The State of Environmental and Workplace Safety Criminal Enforcement in 2015

Two Yates Memos and a Shift in Environmental and Workplace Safety Criminal Prosecutions

September and December of 2015 may be the most significant dates in the investigation and prosecution of corporate crimes related to the environment and workplace safety in the past twenty years. On September 9, 2015, Deputy Attorney General (“DAG”) Sally Quillian Yates released a memorandum to all criminal and civil branches of the U.S. Department of Justice (“DOJ”) setting out “six key steps to strengthen [DOJ’s] pursuit of individual corporate wrongdoing.” ¹Memorandum from Sally Quillian Yates, Deputy Attorney Gen. on Individual Accountability for Corporate Wrongdoing to Assistant Attorneys Gen., United States Attorneys (Sept. 9, 2015), http://www.justice.gov/dag/file/769036/download [hereinafter “September 2015 Yates Memorandum”]. On November 16, 2015, the United States Attorney’s Manual was revised to reflect the changes called for in the September guidance. See USAM 9-28.000, USAM 4-3.000, USAM 1-12.000. On December 17, 2015, DAG Yates sent out another memorandum directing all 93 United States Attorneys’ Offices to participate in a national initiative to increase the use of criminal enforcement in cases involving workplace safety. ²Memorandum from Sally Quillian Yates, Deputy Attorney Gen. on Prosecutions of Worker Safety Violations to United States Attorneys (Dec. 17, 2015), https://www.justice.gov/enrd/file/800431/download [hereinafter “December 2015 Yates Memorandum”].

The September guidance follows public criticism regarding the dearth of individual convictions associated with the financial crisis. Its focus on individuals appears to be an outgrowth of these enforcement efforts, and the memorandum is a reaffirmation of the legal principle that corporate liability is premised on the acts of employees. ³Matt Apuzzo & Ben Protess, Justice Department Sets Sights on Wall Street Executives, N.Y. Times, Sept. 9, 2015, http://src.bna.com/dGz (quoting Sally Q. Yates for the statement: “Corporations can only commit crimes through flesh-and-blood people.”). Overall, the memorandum mostly formalizes or reiterates existing practices in many U.S. attorneys’ offices. ⁴Memorandum from Eric Holder, Deputy Attorney Gen. on Bringing Criminal Charges Against Corporations to Component Heads, United States Attorneys (June 16, 1999) (“The Department is committed to prosecuting both the culpable individuals and, when appropriate, the corporation on whose behalf they acted.”); September 2015 Yates Memorandum, at 4 (“Both criminal and civil corporate investigations should focus on individuals from the inception of the investigation.”). Specifically, in the area of environmental crime, prosecutors have long focused on investigating individuals alongside corporations and have required cooperation from corporate entities with respect to investigation of their employees. But when taken with the December memorandum’s focus on prosecuting crimes related to workplace safety (where corporate prosecutions have been limited, and individual prosecutions have been exceedingly rare ⁵Despite the rarity of such prosecutions, several of the cases discussed in this article involve an individual prosecution in connection with a major workplace safety incident.), the two initiatives may present a meaningful shift in the focus of federal criminal regulatory enforcement. Taken together, these efforts should command the attention of the regulated community.

The September memorandum sets out a clear “all or nothing” approach on obtaining credit for cooperation with a government investigation. It requires corporations to disclose “complete factual information” regarding individual wrongdoers to be eligible for any cooperation credit. ⁶September 2015 Yates Memorandum, at 3-4. While it is not new to say that cooperation means “full cooperation” and “full disclosure,” the messaging of the new guidance may create new tension between corporate and individual subjects. Even though the guidance appears aimed at executive-level personnel, lower level employees who previously cooperated in internal investigations may be more reluctant to do so now that DOJ requires employers to, in effect, turn over employees suspected of wrongdoing. ⁷Matt Apuzzo & Ben Protess, Justice Department Sets Sights on Wall Street Executives, N.Y. Times, Sept. 9, 2015, available at
http://src.bna.com/dGz (quoting Sally Q. Yates for the statement: “We mean it when we say, ‘You have got to cough up the individuals.’ ”). The memorandum further directs that corporate resolutions should not release individuals from criminal or civil liability without the express approval of the relevant United States attorney or assistant attorney general, and that declinations of individual prosecutions must include a documentation of rationale, and be similarly approved. ⁸September 2015 Yates Memorandum, at 5-6.

The September memorandum also encourages increased and early coordination between attorneys in civil and criminal enforcement. ⁹Id. at 4-5. This follows what appears to be a trend in the increasing entwinement between the civil and criminal sides of “parallel proceedings.” While courts have ruled that the mere fact of coordination between civil and criminal investigators is permissible, they have also held that investigators may not affirmatively misrepresent that an investigation is solely civil and will not result in criminal prosecution. ¹⁰United States v. Stringer, 535 F.3d 929, 940 (9th Cir. Apr. 4, 2008). In addition to this prohibition against using civil investigations as stalking horses for criminal enforcement, prosecutors are prevented under Fed. Rule. Evid. 6(e) from sharing evidence gathered during grand jury investigations with investigators or attorneys in a related civil investigation unless they satisfy the express exception in Rule 6(e)(3).

Of note, the September memorandum indicates that the government will be seeking monetary remedies in civil cases against individuals to protect the “public fisc,” that is to say that there may be efforts to disgorge salaries and bonuses earned as a result of what is claimed to be violative conduct. ¹¹September 2015 Yates Memorandum, at 2. In the context of environmental enforcement, it remains to be seen whether such an approach would be utilized, but there is precedent for holding individuals civilly liable under the environmental statutes. ¹²See generally United States v. Prod. Plated Plastics, Inc., 61 F. 3d 904.

The December guidance, however, is likely to be far more significant for regulatory enforcement. First, it is not a new and unformed idea. Instead, it marks the culmination of a more than 10-year effort to expand the scope of criminal enforcement related to workplace safety. ¹³See below, Interview with Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety & Health, OSHA. In the 2006 edition of this review, we noted that “The Environmental Crimes Section [of the Department of Justice] has made public its intention to partner with the enforcement efforts of the Labor Department’s Occupational Safety and Health Administration.” ¹⁴See Steven P. Solow, The State of Environmental Crime Enforcement: A Survey of Developments in 2014, Bloomberg Bna, Environment Reporter, at 315 EHSDSN, 5/11/15, 46 ER 1418, 5/8/15, 89 DEN B-1, 5/8/15 [hereinafter Environmental Criminal Enforcement in 2014]. One month after that article appeared, in April 2006, the Environmental Crimes Section (“ECS”) obtained convictions of the Atlantic States Cast Iron Pipe company and four of its officers in connection with claims that they had concealed worker injuries from the Occupational Safety and Health Administration (“OSHA”), made false statements to OSHA, obstructed OSHA investigations and violated the Clean Water Act (“CWA”). ¹⁵Jury Verdict, United States v. Atl. States Cast Iron Pipe Co., No. 3:03-cr-00852 (D.N.J. Apr. 26, 2006), ECF Nos. 609-14. The individual defendants faced terms of imprisonment that ranged from 6 to 70 months in federal prison, all of which were upheld on appeal by the Third Circuit. ¹⁶United States v. Atl. States Cast Iron Pipe Co., 695 F. 3d 227.

The Atlantic States case was initiated following public attention to workplace safety issues first identified in a series of New York Times articles and a PBS documentary. ¹⁷See, e.g., David Barstow & Lowell Bergman, At a Texas Foundry, An Indifference to Life, N.Y. Times, Jan. 8, 2003, http://src.bna.com/dGK; A Dangerous Business (PBS television broadcast Jan. 9, 2003). The case included use of both the OSH Act, as well as the CWA. The government’s lead trial attorney was ECS assistant chief Andrew Goldsmith (now an Associate Deputy Attorney General), who was assisted by then Senior ECS Trial Attorney Deborah Harris (now ECS chief). A little less than a year before the verdict in the Atlantic States case, the New York Times reported that then-ECS chief, David Uhlmann, along with Goldsmith and Harris, were beginning a process to train hundreds of OSHA compliance managers to look for environmental violations. ¹⁸David Barstow & Lowell Bergman, With Little Fanfare, a New Effort to Prosecute Employers that Flout Safety Laws, N.Y. Times, May 2, 2005, http://www.nytimes.com/2005/05/02/politics/02osha.html?_r=0. A planned announcement of this effort as an “initiative” was apparently cancelled in 2005, ¹⁹Id. or, perhaps, simply delayed for 10 years.

As a sign of the seriousness of the current effort, DOJ has officially transferred to ECS the responsibility for criminal worker safety prosecutions. ²⁰December 2015 Yates Memorandum, at 1. As noted by Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, and the OSHA lead on the initiative, ECS will be responsible for the prosecution of violations under OSHA, as well as the Mine Safety and Health Administration Act and the Migrant and Seasonal Agricultural Worker Protection Act. ²¹See below, Interview with Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety & Health, OSHA. Acknowledging the “expertise in worker safety enforcement” that ECS has developed over the past decade, DAG Yates stated with force that workplace safety can increase by having prosecutors charge:

… other serious offenses that often occur in association with OSH Act violations including false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes. With penalties ranging from five to 20 years of incarceration, plus significant fines, these felony provisions provide additional important tools to deter and punish workplace safety crimes. ²²December 2015 Yates Memorandum, at 1.

In the future, the effect of the two Yates memos may be that individuals will routinely face criminal liability in the wake of workplace accidents. Given the potential for vicarious criminal liability for the actions of employees, employers may begin to offer counsel to employees at the outset of an agency investigation, which may result in fewer employees agreeing to be interviewed. Whether the formal focus on criminal enforcement for workplace accidents will significantly reduce the level of otherwise avoidable incidents remains to be seen. During the past decade, both fatal and nonfatal work injuries have decreased, ²³See
Bureau of Labor Statistics, Census of Fatal Occupational Injuries at 2, available at
http://www.bls.gov/iif/oshwc/cfoi/cfch0013.pdf (recording a decrease from 4.2 fatal workplace injuries per 100,000 full-time equivalent workers in 2006, to 3.3 fatal workplace injuries per 100,000 full-time equivalent workers in 2014); News release, Bureau of Labor Statistics, Employer-Reported Workplace Injuries And Illnesses—2014 (Oct. 29, 2015), http://www.bls.gov/news.release/pdf/osh.pdf (recording a decrease from 5.0 nonfatal occupational injury and illness incidences per 100 full-time workers in 2003, to 3.2 nonfatal occupational injury and illness incidences per 100 full-time workers in 2014). but the impact on workplace safety will continue to be watched closely. ²⁴See below, Interview with Dr. David Michaels, Assistant Secretary for Occupational Health, OSHA (noting that it would be “fair to say” that the goal of current worker safety initiative is to provide better outcomes by linking accountability, through criminal enforcement, of those with oversight responsibility for workplace safety in their businesses).

For more on both the rationale behind and the mechanics of the new initiative, see our interview with Dr. Michaels at the end of this article.

Potential Challenges for the Government in Implementing the Worker Safety Initiative

The historical challenge to workplace safety criminal enforcements has been the absence of felony violations under the OSH Act; ²⁵See December 2015 Yates Memorandum, at 1 (“The [OSH Act] provides criminal sanctions for three types of conduct impacting worker safety: (1) willfully violating a specific standard, and thus causing the death of an employee; (2) giving advance notice of OSHA inspection activity; and (3) falsification of documents filed or required to be maintained under the OSH Act. Each of these is a misdemeanor punishable by a fine of no more than $10,000 and/or imprisonment for no more than 6 months. Perhaps because these penal ties have never been increased, there are only a handful of reported criminal prosecutions under the OSH Act each year (e.g., three in 2013).”); see also David M. Uhlmann, Prosecution Deferred, Justice Denied, N.Y. Times
, Dec. 13, 2013, at A23, http://src.bna.com/dGZ. to increase the penal punch, prosecutors often charge OSH Act violations with Title 18 or environmental felony offenses, as noted by DAG Yates in her December memorandum. The environmental statutory provision often discussed in this context is Section 112(r) of the Clean Air Act (“CAA”). Section 112(r) was passed as a part of the CAA Amendments of 1990, and the Act’s implementing regulations mirror OSHA’s previously issued Process Safety Management (“PSM”) regulations. ²⁶See Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7), 61 Fed. Reg. 31,672 (June 20, 1996). Thus, the CAA 112(r) regulations incorporate the substance of the OSHA PSM program within the framework of EPA’s felony criminal enforcement regime.

As discussed in this article last year, ²⁷See
Environmental Criminal Enforcement in 2014, Bloomberg Bna, Daily Environment Report, at 4 (May 8, 2015)46 ER 1418, 5/8/15, 89 DEN B-1, 5/8/15, 15 EHSDSN, 5/11/15. the EPA regulations implementing 112(r) are designed to prevent accidental releases of certain flammable and toxic substances. ²⁸CAA Section 112(r)(2)(B) defines these as any “substance listed under paragraph (3)” (i.e., CAA Section 112(r)(3)). These listed substances are also set forth in 40 C.F.R. §68.130, with corresponding thresholds for RMP applicability. If more than a threshold amount of such substances are present at a facility, the regulations require the development of a Risk Management Program, which must include, among other requirements, a hazard assessment regarding the potential effects of a release, prevention plans with monitoring and training programs, procedures for informing first responders and the public in the event of a release, and a risk management plan (“RMP”) with an overall summary of the regulated substances handled by the facility, the facility’s release prevention program and chemical-specific prevention steps, the facility’s five-year accidental release history and the facility’s emergency response program. ²⁹40 C.F.R. Part 68. In early 2016, EPA proposed amendments to these requirements that would require a third party audit following a reportable incident, the consideration of inherently safer technologies, and increased coordination and information disclosure with local emergency planning committees. ³⁰Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, 81 Fed. Reg. 13,638, 13,640-41. (Mar. 14, 2016).

Recent criminal cases under CAA Section 112(r) have mostly focused on two key claims: the failure to have an RMP at a facility required to do so, or the failure to carry out the clear requirements of the Section 112(r) program regulations under 40 C.F.R. Part 68. ³¹See Plea Agreement, United States v. Roberts Chem. Co., ECF No. 2 (failure to have an RMP); Plea Agreement, United States v. Mann Distrib., LLC, ECF No. 2 (failure to have an RMP); Plea Agreement, United States v. Hershey Creamery Co., ECF No. 3 (failure to develop and implement the requirements of a risk management program); compare Plea Agreement, United States v. BP Prods. N. Am., Inc., ECF No. 126 (the company pleaded guilty to a knowing violation of the CAA Section 112(r) program regulations for failing to establish and implement written procedures to maintain the ongoing integrity of process equipment and to inform contractors of the hazards associated with the process in connection with 2005 explosion at its Texas City Refinery). These cases, however, have not been litigated, and therein lies an issue. Unlike the environmental criminal prosecutions brought during the past 30 years, Section 112(r) cases have not been subject to decades of administrative, civil, and criminal litigation to define critical legal terms. ³²See
Environmental Criminal Enforcement in 2014, Bloomberg Bna, Daily Environment Report, at 2 (May 8, 2015); 46 ER 1418, 5/8/15, 89 DEN B-1, 5/8/15, 15 EHSDSN, 5/11/15 discussing the civil and criminal cases that established key terms such as a ‘‘point source’’ in the CWA and ‘‘waste’’ in the Resource Conservation and Recovery Act, and that defined the general intent mens rea for knowing violations and the simple negligence mens rea for negligence violations). Prosecutors and regulated entities have a sense as to the boundaries where a violation of law could result in criminal liability under traditional environmental provisions. A similar history does not yet exist with respect to criminal enforcement of Section 112(r) cases, which may include efforts to criminally enforce alleged violations of legal standards such as “recognized and generally accepted good engineering practices” (“RAGAGEP”).

For example, the CAA Section 112(r) regulations require that “[i]nspection and testing procedures shall follow [RAGAGEP]”. ³³40 C.F.R. §§68.56(d), 68.73(d)(2). Extensive OSHA statements and administrative cases suggest that RAGAGEP is not a “prescriptive standard,” and is defined by the regulated entity; ³⁴See, e.g., Process Safety Management of Highly Hazardous Chemicals; Explosives and Blasting Agents, 57 Fed. Reg. 6356, 6390-91 (Feb. 24, 1992); Secretary of Labor v. BP Prods. N. Am., Inc., No. 10-0637, 2013 WL 9850777, at *16-17 (OSHRC Aug. 12, 2013). thus a determination of RAGAGEP may differ between operators or even facilities. Moreover, as discussed in this article last year, the Occupational Safety and Health Review Commission (OSHA’s administrative adjudication function), has held that in the context of OSHA, regulators cannot substitute their own post-facto view of RAGAGEP for that of a different approach taken by a defendant. ³⁵See
Environmental Criminal Enforcement in 2014, Bloomberg Bna, Daily Environment Report, at 2 (May 8, 2015).

A different, but related challenge is the inherent nature of CAA Section 112(r) enforcement. A typical CWA criminal case alleges noncompliance with a technical standard set forth in a permit. Establishing that a facility violated its permit limit is generally a binary inquiry, meaning that either the facility did or did not exceed the permit limit or did or did not have a permit to operate. What separates a civil from a criminal enforcement in this context is, among other things, evidence of other so-called indicia of criminality, such as lying, cheating, or fraud. A workplace safety violation is far different. An accident, unlike a permit violation, does not by itself mean that a violation of the law (either criminal or civil) has occurred. Section 112(r) contemplates that accidental releases may occur. ³⁶42 U.S.C. §7412(r)(1) (stating that “owners and operators of stationary sources producing, processing, handling or storing such substances have a general duty in the same manner and to the same extent as [the OSHA General Duty Clause] to identify hazards which may result from such releases using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur.”) (emphasis added).

That said, Doug Parker, director of EPA’s Criminal Investigation Division (“EPA-CID”), has stated that EPA-CID will initiate at least a preliminary criminal investigation into the causes and circumstances of significant environmental or workplace safety incidents. ³⁷Doug Parker, Environmental Enforcement, Panel at the American Bar Association’s Twenty-Ninth Annual White Collar Crime Conference (Mar. 4, 2015). Under the September 2015 memorandum, these criminal investigations are likely to look for potential individual targets. ³⁸Matt Apuzzo & Ben Protess, Justice Department Sets Sights on Wall Street Executives, N.Y. Times, Sept. 9, 2015, http://src.bna.com/dGz (quoting Sally Q. Yates for the statement: “Corporations can only commit crimes through flesh-and-blood people.”). But identifying a single individual whose actions serve as the basis for corporate criminal liability may be difficult.

ECS has shown a willingness to prosecute stand-alone OSH Act cases. ³⁹See Information at 3, United States v. Tyson Foods, Inc., No. 4:09-mj-04001 (W.D. Ark. Jan. 6, 2009), ECF No. 1. There could be a tension between this approach and that laid out by Yates if the government cannot find instances of behavior, such as false statements or obstruction with respect to the accident or the investigation into the accident. ⁴⁰See infra discussion of United States v. Kaluza where the government was ultimately left to prosecute only a stand-alone CWA misdemeanor and the defendant was acquitted.

