Almost two years after the Deepwater Horizon rig explosion of April 20, 2010, the civil trial between the United States, private plaintiffs, and the major corporate players has been stayed to allow for settlement between certain parties, and as of this writing no criminal charges have been brought by the United States against any corporate party or individual.
As is almost always the case in complex white-collar cases, the criminal investigation will likely be focused on two areas of potential criminal liability. First, will be the focus on the potential for criminal liability for the spill under the applicable environmental statutes. Second, will be the focus on the potential for criminal liability based on post-incident responses that could be construed as false statements or obstruction of justice.
Before discussing the scope of potential environmental criminal liability, we should consider the lessons to be learned from the government’s practice of investigating the response to the government’s initial investigation of an incident. This area of liability reinforces the need for all regulated entities to consider, or reconsider, their ability to respond to crisis situations with a pre-determined set of plans and procedures, preferably ones that have been vetted through table-top or live drills.
One indication that there is an increasing awareness of the need for such pre-planning crisis preparations by businesses can be found in the marketing of “incident response” insurance products. Insurers are offering products that cover the immediate costs of a response, provide response plans and procedures, and provide qualified contractors and technical consultants.
There is also the risk that some of the lessons available from catastrophic incidents like the Deepwater Horizon spill will be overlooked because of a human tendency to look at such incidents and say, “That would never happen to me (us).” It is an instinct, or perhaps learned response, to seek to distance ourselves from a connection to the misfortunes of others. There is even a name for it: “cognitive dissonance reduction,” which is the phenomenon whereby individuals select a desirable interpretation of a threat (“that would never happen to me”) as a way to obtain relief from potential psychological distress (“this could happen to me”).
Management of Change
One specific area that was extensively considered in the examination of the events leading up to the Deepwater Horizon incident is the area of Management of Change (MOC). It is generally understood that, unless a situation is static and unchanging, every organization must have a way to identify, assess, and respond to change. The “change” to be managed may be new circumstances in familiar or routine operations or processes, or it may involve new operations, tasks, processes, equipment, systems, regulations, personnel, technology, or changes in known hazards.
The analysis by the Joint Investigation Team (JIT) of the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) and the U.S. Coast Guard (USCG),
The difficult job for any organization operating in a highly regulated area with the potential for strict sanctions is to identify the underlying causes of seemingly routine failures and apply the value of that analysis to corporate operations. Failure to do so, particularly in light of the examinations already done on the Macondo well, and the expectations that follow for future operations, raises the risk of civil and potential criminal liability. In this regard, consider the notions of criminal liability under the Clean Water Act’s criminal negligence provision,
Putting aside, however, any charges for obstruction of justice or fraud post-incident, what potential environmental criminal charges are implicated in the Deepwater Horizon investigation? Provided below is an overview of five federal environmental statutes that will likely be considered by the government and a brief analysis of associated issues. These statutes are:
- the Migratory Bird Treaty Act (MBTA),
- 2. the Seaman’s Manslaughter Act (Seaman’s Act),
- 3. the Outer Continental Shelf Lands Act (OCSLA),
- 4. the Rivers and Harbors Act of 1899 (Refuse Act),
- 5. the Clean Water Act (CWA),
Both the MBTA and the Refuse Act are strict liability statutes. The MBTA prohibits the killing of migratory birds, either directly, or through the actions of another individual,
The strict liability standard in both the MBTA and the Refuse Act and the government’s former use of these acts in the similar circumstances of the Exxon Valdez case, suggest that these acts will be strongly considered by the government. The MBTA imposes a fine of up to $15,000 for each violation and/or up to six months in prison for individual defendants,
‘Knowing and Willful,’ ‘Knowing,’ and ‘Negligent’ Violations
Under the OCSLA, unlike the MBTA or the Refuse Act, the government must prove that the defendant “knowingly and willfully” violated “any term of a lease, license, permit, or regulation issued under the OCSLA that is designed to protect health, safety, or the environment or conserve natural resources.”
The Seaman’s Act is a lesser-known statute that may be used by the government to address the deaths of the 11 individuals that resulted from the incident. The act incorporates different intent requirements depending on a defendant’s role in the death of a seaman. Liability based on simple negligence is reserved for persons on a vessel, owners, charterers, inspectors, or other public officers, whereas a knowing and willful standard must be satisfied to sustain the conviction of corporate executives who are not present on a vessel but who hold operational control.
Out of the five statutes that may be used in connection with the Deepwater Horizon incident, only the CWA focuses on the discharge of oil. Under
In the Deepwater Horizon case, a knowing violation of the CWA would require a defendant to have acted intentionally, i.e. volitionally and not by mistake, to discharge the oil regardless of the defendant’s knowledge of the legality of the action.
On the other hand, to successfully prosecute a negligent violation of the CWA, the government would need to prove that a defendant caused the discharge of oil due to the defendant’s failure to exercise the appropriate degree of care.
Further, defendants may argue that the “majority” standard for negligence under the CWA, i.e. ordinary negligence (the failure to use ordinary care), is not applicable, and gross negligence (a gross deviation from the standard of care that a reasonable person would observe in the situation) should apply. Two circuits of the federal courts of appeals have adopted this “majority” standard. The remaining circuits, including the Fifth Circuit in which the Deepwater Horizon case is being tried, have not spoken to the issue. Specifically, in the summer of 2011, the U.S. District Court for the Western District of Louisiana recognized that there is “no controlling precedent in the Fifth Circuit addressing whether the ordinary or gross negligence standard applies in criminal CWA proceedings,” and that the language of the statute was less than clear on the issue.
However the government eventually proceeds, defendants in the case will most likely advance arguments that the causation between any one entity or individual’s specific conduct and the rig explosion is too attenuated to establish criminal liability. The defendants may rely upon the warring theories regarding the role and behavior of the safety barriers and hydrocarbons in the Macondo well, as well as the effect of the multiple independent and intervening decisions instituted by each of the parties during the course of rig operations. We will revisit the outcome of both the civil case, and any criminal charges, in next year’s article.
What Were You Thinking? The Destruction of Pre-Investigation Records and Liability for Obstruction Under 18 U.S.C. §1519
As discussed above, the response by a corporate or organizational entity to an environmental criminal investigation can create criminal liability for obstruction if information is not properly preserved. Further, a recent appellate case has clarified the circumstances in which obstruction can occur under
It has been 10 years since
In February 2007, the government used the new provision to indict an attorney, Phillip Russell, a criminal and civil litigator in Connecticut, for obstruction of justice.
The indictment charged Russell with destruction of evidence, in violation of §1519, as well as obstruction under
63 Stan. L. Rev. 813 (2011) (Professor Gillers provides a careful evaluation of a lawyer’s duties in varying situations (including the Russell case) where a lawyer is offered, or comes into possession of, an item that has legal significance.)
At the time commentators noted that this use of § 1519 suggested “a new era in potential criminal liability for altering, destroying or disposing of records or other evidence well in advance of any actual federal proceeding or matter—and one in which individuals, organizations, and their attorneys will be forced to carefully analyze decisions about the disposition of records or other evidence that might relate to matters that, at some point in the future, are likely to become the subject of federal attention.”
After the Russell indictment, federal prosecutors in Tennessee obtained an indictment against David Kernell that also used the “in contemplation” prong of §1519, in connection with the investigation of illegal access to the email account of then-Alaska governor and vice-presidential candidate Sarah Palin.
.; see also United States v. Kernell, No. 10-6450, at 2-4 (6th Cir. judgment entered Jan. 30, 2012).
According to court documents, Kernell accessed Palin’s email account, changed the password, posted photos from the account on the Internet, and distributed the new password on an Internet message board to allow others to access Palin’s account.
In the spring of 2010, Kernell was convicted by a jury on the § 1519 charge.
The Sixth Circuit affirmed the lower court decision in Kernell, providing appellate approval for potential criminal liability for obstruction of justice in advance of the initiation of any federal proceeding, with or without knowledge of such a proceeding.
Similarly, the Sixth Circuit found that the intent-to-impede language in the beginning of the statute applied to both prongs of the statute, i.e. to both “the investigation or proper administration of any matter” within federal jurisdiction and to “in relation to or contemplation of any such matter or case.”
After the Kernell decision, potential liability under §1519 turns on whether the government can prove beyond a reasonable doubt that there is some causal link or relationship between an individual’s destruction of a record, and that individual’s belief that a federal inquiry related to those records might occur, regardless of whether the inquiry has commenced. Thus, while “coincidental” records destruction is innocent behavior, the level of circumstantial evidence that will suffice to prove the culpable intent to destroy records in contemplation of a federal inquiry under an environmental, or any other, law, remains to be seen.
EPA’s Rogue Employee and Vicarious Criminal Liability of Corporations
As most white-collar defense attorneys know, the mention of a rogue employee is often greeted by government investigators and prosecutors with a look of superciliousness. What that look conveys is the view that a rogue employee claim is simply an attempt to shirk responsibility for the company’s failure to exercise appropriate oversight, which failure is then considered a sufficient basis for criminal liability of an entire corporation (as well as suspension and debarment).
Perhaps the EPA Criminal Investigation Division will have more understanding of the problem of rogue employees now that EPA has a rogue of its own. On Sept. 30, 2011, U.S. District Judge Rebecca Doherty found that former EPA CID Special Agent Keith Phillips had, “for his own purposes, set out with intent and reckless and callous disregard for anyone’s rights … and reckless disregard for the processes and power which had been bestowed him, to effectively destroy another man’s life …”
Between 1996 and 1999, Agent Phillips headed an investigation that led to the indictment of Hubert Vidrine, Jr. and Canal Refining Co. of Church Point, La. In September 2003, as trial was to begin, the charges were dropped. In 2007, Vidrine sued the government on behalf of himself and his wife, for damages resulting from the investigation and prosecution.
The court did not finally resolve the motive for Agent Phillips’s behavior, but thought it likely that the married agent was using the continuing investigation as a cover for a sexual affair he was having with an FBI agent also assigned to the case.
The debate over the scope of a corporation’s vicarious liability for the acts of an employee in the environmental criminal context was addressed in a 2009 decision of the U.S. Court of Appeals for the Second Circuit. In United States v. Ionia Management S.A.,
The Second Circuit rejected defendants’ argument, finding that even without management direction (even though such direction was present) the acts of employees within the scope of their employment is a sufficient basis to hold the company vicariously criminally liable.
In that regard, we note that the Federal Jury Practice and Instructions contain the following in the model jury instructions for Corporate Criminal responsibility:
A corporate defendant—like an individual defendant—however, may not avoid responsibility for its actions by meaningless or purely self-serving pronouncements. Similarly a corporate defendant—like an individual defendant—may not be held responsible for acts which it tries to prevent.
These proposed instructions are followed by a Note:
There is nothing in the law that requires that a corporation be held criminally responsible for the action of a rogue employee that, in good faith, the corporation attempted to prevent. Unless a corporation is relieved of criminal liability for acts committed against genuine corporate policy and directives, there is absolutely no compelling reason for a corporation to either direct its agents to conform to the criminal law or to police such policies or, for that matter, to police its employees. To avoid criminal responsibility, however, the corporation must be acting in good faith when it prohibits the conduct and must make a diligent effort to police the directive.
Enforcement as a Zero Sum Game
EPA’s Office of Enforcement and Compliance Assurance (OECA) has issued a new draft National Program Manager Guidance, dated Feb. 10, 2012.
The document applies to all of EPA’s national enforcement efforts, including criminal enforcement, and is notable for several reasons:
- The guidance presents case selection priorities for criminal cases that place a priority on bringing “Tier 1” criminal cases, which are described as including cases that involve “death or actual serious injury.”
- The guidance notes that because of “budgetary restrictions and the need to focus scarce resources,” OECA will significantly reduce criminal enforcement efforts related to vessel pollution, stormwater, asbestos, and underground storage tanks.
- The guidance states that the criminal enforcement program “will emphasize” EPA’s National Enforcement Initiatives for FY 201314, as well as Regional Enforcement Priorities.
- The guidance reiterates that criminal enforcement is an important tool in meeting environmental justice concerns.
EPA’s decision to reduce criminal enforcement related to the specific areas above is interesting. From 2006 through 2011, there were some 70 vessel pollution prosecutions. Not all of these cases involved EPA, however, and moving forward the U.S. Coast Guard, which is often the primary agency on vessel pollution cases, may simply fill in any gap left by EPA’s decision.
