Prison Time for Environmental Noncompliance?

It Could Happen: Oregon’s Attorney General Announces Environmental Crimes Enforcement Unit
By Christopher Rycewicz, Brian T. Sniffen
Miller Nash LLP,
Oregon and Washington Law Firm

After less than one year on the job, Oregon Attorney General John Kroger appears close to fulfilling one of his campaign promises: increased prosecution of environmental crimes. He is in the process of appointing two statewide prosecutors to head up the new Environmental Crimes Enforcement Unit (the “ECEU”). According to a November 17, 2009, Department of Justice press release, Patrick A. Flanagan, a former Clackamas County district attorney, will head the ECEU. He will be assisted by Stephanie M. Parent, an environmental enforcement attorney. Mr. Flanagan and Ms. Parent will work under Mr. Kroger’s direction to prosecute environmental crimes statewide. We expect the ECEU to begin filing criminal complaints by the end of 2009. The ECEU will work closely with the Oregon Department of Environmental Quality, the state’s environmental compliance agency. The two agencies will meet weekly to discuss who will be charged with environmental crimes.

Mr. Kroger’s plan to dramatically increase the number of criminal prosecutions for environmental noncompliance is a departure from past practices. Historically, most of the environmental noncompliance in Oregon has been punished by way of civil and administrative penalties. Criminal prosecutions, which have been handled by harried county district attorneys, have been spotty and reserved for only the most egregious violations. With the introduction of the ECEU, however, the frequency of criminal prosecution is certain to increase.

That said, who should be worried about being criminally prosecuted for environmental noncompliance? The answer might surprise you: Mr. Kroger has made it clear that not just so-called big-time polluters are being targeted. Rather, the ECEU will also target small noncompliant businesses—businesses that Mr. Kroger believes have a competitive advantage because they are not paying the costs associated with compliance. All individuals falling into one (or more) of the following three categories are therefore subject to prosecution, regardless of their business’s size:

Those who are responsible for releases that cause potential public health risks;
Repeat violators, no matter the severity of the violations; and
Those who commit intentional or egregious violations of environmental laws.
In other words, a small-scale violation that may have previously resulted in only a civil penalty may now result in criminal prosecution. In addition, no guidelines are in place to control the prosecutorial discretion of the Attorney General. A prosecution may be pursued or dropped based solely on whether Mr. Kroger wishes to pursue it.

What does this increased emphasis on criminal enforcement mean for Oregon business owners? It means that we are entering a period of uncertainty, when we will not know the types of violations the ECEU is targeting until a pattern of prosecution emerges. Without knowing who will be targeted, noncompliant business owners (and those worried about potential noncompliance) must prepare to either avoid environmental noncompliance or face a criminal indictment for noncompliance.

The important thing to remember is that you are not alone in this time of uncertainty: Miller Nash can help. Our experienced environmental lawyers can assist you with pre-enforcement audits to ensure compliance, with coming into compliance with the myriad of environmental laws and regulations, or, if the need arises, with post-enforcement legal counseling. Please contact Chris Rycewicz or any member of our team today to discuss how we can address your questions and concerns and make sure your business continues to grow and thrive.

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Environmental and Natural Resources

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