Environmental criminal liability: what federal officials know can hurt them - or should know

Joseph E. Cole

I. INTRODUCTION

The concept of holding a corporate officer or federal official liable for an environmental crime based on their position of authority over the violating activity is known as the Responsible Corporate Officer (RCO) doctrine. (1) While individual criminal liability for corporate officials is not a new concept in environmental law, (2) the application of the RCO doctrine, especially in concert with the Public Welfare Offense doctrine, (3) is an unsettled area of law. This article addresses criminal liability under environmental statutes, basic principles of corporate and officer liability, the genesis and current state of the RCO and Public Welfare Offense doctrines, their impact on the litigation of environmental crimes, and their applicability to federal officials.

II. FUNDAMENTAL CRIMINAL ELEMENTS

American criminal law fundamentally concerns itself with whether the accused has committed a prohibited act (actus reus), and if so, whether the act was committed with a guilty mind (mens rea).

A. Actus Reus

Before determining one's mens rea, it is necessary to determine that one committed a prohibited or criminal act. (4) While such acts often consist of one's own affirmative conduct, they can also be of other types.

1. Omission (Failure to Act)

The imposition of criminal liability may arise where an individual fails to perform a required act. Such liability derives from the common law notion of a duty to act. However, a person generally does not have a legal duty to act.

The following are examples of conditions giving rise to a duty to act: a duty based on relationship, a contract, and most importantly from the environmental perspective, a duty based upon statute. (5) An example of an environmental statute creating a duty to act is found in the Comprehensive Environmental Response, Compensation and Liability Act's (CERCLA's) (6) requirement that certain reports be made. (7)

2. Vicarious Liability

Vicarious liability occurs "where the defendant, generally one conducting a business, is made liable (though without personal fault) for the bad conduct of someone else, generally his employee." (8) Vicarious liability does away with "personal actus reus," (9) rendering one liable for the acts of subordinates or agents.

3. Derivative Liability

A corporate officer may stand liable not only for the acts of those subordinate to him, but also for the acts of the corporation. When a corporation commits an offense, it is the principal. Corporate officers in positions of authority who fail to exercise that authority in preventing/remedying violations can be said to aid and abet those violations. This is the derivative approach to liability. (10) When applied to strict liability offenses, the derivative approach treats the aider and abettor as standing "in the shoes of the principal," thereby obviating the need for a culpable mental state on the part of the corporate official.

B. Mens Rea (11)

There are differing approaches to determining the degree of criminality exhibited by the alleged criminal to complete the commission of the crime. That is, what was the extent of the guiltiness of his state of mind? Generally, these approaches can be separated into four categories of crimes; (1) those that require the intent to commit the act or bring about the result; (2) those requiring knowledge of the act; (3) those requiring recklessness or disregard in taking an action or causing its result; and (4) those requiring negligence in taking the action or causing the result. In addition, a crime may be one of strict liability, requiring no determination of the criminal's state of mind. (12) As the Supreme Court has observed, however, "It]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." (13)

It is important to pay particular attention to the language of the environmental statute as well as the legislative intent evinced by Congress as to what the knowledge requirement is for culpability in the criminal activity. (14) Typically, criminal statutes contain words of criminality to delineate the requisite intent required for the commission of the offense. That is, words such as "intentionally," "knowingly," "willfully," and "recklessly" are used to describe the mens rea required for the crime. This article will emphasize the "knowingly" mens rea since that is most often the standard of wrongful purpose required in environmental statutes. (15)

Constructive Knowledge/Willful Blindness

The law requires notice that certain conduct is prohibited; "[w]ere it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community." (16) Nonetheless, it is also equally fundamental to our common law jurisprudence that ignorance of the law is no excuse.

"Willful blindness" is a well-known evidentiary principle involving the concept of transferred intent. The doctrine allows the factfinder to infer knowledge from proof that a defendant shielded himself from knowledge of an illegal act. (17) Deliberately remaining ignorant of facts that are otherwise apparent creates an inference that the defendant avoided the facts because of knowledge of the wrongfulness of the conduct. (18)

In addition, proof of knowledge can arise when a person "has notice of facts which would put one on inquiry as to the existence of that fact, when he has information to generate a reasonable belief as to that fact, or when the circumstances are such that a reasonable man would believe that such a fact existed." (19) Under the willful blindness doctrine, a defendant's actual knowledge or conscious avoidance are treated the same; proof of either one may meet the knowledge requirement in a criminal offense.

III. CORPORATIONS AND CORPORATE OFFICERS

A. Theories of Corporate Liability

By creating a legal entity responsible for the actions of the business organization, the individual owners of the corporation generally can escape personal liability for corporate activities. (20) Originally, not only was personal liability limited, but the corporation itself "could not be criminally culpable, because it possessed no cognitive ability and therefore could not form the mens rea traditionally required for a conviction." (21)

1. Development of Corporate Criminal Liability

This latter concept was rejected by the United States Supreme Court in New York Central & Hudson River Railroad v. United States. (22) In New York Central, the railroad company was found to have violated the Elkins Act (23) by paying shippers a rebate for using the railroad line. The Act made the corporation criminally liable for the criminal acts committed by corporate directors, officers, and any other acting on behalf of the corporation. Even though no evidence was produced showing the directors had authorized or approved the prohibited rebates, the corporation was found criminally responsible. Relying on tort law doctrine, the Court based this accountability on the imputed benefit received by the corporate principal from the acts of the agent; "justice requires that the [principal] be held responsible." (24)

2. Traditional Theories of Civil Liability

Under the doctrine of respondent superior, a corporation, as a principal, generally is bound by the acts of its agents so long as those agents do not step outside the scope of their employment. (25) In another approach to corporate liability, the corporation itself may step outside the scope of its employment-a corporation can be held accountable for illegal actions committed beyond the power of its by-laws or charter. Finally, "piercing the corporate veil" (26) is another avenue of corporate liability. This approach is used to extend liability for wrongful acts of a corporation to the parent corporation, or to officers, directors, and even individual shareholders. Underlying this theory of liability is the corporation as a "false front" or sham for a parent corporation, behind whose limited liability protections officers and shareholders should not be allowed to hide. Although typically used in civil cases, a court has used the concept to impose criminal liability on a parent corporation for the acts of a subsidiary. (27)

B. Theories of Corporate Officer Liability

Corporate officers are criminally liable for the acts they personally commit, for the acts of agents or subordinates, for crimes that they aid or abet, (28) and for crimes they fail to prevent despite their responsible positions. (29) While most of these liability theories are fairly self-explanatory, the latter one, known as "responsible share" requires a few further words of explanation.

This concept, arising out of the U.S. Supreme Court case, United States v. Dotterweich, (30) attaches liability to all (including corporate officials) who have a responsible share in the furtherance of a criminal act prohibited by statute. Due to the potential risk of harm involved by violation of a statute, a corporate official in a position of "responsible relation" to the danger, and who could be informed of the danger, is thereby responsible for the violation of the statute when it occurs. (31) It is this concept of liability for offenses arising under the doctrine of a public welfare offense that is the basis upon which the RCO doctrine lies.

IV. DUAL INDOCTRINATION: THE PUBLIC WELFARE OFFENSE AND RESPONSIBLE CORPORATE OFFICER (RCO) DOCTRINES

A. The Public Welfare Offense Doctrine--Eliminating the Mens Rea Requirement

When a statute merely codifies the common law, courts often assume there is a scienter requirement even if the level of culpability has not been addressed. (32) For statutes concerned with public health, safety, and welfare, however, courts have taken a different view. Generally, a public welfare statute without a standard for culpability will require the government to only prove the defendant had the responsibility and had either the authority to prevent or the ability to remedy a violation; the government does not have to show that the individual had the intent to violate the law or even any knowledge of the violation. (33) As defined by the U.S. Supreme Court, a public welfare statute is one that makes criminal an act that a "reasonable person should know is subject to stringent public regulation and may seriously threaten the community's health or safety." (34)

1. Perimeter Points of the Public Welfare Offense Doctrine

The following U.S. Supreme Court cases are frequently cited when addressing the application of public welfare offense principles to the knowledge requirement of environmental statutes.

a. United States v. International Minerals & Chemical Corp. (35)

The seminal case addressing application of the public welfare offense doctrine to a situation similar to that involved in environmental statutes is United States v. International Minerals & Chemical Corp. (36) In this case, the corporate defendant was charged with shipping hazardous materials in interstate commerce and knowingly failing to show that the materials were properly identified as such in accordance with Department of Transportation regulations. (37) The corporation was charged with violating 18 U.S.C. [section] 834(f) for "knowingly violating any such regulation," in reference to a regulation created for the safe transportation of corrosive liquids. (38) Interpreting the meaning of "knowingly violates any such regulation," the Court held the statute was a "shorthand designation" for knowingly committing the acts that violate the Act. (39)

The Supreme Court, quoting from Morissette v. United States, (40) a leading public welfare case, recognized the importance of criminal intent when it stated, "[t]he contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." (41) Yet in International Minerals, the Court explained that when dangerous products or "obnoxious" waste materials are the regulated activity, the likelihood of regulation is so great that anyone involved in the activity is presumed to be aware of the regulatory requirement. (42) The government therefore was not required to prove the accused intended the prohibited result of his actions; nor was the defendant allowed to use its ignorance of the law as a defense. (43)

b. Liparota v. United States (44)

Another oft-cited case in the application of the public welfare offense doctrine to environmental cases is Liparota v. United States. (45) In this case, a restaurant owner was convicted under 7 U.S.C. [section] 2024(b)(a) for unlawfully acquiring and possessing food stamps for less than the face value of the stamps. (46) The statute imposed liability on "whoever knowingly uses, transfers, acquires, alters, or possesses [food stamps] in any manner not authorized by [the statute] or the regulations." (47) At trial, the trial judge instructed the jury that the government had to prove the defendant acquired and possessed the food stamps in a manner not authorized by the statute or regulations and the defendant did so knowingly and willfully. The government's position was the statute was violated if the defendant knew that he acquired or possessed the food stamps in an unauthorized manner; proof of the defendant's mens rea was not required by the statute to show a violation.