During this same five-year time frame, there were some 45 criminal asbestos prosecutions. If EPA pulls away from these cases, it is unclear who will step in. Moreover, these cases often present instances where there are human victims, often workers who are inadequately trained and/or inadequately protected, and these cases often occur in communities that meet the government’s environmental justice definition. Notably, in this year’s article, we identify 10 asbestos cases. Two cases appear to fit within the environmental justice framework based on the communities where the violations occurred, and six cases involved the potential for direct, unprotected exposure to asbestos by workers and others, which would seem to qualify the cases as candidates for “Tier 1” designation.
The guidance also expresses EPA’s intent to reduce self-disclosure efforts by the regulated community under EPA’s Self Disclosure/Audit Policy, which has been in existence since 1995. It does not make clear whether the reduction is aimed at civil or criminal voluntary disclosures (both are covered by the policy), nor does it make reference to the Department of Justice policy, in effect since 1991, which is also related to criminal enforcement in the context of voluntary disclosure efforts.
Finally, it is notable that the guidance expresses OECA’s intent to focus an effort to align the criminal enforcement program with EPA’s National Enforcement Initiatives. This effort and the effect of the guidance on EPA’s environmental criminal enforcement program will be examined in next year’s article.
Let’s Do the Numbers
In last year’s article, we discussed the parameters that influence EPA’s enforcement decisions, including the specific criteria that Cynthia Giles, assistant administrator for the EPA Office of Enforcement and Compliance Assurance, explained EPA would focus on in the coming year.
Death or Serious Injury
We reviewed information regarding 91 cases from calendar year 2011, and based on our review, two environmental cases from 2011 addressed violations involving death or serious injury. The first, United States v. Bugman Pest and Lawn, Inc. et al.,
Multiple Locations
Regarding cases that involved multiple locations in 2011, we found two cases that potentially fit this criteria. The first, United States v. Blyth et al.,
Large or Significant Enterprises
Regarding the nature of the corporate defendants involved in criminal cases in 2011, in the 36 cases involving corporate defendants, seven (approximately 19 percent) employed over 1,000 employees, five (approximately 14 percent) employed between 100 to 1,000 employees, and 24 (approximately 66 percent) employed under 100 employees.
Vulnerable Populations
Under EPA criteria, vulnerable or environmental justice (EJ) populations generally include low-income and predominantly minority communities. We assessed demographics
We found 14 cases were brought in high minority areas that had populations with 15 percent or greater living below the poverty line. Eight cases were related to CWA discharges, two cases were related to CAA asbestos violations, two cases were related to other CAA violations, and two cases were related to waste and toxic substances violations. The cases and underlying data are set forth below.
CWA Discharge Cases
- 1. United States v. Bieri
72 No. 3:11-cr-30174-WDS (S.D. Ill. guilty plea entered Oct. 5, 2011).
- Area: St. Clair County, Illinois
- Median Household Income: $48,562
- Racial Demographic: 30.5% African American, 64.6% Caucasian, 1.2% Asian, 3.7% Other
- Percentage Below Poverty Line: 15.5%
- 2. United States v. Askew et al.
73 No. 4:10-cr-00112-RBS-FBS-1 (E.D. Va. sentence entered Aug. 26, 2011).
- Area: Norfolk, Virginia
- Median Household Income: $42,677
- Racial Demographic: 47.1% Caucasian, 43.1% African American, 3.3% Asian, 6.5% Other
- Percentage Below Poverty Line: 16.5%
- 3. United States v. Hebert et al.
74 No. 6:10-cr-00262-HFS (W.D. La. sentence entered Mar. 18, 2011).
- Area: Iberia Parish, Louisiana
- Median Household Income: $41,783
- Racial Demographic: 62.2% Caucasian, 32% African American, 2.4% Asian, 2% Other
- Percentage Below Poverty Line: 21.2%
- 4. United States v. Integrated Production Services, Inc.; United States v. Henson
75 No. 6:11-cr-00068-KEW-1 (E.D. Okla. guilty plea entered Oct. 11, 2011). See 42 ER 2310, 10/14/11. No. 6:11-cr-00050-KEW-1 (E.D. Okla. guilty plea entered July 20, 2011).
- Area: Atoka, Oklahoma
- Median Household Income: $31,179
- Racial Demographic: 73.8% Caucasian, 3.7% African American, 13.8% Native American, 8.7% Other
- Percentage Below Poverty Line: 22.5%
- 5. United States v. NH Environmental Group Inc. dba Tierra Environmental and Industrial Services, et al.
76 No. 2:11-cr-00177-PPS (N.D. Ind. indictment entered Nov. 3, 2011).
- Area: East Chicago, Indiana
- Median Household Income: $28,999
- Racial Demographic: 42.9% African American, 35.5% Caucasian, 21.6% Other
- Percentage Below Poverty Line: 33.1%
- 6. United States v. Pruett et al.
77 No. 3:09-cr-00112 (W.D. La. appeal pending Jun. 28, 2011).
- Area: Ouachita Parish, Louisiana
- Median Household Income: $39,823
- Racial Demographic: 60.4% Caucasian, 36.6% African American, 3% Other
- Percentage Below Poverty Line: 21.0%
- 7. United States v. T.P. Construction, Inc.
78 No. 4:11-cr-00065-RKS (D. Mont. sentence entered Sep. 19, 2011).
- Area: Blaine County, Montana
- Median Household Income: $37,034
- Racial Demographic: 49.4% Native American, 2% Caucasian, 2.4% Other
- Percentage Below Poverty Line: 29%
- 8. United States v. Tuma et al.
79 No. 5:11-cr-00031-TS (W.D. La. indictment entered Feb. 24, 2011). See 42 ER 448, 3/4/11.
- Area: Shreveport, Louisiana
- Racial Demographic: 54.7% African American, 41.2% Caucasian, 4.1% Other
- Median Household Income: $35,613
- Percentage Below Poverty Line: 22.1%
CAA Asbestos Cases:
- 9. United States v. Gordon-Smith, et al.
80 No. 6:08-cr-06019-CJS (W.D.N.Y. appeal pending Sep. 28, 2011).
- Area: Rochester, New York
- Racial Demographic: 43.7% Caucasian, 41.7% African American, 3.1% Asian, 11.5% Other
- Median Household Income: $30,138
- Percentage Below Poverty Line: 30.4%
- 10. United States v. Horan
81 No. 6:11-cr-06171-DGL (W.D.N.Y. guilty plea entered Nov. 7, 2011).
- Area: Rochester, New York
- Racial Demographic: 43.7% Caucasian, 41.7% African American, 3.1% Asian, 11.5% Other
- Median Household Income: $30,138
- Percentage Below Poverty Line: 30.4%
CAA Negligent Endangerment and Title V Violations Cases:
- 11. United States v. Chemical and Metal Industries, Inc.; United States v. Honeywell International Inc.
82 No. 3:08-cr-00028-RET (M.D. La. appeal pending Apr. 8, 2011); No. 4:11-cr-40006-JPG (S.D. Ill. sentence entered Mar. 18, 2011).
- Area: Baton Rouge, Louisiana
- Racial Demographic: 54.5% African American, 39.4% Caucasian, 3.3% Asian, 2.8% Other
- Median Household Income: $36,964
- Percentage Below Poverty Line: 25.5%
- 12. United States v. Pelican Refining Company LLC; United States v. Hamilton; United States v. LeBleu.
83 No. 2:11-cr-00227-RTH (W.D. La. sentence entered Dec. 15, 2011). See 243 DEN A-10, 12/19/11. No 2:11-cr-00130-RTH (W.D. La. guilty plea entered Jul. 6, 2011).
- Area: Lake Charles, Louisiana
- Racial Demographic: 47.7% African American, 47% Caucasian, 1.7% Asian, 3.6% Other
- Median Household Income: $36,001
- Percentage Below Poverty Line: 20.9%
Waste and Toxic Substances Cases:
- 13. United States v. Overdorf
84 No. 9:11-cr-00018-MAC -ZJH-1 (E.D. Tex. guilty plea entered Mar. 18, 2011).
- Area: Houston, Texas (where hazardous waste was disposed)
- Racial Demographic: 50.5% Caucasian, 23.7% African American, 6% Asian, 19.8% Other
- Median Household Income: $42,962
- Percentage Below Poverty Line: 21%
- Area: Lufkin, Texas (location of facility)
- Racial Demographic: 56.7% Caucasian, 27.4% African American, 1.7% Asian, 14.2% Other
- Median Household Income: $35,988,
- Percentage Below Poverty Line: 20.2%
- 14. United States v. Murrell
85 No. 1:11-cr-00330-BEL-1 (D. MD. guilty plea entered July 19, 2011).
- Area: Baltimore, Maryland
- Racial Demographic: 63.7% African American; 29.6% Caucasian, 2.3% Asian, 4.4% Other
- Median Household Income: $39,386
- Percentage Below Poverty Line: 21.3%
Recently, on Feb. 27, 2012, the EPA, along with all federal agencies, announced the release of their environmental justice strategies and annual implementation reports. EPA has provided a central site to access all the agencies’ policies, strategies, work/implementation plans, and guidance on EJ.
Trials, Plea Agreements, and Government Discovery Obligations
Plea agreements represent the overwhelming majority, around 95 percent, of dispositions in federal criminal cases. Not surprisingly, environmental criminal cases follow a similar pattern. For 2011, based on data spanning Oct. 2, 2010 to Sept. 30, 2011, the U.S. Sentencing Commission found that 93.6 percent of all environmental and wildlife cases ended with a plea, with the remaining 6.4 percent of cases disposed of by trial.
Our review of the number of guilty pleas versus disposition by trial in environmental crimes for our 2011 case data, and over the last six years, is consistent with the analysis of the U.S. Sentencing Commission. According to our data, the number of cases and the ratio of pleas to trial have increased over the last six years, with a slight dip down in both areas in 2007 and 2009.
In this framework, where most cases are resolved short of trial, questions have been raised regarding the issue of discovery in the context of plea agreements.
egal Pragmatist’s Guide to Loss, Abandonment and Alienation, 68 Fordham L. Rev. 2011 (2000).
These issues, and the percentage of plea agreements in environmental criminal cases, raise an interesting query. Professor Ellen S. Podgor, in considering plea agreements generally, reflected on the Supreme Court’s holding in United States v. Ruiz.
This raises an interesting query in the context of plea agreements involving environmental and other regulatory-law based (malum prohibitum) crimes. To bring a criminal prosecution pursuant to almost every provision of federal environmental law, there must be what amounts to a civil violation of the statute. Thus, for example, a criminal charge for an illegal discharge under the Clean Water Act requires that all the elements of a Clean Water Act civil offense be provable beyond a reasonable doubt.
Figures
Cases of Note
Like other sources, our data on environmental criminal cases is likely incomplete. Our sources, among others, include the websites of EPA and DOJ, as well as Bloomberg BNA’s Environment Reporter, and the always useful Environmental Crimes Blog of Walter James, accessible at http://www.environmentalblog.typepad.com.