The Prosecutor’s Worker Safety Enforcement Toolbox: Corporate Collective Knowledge

The government may turn to the theory of corporate collective knowledge, a legal concept that has been used for criminal enforcement of workplace prosecutions where it is difficult to identify a culpable individual. ⁴¹Information at 3, United States v. Tyson Foods, Inc., No. 4:09-mj-04001 (W.D. Ark. Jan. 6, 2009), ECF No. 1. The application of the corporate collective knowledge theory was not litigated in this matter; Tyson Foods pleaded guilty to the 29 U.S.C. § 666(e) count set forth in the Information, which was supported by the theory. The Information alleged that the company’s “corporate safety and regional management” was aware of hazards presented by hydrogen sulfide (“H2S”) gas at a company facility, but failed to implement sufficient steps required by the OSH Act implementing regulations to limit employee exposure to H2S and to provide training and information on H2S hazards. Id. Under this approach, the government seeks to aggregate knowledge from multiple individuals to form a collective mens rea attributable to a corporate entity. ⁴²United States v. Bank of New England, 821 F.2d 844, 855 (1st Cir. 1987) (the oft-cited case for the collective knowledge theory, in which the First Circuit approved “collective knowledge” jury instruction that stated the corporate defendant’s “knowledge is the totality of what all of the employees know within the scope of their employment.” The application of the corporate collective knowledge theory was not litigated in this matter; Tyson Foods pleaded guilty to the 29 U.S.C. § 666(e) count set forth in the Information, which was supported by the theory. The Information alleged that the company’s “corporate safety and regional management” was aware of hazards presented by hydrogen sulfide (“H2S”) gas at a company facility, but failed to implement sufficient steps required by the OSH Act implementing regulations to limit employee exposure to H2S and to provide training and information on H2S hazards. Id.). Under a theory of corporate collective knowledge, a company could be found guilty of a knowing criminal violation even if no individual employee could be found guilty. ⁴³Id.

The application of the theory in criminal matters to prove a specific intent mens rea, such as willful, is currently rare. ⁴⁴See, e.g., United States v. Sci. Applications Int’l Corp.
626 F.3d 1257, 1273-76 (D.C. Cir. 2010) (explaining that in Bank of New England the First Circuit “allowed the jury to infer corporate knowledge of facts through the accumulation of individual knowledge,” but that “proof of the ‘proscribed intent’ in the case ‘depended on the wrongful intent of specific employees.’”); see also
Massachusetts v. Life Care Ctrs. Of Am., Inc., 926 N.E.2d 206, 212-13 (Mass. May 19, 2010); McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1243-44 (11th Cir. June 6, 2013). Thomas A. Hagemann & Joseph Grinstein, The Mythology of Aggregate Corporate Knowledge: A Deconstruction, 65 GEO. WASH. L. REV. 210, 227 (1997) (finding “no federal court has ever employed Bank of New England‘s collective knowledge rule to uphold a conviction in a criminal case”). However, the government’s reliance on this approach surfaced in the prosecution of Pacific Gas & Electric (“PG&E”) in the U.S. District Court for the Northern District of California. ⁴⁵Defendant’s Motion to Dismiss for Erroneous Legal Instructions to the Grand Jury: Counts 2-28 and the Alternative Fines Sentencing Allegation, at 7-11, United States v. Pac. Gas & Elec. Co., No. 3:14-cr-00175 (N.D. Cal. Sept. 7, 2015), ECF No. 127. PG&E was indicted on one count of obstruction of justice and 27 counts of violation of the Pipeline Safety Act (“PSA”) in connection with a September 2010 rupture on a PG&E gas transmission pipeline in a residential California neighborhood, which led to a fire that killed eight people and injured 58 others. ⁴⁶See Superseding Indictment, United States v. Pac. Gas & Elec. Co., No. 3:14-cr-00175 (N.D. Cal. July 30, ), ECF No. 22.

In a motion to dismiss the indictment, PG&E argued that the government erroneously instructed the grand jury that it could use a standard of corporate collective knowledge to establish the willful mens rea required for a violation of the PSA. ⁴⁷Defendant’s Motion to Dismiss for Erroneous Legal Instructions to the Grand Jury: Counts 2-28 and the Alternative Fines Sentencing Allegation, at 7, United States v. Pac. Gas & Elec. Co., No. 3:14-cr-00175 (N.D. Cal. Sept. 7, 2015), ECF No. 127. While the company posited that the theory could be used to prove “at most” knowledge, it cited a list of cases that rejected a so-called “collective intent” theory, which explained that specific intent (such as willfulness) must be possessed by a least one individual in order to impute that intent to a corporation. ⁴⁸Id. at 8-9.

The court denied the motion to dismiss. ⁴⁹Order Denying Defendant’s Motion to Dismiss for Erroneous Legal Instructions, United States v. Pac. Gas & Elec. Co., No. 3:14-cr-00175 (N.D. Cal. Dec. 23, 2015), ECF No. 219. In doing so, the court relied on a 1974 case out of the U.S. District Court for the Western District of Virginia, which applied a theory of corporate collective knowledge to establish a knowing and willful statutory violation of federal interstate motor carrier regulations. ⁵⁰Id. at 8 (citing United States v. T.I.M.E.-D.C., Inc., 381 F. Supp. 730 (W.D. Va. 1974)) (explaining that Section 322(a) of the Interstate Commerce Act imposes criminal penalties for the knowing and willful violation of any of the regulations imposed by the Highway Administration). The regulation in question prohibited a motor carrier from allowing a driver to operate a vehicle while the driver was impaired or likely to become impaired due to any cause (including fatigue or illness). ⁵¹United States v. T.I.M.E.-D.C., Inc., 381 F. Supp. 730, 738 (W.D. Va. 1974). The Western District of Virginia found that knowledge of driver impairment could be imputed to the company based on “knowledge acquired by employees in the scope of their employment.” ⁵²Id. More specifically, the court found that the company had sufficient information available through its various employees regarding the impairment to support the imputation of knowledge, and that a “corporate defendant is deemed to have had knowledge of a regulatory violation if the means were present by which the company could have detected the infractions.” ⁵³Id. at 739 (citing Steere Tank Lines, Inc. v. United States, 330 F.2d 719 (5th Cir. 1963); Riss & Co. v. United States, 262 F.2d 245 (8th Cir. 1958); United States v. Sawyer Transport, Inc., 337 F. Supp. 29 (D. Minn. 1971)). Given such knowledge, the Court found that the company’s “hands-off” approach to compliance with the regulation was sufficient to establish “willfulness.” ⁵⁴Id. at 741 (“The Company had an affirmative responsibility not to ‘require or permit’ drivers to operate their vehicles while impaired. Cognizant of the situation-for, as previously noted, the Company is held responsible for the knowledge acquired by its various employees-it adopted a more or less ‘hands-off’ attitude towards compliance with the regulation and, in effect, left adherence almost entirely the responsibility of its drivers. Consequently, the court determines that the Government has established beyond a reasonable doubt that the Company did ‘willfully’ disregard its duty …”).

In keeping with this opinion, the court in PG&E adopted the reasoning that “where a corporation has a legal duty to prevent violations, and the knowledge of that corporation’s employees collectively demonstrates a failure to discharge that duty, the corporation can be said to have ‘willfully’ disregarded that duty.” ⁵⁵Order Denying Defendant’s Motion to Dismiss for Erroneous Legal Instructions, at 8, United States v. Pac. Gas & Elec. Co., No. 3:14-cr-00175 (N.D. Cal. Dec. 23, 2015), ECF No. 219. In connection with the legal duties imposed by the PSA, the court found that this rationale was sufficient to support the collective knowledge instruction provided to the grand jury, and to deny the motion to dismiss the indictment. ⁵⁶In the words of the court, “a grand jury indictment will not be dismissed unless the record shows that the conduct of the prosecuting attorney was flagrant to the point that the grand jury was ‘deceived’ in some significant way,” such that the prosecutor “significantly infringe[d] upon the ability of the grand jury to exercise independent judgment.” United States v. Wright, 667 F.2d 793, 796 (9th Cir. 1982) (citation omitted).

The reasoning in the PG&E case is especially notable given that it coincided with the announcement of the Worker Safety Initiative. Notably, a criminal violation of 29 U.S.C. §666(e) of the OSH Act requires a willful state of mind. ⁵⁷“Any employer who willfully violates any standard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both; except that if the conviction is for a violation committed after a first conviction of such person, punishment shall be by a fine of not more than $20,000 or by imprisonment for not more than one year, or by both.” Using a collective knowledge theory, the government might argue that knowledge held by various low-level employees regarding the violation of a specific safety standard could be imputed to the corporation; the government might argue this knowledge coupled with evidence of a “hands-off” approach to compliance with the standard might arguably lead to a determination that the violation was “willful.” ⁵⁸But see
Chao v. Occupational Safety & Health Review Comm’n, 401 F. 3d 355, 367 (5th Cir. Feb. 21, 2005) (“A willful violation is one committed voluntarily, with either intentional disregard of, or plain indifference to, OSH Act requirements.”) (citation omitted).

It remains to be seen whether the P&GE Court’s aggregation of both knowledge and intent from various employees will be successful to prove criminal workplace safety violations given that precedent premises corporate liability on discrete and intentional individual acts of disregard, or plain indifference, to safety regulations. ⁵⁹See
United States v. Ladish Malting Co., 135 F.3d 484; United States v. Dye Const. Co., 510 F.2d 78.

Lessons From the Prosecution of an Individual Corporate Executive: Don Blankenship

In December 2015, former Massey Energy CEO Don Blankenship was convicted by a jury of one misdemeanor count of conspiracy to willfully violate health and safety standards under the Mine Safety and Health Act in connection with his management of the company’s Upper Big Branch (UBB) Mine, where an explosion in April 2010 killed 29 workers. ⁶⁰Jury Verdict, United States v. Blankenship, No. 5:14-cr-00244 (S.D.W. Va. Dec. 10, 2015), ECF No. 529 (convicted of one misdemeanor count of conspiracy to willfully violate MSHA under 30 U.S.C. §820(d) and 18 U.S.C. §371). Blankenship was found not guilty of one felony count of false statements under 18 U.S.C. § 1001 and one felony count of willfully violating 15 U.S.C. §78ff
⁶¹Providing criminal liability for willful violations of securities regulations, or for false or misleading statements in any document required under the regulations. and 18 U.S.C. §2 (aiding and abetting) in connection with public disclosures and SEC filings that allegedly misled investors regarding compliance at the UBB Mine. ⁶²Indictment, at 15-31, United States v. Blankenship, No. 5:14-cr-00244 (S.D.W. Va. Nov. 13, ), ECF No. 1.

On April 6, Blankenship was sentenced to 12 months in prison, 1 year of supervised release and a $250,000 fine, which represents the maximum fine and prison term available. ⁶³Sentencing at 2, United States v. Blankenship, No. 5:14-cr-00244 (Apr. 6, 2016), ECF No. 585.

The Blankenship enforcement is important in a number of ways. First, as far as we can determine, it reflects the first time a high-level executive was convicted of criminal counts in connection with a workplace safety statute, specifically the MSHA. The prosecution argued that Blankenship knew of, and condoned, violations at the UBB Mine in favor of increased coal production, evidenced by his receipt of daily safety law violation reports for Massey mines (which identified UBB citations for violations of the MSHA); his involvement in decisions not to hire additional employees to staff safety-related jobs at the UBB Mine; and handwritten notes to UBB Mine executives regarding daily mine operation. ⁶⁴Id. A report on the incident that was released by U.S. Department of Labor Mine Safety and Health Administration found that “[t]he physical conditions that led to the explosion were the result of a series of basic safety violations at UBB and were entirely preventable. PCC/Massey disregarded the resulting hazards. … The investigation also revealed multiple examples of systematic, intentional, and aggressive efforts by PCC/Massey to avoid compliance with safety and health standards, and to thwart detection of that non-compliance by federal and state regulators.” Norman G. Page et al., United States Dep’t of Labor, Mine Safety and Health Admin., Fatal Underground Mine Explosion 2 (2010), http://arlweb.msha.gov/Fatals/2010/UBB/PerformanceCoalUBB.asp. The conviction suggests, in part, that corporations may face increased scrutiny as to how they utilize data to identify and prevent the occurrence (or reoccurrence) of HSE violations.

Second, while Blankenship was found not guilty on the two felony counts, the charges appear to be unprecedented with respect to statements Blankenship approved following the explosion. After the incident, Blankenship reviewed and approved the following statement for use in a Massey press release and a Shareholder Statement (Form 8-K) filed by Massey with the SEC:

We do not condone any violation of MSHA regulations, and we strive to be in compliance with all regulations at all times. ⁶⁵Indictment at 31-32, United States v. Blankenship, No. 5:14-cr-00244 (S.D.W. Va. Nov. 13, ), ECF No. 1,

It is common in the wake of serious workplace or environmental incidents to see corporate statements similar to the above. In Blankenship, the prosecution alleged that the above statement was rendered false in light of the facts known by the executive regarding compliance at the UBB Mine. ⁶⁶Id. Blankenship argued that the statements were mere “business puffery” and the terms “strive” and “condone” were not factual statements that could be proven true or false. ⁶⁷See Memorandum In Support Of Defense Motion No. 14, Motion To Dismiss Count Four Due To Its Failure To Allege Materially False, Misleading or Fraudulent Statements of Fact, at 1, United States v. Blankenship, No. 5:14-cr-00244 (S.D.W. Va. Feb. 6, 2015), ECF No. 102. In response, the government relied, in part, on the 2015 holding by the U.S. Supreme Court in Omnicare, Inc. v. Laborers Dist. Council Constr. Indus. Pension Fund, which found civil liability under federal securities law ⁶⁸15 U.S.C. Section 77K provides for a civil cause of action with respect to statements that “contain an untrue statement of a material fact” or statements that “omit to state a material fact … necessary to make the statements therein not misleading.” for opinions made in required filings where: 1) the speaker does not sincerely believe the statement or a supporting fact is true, or 2) omitted facts are known to the speaker that contradict the statement. ⁶⁹See United States’ Supplemental Response To Defendant’s Pretrial Motions 13 & 14, at 1, United States v. Blankenship, No. 5:14-cr-00244 (S.D.W. Va. Mar. 30, 2015), ECF No. 182 (citing Omnicare, Inc. v. Laborers Dist. Council Constr. Indus. Pension Fund, No. 13-435 (Mar. 25, 2015)).

Ultimately, the jury did not find Blankenship guilty of making false or misleading statements with respect to the corporate statement noted above. But this does not mean that a different jury could not find criminal liability on similar facts. In the wake of workplace safety or environmental incidents, corporate executives (and their corporate counsel) must scrupulously evaluate statements of fact or opinion regarding corporate regulatory compliance.

The Possible Impact of Scalia’s Passing on the Future of Chevron Deference

With Justice Antonin Scalia’s passing, the potential for monumental change at the intersection of administrative and criminal law may have also passed. Over time, Justice Scalia had become a vocal critic of the application of Chevron deference to dual civil-criminal regulatory statutes. He had recently invited a challenge to such application in the court, overtly hinting that he wished to curtail the rule’s reach. ⁷⁰See
Whitman v. United States, 135 S. Ct. 352 () (statement of Scalia, J., respecting the denial of certiorari).

Since the Court’s 1984 decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., ⁷¹467 U.S. 837 (1984). administrative agencies have enjoyed deference from courts when it comes to interpreting the laws they administer. As it is now commonly known, that case’s eponymous rule—Chevron deference—holds that courts should defer to an executive agency’s reasonable interpretation of ambiguities in a statute, which the agency has been authorized to administer by Congress, and for which it has developed a technical expertise. ⁷²Id. (The rationale for Chevron deference stems from four beliefs about the administrative state: (1) Congress charges agencies with authority to interpret and enforce certain laws, and thus, the courts should defer to the executive branch where Congress gave it explicit or implicit authority to carry out the law; (2) appropriate deference gives greater accountability to the political process and, therefore, maintains fidelity with the founding fathers’ decision to commit law-writing and administering to the political branches; (3) agencies develop expertise and are charged with administering complicated programs that likewise warrant deference from the courts; and (4) as a practical matter, Congress must delegate certain law-making functions to agencies in order to keep pace with the fast-changing developments of modern society.) For just about as long as Chevron deference has existed, U.S. courts of appeal have applied it to laws with dual civil and criminal consequences, thereby giving authority to administrative agencies to interpret statutes that may then be enforced criminally. ⁷³See
Whitman, 135 S. Ct. at 353 (collecting cases).

While Scalia embraced effectuating congressional intent with respect to according deference in statutory interpretation to the relevant agency in civil matters, ⁷⁴See Hon. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 514-17, 521 (discussing the various underpinnings for Chevron deference and ultimately favoring the idea that courts should defer to agencies where Congress directs the courts to do so, but also explaining that Chevron “will endure … because it more accurately reflects the reality of government, and thus more adequately serves its needs”). he began to question the scope of its application in criminal matters, which implicate other constitutional concerns. His concerns gained momentum during the past several years, and in Whitman, Scalia and Justice Clarence Thomas made clear they would welcome the opportunity to reconsider such a broad grant of deference. ⁷⁵See
Whitman, 135 S. Ct. at 354. As part of a denial of certiorari in Whitman v. United States, a common and normally unremarkable action by the court, Scalia took the unusual step of penning a statement respecting the denial, which articulated his concerns with Chevron deference. ⁷⁶Id.

In Whitman, the operative statutory provision was Section 10(b) of the Securities Exchange Act of 1934, which calls for both civil and criminal enforcement. The U.S. Court of Appeals for the Second Circuit had affirmed the defendant’s criminal conviction for a 10(b) violation after deferring to an interpretation of the statute from the Securities and Exchange Commission, which is charged with administering the statute. ⁷⁷Id. at 353.

In his statement to the Whitman denial of certiorari, Justice Scalia, joined by Justice Thomas, queried, “Does a court owe deference to an executive agency’s interpretation of a law that contemplates both criminal and administrative enforcement?” ⁷⁸Id. This was not the issue on appeal, and so the writ was denied for different, unexplained reasons, but Scalia threw down the gauntlet, stating that “when a petition properly presenting the question comes before us, I will be receptive to granting it.” ⁷⁹Id. at 354.

Justice Scalia’s challenge in Whitman echoed earlier concerns he raised in 1990 in Crandon v. United States. ⁸⁰494 U.S. 152, 177 (1990). In a concurrence to the Crandon opinion, Justice Scalia wrote:

a criminal statute[] is not administered by any agency but by the courts. … The Justice Department, of course, has a very specific responsibility to determine for itself what this statute means, in order to decide when to prosecute; but we have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference. ⁸¹Id. at 178.

Although Crandon dealt with a purely criminal statue, Justice Scalia’s reasoning identified the conflict that often arises between an agency’s expansive interpretation of an ambiguous law, which may work to the detriment of a defendant, and the rule of lenity, which requires courts to resolve ambiguities in criminal statutes to the benefit of the defendant. ⁸²Id. at 171, 175, 177-78.

In Whitman, Justice Scalia returned to an articulation of his concerns, creating a roadmap for potential challenges to Chevron deference by clarifying the dangers of deference in the criminal sphere. Justice Scalia explained that not only does deference in this situation ignore the rule of lenity, but it would allow for “federal administrators … [to] create (and uncreate) new crimes at will, so long as they do not roam beyond ambiguities that the laws contain.” ⁸³Whitman, 135 S. Ct. at 353. Only Congress may decide what constitutes a crime. ⁸⁴Id. (“Undoubtedly Congress may make it a crime to violate a regulation, but it is quite a different matter for Congress to give agencies—let alone for us to presume that Congress gave agencies—power to resolve ambiguities in criminal legislation.” (citations omitted)). Allowing otherwise, Justice Scalia wrote, would “replac[e] the doctrine of lenity with a doctrine of severity.” ⁸⁵Id. (quoting Crandon, 494 U.S. at 178 (Scalia, J., concurring)). Similarly, Judge Jeffrey Sutton of the Sixth Circuit, a former Scalia law clerk, has recently picked up and expanded upon his former boss’s argument in two separate concurrences. Esquivel-Quintana v. Lynch, 810 F.3d 1019, 1027 (6th Cir. Jan. 15, 2016) (Sutton, J., concurring and dissenting); Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 729 (6th Cir. Nov. 27, 2013) (Sutton, J., concurring). Judge Sutton posited that allowing agencies to create criminal laws through interpretations frustrates the fair-notice objective behind the rule of lenity. Id. at 731-32. The face of the statute should communicate exactly what conduct is prohibited, and administrative interpretations, in their many forms and distributions, may be less obvious or available to the public than the statutes. See id. Moreover, a lack of sufficient warning could be exacerbated with the changing opinions of changing administrations.