The Supreme Court held that to prove a violation of the statute, the defendant had to know that his acquisition or possession of the food stamps was somehow contrary to law or regulation. In its review of the knowledge necessary for conviction, the Court looked first to Congressional intent. After finding it unclear as to the knowledge required by the statute, the Court relied on Morissette and the contention that it is fundamental to universal systems of law that before treating an act as criminal that there be a requirement of intention. (48) The Court determined that innocent conduct would be criminalized if proof of knowledge of the unauthorized nature of the defendant's acts was not required. Concluding that although the statute did not provide a mistake of law defense, there was nothing in the legislative history to indicate that Congress intended the result urged by the government. (49) The Court distinguished the food stamp offenses from the definition of a public welfare offense in which the Court would accept that there is no mens rea required; this conduct was not such that a reasonable person should know it is subject to a stringent public regulation due to the threat to health or safety. (50)

The Supreme Court's disparate holdings in International Minerals and Liparota have resulted in a "patchwork quilt" among the circuit courts of appeal in their various and sometimes confusing treatment of environmental statutes as public welfare statutes. (51)

c. Staples v. United States (52)

An illustrative example of the Supreme Court's emphasis on the narrowness of the public welfare statute mens rea exception is Staples v. United States. (53) In this case, the defendant was charged with violating a felony provision of the National Firearms Act (54) by possessing an unregistered machine gun. During execution of a search warrant of his home, the defendant was found in possession of a weapon that had been modified to fire more than one shot with a single pull of the trigger. Hence, it was considered a machine gun under the statute. (55)

At trial, the defendant argued that he had no knowledge of the weapon's automatic firing capability and therefore was not criminally liable. Despite his request, the trial judge declined to instruct the jury that the government must prove the defendant knew the gun would fire automatically. The defendant was found guilty and sentenced to probation for five years and a $5,000 fine. (56)

The defendant ultimately appealed his conviction to the U.S. Supreme Court. The National Firearms Act was silent regarding mens rea, and the government argued against any such element, alleging that the case revolved around a public welfare offense: the purpose of the statute was to restrict the circulation of dangerous weapons, and individuals possessing guns should be aware of the likelihood of their regulation. The Court rejected this argument, holding that the government must prove actual knowledge on the part of the defendant of the characteristics of the weapon that brought it within the scope of the statute.

The Court, however, limited its holding narrowly, indicating that its "reasoning depends upon a common sense evaluation of the nature of the particular device or substance Congress has subjected to regulation and the expectations that individuals may have in dealing with the regulated items." (57) The Court went to great lengths to distinguish this holding from its decision in United States v. Freed (58) where a violation of the same section of the National Firearms Act involving possession of a hand grenade was treated as a public welfare offense. The Court in Staples concluded that innocent gun ownership is commonplace, whereas an individual in possession of grenades is aware of their dangerous properties.

Notably, the Court also commented on the public welfare doctrine (eliminating any mens rea requirement) and the impact which potential punishment might have in relation to its application. While the Court said its prior precedents "suggest that punishing a violation as a felony is simply incompatible with the theory of the public welfare offense," (59) it refrained from stating that it was inappropriate to consider that public welfare offenses may not be punished as felonies. (60) The Court determined that "such a definitive rule of construction" did not need to be adopted to decide this case. (61)

d. United States v. X-Citement Video, Inc. (62)

In United States v. X-Citement Video, Inc., (63) the Supreme Court decided whether a statute that makes "knowingly" transporting, receiving, shipping and distributing sexually explicit conduct involving a minor child a federal crime, also requires knowledge that the material depicted a minor. The defendant was charged with violations of the Protection of Children Against Sexual Exploitation Act of 1977. (64) The Court addressed whether "knowingly" as used in the statute modifies only the verbs-transports, ships, receives, distributes or produces-or also the subsections of the statute addressing the use of a minor. While the Court acknowledged that the most grammatical reading of the provision suggested that it only modified the surrounding verbs, the Court found that the "plain language reading of the statute was not so plain" (65) and held that the defendant must know the depiction was of a minor engaged in sexually explicit conduct.

The Court again relied on the principle announced in Morissette recognizing the importance of a requirement of evil intent to sustain the finding of a crime. (66) To do otherwise, the Court opined, would allow the convictions of defendants who "had no idea they were even dealing with sexually explicit material." (67) The Court found the statute was not a public welfare offense because people "do not harbor settled expectations that the contents of magazines and film are generally subject to stringent public regulation." (68) In so holding, the Court, as it had in Staples, also considered the harsh penalties involved and how that tempered the application of the public welfare doctrine. The Court followed Staples in favor of a scienter requirement applying "knowingly" to every element of the statute.

2. Application of the Public Welfare Offense Doctrine to Environmental Statutes

Public welfare statutes impart strict liability standards, eliminating mens rea requirements even if the individual defendant had no knowledge of the violation or intent to violate the law. Courts have traditionally found that the risk of harm to the public by not holding a party accountable for a hazardous activity outweighs the "conventional requirement for criminal conduct-awareness of some wrongdoing." (69) The rationale is the accused, if he does not cause the violation, "usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities." (70)

United States v. Hanousek (71)

The Supreme Court recently bypassed an opportunity to definitively address the applicability of public welfare analysis to environmental statutes when it denied certiorari in United States v. Hanousek. (72) In doing so, the Court let stand the Ninth Circuit's treatment of a Clean Water Act (CWA) (73) violation as a public welfare offense.

The defendant was roadmaster of a railroad and responsible "for every detail of the safe and efficient maintenance ... of the entire railroad." (74) As roadmaster, the defendant oversaw a rock quarrying project. During the course of that project, approximately 700 feet of a petroleum pipeline were left unprotected and subsequently ruptured. (75) Defendant was convicted of negligently discharging oil into a navigable river in violation of CWA [subsection] 309(c)(2)(A) and 311 (b)(3). (76)

On appeal before the Ninth Circuit, the defendant contended he should be held to a standard of criminal negligence rather than ordinary negligence. (77) The Ninth Circuit, however, concluded that "Congress intended that a person who acts with ordinary negligence ... may be subject to criminal penalties." (78) The Court reasoned the criminal provisions of the CWA were public welfare offenses proscribing "conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community's health or safety." (79)

While the Supreme Court denied certiorari on this issue, there were dissents to the denial. Justice Thomas, joined by Justice O'Connor, maintained that the Ninth Circuit's interpretation of the public welfare offense doctrine was too broad:

   We have never held that any statute can be described as creating a
   public welfare offense so long as the statute regulates conduct that
   is known to be subject to extensive regulation and that may involve
   a risk to the community. Indeed, such a suggestion would extend this
   narrow doctrine to virtually any criminal statute applicable to
   industrial activities ... (80)

Here one may recall that the majority Staples and X-Citement Video decisions generally strengthened mens rea requirements, requiring criminal culpability in statutes which, on their face, arguably required none. (81)

B. The Responsible Corporate Officer (RCO) Doctrine

Under traditional concepts of criminal law, the bases of individual criminal liability of corporate officials are "for crimes that they personally commit, for crimes they aid or abet and for crimes they fail to prevent by neglecting to control the misconduct of those subject to their control." (82) The latter category of liability has been the vehicle for imposing criminal liability upon corporate officials through analysis of public welfare offenses under what is known as the responsible corporate officer doctrine.

Pursuant to this doctrine, a corporate officer is personally criminally liable on the basis of his "responsible relation" to the criminal violation, despite lack of any knowledge on his part of illegal activity. Hence, this doctrine provides both a way to hold corporate officers personally accountable and also eliminate or reduce any mens rea requirement. While sometimes applied to situations in which the public welfare offense doctrine may also apply, the two doctrines generally overlap in their practical provision of constructive knowledge to satisfy/eliminate the traditional mens rea element.

1. Perimeter Points for the Responsible Corporate Officer Doctrine

The following U.S. Supreme Court cases are frequently cited when addressing the application of responsible corporate officer principles to personal liability and knowledge requirements of environmental statutes.

a. United States v. Dotterweich (83)

The United States Supreme Court in United States v. Dotterweich (84) first addressed the individual liability of a corporate officer under a public welfare statute. Dotterweich, the president of a pharmaceutical company, was found guilty of shipping adulterated and misbranded goods in violation of the Food, Drug, and Cosmetic Act (FDCA). (85) The FDCA was enacted by Congress to expand its ability to prevent noxious articles from entering the commerce stream. (86) The Act was designed as a strict liability statute dispensing with the typical requirement of awareness on the part of the wrongdoer; liability was imposed without regard to the criminal intent of the defendant. (87)

Dotterweich was responsible for the day-to-day supervision of his company. Despite no showing that he knew of or participated in the illegal conduct, he was convicted of this misdemeanor (88) offense. Dotterweich argued that he could not personally be held liable because the corporation was the only "person" subject to prosecution under the statute. The Supreme Court disagreed, stating that the crime could be committed "by all who have a responsible share in the furtherance of the transaction which the statute outlaws." (89) By holding Dotterweich criminally liable despite his lack of knowledge about any illegal activity, the Supreme Court laid the foundation of the RCO doctrine. The Court justified the result by weighing the potential risk of harm upon an unsuspecting public against the hardship suffered by the corporate official who, although not intending to violate the statute, was in a position of "responsible relation" to the danger such that he could be informed of the danger before loosing it on consumers. (90)

b. United States v. Park (91)