AIR CASES
Clean Air Act (CAA) - Asbestos
1) United States v. Bieri, No. 3:11-cr-30174-WDS (S.D. Ill. guilty plea entered Oct. 5, 2011). Franklin Bieri pleaded guilty Oct. 5, 2011, to violation of the CAA for mishandling asbestos-containing materials. In April 2010, Bieri hired and directed workers to demolish buildings containing asbestos without providing the required notification to the Illinois Environmental Protection Agency. During the demolition, Bieri’s workers, under his supervision, failed to follow asbestos management procedures and safety measures that are required under the CAA. Bieri faces up to five years in prison and a $250,000 fine. [Region 5]
2) United States v. Black, No. 1:10-cr-00303-RJA (W.D.N.Y. sentence entered Mar. 15, 2011). Daniel Black was sentenced March 15, 2011, for violations of the CAA involving the failure to conduct an inspection prior to asbestos removal and the falsification of tax returns. In July 2008, Black, as an officer of Blackstone Business Enterprises Inc. (Blackstone) had authorized the cleanup of a building that was found to contain asbestos insulation around the steam pipes. Black hired four temporary workers for the cleanup who were not trained in asbestos removal or aware of the presence of asbestos in the building. From 2005 to 2007, Black also failed to accurately report income from Blackstone resulting in tax losses of $191,669 to the government. Black pleaded guilty to the charges on Oct. 22, 2010. He was sentenced to 12 months and one day in prison, a $30,000 fine, and two years probation. [Region 2]
3) United States v. Crompton, No. 4:10-cr-00191-GAF (W.D. Mo. guilty plea entered Oct. 5, 2011). Anthony Crompton pleaded guilty Oct. 5, 2011, to violation of the CAA for the mishandling of asbestos-containing materials in a construction project between April 2001 and July 2006. Crompton failed to properly inspect for asbestos prior to removal of building materials and failed to use proper asbestos containment measures when removing and disposing of asbestos-containing materials. Crompton was the real estate manager for Community Development Corporation of Kansas City (CDC-KC), the company that operated the construction site. CDC-KC’s president, William Threatt, was indicted with Crompton in June 2010, but has pleaded not guilty to the CAA violations. Crompton faces up to five years in prison and a $250,000 fine. [Region 7]
4) United States v. Horan, No. 6:11-cr-06171-DGL (W.D.N.Y. guilty plea entered Nov. 7, 2011). Kenneth Horan pleaded guilty Nov. 7, 2011, to violation of the CAA for failure to adhere to work practice standards applicable to the removal of asbestos. In October 2009, Horan supervised the renovation of a commercial building that he knew contained asbestos but he failed to apply the appropriate safety measures required by the CAA. Horan faces up to five years in prison and a $250,000 fine. [Region 2]
5) United States v. Gordon-Smith, et al
., No. 6:08-cr-06019-CJS (W.D.N.Y. appeal pending Sept. 28, 2011); Nos. 11-4079, 11-4083 (2nd Cir. 2011). Keith Gordon-Smith and his asbestos abatement company, Gordon-Smith Contracting, Inc. (GSC) were found guilty of knowingly exposing workers and public areas to asbestos in violation of the CAA’s asbestos work practice standards. GSC workers who demolished a hospital site for the company alleged that during removal of copper pipes, ceiling tile, and scrap metal from the building, asbestos fell on them “like snow.” Further, during the demolition, asbestos was allowed to flow from the upper floors of the building through drains and holes to public areas. Gordon-Smith and the company were also convicted of making false statements to an Occupational Safety and Health Administration inspector who investigated the demolition after the receipt of complaints from GSC workers. Gordon-Smith was sentenced to 72 months in prison, restitution of $302,887, and a special assessment of $1,100. GSC was sentenced to a special assessment of $4,400. Both Gordon-Smith and GSC have appealed the sentences to the U.S. Court of Appeals for the Second Circuit. [Region 2]
6) United States v. Knapp, et al., No. 4:10-cr-00025-JEG (S.D. Iowa sentence entered June 22, 2011). Bobby Knapp, the owner of the Equitable Building in Des Moines, Iowa, pleaded guilty March 18, 2011, to conspiracy to violate the CAA and to violations of the CAA’s work practice standards related to asbestos removal. Knapp and his employee, Russell Coco, failed to remove all asbestos-containing material from a building before beginning a renovation project on the building that lasted from 2005 until 2008. Knapp was sentenced to 41 months in prison and two years probation. Coco pleaded guilty July 13, 2011, to the same charges as Knapp, and was sentenced to three years probation (42 ER 1380, 6/24/11). [Region 7]
7) United States v. Roempke et al., No. 2:10-cr-00062-JCC (W.D. Wash. sentence entered Jan. 7, 2011). Wolfgang Roempke pleaded guilty May 4, 2010, to the failure to properly remove asbestos, in violation of the CAA, during the demolition of a building he owned in Auburn, Wash. In May 2008, Roempke hired a certified inspector to inspect the property, which revealed rampant asbestos on the building’s ceiling, walls and wall paneling, windows, roofing, ventilation system, paneling and floor tile. Roempke took bids to lawfully remove the asbestos, which averaged $20,000. Rather than pay the $20,000, Roempke employed another inspector, Bruce Thoreen, to reassess the asbestos and minimize the contamination. Thoreen produced a false report that concluded the building contained no asbestos. In 2008, Roempke used employees of his car dealership, Auburn Valley Cars, to demolish the building without disclosing the presence of asbestos. Roempke was sentenced to 30 days in prison, three years of supervised release, and a $50,000 fine. [Region 10]
8) United States v. Soyars, No. 1:10-cr-00090-WYD (D. Colo. sentence entered Feb. 8, 2011). James Soyars, a licensed asbestos abatement supervisor, pleaded guilty Oct. 27, 2010, to violation of the CAA for the failure to dispose of asbestos-containing material at a regulated waste disposal site as soon as practical. From Sept. 9, 2005 to Aug. 28, 2006, Soyars, through his company Talon Environmental Inc., stored and instructed employees to store asbestos-containing materials at a Public Storage facility. Further, neither the bags containing the asbestos, nor the trucks used to transport the asbestos materials, were appropriately marked. Soyars was sentenced to six months in prison, six months home confinement, and a $435,477 restitution payment to the Public Storage facility where the waste was stored. [Region 8]
9) United States v. Sugar et al., No. 2:11-cr-00050-GLF (S.D. Ohio sentence entered Aug. 23, 2011). David Sugar, president and owner of Honey Creek Contracting Co. (Honey Creek) pleaded guilty March 8, 2011, to violation of the CAA for mishandling asbestos-containing materials. Sugar, as an agent of Honey Creek, purchased the Weirton Steel Plant, which contained asbestos, for the purpose of renovating the facility. Sugar failed to notify the Ohio EPA prior to removal of the asbestos and failed to properly handle the asbestos-containing materials according to work practice standards required by the CAA. Sugar was sentenced to three years supervised release with 15 consecutive weekends of incarceration, followed by 21 weeks home confinement and a $10,000 fine. Honey Creek was sentenced to a $30,000 fine and is required to pay for “baseline” chest x-rays for workers involved in the removal. [Region 5]
10) United States v. Yi et al., No. 2:10-cr-00793-PA (C.D. Cal. sentence entered June 7, 2011); United States v. Yoon, No 2:10-cr-00575-PA (C.D. Cal. sentence entered July 6, 2011). Charles Yi was convicted Mar. 29, 2011, and both Joseph Yoon and John Bostick of Los Angeles pleaded guilty Feb. 17, 2011, to conspiracy to violate the CAA’s asbestos work practice standards, and to violations of those standards for activities associated with the renovation of a 204-unit apartment complex in Winnetka, Calif., which was purchased by defendants through the real estate company Millennium Group, LLC. Defendants hired a group of workers neither certified nor trained in asbestos abatement to scrape the ceilings of the units without informing them of the presence of asbestos. The work exposed the unprotected workers to asbestos and resulted in the release of asbestos throughout the apartment complex and surrounding area. After the illegal renovation was shut down by an inspector from the Calif. South Coast Air Quality Management District, the asbestos was cleaned up at a cost of about $1.2 million. Yi was sentenced to 48 months in prison, Bostick was sentenced to three years probation, and Yoon was sentenced to two years probation. All three defendants were sentenced to a $5,400 restitution payment. [Region 9]
Clean Air Act (CAA) - Chlorofluorocarbons
11) United States v. Arnot, et al. No. 2:10-cr-00024-RWS-SSC-1 (N.D. Ga. sentence entered June 16, 2011). Daniel Arnot, Corey Beard, and Justin Joyner pleaded guilty, in December 2010 and February 2011, to conspiracy and violation of the CAA for the release of ozone-depleting substances into the environment. The defendants stole over-sized commercial air conditioners from businesses and dismantled them to sell the copper and aluminum parts to scrap metal recycling businesses. In order to access the metals, the defendants were required to cut a copper coil in each unit, which released hydrochlorofluorocarbon 22 (aka freon), an ozone-depleting substance. Defendants were sentenced to time served, three years supervised release, and $13,000 restitution (jointly and severally). Arnot was sentenced to a $1,300 special assessment, Beard was sentenced to a $1,000 special assessment, and Joyner was sentenced to a $200 special assessment. [Region 4]
Clean Air Act (CAA) - Other
12) United States v. Baker et al., No. 1:11-cr-00068-ODE -GGB-2 (N.D. Ga. sentence entered July 5, 2011). James Hinton, Michael Kelly and Jackie Baker pleaded guilty to conspiracy and violation of the CAA for the falsification of state vehicle emissions inspections. Hinton, a licensed emissions inspector at a “Stop N Shop” in Georgia, issued 1,400 false emissions certificates. During vehicle inspections, the defendants connected a “passing” vehicle to the emissions inspection equipment, and later manually entered the test vehicle’s make and model information into the computer system. This information was transmitted to the Georgia Environmental Protection Division. Kelly was sentenced to 24 months in prison, one year supervised release, and a special assessment of $100. Baker and Hinton were sentenced to two years probation and a special assessment of $100. Hinton was also sentenced to 50 hours of community service. [Region 4]
13) United States v. Chemical and Metal Industries, Inc. No . 3:08-cr-00028-RET (M.D. La. appeal pending Apr. 8, 2011); No. 11-30327 (5th Cir. Apr. 8, 2011). Chemical and Metal Industries, Inc. (C&MI), a manufacturer of the hazardous chemical antimony pentachloride, pleaded guilty Jan. 13, 2010, to negligent endangerment resulting in death in violation of the CAA. C&MI supplied its customers, including Honeywell International, Inc. (Honeywell) with antimony pentachloride for use in the manufacture of refrigerant products. In 2003, Delvin Henry, an employee of Honeywell, opened a one-ton cylinder labeled by CM&I as containing a “relatively benign refrigerant,” which released 1800 pounds of antimony pentachloride from the cylinder and resulted in Henry’s death. C&MI was sentenced to two years probation, a $1 million fine, and $2 million restitution to the victim’s estate. C&MI has appealed the sentence to the U.S. Court of Appeals for the Fifth Circuit. In a previous, separate action, Honeywell was sentenced to two years probation, an $8 million fine, and $4 million restitution. See USA v. Honeywell International, Inc., 3:07-cr-00031-RET-SCR-1 (M.D. La., sentence entered Sept. 24, 2007) (38 ER 407, 2/23/07). [Region 6]
14) United States v. Columbus Steel Castings Co., No. 2:11-cr-00180-JLG-1 (S.D. Ohio sentence entered Nov. 18, 2011). Columbus Steel Castings Company, Inc., the operator of a steel foundry in Columbus, Ohio, pleaded guilty July 20, 2011, to knowingly violating its CAA Title V permit. The permit violations included the failure to operate air pollution control equipment for four different emission sources at the foundry, the failure to report control equipment malfunctions and deviations, the failure to submit accurate annual compliance certifications, and the failure to perform required monitoring and stack testing. The company was sentenced to one year probation, a $660,000 fine, a $2,400 special assessment, and a $165,000 community service payment to two Columbus-area charitable organizations, and was required to install additional equipment to prevent air pollution at the foundry (42 ER 2625, 11/25/11). [Region 5]
15) United States v. Corn Plus, No. 0:11-cr-00315-JRT-1 (D. Minn. sentence entered Nov. 23, 2011). Corn Plus, a Minnesota Cooperative, pleaded guilty to knowingly making a false material statement, representation, and/or certification in a report required under the Clean Air Act for falsely certifying compliance with its CAA Title V Permit. Between 2008 and 2010, Corn Plus failed to report the appropriate air pressure readings on baghouses, a pollution control device designed to prevent the discharge of airborne particulate matter into the atmosphere. The company was sentenced to three years probation, a $450,000 fine, and a $400 special assessment, and was required to implement a compliance plan and associated training program for employees focused on the CAA and Corn Plus’s obligations under its Title V Permit (41 ER 294, 2/5/10). [Region 5]
16) United States v. Dickinson et al., No. 3:11-cr-00101-MOC-1 (W.D.N.C guilty plea entered April 14, 2011). Stephen Craig Dickinson pleaded guilty April 14, 2011, to conspiracy and violation of the CAA for the falsification of state vehicle emissions inspections. Dickinson worked at a used car dealership where he, in cooperation with three other men, employed a device to bypass state emissions inspections and provide a falsified passing result for vehicles. Dickinson faces up to five years in prison and a $250,000 fine. [Region 4]