Justice Scalia’s passing leaves many things unclear. It was not evident how many other members of the Court agreed with Justice Scalia that Chevron deference should not apply to dual civil-criminal statutes. Furthermore, without knowing who will replace Justice Scalia, predicting how his replacement might vote in this regard is all but impossible. But, when the appropriate case and petitioner make their way through the courts, Justice Scalia’s framework for curtailing the application of Chevron may make an appearance.

Environmental Disasters and the Shield of Sovereign Immunity: Gold King Mine and the Flint Water Crisis

Following the release of lead into drinking water in Flint, Michigan and the three million gallons of acid mine water released from the Gold King Mine in Colorado, the question has been raised as to whether a government employee can be criminally prosecuted for an environmental crime. The short answer is that, while the government itself has sovereign immunity, government employees can be prosecuted in their individual capacity.

There is a long history of municipal waterworks employees being prosecuted by the federal government for violations of both the Clean Water Act and the Safe Drinking Water Act (“SDWA”). Employees have been prosecuted for failing to test municipal water supplies, ⁸⁶Indictment, United States v. Scaccia, No. 1:11-cr-00533 (N.D. Ill. Aug. 11, 2011), ECF No. 1. tampering with monitoring methods, ⁸⁷Information, United States v. Olson, No. 2:12-cr-00045 (N.D. Ind. Mar. 20, 2012), ECF No. 1. submitting false reports, ⁸⁸Indictment, United States v. Clark, No. 1:11-cr-00063 (E.D. Tenn. July 19, 2011), ECF No. 5. and for knowingly discharging pollutants, including untreated sewage, into waters of the United States. ⁸⁹Indictment, United States v. Barber, No. 3:13-cr-05288 (W.D. Wash. Apr. 17, 2013), ECF No. 1. Notably, the majority of those convicted in these cases received terms of probation. ⁹⁰Judgment, United States v. Scaccia, No. 1:11-cr-00533 (N.D. Ill. Nov. 26, 2013), ECF No. 147; Judgment, United States v. Olson, No. 2:12-cr-00045 (N.D. Ind. June 26, 2012), ECF No. 25; Judgment, United States v. Barber, No. 3:13-cr-05288 (W.D. Wash. Mar. 18, ), ECF No. 74.

With regard to Flint, where residents were repeatedly told that their water was safe when it was severely contaminated with lead, it has been reported that the Federal Bureau of Investigation, EPA-CID and other agencies are working with the U.S. Attorney’s Office on a criminal investigation. But it may be difficult for the government to prove that any of the conduct at issue constitutes an environmental crime. Specifically, to prosecute individuals for tampering with the public water system requires proof of an intent to harm. ⁹¹42 U.S.C. §300i-1(a), (d) (“For purposes of this section, the term tamper means—(1) to introduce a contaminant into a public water system with the intention of harming persons; or (2) to otherwise interfere with the operation of a public water system with the intention of harming persons.”); see also Rachel Leven, Lawyers: Flint Criminal Probe Likely Excludes Water Charges, BNA Daily Environment Report
, Mar. 14, 2016, http://www.bna.com/lawyers-flint-criminal-n57982068532/.

The government is likely to investigate what government employees knew about the lead levels, when they knew the information and what was said to the public in the wake of that knowledge. ⁹²Rachel Leven, Lawyers: Flint Criminal Probe Likely Excludes Water Charges, BNA Daily Environment Report
, Mar. 14, 2016, http://www.bna.com/lawyers-flint-criminal-n57982068532/
50 State Environment Daily, 3/15/16, 50 DEN A-1, 3/15/16, 98 CrL 576, 3/16/16, 31 TXLR 252, 3/17/16, 47 ER 843, 3/18/16, 11 WCR 190, 3/18/16, 2016 WLPM 11, 3/21/16, See previous story, 03/15/16. While criminal violations of the SDWA may not be likely, the government may consider whether individuals are liable for violations of Title 18, such as false statements, obstruction of justice, or even public corruption. The government might also consider a Klein conspiracy for withholding information needed for a federal agency to do its job. ⁹³18 U.S.C. §371 (“If two or more persons conspire to … defraud the United States, or any agency thereof in any manner or for any purpose. …”)

In the meantime, EPA Administrator Gina McCarthy, Michigan Gov. Rick Snyder and former EPA Region 5 Administrator Susan Hedman, have all been called before the U.S. House Committee on Oversight and Government Reform to testify regarding EPA’s handling of the issue and what has been called an “unacceptable” delay in informing the people of Flint of the contamination. ⁹⁴Lenny Bernstein, Ex-EPA Official Defends Agency’s Work in Flint Water Crisis at Capitol Hill Hearing, Washington Post, Mar. 15, 2016, https://www.washingtonpost.com/national/health-science/ex-epa-official-denies-responsibility-in-flint-water-crisis-at-capitol-hill-hearing/2016/03/15/ae5cb5f4-eabe-11e5-a6f3-21ccdbc5f74e_story.html. McCarthy testified that EPA could only act under the Safe Drinking Water Act when the state has failed to act. ⁹⁵Amy Harder and Kris Maher, EPA Chief, Michigan Governor Asked to Resign Over Flint Water Crisis, Wall Street J., Mar. 17, 2016, http://www.wsj.com/articles/state-federal-officials-clash-over-flint-water-crisis-1458219959. However, she acknowledged that EPA’s response was delayed, stating “were we late in [issuing the emergency order]? Yes. Are there consequences to that, absolutely.” ⁹⁶Id. Hedman testified that she doesn’t “think anyone at EPA did anything wrong” but added that she did “believe that [they] could have done more.” ⁹⁷Josh Sanburn, Former EPA Official Grilled Over Flint Water Crisis, Time, Mar. 15, 2016, http://time.com/4259438/susan-hedman-flint-water-crisis-congress/.

When Governor Snyder was asked by the committee whether he thought that state employees intentionally withheld information regarding the contamination from him, he said he didn’t believe that was the case. ⁹⁸Julie Bosman, House Hearing on the Water Crisis in Flint, N.Y. Times, Mar. 17, 2016, http://www.nytimes.com/live/flint-water-crisis-hearing/. In his later statements to the committee, however, the governor noted that the water crisis “was a failure of government at all levels. Local, state and federal officials …” ⁹⁹Laura Wagner & Merrit Kennedy, Michigan Gov. Rick Snyder: `We All Failed The Families Of Flint’, NPR, http://www.npr.org/sections/thetwo-way/2016/03/17/470792212/watch-michigan-gov-rick-snyder-testifies-on-the-flint-water-crisis. Rep. Elijah Cummings stated during the hearing that “[t]here’s no doubt in [his] mind that if a corporate CEO did what Gov. Snyder’s administration has done, he would be hauled up on criminal charges.” ¹⁰⁰Id.

EPA has one additional reason to forcefully investigate the lead contamination in Flint, namely the agency’s stated commitment to environmental justice that includes “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the … enforcement of environmental laws, regulations, and policies.” ¹⁰¹Environmental Justice, U.S. Envtl. Prot. Agency, https://www3.epa.gov/environmentaljustice/ (last visited Mar. 17, 2016). The Flint community is 56.6 percent African American, and 41.6 percent of the people are living below the poverty line. ¹⁰²See QuickFacts Flint city, Michigan, United States Census Bureau, http://www.census.gov/quickfacts/table/PST045215/2629000 (last visited Mar. 17, 2016).

Nor is Flint the only situation in which government employees could face individual liability. The Clean Water Act makes simple negligence punishable as a criminal offense. ¹⁰³33 U.S.C. §1319(c)(1); see also
United States v. Hanousek, 176 F. 3d 1116, 1121 (9th Cir. Mar. 19, 1999). On Aug. 5, 2015, while performing mine reclamation activities, an EPA contractor breached an abandoned mine that released approximately 3 million gallons of acid mine water into the Animas River. ¹⁰⁴Bureau of Reclamation, Technical Evaluation of the Gold King Mine Incident 1 (Oct. 2015), available at
http://www.usbr.gov/docs/goldkingminereport.pdf. In its October 2015 report on the Gold King Mine incident, the Bureau of Reclamation of the Department of the Interior found broad-based problems with the standards of practice for reopening and remediating flooded, inactive, and abandoned mines. It specifically found that practices are inconsistent from agency to agency and do not include engineering analysis appropriate to the level of complexity. ¹⁰⁵Id. It also found that a technique to determine the level of mine pool water prior to excavating was considered, but not done. “Had [this technique been utilized],” the bureau found, “the plan to open the mine would have been revised, and the blowout would not have occurred.” ¹⁰⁶Id. That sort of finding of proximate cause, the “but for” nature of the conduct, is one of the keys to a finding of negligence. ¹⁰⁷See Order Granting State of California’s Motion to Quash Subpoena Duces Tecum, at 3–4, United States v. Cota, No. 3:08-cr-00160 (N.D. Cal. Feb. 17, 2009), ECF No 242 (citing United States v. Hanousek, 176 F. 3d 1116, 1121 (9th Cir. 1999)). Notably, a work order by EPA from June warned that the build-up of pressure inside the mine could cause a catastrophic blowout when the mine was breached. ¹⁰⁸Matthew Brown, Interior Secretary: No Criminal Acts in Gold King Mine Spill, The Durango Herald, Dec. 9, 2015, http://www.durangoherald.com/article/20151209/NEWS02/151209569/Interior-secretary:-No-criminal-acts-in-Gold-King-Mine-spill. In contrast, Interior Secretary Sally Jewell testified before Congress that she doesn’t “believe there’s anything in [the conduct] to suggest criminal activity.” ¹⁰⁹Id.

Unlike the lead contamination in Flint, no criminal investigation into EPA’s conduct at Gold King Mine has been announced. The Navajo Nation and the state of New Mexico are pursuing claims against EPA for the environmental damage and cleanup costs. ¹¹⁰Associated Press, New Mexico Is First to Issue Plans to Sue EPA Over Colorado Mine Spill, CBS Denver, Jan. 14, 2016, http://denver.cbslocal.com/2016/01/14/new-mexico-is-1st-to-issue-plans-to-sue-epa-over-colorado-mine-spill/.

2015 Cases of Note

Volkswagen—Was EPA Looking?

In a highly publicized matter, Volkswagen has been accused of violating laws in several countries designed to reduce greenhouse gas emissions from vehicles by installing defeat devices on emissions control equipment on diesel-powered vehicles. ¹¹¹Press Release, Dep’t of Justice, United States Files Complaint Against Volkswagen, Audi And Porsche For Alleged Clean Air Act Violations, (Jan. 4, 2016), http://www.justice.gov/usao-ndca/pr/united-states-files-complaint-against-volkswagen-audi-and-porsche-alleged-clean-air-act [hereinafter DOJ VW Press Release (Jan.4, 2016)]. The defeat devices were designed to detect when emissions control equipment was being tested, and to only operate at full capacity when the equipment was being tested. ¹¹²Id.

In 1998, the EPA and the Department of Justice entered into consent decrees with seven companies for essentially the same conduct. ¹¹³Press Release, Envtl. Prot. Agency, DOJ, EPA Announce One Billion Dollar Settlement with Diesel Engine Industry for Clean Air Violations, (Oct. 22, 1998), https://yosemite.epa.gov/opa/admpress.nsf/b1ab9f485b098972852562e7004dc686/93e9e651adeed6b7852566a60069ad2e?OpenDocument. At the time, this series of settlements resulted in the largest civil penalty in an environmental case, $83.4 million. ¹¹⁴Id. EPA is now pursuing an enforcement action against Volkswagen for the same conduct. ¹¹⁵DOJ VW Press Release (Jan.4, 2016), http://www.justice.gov/usao-ndca/pr/united-states-files-complaint-against-volkswagen-audi-and-porsche-alleged-clean-air-act. Volkswagen’s defeat devices were not caught by EPA, but rather were discovered by researchers from West Virginia University and the International Council on Clean Transportation. ¹¹⁶Stephen Edelstein, CARB Shows Test Equipment that Found VW Defeat Device, Green Car Reports (Feb. 5, 2016), http://www.greencarreports.com/news/1102220_carb-shows-test-equipment-that-found-vw-diesel-defeat-device-video. This begs the question whether emissions testing required by EPA is adequate to detect non-compliance, or if more could be done to prevent this conduct. The 1998 settlements should have alerted EPA to the method of using a device to evade emissions testing. In the intervening years, individual emissions inspectors have frequently been prosecuted for “clean-scanning” vehicles. ¹¹⁷“Clean-scanning” involves hooking up emissions testing equipment to a vehicle that will pass the emissions test, but inputting the data of another vehicle. See, e.g.
United States v. Awan, No. 3:12-cr-00079-FDW (W.D.N.C. Jan. 22, ); United States v. Smith, No. 5:12-cr-00193-F (E.D.N.C. Sept. 3, ); United States v. Matthews, No. 5:12-cr-00263-F (E.D.N.C. Sept. 3, ); United States v. Salmeron, No. 3:12-cr-00261-MOC (W.D.N.C. Apr. 3, ). Nevertheless, the testing and oversight had not been revised to address the risk of a repeat violation. Chlorofluorocarbon smuggling and renewable identification number fraud cases present other instances where the vulnerability of a regulatory program has been similarly revealed. ¹¹⁸Steven P. Solow and Anne M. Carpenter, The State of Environmental Criminal Enforcement: A Survey of Developments in 2012, Bloomberg Bna, Daily Environment Report, at 9-10 (Mar. 15, 2013), see
13 EHSDSN, 3/18/13, 53 DER B-1, 3/19/13, 51 DEN B-1, 3/15/13, 44 ER 765, 3/15/13 13.

In September and November 2015, EPA issued notices of violation to Volkswagen and affiliated companies for use of these devices, but they are not the only ones to act. ¹¹⁹DOJ VW Press Release (Jan.4, 2016), http://www.justice.gov/usao-ndca/pr/united-states-files-complaint-against-volkswagen-audi-and-porsche-alleged-clean-air-act. Many states have filed suits for violation of state air quality standards, and many foreign countries have filed both civil and criminal lawsuits against the company. ¹²⁰Bourree Lam, Phase Two of the Volkswagen Scandal: Lawsuits, The Atlantic (Sept. 29, 2015), http://www.theatlantic.com/business/archive/2015/09/vw-volkswagen-lawsuits-emissions-scandal/407800/. An estimated 11 million cars sold worldwide have the emissions defeat devices on them, and Volkswagen has begun recalling vehicles to remove the defeat devices. ¹²¹11 Million Cars Worldwide Have Emissions ‘Defeat Device,’ Volkswagen Says, NPR (Sept. 22, 2015), http://www.npr.org/sections/thetwo-way/2015/09/22/442457697/11-million-cars-worldwide-have-emissions-problem-volkswagen-says. The cost of recalling the vehicles and the legal fees associated with defending the vast number of suits that have been filed are great, but if the case were prosecuted criminally, the potential scope of liability is enormous given the number of vehicles sold in the U.S. that contained the defeat device and the likelihood that each vehicle could be considered a separate violation.

Under the September Yates memo discussed above, should Volkswagen seek to plead guilty to a criminal information in return for cooperation credit, the company would presumably be required to identify and provide information to the government on individuals within the company with culpability.

Decision Not to Seek Additional Penalties Against Exxon for Valdez

On Oct. 15, 2015, DOJ and the Alaska Department of Law announced that no further penalties would be sought from Exxon Mobil Corp. for the 1989 Exxon Valdez oil spill. ¹²²Press Release, Dep’t of Justice, United States and the State of Alaska Opt not to Recover Additional Damages from Exxon Mobil under Reopener Provision of 1991 Exxon Valdez Oil Spill Settlement (Oct. 15, 2015), http://www.justice.gov/opa/pr/united-states-and-state-alaska-opt-not-recover-additional-damages-exxon-mobil-under-reopener. In 2006, the governments had filed to reopen the request for penalties on the belief that species native to the area were still being impacted by residual oil in the environment, but when the species rebounded, the governments determined that no further penalties were necessary. ¹²³Id. The original civil settlement, entered in 1991, called for Exxon to pay $900 million to support past and future restoration of the impacted areas. ¹²⁴Id. On top of the $125 million as a criminal fine and restitution for the spill, the settlement for4 the second largest oil spill in U.S. history pales in comparison to the settlement of the largest oil spill, the Macondo well in the Gulf of Mexico. ¹²⁵See id.

BP Civil Settlement

On Oct. 5, 2015, the government announced a civil settlement of the claims of five states, local governments and the federal government for violation of the Oil Pollution Act, Clean Water Act, natural resources damage, and economic damages resulting from the blowout of the Macondo well that spilled oil into the Gulf of Mexico for 87 days in 2010. ¹²⁶Press Release, Dep’t of Justice, U.S. and Five States Reach Historic Settlement with BP to Resolve Civil Lawsuit over Deepwater Horizon Oil Spill (Oct. 5, 2015), http://www.justice.gov/opa/pr/us-and-five-gulf-states-reach-historic-settlement-bp-resolve-civil-lawsuit-over-deepwater. The settlement is valued at a historic $20.8 billion dollars, and more than half of the total value of the settlement will be used to fund restoration efforts in the Gulf. ¹²⁷Id.

BP Individual Prosecutions

A recurring topic in this article has been the state of the prosecutions in connection with Deepwater Horizon, which were finally brought to a close earlier this year, almost six years after the explosion. ¹²⁸See
Environmental Criminal Enforcement in 2014, Bloomberg Bna, Daily Environment Report, at 8–9 (May 8, 2015); Steven P. Solow and Anne M. Carpenter, The State of Environmental Criminal Enforcement: A Survey of Developments in 2013, Bloomberg BNA Daily Environment Report, at 9–11 (Apr. 11, 2014); Steven P. Solow and Anne M. Carpenter, The State of Environmental Criminal Enforcement: A Survey of Developments in 2012, Bloomberg Bna, Daily Environment Report, at 1-2, see
44 ER 765, 3/15/13, 13 EHSDSN, 3/18/13, 51 DEN B-1, 3/15/13, 53 DER B-1, 3/19/1313. The Department of Justice elected to have the criminal investigation undertaken by a task force of prosecutors, rather than under the control of ECS. ¹²⁹Dep’t of Justice, Env’t & Nat. Res. Div., FY 2014 Performance Budget Congressional Submission 6 (2013). Putting aside the corporate plea agreements, five individuals were charged with violations stemming from the incident or conduct in response to the incident: Anthony Badalamenti, the former Cementing Technology Director for Halliburton Energy Services, Inc., ¹³⁰Information, United States v. Badalamenti, No. 2:13-cr-00204 (E.D. La. Sept. 19, 2013), ECF No. 1. Kurt Mix, a former engineer for BP Exploration & Production, ¹³¹Indictment, United States v. Mix, No. 2:12-cr-00171 (E.D. La. May 2, 2012), ECF No. 7. and David Rainey, the Deputy Incident Commander for BP’s response to the incident ¹³²Indictment, United States v. Rainey, No. 2:12-cr-00291 (E.D. La. Nov. 14, 2012), ECF No. 1. were all charged with crimes in connection with the response to the government’s investigation, as opposed to charges related to the explosion itself. The only two charged in connection with the spill itself were Robert Kaluza and Donald Vidrine, well site leaders for the Macondo well.