The Supreme Court further clarified the RCO doctrine in United States v. Park. (92) Again reviewing a FDCA strict liability criminal conviction, the Court found the president and chief executive officer of a national grocery store chain responsible for misdemeanor violations related to the contamination of food stored at the company's warehouses. (93) On appeal, the president (Park) asserted that he could not be held personally responsible because he had delegated responsibility for warehouse sanitation to "dependable subordinates." (94) Despite the breadth of the corporate officer's responsibilities in managing a national corporation, and the fact that various functions were "assigned to individuals who, in turn, have staff and departments under them," (95) the president was held responsible. The Court found "[t]hose corporate agents vested with the responsibility, and power commensurate with that responsibility, to devise whatever measures are necessary to ensure compliance with the Act bear a 'responsible relationship' to, or have a 'responsible share' in, violations." (96)

The government did not have to prove the officer committed a wrongful act. Pursuant to the Court's reasoning, criminal liability under a public welfare statute such as the FDCA does not turn upon the corporate official's "awareness of wrongdoing." (97) The Court set out the proof needed for a showing of liability: "[t]he Government establishes a prima facie case when it introduces evidence sufficient to warrant a finding by the trier of facts that the defendant had, by reason of his position in the corporation, responsibility and authority either to prevent in the first instance, or promptly to correct, the violation complained of, and that he failed to do so." (98) While these expectations of responsibility place high burdens on corporate officers, they are consistent with the public's expectations of someone in a position of authority over enterprises that affect public health and safety. (99)

2. Application of the RCO Doctrine to Environmental Statutes

There are several underlying issues that continue to impact the RCO doctrine in relation to a public welfare analysis and its application to environmental statutes. Included in this complicated mix is the specific mens rea requirement for the statue at issue, treatment of the environmental statute as a public welfare statute, the effect of treatment as a public welfare statute (i.e. the elimination or reduction of mens tea), and application of public welfare analysis to felony offenses. Nonetheless, the practice of treating environmental statutes as public welfare statutes has been prevalent for some time, and is not without historical antecedents. (100)

United States v. Johnson & Towers, Inc. (101)

One of the earliest cases to apply the RCO doctrine (and also implicate the public welfare offense doctrine) in the prosecution of an environmental statute is United States v. Johnson & Towers, Inc. (102) In this case, two management employees of an industrial engine repair company were found covered by the definition of a "person" so as to be potentially liable for criminal violations of the Resource Conservation and Recovery Act (RCRA) [section] 3008(d)(2)(A) for treating, storing, or disposing of hazardous wastes without a permit.

On appeal, the defendants argued the statute only contemplated that "owners" and "operators" are "persons" for purposes of RCRA liability because they are the only individuals with the ability to obtain a permit. (103) After reviewing legislative history, the Court determined Congress intended to reach employees engaged in the treatment, storage, and disposal activities and "did not explicitly limit criminal liability to owners and operators." (104)

The Third Circuit concluded, relying on Dotterweich, that "in RCRA, no less than in the Food and Drug Act, Congress endeavored to control hazards that, 'in the circumstances of modern industrialism, are largely beyond self-protection." (105) Despite then identifying the case as involving a public welfare offense not requiring proof of mens rea, the Court opined that the statute required knowledge of every element of the crime. However, the requisite knowledge could be inferred due to the employees' "responsible positions" within the corporation. (106)

The next section reviews the environmental statutes, the associated mens rea requirements for those statutes, and how those requirements are integrated into applications of the RCO doctrine.

V. ENVIRONMENTAL STATUTES' MENS REA REQUIREMENTS

The main federal environmental statutes require proof of knowledge to meet the scienter requirements of their criminal provisions. For example, in the Clean Water Act (CWA), (107) it is a felony offense to knowingly violate a condition of a permit issued under the Act. (108) Likewise, this same conduct, knowing violation of a permit, is also an offense under the Clean Air Act (CAA). (109) In the Resource Conservation and Recovery Act (RCRA), (110) any person who knowingly transports any hazardous waste is subject to liability. (111) Finally, in the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), (112) it is a felony to knowingly fail to report the release of a hazardous substance. (113)

The majority view, such that it is, holds that a knowing violation does not require the defendant to have been aware of a law and to have intentionally violated it; it only requires the defendant to have been aware of his conduct. (114) A person is usually treated as having acted "knowingly" when an act was committed "voluntarily and intentionally and not because of ignorance, mistake, accident or some other reason." (115) A review of the specific statutory offenses at issue (116) and an examination of the approaches to proof of knowledge in the various U.S. circuit courts of appeal provide insight into the different methods of meeting statutory mens rea requirements.

A. Environmental Statutory Provisions

1. Clean Air Act (117)

The Clean Air Act (CAA) governs stationary and mobile sources of air pollution through a system of air quality standards contained in state implementation plans. These plans are enforced through emission limitations and permit requirements.

Criminal penalties for violations of the Act are imposed by 42 U.S.C. [section] 7413(c). The CAA makes criminal the unpermitted release of any hazardous pollutant into air by any person. (118) In addition, the CAA makes it criminal for a person to knowingly violate state implementation plans and to fail or refuse to comply with any compliance order of the EPA Administrator, the national emission standards for hazardous air pollutants, or other requirements under the Act. It is also a criminal violation for any person to (1) knowingly make a false statement in a document filed, maintained, or used for purposes of compliance with the Act; or (2) knowingly falsify, tamper with, or render inaccurate a monitoring device or method required to be maintained under the Act. (119) Finally, the CAA provides criminal sanctions for persons who either knowingly or negligently release hazardous air pollutants when such a release puts others in imminent danger of death or serious bodily injury. (120)

Liability under the above provisions is dependent upon whether an individual falls within the definition of a "person." (121) As defined in the statute, a "responsible corporate officer" (122) is a "person."

2. Clean Water Act (123)

The Clean Water Act (CWA) generally regulates the discharge of pollutants into the waters of the United States or into municipal wastewater treatment systems. The statute also protects wetlands. Like the CAA, a permit system serves as the main regulatory enforcement mechanism: discharges cannot lawfully be made into the environment without a permit. (124) The criminal provisions of the CWA proscribe knowing and negligent conduct by a "person." (125) The definition of "person" includes a "responsible corporate officer." (126)

The CWA imposes liability on persons who knowingly discharge pollutants into waters of the United States without a permit or who violate an effluent limitation, pretreatment requirement, or permit condition. (127) As with the CAA, knowing false statements in a document filed for purposes of compliance with the Act or knowing falsifications or tampering with required monitoring devices are also criminal violations. (128) The CWA also provides for criminal sanctions against any person who knowingly or negligently discharges a pollutant into the waters of the United States that places others in imminent danger of death or serious bodily injury. (129) For the offense of failing to report discharges of hazardous substances or oil into the environment, an additional factor for consideration is whether the person is alleged to be the "person in charge" of a vessel or facility. (130)

3. Resource Conservation and Recovery Act (RCRA) (131)

The Resource Conservation and Recovery Act (RCRA) governs the reporting and record-keeping requirements related to the storage, treatment, and disposal of hazardous wastes. RCRA defines "persons" to whom the criminal provisions are applicable as individuals as well as corporations and does not exclude corporate officers or employees. (132) However, unlike the CWA and CAA, RCRA does not expressly include responsible corporate officers as "persons." (133)

RCRA imposes criminal liability upon persons who knowingly treat, store, or dispose of hazardous waste at a facility without a permit or in knowing violation of a permit. (134) A person who knowingly generates and transports a hazardous waste either to an unpermitted facility or without the required manifest faces criminal sanctions. (135) The Act also prohibits knowing false statements or omissions in required documents or knowingly failing to file such documents; (136) knowing destruction, alteration, or concealment of required records; (137) knowing export of hazardous wastes without consent or in violation of agreements between the United States and the receiving country. (138) In addition, criminal liability may arise if a person was engaged in conduct related to treatment, storage, or disposal of hazardous wastes that might present an imminent and substantial endangerment to human health or the environment. (139)

4. Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (140)

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) governs the cleanup of hazardous substances from abandoned sites and provides an emergency response system for the release of hazardous substances. The criminal provisions of CERCLA apply to three categories of violators: (1) a "person in charge" of a vessel or facility, (2) a "person" who fails to report a release, and (3) the "owner or operator" of a facility.

Failure of a "person in charge" of a vessel or a facility to immediately report a release of a reportable quantity of a hazardous substance is a criminal offense. (141) Likewise, knowing and willful failure to report a release of certain identified chemicals by a "person" is an offense. (142) CERCLA also calls for criminal culpability for an "owner or operator" at the time of the disposal of a hazardous waste, or the current owner or operator, who knowingly fails to report the site to the EPA, or knowingly fails to maintain, destroys, or falsifies required records. (143)

B. Case Law Mens Rea Interpretations

With notable exception in the Fourth Circuit, the case law analyzing environmental statutes tends to reduce the standard of proof required for a knowing violation. This is mostly a result of the public welfare doctrine and related concepts: that the public cannot protect itself from the dangers of hazardous substances (144) and that persons involved with hazardous substances "have every reason to be aware that their activities are regulated by law, aside from the rule that ignorance of the law is no excuse." (145)

1. United States v. Weitzenhoff (146)

In United States v. Weitzenhoff, the defendants were managers of a sewage treatment plant in Hawaii. The plant had a National Pollutant Discharge Elimination System permit for the discharge of suspended solids and biochemical oxygen demand into the ocean. (147) When waste activated sludge began to accumulate at the plant, the managers gave instructions to employees to systematically dispose of the sludge by pumping it into the outfall pipe at the treatment plant which discharged directly into the ocean. Because the sludge bypassed the effluent monitoring device, it was not reported in the plant's discharge monitoring reports. Discharges between April 1988 to June 1989 violated the plant's average effluent limitation during most of that time period. (148) At trial, the managers were found in violation of CWA [section] 309 for knowingly discharging pollutants in violation of their permit. (149)

On appeal, the plant managers argued that the court erred by not requiring the government to prove they knew their actions, or failures to act, were unlawful, and by not instructing the jury that it was a defense that they believed the discharges were allowed under the plant's permit as an appropriate bypass.