17) United States v. Kinard, No. 3:11-cr-00340-RJC (W.D.N.C. guilty plea entered Nov. 17, 2011); United States v. Haney, No. 3:11-cr-00342-RJC (W.D.N.C. guilty plea entered Nov. 17, 2011). Ronald Kinard and Jack Haney pleaded guilty to conspiracy and violation of the CAA for the falsification of nearly 1,300 vehicle emissions inspections. Between January 2010 and August 2011, Kinard and Haney falsified emissions inspections at Kinard’s shop Autoworks by hooking up a “passed” vehicle to the diagnostics system during the inspection of other cars. Haney further made false statements to federal investigators regarding the number of falsified inspections that he performed. Kinard faces a maximum sentence of five years in prison and a $250,000 fine and Haney faces a maximum sentence of ten years prison and a $500,000 fine. [Region 4]
18) United States v. Pelican Refining Company LLC, No. 2:11-cr-00227-RTH (W.D. La. sentence entered Dec. 15, 2011); United States v. Hamilton, No 2:11-cr-00130-RTH (W.D. La. guilty plea entered July 6, 2011); United States v. LeBleu, No. 2:11-cr-00266-RTH (W.D. La. guilty plea entered Oct. 31, 2011). Pelican Refining Company (Pelican), owner and operator of a crude oil refining and asphalt production facility, pleaded guilty Oct. 12, 2011, to obstruction of justice and violations of the CAA for failure to operate the facility in compliance with its Title V permit. The violations included the failure to implement an environmental compliance plan, the bypass and improper maintenance of environmental control equipment, and the provision of false compliance information to the state. Pelican was sentenced to five years probation, a $10 million fine and $2 million in community service payments to the National Fish and Wildlife Foundation, the Louisiana State Police Emergency Services Unit, and the Louisiana Environmental Trust Fund. In associated cases, Byron Hamilton, vice president of operations for Pelican and Mike LeBleu, asphalt facilities manager for Pelican, both pleaded guilty to negligent endangerment violations of the CAA for causing the release of hazardous air pollutants into the atmosphere (42 ER 2292, 10/14/11). [Region 6]
19) United States v. Waked, No. 2:10-cr-00011-PMP (D. Nev. sentence entered Aug. 24, 2011). Wadji Waked pleaded guilty April 25, 2011, to a violation of the Clean Air Act for falsifying vehicle emission test results in the state of Nevada. The Nevada Department of Motor Vehicles, through its database that crosschecks vehicle VIN numbers against vehicles actually inspected by emissions testers, detected the false results submitted by Waked, as well as nine others in the state. Waked submitted approximately 343 falsified emissions records and was sentenced to three years probation and a $100 special assessment. [Region 9]
WATER CASES
Clean Water Act (CWA)
20) United States v. Acquest Transit, LLC et al., No. 1:11-cr-00347-WMS -JJM (W.D.N.Y indictment entered Nov. 9, 2011). William Huntress and his companies, Acquest Transit, LLC and Acquest Development, LLC were charged with conspiracy, obstruction of justice, making false statements, and violation of the CWA for the unpermitted filling of wetlands in Amherst, N.Y. According to the indictment, Huntress and his companies purchased property for commercial development purposes with the knowledge that wetlands existed on the property. The defendants filled portions of the wetlands without a permit and falsely stated to the EPA that the property was solely used for agricultural purposes. The defendants also allegedly violated EPA cease and desist orders issued in 2009 that prohibited earth-moving activities on the property from continuing unless authorized by the EPA or the U.S. Army Corps of Engineers. [Region 2]
21) United States v. Anderson, No. 2:11-cr-00145-PCE (S.D. Ohio sentence entered Sept. 7, 2011). John Anderson, the operator of a Wastewater Treatment Plant in the Village of Pomeroy, Ohio, pleaded guilty June 9, 2011, to violating the CWA by falsifying sampling results reported to the Ohio EPA. Anderson failed to collect and/or analyze effluent samples for the plant on multiple occasions in 2006, 2007, 2008, and 2009, but submitted Monthly Operating Reports to the Ohio EPA indicating that on these dates the effluent was in compliance with all required limits under the facility’s permit. Anderson was sentenced to three years of supervised release, including 12 months of home confinement, a $2,000 fine, and 104 hours of community service. Anderson will be prohibited from operating a sewage treatment plant for life. [Region 5]
22) United States v. Askew et al., No. 4:10-cr-00112-RBS-FBS-1 (E.D. Va. sentence entered Aug. 26, 2011). Marine Environmental Services, Inc. (MES) and MES’s manager Jerry Askew pleaded guilty May 16, 2011, to knowing violations of the CWA and the Refuse Act in connection with discharges from the cleaning of a tanker ship. MES, a tank cleaning company, was hired to clean a decommissioned tanker that contained 2.1 million gallons of polluted water containing bacteria, heavy metals, oil and grease. From October 2005 to July 2006, during the cleaning process, Askew directed MES employees to discharge approximately 500,000 gallons of the polluted water directly into the Elizabeth River in Norfolk, Va. Askew was sentenced to a $15,000 fine, 30 days home confinement, and one year supervised release. MES was sentenced to a $10,000 fine, five years probation, and the performance of a $60,000 community service project benefitting the Elizabeth River. [Region 3]
23) United States v. Biggio, No. 1:10-cr-00163-SEB-KPF-1 (S.D. Ind. sentence entered April. 12, 2011). Joe Biggio, former Executive Vice President of Ecological Systems, Inc. (ESI), pleaded guilty Oct. 21, 2010, to knowing violations of the CWA for failure to perform representative monitoring under the terms of ESI’s pretreatment permit. Biggio authorized ESI employees to collect and analyze multiple samples of the facility’s effluent, and to sample during rain events that diluted the discharge, in order to obtain results that reflected lower pollutant concentrations for submission to the City of Indianapolis municipal sewer system. Biggio was sentenced to three years probation and a $15,000 fine (66 DEN A-4, 4/6/11). [Region 5]
24) United States v. Darigold, Inc., No. 2:11-cr-00199-MAT-1 (W.D. Wash. sentence entered Dec. 1, 2011). Darigold, Inc. (Darigold), one of the country’s largest dairy companies, pleaded guilty June 15, 2011, to violations of the CWA and the ESA related to the discharge of ammonia into a creek near one of Darigold’s processing plants. The ammonia discharge to the creek was discovered during a fish survey that identified dead fish, including threatened species, near the plant. Further investigation linked the discharge to storm drains at the plant. The company engineer, Gerald Marsland, had previously repaired a refrigeration unit at the plant, causing the leakage of ammonia, which he allowed to enter the storm drains and flow into the creek. Darigold was sentenced, for both the CWA and ESA violations, to three years probation, a $10,000 fine, a $5,000 restitution payment, and a $60,000 community service payment. [Region 10]
25) United States v. DRD Towing Company, LLC, No. 2:10-cr-00191-ILRL (E.D. La. sentence entered Jan. 11, 2011); United States v. Dantin, No. 2:10-cr-00190-ILRL (E.D. La. sentence entered Jan. 19, 2011); United States v. Carver, No. 2:10-cr-00333-HGB (E.D. La. sentence entered Apr. 13, 2011); United States v. Bavaret, No. 2:10-cr-00334-MLCF (E.D. La. sentence entered Aug. 24, 2011). DRD Towing Company, LLC (DRD), a maritime company and operator of the tugboat M/V Mel Oliver, pleaded guilty Sept. 8, 2010, to violations of the Ports and Waterways Safety Act (PWSA) and the CWA stemming from actions associated with a collision between the tugboat and the tanker ship M/T Tintomara. The M/V Mel Oliver, and the fuel oil tanker barge it was pushing, crossed the path of the M/T Tintomara and collided with the vessel causing the release of 282,686 gallons of fuel oil into the Mississippi River in violation of the CWA. The improper assignment and staffing of crewmembers by DRD on the M/V Mel Oliver created a hazardous condition that facilitated the collision in violation of the PWSA. John Bavaret, the crewmember steering the ship at the time of the collision was not properly licensed to operate the ship without supervision. Terry Carver, the only licensed operator of the M/V Mel Oliver on the ship at the time of the collision, did not have a properly licensed operator to replace him. DRD was sentenced to two years probation, a $200,000 fine, and a $525 assessment. Randall Dantin, a co-owner of DRD, pleaded guilty Sept. 8, 2010, to obstruction of justice and was sentenced to 21 months in prison, two years of supervised release, and a $50,000 fine. In separate cases, both Bavaret and Carver pleaded guilty to violation of the PWSA. Bavaret was sentenced to six months in prison followed by three years supervised release and a $125 assessment. Carver was sentenced to three years probation and a $100 assessment (42 ER 1998, 9/9/11). [Region 6]
26) United States v. Freedman Farms, Inc. et al., No. 7:10-cr-00015-FL-1 (E.D.N.C. sentence entered Feb. 13, 2012). William Freedman and his company, Freedman Farms, Inc., pleaded guilty during trial on July 6, 2011, to a negligent and knowing violation of the CWA, respectively, for the discharge of waste from the company’s hog farming operation into a waterway in December 2007. The discharges stemmed from overfull waste lagoons on the property. Defendants were sentenced, jointly and severally, to a restitution payment of $1 million. Freedman Farms was sentenced to five years probation and a $500,000 fine. Freedman was sentenced to six months in prison, followed by six months home detention, and one year supervised release (43 ER 400, 2/17/12). [Region 4]
27) United States v. G&K Services, Inc. No. 4:10-cr-00106 (S.D. Iowa sentence entered Jan. 7, 2011). G&K Services, Inc. (G&K), operator of an industrial laundry facility, pleaded guilty Sept. 2, 2010, to negligent violation of the CWA for the discharge of wastewater not in compliance with the facility’s pretreatment permit. From October 2005 to August 2008, G&K discharged wastewater from the laundry facility that exceeded the permit limit of 400 mg/l for oil and grease. G&K was sentenced to a $450,000 fine, a special assessment of $125 to the Crime Victim Fund, and ordered to comply with the requirements of its pretreatment permit. [Region 7]
28) United States v. Hebert et al., No. 6:10-cr-00262-HFS (W.D. La. sentence entered Mar. 18, 2011). Environmental Compliance Solutions, LLC (ECS), and ECS’s president and part owner Sidney Hebert, pleaded guilty Sept. 22, 2010, to the negligent operation of a water treatment facility in violation of the Clean Water Act. Hebert allowed wastewater to bypass the facility’s filtration system and discharge into a canal located in the Port of Iberia. Herbert also failed to maintain required documentation, prepare reports, implement plans, and perform proper testing mandated by the permit. Hebert was sentenced to three years probation and a $1,800 fine. ECS was sentenced to a $50,000 fine and a $200 special assessment. [Region 6]
29) United States v. Indian Ridge Resort, Inc. et al No. 3:10-cr-05026-ODS-3 (W.D. Mo. guilty plea entered Nov. 21, 2011). Indian Ridge Resort, Inc. (Indian Ridge) and North Shore Investments, LLC (North Shore) both pleaded guilty Nov. 21, 2011, to violations of the CWA for noncompliance with the Missouri State Operating Permit governing the control of storm water discharges associated with industrial activity (General Permit). During construction of the Indian Ridge Resort Community, defendants failed to install adequate Best Management Practices (BMPs) for the control of storm water, failed to conduct adequate inspections of the site, and allowed storm water to discharge from the site. Under the terms of the plea agreement, defendants agreed to five years probation and to implement a compliance program designed to prevent further erosion and discharges from the site. Indian Ridge has also agreed to a $215,000 fine and North Shore has agreed to a $100,000 fine. [Region 7]
30) United States v. Integrated Production Services, Inc. No. 6:11-cr-00068-KEW-1 (E.D. Okla. guilty plea entered Oct. 11, 2011); United States v. Henson No. 6:11-cr-00050-KEW-1 (E.D. Okla. guilty plea entered July 20, 2011). Integrated Production Services, LLC, (IPS), a Houston-based natural gas and oil drilling contractor, pleaded guilty Oct. 11, 2011, to a negligent violation of the Clean Water Act for the discharge of acid-contaminated wastewater. In 2007, during hydraulic fracturing operations at the Pettigrew well site, a tank containing hydrochloric acid leaked onto the area located within the well’s earthen berm. After rainfall caused the contaminated area to flood, an IPS supervisor, Gabriel Henson, drove a company truck through the earthen berm and caused the discharge of over 400 gallons of acid-contaminated wastewater into a nearby creek. Under the terms of the plea agreement, IPS has agreed to two years probation, a $140,000 fine, a $22,000 payment to the Oklahoma Department of Wildlife Conservation, and to implement a $38,000 compliance and training program regarding proper hazardous waste handling and spill response procedures. In a separate case, Henson pleaded guilty July 20, 2011, to violation of the CWA and faces a $100,000 fine and up to one year in prison (42 ER 2310, 10/14/11). [Region 6]
31) United States v. Kie-Con Inc., No. 3:10-cr-00934-NC (N.D. Cal. sentence entered Sept. 9, 2011). Kie-Con Inc. (Kie-Con), a construction company specializing in pre-fabricated concrete products, pleaded guilty Sept. 1, 2011, to negligent violation of the CWA for discharges in violation of the permit for a Kie-Con facility. Kie-Con routinely discharged concrete process wastewater with high pH levels in violation of the facility permit into a storm drain that emptied directly to the San Joaquin River. Kie-Con was sentenced to three years probation, a $3.5 million fine, and a $1.5 million community service payment (42 ER 1998, 9/9/11). [Region 9]
32) United States v. Mabus, No. 1:11-cr-00555-JRM (D.S.C. sentence entered Sept. 22, 2011). John Mabus pleaded guilty May 24, 2011, to a negligent violation of the CWA for the discharge of wastewater into a navigable water body. Mabus, the owner of a construction company, implemented a sewer line construction project adjacent to a former textile mill. During digging for the sewer lines, contaminated water from an open lagoon on the textile site infiltrated the ditch. Mabus instructed his employees to pump the contaminated water into a nearby waterway for three days during the construction project. Mabus was sentenced to five years probation, including eight months of home confinement, and a $7,500 fine. [Region 4]