Thus far, Badalamenti, Mix, and Vidrine have each pleaded guilty to a single misdemeanor charge. ¹³³Plea Agreement, United States v. Badalamenti, No. 2:13-cr-00204 (E.D. La. Oct. 15, 2013), ECF No. 17; Plea Agreement, United States v. Mix, No. 2:12-cr-00171 (E.D. La. Nov. 6, 2015), ECF No. 902; Plea Agreement, United States v. Kaluza, No. 2:12-cr-00265 (E.D. La. Dec. 2, 2015), ECF No. 248. None of these defendants will serve any prison time. ¹³⁴Judgment, United States v. Badalamenti, No. 2:13-cr-00204 (E.D. La. Jan. 21, 2014), ECF No. 25; Judgment, United States v. Mix, No. 2:12-cr-00171 (E.D. La. Nov. 6, 2015), ECF No. 907; Plea Agreement, United States v. Kaluza, No. 2:12-cr-00265 (E.D. La. Dec. 2, 2015), ECF No. 248. On April 6, 2016, Donald Vidrine was sentenced to 10 months of probation, 100 hours of community service, and $50,000 in restitution for negligent violation of the CWA. ¹³⁵Judgment, United States v. Kaluza, No. 2:12-cr-00265 (E.D. La. Apr. 6, 2016), ECF No. 452. Rainey was acquitted on all counts ¹³⁶Judgment, United States v. Rainey, No. 2:12-cr-00291 (E.D. La. June 5, 2015), ECF No. 504. and Kaluza was acquitted February 25, 2016 of the only remaining charge in the government’s case. ¹³⁷Judgment, United States v. Kaluza, No. 2:12-cr-00265 (E.D. La. Feb. 25, 2016), ECF No. 434. The charges filed against Kaluza and Vidrine initially included 11 counts of involuntary manslaughter, 11 counts of seaman’s manslaughter and one count of negligent violation of the Clean Water Act. ¹³⁸Indictment, United States v. Kaluza, No. 2:12-cr-00265 (E.D. La. Nov. 14, 2012), ECF No. 3. As noted by Shaun Clarke, co-counsel for Kaluza, his client was charged “with crimes that could have ended his life in prison.” However, the seaman’s manslaughter charges were subsequently dismissed for lack of jurisdiction under the Outer Continental Shelf Lands Act ¹³⁹Order, United States v. Kaluza, No. 2:12-cr-00265 (E.D. La. Dec. 10, 2013), ECF No. 118. and the government moved to dismiss the involuntary manslaughter counts in early December 2015 because they no longer believed that they could “meet the legal standard for instituting the involuntary manslaughter charges.” ¹⁴⁰Janet McConnaughey and Michael Kunzelman, Manslaughter Charges Dropped for BP Supervisors in Oil Spill, Associated Press, Dec. 3, 2015, http://bigstory.ap.org/article/2887cc597e844ceda4dd90a92e95dcac/manslaughter-charges-dropped-bp-supervisors-oil-spill.

At the time of Kaluza’s trial, the government’s remaining charge was for negligent violation of the Clean Water Act. ¹⁴¹Judgment, United States v. Kaluza, No. 2:12-cr-00265 (E.D. La. Feb. 25, 2016), ECF No. 434. As noted above, the applicable standard is simple negligence and the jury concluded that Kaluza was not negligent, i.e. that a similarly situated rational person would act the same under the circumstances. Notably, the length of time between the incident and the trial in this matter may have adversely affected the government’s case, which was tried in one of the areas hardest hit by the impacts of the Deepwater Horizon oil spill. Coming almost six years after the incident occurred (as a result of a stay pending the government’s appeal of the dismissal of the seaman’s manslaughter counts, which was ultimately affirmed by the Fifth Circuit), Kaluza was acquitted, but the duration of the prosecution undoubtedly took its toll.

Further, an earlier edition of this review addressed the difficulties the government might have in prosecuting the individuals that could have lost their own lives in the incident. ¹⁴²Steven P. Solow and Anne M. Carpenter, The State of Environmental Criminal Enforcement: A Survey of Developments in 2012, Bloomberg Bna, Daily Environment Report, at 3-4 (Mar. 15, 2013), see
13 EHSDSN, 3/18/13, 44 ER 765, 3/15/13, 53 DER B-1, 3/19/13, 51 DEN B-1, 3/15/13 13. This assessment is echoed in our discussion above regarding the difficulty that may arise in assigning individual culpability following an accident. As noted by David Gerger, co-counsel for Kaluza, following Kaluza’s acquittal, “not every tragedy is a crime.”

Let’s Do the Numbers

As in prior years, DOJ ECS has assisted in the identification of relevant cases for the article’s review of criminal environmental cases. Although our methods of gathering and tracking environmental prosecutions have become more sophisticated in the years that we have been writing this article, our data on environmental criminal cases may be still incomplete. Our sources, among others, include the websites of EPA-CID and DOJ ECS, as well as Bloomberg BNA’s Daily Environment Report and the always useful Environmental Crimes Blog of Walter James, accessible at http://www.environmentalblog.typepad.com. The cases listed below are in various stages of disposition and the information provided in each case summary reflects the status of the matter at the close of the 2015 calendar year. This year’s review covers 171 cases related to criminal violations of federal law involving pollution or degradation of air, water or public lands (“pollution cases”). ¹⁴³This compares with 186 pollution cases in 2014, 202 pollution cases in 2013 and 250 in 2012. The authors also reviewed data on 123 cases related to criminal violations of federal wildlife protection laws such as the Lacey Act. Overall, 294 cases, including both pollution and wildlife cases, were charged in 2015. ¹⁴⁴This compares with 258 cases in 2014, 440 cases in 2013 and 390 cases in 2012. This year’s article only provides narrative summaries of pollution cases.

The 294 cases tracked in 2015 involved 433 defendants, 295 of which were sentenced during the 2015 calendar year resulting in a combined total of more than 160 years in prison, approximately $85 million in fines and more than $161 million in restitution payments. Of the 433 defendants, 332 pleaded guilty and 34 proceeded to trial on their charges. ¹⁴⁵This compares with 342 pleas and 31 trials in 2014, 455 pleas and 39 trials in 2013 and 474 pleas and 46 trials in 2012. Of the 34 defendants that stood trial, two were acquitted on all charges. ¹⁴⁶This compares to five acquittals in 2014, four acquittals in 2013 and six acquittals in 2012. For the remaining defendants, 16 had their charges dismissed and 51 remain pending resolution. ¹⁴⁷This compares with 14 dismissals and 100 pending resolution in 2014, 34 dismissals and 119 pending resolution in 2013 and 21 dismissals and 129 pending resolution in 2012.

Excluding wildlife cases, 18.6 percent of the defendants in the 2015 active pollution cases were in Region 9 and 17.4 percent were in Region 4. Regions 8 and 1 had the lowest percentages of overall non-wildlife defendants with 2.8 percent and 3.2 percent respectively. ¹⁴⁸Region 4 has prosecuted the second-most pollution cases of all regions for each of the previous three years. Region 8 prosecuted the fewest pollution cases in 2014 and Region 1 prosecuted the fewest pollution cases in 2013 and 2012. Corporations represented approximately 18 percent of 2015 defendants (a total of 78). ¹⁴⁹This compares with approximately 16 percent (a total of 79) in 2014, approximately 16 percent (a total of 105) in 2013 and approximately 17 percent (a total of 116) in 2012. Of these defendants, 90 percent of 2015 corporate defendants were privately owned, 1 percent were publicly traded and information was unavailable on 9 percent of corporate defendants. ¹⁵⁰This compares with 90 percent privately owned, 2.5 percent publicly traded and 7.5 percent unknown in 2014; 85 percent privately owned, 12 percent publicly traded and 3 percent unknown in 2013; and 77 percent privately owned, 9.5 percent publicly traded and 13.5 percent unknown in 2012.

Act to Prevent Pollution From Ships (“APPS”)/Vessel

United States v. Hachiuma Steamship Co., No. 1:15-cr-00005-CCB (D. Md. sentence entered Jan. 30, 2015); United States v. Vidad, No. 1:14-cr-00505-CCB (D. Md. sentence entered Feb. 20, 2015); United States v. Tuale, No. 1:14-cr-00513-CCB (D. Md. sentence entered Mar. 3, 2015).

• Hachiuma Steamship Co. Ltd. (“Hachiuma”) pleaded guilty to one count of failing to maintain an accurate oil record book on the M/V Selene Leader for the acts of senior ship engineers in the Port of Baltimore on Jan. 30, 2014.
• Noly Torato Vidad, Chief Engineer of the M/V Selene Leader, and Ireneo Tomo Tuale, First engineer on board the vessel, each pleaded guilty to one count of knowingly failing to maintain an accurate oil record book and Vidad also pleaded guilty to one count of obstruction of justice for tearing pages from tank logs, instructing other employees to lie to the Coast Guard and lying to the Coast Guard.
• Hachiuma was sentenced to three years of probation and a $1.35 million fine, with $250,000 of the fine ordered to be paid to the whistleblower. The company was also ordered to pay $450,000 in restitution to the National Fish & Wildlife Foundation. The company is required to implement an Environmental Compliance Plan.
• Vidad was sentenced to eight months in prison followed by one year of probation and is required be turned in for deportation.
• Tuale was sentenced to three months in prison followed by one year of probation and is required be turned in for deportation.
2. United States v. Carbofin, S.P.A., No. 8:14-cr-00500-VMC-TGW (M.D. Fla. sentence entered Mar. 5, 2015); United States v. Messore, No. 8:14-cr-00501-JDW-EAJ (M.D. Fla. sentence entered Jan. 21, 2015); United States v. Giano, No. 8:14-cr-00508-SDM-TGW (M.D. Fla. sentence entered Feb. 9, 2015).
• Carbofin S.P.A, owner and operator of the M/T Marigola pleaded guilty to three counts of failing to maintain an accurate oil record book for illegal overboard discharges of sludge and oil that were not recorded in the oil record book.
• Alessandro Enrico Messore, second assistant engineer aboard the vessel, and Carmelo Giano, chief engineer aboard the vessel, each pleaded guilty to one count of failing to maintain an accurate oil record book for the illegal discharges.
• Carbofin was sentenced to three months of probation, a fine of $2.15 million and $600,000 in community service payments to the National Marine Sanctuary Foundation.
• Messore was sentenced to 60 months of probation, a fine of $1,500 and is barred from re-entering the United States without permission.
• Giano was sentenced to 12 months of probation, a fine of $5,000 and is barred from re-entering the United States without permission.
3. United States v. Fafalios, No. 2:14-cr-00128-SRD-KWR (E.D. La. sentence entered Feb. 3, 2015).
• Matthaios Fafalios, chief engineer aboard the M/V Trident Navigator, was convicted of one count each of failing to maintain an accurate oil record book, obstruction of justice and witness-tampering for illegal overboard discharges, concealing tank logs from the Coast Guard and instructing subordinates to lie to the Coast Guard.
• Marine Managers Ltd., operator of the vessel, previously pleaded guilty to failure to maintain an accurate oil record book and obstruction of justice for illegal overboard discharges from the vessel and for presenting a falsified oil record book to the Coast Guard.
• The company was previously sentenced to three years of probation, an $800,000 fine and a $100,000 community service payment to the National Fish and Wildlife Foundation. It is also required to retain a court-appointed monitor for the duration of probation.
• Fafalios was sentenced to 12 months of probation to include eight months of community confinement and electronic monitoring. Following his sentence, the court ordered the defendant to be repatriated. He has appealed his conviction and sentence.
4. United States v. Drake, No. 3:11-cr-00222-EBB (D. Conn. dismissed Apr. 29, 2015).
• The government dismissed a charge against Randall Joiner that he failed to notify the government of an oil discharge from a tugboat in Stamford Harbor in 2007.
• Joiner’s codefendant, Christopher Drake, pleaded guilty to the charge and was sentenced in 2012 to a fine of $5,000.
5. United States v. Miseljic, No. 2:14-cr-00383-GW (C.D. Cal. sentence entered Apr. 16, 2015).
• Mitar Miseljic, master of the M/V Bellavia, pleaded guilty to conspiracy to concealing cracks in the hull of the vessel that punctured fuel tanks from the Coast Guard and for pumping oil directly overboard between June 2012 and October 2013.
• Miseljic was sentenced to three years of probation and a $10,000 fine.
6. United States v. AML Ship Mgmt. GMBH, No. 3:15-cr-00018-TMB-KFM (D. Alaska sentence entered May 26, 2015); United States v. AML Ship Mgmt. GMBH, No. 3:15-cr-05321-RJB (W.D. Wash. sentence entered Sept. 25, 2015); United States v. AML Ship Mgmt. GMBH, No. 3:15-cr-00007-TMB-KFM (D. Alaska sentence entered May 26, 2015); United States v. Sassin, No. 3:15-cr-00051-MO (D. Or. sentence entered Apr. 1, 2015); United States v. Sassin, No. 3:15-cr-00072-MO (D. Or. sentence entered Apr. 1, 2015).
• AML Ship Management GMBH (“AML”) pleaded guilty to one count of failing to maintain an accurate oil record book on the M/V City of Tokyo in November 2014 in the Western District of Washington and in the District of Alaska between July and September 2014. The company also pleaded guilty to one count of knowing discharge of oil into waters of the United States in the District of Alaska.
• Nicholas Sassin, chief engineer of the M/V City of Tokyo pleaded guilty to one count of failing to maintain an accurate oil record book between May and September 2014 and one count of knowing discharge of oil into waters of the United States.
• AML was sentenced to three years of probation on each count to be served concurrently in the District of Alaska. The company is also required to pay a $300,000 fine for the failure to maintain an accurate oil record book and a $375,000 fine and a $125,000 community service payment to the Alaska SeaLife Center for the knowing discharge. The company was also sentenced to five years of probation, a $125,000 fine and a $75,000 community service payment to the National Fish and Wildlife Foundation in the Western District of Washington. AML is required to implement an Environmental Compliance Plan in both districts.
• Sassin was sentenced to five years of probation in each case, to be served concurrently.
7. United States v. DSD Shipping, AS, No. 1:15-cr-00102-CG-B (S.D. Ala. guilty verdict entered Nov. 9, 2015); United States v. DSD Shipping, AS, et al., No. 2:15-cr-00125-PM-KK (W.D. La. guilty verdict entered Nov. 9, 2015).
• DSD Shipping AS, (“DSD”) owner and operator of the M/T Stavanger Blossom, Chief Engineer Daniel Paul Dancu, former Chief Engineer Bo Gao, Second Engineer Xiaobing Chen and Fourth Engineer Xin Zhong were indicted for conspiracy, failing to maintain an accurate oil record book and obstruction of justice for acts between May and August 2014. An indictment in the Western District of Louisiana was consolidated for trial.
• Dancu pleaded guilty to conspiracy and testified against co-defendants.
• DSD, Gao, Chen and Zhong were convicted on the majority of counts.
8. United States v. Herm. Dauelsberg GMBH & Co. KG, No. 3:15-cr-00042-TMB (D. Alaska sentence entered June 3, 2015).
• Herm. Dauelsberg GMbH & Co. KG, (“Herm.”) operator of the M/V Lindavia, pleaded guilty to one count of failing to maintain an accurate oil record book in February 2015.
• Herm. Dauelsberg was sentenced to three years of probation, a $600,000 fine and a $150,000 community service payment to the National Fish and Wildlife Foundation. The company was also required to implement an Environmental Compliance Plan.
9. United States v. Norbulk Shipping UK Ltd., No. 1:15-cr-00294-JHR (D.N.J. sentence entered June 17, 2015); United States v. Georgiev, No. 1:15-cr-00291-JHR (D.N.J. sentence entered July 8, 2015).
• Norbulk Shipping UK Ltd., (“Norbulk”) operator of the M/V Murcia Carrier, pleaded guilty to one count of failing to maintain an accurate oil record book and one count of false statements in April 2014.
• Chief Engineer Valerii Georgiev pleaded guilty to one count of failing to maintain an accurate oil record book for directing crew members to dump drums containing oil overboard.
• Norbulk was sentenced to three years of probation and a $750,000 fine, $250,000 of which will be shared by three whistleblowers.
• Georgiev was sentenced to three months in prison.
10. United States v. Ignacio, No. 7:15-cr-00108-H (E.D.N.C. indictment entered Dec. 9, 2015).
• Rustico Yabut Ignacio, chief engineer aboard the M/V Ocean Hope, and Cassius Samson Flores, second engineer aboard the vessel, were indicted for conspiracy, failure to maintain an accurate oil record book, obstruction of justice and witness tampering for allegedly directing crewmembers to discharge oil directly overboard, lying to the Coast Guard and directing crewmembers to lie to the Coast Guard.

11. United States v. Castillo-Macias, No. 1:15-cr-00315 (S.D. Tex. sentence entered Aug. 6, 2015).
• Anwar Ioanis Ionis Castillo-Macias pleaded guilty to failing to follow a Coast Guard instruction to heave to, while illegally fishing in U.S. waters in March 2015.
• Castillo-Macias was sentenced to time served in prison.
12. United States v. Ciner Gemi Acenti Isletni Sanayi Ve Ticaret S.A., No. 1:15-cr-00616-GLR (D. Md. indictment entered Dec. 3, 2015); United States v. Atabay, No. 1:15-cr-00610-GLR (D. Md. indictment entered Nov. 24, 2015); United States v. Malaki, No. 1:15-cr-00617-GLR (D. Md. indictment entered Dec. 3, 2015).
• Ciner Gemi Acenti Isletni Sanayi Ve Ticaret S.A. (“Ciner”) was indicted on two counts of violation of APPS for failing to maintain accurate Oil Record Books onboard the M/V Art
v
in while calling in U.S. ports in Baltimore and Newport News, Virginia.
• John Cahoto Malaki, Chief Engineer aboard the vessel, and Ulyses Abarado Atabay, Second Engineer aboard the vessel were each indicted for one count of failing to maintain an accurate Oil Record Book in the port of Baltimore.

Clean Water Act (“CWA”)/Other Water Cases

13. United States v. Mix, No. 2:12-cr-00171-SRD-SS (E.D. La. sentence entered Nov. 6, 2015); United States v. Kaluza, No. 2:12-cr-00265-SRD-MBN (E.D. La. guilty plea entered Dec. 2, 2015); United States v. Rainey, No. 2:12-cr-00291-KDE-DEK (E.D. La. acquittal entered June 5, 2015).
• Kurt Mix, a former engineer for BP, was convicted of obstruction of justice for deleting text messages with his supervisor regarding the rate of oil released from the Macondo well, which were requested by authorities as part of the investigation into the incident. The district court ordered a new trial in the matter on June 12, 2014, on grounds of juror misconduct.
• Prior to a new trial, Mix pleaded guilty to one misdemeanor violation of the Computer Frauds and Abuses Act and was sentenced to 6 months of probation and 60 hours of community service.
• Robert Kaluza and Donald Vidrine were indicted November 14, 2012, for involuntary manslaughter, seaman’s manslaughter and Clean Water Act violations in association with their role as Well Site Leaders in the Deepwater Horizon disaster in April 2010. Kaluza and Vidrine are alleged to have negligently supervised the testing of the well cementing, including ignoring several signals that the well was not secure.
• The court dismissed Seaman’s Manslaughter charges against both men for lack of jurisdiction, a decision that was upheld by the Fifth Circuit, and the government voluntarily dismissed the involuntary manslaughter counts.
• Vidrine pleaded guilty to one count of negligent violation of the CWA.
• David Rainey, Deputy Incident Commander for BP’s response to the Macondo well blowout, was indicted November 14, 2012, on charges of obstruction of justice and making false statements regarding estimates of oil flowing from the Macondo well. Rainey is alleged to have manipulated the calculations so that they closely aligned with low estimates of 5,000 BOPD made by NOAA.
• The court dismissed the obstruction charge on a number of grounds including the fact that Congressional staffers refused to testify. A jury acquitted Rainey of the false statements charge.