The Ninth Circuit held that the term "knowingly," as used in the CWA, does not require proof that a defendant knew their conduct was illegal. (150) The Court found the term's use to be ambiguous, and after considering the legislative history of the 1987 amendment to the Act that changed the mens rea from "willfully" to "knowingly," concluded that "[b]ecause they speak in terms of 'causing' a violation, the congressional explanations of the new penalty provisions strongly suggest that criminal sanctions are to be imposed on an individual who knowingly engages in conduct that results in a permit violation, regardless of whether the polluter is cognizant of the requirements or even the existence of the permit." (151)

The Court's holding in Weitzenhoff seems to apply a strict liability standard. (152) This has caused concern for the regulated community as it means individuals can be held liable for violating permit conditions (which can be complicated and difficult to execute) even when they have a good-faith belief in the legality of their actions. (153)

Of even greater concern to some was the Court's conclusion that environmental laws are public welfare statutes. (154) In an amended opinion, the Court affirmed its previous opinion in Weitzenhoff, but revised it to address the applicability of Staples (155) to treatment of environmental statutes as public welfare statutes. (156)

As discussed above, Staples seemed to express concern about relaxing the mens rea requirements for any crime, including public welfare offenses, where the defendant may face a substantial prison sentence. (157) The Ninth Circuit distinguished that case, however, noting that "mere ownership of a gun is not sufficient to place people on notice that the act of owning an unregistered firearm is not innocent under the law." (158) Citing to discussion in Staples of public welfare offenses as encompassing "those regulations that govern handling of 'obnoxious materials,'" (159) the Ninth Circuit found the dumping of pollutants to be the kind of activity, unlike gun ownership, which should put the owner on notice of their relationship to a public danger. (160)

2. United States v. Wilson (161)

In United States v. Wilson, the Fourth Circuit sets out what may be the most demanding test for proving a defendant "knowingly" committed an environmental crime. This case also addresses a violation of CWA [section] 309, in the context of a wetlands issue.

The defendants were convicted of discharging fill material and excavated dirt into wetlands without a permit. (162) Over a five-year period, they attempted to drain a number of properties during the land development phase of a construction project. The properties contained lands which were later identified as wetlands, yet no effort had been made to pursue permits to dredge or fill them.

On appeal, the defendants challenged the jury instructions on two bases: first they did not require proof the defendants knew their conduct was unlawful, and second, they failed to require proof that defendants had a "knowing" intent as to each of the elements of the offense. (163)

The Fourth Circuit disagreed with the defendants' challenge that the government should have to prove awareness of the illegality of their conduct, but agreed that the instructions did not adequately inform the jury that the government's burden is to prove knowledge with regard to every element of the offense. (164) In what appears to be a misapplication of the Supreme Court's analysis of the knowledge requirement in International Minerals, the Fourth Circuit cites to International Minerals for the proposition that the use of "knowingly violates" in the statute requires proof that the defendant must have knowledge of the facts meeting each essential element of the offense. (165)

In the case of a permit violation such as this, to sustain a conviction, the government must therefore prove the defendant knew he did not have a permit. (166) (This requirement puts the Fourth Circuit in complete disagreement with the Ninth Circuit's conclusion in Weitzenhoff that it is irrelevant "whether the polluter is cognizant of the requirement or even the existence of the permit." (167)) Although Wilson states that requirement of proof that a defendant knew that he did not have a permit is not to show that permits are available or required, the effect of it is to require proof of knowledge that the defendant's acts were unlawful. (168)

This result appears to be squarely contradicted by the Supreme Court's subsequent opinion in United States v. Bryan. (169) In Bryan, the Court interpreted both "knowingly" and "willfully" as used in the Firearms Owners' Protection Act, (170) prohibiting unlicensed dealing in firearms. The Act contained three provisions using the term "knowingly" and one that used "willfully." (171) The defendant was found guilty of dealing in firearms without a license in violation of 18 U.S.C. [section] 924(a)(1)(D), the provision requiring a "willful" violation.

At trial, the defendant made a motion that the jury be instructed that he could not be found guilty unless he had knowledge of the licensing requirement. The trial court declined to instruct the jury in that way, instead instructing that a person "need not be aware of the specific law or rule that his conduct may be violating. But he must act with the intent to do something the law forbids." (172)

The Supreme Court distinguished "knowingly" and "willfully" in relation to culpability and stated "the term 'knowingly' does not necessarily have any reference to a culpable state of mind or to knowledge of the law," rather, "'the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law.'" (173) The Court found that a "willful" requirement is a heightened state of mens rea that relates to the "evil-doing" mind of the defendant with knowledge that his conduct was unlawful as opposed to knowledge that his conduct violated a specific law. (174)

As articulated by the Court, the requirement for "knowingly" is a much lower standard than that required by the Fourth Circuit in Wilson. As the Bryan Court stated, "unless the text of the statute dictates a different result, the term 'knowingly' merely requires proof of knowledge of the facts that constitute the offense." (175)

3. United States v. Hayes International Corp. (176)

The Eleventh Circuit in United States v. Hayes International Corp. addressed a conviction under RCRA Section 3008(d)(1) (177) for knowing transportation of hazardous waste to an unpermitted facility. The defendants in Hayes had contracted with Performance Advantage, Inc., to dispose of their hazardous wastes. (178) Subsequently, over six hundred drums of wastes generated by Hayes were found to have been illegally disposed of by Performance Advantage. (179)

On appeal, defendants contended they did not commit any "knowing" violation because they misunderstood the regulations, did not know that Performance Advantage did not have a permit, and had been under the mistaken belief (180) that Performance Advantage was recycling the waste. As stated by the Eleventh Circuit, "the degree of knowledge necessary for a conviction under 42 U.S.C. [section] 6928(d)(1), unlawful transportation of hazardous waste, is the principal issue in this appeal." (181)

The Court first considered the legislative history of [section] 6928(d) and found that Congress had "not sought to define 'knowing' for offenses under subsection (d); that process has been left to the courts under general principles." (182) The Court then turned to International Minerals (183) and found that this statute is not drafted in such a way as to make knowledge of the illegality an element of the offense; in addition, the Court found that [section] 6928(d) was "undeniably" a public welfare statute. (184) Accordingly, "it would be no defense to claim no knowledge that the paint waste was a hazardous waste ... nor would it be a defense to argue ignorance of the permit requirement." (185)

Nonetheless, the Court found that the congressional purpose was to require knowledge of the permit status. In this case, the word "knowingly" in the statute immediately precedes the word "transports" and is not set out as a modifier for all subsequent elements in an offense, yet the Court was willing to interpret that Congress intended a showing of knowledge of the permit status. The government's burden in proving this knowledge is met if the defendant Willfully fails to determine the permit status. Furthermore, the "existence of the regulatory scheme" and the inferences it raises of procedures and common knowledge involved in the transportation and disposal of hazardous wastes will also satisfy this burden. (186)

VI. ENVIRONMENTAL CRIMINAL LIABILITY AND THE RCO DOCTRINE

A. Application Approaches

There have been a number of different decisions applying the RCO doctrine to environmental statutes, and almost as many methods of application. Generally, the decisions follow three approaches: (1) the RCO doctrine does not negate the mens rea element of a crime; (2) the RCO doctrine applies, even though there's ample proof of actual knowledge of the violation; (3) the RCO doctrine applies to find an accused guilty of a criminal violation as a result of his position as a corporate officer. The U.S. Supreme Court has yet to weigh in on the application of RCO doctrine to environmental statutes. (187)

1. The First Approach: United States v. MacDonald & Watson Oil Co. (188)

The first approach is best demonstrated by United States v. MacDonald & Watson Oil Co.. In this case, a corporate president, among others, was convicted of violating RCRA (for knowing disposal of hazardous wastes without a permit) and CERCLA (knowing failure to report the release of a hazardous substance). (189) At trial, the president argued that he had not "knowingly" violated RCRA; and evidence was adduced that while he was involved in the day-to-day operations of the company and was aware that the company had improperly disposed of hazardous wastes in the past, he was not aware of the particular violations at issue in this case. (190)

On appeal, the First Circuit examined the RCO doctrine, holding that the president's position alone was not enough to prove his knowledge. Critical to the Court was that a person's status as a responsible corporate officer is not a substitute for proof of knowledge for a crime with a specific knowledge element. (191) The Court also distinguished Dotterweich (192) and Park. (193) Acknowledging that these cases stood for well-established law in public welfare statutes where there is not an express scienter requirement, the Court said, however, "we know of no precedent for failing to give effect to a knowledge requirement that Congress has expressly included in a criminal statute." (194)

2. The second approach: United States v. Brittain (195)

The second approach or "modified RCO doctrine" is epitomized in cases where there was a showing of actual knowledge of wrongdoing on the part of the defendant, yet notwithstanding that demonstration, the court relied at least to some extent on the RCO doctrine. In United States v. Brittain, a public utilities director was found guilty of discharging pollutants in violation of the CWA. Raising the issue sua sponte, the Tenth Circuit found the RCO doctrine applicable to the facts of this case. (196) While the Court recognized that the jury considered the defendant's specific conduct and not just his corporate position, it still discussed, arguably in dicta, that a responsible corporate officer, "to be held criminally liable ... would not have to 'willfully or negligently' cause a ... violation. Instead, the willfulness or negligence of the actor would be imputed to him by virtue of his position of responsibility." (197) The Court's views are generally consistent with the Third Circuit's opinion in Johnson & Tower (198) and are seen as one of the broadest applications of the doctrine. (199)

3. The Third Approach: United States v. Dee (200)

The third approach, a "pure" application of the RCO doctrine, relies upon an individual's corporate position as the basis for determining liability, thereby dispensing with any statutory mens rea requirement. The analyses from Johnson & Towers above and the Fourth Circuit in United States v. Dee are prime examples of this category.