33) United States v. NH Environmental Group Inc. dba Tierra Environmental and Industrial Services, et al., No. 2:11-cr-00177-PPS (N.D. Ind. indictment entered Nov. 3, 2011). Tierra Environmental and Industrial Services (Tierra), Tierra’s owner Ronald Holmes, and Tierra’s manager Stewart J. Roth were indicted for violations of the CWA stemming from allegedly illegal discharges of wastewater to the sewer system. Tierra, which did not possess a permit to discharge the facility’s wastewater, was required to transport wastewater to other operators for proper treatment and discharge. According to the indictment, the defendants conspired to transport the wastewater to a closed facility owned by Holmes and discharged the wastewater directly from the closed facility to the sewer system. The maximum sentence for the charges is 23 years in prison and $1.75 million in fines. [Region 5]
34) United States v. Oak Mill, Inc. et al., No. 5:08-cr-06016-HFS (W.D. Mo. sentence entered June 8, 2011). Robert Arundale and his company Oak Mill, Inc. (Oak Mill), pleaded guilty Nov. 30, 2011, to negligent violations of the CWA for the discharge of wastewater in violation of the company’s pretreatment permit. Oak Mill uses acid to reclaim soybean oil from used vegetable oil, and has a permit to discharge wastewater from the process to the city POTW in compliance with federal pretreatment standards. In October 2006, the defendants discharged effluent to the POTW in violations of their permit’s pretreatment standards for nickel and zinc. Defendants were sentenced to five years probation, a $50,000 fine, and $4,000 restitution. [Region 7]
35) United States v. Patel, No. 3:10-cr-00724-WHA (N.D. Cal. sentence entered June 23, 2011). Dhiren Patel, a former environmental manager at a California beverage bottling facility, pleaded guilty March 16, 2011, to a knowing violation of the CWA for the discharge of pollutants in excess of the facility’s permit limit to a publicly owned treatment works. The indictment issued in the case also charged Patel with, among other things, tampering with a monitoring method by diluting permit samples and submitting false statements in the company’s discharge monitoring reports. Patel was sentenced to four months imprisonment, followed by one year of supervised release, and 100 hours of community service. Patel must also give four speeches to other environmental managers regarding his offense, protection of the environment, and his prison and community service experiences (42 ER 647, 3/25/11). [Region 9]
36) United States v. Pruett et al., No. 3:09-cr-00112 (W.D. La. appeal pending June 28, 2011). Jeffrey Pruett and his public water and wastewater treatment companies, Louisiana Land & Water Co. and LWC Management Co., were convicted by a jury Jan. 25, 2011, of violations of the CWA for failure to properly operate wastewater treatment facilities in seven residential Louisiana subdivisions, and the resultant illegal discharges of pollutants from those facilities. Pruett and his companies allowed the discharge of effluent without proper tertiary treatment at the facilities, allowed suspended solids and fecal coliform in treated effluent to exceed permit limitations at the facilities, and allowed the discharge of raw sewage into several residential neighborhoods from the facilities. The defendants were sentenced, jointly and severally, to a $310,000 fine. Pruett was sentenced to 21 months in prison followed by supervised release for one year. Defendants filed an appeal of the convictions in the U.S. Court of Appeals for the Fifth Circuit (40 ER 1381, 6/12/09). [Region 6]
37) United States v. Riddle Inc. et al., No. 1:10-cr-00118-LRR (N.D. Iowa sentence entered Mar. 17, 2011). Gene Riddle, owner of Riddle Inc., a manufacturer of circuit boards for electronic devices, pleaded guilty Nov. 18, 2010, to a negligent violation of the CWA in connection with the discharge of chemicals to a creek near his company’s property. On the same day, Riddle Inc., pleaded guilty to a violation of the Resource Conservation and Recovery Act in connection with the unpermitted storage of hazardous materials in a dilapidated building located 400 feet from the creek. The creek flooded in 1993, 2002, and 2009, allowing water to flow freely through the building and mix with the chemicals stored in the building. Riddle and the company were both sentenced to five years probation and a $273,261 restitution payment. Riddle was also sentenced to 120 hours of community service. [Region 7]
38) United States v. Smith, No. 3:09-cr-05590-BHS (W.D. Wash. sentence entered Jan. 11, 2011). Philip Smith, a commercial land developer, pleaded guilty Sept. 20, 2010, to knowing violation of the CWA for the unpermitted discharge of pollutants into a wetland. In 2005, Smith acquired 190 acres of property approximately 65 percent of which consisted of surface water and wetlands. Smith used mechanized land clearing equipment to excavate wetlands and stream channels and redeposit or discharge the excavated materials. In 2008, the EPA issued Smith an order to restore the damaged wetlands, and subsequently filed a separate civil case for his failure to comply. Smith was sentenced to three years probation, a $20,000 restitution payment, and 100 hours of community service. [Region 10]
39) United States v. Stolthaven New Orleans, LLC, No. 2:11-cr-00169-LMA (E.D. La. sentence entered Jan. 17, 2012). Stolthaven New Orleans, LLC (Stolthaven), operator of a bulk liquid storage and transfer terminal, pleaded guilty Oct. 13, 2011, to negligent violation of the Clean Water Act for the unpermitted discharge of fluorosilicic acid (FSA) into the Mississippi River. Stolthaven stored the highly corrosive, toxic FSA in stainless tanks from 2005 to 2008 during which time multiple leaks and discharges of FSA occurred. During this time, Stolthaven failed to provide rubber lined tanks to properly store the FSA, and failed to provide a backup storage tank for emergency purposes in the event of a catastrophic leak. On March 17, 2008, a major rupture occurred in the FSA tank, causing the release of approximately 50 gallons per minute of the acid. The FSA was collected in a secondary containment area adjacent to tanks containing other hazardous products. To prevent the FSA from mingling with these products and creating a greater harm to human health and the environment, Stolthaven discharged 454,465 gallons of FSA directly into the river. Stolthaven was sentenced to two years probation, a $200,000 fine, and a $150,000 community service payment split between the Louisiana State Police Emergency Services Unit, the Louisiana Department of Environmental Quality Hazardous Waste Cleanup Fund, and the Southern Environmental Enforcement Network Enforcement Training Fund. [Region 6]
40) United States v. Stricker et al., No. 1:10-cr-00505-SL-1 (N.D. Ohio sentence entered June 3, 2011). Brothers Thomas and Gregory Stricker and their metal plating company Stricker Refinishing Company, Inc. (SRC) pleaded guilty Jan. 6, 2011, to violations of the CWA for noncompliance with SRC’s pretreatment permit. Defendants bypassed SRC’s pretreatment process and discharged wastewater generated by the metal plating process, which contains metal nickel, copper, zinc and cyanide, directly into the City of Cleveland sewer system. The Stricker brothers were each sentenced to three years probation, the cost of prosecution, a $30,000 fine, a $25,000 community service payment to Ducks Unlimited, and 500 hours of community service. SRC was sentenced to two years probation, a $30,000 fine, and a $20,000 community service payment to Ducks Unlimited. [Region 5]
41) United States v. T.P. Construction, Inc., No. 4:11-cr-00065-RKS (D. Mont. sentence entered Sept. 19, 2011). T.P. Construction, Inc. (TP) pleaded guilty Sept. 23, 2011, to violation of the CWA for the negligent disposal of sewage. After T.P. pumped the septic tanks of residents of the Fort Belknap Reservation in November 2009, the driver of the septic truck, William Hinkle, opened the valve of the truck as he drove across the Reservation, thus releasing the waste. TP was sentenced to one year probation and a $25,000 fine. [Region 8]
42) United States v. Tuma et al., No. 5:11-cr-00031-TS (W.D. La. indictment entered Feb. 24, 2011). John and Cody Tuma, father and son, were both indicted Feb. 24, 2011, for conspiracy, obstruction of justice, and violations of the CWA for discharges of untreated wastewater to a local publicly owned treatment works (POTW) and directly into the Red River. The defendants operated a wastewater treatment facility that received wastewater from industrial processes and oilfield facilities. The treatment facility was contracted to treat the waste, and discharge it to either the POTW or the Red River. Defendants constructed pipes from the facility to the river to allegedly release 200,000 gallons of untreated waste daily, and diluted discharges to the POTW with fresh water. During a June 2007 EPA inspection, the defendants prevented the collection of effluent samples by staging an equipment malfunction (42 ER 448, 3/4/11). [Region 6]
43) United States v. Vierstra, No. 1:10-cr-00204-REB (D. Idaho appeal pending Aug. 10, 2011). Mike Vierstra was convicted March 23, 2011, of a negligent violation of the CWA for the discharge of process wastewater from a concentrated animal feeding operation (a dairy) into a local canal. The discharge, which entered the canal from a valve located in one of diary’s fields, was discovered by a local state dairy inspector. Once contacted by the inspector, Vierstra shut off the valve to cease the discharge and stated that one of his employees had left the valve open. On Aug. 3, 2011, Vierstra was sentenced to 60 days imprisonment, to be served on consecutive weekends until completion, three years supervised release, and a $12,000 fine. Vierstra has since appealed his conviction to the U.S. Court of Appeals for the Ninth Circuit. [Region 10]
Act to Prevent Pollution from Ships (APPS)
44) United States v. A.E. Nomikos Shipping Inv. Ltd. et al., No. 3:11-cr-00439-SI (D. Or. sentence entered Nov. 4, 2011). A.E. Nomikos Shipping Inv. Ltd. (Nomikos) and Lounia Shipping Co. Ltd. (Lounia) both pleaded guilty Nov. 2, 2011, to violating the APPS and making false statements. A U.S. Coast Guard investigation revealed that between June 2011 and Oct. 16, 2011, Lounia and Nomikos, through their employees, directed the crew of the ship Arion SB to run the ship’s oil water separator incorrectly. In particular, the Chief Engineer instructed the Second Engineer to pipe fresh water directly into the Oil Content Meter to prevent the overboard discharge of over 15 ppm of oil-contaminated waste. The Chief Engineer falsified the Oil Record Book to conceal the illegal discharge. Both defendants were sentenced to a $750,000 fine, a special assessment of $800, and three years probation during which they will be required to develop and implement an environmental compliance plan. [Region 10]
45) United States v. Cardiff Marine, Inc., No. 1:11-cr-00058-MJG (D. Md. sentence entered Mar. 17, 2011); United States v. Grifakis, No. 1:11-cr-00011-MJG (D. Md. sentence entered June 20, 2011). Cardiff Marine, Inc. (Cardiff), a Liberian-registered shipping company and operator of the M/V Capitola, pleaded guilty March 17, 2011, to violation of the APPS and obstruction of justice. A May 2010 U.S. Coast Guard investigation, launched after a crew member informed a clergyman of a “magic pipe” aboard the vessel, revealed the crew was bypassing pollution control equipment and discharging oily bilge wastes overboard into the ocean, and falsified the Oil Record Book to conceal the discharges. The crew of the M/V Capitola made false statements to U.S. Coast Guard inspectors regarding the discharges. Cardiff was sentenced to three years probation, a $2.4 million fine, and an $800 assessment. Dimitrios Grifakis, Chief Engineer of the M/V Capitola pleaded guilty May 4, 2011, to obstructing a federal investigation on board the vessel. Dimitrios instructed the crew to perform the illegal discharges, falsified the Oil Record Book, and failed to produce Daily Sounding Records to the U.S. Coast Guard during its investigation. Grifakis was sentenced to six months in prison, two years probation, and an assessment of $200 (42 ER 446, 3/4/11). [Region 3]
46) United States v. Epps Shipping Company, No. 3:11-cr-00058-DRD (D.P.R sentence entered Aug. 18, 2011). Epps Shipping Company (Epps) pleaded guilty Feb. 25, 2011, to violating the APPS and making false statements. Epps operated the M/V Carib Vision without operating pollution control equipment. During a Nov. 6, 2010, U.S. Coast Guard inspection it was discovered that the vessel lacked equipment to treat oily bilge before discharging it into the ocean. The crew admitted to discharging untreated bilge directly into the ocean, which was not recorded in the vessel’s Oil Record Book. Epps was sentenced to a $600,000 fine, an $800 special assessment, a $100,000 payment to the National Fish and Wildlife Foundation to rehabilitate coral reefs in Guanica Bay, and was required to develop and implement an environmental compliance plan. [Region 2]
47) United States v. Ilios Shipping Company S.A., No. 2:11-cr-00286-JCZ (E.D. La. guilty plea entered Dec. 13, 2011); United States v. Valentino Mislang, No. 2:11-cr-00262-HGB (E.D. La. sentence entered Dec. 21, 2011); United States v. Romulo Esperas, No. 2:11-cr-00263-SSV (E.D. La. sentence entered Dec. 13, 2011). Ilios Shipping Company S.A. (Ilios), operator of the M/V Agios Emilianos pleaded guilty Dec. 13, 2011, to violation of the APPS and obstruction of justice. From April 2009 to April 2011, the crew of the M/V Agios Emilianos circumvented the vessel’s pollution control equipment and released oily bilge wastes into the ocean. The crew concealed the discharges by falsifying the Oil Record Book. Under the terms of the plea agreement, Ilios has agreed to three years probation, a $1.75 million fine, a special assessment of $2,000, a $250,000 community service payment to the National Fish and Wildlife Foundation to restore marine resources, and will develop and implement an environmental compliance plan monitored by a third party. The master of the vessel, Valentino Mislang, pleaded guilty Oct. 19, 2011, to conspiracy to obstruct justice for instructing crewmembers to record false information in the Oil Record Book, and lie to the U.S. Coast Guard during an April 2011 inspection. Mislang was sentenced to three years probation. The chief engineer of the vessel, Romulo Esperas, also pleaded guilty Oct. 19, 2011, to conspiracy to obstruct justice for ordering the illegal discharge and falsely recording information in the Oil Record Book. Esperas was sentenced to three years probation. [Region 6]
