Pennsylvania Chamber of Commerce: DEP Quarterly Adapting to a New Era of Strict Criminal Liability David J. Raphael Partner K&L Gates LLP Harrisburg, PA dave.raphael@klgates.com Copyright 2014 by K&L Gates LLP. All rights reserved.
New Era of Enforcement klgates.com
Environmental Enforcement Pennsylvania Department of Environmental Protection Administrative & Civil Enforcement Pennsylvania Attorney General: Environmental Crimes Section (ECS) Criminal matters may be referred to ECS by Department of Environmental Protection (Through Governor s Office of General Counsel) District Attorney s Offices Personnel Changes Former head of ECS moved to DEP January 27, 2014 New head of ECS yet to be named klgates.com 3
Enforcement Tools: Pennsylvania s Environmental Statutes klgates.com
Pennsylvania's Environmental Statutes Solid Waste Management Act Clean Streams Law Air Pollution Control Act klgates.com 5
Solid Waste Management Act Solid Waste Management Act (SWMA) Passed in 1980 to address public health hazards, environmental pollution, and economic loss resulting from the improper disposal of solid waste. 35 P.S. 6018.102 Enforcement Tools: Strict Liability: No intent required Civil and Criminal Penalties klgates.com 6
Solid Waste Management Act Civil Penalties: Up to $25,000 per day, per violation Strict Liability 35 P.S. 6018.605 Criminal Penalties Any person... who violates any provision of this act, the rules and regulations of [DEP], or any order of [DEP], or any condition of any permit upon conviction thereof... shall be guilty of... Strict Liability 35 P.S. 6018.606 (a)-(j) klgates.com 7
Solid Waste Management Act Criminal Penalties (continued) Broad discretion for Commonwealth to select from following options for same incident: Summary Offense: $100 to $1,000 fine or up to 30 days in prison. 606(a) Misdemeanor: $1,000 to $25,000 or up to 1 year in prison. 606(b) $2,500 to $50,000 or up to 2 years for repeat violators. 606(c) Felony: $2,500 to $100,000 or up to 10 years in prison. 606(f) Absolute (strict) Liability applies to all of the above. 606(h) Fines issued per violation, per day. 606(h) klgates.com 8
Solid Waste Management Act Long Statute of Limitations 20 years for both civil and criminal penalties 35 P.S. 6018.617 Commonwealth Given Extraordinary Discretion Strict Liability: No Intent Required Raises Constitutional Questions klgates.com 9
Challenges to SWMA Penalty Provisions Commonwealth v. Parker White, 515 A.2d 1358 (Pa. 1986) Multiple defendants charged with misdemeanors. 606(b) Appellees argued SWMA and its unfettered discretion in the prosecutor violates: Due Process clause Equal Protection clause And is an improper delegation of legislative power to executive branch klgates.com 10
Challenges to SWMA Penalty Provisions Commonwealth v. Parker White, 515 A.2d 1358 (Pa. 1986) Court s response: Constitutional Challenges: Strong presumption in favor of constitutionality Very heavy burden to demonstrate statute clearly, plainly, and palpably violates some specific mandate or prohibition of the constitution. Id. at 1362. Equal Protection Any classification created by 606(a)&(b) has rational basis, bearing substantial relationship to object of act. Id. at 1366. Due Process Appellees were fully informed of conduct restricted by the act, which set forth full range of penalties to which they may be subject. Id. at 1368. klgates.com 11
Challenges to SWMA Penalty Provisions Commonwealth v. Parker White, 515 A.2d 1358 (Pa. 1984) Court s response: Improper Delegation of Legislative Authority Adequate standards existed in Act s declaration of policy in Section 102 to guide prosecutors. Id. at 1369-70. klgates.com 12
Challenges to SWMA Penalty Provisions Subsequent Challenges Baumgardner Oil Co. v. Commonwealth, 606 A.2d 617 (Pa. Cmwlth 1992), appeal denied. Act not impermissibly vague because definitions of waste were sufficient. Id. at 623. Not improper delegation of authority because rules function to amplify statutes, not create new law. Id. Waste Conversion, Inc. v. Commonwealth, 568 A.2d 738 (Pa. Cmwlth 1990), appeal denied, cert denied. Strong presumption of constitutionality. Id. at 741. Did not violate Due Process. Id. at 742. klgates.com 13
You Are Who You Hire Waste Conversion, Inc. v. Commonwealth, 568 A.2d 738 (Pa. Cmwlth 1990) Liability for independent contractor s action under SWMA Waste Conversion hired truck driver to transport 83,500 lbs nonhazardous waste (3,500 over permitted limit) Waste Conversion employees loaded truck to 83,500 lbs Driver, to avoid weigh station, rerouted to back road and intentionally dumped waste Waste Conversion held responsible for independent contractor truck driver s intentional actions $10,000 fine klgates.com 14
You Are Who You Hire Waste Conversion, Inc. v. Commonwealth, 568 A.2d 738 (Pa. Cmwlth 1990) Liability for actions of independent contractors Commonwealth Court s reasoning: By undertaking the responsibility to dispose of waste, Appellant has assumed the duty to ensure that it is completed as required by the Act. Appellant cannot absolve itself of this responsibility by transferring it to independent contractors and claiming that it has no control over them. Id. at 742. klgates.com 15
Would These Decisions Stand Today? These more recent decisions were examined by Pennsylvania s Commonwealth Court. The question remains what today s Supreme Court would do if presented with SWMA penalty challenge, nearly 30 years after Parker White. klgates.com 16
Clean Streams Law Civil Penalties 5 year statute of limitations. 35 P.S. 691.605(c). Up to $10,000 per day, per violation. 605(a). Whether or not the violation was willful Criminal Penalties 5 year statute of limitations. 613. Summary Offense Up to $10,000 or 90 days in prison. 602(a). Misdemeanor (Negligence) Up to $25,000 or 2 years in prison. 602(b). Felony (Intentional or Knowing) Up to $50,000 or 7 years in prison. 602(b.1). Additional penalties for repeat or continuing violations. klgates.com 17
Air Pollution Control Act 7 year statute of limitations 35 P.S. 4010.3. Civil Penalties $25,000 per day, per violation. 4009.1(a). Criminal Penalties Summary Offense: Strict Liability Up to $2,500 or 90 days in prison for each offense. 4009(a). klgates.com 18
Air Pollution Control Act Criminal Penalties (continued) Misdemeanor : willfully or negligently violates any provision 4009(b)(1) knowingly makes any false statement 4009(b)(2) Up to $50,000 and/or 2 years in prison for each offense Negligently placing another in imminent danger. 4009(3) Up to $50,000 and/or 1 year in prison Felony: Knowingly placing another in imminent danger. 4009(c)(1) Up to $1,000,000 per violation, per day and/or 20 years in prison klgates.com 19
Incident Response: Swift, but Smart klgates.com
Swift, Smart Response Needed An Immediate Response is Best Response Penalties are per day/per violation Can add up fast Failure to notify and remedy can result in greater penalty than actual violation Westinghouse Electric Corp. v. Pa DEP, 745 A.2d 1277 (Pa. Cmwlth 2000), appeal denied. $1.5 million for violations of Clean Streams Law $1.7 million for failure to notify DEP and downstream users in accordance with 25 Pa. Code 91.33 klgates.com 21
Swift, Smart Response Needed Communication Management is Key Internal: Know company protocol Tell the right folks Be on the same page External: Consistent, accurate, unified message to agency Always respond to NOVs Maintain records of all communication with agency Time stamp and retain all documents received Maintain paper trail klgates.com 22
Questions klgates.com