The "Aberdeen case," as United States v. Dee is commonly referred to in the military, involved the prosecution of three, high-level, federal civilian employees for violations of RCRA stemming from a multitude of offenses related to the improper storage and disposal of hazardous wastes at Aberdeen Proving Ground, a U.S. Army installation in Maryland. Although the RCO doctrine is not mentioned in the opinion, the Court discusses the defendants' positions as department heads responsible for ensuring that procedures relating to RCRA were followed and that their subordinates were aware of and in compliance with the procedures. (201)

Relying on International Minerals, (202) the Court found that the extremely hazardous nature of the substances (203) that were the subject of the violations required that the government did not have to prove that the defendants knew violation of RCRA was a crime nor that the chemical wastes were listed as RCRA hazardous wastes. (204) The Court used the public welfare rationale from International Minerals to reject the defendants' argument that they did not "knowingly" violate RCRA. When the public welfare analysis is read together with the Court's continued attention to the positions of the defendants and their responsibilities, this case can be seen as a pure application of the RCO doctrine based on the positions of the responsible officials.

B. Recent Applications of the RCO Doctrine

1. United States v. Iverson (205)

In 1999, the Ninth Circuit decided United States v. Iverson. Mr. Iverson was the founder, president, and chairman of the board of CH20, Inc., a company that blended and distributed chemicals and chemical products. CH20 shipped the chemicals to customers in drums and then reused any returned drums after cleaning them. During different periods between 1985-1988 and then again between 1992-1995, Iverson personally discharged and directed employees to illegally discharge the wastewater that resulted from the drum cleaning onto the plant's property, through a sewer drain at another property belonging to the defendant, and through a sewer drain at the defendant's home.

At trial, the prosecution argued that Iverson could be liable under the CWA as a responsible corporate officer. The trial court instructed the jury that Iverson could be found liable as a RCO if he met the following criteria: "(1) that the defendant had knowledge of the fact pollutants were being discharged to the sewer system by employees of CH20, Inc.; (2) that the defendant had the authority and capacity to prevent the discharge of pollutants to the sewer system; and (3) that the defendant failed to prevent the on-going discharge of the pollutants to the sewer system." (206) Iverson was convicted of violations of the Clean Water Act and state and local law (207) and sentenced to one year in custody, three years of supervised release, and a $75,000 fine. (208)

On appeal to the Ninth Circuit, Iverson argued that a corporate officer is only "responsible" when he exercises control over the activity causing the discharge. (209) In addition, he also argued that the "responsible corporate officer" instruction allowed the jury to convict him without finding a violation of the CWA. (210)

The Court's analysis tracked the development of the responsible corporate officer doctrine through Dotterweich and Park and cited to applications of the doctrine in other CWA cases. (211) The Court reviewed congressional actions in 1987, revising and replacing CWA criminal provisions, "most importantly" making a violation of the CWA a felony rather than a misdemeanor. Also important to the Court was that Congress made no changes to the CWA "responsible corporate officer" provision, especially since such changes came long after Park was decided. The Court stated, "[t]hat being so, we can presume that Congress intended for Park's refinement of the "responsible corporate officer" doctrine to apply under the CWA." (212)

The Ninth Circuit found that the trial court's "responsible corporate officer" instructions were not erroneous, reasoning that the "instruction relieved the government only of having to prove that the defendant personally discharged or caused the discharge of a pollutant. The government still had to prove that the discharges violated the law and that the defendant knew that the discharges were pollutants." (213) The Court found that under the CWA, a person with the authority to control the activity that violated a provision is a responsible corporate officer. (214) Furthermore, the Court held that "[t]here is no requirement that the officer in fact exercise such authority or that the corporation expressly vest a duty in the officer to oversee the activity." (215) Thus, the opinion appears to hold that a potentially "innocent" corporate officer could be held criminally liable based solely on his position of corporate authority.

2. United States v. Ming Hong (216)

The Fourth Circuit was the first circuit court to interpret the RCO doctrine after Iverson. (217) In United States v. Ming Hong, Hong operated a wastewater treatment facility that discharged untreated wastewater in violation of the facility's discharge permit. Hong was convicted of negligently violating pretreatment requirements under CWA [section] 1319(c)(1)(A). (218) On appeal before the Fourth Circuit, he challenged the district court's treatment of him as a responsible corporate officer; specifically, he argued that the government failed to prove that he was a designated officer of the company; and, in the alternative, if this was not required, that he did not exercise sufficient control over the company's operations to be responsible for the violations. (219)

The Fourth Circuit held that the government did not have to prove the defendant was a designated corporate officer: "[t]he gravamen of liability as a responsible corporate officer is not one's corporate title or lack thereof; rather, the pertinent question is whether the defendant bore such a relationship to the corporation that it is appropriate to hold him criminally liable." (220) Hong had acquired the wastewater treatment facility in 1993 and subsequently made several changes to the name of the company, eventually calling it Avion Environmental Group. (221) Despite his avoidance of formal association with the company and not being identified as an officer of Avion, Hong controlled the company's finances and played a major role in its operations. (222) Furthermore, he was involved in the purchase of a wastewater treatment system and had knowledge that the system was ineffective in treating the facility's wastewater and was regularly present at Avion while discharges openly occurred. (223)

The Court found these facts, when considered with the defendant's substantial control of corporate operations, provided ample evidence that Hong had the authority to prevent the illegal discharges. In this decision, the Court favorably cited to Iverson's "responsible corporate officer" analysis. (224)

C. Application of the RCO Doctrine to Federal Officials

Notwithstanding the fact that none of the cases discussed in this section use the words "responsible corporate officer," they evidence application of the RCO doctrine to federal agency employees in the conduct of their official duties. (225) While a federal employee or agency official may not "receive a benefit commensurate to the risk" (226) in the form of salary or dividends enjoyed by a corporate official, or the same authority to effect policy within their organization, they will be treated as corporate officers in relation to an illegal activity over which they occupy a supervisory position and have control authority. Hence, like a corporate officer, these individuals are deemed to have stepped out of their official capacity when their conduct rises to the level of criminal activity. (227) While there may be some latitude for the actions of federal officials in the performance of official duties, there is no blanket immunity from criminal prosecution. (228)

1. Sovereign Immunity/Official Immunity

The criminal liability of federal employees, to include military personnel, for violations of environmental laws is also affected by principles of sovereign immunity and official immunity. Sovereign immunity is a judicially created doctrine that makes the United States, absent an express waiver of sovereign immunity by Congress, immune from all suits. (229) Where sovereign immunity has been waived and federal officials are prosecuted in their official capacity, the doctrine of official immunity may protect them from state criminal prosecutions, so long as they were performing official duties. (230) This concept is based on the Supremacy Clause of the U.S. Constitution (231) and is traced to the seminal case of In re Neagle. (232)

In Neagle, the Supreme Court held that a U.S. deputy marshal, while performing his official duties defending a Supreme Court justice, could not be prosecuted by California for having killed someone who attacked the justice. The Court stated that if a marshal "is held in the state court to answer for an act which he was authorized to do by the law of the United States, which it was his duty to do as marshal of the United States, and if in doing that act, he did no more than what was necessary and proper for him to do, he cannot be guilty of a crime." (233)

The Court, discussing the supremacy of the federal government over the states, quoted Tennessee v. Davis (234) regarding the importance of official immunity: "[T]he general government ... can act only through its officers and agents, and they must act within the States. If, when thus acting, and within the scope of their authority, those officers can be arrested and brought to trial in a state court ... the operations of the general government may at any time be arrested at the will of one of its members ..." (235) The standard that has been applied following Neagle is a two-part test: (1) was the federal employee performing an act authorized by federal law; (2) were the actions of the employee necessary and proper in the performance of the authorized act. (236)

In application to the prosecution of environmental crimes, the doctrine would likely preclude a state criminal prosecution against a federal official as long as that individual's actions met the test as set out above. (237) However, if the prosecution was based on the failure of the employee to perform a required duty, or negligence in the performance of that duty, a responsible corporate officer analysis could then apply to the employee's actions as official immunity would not preclude prosecution.