48) United States v. Koo’s Shipping Company S.A., No. 1:11-cr-00034-GK-1 (D.D.C. sentence entered Apr. 4, 2011). Koo’s Shipping Company S.A. (Koo’s), a Taiwanese corporation and operator of the M/V Syota Maru, pleaded guilty March 31, 2011, to violations of the APPS and making false statements. Koo’s, through crewmembers of the M/V Syota Maru, knowingly bypassed pollution prevention equipment and discharged oily bilge wastes directly into Pago Pago Harbor, American Samoa, and falsified the vessel’s Oil Record Book to conceal the illegal discharges. The company was sentenced to three years probation, a $750,000 fine, a $1,200 special assessment, and a $250,000 community service payment. [Region 3]
49) United States v. Noka Shipping Company Ltd. et al., No. 2:11-cr-00534-JGJ (S.D. Tex. sentence entered June 20, 2011). Noka Shipping Company Ltd. (Noka), operator of the M/V Florian, pleaded guilty June 7, 2011, to violation of the APPS and violation of the Ports and Waterways Safety Act (PWSA). Noka, through the senior crewmembers of the M/V Florian, concealed the illegal discharge of oil directly into the ocean and falsification of the discharges in the Oil Record Book in violation of the APPS. In violation of the PWSA, Noka failed to report safety hazards on the vessel, in the form of excess oil in bilges and machinery spaces, oil leaks in the main engine and generators, and oil in the ship’s fire suppression system. The crew of the M/V Florian failed to remedy the issues after identification during a U.S. Coast Guard investigation. Noka was sentenced to five years probation, a $750,000 fine, and a $150,000 community service payment to the National Marine Sanctuary Foundation. [Region 6]
50) United States v. Sanford Ltd., No. 1:11-cr-00352-BAH (D.D.C indictment entered Dec. 6, 2011). The New Zealand based company Sanford Ltd. (Sanford), operator of the F/V San Nikunau, was indicted Dec. 6, 2011, for violations of the APPS, conspiracy, making false statements, and obstruction of justice. The indictment alleges that Sanford, acting through the crew of the F/V San Nikunau, took part in a conspiracy to illegally discharge oily bilge wastes from the vessel and conceal the discharges by recording false information in the Oil Record Book. During a July 2011 U.S. Coast Guard investigation, the company allegedly presented false information to inspectors, informing them that the vessel only discharged water overboard. Sanford faces up to a $3.5 million fine and a $24 million forfeiture. [Region 3]
51) United States v. Stanships, Inc., et al., No. 2:11-cr-00057-CJB (E.D. La. guilty plea entered Apr. 12, 2011). Stanships, Inc. (Marshall Islands), Stanships, Inc. (New York), Standard Shipping, Inc., and Calmore Management Ltd., operators of the M/V Americana, pleaded guilty April 12, 2011, to violations of the APPS and PWSA. A November 2010 U.S. Coast Guard investigation revealed that crew of the vessel deliberately pumped engine waste overboard and falsified the Oil Record Book to conceal the illegal discharges in violation of the APPS. In violation of the PWSA, the defendants failed to report a hazardous situation on the vessel, in the form of malfunctioning generator. The defendants were each sentenced to five years probation, a $750,000 fine, and a $250,000 community service payment to the National Fish and Wildlife Foundation for conservation and protection of wildlife in Louisiana. [Region 6]
52) United States v. Uniteam Marine Shipping GmbH, No. 3:11-cr-00195-CCC-1 (D.P.R. sentence entered Sept. 8, 2011). Uniteam Marine Shipping GmbH (Uniteam), a German corporation, operator of the M/C CCNI Vado Ligure, pleaded guilty May 19, 2011, to violating the APPS and making false statements. During a May 2010 inspection by the U.S. Coast Guard, excessive amounts of oil in the discharge lines of the vessel’s oil water separator were discovered. Further investigation revealed that the crew of the vessel manipulated the oil water separator and discharged oily bilge wastes into the ocean, which were not recorded in the Oil Record Book. Uniteam was sentenced to three years supervised probation, a $600,000 fine, an $800 assessment, a $200,000 community service payment to the National Fish and Wildlife Foundation, and was required to implement a comprehensive advanced pollution prevention training and verification program to monitor vessel operations and train crewmembers. [Region 2]
Rivers & Harbors Act
53) United States v. Betz et al., No. 6:11-cr-60090-AA (D. Or. plea agreement entered Aug. 22, 2011). Stephen Betz and Geraldine Ponder pleaded guilty to violating the Rivers and Harbors Act for dumping truckloads of rock into the McKenzie River in November 2008 for the purpose of creating a dam. The McKenzie River provides drinking water to Eugene, Ore., and hosts Chinook salmon and bull trout, both threatened species. Neither Betz nor Ponder had obtained the permit necessary to discharge into the river. Both Betz and Ponder were sentenced to three years probation. Betz will pay a $6,500 fine and make a $3,500 community service payment. Ponder will pay a $1,625 fine and make an $875 community service payment. [Region 10]
Safe Drinking Water Act (SDWA)
54) United States v. Beckman, et al., No. 2:10-cr-04021-NKL (W.D. Mo. sentence entered Dec. 1, 2011). Scott Allan Beckman, the former mayor of Stover, Mo., and Richard Sparks, the former superintendent of Stover’s public works department, were both sentenced to probation and criminal fines for the submission of falsified drinking water samples to the state in violation of the SDWA. Sparks submitted drinking water sampling records to the Missouri Department of Natural Resources that contained a falsified sampling location as well as analyses of samples that had been treated with chlorine prior to testing. Sparks was sentenced to five years probation and a $5,000 fine. Beckman was convicted of lying to federal officials regarding his knowledge of Sparks’ activities regarding the falsified sampling records. Beckman was sentenced to 10 years probation, a $10,000 fine and banned from working for state government. [Region 7]
55) United States v. King, No. 09-30442 (9th Cir. judgment entered Oct. 3, 2011) (originating case No. 4:08-cr-00002-BLW-1 (D. Idaho sentence entered Dec. 15, 2009)). The U.S. Court of Appeals for the Ninth Circuit upheld the 2009 conviction of Cory King for violation of the SDWA. In 2005, King had farm workers inject excess surface fluids, without a permit, into four deep irrigation wells on his property. King subsequently made false statements regarding the injections to inspectors from the Idaho Department of Agriculture. King was sentenced to three years probation and a $5,000 fine. [Region 10]
WASTE CASES
Resource Conservation and Recovery Act (RCRA)
56) United States v. Fromdahl, No. 4:11-cr-00033-SEH-1 (D. Mont. sentence entered Dec. 19, 2011). Robert Fromdahl pleaded guilty June 2, 2011, to one count of transporting hazardous waste to an unpermitted facility, and to one count of storing hazardous waste without a permit. Fromdahl was charged after a Wolfe Point, Mont.-area rancher found 44 drums of unknown waste on a property he was leasing from the Fort Peck Indian Reservation. The drums, the majority of which contained highly acidic hazardous waste, were tracked to Fromdahl’s defunct Classic Plating business. The business never obtained a permit for transporting the substances from its facilities, or for storing them offsite. Fromdahl was sentenced to three years probation, and ordered to pay $51,594 in restitution. [Region 8]
57) United States v. Honeywell International, Inc., No. 4:11-cr-40006-JPG (S.D. Ill. sentence entered Mar. 18, 2011). Honeywell International Inc. (Honeywell) pleaded guilty March 11, 2011, to knowingly storing hazardous waste without a permit in violation of RCRA. Honeywell owns and operates a uranium hexafluoride conversion facility near Metropolis, Ill. The company is licensed by the U.S. Nuclear Regulatory Commission to possess and manage natural uranium, which it converts into nuclear fuel. Air emissions from the facility’s fuel conversion process are scrubbed with potassium hydroxide, or KOH, prior to discharge. In April 2009, EPA special agents executed a search warrant at the facility and found nearly 7,500 illegally stored KOH mud drums (both radioactive and hazardous). Honeywell was sentenced to five years probation, an $11.8 million fine, and a $200,000 community service payment. [Region 1]
58) United States v. Miami Air International, Inc., No. 1:10-cr-20901-FAM-1 (S.D. Fla., sentence entered Jan. 20, 2011). Miami Air International, Inc. (MAII), a Florida corporation, pleaded guilty to the illegal storage and disposal of hazardous oxygen generators and personal breathing equipment in violation of RCRA. The subject equipment was removed from a commercial aircraft owned by MAII and stored at a facility that did not have a permit. MAII was sentenced to three years probation, a $125,000 fine, and was required to implement a comprehensive Environmental Compliance Plan. [Region 4]
59) United States v. Overdorf, No. 9:11-cr-00018-MAC -ZJH-1 (E.D. Tex. guilty plea entered Mar. 18, 2011). David Overdorf, former owner and president of the chemical transportation company H.O.T. Transport Inc. (HOT) pleaded guilty to one count of violating RCRA by disposing hazardous waste material without a permit. HOT employees were directed by Overdorf to wash the interiors of tanks containing hazardous waste and to pump the wastewater into empty tanks. Overdorf directed one of his employees to transport 45,000 tons of this highly ignitable, hazardous wastewater from HOT’s facility to a company in Houston, Texas for disposal. As part of his plea agreement, Overdorf will hire an independent environmental engineering firm to examine the extent of soil damage at HOT’s facilities. Under the terms of the plea agreement, Overdorf faces up to $250,000 in clean-up costs for any contamination on the site, a $50,000 fine, and up to five years in prison. [Region 6]
60) United States v. Smith, No. 3:11-cr-280-RJC (W.D.N.C guilty plea entered Sept. 28, 2011); United States v. Doolin-Smith, No. 3:11-cr-00146-RJC (W.D.N.C. guilty plea entered June 14, 2011). Brian Smith and Kaara Doolin-Smith pleaded guilty to separate charges for the illegal storage and disposal of hazardous waste in violation of RCRA in September and June of 2011, respectively. The defendants owned and operated Dove Environmental Services, a hazardous waste transportation company, from July to November 2010. During that time period, the defendants stored 90 containers of hazardous waste at a public rental storage facility. The storage was discovered in October 2010 after the defendants failed to make rental payments on the storage units. Several of the generators identified on the hazardous waste containers reported contracting Dove to dispose of the waste as far back as 2007. The discovery prompted an emergency response from the Superfund Branch of EPA. [Region 4]
61) United States v. Wyman, No. 2:09-cr-00577-GHK (C.D. Cal. appeal pending Nov. 21, 2011); No. 11-50493 (9th Cir. Nov. 21, 2011). Edward Wyman was convicted April 5, 2011, of illegally storing ignitable hazardous waste on his property in violation of RCRA. Wyman was criminally charged in June 2009 after a fire and subsequent explosions occurred at his home. During the ensuing clean-up, the discovery of hazardous material resulted in seven calls to the Los Angeles Police Department Bomb and Arson Squad. Wyman was sentenced to five years in prison and a $799,117.18 restitution payment. Wyman has appealed the conviction and sentencing to the U.S. Court of Appeals for the Ninth Circuit. [Region 9]
Toxic Substances Control Act (TSCA)
62) United States v. Murrell, No. 1:11-cr-00330-BEL-1 (D. Md. guilty plea entered July 19, 2011). Cephus Murrell pleaded guilty July 19, 2011, to three violations of TSCA for lead-based offenses. Murell owned and managed more than 200 rental properties and rental housing units in the Baltimore area. Murrell knowingly and intentionally failed to disclose the presence of lead-based paint hazards to his tenants and potential tenants and violated lead-paint abatement regulations by having lead abatement work performed while children were present on the site and without the presence of a properly certified supervisor. Murrell faces a sentence of up to one year in prison followed by one year supervised release and a fine of $100,000 or not more than $25,000 for each day of violation, whichever is greater. [Region 3]
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
63) United States v. Buerman, No. 1:10-cr-00072-ML (D.R.I. sentence entered Mar. 3, 2011). John Buerman, an eBay salesman with an online store called Catsmartplus, pleaded guilty to the trafficking, distributing, and selling of unregistered, mislabeled pesticides for cats and dogs under the trademark-infringed brands of “Frontline” and “Frontline Plus.” Buerman falsely represented that the unregistered, mislabeled products were EPA approved. Federal agents discovered the products during the execution of a search warrant based on a tip from a Los Angeles area customer whose cat had an adverse reaction to one of Buerman’s products. Buerman was sentenced to three years in prison for the FIFRA violations, and to a two-year concurrent sentence on related gun charges, followed by three years supervised release. [Region 1]
64) United States v. Bugman Pest and Lawn, Inc. et al., No. 1:11-cr-00017-DB (E.D. Utah sentence entered Jan. 10, 2012). Bugman Pest and Lawn, Inc. (Bugman) and Coleman Nocks, an employee of Bugman, pleaded guilty to misapplication of a pesticide in violation of FIFRA. Nocks, as an agent of Bugman, applied the pesticide Fumitoxin within 15 feet of a house in excess of the maximum dosage. The application allegedly lead to the deaths of two children.