14. United States v. Egan, No. 1:10-cr-00033 (N.D. Ill. sentence entered July 1, 2015).
• Dennis Michael Egan, the captain of petroleum barge EMC-423, and Egan Marine Corp., the owner and operator of the barge, were convicted of negligent manslaughter for a 2005 explosion on board the barge that killed one employee and the negligent discharge of oil for the subsequent spill of oil into the Chicago Sanitary and Ship Canal.
• Egan was sentenced to six months in prison, one year of probation and restitution of $1.4 million to the deceased employee’s estate and $5.338 million to the Coast Guard jointly and severally with Egan Marine Corp.
• Egan Marine Corp. was sentenced to three years of probation.
15. United States v. French Gulch Nev. Mining Corp., No. 2:10-cr-00255-GEB (E.D. Cal. sentence entered Feb. 26, 2015).
• Kiedock Kim, mill superintendent of the French Gulch Mine, which was located partly on federal lands, pleaded guilty to one count of depredation of federal property and one count of negligent discharge in violation of the Clean Water Act. Kim ordered the discharge of liquid wastes from the mining operation that contained lead and arsenic into a leach field on the federal lands, causing $107,160 in cleanup costs, while also discharging tailings into a nearby creek from a pipe system.
• Kim was sentenced to six months in prison, three years of probation, a $2,500 fine and $107,160 in restitution to the Bureau of Land Management. He is also required to report for deportation following his term in prison.
• Charges remain outstanding against co-defendants French Gulch Nevada Mining Corp., Bullion River Gold Corp. and president/CEO Peter Martin Kuhn.
16. United States v. Pullyblank, No. 3:13-cr-00198-TJM (N.D.N.Y. sentence entered Aug. 5, 2015); United States v. Clements, No. 3:14-cr-00331-TJM (N.D.N.Y. sentence entered Aug. 5, 2015).
• Mark Pullyblank, William Clements and Crane-Hogan Structural Systems were indicted for the unpermitted discharge of pollutants in connection with defendants’ hydro-demolition activities at parking garages, which allegedly removed layers of concrete and caused the release of concrete slurry into storm drains that feed the Susquehanna River.
• Pullyblank and Crane-Hogan Structural Systems each pleaded guilty to a knowing violation of the Clean Water Act for the discharges.
• Clements pleaded guilty to a negligent violation of the CWA for the discharges and was sentenced to one year of probation and a $2,000 fine.
• Pullyblank was sentenced to three years of probation, a $10,000 fine and 120 hours of community service.
• Crane-Hogan Structural Systems was sentenced to five years of probation, a $500,000 fine and is required to implement an Environmental Compliance Plan.
17. United States v. Luther, No. 7:14-cr-00004-F (E.D.N.C. sentence entered Jan. 6, 2015).
• David Wayne Luther pleaded guilty to a negligent violation of the CWA and a knowing violation of the Rivers & Harbors Act for “prop washing” in an effort to dredge a canal for the building of a docking facility in violation of the permit issued for the docking, which was occurring in a Primary Nursery Area for oysters.
• Luther was sentenced to five years of probation and is required to purchase .21 acres of coastal wetlands for donation to the North Carolina Ecosystem Enhancement Program.
18. United States v. Dies, No. 3:13-cr-00161-SDD-SCR (M.D. La. sentence entered Apr. 29, 2015).
• Roger J. Dies pleaded guilty to violation of the CWA and obstruction of justice in connection with the unpermitted discharge of wastewater to a local water treatment plant in violation of an industrial user permit held by Dies’ business Baton Rouge Tank Wash.
• Dies was sentenced to two years of probation, a $6,000 fine and $104,700 in restitution to the city of Baton Rouge.
19. United States v. XS Platinum, Inc., No. 3:14-cr-00103-SLG-DMS (D. Alaska guilty plea entered Dec. 11, 2015).
• XS Platinum Inc., Bruce Butcher (CEO), Mark Balfour (executive vice president), Robert Pate (general manager), James Slade (chief operating officer) and James Staeheli (plant operator) were indicted for conspiracy to violate the CWA, substantive violations of the CWA and false statements for alleged unpermitted discharges from the company’s platinum mine.
• Pate pleaded guilty to two counts of knowing discharge in violation of the CWA and one count of false statements under the CWA.
• Staeheli pleaded guilty to a one count information charging negligent discharge in violation of the CWA.
• Slade pleaded guilty to one count of knowing discharge in violation of the CWA after being convicted of one count of negligent discharge and a jury deadlock on 3 counts.
• Charges remain pending against XS Platinum Inc., Butcher and Balfour.
20. United States v. Witt-Hird, No. 2:14-cr-00216 (S.D.W. Va. sentence entered Mar. 26, 2015).
• Bonita Witt-Hird, an employee of a wastewater treatment plant engineering firm, pleaded guilty to one count of false statements on documents required under the CWA for submitting to the state, on behalf of clients, approximately 80 DMRs that contained falsified sampling data.
• Witt-Hird was sentenced to 12 months and one day in prison and one year of probation.
21. United States v. Xplor Energy SPV-1, Inc., No. 2:14-cr-00202-SSV-KWR (E.D. La. sentence entered Mar. 4, 2015).
• Xplor Energy SPV-1 Inc. pleaded guilty to one count of knowing unpermitted discharge in violation of the CWA for discharges of produced water from an offshore drilling platform operated by the company.
• Xplor Energy SPV-1 was sentenced to three years of probation, a $2.5 million fine and a $600,000 community service payment to the Louisiana Department of Environmental Quality.
22. United States v. Shelton, No. 5:14-cr-00189 (S.D.W. Va. sentence entered Feb. 25, 2015).
• John W. Shelton, an employee of a laboratory testing company, pleaded guilty to one count of conspiracy to violate the CWA for tampering with water samples required for reporting under the CWA. Shelton admitted to diluting samples, substituting samples and failing to comply with preservation and transportation requirements for the water samples.
• Shelton was sentenced to 21 months in prison and three years of probation.
23. United States v. Trans Energy, Inc., No. 5:14-cr-00043-JPB-JES (N.D. W. Va. sentence entered Apr. 22, 2015).
• Trans Energy Inc., an oil and gas drilling operator, pleaded guilty to three counts of the negligent discharge of fill material into waters of the United States in violation of the CWA. The defendant admitted to the discharges in connection with the construction of impoundments for use in hydraulic fracturing operations.
• Trans Energy Inc. was sentenced to two years of probation and a $600,000 fine.
24. United States v. Faria, No. 3:14-cr-00149-AWT (D. Conn. sentence entered Feb. 13, 2015).
• Thomas H. Faria, president of an over-the-counter pharmaceutical maker, pleaded guilty to the knowing discharge of a pollutant without an industrial pretreatment permit between 1986 and July 2011. Faria admitted knowing that the facility lacked the required permit.
• Faria was sentenced to three years of probation, a $30,000 fine and 300 hours of community service.
25. United States v. White, No. 1:14-cr-00225-BYP (N.D. Ohio sentence entered Apr. 28, 2015).
• The Kelly Plating Co. and the facility’s pretreatment operator, Thomas White, each pleaded guilty to one count of conspiracy to violate the CWA and one count of knowing violation of the CWA for bypassing the pretreatment system at the facility between January and May 2012.
• The Kelly Plating Co. was sentenced to two years of probation, a $50,000 fine and a $25,000 community service payment to the Cleveland Foundation to improve water quality in Northeast Ohio.
• White was sentenced to two years of probation and a $2,000 fine.
26. United States v. Waste Mgmt. of Hawaii, Inc., No. 1:14-cr-00468-SOM-BMK (D. Haw. dismissed Nov. 12, 2015); United States v. Waste Mgmt. of Hawaii, Inc., No. 1:15-cr-00523-SOM (D. Haw. sentence entered Oct. 26, 2015).
• Waste Management of Hawaii Inc., Joseph R. Whelan (General Manager) and Justin H. Lottig (Environmental Protection Manager) were indicted for conspiracy, false statements and a knowing discharge in violation of the CWA in connection with changes to the company’s stormwater diversion system from an expansion of the facility that allegedly resulted in the discharge of raw sewage and the intermingling of storm water with solid waste.
• The government dismissed the original charges and reindicted each defendant for negligent discharge in violation of the CWA. Each defendant pleaded guilty to the new indictment.
• Waste Management of Hawaii Inc. was sentenced to a $400,000 fine and $200,000 in restitution to Ko Olina Community Association and the Malama Learning Center.
• Whelan and Lottig were each sentenced to a $25,000 fine.
27. United States v. Kearney, No. 6:14-cr-03022-MDH (W.D. Mo. sentence entered July 6, 2015).
• Earl Kearney, operator of a wastewater treatment facility, pleaded guilty to two negligent violations of the CWA for falsifying the sampling results for phosphorus in wastewater that was discharged between May 2010 and August 2011.
• As part of the plea agreement, Kearney agreed to never work in wastewater treatment again.
• Kearney was sentenced to five years of probation and a $30,000 fine.
28. United States v. Vaughan, No. 9:14-cr-00009-DWM (D. Mont. sentence entered Jan. 16, 2015).
• James Leslie Vaughan pleaded guilty to one count of the knowing discharge of domestic sewage sludge in violation of the CWA for applying sewage sludge to land as a method of disposal without keeping the required records.
• Vaughan was sentenced to two years of probation and a $5,000 fine.
29. United States v. Farrell, No. 2:14-cr-00264 (S.D.W. Va. guilty plea entered Aug. 19, 2015); United States v. Freedom Indus., Inc., No. 2:14-cr-00275 (S.D.W. Va. guilty plea entered Mar. 24, 2015); United States v. Burdette, No. 2:14-cr-00276 (S.D.W. Va. guilty plea entered Mar. 18, 2015); United States v. Reynolds, No. 2:14-cr-00277 (S.D.W. Va. guilty plea entered Mar. 18, 2015).
• Owners of Freedom Industries Inc., Dennis Farrell, William Tis and Charles Herzing, and company COO Gary Southern were indicted for their alleged roles in the release of 4-methylcyclohexane from a tank into the Elk River in January 2014 that resulted in a “do not use” water advisory being issued to approximately 300,000 residents. The charges include negligent discharge in violation of the CWA, violation of the Rivers and Harbors Act for the discharge of refuse and negligent violation of a NPDES permit. Southern also faces charges for a scheme to defraud in the bankruptcy case.
• Under separate indictment, the company faced charges for negligent discharge in violation of the CWA, violation of the Rivers and Harbors Act for the discharge of refuse and knowing violation of a NPDES permit, to which the company pleaded guilty.
• Michael E. Burdette, tank farm plant manager, and Robert J. Reynolds, an environmental consultant, each pleaded guilty to negligent discharge in violation of the CWA.
• Tis and Herzing each pleaded guilty to one count of violation of the Rivers and Harbors Act.
• Farrell pleaded guilty to one count of violation of the Rivers and Harbors Act and one count of negligent discharge in violation of the CWA.
• Southern pleaded guilty to one count of violation of the Rivers and Harbors Act and two counts of negligent discharge in violation of the CWA.
30. United States v. Matson Terminals, Inc., No. 1:14-cr-00911-RLP (D. Haw. sentence entered Jan. 29, 2015).
• Matson Terminals Inc. pleaded guilty to two counts of violating the Rivers and Harbors Act for discharging approximately 233,000 gallons of molasses into Honolulu Harbor while loading the molasses into ships in September 2013.
• Matson Terminals Inc. was sentenced to a $400,000 fine and $600,000 in restitution to Waikiki Aquarium and Sustainable Coastlines Hawaii.
31. United States v. Calvo, No. 1:14-cr-20883-JEM (S.D. Fla. sentence entered Jan. 6, 2015).
• Jose Miguel Calvo was indicted for violation of the Rivers and Harbors Act for allegedly constructing docks on 4 homes without obtaining a valid permit from the U.S. Army Corps of Engineers.
• Calvo pleaded guilty to the charge and was sentenced to one year of probation and a $20,000 fine.
32. United States v. Huntress, No. 1:13-cr-00199-WMS-JJM (W.D.N.Y. guilty plea entered Nov. 5, 2015).
• William Huntress and his companies, Acquest Transit LLC and Acquest Development LLC, were indicted for conspiracy, obstruction of justice, making false statements and the unpermitted fill of wetlands in connection with the purchase and fill of property allegedly known to contain wetlands, alleged false statements to EPA indicating such property was solely used for agricultural purposes and criminal contempt.
• Acquest Transit LLC pleaded guilty to one count of criminal contempt. Charges remain pending against co-defendants.
33. United States v. Clark, No. 5:13-cr-50085-JLV (D.S.D. sentence entered June 22, 2015).
• Sean Clark and Devorah Lopez, doing business as Glencoe Camp Resort II LLC (“Glencoe”), were indicted for the knowing unpermitted discharge of pollutants into Bear Butte Creek between 2011 and 2012 in connection with the alleged discharge of dirt into the waterway.
• Clark pleaded guilty to knowing discharge and was sentenced to four years of probation, a $250,000 fine jointly and severally with codefendant Glencoe and 100 hours of community service. The fine includes an $83,000 community service payment to Meade County, S.D., and an $83,000 community service payment to the South Dakota Department of Environmental and Natural Resources. Clark is also required to implement an Environmental Compliance Plan for Glencoe.
• A superseding indictment charged Glencoe with negligent discharge of pollutants, to which the company pleaded guilty and was sentenced to four years of probation and is required to implement an Environmental Compliance Plan.
• Charges against Lopez were dismissed.
34. United States v. Lupo, No. 4:13-cr-00113-DCN (N.D. Ohio sentence entered May 28, 2015).
• An oilfield waste disposal services company, Hardrock Excavating LLC, the company’s owner Ben Lupo and the company’s employee Michael Guesman were indicted for the knowing unpermitted discharge of a pollutant for the release of wastewater containing brine and drilling mud from a tank into a storm drain on several occasions between November 2012 and January 2013.
• Hardrock Excavating LLC pleaded guilty and was sentenced to two years of probation, a $75,000 fine and community service payments of $12,500 each to the Friends of the Mahoning River and the Midwest Environmental Enforcement Association.
• Guesman previously pleaded guilty to the charge and was sentenced to three years of probation and 300 hours of community service.
• Lupo previously pleaded guilty to the charge and was sentenced to 28 months in prison and a $25,000 fine.
35. United States v. Tap Root Dairy, LLC, No. 1:13-mj-00061-DLH (W.D.N.C. sentence entered Apr. 30, 2015).
• Tap Root Dairy LLC (“Tap Root”) and William Franklin Johnston pleaded guilty to the unpermitted discharge of animal waste from a secondary lagoon into the French Broad River after Tap Root failed to maintain sufficient freeboard levels in the secondary lagoon to prevent runoff into the river.
• Tap Root was sentenced to four years of probation, a $40,000 community service payment to the Southern Environmental Enforcement Network and $40,000 to the French Broad Riverkeeper. The company is also required to implement an Environmental Compliance Plan and to run a full-page apology in two newspapers.
• Johnston was sentenced to four years of probation with six months of home confinement and a $15,000 fine.
36. United States v. Heinen, No. 5:13-cr-40135-EFM (D. Kan. sentence entered Apr. 17, 2015).
• Rodney Heinen was indicted on two counts of knowingly discharging dredged materials from a point source on his properties in Jackson County, Ky., into tributaries of North Cedar Creek between January 2012 and November 2013. On Jan. 17, 2012 Heinen was notified that the streams on his land were “waters of the U.S.” Upon inspection in May 2013, the Army Corps discovered stream fill, channelization, wetland fill, clearing of forested wetlands and installation of tile drains for wetland draining on his properties.
• Heinen pleaded guilty to one count and was sentenced to five years of probation, a $20,000 fine and was ordered to restore the properties in question.
37. United States v. Silvers, No. 2:13-mj-00018-MR-DLH (W.D.N.C. sentence entered Mar. 10, 2015).
• Robbinsville, N.C., Maintenance Department employees, Bobby Silvers and John Carver III, were each indicted on one count of negligently discharging alum sludge from a water treatment plant into Long Creek.
• Carver and Silvers each pleaded guilty and were sentenced to two years of probation and ordered to pay $3,147.99 restitution to the Town of Robinsville jointly and severally.
38. United States v. C&R Plating, No. 5:14-cr-40035-DDC (D. Kan. sentence entered July 6, 2015).
• C&R Plating and employee Kevin L. Cline were indicted on 20 counts of knowingly discharging industrial wastes from their metal finishing business into the publicly owned sewer system of Minneapolis, Kansas, between Aug. 6, 2013, and October 2, 2013. Defendants were also indicted on one count of making a false statement to the Kansas Department of Health and Environment.
• Both defendants pleaded guilty to one count of knowingly discharging pollutants into the sewer system.
• C&R Plating was fined $10,000 and sentenced to three years of supervised probation and was ordered to pay $281,503.30 in restitution to the city of Minneapolis, Kansas, jointly and severally with Cline.
• Cline was sentenced to four months in prison followed by one year of supervised release, including six months of home detention.
39. United States v. Gateway Extrusion, LTD, No. 4:14-cr-00381-CEJ (E.D. Mo. sentence entered Mar. 2, 2015).
• Gateway Extrusions LTD, formerly, Crystal Extrusions Systems (”CES”), was indicted on one count of negligently discharging caustic sodium hydroxide and aluminum into Flat Creek from a storage pit at the company’s aluminum window part manufacturing facility. On Aug. 7, 2013, a CES employee left a hose running overnight near the pit, causing the pit to overflow and run into Flat Creek.
• The defendant pleaded guilty and was sentenced to a fine of $75,000 and two years of probation.
40. United States v. Wolf, No. 5:14-cr-04091-MWB (N.D. Iowa sentence entered July 15, 2015).
• Michael Wolf, a manager at Sioux-Preme pork processing facility in Sioux Center, Iowa, was indicted on one count of knowingly violating the facility’s NPDES permit by dumping water with fecal coliform levels in excess of permit limits from a treatment lagoon into a tributary of the West Branch of the Floyd River.
• Wolf pleaded guilty and was sentenced to 1 year of probation, including six weekends of periodic custody.
41. United States v. Dickson, No. 2:15-cr-00002-PMD (D.S.C. sentence entered Sept. 3, 2015).
• Albert Dickson, a licensed asbestos remediator who was contracted to remove asbestos from the Rives Federal Building, was indicted for false statements for telling the South Carolina Department of Health and Environmental Control that a water filtration system was installed in the building and was operational before mid-June 2011, despite the fact that the system had not been installed and was not available to subcontractors.
• Dickson pleaded guilty and was sentenced to two years of probation.
42. United States v. Addington, No. 2:15-cr-00013-HGB-JCW (E.D. La. sentence entered May 20, 2015).
• Race Addington, a well site supervisor on an offshore oil & gas platform, was indicted on two counts of false statements to the Bureau of Safety and Environmental Enforcement (BSEE) for providing a mock blowout preventer pressure chart to falsely show that the blowout preventer had been tested.
• Addington pleaded guilty to both counts, and was sentenced to one year of probation.
43. United States v. Duke Energy Bus. Servs. LLC, No. 5:15-cr-00062-H (E.D.N.C. sentence entered May 14, 2015); United States v. Duke Energy Bus. Servs. LLC, et. al., No. 5:15-cr-00067-H (E.D.N.C. sentence entered May 14, 2015); United States v. Duke Energy Bus. Servs. LLC, No. 5:15-cr-00068-H (E.D.N.C. sentence entered May 14, 2015).
• Duke Energy Business Services LLC and several subsidiaries were indicted for negligently discharging coal ash and wastewater from a coal ash pond at their electric plant in Goldsboro, North Carolina, into the Neuse River.
• Duke pleaded guilty to and was fined $14.4 million, sentenced to five years of probation and was ordered to make a $10.5 million community service payment to the National Fish and Wildlife Foundation, along with at $5 million payment to an authorized wetlands mitigation bank or trust in the Broad River Basin, French Broad River Basin, Cape Fear River Basin, Catawba River Basin, Dan River Basin, Tadkin-Pee Dee River Basin, Neuse River Basin, Lumber River Basin and Roanoke River Basin. The companies were also required to implement an Environmental Compliance Plan and make a public apology.
44. United States v. Butterworth, No. 3:15-cr-00033 (M.D. Tenn. sentence entered Dec. 3, 2015).
• Southern Grease Co. Inc. (“Southern Grease), owner George Butterworth and general manager Gerald McGee were indicted for conspiring to violate the CWA, knowing discharge in violation of the CWA, false statements to EPA and mail fraud for a scheme to collect waste grease from companies and discharge it into the publicly owned treatment works without a permit.
• All defendants pleaded guilty to the charges. McGee was sentenced to one month in prison, to years of probation and $48,380.64 in restitution to the water treatment plants jointly and severally with co-defendants.

