestos Hazard Emergency Response*
(40 CFR Part 763)
Title III: Indoor Air Radon Abatement
(40 CFR Part 195)
Title IV: Lead Based Paint Exposure
(40 CFR Part 745)
TSCA The Statute
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5. TSCA §4: Authority to require testing
TSCA §5: Pre-manufacture review
TSCA §6: Authority to limit or prohibit
TSCA §8: Record keeping and reporting
TSCA §12: Export notice
TSCA §13: Import certification
TSCA Core Enforcement Programs
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6. The citizens of Hinkley, California, made famous by a Julia Roberts movie,
are still plagued with toxic pollution. Uploaded by CNN on Nov 23, 2010
Asbestos (Partially overturned)*
Chloroflourocarbons (CFCs)
Dioxins (2,3,4,5 TCDD)
Hexavalent chromium (chrome-6)
Certain metal working fluids
Polychlorinated biphenols (PCBs)
TSCA §6: Authority to limit or prohibit
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7. TSCA §6(e): PCBs pose unreasonable risk
40CFR§761: PCB Mega-Rule
Enhanced policy for contaminated environmental media >50ppm
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8. TSCA Criminal Violations
15USC §2615(b) and 15USC §2614(1)
Any person who knowingly and willfully
failed or refused to comply with a
PCB regulation, and the PCB substance
contained 50ppm or greater PCBsone year in jail and/or
up to $27,500/day/violation
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9. TSCA Corporate
Criminal Liabilities
Lack of corporate knowledge not a defense
to liability:
anyone handling substance presumed to
be aware it’s regulated
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10. TSCA in the News
Chromium Industry potentially facing
$70M in TSCA Fines
Dupont Pays $3.3M in TSCA Fines
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11. Pesticide History
Rachel Carson credited as Mother of
the Modern Environmental Movement
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12. FIFRA walks a fine
line between the
benefits of pesticides
and the documented
hazards...
12

13. Complex Promulgation with
FDA (registration)
USDA (application)
OSHA (worker safety)
Federal Environmental Pesticide Control Act of 1972
(Amended in 1975, ‘78, ‘80, ‘88, ‘90, ‘96 and 2003)
FIFRA (7USC §136)
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14. Enforcement Motto:
“The Law is the Label and
the Label is the Law”
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15. Any substance intended for preventing,
destroying, repelling or mitigating any
insect, rodent, nematode, fungi or weeds or
any other forms of life declared to be pests
Definition depends upon a use
that is intended or claimed
WhatisaPesticide?
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16. Any form of plant or animal life or virus, bacteria or other
microorganism, except those on or in living man or animals
What is a Pest?
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17. FIFRA Framework
FIFRA §3: A pesticide product must be
registered by EPA prior to sale or distribution
FIFRA §18: EPA may grant registration
exemption for emergencies (public health & crisis)
17

18. FIFRA and The Label
What other
Environmental Laws
may cover spilled
pesticides etc.?
Who, What, When,
Where and How of Use*
*Spills, dumping, abandonment, etc.
not regulated by FIFRA
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19. Manufacturer: permit to sell
Federal or state gov’t: means to control
the sale, use, distribution, storage, and sale
Buyer or user: source of information on
how to use the pesticide correctly and legally
Criminal investigator: provides useful
real-time legal/enforcement information in the
event of a pesticide release or misapplication
(not the primary purpose of the label)
FIFRAandTheLabel
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20. It is a violation of federal law to
use this product in a manner
inconsistent with its labeling.
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21. Registrant, applicant or producer
fined <$50K or
imprisoned for not more than 1 year or both
FIFRA Criminal Penalties
Commercial applicator, distributor or seller
fined <$25K or
imprisoned for not more than 1 year or both
Private applicator or other person
fined <$1K or
imprisoned for not more than 30 days or both
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22. Spot the FIFRA Violation
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23. State agriculture: enforce label/law,
certify applicators, registers most pesticides,
operates labs and coordinates collection events
EnforcementTips
Spills or abandonment of FIFRA
chemicals are not FIFRA cases
Find a friendly state
agriculture SME to interpret
violations of label/law
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24. Questions & Answers
24