65) United States v. Ferreira, No. 1:10-cr-10245-JLT-1 (D. Mass. sentence entered Nov. 30, 2011). Josimar Ferreira pleaded guilty Sept. 1, 2011, to the misapplication of a pesticide in violation of FIFRA. Between 2007 and 2010, Ferreira, in the operation of his business, TVF Pest Control, Inc., claimed he could exterminate bedbugs with a “special mixture” of pesticides approved for indoor application. The “special mixture” was in fact Malathion, an EPA regulated pesticide that is not approved for indoor use. Ferreira was sentenced to two years probation and a $3,000 fine. [Region 1]
66) United States v. Rudolph, No. 3:11-cr-00025-RLY (S.D. Ind. sentence entered Oct. 27, 2011); United States v. Jochem, No. 3:11-cr-00026-RLY (S.D. Ind. sentence entered Oct. 27, 2011); United States v. Rudolph, No. 3:11-cr-00027-RLY (S.D. Ind. sentence entered Oct. 27, 2011); United States v. Ficker, No. 3:10-cr-00033-RLY (S.D. Ind. sentence entered Jan. 26, 2011). Michael Jochem, a certified pesticide applicator, Paul Ficker, John Rudolph, and David Rudolph pleaded guilty to the misuse of the pesticide furadan under FIFRA. Jochem originally provided concentrated furadan, an acutely toxic pesticide, to Paul Ficker, who used the pesticide to kill birds on his property in June 2008. Ficker passed the remaining Furadan to John Rudolph, who used it in the same manner, and Rudolph passed the pesticide on to his brother David Rudolph, who also used it in the same manner. Jochem, as a certified applicator under FIFRA, was required to either apply or supervise the application of the furadan. Neither Ficker nor the Rudolphs were certified pesticide applicators. Jochem was sentenced to six months probation and a $5,000 fine, and the Rudolphs were sentenced to a $5,000 fine. Ficker, who also pleaded guilty to making false statements, was sentenced to two years probation and a $10,000 fine. [Region 5]
WILDLIFE CASES
Endangered Species Act (ESA)
67) United States v. Demorest, No. 4:11-po-00217-REB (D. Idaho sentence entered Oct. 25, 2011). Thomas Demorest pleaded guilty to a knowing violation of the ESA for the operation at Diamond D Ranch, without a permit, of irrigation diversions that lacked fish screens. The irrigation diversion led to the take of threatened Chinook salmon and bull trout. Demorest was sentenced to a $625 fine and two years probation during which time he cannot serve in a management position at the Diamond D Ranch. [Region 10]
68) United States v. Hawk Field Services LLC, No. 4:11-cr-00060-HDY (E.D. Ark. sentence entered Sept. 14, 2011). Hawk Field Services LLC (Hawk), a wholly-owned subsidiary of Houston-based Petrohawk Energy Corp., pleaded guilty in federal court in Little Rock, Ark. on April 8, 2011, to three counts of taking an endangered species. Hawk was involved in activities related to the development of natural gas properties in the Fayetteville Shale in north-central Arkansas. Hawk admitted to improperly controlling erosion during construction of a well, from October 2008 to April 2009, which caused the buildup of sediment in a nearby stream. The sedimentation resulted in the take of at least one endangered speckled pocketbook mussel. Hawk was sentenced to three years probation, a $350,000 fine, and a $150,000 community service payment to the National Fish and Wildlife Foundation. [Region 6]
69) United States v. Kinder Caviar, Inc. et al., No. 1:11-cr-00035-MRB (S.D. Ohio guilty plea entered Jan. 17, 2012). Kinder Caviar, Inc. (Kinder Caviar), Black Star Caviar Co. (Black Star), Steve Kinder, and Cornelia Kinder were charged March 14, 2011, with the trafficking and false labeling of illegally harvested paddlefish in violation of the Lacey Act. Paddlefish, the eggs of which are marketed as caviar, are protected under federal and Ohio law. The paddlefish population has sharply declined in recent years as a result of overfishing to meet an increased demand for caviar. Between March 2006 and December 2010, the defendants allegedly harvested paddlefish in Ohio waters illegally, and submitted false reports regarding the harvest to the U.S. and Kentucky Fish and Wildlife Services. All four defendants pleaded guilty in January 2012. Black Star and Kinder Caviar each pleaded guilty to one felony labeling violation, and the Kinders each pleaded guilty to one misdemeanor trafficking violation. The individual defendants face up to five years in prison and a $250,000 fine per count. [Region 5]
70) United States v. Place, No. 1:09-cr-10152-NMG and 11-1246 (D. Mass. appeal pending Mar. 9, 2011). David Place, the owner of Manor House Antiques Cooperative in Nantucket, Mass., was sentenced March 1, 2011, to 33 months in prison for the illegal importation and trafficking of the tusks of narwhal whales, an ESA threatened species, and the teeth of sperm whales, an ESA endangered species. Place filed an appeal of the conviction and sentencing on March 9, 2011. [Region 1]
71) United States v. Pugh, et al., No. 9:11-cr-00011-MAC (E.D. Tex. sentence entered Mar. 17, 2011). John Pugh, Wilbur Davenport, and Cole Brothers Inc., pleaded guilty Feb. 22, 2011, in the U.S. District Court for the Eastern District of Texas, to violations of the ESA. Pugh and Cole Brothers Inc., were charged with unlawfully purchasing and selling two Asian elephants, which are listed as an endangered species. The elephants, owned by the circus organization Cole Brothers Inc., were leased to Davenport in 2005. In August 2009, the U.S. Department of Agriculture confiscated one of the elephants from Davenport and then Davenport abandoned the other to the U.S. Fish and Wildlife Service. Pugh and Davenport were sentenced to three years probation and 300 hours of community service. Pugh was ordered to pay a $4,000 fine, and a $1,200 payment to organizations working for the conservation and/or rehabilitation of Asian elephants. Davenport was sentenced to a $5,200 fine, and Cole Brothers Circus was sentenced to four years of probation with a fine of $150,000. [Region 6]
72) United States v. Xu, No.1:11-cr-00777-JBW (E.D.N.Y guilty plea entered Dec. 6, 2011). On Sept. 17, 2011, Lin Feng Xu, a Chinese national, was discovered carrying 18 ivory carvings in his luggage. Xu admitted he knew the carvings were ivory, that they were valued at approximately $50,000, and that it was a crime to export the ivory from the United States without proper documentation. On Dec. 6, 2011, Xu pleaded guilty to transporting the ivory in violation of the ESA, and faces a maximum fine of $350,000 and 11 years in prison. [Region 2]
Lacey Act
73) United States v. Birkbeck, No. 1:11-cr-10224-RWZ (D. Mass. guilty plea entered Nov. 30, 2011). Daniel Birkbeck, a commercial fisherman that operated in Rhode Island and Massachusetts, pleaded guilty to violations of the Lacey Act for illegally harvesting 12,140 pounds of striped bass off Rhode Island. Birkbeck harvested the striped bass after the close of the commercial fishing season in Rhode Island and falsely reported that he legally harvested the fish off Massachusetts. Birkbeck faces up to five years in prison and a $250,000 fine per count in violation of the Lacey Act. [Region 1]
74) United States v. Blyth et al., No. 1:10-cr-00011-CG (S.D. Ala. sentence entered May 4, 2011). Karen Blyth, David Phelps, and John Popa pleaded guilty to violations of the Lacey Act for trafficking and misbranding seafood. The defendants used the companies Consolidated Seafood and Reel Fish to smuggle 283,500 pounds of farm-raised catfish from Vietnam (known as sutchi) into the United States as wild-caught sole in order to avoid paying anti-dumping duties totaling $145,625. Defendants also mislabeled both the sutchi and 25,000 pounds of perch from Lake Victoria as grouper or snapper, and conspired to sell farm-raised foreign shrimp as wild-caught U.S. shrimp. Some of the fish seized by authorities was found to contain malachite green and Enrofloxin, which are prohibited chemicals in U.S. food. Blyth was sentenced to 33 months in prison, Phelps was sentenced to 24 months in prison, and John Popa was sentenced to 13 months in prison. Blyth and Phelps were each fined $5,000 and all three defendants were sentenced to three years supervised release during which time they are prohibited from participating in the seafood industry. [Region 10]
75) United States v. Butler, et al., No. 6:10-cr-10089-WEB (D. Kan. appeal filed July 15, 2011); No.11-3202 (10th Cir. July 15, 2011). James Bobby Butler, Jr. and Marlin Jackson Butler pleaded guilty March 16, 2011, to conspiracy and wildlife trafficking charges for provision of illegal guided deer hunts in southern Kansas in violation of the Lacey Act, and James Butler pleaded guilty to one count of obstruction of justice. The Butlers sold guiding services totaling $775,000 to illegally hunt and kill white-tailed and mule deer. The hunters guided by the Butlers killed deer above the annual bag limits, hunted without permits or with improper permits, and used illegal equipment and/or prohibited methods. James Butler was sentenced to 41 months in prison, three years probation, a $25,000 fine, and $25,000 in restitution. Marlin Butler was sentenced to 27 months in prison, three years probation, a $10,000 fine, and $10,000 in restitution. The Butlers have filed appeals of their sentencing in the U.S. Court of Appeals for the Tenth Circuit. [Region 7]
76) United States v. Dees, No. 3:11-cr-00030-BAJ (M.D. La. sentence entered Aug. 10, 2011). Larry Dees Sr. and Larry Dees Jr. pleaded guilty to Lacey Act violations for guiding sport hunters into areas where the hunting of American alligators, an endangered species, is unauthorized. On Sept. 10, 2009, the duo led a sport hunter into an unauthorized area and the hunter killed a 9'4” alligator. The Dees guided a similar hunt from Sept. 24 to 25, 2009. The Dees were each sentenced to three years of probation and a $2,000 fine. The fine against Larry Dees Jr., however, was suspended due to inability to pay. During the first year of probation, the Dees will be prohibited from all hunting activities of any kind, including guiding, and for the remaining two years will be specifically prohibited from commercial alligator hunting activities, including guiding. [Region 6]
77) United States v. Delaney et al, No. 1:09-cr-10312-RGS (D. Mass. sentenced entered Sept. 27, 2011). Stephen Delaney, president of South Shore Fisheries, was convicted of a felony violation of the Lacey Act April 8, 2011, for falsely labeling $8,000 worth of frozen Pollock fillets (from China) as Cod loins (from Canada). The price of Cod is approximately $1 per pound higher than the price of Pollock. Delaney was also convicted on one misdemeanor violation of the Food, Drug and Cosmetic Act for misbranding about $203,000 worth of Chinese frozen fillets as products of Canada, Holland, Namibia and the United States. Delaney was sentenced to one year probation, to include three months home detention, and a $5,000 fine. [Region 1]