2. Considerations re Military Members

The concept that the RCO doctrine creates a duty on the part of a superior in a position of authority to be aware of and accountable for violations within their span of control is a theme central to military command principles. (238) "[T]he requirements of public welfare statutes and the responsible corporate officer doctrine fit perfectly within the philosophy of command. They emphasize authority and responsibility as the basis of imposing criminal liability; the key elements of command are authority and responsibility." (239) The failure to take measures within a commander's authority may result in the commander's culpability for the actions of his subordinates. (240) While there have been no prosecutions against military members under the RCO doctrine, the possibility certainly is present and has been a suggested client counseling topic for military legal counsel. (241)

3. The Federal Official Cases: Establishing a "Responsible Federal Employee Doctrine"

a. United States v. Dee (242)

As mentioned above, the case of United States v. Dee involved the prosecution of three high-ranking federal civilian employees of the United States Army. The Fourth Circuit never used the words "responsible corporate officer doctrine," however; the case is generally accepted as having applied it. (243) The Court instead said the defendants were responsible for the control and maintenance of the chemical storage facilities, and, therefore, they could be liable for the poor management of the hazardous wastes therein and the associated criminal offenses. (244)

The important aspect for federal employees and agency officials is that federal employees are not exempt from liability under RCRA; in fact, a federal employee, when sued in his official capacity is still an "individual" under the definition of a "person" in RCRA. (245) Furthermore, the Court stated that "[e]ven where certain federal officers enjoy a degree of immunity for a particular sphere of official actions, there is no general immunity from criminal prosecution for actions taken while serving their office." (246) While the Dee case may be the leading decision for what has also been called the "responsible federal employee doctrine," (247) there are two other circuit court cases that have applied the RCO doctrine to federal employees as well.

b. United States v. Carr (248)

In the first of these, United States v. Carr, the Second Circuit Court of Appeals focused on who is a "person in charge" under CERCLA. Mr. Carr was a maintenance foreman employed by the Army at Fort Drum. Carr directed a work crew to dispose of waste paint cans in a pond in violation of CERCLA. After learning from his subordinates that the cans were leaking into the man-made pond, Carr instructed the employees to fill in the pond with dirt. He was found guilty of failing to report the unauthorized release of the hazardous substances in the cans. Carr argued that he was not a "person in charge" due to his "relatively low rank." (249) The Court found that, "Congress intended ... to reach a person--even if of relatively low rank--who, because he was in charge of a facility, was in a position to detect, prevent, and abate a release of hazardous substances." (250) Again, although not specifically mentioning the RCO doctrine, the Court used the typical "control" language of the public welfare cases to express a "responsible relation" between Cart and his ability to prevent the hazard, just as in Dotterweich.

c. United States v. Curtis (251)

The most recent case involving a federal employee to be reviewed at the circuit level was United States v. Curtis. Mr. Curtis was the Fuels Division Director at Adak Naval Air Station. He was found guilty of discharging pollutants in violation of the CWA. Specifically, he directed his employees to pump jet fuel into a pipeline that he knew would leak. The pipeline ultimately leaked fuel into a stream.

Mr. Curtis argued that he was not a "person" under the CWA because federal employees were not included in the definition of a "person" liable for prosecution under the Act. (252) The Ninth Circuit reasoned that the defendant's claim for immunity was no different than the claims made by the defendants in Dee. (253) The Court found "clear and unambiguous" congressional intent to bring federal employees within the jurisdiction of persons who are subject to criminal liability under the statute. (254) "In accord with the statutes' plain meaning, individual federal employees acting within the course and scope of their employment are subject to criminal prosecution for violation of the Clean Water Act." (255)

D. Criticisms Of The RCO Doctrine

1. Purported Elimination of Mens Rea Requirements

Although the RCO doctrine has been a feature of the American legal system at least since the early 1940's, (256) it has also been frequently criticized. (257) Usually, criticisms of the doctrine attack its effect on any required mens rea element. (258) However, in no application of the RCO doctrine to an environmental statute has the requirement for proving mens rea been done away with; the requirement for knowledge of the underlying acts is still required and can be inferred as a result of the corporate officer's position and authority. The decision always remains with the factfinder whether the defendant had the criminal intent required. Conversely, a strict liability crime would not require culpability or even an awareness of conduct on the part of the wrongdoer. (259)

2. Lesser Government Burden of Proof for Felony Convictions

While the public welfare doctrine, with its strict liability elimination of scienter requirements, has traditionally been applied to misdemeanor statutes, the environmental statutes to which the RCO doctrine is being employed are felony statutes with express knowledge requirements. Some see this latter development as a violation of a defendant's right to due process due to the imposition of significant penalties and the lowering of the government's burden to prove guilt. (260)

On these grounds, there is considerable debate about the applicability of the public welfare offense doctrine to environmental statutes. (261) The Supreme Court even hints in Staples (262) that punishing a violation of a public welfare statute as a felony may be inappropriate. (263) However, as mentioned above, (264) the Court was unwilling to decide that particular issue. Subsequently, in Weitzenhoff, (265) the Ninth Circuit distinguished Staples and found that it was appropriate to consider an environmental felony statute under public welfare principles.

Another aspect of the felony offense debate is congressional intent, particularly after the CAA and CWA were amended to include a "responsible corporate officer" as a "person." While it can be argued that "Congress' repetition of a well-established term carries the implication that Congress intended the term to be construed in accordance with pre-existing interpretations," (266) when those amendments were made, the statutes did not include felony violations. Regardless, if Congress was concerned about application of the RCO doctrine to felony violations, perhaps it would have amended the statutes, but it has not. It remains unknown whether such inaction represents a general malaise or, instead, encouragement for a broader reach of environmental criminal liability.

3. Need for Lenity in the Face of Statutory Ambiguity

The complex nature (267) of environmental law includes much ambiguity and raises the possibility that, as a minority of courts have suggested, the "rule of lenity" should be applied to environmental criminal statutes. (268) Under that rule, when a statute is ambiguous, it should be interpreted in favor of the defendant. (269) "The purpose of narrowly construing criminal statutes is that, if they are ambiguous, a person would not have adequate warning that his or her conduct is deemed illegal." (270) However, the rule of lenity only applies when there is a grievous ambiguity or uncertainty in the statute and when, "after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended." (271)

4. RCO Doctrine Conflicts with Supreme Court Environmental Civil Liability Standards

Liability under the RCO doctrine depends upon a defendant's corporate position and concomitant authority to control activities. In light of the Supreme Court's decision in United States v. Bestfoods, (272) it appears the Court might reject such a broad approach to imposing environmental liability on corporate officers based on a lack of "actual control." (273) In this civil liability CERCLA case, the Court would not extend liability to a parent corporation absent direct participation by the parent in the subsidiary's activities related to the offense. (274)

While defining "operator" under CERCLA, the Court presented a definitional component that could potentially derail a criminal case based on the RCO doctrine: requirement that an operator be directly involved in activities relating to the violation as opposed to merely being in a position to do something about it. (275) While CERCLA defines an "operator" as "any person ... operating a facility;" (276) the Court in Bestfoods would require more specificity related to "managing" or "directing" the activities themselves. (277)

The Bestfooods test for "owner" civil, liability under CERCLA was extended to the CAA in United States v. Dell 'Aquilla (278) in the Third Circuit. There, the Court followed the Bestfoods test, applying that opinion's logic to a different environmental statute because of the shared purposes and language between the statutes. (279) As Iverson was decided after Bestfoods, the Ninth Circuit apparently did not find its holding with regard to corporate parent-subsidiary relationships to have any bearing on their interpretation of the relevance of the RCO doctrine in the context of an individual's criminal liability.

VII. CONCLUSION

When an individual, whether corporate officer, sewage treatment plant manager, or military installation commander, is in a position of authority over dangerous activities that are highly regulated, the majority of courts will find a way to make them responsible for those activities, most likely through an entwining of the public welfare offense and RCO doctrines. Despite the appearance of courts' willingness to impose a strict liability standard, in fact, (280) the RCO doctrine has not been applied in the absence of at least some evidence of knowledge on the part of the corporate actor. The extent of knowledge required varies somewhat among the circuit courts of appeal.

As a matter of policy, the application of the RCO doctrine that best factors in--

* the expectations of the public for protection from hazards, and

* the responsible party's knowledge of and ability to control the activity

would seem to be the best methodology for determining criminal culpability. (281) It will be up to the courts, or Congress, to determine how that policy is implemented given the required knowledge elements of the various criminal violations within the environmental statutory regimes. "In such matters, the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries must be trusted." (282)

(1) As discussed below, this concept of criminal liability is as applicable to federal government officials (military and civilian) as it is to corporate officers.

(2) Decided in 1943, United States v. Dotterweich is regarded as the earliest application of the Responsible Corporate Officer Doctrine. See United States v. Dotterweich, 320 U.S. 277 (1943).

(3) A public welfare offense is one that a "reasonable person should know is subject to stringent public regulation and may seriously threaten the community's health or safety." Liparota v. United States, 471 U.S. 419, 433 (1985).

(4) WAYNE R. LAFAVE, CRIMINAL LAW, 214 (3rd Ed. 2000).

(5) See id. at 215-219.

(6) The Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. [subsection] 9601-9675 (1988), Codifying Pub. L. No. 96-5610, 94 Stat. 2767 (1980) as amended.

(7) See 42 U.S.C. [section] 6603(b).

(8) See LAFAVE, supra note 4, at 265.

(9) Id.

(10)

   Under this approach, the mental state for the aider and abettor is
   the same as that for the principal. The mental state for the aider
   and abettor is not a constant, but varies with the crime. It may be
   purposeful intent, if, under the particular crime charged, the
   principal is not guilty unless acting with purposeful intent. It may
   be knowledge, bad purpose, or strict liability; for each offense,
   the aider and abettor's mental state is derived from that required
   of the principal.

Baruch Weiss, What Were They Thinking?: The Mental States of the Aider and Abettor and the Causer under Federal Law, 70 FORDHAM L. REV. 1341, 1410 (2002).

(11) Mens rea, criminal intent, and scienter are used to describe the state of mind that usually must be shown to prove criminal conduct. See WAYNE R. LAFAVE, CRIMINAL LAW, 224 (3rd Ed. 2000).

(12) The Rivers and Harbors Act of 1899 for example has such a standard of strict liability for actions relating to discharges of refuse into the navigable waters of the United States and for any action that inhibits the navigability of those waters. See generally 33 U.S.C. [subsection] 401-407.

(13) United States v. United States Gypsum, 438 U.S. 432,436 (1978).

(14) DONALD A. CARR ET AL., ENVIRONMENTAL CRIMINAL LIABILITY: AVOIDING AND DEFENDING ENFORCEMENT ACTIONS, 128 (1995).

(15) See ARNOLD W. REITZE, JR., AIR POLLUTION CONTROL LAW: COMPLIANCE & ENFORCEMENT, 578 (2001). See also 42 U.S.C. [section] 7413(c); 42 U.S.C. [section] 6928(d)&(e); 42 U.S.C. [section] 9603(b)&(d); 7 U.S.C. [section] 1361(b)(ii); 15 U.S.C. [subsection] 2614-1615; 33 U.S.C. [section] 1319(c). The Toxic Substances Control Act is the only environmental statute containing a general criminal provision requiring proof that an act was committed "knowingly or willfully." 15 U.S.C. [section] 15(b).