25. CERCLA/SUPERFUND
Requires reporting of hazardous substances
released into environment over RQ
25

26. CERCLA/SUPERFUND
Enforced via civil litigation
Review Strict, Joint & Several, and
Retroactive Liability
SUPERFUND incidents can lead
to RCRA enforcement actions
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27. Regulates public
sources of drinking
water, regardless
of source*
*Exemption for private wells
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28. PublicWaterSystem
System for the provision of
water to the public for
human consumption through
pipes or other constructed
conveyances, if such system
has at least 15 service
connections or regularly
serves at least 25 individuals
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29. SDWA
Amended in 2002:
Public Health Security and
Bioterrorism Preparedness and
Response Act
If...>3,300 customers served
then...vulnerability assessment
and ER Plan required
Applies to 168,000 P/POTWs
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30. 90 MCLs
SDWAENFORCEMENT National Primary Drinking
Water Regulation is a legally
enforceable standard that applies to
public water systems.
Primary standards protect drinking
water quality and take the form of
Maximum Contaminant Levels
or Treatment Techniques
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31. SDWACriminalInvestigations
States have primacy
EPA retains jurisdiction
Fraud, false statements, tampering
Tampering with drinking water system
25 year felony
SDWA willful violations
3 year felony
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32. Prohibits dumping at sea without EPA
permit within specific locations
EPA sets materiel dumping standards
USCG inspects/affirms permit claims
Violation: 5 year felony
Ocean Dumping Act
(Marine Protection, Research and Sanctuaries Act)
32

33. Clean Air Act (42USC §7401)
Regulates air pollutant emissions
Very confusing, highly technical
Amended 1970, 1977, 1990
command and control transitioned
to market-based mechanisms
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34. National Ambient Air
Quality Standards
(NAAQS)
State
Implementation
Plans (SIPs)
New Source & Pre-
construction review
(NSR)
Hazardous Air
Pollutants and
Air Toxics
Title V Permits
Clean Air Act Programs
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35. NAAQS: Seeks to
control pervasive
pollution that
endangers public
health & welfare
Lead
35

36. NAAQS set to
protect public health
Attainment vs. Non-attainment
Requirement to review every 5 years
NAAQS changes controversial
State Implementation Plans
36

37. Air Toxics Rule
(§112)
188 substances controlled
as Hazardous Air Pollutants
(40CFR Part 63)
Stationary sources are major source if emit:
>10 tons per year, or
>25 tons of any combination
1990 CAA Provisions
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38. Four types of HAP exposure control
(NESHAPs)
Maximum Achievable Control Technology (MACT) Standard
Health based standards
Standards for stationary ‘area sources’
Prevention of catastrophic releases
Hazardous Air Pollutants
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39. Applicable emission controls &
limitation standards
Essential monitoring and record-
keeping document
Modified, revoked, reopened, and reissued
or terminated for cause
5 year permits are state managed,
federally funded
CAA Title V: Operating Permit
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40. CAAPermitShield
Section 504(f):
permit compliance = CAA compliance
If permit does not specify a control, no
enforcement for not meeting the control
no shield presumed
40

41. CAA Title V
annual permitee certification:
“...is in compliance with any applicable
requirements of the permit, and to
promptly report any deviations from
permit requirements...”
41

42. CAACriminalProvisions
Criminal liability attaches if
individuals or corporations
make false statements and/or
fail to file or maintain records
or reports required by CAA
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43. CAACriminalProvisions
§113(c) any person who
knowingly violates
Persons can be individuals & corporationsIndividuals: Five years
in jail and up to $250K/
day/violation
Corporations: up to
$500K/violation
Some CAA enforcement exclusive to
corporate officers
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44. CAACriminalProvisions
Penalties double for repeat offenders
Corporations: up to $500K
Individuals: one year in
jail and up to $100K
Knowing failure to pay any fee owed
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45. Applicable criteria
Negligent vs. knowing
HAPs vs. extremely hazardous substances
CAACriminalProvisions
Criminal release of
air toxics
Imminent danger of death
or serious bodily injury
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46. CAACriminalProvisions
Negligent Individuals: up
to $100K per day and up
to 1 year in prison
Negligent Corporations:
up to $200K per day
Knowing Individuals: up
to $250K per day and up
to 15 years in prison
Knowing Corporations:
up to $1M per day
Requires
actual knowledge
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47. "Knowingly removing asbestos
improperly is criminal. Exploiting the
homeless to do this work is cruel."
-Attorney General Janet Reno
47

48. CAA Criminal Investigation Tips
Difficult, complex, requires SMEs
Non-attainment areas
SIPs and source specific controls
Toxic air release = regulatory controls
EPA’s National Priority Sectors
Tampering = enforcement
HAPs vs. Hazardous Substances
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