78) United States v. Ertel No. 3:11-cr-00227-HEH-1 (E.D. Va. guilty plea entered Oct. 3, 2011). Richard M. Ertel of Spotsylvania, Va., pleaded guilty to two felony violations of the Lacey Act for importing and selling the teeth of sperm whales, an endangered species under the ESA. Under the Lacey Act, it is illegal to import endangered mammal parts into the United States without required permits and certifications, and without declaring the merchandise to U.S. Customs and the U.S. Fish and Wildlife Service at the time of importation. Ertel admitted that from April 2002 to June 2007, he bought sperm whale teeth from sources in the Ukraine and sold the teeth, mostly via the internet, to customers in Virginia and elsewhere in the United States. Ertel faces up to five years in prison and a fine of up to $250,000 for each count in violation of the Lacey Act. [Region 3]
79) United States v. GEM Manufacturing LLC, No. 2:11-cr-00019 (D. V.I. sentence entered Oct. 26, 2011). GEM Manufacturing (GEM) pleaded guilty July 15, 2011, to violations of the ESA and Lacey Act for knowingly trading in falsely and uncertified labeled black coral, a protected species. GEM used the coral in the manufacture of high-end jewelry and art figurines. Over the last few decades, pressures from overharvesting and the introduction of invasive species have threatened this black coral. GEM was sentenced to a $1.8 million fine, $500,000 in community service payments, and the forfeiture of jewelry and sculptures worth $1.4 million, as well as 13,655 pounds of raw black coral valued at up to $1.02 million. The company will serve three years probation and submit to a ten-point compliance plan. GEM is also prohibited from doing business with both Peng Chia Enterprise Co. Ltd. (Peng Chia), the supplier of the black coral, as well as Ivan and Gloria Chu, Peng Chia’s former management team, who were sentenced for related crimes in 2010. [Region 2]
80) United States v. Langella, No. 5:11-cr-00302-SLB-HGD (N. D. Ala. indictment entered July 25, 2011). David Langella was charged with alleged violations of both Lacey Act and state law for transporting and selling protected reptiles from Arizona in Alabama. The alleged violations occurred between 2006 and 2009 and include the capture of the reptiles, the provision of services to guide others in the capture of the reptiles, the transport of the reptiles, the use of false shipping labels during transport of the reptiles, and the obstruction of law enforcement officers by concealing the illegally captured reptiles. Langella faces up to five years in prison and a fine of up to $250,000 for each count in violation of the Lacey Act. [Region 4]
81) United States v. Martinez et al., No. 3:10-cr-00038 (M.D. La., sentence entered Sept. 20, 2011). Two brothers pleaded guilty Sept. 13, 2011, to Lacey Act violations for their role in illegally killing American alligators in violation of the ESA and Louisiana law. In October 2005 and September 2006, Clint Martinez, a licensed alligator hunter, and his brother Michael Martinez, a licensed alligator helper, guided out-of-state alligator sport hunters to unauthorized hunting areas. During the October 2005 hunt, the clients killed an alligator over ten feet, and during the September 2006 hunt, the clients killed an alligator over ten feet and a twelve-foot alligator. The brothers were each sentenced to three years probation, a $5,000 fine, and 200 hours of community service. During the first year of probation, the brothers will be prohibited from engaging in hunting activities of any kind, including guiding and during the remaining two years the brothers will be specifically prohibited from engaging in all commercial alligator hunting activities, including guiding.
82) United States v. Reeves et al., No. 1:11-cr-00520-JBS (D.N.J. indictment entered Aug. 16, 2011). Todd and Thomas Reeves and several others were indicted on allegations that the men harvested oysters from the Delaware Bay in excess of quota limits in violation of the Lacey Act between 2004 and 2007. The defendants’ company, Reeves Brothers, allegedly falsified the numbers of oysters harvested. The defendants allegedly conspired with Harbor House, a purchaser of oysters, to falsify oyster sales records to reflect lower than the actual numbers. If the defendants are found guilty of violating the Lacey Act, the ten vessels allegedly used in the illegal harvesting will be subject to forfeiture, and each defendant faces prison time and a fine of up to $250,000 for each count in violation of the Lacey Act. [Region 2]
83) United States v. Wright, No. 1:11-cr-00103-MRB (S.D. Ohio guilty plea entered Feb. 24, 2012). Allan Wright, a wildlife officer for Ohio’s Department of Natural Resources (ODNR) was indicted Aug. 17, 2011, for violations of the Lacey Act including falsely obtaining an Ohio resident hunting license for a legal resident of South Carolina, and processing deer kills by the recipient of the license through the ODNR. Wright used his capacity as wildlife officer to confiscate deer antlers from an illegal kill and later stated that he destroyed the antlers even though he had sent them to an individual in Michigan in 2009. Wright pleaded guilty to the charges Feb. 24, 2012, and faces up to five years in prison and a fine of up to $250,000 for each count in violation of the Lacey Act. [Region 5]
Migratory Bird Treaty Act (MBTA)
84) United States v. Parawan, No. 4:11-cr-00023-HSM (E.D. Tenn. sentence entered Jan. 31, 2012). Lawrence Parawan pleaded guilty to violation of the MBTA Oct. 17, 2011, for killing a Northern Harrier Hawk, which is protected under the Treaty, with the misuse of the pesticide Furadan. In December 2010, Parawan covered a chicken carcass with the pesticide and placed the carcass on his property to poison predators. The pesticide-covered carcass poisoned the Northern Harrier Hawk and several other wild animals. Parawan was sentenced to four years probation and a $500 fine. [Region 4]
OTHER
Other – Wire Fraud
85) United States v. Patterson, No. 2:10-cr-20247-PJD (E.D. Mich. sentence entered Feb. 8, 2011). Donald Patterson, a former inspector for the City of Detroit Health Department, pleaded guilty July 9, 2010, to wire fraud in connection with fraudulent lead paint abatement activities. Patterson, in his role as an inspector, was required to inspect residences where children with high blood lead levels were said to be residing. Patterson threatened residents with prosecution or child neglect charges and solicited cash in return for false certifications of lead paint abatement or abatement training. Patterson was not qualified to provide these certifications, and in some situations, his actions exacerbated the presence of the lead paint. Patterson was sentenced to 46 months in prison and a $662 restitution payment. [Region 5]
Other – Conspiracy/False Statements
86) United States v. Clark, No. 1:11-cr-00063-HSM (E.D. Tenn. sentence entered Feb. 6, 2012). Donald Jack Clark pleaded guilty Sept. 27, 2011, to making false statements in Discharge Monitoring Reports (DMRs) required to be filed under the CAA in violation of
87) United States v. DeLeon, No. 1:07-cr-10277-NMG (D. Mass. appeal pending Oct. 4, 2011). Albania DeLeon was found guilty Sept. 14, 2011, of conspiracy and making false statements in connection with the operation of her business, which placed illegal aliens fraudulently trained in asbestos abatement in temporary employment positions. To facilitate the fraudulent trainings, DeLeon had the illegal aliens sign asbestos abatement exam answer sheets and kept these on file. DeLeon was sentenced to 87 months in prison followed by three years supervised release, a $1.5 million restitution payment, and a $2,800 assessment. DeLeon, who allegedly fled the country during sentencing, has filed an appeal in the U.S. Court of Appeals for the First Circuit. [Region 1]
88) United States v. Lieze Associates, Inc. dba Eagle Recycling of New Jersey, Inc., No. 5:11-cr-00142-DNH (N.D.N.Y. sentence entered Dec. 19, 2011); United States v. DeSimone et al., No. 5:11-cr-00264-DNH (N.D.N.Y indictment entered June 2, 2011). Lieze Associates, Inc. dba Eagle Recycling of New Jersey, Inc. (Eagle Recycling) pleaded guilty April 11, 2011, to conspiracy to violate the CWA’s prohibition on filling wetlands, as well as to defraud the United States and commit wire fraud in furtherance of the violations. Eagle Recycling, along with its co-conspirators, participated in a scheme, from May 2006 through March 2010, to illegally dump 8,100 tons of pulverized construction and demolition debris from its North Bergen, N.J. facility on a New York farm property that contained wetlands. Eagle Recycling fabricated a New York State Department of Environmental Conservation permit to conceal the dumping and mislead other solid waste management facilities and law enforcement. Eagle Recycling was sentenced to three years probation, a $500,000 fine, a $71,285.30 restitution payment, and will be required to develop and implement an environmental compliance plan. In an associated case, United States v. DeSimone et al., the company Mazza & Sons and four individuals, including the owner of Eagle Recycling and the owner of the New York farm property, were charged with conspiracy to violate the CWA, to defraud the United States, to obstruct justice, and to commit wire fraud in connection with the scheme to transport and dump construction and demolition debris on the New York farm property. [Region 2]
Other - Smuggling
89) United States v. Clery, No. 1:11-cr-20280-AJ (S.D. Fla. sentence entered July 29, 2011). Brendan Clery pleaded guilty April 26, 2011, to the illegal importation of 278,256 kilograms of HCFC-22. In 2007, Clery, in the operation of his business Lateral Investments, smuggled large quantities of HCFC-22 into the United States for sale on the black market. Neither Clery nor Lateral Investments had an “unexpended consumption allowance” that would allow for the legal importation of the gas. The HCFC-22 had a market value of $1,438,270. Clery was sentenced to 18 months in prison, a $10,000 fine, and forfeiture of $935,240. [Region 4]
90) United States v. Harp USA, Inc., No. 1:11-cr-20092-JEM (S.D. Fla. sentence entered Feb. 22, 2011). Harp USA, Inc. (Harp), pleaded guilty Feb. 14, 2011, to the illegal importation of hydrochlorofluorocarbon 22 (HCFC-22), an ozone-depleting refrigerant gas. In July 2010, Harp submitted a petition to import approximately 1,874 cylinders of HCFC-22, which falsely represented source facility information, previous uses, source equipment, and claimed the gas was from a single source. Harp was sentenced to three years probation, a forfeiture of $206,140, a $400 assessment, and a $25,000 community service payment to the Southern Environmental Enforcement Training Fund. [Region 4]
Other - Parole Violation
91) United States v. Ward, No. 1:11-cr-00196-NRB (S.D.N.Y. sentence entered July 22, 2011). Peter Ward, formerly convicted of violating the CAA for unlicensed asbestos removal, pleaded guilty to violating the terms of his probation for working in an asbestos-related industry. Ward submitted Monthly Supervision Reports to the Probation Office that purported to report his earnings, but failed to document some of his earnings that were coming from asbestos-related work, and tried to conceal the nature of the work. Ward was sentenced to 21 months prison, three years probation, a $2,000 fine, and a $1,700 special assessment. [Region 2]
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