45. United States v. Wegener, No. 4:15-cr-00082-REL (W.D. Mo. sentence entered Aug. 20, 2015).
• William Wegener, a chiller equipment specialist at the University of Missouri, Columbia Campus, was indicted for negligently discharging 25 gallons of sulfuric acid from a storage tank into a storm sewer that ultimately led to Flat Branch Creek. While decommissioning a cooling unit on campus, Wegener released the sulfuric acid into a nearby drain.
• Wegener pleaded guilty and was sentenced to 1 year of probation and a fine of $7,500.
46. United States v. Ozark Mountain Techs., No. 4:15-cr-00177-TCM (E.D. Mo. sentence entered Apr. 24, 2015).
• Ozark Mountain Technologies (“OMT”), operator of a metal finishing and anodizing facility in Cuba, Missouri, was indicted for negligently discharging acidic wastewater from the facility’s wastewater pits into the city of Cuba’s wastewater system. The discharges occurred when monitors and alarms installed on the valves from the wastewater pits never triggered due to improper sealing.
• OMT pleaded guilty and was fined $693,750
47. United States v. S. Cal. Plating Co., No. 3:15-cr-00946-H (S.D. Cal. sentence entered Aug. 3, 2015).
• Southern California Plating Co., which operates a metal finishing plant, was indicted for knowingly violating a pretreatment standard by discharging wastewater with levels of nickel and zinc in excess of permit limits.
• The company pleaded guilty and was sentenced to 1 year probation, fined $50,000 and ordered to pay $8,266 in restitution to the County of San Diego, Department of Environmental Health Services, and $28,130.53 to San Diego Public Utilities Industrial Waste Control Program.
48. United States v. Wiegardt Bros., No. 3:15-cr-05300-DWC (W.D. Wash. sentence entered Sept. 25, 2015).
• Wiegardt Bros. Inc. (“WBI”), and Frederic Weigardt, owner and operator of an oyster-processing facility, were indicted for negligently violating the CWA for taking samples and measurements that were not representative of the volume and nature of wastewater being discharged from their facility into Willapa Bay, Washington, due to an incorrect testing location.
• Weigardt, had become aware that the general manager of the facility was testing from the incorrect location, and did not instruct him to change procedure, leading to discharges with fecal coliform counts above the NPDES permit limit for up to ten years. In August of 2014, WBI disclosed the NPDES violations to the Washington State Department of Ecology.
• Both defendants pleaded guilty WBI was sentenced to 3 years of probation, ordered to make an organizational community service payment of $75,000 to the National Fish and Wildlife Foundation and was fined $100,000 jointly and severally with co-defendant. Weigardt was sentenced to 1 year probation and 75 hours of community service.
49. United States v. Ranslow, No. 3:15-cr-05025-MDH (W.D. Mo. indictment entered June 16, 2015).
• Charles Ranslow, a wastewater operator at the City of Granby wastewater treatment facility in Newton County, Missouri, was indicted on three counts of false statements to the Missouri Department of Natural Resources for submitting sampling results falsely represented to be indicative of the Granby Wastewater Treatment Facility.
• Trial is currently scheduled to begin March 21, 2016.
50. United States v. Amezcua, No. 3:15-cr-01645-LAB (S.D. Cal. sentence entered Nov. 30, 2015).
• Victor Amezcua was indicted for knowingly discharging domestic sewage into waters of the United States.
• Amezcua pleaded guilty and was sentenced to 5 years of probation, 240 hours of community service, a $2,500 fine and $3,335 in restitution to Essential Support Services.
51. United States v. Koloski, No. 3:15-cr-05320-BHS (W.D. Wash. sentence entered Nov. 16, 2015).
• Jon Koloski, a homeowner in Potlach, Washington, was indicted for false statements made to the U.S. Army Corps of Engineers about constructing a bulkhead into Hood Canal, where his property was located.
• Koloski pleaded guilty and was sentenced to one year probation.
52. United States v. Osborn, No. 6:15-cr-00142-RTH-PJH (W.D. La. sentence entered July 15, 2015).
• Brian Osborn, a manager on Gulfport Energy Corporation’s West Cote Blanche Bay platform, was indicted for negligently discharging wastewater into West Cote Blanche Bay. Osborn allowed for excess production water to be pumped into a caisson, which discharged directly into the ocean.
• Osborn pleaded guilty and was sentenced to one day in custody, 1 year of probation and 200 hours of community service.
53. United States v. Marietta Indus. Enters., Inc., No. 2:15-cr-00166-EAS (S.D. Ohio sentence entered Dec. 10, 2015).
• Marietta Industrial Enterprises, Inc. (“MIE”), a mineral processing company who owns and operates numerous river barges, was indicted for negligently discharging oil from a barge into the Ohio River.
• MIE pleaded guilty and was sentenced to one year of probation, ordered to pay $1,000 to a local charity and fined $35,000.
54. United States v. Black Elk Energy Offshore Operations LLC, No. 2:15-cr-00197-JTM-KWR (E.D. La. indictment entered Nov. 19, 2015).
• Black Elk Energy Offshore Operations LLC, (“Black Elk”) owner and operator of the oil platform West Delta 32, and Grand Isle Shipyards, Inc., (“GIS”) a construction contractor on the platform, were indicted for three counts of involuntary manslaughter, 8 counts of violation of the Outer Continental Shelf Lands Act (“OCSLA”) and one count of negligent violation of the CWA for an explosion and fire on the platform on November 16, 2012 that killed three contractors of GIS. The explosion occurred when the contractors began welding near a segment of production piping that had not been decontaminated causing the hydrocarbon vapors inside to ignite.
• Wood Group PSN, Inc., (“Wood Group”) who Black Elk contracted with to operate the platform, and Christopher Srubar, a Wood Group employee responsible for overseeing safety and production on the platform, were indicted on 6 counts of violation of OCSLA and one count of negligent discharge in violation of the CWA.
• Curtis Dantin, a construction superintendent for GIS who was responsible for supervising the work of the contract employees, was charged with 3 counts of violation of OCSLA and one count of negligent discharge in violation of the CWA.
• Don Moss, an employee of an engineering firm responsible for coordinating the construction project, was charged with 8 counts of violation of OCSLA and one count of negligent discharge in violation of the CWA.
55. United States v. Energy Res. Tech. GOM, LLC, No. 2:15-cr-00281-ILRL-DEK (E.D. La. indictment entered Nov. 30, 2015).
• Energy Resource Technology GOM, LLC (ERT), an oil and gas platform operator, was indicted for violating the Outer Continental Shelf Lands Act and the Clean Water Act by tampering with their monthly monitoring systems and knowingly discharging waste water into the Gulf of Mexico from their oil production facility, Ship Shoal 225.
56. United States v. Gulf Coast Asphalt Co., No. 1:15-cr-00154-KD (S.D. Ala. sentence entered July 29, 2015).
• Gulf Coast Asphalt Co. LLC, who operates a liquid asphalt and fuel oil storage terminal in Mobile, Alabama, was indicted for negligently discharging fuel oil into the Mobile River and for violating the Migratory Bird Treaty Act.
• Gulf Coast pleaded guilty and was sentenced to one year of probation, a $667,000 fine and $333,000 community service payment to the National Fish and Wildlife Foundation. Gulf Coast was also ordered to pay $292,000 in restitution to the Alabama Department of Conservation and Natural Resources.
57. United States v. Miss. Phosphates Corp., No. 1:15-cr-00058-LG-RHW (S.D. Miss. sentence entered Aug. 19, 2015).
• Mississippi Phosphates Corporation (“MPC”), owner and operator of a fertilizer manufacturing facility, was indicted for knowingly discharging acidic wastewater into Bayou Casotte in amounts exceeding its permit limits on at least two occasions via an open storm water culvert. One such occasion resulted in the death of over 47,000 fish and the closing of Bayou Casotte.
• MPC pleaded guilty and was ordered to deed a 320-acre parcel adjacent to its facility in Jackson County, Mississippi to the Mississippi Department of Marine Resources to become part of the Grand Bay National Estuarine Research Reserve.
58. United States v. Cooper Marine & Timberland Corp., No. 1:15-cr-00181-WS (S.D. Ala. sentence entered Aug. 18, 2015).
• Cooper Marine & Timberland Corp., which owns and operates an export terminal dock on Blakely Island, was indicted for negligently discharging debris, including limestone, into Mobile Bay. After rain events, employees were tasked with clearing water off of the dock and into the Bay, and pushed any debris off as well.
• Cooper Marine pleaded guilty and was sentenced to 5 years of probation and a fine of $200,000. Cooper Marine was also ordered to have a third party auditor review its environmental compliance plan.
59. United States v. Garrity, No. 1:15-cr-00156-SM (D.N.H. guilty plea entered Sept. 9, 2015).
• Christopher Garrity, a yard supervisor for scrap metal recycler Grimmel Industries, was indicted for discharging wastewater into a storm drain that leads to the Piscataqua River.
• Garrity would spray scrap metal piles with water to suppress dust, the resulting water would be flushed into a drain, and when tested contained aluminum, copper, iron, lead, mercury, zinc and PCB 1242. The wastewater also exceeded limits for chemical oxygen demand and suspended solids.
• Garrity pleaded guilty and was sentenced to one year probation and fined $5,000
60. United States v. Walter Oil & Gas Corp., No. 2:15-cr-00245-NJB-JCW (E.D. La. indictment entered Oct. 9, 2015).
• Walter Oil & Gas Corporation, an offshore oil platform operator, was indicted for failing to report hazardous discharge into the Gulf of Mexico.
• Walter pleaded guilty to the charge and is currently scheduled to be sentenced on March 10, 2016.
61. United States v. Obermeyer, No. 4:15-cr-00277-BP (W.D. Mo. indictment entered Aug. 26, 2015).
• David Obermeyer, an earth moving equipment operator at the River Bend Development in Jackson County, Missouri, was indicted for knowingly violating the Clean Water Act by filling in wetlands without a permit.
• Trial is scheduled for May 31, 2016
62. United States v. Neel, No. 2:15-cr-00244-DLR (D. Ariz. sentence entered Nov. 19, 2015).
• A-1 Restaurant Services and Service Manager, Patrick Neel, were indicted for conspiracy to violate the CWA, by dumping grease trap and interceptor wastewater into interceptors for which they did not have permits. The interceptors were filled to the point of overflow, which caused the waste water to be dumped into the local POTW. Violations occurred at least 11 times between 2010 and 2011.
• A-1 Restaurant Services pleaded guilty and was be sentenced to 3 years of probation and a fine of $200,000
63. United States v. Crafton, No. 2:15-cr-00358-RK (E.D. Pa. indictment entered Aug. 11, 2015). United States v. Fritz, No. 2:15-cr-00412-RK (E.D. Pa. indictment entered Sept. 9, 2015); United States v. Wetzel, No. 2:15-cr-00413-RK (E.D. Pa. indictment entered Sept. 9, 2015). United States v. MAB Envtl. Servs., Inc., No. 2:15-cr-00595-RK (E.D. Pa. indictment entered Dec. 15, 2015).
• James Crafton, James Wetzel and Stephen Fritz, sewage treatment plant and water treatment plant operators, were indicted for knowingly violating the CWA by falsifying and tampering with monitoring data and reports for a wastewater treatment plant at the Buckingham Valley Nursing Center in Lebanon, Pennsylvania.
• MAB Environmental Services, Inc., and part-owner and president Matthew Brozena, who employed the above defendants, were indicted for conspiring to violate the CWA, for organizing the above referenced falsifying and tampering.

Safe Drinking Water Act (“SDWA”)

64. United States v. Glamis Dunes Storage, Inc., No. 3:14-cr-01766-WQH (S.D. Cal. sentence entered May 18, 2015).
• Glamis Dunes Storage Inc., a company that operated a storage yard for RVs, and owner, Michael Jay Mamelli Sr., each pleaded guilty to one count of unlawful injection of pollutants in violation of the SDWA for pumping sewage and gray water from an RV holding tank on the property into a leach field and underground septic tanks without a permit. The defendants continued to pump the waste into the underground septic tanks and the leach field after receiving a cease and desist order from the county.
• The company was sentenced to five years of probation, an $8,000 fine and $423 in restitution to the government jointly and severally with Mamelli.
• Mamelli was sentenced to time served and one year of probation with electronic monitoring.
65. United States v. Marcel, No. 3:13-cr-00078-JJB-SCR (M.D. La. sentence entered Jan. 29, 2015); United States v. Robicheaux, No. 3:13-cr-00079-JJB-SCR (M.D. La. sentence entered Jan. 29, 2015); United States v. RAM Envtl. Servs., Inc., No. 3:13-cr-00080-JJB-RLB (M.D. La. sentence entered Jan. 29, 2015).
• The industrial wastewater disposal service company RAM Environmental Services Inc. (“RAM”) and its employees, Raymond Marcel Jr. and Cyril Robicheaux, pleaded guilty to conspiracy to violate the SDWA for injecting industrial wastewater into a Class II injection well (which does not accept industrial wastewater) and concealing the illegal disposal with falsified documents.
• Marcel was sentenced to two years of probation, a $1,500 fine and $114,969.13 in restitution to FAS Environmental Services jointly and severally with co-defendants.
• Robicheaux was sentenced to two years of probation and a $5,000 fine.
• RAM was sentenced to three years of probation and a $50,000 fine.

66. United States v. Halek, No. 1:15-cr-00130-DLH (D.N.D. indictment entered Aug. 6, 2015).
• Jason Halek, was indicted on one count for conspiracy, 3 counts of making false statements to the North Dakota Industrial Commission (“NDIC”) and EPA, 4 counts of violating the Safe Drinking Water Act for: willfully injecting fluids into a well without the required mechanical integrity test; willfully injecting fluids without an underground injection control program permit; willfully injecting fluids into a well without providing written notice of the injection; and equipping the above referenced well with a packer that was at a depth not approved by the NDIC.
67. United States v. Kraus, No. 1:15-cr-00342 (N.D. Ill. indictment entered June 10, 2015).
• Philip Kraus, a water operator for the Dolton, Illinois drinking water system, was indicted on six counts of falsifying testing data for the Dolton water system to the Illinois EPA (“IEPA”).
• Kraus knowingly listed false testing locations when submitting required water samples to a laboratory for testing. The results of these tests were then given to IEPA, and falsely showed no coliform contamination.
68. United States v. JACAM Mfg., LLC, No. 6:15-cr-10173-EFM (D. Kan. guilty plea entered Dec. 22, 2015).
• JACAM Manufacturing, LLC., a specialty chemical retailer for oil and gas production and industrial markets, was indicted on one count of violating the SDWA and one count of violating the Resource Conservation and Recovery Act for knowingly disposing of hazardous waste into Matlock Lease Well #2, a salt water disposal well, without a permit.
• JACAM pleaded guilty to both charges.

Clean Air Act—Asbestos

69. United States v. Firm Build, Inc., No. 1:10-cr-00285-LJO (E.D. Cal. sentence entered Jan. 7, 2015); United States v. Cuellar, No. 15-10110 (9th Cir. appeal pending Mar. 10, 2015).
• Joseph Cuellar, an administrative manager for Firm Build, Inc., Patrick Bowman, president of the company, and Rudolph Buendia, III, a construction project site supervisor for the company, each pleaded guilty in 2013 to one count of violation of the asbestos work practice standards for their roles in failing to properly dispose of asbestos waste material that was removed by high school students employed by the company.
• Following denial of Cuellar’s motion to withdraw his guilty plea, he was sentenced to 27 months in prison, followed by 3 years of probation and $1,801,832.50 in restitution to the employees jointly and severally with co-defendants. Cuellar appealed the denial of the motion to withdraw his guilty plea and the subsequent sentence.
• Bowman was previously sentenced to 27 months in prison and 3 years of probation, and Buendia was previously sentenced to 24 months in prison and 3 years of probation.
• The government previously dismissed charges against the company.

70. United States v. Smith, No. 2:11-cr-00082-JRG-HBG (E.D. Tenn. sentence entered Jan. 21, 2015); 15-5181 (6th Cir. appeal pending Feb. 23, 2015).
• Newell Smith, Armida Di Santi, Milto Di Santi, Eric Gruenberg and Mark Sawyer each pleaded guilty to one count of conspiracy to violate the Clean Air Act asbestos work practice standards for salvage and demolition operations that failed to remove all asbestos containing material from a facility, failed to wet-remove asbestos and failed to properly handle asbestos when it was lowered to a disposal location.
• Smith was sentenced to 37 months in prison, two years of probation and $10.4 million in restitution to U.S. EPA jointly and severally with codefendants.
• Armida and Milto Di Santi were each sentenced to six months in prison followed by two years of probation,
• Gruenberg was sentenced to 28 months in prison and two years of probation.
• Sawyer was sentenced to five years in prison followed by two years of probation. He has appealed his sentence.
71. United States v. Bradley, No. 1:13-cr-20622-TLL-PTM (E.D. Mich. sentence entered Mar. 12, 2015).
• Roy Bradley Sr. and Gerald Essex were each indicted on four counts of violation of the CAA asbestos work practice standards for renovation activities that allegedly failed to remove all asbestos-containing material before demolition, allegedly failed to properly handle and dispose of asbestos material and allegedly failed to have a person on site trained in asbestos abatement practices.
• Co-defendant Rodolfo Rodriguez was indicted on one count of making false statements during his grand jury testimony regarding the activities above.
• Essex was acquitted of all charges but Bradley was convicted on all counts and sentenced to five years in prison, two years of probation and $14,600 in restitution to four individuals.
• Rodriguez previously pleaded guilty and was sentenced to 21 months in prison followed by 12 months of probation.
72. United States v. Bakshi, No. 2:14-cr-00456-PD (E.D. Pa. sentence entered July 21, 2015).
• Ronen Bakshi, a licensed Air Project Inspector, was indicted on one count of obstruction of justice and one count of wire fraud for allegedly falsifying air sampling data from a church site where he was responsible for overseeing asbestos abatement and entries in a log book describing work he witnessed and billed a non-profit corporation for.
• Bakshi pleaded guilty and was sentenced to 12 months and 1 day in prison, 1 year of probation and a $30,000 fine.
73. United States v. Gattarello, No. 1:14-cr-00353-DCN (N.D. Ohio guilty plea entered Mar. 27, 2015).
• Christopher Gattarello, owner of a garbage hauling business, and Robert Shaw Sr., an individual responsible for financial transactions of the company, were indicted for their role in an alleged scheme to defraud a company by selling fake accounts receivable.
• Gattarello and William Jackson Jr., owner of a demolition company for which Gattarello’s company hauled debris, were charged with violation of the CAA for allegedly failing to remove asbestos before conducting demolition activities and failing to properly dispose of asbestos-containing debris.
• In a sealed agreement, Gattarello pleaded guilty. Charges remain pending against his co-defendants.
74. United States v. Thrower, No. 3:14-cr-03485-H (S.D. Cal. sentence entered Oct. 23, 2015).
• Lachele Rene Thrower pleaded guilty to one count of false statements for falsely certifying to the EPA that individuals had received asbestos abatement training.
• Thrower was sentenced to three years of probation and $25,017.06 in restitution to Design for Health.
75. United States v. Biello, No. 2:14-cr-00158-PD (E.D. Pa. sentence entered Mar. 9, 2015).
• Anthony Biello, II pleaded guilty to one count of knowing violation of the CAA for falsifying a 10-day notification of intent to remove asbestos-containing material from a church and providing the falsified document to the demolition contractor.
• Biello was sentenced to twelve months and one day in prison followed by two years of probation, during which he is prohibited from being an asbestos contractor, and a $100 fine.