(16) Lambert v. California, 355 U.S. 225 (1957).

(17) See LAFAVE, supra note 4, at 219.

(18) See Barry M. Hartman & Charles A. De Monaco, The Present Use of the Responsible Corporate Officer Doctrine in the Criminal Enforcement of Environmental Laws, 23 ELR 10,145 (1993).

(19) See LAFAVE, supra note 4, at 220.

(20) "Basic to the theory of corporation law is the concept that a corporation is a separate entity, a legal being having an existence separate and distinct from that of its owners. This attribute of the separate corporate personality enables the corporation's stockholders to limit their personal liability ... The corporate form, however, is not lightly disregarded, since limited liability is one of the principal purposes for which the law has created the corporation." Lynda J. Oswald and Cindy A. Schipani, Legal Theory." CERCLA and the "'Erosion "" of Traditional Corporate Law Doctrine, 86 NW. U.L. REV. 259 (1992), citing Krivo Indus. Supply Co. v. National Distillers & Chem. Corp., 483 F.2d 1098, 1102 (5th Cir. 1973).

(21) Keith Welks, Corporate Criminal Culpability: An Idea Whose Time Keeps Coming, 16 COLUM. J. ENVTL. L. 294 (1991).

(22) 212 U.S. 481 (1909).

(23) Pub. L. No. 57-103, 32 Stat. 847 (1903).

(24) New York Central, 212 U.S. at 493.

(25) "Respondent superior" is a traditional tort law doctrine that can be defined as "the doctrine holding an employer or principal liable for the employee's or agent's wrongful acts committed within the scope of the employment or agency." BLACK'S LAW DICTIONARY 1313 (7th Ed. 1999).

(26) "Piercing the corporate veil" is defined as "the judicial act of imposing personal liability on otherwise immune corporate officers, directors, and shareholders for the corporation's wrongful acts." BLACK'S LAW DICTIONARY 1168 (7th Ed. 1999). The concept of piercing the corporate veil also is traditionally used to find a parent corporation responsible for the acts of a subsidiary when "the corporate form would otherwise be misused to accomplish wrongful purposes ..." United States v. Bestfoods, 524 U.S. 51, 62 (1998).

(27) See United States v. Exxon Corp. & Exxon Shipping Co., Crim. No. A-90-015-Cr. (D. Alaska 1990).

(28) "The definition of aiding and abetting requires knowledge of the criminal act and some participation in bringing it to completion. Instructing or authorizing another to commit an offense is all that is required to impose liability." WILLIAM E. KNEPPER & DAN A. BAILEY, LIABILITY OF CORPORATE OFFICERS AND DIRECTORS, 255 (6th Ed. 1998).

(29) See generally id at 254.

(30) 320 U.S. 277 (1943).

(31) Id. at 285.

(32) Staples v. United States, 511 U.S. 600, 616 (1994).

(33) See Dotterweich, 320 U.S. 277; United States v. International Minerals & Chem. Corp., 402 U.S. 558 (1971); United States v. Park, 421 U.S. 658 (1975).

(34) Liparota v. United States, 471 U.S. 419, 433 (1985).

(35) 402 U.S. 558 (1971).

(36) Id.

(37) Id. at 558.

(38) Id. at 559.

(39) Id. at 562.

(40) Morissette v. United States, 342 U.S. 246 (1952).

(41) Morissette, 342 U.S. at 256.

(42) International Minerals, 402 U.S. at 563-564.

(43) Id.

(44) 471 U.S. 419 (1985).

(45) Id.

(46) Id. at 420.

(47) Id. at 420, n. 1.

(48) Id. at 432.

(49) Id.

(50) Id. at 433.

(51) See CARR, ET AL., supra note 14, at 186.

(52) 511 U.S. 600 (1994).

(53) Id.

(54) 26 U.S.C. [subsection] 5801-5872.

(55) Staples, 511 U.S. at 603.

(56) Id, at 601.

(57) Id. at 620.

(58) 401 U.S. 601 (1971).

(59) Staples, 511 U.S. at 603.

(60) Id.

(61) Id.

(62) 513 U.S. 64 (1994).

(63) Id.

(64) Specifically, the defendant was charged with violating 18 U.S.C. [section] 2252 which states in pertinent part:

(a) Any person who--

(1) knowingly transports or ships in interstate commerce or foreign commerce by any means including by computer or mails, any visual depiction, if--

(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct..

(2) knowingly receives, or distributes, any visual depiction ... or knowingly reproduces any visual depiction for distribution in interstate or foreign comers or through the mails, if--

(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct ...

(65) X-Citement Video, Inc., 513 U.S. at 69.

(66) Morissette, 342 U.S. at 256.

(67) X-Citement Video, Inc., 513 U.S. at 69.

(68) Id. at 71.

(69) United States v. Dotterweich, 320 U.S. 277, 280-281 (1943), (citing United States v. Balint, 258 U.S. 250 (1922)).

(70) Morissette, 342 U.S. at 255-256.

(71) 176 F.3d 1116 (9th Cir. 1999), cert. denied, 528 U.S. 1102 (2000).

(72) Id.

(73) 42 U.S.C. [subsection] 7401-42 (1988), Codifying Pub. L. No. 95-95, 91 Stat. 685 (1977) as amended.

(74) 176 F.3d at 1119.

(75) Id.

(76) Id. at 1118.

(77) The defendant urged the Court to define criminal negligence as "a gross deviation from the standard of care that a reasonable person would observe in the situation." See American Law Institute, Model Penal Code [section] 2.02(2)(d) (1985). The Court found that by the plain language of the statute Congress intended to use "negligently" to mean the failure to use such care that a reasonably prudent person would used under similar circumstances. 176 F.3dat 1121.

(78) 176 F.3d at 1121.

(79) Id.

(80) 528 U.S. 1102, 1105 (2000) (Thomas, J., dissenting).

(81) See, e.g., United States v. United States Gypsum Co., 438 U.S. 422, 438 (1978) ("Certainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with the intent requirement"); Liparota v. United States, 471 U.S. 419, 425-426 (1985) (defendant convicted of unlawfully acquiring and possessing food stamps in an unauthorized manner; government must prove defendant knew his acquisition and/or possession of the food stamps was unlawful); United States v. X-Citement Video, Inc., 115 S.Ct. 464, 468 (1994) (adopting presumption that mens rea requirement should apply to every element of the crime that would otherwise criminalize innocent conduct); Posters 'N' Things, Ltd. v. United States, 114 S.Ct. 1747, 1753-1754 (1994) (despite absence of the term "knowingly" from the statute prohibiting interstate conveyance in plan to sell drugs, required roof that defendant knowingly made use of such a scheme).

(82) See KNEPPER & BAILEY, supra note 28.

(83) 320 U.S. 277 (1943).

(84) Id.

(85) 21 U.S.C. [section] 301 et seq.

(86) Dotterweich, 320 U.S. at 280.

(87) Id. at 281.

(88) The distinction between misdemeanor and felony offenses is significant; so too is it significant in the application of the RCO doctrine according to some commentators. See Cynthia H. Finn, The Responsible Corporate Officer, Criminal Liability, and Mens Rea: Limitations on the RCO Doctrine, 46 AM. U.L. REV. 543 (1996).

(89) 320 U.S. 277 at 284.

(90) Id. at 285.

(91) 421 U.S. 658 (1975).

(92) Id.

(93 Id. at 661-662.

(94) Id. at 663-664.

(95) Id. at 663.

(96) Id. at 672.

(97) Id. at 672-673.

(98) Id. at 673-674.

(99) See id. at 672.

(100) "Public welfare offenses in the environmental law context originated under the Refuse Act of 1899. Environmental violations under the Act were treated as public welfare offenses, and the Act authorized the prosecution of individuals who had no specific knowledge of the allegedly criminal act." See Randall S. Abate & Danya E. Mancuso, It's All About What You Know: The Specific Intent Standard Should Govern "'Knowing" Violations of the Clean Water Act, 9 N.Y.U. ENVTL. L.J. 304, 314-315 (2001).

(101) 741 F.2d 662 (3d Cir. 1984).

(102) Id.

(103) Id. at 664.

(104) Id. at 667.

(105) Id. at 665 (quoting Dotterweich, 320 U.S. at 282).

(106) Id.

(107) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (1972), Codifying Pub. L. No. 92-500, 86 Stat. 816 (1972) as amended. The FWPCA is generally referred to as the Clean Water Act.

(108) Id. [section] 1319(c)(2).

(109) 42 U.S.C. [section] 7413(c) (1988).

(110) The Solid Waste Disposal Act, as amended by The Resource Conservation and Recovery Act, 42 U.S.C. [subsection] 6901-699k (1988), codifying Pub. L. No. 94-580, 90 Stat. 2795, 2796, as amended.

(111) Id. [section] 6928(d)(1).

(112) The Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. [subsection] 9601-9675 (1988), codifying Pub. L. No. 96-5610, 94 Stat. 2767 (1980) as amended.

(113) Id. [section] 9603(b)(3) as amended by The Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, [section] 109, 100 Stat. 1613, 1632-1633.

(114) See LAFAVE, supra note 4, at 214; see REITZE, supra note 15, at 578.

(115) Brenda S. Hustis & John Y. Gotanda, The Responsible Corporate Officer: Designated Felon or Legal Fiction?, 25 LOY. CHI. L. J. 169 (1994) (quoting United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35, 52 n.15 (1st Cir. 1991)).