76. United States v. Wolf, No. 5:14-cr-04055-MWB (N.D. Iowa sentence entered July 21, 2015).
• Larry Wolf, owner and operator of a building formerly used as a YMCA, was indicted for 11 counts of violation of asbestos work practice standards for improper handling and disposal of asbestos containing material from within the building.
• Wolf pleaded guilty to one count, and was sentenced to 12 months and 1 day in a medical facility.
77. United States v. Hammond, No. 1:14-cr-00216-RJJ (W.D. Mich. sentence entered Oct. 28, 2015); United States v. LaBrie, No. 1:14-cr-00234-GJQ (W.D. Mich. sentence entered Oct. 27, 2015).
• Cory Lee Hammond and Robert Michael White, supervisors of a salvage operation at a former Consumers Energy power generation facility in Kalamazoo County, Michigan were charged with illegal stripping and removal of asbestos containing material from an industrial powerhouse building on the property. They were alleged to have failed to wet the asbestos containing material, failed to properly label and dispose of the material. They were also charged with structuring financial transactions to avoid currency reporting requirements.
• Hammond and White each pleaded guilty to one count and were sentenced to 3 years of probation, $154,604 in restitution to EPA Superfund in St. Louis, Missouri.
• LuAnne LaBrie, owner and operator of the facility pleaded guilty to failing to notify the EPA and the Michigan Department of Environmental Quality of the asbestos removal.
• LaBrie was sentenced to 3 years of probation and $897,665 in restitution: $721,484, 80 percent of each payment, was ordered to the US EPA Superfund in St. Louis, Mo., and the remaining 20 percent of each payment, $175,841, was ordered to the IRS.
78. United States v. Brown, No. 2:15-cr-20028-RHC-EAS (E.D. Mich. sentence entered June 4, 2015).
• Brown was charged with one count of negligent endangerment for negligently releasing asbestos into ambient air during an asbestos removal operation at Oliver Wendell Holmes Elementary School in Detroit, Michigan.
• Brown pleaded guilty and was sentenced to 2 years of probation including 6 months community confinement and must prove that he is paying a $20,000 fine imposed by the state of Michigan.
79. United States v. Akram, No. 4:15-cr-00045-RWS-SPM (E.D. Mo. sentence entered Aug. 12, 2015).
• David Mohammad Akram was charged with three counts of violation of asbestos regulations for failing to notify EPA of asbestos removal and improper handling and disposal of asbestos containing material. Akram hired a work crew, that was not trained or licensed, to remove asbestos-containing pipes from his newly purchased building in Saint Louis, Missouri.
• Akram pleaded down to one count of negligent endangerment and was sentenced to 3 years of probation and a $30,000 fine.
80. United States v. Wright, No. 4:15-cr-00145-JAR (E.D. Mo. sentence entered Dec. 10, 2015).
• Donald T. Wright, owner of a building in Owensville, Missouri where asbestos removal occurred, was charged with failing to notify EPA of asbestos removal actions and improper handling and disposal of asbestos-containing material.
• Wright pleaded guilty to two counts and was sentenced to 3 years of probation and a $2,000 fine.
81. United States v. Aireko Constr. Co., No. 3:15-cr-00448-JAF (D.P.R. indictment entered July 13, 2015).
• Aireko Construction Co., a general construction company, was indicted on 6 felony counts of asbestos work practice violations for improper handling and disposal of asbestos, failure to report an asbestos release and failure to have an authorized representative trained in asbestos abatement present during renovation and demolition activities.
82. United States v. Cheery Way, Inc., No. 2:15-cr-00290-SM-MBN (E.D. La. indictment entered Dec. 4, 2015).
• A California company owned by Elaine Chiu purchased the Mississippi Queen Riverboat in order to demolish it and sell it for scrap metal to her business partners in China. Prior to demolition, Chiu was made aware that the vessel may contain asbestos. Cheery Way, Inc. (“Cheery Way”), another company owned by Chiu, was designated to demolish the vessel. Cheery Way hired an independent demolition contractor to demolish the boat. This contractor was not licensed to remove asbestos, and Chiu told the contractor that the vessel “might” have asbestos. Neither she, nor any of the employees or agents of Cheery Way informed the demolition contractors that an asbestos sampling had been completed. The demolition contractor hired said they believed there was no asbestos in the vessel.
• Both Chiu and Cheery Way were indicted for one count of failing to notify EPA before the demolition of an asbestos containing facility in Louisiana.
83. United States v. Weekley, No. 3:14-cr-00011-TAV-HBG (E.D. Tenn. sentence entered Jan. 27, 2015).
• David W. Weekley, operator of Environmental Consulting and Testing, LLC (“ECT”), devised a scheme to defraud others and obtain money from them by means of false pretenses, representations and promises through his company. He offered to prepare reports of suspected asbestos containing material for businesses engaged in the demolition and/or renovation of buildings that potentially contained the material, but he did not in fact test the samples that he was hired analyze for the presence of asbestos.
• As a result of his fraudulent business practices, Weekley caused his clients to make false material statements to regulatory agencies that suspected asbestos-containing material had been tested and analyzed, when they had not been.
• Weekley pleaded guilty to one count and was sentenced to 3 years of probation and a $500 fine.

Clean Air Act (“CAA”)

84. United States v. Jariv, No. 2:14-cr-00006-APG-GWF (D. Nev. sentence entered Aug. 5, 2015); United States v. Jariv, No. 2:14-cr-00015-JCM-VCF (D. Nev. sentence entered Sept. 25, 2015).
• James Jariv and Natan Stoliar were indicted for conspiracy, money laundering, wire fraud, false statements under the CAA and obstruction of justice for operating a number of businesses engaged in a scheme to sell RIN credits without producing the required biodiesel between 2009 and 2013.
• Alexander Jariv was charged under separate indictment with conspiracy and pleaded guilty to the charge. He was sentenced to 30 months in prison and 3 years of probation.
• Stoliar pleaded guilty to one count of conspiracy, one count of money laundering, two counts of wire fraud and one count false statements under the CAA for his role and was sentenced to 24 months in prison, followed by 3 years of probation, and $6,345,830.91 in restitution jointly and severally with codefendants.
• James Jariv pleaded guilty to one count of conspiracy, two counts of wire fraud, one count of false statements under the CAA and one count of money laundering and was sentenced to 120 months in prison and 3 years of probation.
85. United States v. Ducey, No. 1:13-cr-00189-SEB-TAB (S.D. Ind. guilty plea entered May 11, 2015); United States v. Wilson, No. 1:13-cr-00190-SEB-TAB (S.D. Ind. guilty plea entered Apr. 20, 2015); United States v. Carmichael, No. 1:13-cr-00194-SEB-TAB (S.D. Ind. sentence entered Dec. 18, 2015).
• Craig Ducey, Chad Ducey, Chris Ducey, Joseph Furando, Evelyn Katirina Pattison, and Jeffrey Wilson, and their companies, E-Biofuels, LLC (“E-Biofuels”), Caravan Trading Co., and Cima Green, LLC were indicted for conspiring to sell biofuel they fraudulently claimed to have produced. The defendants used the RIN credits associated with biofuel produced by one company and resold the RIN credits under the name of another company.
• This scheme is alleged to have caused losses of $100 million.
• Carmichael pleaded guilty and was sentenced to 5 years in prison, 3 years of probation and $56,135,811 in restitution to the defrauded companies.
• Pattison previously pleaded guilty to the charge of conspiracy on July 29, 2014.
• All other defendants pleaded guilty to a variety of charges for their role.

86. United States v. Tier NY, LLC, No. 1:14-mj-02096-HBS (W.D.N.Y. sentence entered Feb. 5, 2015).
• Tier NY LLC pleaded guilty to negligent endangerment for the release of hydrochloric acid gas from the company’s facility while cleaning RCRA-empty vessels in June 2013.
• The company was sentenced to 2 years of probation, a $25,000 fine and is required to implement an environmental training program.
87. United States v. Calumite Co., No. 2:14-cr-00086-JTM-PRC (N.D. Ind. sentence entered June 26, 2015).
• Calumite Co. LLC pleaded guilty to two counts of false statements on records required under the CAA for falsely reporting that the differential pressure gauge on the baghouse produced readings in the normal range when the gauge was actually broken, and for failing to report the broken gauge.

The company was sentenced to two years of probation and a $325,000 fine.

88. United States v. Rivkin, No. 4:14-cr-00250 (S.D. Tex. guilty plea entered June 15, 2015).
• Philip Joseph Rivkin was indicted for mail fraud, wire fraud, false statements under the CAA and money-laundering for the operation of several businesses that allegedly engaged in fraudulent RIN transactions with renewable fuels that were never manufactured.
• Rivkin pleaded guilty to one count of wire fraud and one count of false statements under the CAA.

89. United States v. Sepehrnia, No. 2:14-cr-00633-SVW-DNG (C.D. Cal. sentence entered June 9, 2015).
• Milad Sepehrnia, owner and operator of Quality Smog, and Aaron Palacios a smog technician for the company were indicted for conspiracy and for making false statements on records required under the CAA for a scheme to falsely certify that vehicles passed required emissions testing. Palacios was also charged with false statements for telling EPA agents that he had never clean-scanned a vehicle.
• Sepehrnia pleaded guilty to conspiracy and was sentenced to 3 months in prison followed by 2 years of probation.
• Palacios entered a plea of guilty to conspiracy but entered a pre-trial diversion, which will allow the withdrawal of the plea and dismissal of the charges upon successful completion of the program.
90. United States v. Paterson, No. 3:15-cr-30001-MGM (D. Mass. guilty plea entered Feb. 5, 2015); United States v. Baker, No. 3:15-cr-30002-MGM (D. Mass. guilty plea entered Feb. 5, 2015).
• Scott Paterson, an instrument and control technician at Berkshire Power Plant, pleaded guilty to conspiracy and 12 counts of tampering with a monitoring method for adjusting the continuous emissions monitoring system (“CEMS”) at the plant to conceal the fact that plant emissions might be exceeding emissions limits.
• Frederick H. Baker, Operations and Maintenance Manager for the facility, pleaded guilty to conspiracy and 3 counts of tampering with a monitoring method for his role in instructing employees to manipulate the CEMS.
91. United States v. Daniels, No. 2:15-cr-00044-JLG (S.D. Ohio sentence entered Aug. 27, 2015).
• Dean Daniels, Brenda Daniels, Ricky Smith, and William Bradley each pleaded guilty to conspiracy for their role in a scheme to falsely pass of fuel that their company produced as biofuel and to sell the material to a fuel blender as biofuel.
• Dean Daniels also pleaded guilty to failing to properly placard hazardous materials in transportation for a shipment of highly acidic waste materials.
• Dean Daniels was sentenced to 63 months in prison, 3 years of probation, 100 hours of community service and $23,347,560.92 in restitution to those defrauded by the scheme jointly and severally with codefendants.
• Brenda Daniels was sentenced to a year and a day in prison followed by 3 years of probation including 100 hours of community service. Smith was sentenced to 41 months in prison and 3 years of probation. Bradley was sentenced to 51 months in prison, 3 years of probation and 100 hours of community service.
92. United States v. Mann Distribution, LLC, No. 1:15-cr-00029-ML-LDA (D.R.I. sentence entered May 6, 2015).
• Mann Distribution LLC pleaded guilty to knowingly failing to develop a Risk Management Plan as required by the CAA because the company stored more than the relevant quantity of hydrofluoric acid. The violation was discovered during an EPA inspection in June 2009, when the company was found to be storing 46,000 pounds of hydrofluoric acid.
• The company was sentenced to 3 years of probation and a $200,000 fine.
93. United States v. Dunham, No. 5:15-cr-00602-JLS (E.D. Pa. indictment entered Dec. 17, 2015).
• Ralph Tommaso, owner and President of Environmental Energy Recycling Corporation, LLC, and David M. Dunham, Jr. , owner and President of Smarter Fuel, were indicted for conspiracy, false statements, wire fraud, false tax filings and obstruction of justice for their alleged roles in fraudulently producing RINs and falsely claiming RIN fuel tax credits.

Resource Conservation and Recovery Act (“RCRA”)

94. United States v. Riley, No. 6:13-cr-10185-JTM (D. Kan. sentence entered Aug. 26, 2015).
• Sean Riley, Brian Riley, Jack Gibbons and Integrated Plastic Solutions, LLC (“IPS”) were indicted for violation of RCRA for storing hazardous waste, including paints, solvents and other chemicals, at the IPS facility. The violation is alleged to have continued from a May 2010 inspection through the execution of a search warrant in January 2013.
• Sean and Brian Riley each pleaded guilty to negligent endangerment in violation of the CAA.
• Sean Riley was sentenced to 18 months of probation and $118,807 in restitution to EPA jointly and severally with co-defendants.
• Brian Riley was sentenced to 36 months of probation.
• IPS pleaded guilty to illegal storage in violation of RCRA and was sentenced to 3 years of probation, a $10,000 fine and $97,612 in restitution to EPA jointly and severally with co-defendants.
• The government dismissed charges against Gibbons.
95. United States v. Stein, No. 8:13-cr-00726-HMH (D.S.C. sentence entered Jan. 21, 2015).
• Nancy M. Stein and American Screw & Rivet Corporation (“American Screw”) both pleaded guilty to one count of illegal storage of corrosive hazardous waste in violation of RCRA.
• Stein was sentenced to 60 months in prison followed by 3 years of probation and $1,720,623 in restitution to the EPA jointly and severally with American Screw.
• American Screw was sentenced to 5 years of probation.
96. United States v. Vanscyoc, No. 3:14-cr-30008-SEM-TSH (C.D. Ill. sentence entered June 8, 2015); United States v. Andrews, No. 3:13-cr-30080-SEM-TSH (C.D. Ill. sentence entered Aug. 10, 2015); United States v. Keebler No. 3:13-cr-30081-SEM-TSH (C.D. Ill. sentence entered Aug. 24, 2015).
• Jeremy Vanscyoc pleaded guilty to one count of conspiracy to commit mail fraud for submitting invoices to Illinois EPA for remediation activities under the state’s Leaking Underground Storage Tank Fund by getting vendors to accept lesser payment than the amount submitted on invoices to Illinois EPA.
• Vanscyoc was sentenced to one day in prison, 6 months home confinement, 2 years of probation and $262,032 in restitution to Illinois EPA.
• Eric M. Andrews, Joel C. Andrews, Michael R. Keebler, Duane T. Keebler and Joseph R. Keebler were charged with conspiracy and mail fraud for their roles.
• Michael Keebler pleaded guilty to two counts of conspiracy and was sentenced to 60 months in prison, 3 years of probation and $13,363,665.18 in restitution jointly and severally with Eric and Joel Andrews.
• Duane and Joseph Keebler each pleaded guilty to one count of conspiracy and were each sentenced to 24 months of probation including 3 months of home confinement and restitution of $179,438.10 jointly and severally.
97. United States v. Spatig, No. 4:12-cr-00302-WYD (D. Idaho sentence entered Oct. 8, 2015).
• Max Spatig was convicted of one count of illegal storage of hazardous for storing 3,478 containers of ignitable and corrosive waste from his concrete finishing business on property in Rexburg, Idaho.
• Spatig was sentenced to 46 months in prison, 3 years of probation and $498,652 in restitution to EPA for the costs of disposing of the waste.
98. United States v. Chem-Solv, Inc., No. 7:15-cr-00106-GEC (W.D. Va. guilty plea entered Dec. 22, 2015).
• Chem-Solv, Inc. pleaded guilty to one count of illegal transportation of hazardous waste and one count of illegal storage of hazardous waste for transporting ferric chloride in June 2012 and storing corrosive waste at the company’s chemical blending and distribution facility in Roanoke, Virginia.
99. United States v. Frisby, No. 5:15-cr-00310-GTS (N.D.N.Y. guilty plea entered Dec. 10, 2015).
• David L. Frisby pleaded guilty to one count of conspiracy to commit wire fraud for a scheme to defraud scrap metal brokers by falsifying receipts indicating that Frisby’s company D&L Heritage Enterprises, Inc. was authorized by EPA to export scrap metal. The scheme is alleged to have defrauded scrap metal brokers of $144,216.17.
100. United States v. Castillo, No. 1:15-cr-00360-JHR (D.N.J. indictment entered July 17, 2015).
• Miguel Castillo, CEO and President of two companies that manufactured chemical products or commercial laundry products was indicted on one count of illegal storage of hazardous waste and two counts of false statements for storing hazardous waste at the companies’ facility in Camden and for omitting information regarding his affiliation with the companies and providing false information in response to an information request from EPA.
101. United States v. Conrad, No. 3:15-cr-01685-JLS (S.D. Cal. sentence entered Sept. 23, 2015).
• Michael J. Conrad pleaded guilty to one count of false statements for submitting false documents to EPA’s Suspension and Debarment Office on behalf of his company Asgard Associates. The company had previously been convicted of violations of illegal storage of hazardous waste.
• Conrad was sentenced to 5 years of probation including 6 months home detention, a $23,426 fine and 100 hours of community service.
102. United States v. Anglin, No. 5:15-cr-00037-JMH (E.D. Ky. sentence entered Aug. 17, 2015).
• Anthony Anglin pleaded guilty to one count of illegal storage of hazardous waste for placing hazardous waste from Bluegrass Industrial Services, LLC in a storage unit.
• Anglin was sentenced to 5 years of probation and $209,614.26 in restitution to EPA for the costs of cleanup.
103. United States v. Davis, No. 3:15-cr-00122-TJM (N.D.N.Y. sentence entered Nov. 24, 2015).
• Brian Davis pleaded guilty to one count of illegal treatment, storage and disposal of hazardous waste for transporting acids and solvents from New Hampshire to a property owned by the Defendant in Oswego, New York and mixing the chemicals with other substances, igniting the chemicals and giving the chemicals to other people without a required manifest.
• Davis was sentenced to 1 year and 1 day in prison, 3 years of probation and a $5,000 fine.
104. United States v. Hummell, No. 3:15-cr-00947-H (S.D. Cal. sentence entered Aug. 3, 2015).
• Paul Charles Hummell, Jr. pleaded guilty to one count of illegal storage of hazardous waste for storing waste from Southern California Plating’s metal plating operation that exceeded toxicity characteristic for chromium.
• Hummell, Jr. was sentenced to one year of probation and a $1,000 fine.
• See
United States v. S. Cal. Plating Co., No. 3:15-cr-00946-H (S.D. Cal. sentence entered Aug. 3, 2015) supra.
105. United States v. Schaller, No. 4:15-cr-00144-SWH (W.D. Mo. sentence entered Oct. 15, 2015).
• John Lewis Schaller pleaded guilty to one count of transporting misbranded hazardous waste for removing hazardous waste from property owned by Z-Group, LLC and transporting it to property owned by Studer Container Service in Kansas City, Missouri.
• Schaller was sentenced to a $500 fine.

Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”)

106. United States v. Albino, No. 3:15-cr-00527-CCC (D.N.J. guilty plea entered Aug. 19, 2015).
• Edgardo Albino pleaded guilty to one count of failing to report the release of asbestos to the National Response Center when he learned that material he had instructed employees to remove from a building to the trash area contained asbestos.

Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”)

107. United States v. Kieser, No. 2:12-cr-20072-JES-DGB (C.D. Ill. sentence entered Feb. 19, 2015).
• Carl Kieser was convicted by a jury of three counts of mail fraud and one count of illegal use of a registered pesticide for selling a product called Pond Clear Plus that was created by mixing Diuron 80F that was not approved for use on water, and marketing the product as a natural way to clear pond algae and weeds.
• Kieser was sentenced to 97 months in prison followed by three years of probation and $75,862 in restitution to two individuals and the Internal Revenue Service.
108. United States v. Eldridge, No. 1:14-cr-00117-JAW (D. Me. sentence entered Apr. 6, 2015).
• Clyde Eldridge pleaded guilty to one count of false statements for lying to EPA agents regarding whether he tracked to whom he sold the pesticide cypermethrin and how much he sold to each customer.
• Eldridge was sentenced to one year of probation and a $5,000 fine.
109. United States v. Ricco, No. 3:14-cr-30040-MGM (D. Mass. sentence entered Mar. 4, 2015).
• Paul Ricco pleaded guilty to 15 counts of false statements for falsifying producer establishment inspections he was required to complete in his role as an inspector for the Massachusetts Department of Agriculture Resources, which is tasked with enforcing FIFRA.
• Ricco was sentenced to two years of probation.

110. United States v. Taylor, No. 2:14-cr-00420-WC (M.D. Ala. sentence entered Apr. 28, 2015).
• Daryl M. Fischer and Russell R. Taylor each pleaded guilty to using the pesticide Temik as bait to poison animals, which is a manner inconsistent with the labeling.
• Fischer and Taylor were each sentenced to 1 year of probation, a $1,000 fine and $13,249.79 in restitution to two individuals jointly and severally. They were also required to pay for a half-page ad in a local newspaper warning against pesticide misuse.
111. United States v. Cloyd, No. 2:14-mj-00192-DHI (E.D. Tenn. sentence entered Apr. 23, 2015).
• Rickie D. Cloyd pleaded guilty to one count of misuse of a pesticide and one count of violation of the Migratory Bird Treaty Act for placing Carbofuran in cracked corn used as bait, which resulted in the death of a blue jay, a Northern Harrier hawk and several vultures.
• Cloyd was sentenced to a $5,000 fine.
112. United States v. Pang, No. 1:14-cr-00914-HG (D. Haw. sentence entered June 25, 2015).
• David H. Pang pleaded guilty to one count of smuggling and one count of illegal sale of pesticides for importing and selling the unregistered pesticide “Frontline Combo.”
• Pang was sentenced to 5 years of probation and a $30,000 fine.
113. United States v. Helena Chem. Co., No. 4:15-cr-00087-PJC (N.D. Okla. sentence entered May 4, 2015).
• Helena Chemical Co. pleaded guilty to one count of misdemeanor misapplication of a pesticide for improperly disposing of the pesticide Medal II AT by releasing it onto the ground and allowing it to run onto a neighboring property and into Little Cabin Creek.
• The company was sentenced to 4 years of probation, a $75,000 community service payment to Oklahoma Department of Environmental Quality, and a $150,000 fine.

Transportation

114. United States v. Jones, No. 2:14-cr-00220-RTR (E.D. Wis. sentence entered Apr. 30, 2015).
• Randy Jones, an onshore corrosion coordinator for Shell Pipeline Co. L.P., pleaded guilty to two counts of violation of the Pipeline Safety Act for failing to conduct an annual survey of the pipeline and for failing to take bi-monthly voltage readings and one count of false statements for entering false data into the reports submitted to PHMSA.
• Jones was sentenced to five years of probation and $19.3 million in restitution to Shell Pipeline Co.

115. United States v. Steen, No. 1:14-cr-00111-SPW (D. Mont. sentence entered Aug. 20, 2015).
• Kelly Steen pleaded guilty to one count of transporting hazardous material without a placard for transporting natural gas condensate from North Dakota to Montana.
• Steen was sentenced to 3 years of probation and a $2,000 fine.
116. United States v. Ng, No. 2:15-cr-20098-MAG-MKM (E.D. Mich. sentence entered July 14, 2015).
• Lip Bor Ng pleaded guilty to one count of conspiracy for shipping cathode ray tubes to Hong Kong and China and for lying about the contents of the shipment to conceal the hazardous nature of the shipments.
• Ng was sentenced to 5 years of probation and a $25,000 fine.

Other

117. United States v. Reyna-Chavez, No. 1:14-cr-00161-AWI-BAM (E.D. Cal. sentence entered Oct. 26, 2015).
• Jose Antonio Reyna-Chavez was indicted for one count each of conspiracy to distribute marijuana, manufacture of marijuana, possession of marijuana, depredation of public lands and avoidance of an immigration exam in connection with allegedly conducting a marijuana grow operation in Sequoia National Forest. A superseding indictment charged him with possession of a firearm in furtherance of a drug trafficking offense.
• Reyna-Chavez pleaded guilty to conspiracy to manufacture and possession of a firearm and was sentenced to 72 months in prison, 36 months of probation and $10,093.91 in restitution to the U.S. Forest Service. He is also required to turn himself in for deportation.
118. United States v. Blankenship, No. 5:14-cr-00244 (S.D.W. Va. jury verdict entered Dec. 3, 2015).
• Donald Blankenship, former CEO of Massey Energy, was indicted for conspiracy to violate MSHA requirements at the Upper Big Branch-South mine, conspiracy to defraud MSHA, false statements and securities fraud for allegedly knowingly allowing ongoing violations of mine safety standards.
• The indictment follows an explosion at the mine in April 2010 that resulted in multiple fatalities.
• Blankenship was convicted of the conspiracy charge but acquitted of making false statements and securities fraud.
119. United States v. Galvan, No. 1:14-cr-00225-LJO-SKO (E.D. Cal. sentence entered Aug. 3, 2015).
• Toribio Cruz Galvan was indicted for depredation of federal lands in violation of Title 18, as well as conspiracy to manufacture, manufacture and possession with the intent to distribute marijuana for an alleged marijuana grow operation in Sequoia National Park.
• Galvan pleaded guilty to conspiracy to manufacture and was sentenced to 2 years in prison.
120. United States v. Tucker, No. 1:14-cr-00201-JTN (W.D. Mich. sentence entered Mar. 5, 2015).
• Dean Preston Tucker pleaded guilty to falsification of records for creating a false “Storage Tank Certificate of Insurance” to serve as proof of financial responsibility for the operator of an underground storage tank.
• Tucker was sentenced to one day in prison with credit for time served, one year of probation, a $20,000 fine and 200 hours of community service.

121. United States v. Henry, No. 2:14-cr-00055-GW (C.D. Cal. sentence entered Sept. 18, 2014); No. 14-50432 (9th Cir. appeal pending Sept. 25, 2014); United States v. Aguirre, No. 14-50435 (9th Cir. appeal pending Sept. 25, 2014); United States v. Jarrell, No. 15-50276 (9th Cir. appeal pending June 12, 2015).
• Clifford Eugene Henry Jr., Steven Robert Aguirre and Jonathan Carl Jarrell were convicted of setting and failing to control a campfire, in violation of Title 18, that damaged the Angeles National Forest in January 2014.
• Jarrell was sentenced to 3 years of probation, and $9,162,165.51 in restitution to the victims of the forest fire jointly and severally with codefendants.
• Henry and Aguirre were each previously sentenced to 5 months in prison and 3 years of probation.
• All three defendants have appealed their sentences.
122. United States v. Gomez-Rodriguez, No. 1:15-cr-00226-LJO-SKO (E.D. Cal. indictment entered Aug. 13, 2015).
• Francisco Javier Gomez-Rodriguez, Humberto Ceballos-Rangel, Anthony Isaac Santibanez and Alejandro Ramirez-Rojo were indicted for conspiracy to manufacture marijuana, manufacture of marijuana, possession of marijuana with the intent to distribute and depredation of federal lands for their alleged roles in a marijuana grow operation in Sierra National Forest.
123. United States v. Jimenez, No. 1:15-cr-00193-LJO-SKO (E.D. Cal. guilty plea entered Nov. 16, 2015).
• Juan Pedro Jimenez pleaded guilty to conspiracy to manufacture marijuana for his role in a marijuana grow operation in Sierra National Forest.
124. United States v. Garcia-Villa, No. 1:15-cr-00159-AWI-BAM (E.D. Cal. guilty plea entered Nov. 2, 2015).
• Antonia Garcia-Villa and Uriel Silva-Garcia pleaded guilty to conspiracy to manufacture marijuana and possession of a firearm during a drug trafficking offense for their roles in a marijuana grow operation in Sequoia National Forest.
125. United States v. Ashton, No. 1:15-cr-00023-RHB (W.D. Mich. sentence entered June 8, 2015).
• Jeffrey Allan Ashton pleaded guilty to misprision of a felony for failing to report Allen Chadderdon’s falsification of a “Storage Tank Certificate of Insurance.”
• Ashton was sentenced to 2 years of probation including 30 days of home detention, a $5,000 fine and 200 hours of community service.
126. United States v. Granger, No. 2:14-cr-00252-SSV-DEK (E.D. La. sentence entered Mar. 18, 2015).
• Sean Granger pleaded guilty to tampering with a monitoring method under the Outer Continental Shelf Lands Act for failing to record irregularities in the blowout preventer pressure testing.
• Granger was sentenced to 3 years of probation and a $3,000 fine.
127. United States v. Gonzalez-Jauregui, No. 2:14-cr-00272-KJM (E.D. Cal. sentence entered Sept. 30, 2015).
• Venustiano Gonzalez-Jauregui, Tiburcio Olmos Munoz and Adalid Rosales Lopez each pleaded guilty to conspiracy to manufacture marijuana and depredation of federal lands for their role in a marijuana grow operation in Lassen National Forest.
• Gonzalez-Jauregui was sentenced to time served. Munoz and Lopez were each sentenced to 37 months in prison.
128. United States v. Fournier, No. 1:14-cr-00153-LJO-SKO (E.D. Cal. sentence entered May 26, 2015).
• Edgardo Fournier pleaded guilty to conspiracy to manufacture marijuana and setting timber on fire in connection with a marijuana grow operation in Sequoia National Forest.
• He was sentenced to 70 months in prison, 4 years of probation and $6,509,329 in restitution to the U.S. Forest Service.
129. United States v. Arreola, No. 1:12-cr-00184-AWI-BAM (E.D. Cal. sentence entered Apr. 27, 2015).
• David Arreola pleaded guilty to conspiracy to manufacture marijuana and possession of a firearm during a drug trafficking offense for his role in a marijuana grow operation in Sequoia National Forest. He was sentenced to 90 months in prison, 3 years of probation and $3,328.33 in restitution to the U.S. Forest Service jointly and severally with codefendants.
• Hernan Cortez Villasenor, Alfonso Cornejo and Jose Luis Garcia Villa each previously pleaded guilty for their role.
• Villasenor was sentenced to 120 months in prison and 5 years of probation. Cornejo and Villa were each sentenced to 46 months in prison.
130. United States v. Soria, No. 1:12-cr-00283-AWI-BAM (E.D. Cal. sentence entered Feb. 9, 2015).
• Cruz Soria and Mairo Correa Garcia pleaded guilty to conspiracy to manufacture marijuana in connection with a marijuana grow operation in the California Canebrake Ecological Reserve.
• Soria was sentenced to 60 months in prison, 4 years of probation and $2,568.85 in restitution jointly and severally with Garcia.
• Garcia had previously been sentenced to 18 months in prison and 3 years of probation.
131. United States v. Smith, No. 2:14-cr-01067-SPL (D. Ariz. sentence entered Feb. 2, 2015); United States v. Gilbert, No. 2:14-cr-01237-SRB (D. Ariz. sentence entered Feb. 23, 2015).
• Blase Anthony Smith and Joshua Gilbert each pleaded guilty to causing a forest fire in the Fort Yuma Quechan Indian Reservation in October 2009.
• Smith was sentenced to 51 months in prison, 3 years of probation and $3,813,983.82 in restitution for the damage caused by the fire.
• Gilbert was sentenced to 3 years of probation and $40,624.94 in restitution to the Bureau of Indian Affairs jointly and severally with Smith.
132. United States v. Simmons, No. 3:15-cr-00147-MCR (M.D. Fla. sentence entered Oct. 5, 2015).
• Aaron Mack Simmons pleaded guilty to one count of recreation violations in a national park for recklessly driving a motor vehicle in Osceola National Forest.
• Simmons was sentenced to a $500 fine.
133. United States v. Young, No. 2:15-cr-00026-JCL (D. Mont. sentence entered Oct. 27, 2015).
• Bob Young was charged with theft of government property and cutting trees on federal lands for cutting down 52 trees in Red Rock Lakes National Wildlife Reserve.
• Young pleaded guilty to the cutting of trees and was sentenced to 2 years of probation, during which he is prohibited from entering Red Rock Lakes National Wildlife Reserve, and $4,521.65 in restitution to the National Fish and Wildlife Foundation.
134. United States v. Harbarger, No. 2:14-cr-00266-MBC (W.D. Pa. sentence entered July 14, 2015); United States v. Rankin, No. 2:15-cr-00012-MBC (W.D. Pa. guilty plea entered Nov. 1, 2015).
• Brian M. Harbarger and Heath A. Rankin pleaded guilty to damaging an energy facility for causing damage to a pad of five natural gas wells owned by Chevron North America Exploration & Production Co. in March 2014.
• Harbarger was sentenced to 1 year of probation and $18,624.67 in restitution to Chevron North America Exploration & Production Co. jointly and severally with Rankin.
135. United States v. Penaloza-Herrera, No. 1:15-cr-00264-DAD-BAM (E.D. Cal. indictment entered Sept. 24, 2015).
• Juan Pedro Penaloza-Herrera and Russell Lee Riggs were indicted for conspiracy to manufacture marijuana, manufacture of marijuana, gun charges and possession with intent to distribute for their alleged involvement with a marijuana grow operation in Sequoia National Forest. Penaloza-Herrera was also charged with depredation of federal lands.
136. United States v. Xiongpao, No. 1:15-cr-00285-LJO-SKO (E.D. Cal. indictment entered Oct. 8, 2015).
• Rich Xiongpao was indicted for conspiracy to manufacture marijuana, manufacture of marijuana and depredation of federal lands for his alleged role in a marijuana grow operation in Sierra National Forest.

Q&A with Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health

1. What prompted OSHA to undertake the joint effort to develop criminal enforcement cases with the Department of Justice?

For many years, the Occupational Safety and Health Administration (OSHA) has worked with the Department of Justice (DOJ) to successfully bring criminal prosecutions of health and safety standards. In the early 2000s, DOJ’s Environmental Crimes Section began working to combine the resources of the Justice Department with the Environmental Protection Agency (EPA), OSHA and the Federal Bureau of Investigation (FBI). This effort, the Worker Endangerment Initiative, is aimed at educating officials from each agency about collaboration and coordination, as well as cross referrals for cases. The goal of the Initiative is to prosecute companies, and company officials, who systematically violate both worker safety laws and federal environmental laws.

In early 2015, the Departments of Labor and Justice began exploring a joint effort to increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations. In an effort to prevent and deter crimes that put the lives and the health of workers at risk, the Departments of Labor and Justice entered into a Memorandum of Understanding (MOU) intended to promote the effective prosecution of such crimes.

Under the MOU, the Justice Department’s Environment and Natural Resources Division and the U.S. Attorney’s Offices will work with the Department of Labor’s Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), Wage and Hour Division (WHD) and the Office of the Solicitor (SOL) to investigate and prosecute worker endangerment violations. The MOU includes statutes from the Occupational Safety and Health Act (OSH Act), the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and the Mine Safety and Health Act (MINE Act).

The current MOU is a continuation of the longstanding relationship that OSHA has had with the Department of Justice, and our most recent joint effort demonstrates a renewed commitment by both departments to utilize criminal prosecution as an enforcement tool to protect the health and safety of workers.

2. What will be the measures of success for this effort?

The criminal provision under the OSH Act generally provides for only misdemeanor penalties. Although we continue to urge Congress to amend these provisions to make clear that harming a worker is as serious a crime as harming a donkey or a fish, the MOU encourages prosecutors to consider utilizing Title 18 and environmental offenses, which often occur in conjunction with worker safety crimes, to enhance penalties for worker endangerment.

We also believe the attention given to this initiative, along with the civil penalty increase that Congress recently enacted, will help deter this type of endangerment. We expect that an increased number of employers will proactively take steps to decrease the risk of prosecution, by reviewing and enforcing their worker-safety policies and procedures for compliance with worker protection and environmental statutes. This collaboration’s success will be seen not only in the prosecutions that occur, but also in those that are avoided because employers feel more motivated to ensure that they provide safe and healthful working conditions to their employees.

3. What are the biggest challenges to the government’s criminal enforcement initiative?

We’re focused on the opportunity this provides to make American workplaces safer, and a big part of our effort includes training our Compliance Safety and Health Officers to better identify and document potential violations in the field. These violations could include Title 18 offenses such as false statements, obstruction, witness tampering, falsifying documents, conspiracy, etc. Officers are also trained to identify other worker/environmental protection statutes such as, the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act and the Toxic Substances Control Act.

4. Is this initiative in response to particular trends in the worker safety issues that OSHA addresses (i.e. industries involved, causes of injury, number of injuries/fatalities)?

The initiative is a continuation of DOL’s commitment to reducing workplace fatalities. We know that workplace injuries and illnesses cause an enormous amount of physical, financial and emotional hardship for workers and their families. Safety and security in the workplace are a shared commitment, and underscore the urgent need for employers to provide a safe workplace for their employees. While most employers try to do the right thing, strong sanctions are an effective tool to ensure compliance with the laws that protect workers. This joint effort will help bring more frequent and effective prosecution of these crimes and will send a strong message to employers who fail to provide a safe workplace for their employees.

5. Will the coordination with DOJ on criminal enforcement efforts impact how OSHA undertakes inspections? If so, how?

The primary responsibility for OSHA investigators to enforce health and safety standards under the OSH Act will not change. However, based on the additional training that OSHA investigators will receive, they will be able to recognize Title 18 offenses of the U.S.C., potential violations of environmental crimes and develop cases that can be referred to other agencies.

6. The LA County DA’s office has announced the creation of a criminal enforcement task force related to workplace safety. Will state and local efforts such as this be coordinated with the federal program?

While state and local efforts are not coordinated directly through this MOU, the Department of Labor, including OSHA, has worked with numerous state and local jurisdictions across the country, including local District Attorneys’ offices, in successfully prosecuting at the state level. OSHA will continue its relationship with local law enforcement. For example, we recently cooperated with state prosecutors in Georgia on a case arising out of the death of a worker on the set of the movie, “Midnight Rider.” The State achieved two convictions and one guilty plea (two for manslaughter) in that case, and the OSHA citations arising out of the same incident were subsequently upheld by an administrative law judge.

7. There has been a general decline in worker injuries and fatalities over the past 12 years, according to the Bureau of Labor Statistics. What is the impact expected on this trend with a focus on criminal enforcement?

Strong criminal prosecutions can have a significant deterrent effect. By enforcing all worker safety protection statutes, prosecutors can make enforcement meaningful by charging other serious criminal offenses (Title 18) that often occur in association with OSH Act violations. With penalties for these criminal statues ranging from 5 to 20 years in jail, plus significant fines, these felony provisions provide additional important tools to deter employers from knowingly failing to provide their employees with a safe and healthy work environment.

8. Are there other agencies with a natural connection to worker safety issues that could join in this effort? If so, which ones?

Other agencies are part of this effort, and we look forward to working with them on this initiative. Under the new plan, the Justice Department’s Environment and Natural Resources Division and the U.S. Attorneys’ Offices will work with the Department of Labor’s Occupational Safety and Health Administration (OSHA), Mine Safety and Health Administration (MSHA), Wage and Hour Division (WHD) and the Office of the Solicitor (SOL) to investigate and prosecute worker endangerment violations. OSHA will also continue to coordinate and collaborate with the EPA’s Criminal Investigation Division, the Federal Bureau of Investigation and state and local law enforcement authorities.

9. Would it be fair to say that the current criminal enforcement initiative between DOL and DOJ is, at least in part, an effort to expand that notion of linking responsibility with accountability to the area of workplace safety? Put another way, is part of the goal of this current initiative to provide better outcomes by linking accountability, through criminal enforcement, of those with oversight responsibility for workplace safety in their businesses?

Yes, that would be fair to say.

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