(116) The primary laws reviewed in this article are: Clean Air Act, 42 U.S.C. [subsection] 7401-7671q (1990), Clean Water Act, 33 U.S.C. [subsection] 1251-1387 (1972); Resource Conservation and Recovery Act, 42 U.S.C. [subsection] 6901-699k (1988); and the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. [subsection] 9601-9675 (1988).

(117) 42 U.S.C. [subsection] 7401-42 (1988), codifying Pub. L. No. 95-95, 91 Stat. 685 (1977) as amended.

(118) See 42 U.S.C. [section] 7413(c)(1) & (3).

(119) See id. [section] 7413(c)(2).

(120) See id. [section] 7413(c)(4) & [section] 7413(c)(5).

(121) Id. [section] 7413(c).

(122) Id. [section] 7413(c)(6).

(123) Federal Water Pollution Control Act (FWPCA), 33 U.S.C. [subsection] 1251-1387 (1972), codifying Pub. L. No. 92-500, 86 Stat. 816 (1972) as amended. The FWPCA is generally referred to as the Clean Water Act.

(124) 33 U.S.C. [section] 1342.

(125) 33 U.S.C. [section] 1319(c)(1), (c)(2). Again, the term "person" applies to both individuals and corporations. See 33 U.S.C. [section] 1362(5).

(126) 33 U.S.C. [section] 1319(c)(6).

(127) 33 U.S.C. [section] 1342.

(128) 33 U.S.C. [section] 1319(c)(4).

(129) 33 U.S.C. [section] 1319(c)(3)(A).

(130) 33 U.S.C. [section] 1321(b)(5).

(131) The Solid Waste Disposal Act, as amended by The Resource Conservation and Recovery Act, 42 U.S.C.A. [subsection] 6901-699k (1988), codifying Pub. L. No. 94-580, 90 Stat. 2795, 2796, as amended.

(132) 42 U.S.C. [section] 6093(15).

(133) In United States v. MacDonald & Watson Oil Co., 933 F.2d 35 (1st Cir. 1991), the First Circuit refused to extend RCRA liability on the RCO doctrine.

(134) 42 U.S.C. [section] 6928(d)(2).

(135) Id. [section] 6928(d)(6) and (d)(2).

(136) Id. [section] 6928(d)(3).

(137) Id. [section] 6928(d)(4).

(138) Id. [section] 6928(d)(6).

(139) See 42 U.S.C. [subsection] 6928(d)-(e), 6992d(b) & (c).

(140) The Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. [subsection] 9601-9675 (1988), codifying Pub. L. No. 96-5610, 94 Stat. 2767 (1980) as amended.

(141) See 42 U.S.C. [section] 9603(b)(3).

(142) Pursuant to the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. [subsection] 11001-50, which was added as part of the Superfund Authorization and Reauthorization Act amendments. See id. [section] 11045(b)(4).

(143) 42 U.S.C. [section] 9603(c) & (d). Although courts have not yet interpreted "owner or operator" in a criminal context, possible application of the terms may be made by analogy to findings of liability in civil cases that have addressed their applicability. See infra section VI D 4 (discussion of such civil law findings by the U.S. Supreme Court in United States v. Bestfoods, 118 S.Ct. 1876 (1998)).

(144) See United States v. International Minerals & Chem. Corp., 402 U.S. 558 (1971).

(145) United States v. Dean, 969 F.2d 187, 192 (6th Cir. 1992).

(146) 35 F.3d 1275 (9th Cir. 1994), cert. denied, 513 U.S. 1128 (1995).

(147) CWA [section] 402 provides the permitting process that allows for the discharge of pollutants in compliance with the requirements of the Act. The section is titled, National Pollutant Discharge Elimination System (NPDES); permits granted under this section are known as NPDES permits.

(148) Weitzenhoff, 35 F.3d 1275 at 1282.

(149) The relevant portion of 33 U.S.C. [section] 1319(c)(2) provides:

   (2) Knowing violations

   Any person who--Knowingly violates section ... 1311 ... of this
   title, or any permit condition or limitation implementing any of such
   sections in a permit issued under section 1342 of this title by the
   Administrator or by a State, or any requirement imposed in a
   pretreatment program approved under section ... of this title ...
   shall be punished by a fine of not less than $5,000 nor more than
   $50,000 per day of violation, or by imprisonment for not more than 3
   years, or by both.

(150) Weitzenhoff, 35 F.3d 1275 at 1284.

(151) Id.

(152) See REITZE, supra note 15, at 578.

(153) See CARR, ET AL., supra note 14, at 208.

(154) Id. at 209.

(155) 511 U.S. 600 (1994).

(156) 35 F.3d 1275 (9th Cir. 1994), cert. denied, 513 U.S. 1128 (1995).

(157) Staples, 114 S.Ct. at 1799 (citing Liparota v. United States, 471 U.S. 419, 426 (1985)).

(158) Weitzenhoff, 35 F.3d at 1285-1286.

(159) Id. (citing Staples, 114 S.Ct. at 1798).

(160) Id. at 1286.

(161) 133 F.3d 251 (4th Cir. 1997).

(162) The CWA prohibits the discharge of dredged or fill material into the navigable waters of the United States without a permit.

(163) 133 F.3d at 260.

(164) Id. at 265.

(165) Id. at 262.

(166) Id. at 264.

(167) Weitzenhoff, 35 F.3d at 1284.

(168) See Wilson, 133 F.3d. at 264. Since the Court required proof of knowledge for all statutory elements of the offense, it had to justify how requiring proof of awareness of illegality of conduct by knowledge that the defendant did not have a permit was not proof of knowledge of the unlawfulness of the act. While the Court states that the purpose of the requirement is to preserve a mistake of fact defense, it appears to be a rationalization to remain consistent with its interpretation of how "knowingly" in the statute required proof of knowledge to every essential element of the offense.

(169) 524 U.S. 184 (1998).

(170) 18 U.S.C. [section] 922(1)(a).

(171) Specifically, Title 18, U.S.C. [section] 924(a)(1) provides in relevant part:

Except as otherwise provided in this subsection, subsection (b), (c), or (f) of this section, or in section 929, whoever--

(A) knowingly makes any false statement ...

(B) knowingly violates subsection ...

(C) knowingly imports or brings into the United States ...

(D) willfully violates any other provisions of this chapter, shall be fined under this title, imprisoned not more than five years or both.

(172) Bryan, 524 U.S. at 189.

(173) Id. at 192 (quoting Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 345 (1952) Jackson, J. dissenting)).

(174) Id. at 193.

(175) Bryan, 524 U.S. at 193.

(176) 786 F.2d 1499 (11th Cir. 1986).

(177) The relevant portion of 42 [section] 6928(d)(1) is set forth as follows:

   (d) Criminal penalties
   Any person who--

   (1) knowingly transports or causes to be transported any hazardous
   waste identified or listed under this subchapter to a facility
   which does not have a permit under this subchapter ... shall upon
   conviction, be subject to a fine of not more than $50,000 for each
   day of violation, or imprisonment not to exceed two years (five
   years in the case of a    violation of paragraph (1) or (2)), or
   both.

(178) Hayes, 786 F.2d at 1501.

(179) See 786 F.2d 1499 (11th Cir. 1986).

(180) There are some scenarios where a good-faith belief could give rise to a mistake of fact defense. In International Minerals, the Supreme Court found that in a case involving "knowing" shipment of dangerous chemicals, a person who believed in good faith that he was shipping distilled water when in fact he was shipping some dangerous acid would not be covered. International Minerals, 402 U.S. at 563-564. The court in Hayes also would have applied mistake of fact, in principle, if the facts were that the defendant reasonably believed that the materials were actually being recycled. Hayes, 786 F.2d at 1506. See also United States v. Ahmad, 101 F.3d 386 (5th Cir. 1996) and United States v. Wilson, 133 F.3d 251 (4th Cir. 1997).

(181) 786 F.2d at 1500.

(182) Id. at 1502 (citing to S. Rep. No. 172, 96th Cong., 2d Sess. 39 (1980), reprinted in 1980 U.S.C.C.A.N. 5019, 5038).

(183) 402 U.S. 558 (1971).

(184) 786 F.2d at 1503.

(185) Id.

(186) Id. at 1504-1505.

(187) See United States v. Johnson & Towers, Inc., 741 F.2d 662 (3rd Cir. 1984); United States v. Dee, 912 F.2d 741, (4th Cir. 1990), cert. denied., 111 S. Ct. 1307 (1991); United States v. Frezzo Bros., Inc., 602 F.2d 1123 (3rd Cir. 1979), cert. denied, 100 S. Ct. 1020 (1980); United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993), cert. denied, 115 S. Ct. 939 (1995).

(188) 933 F.2d 35 (1st Cir. 1991).

(189) Id. at 50.

(190) Id. at 50-51.

(191) Id. at 55.

(192) 320 U.S. 277 (1943).

(193) 421 U.S. 658 (1975).

(194) 933 F.2d at 51-52.

(195) 931 F.2d 1413 (10th Cir. 1991).

(196) Id. at 1419.

(197) Id.

(198) 741 F.2d 662 (3d Cir. 1984).

(199) See Hustis & Gotanda, supra note 115, at 174.

(200) 912 F.2d 741 (4th Cir. 1990), cert denied, 111 S. Ct. 1307 (1991).

(201) Id. at 747.

(202) 402 U.S. 558 (1971).

(203) All three defendants were chemical engineers working for the United States Army and assigned to the Chemical Research, Development, and Engineering Center in the development of chemical warfare systems. 912 F.2d at 741.

(204) Id.

(205) 162 F.3d 1015 (9th Cir. 1999).

(206) Id. at 1022.

(207) The state and local laws are not federal offenses. However, the CWA allows states to administer water pretreatment programs and, if EPA approves a state's program, violations of those regulations are treated as federal criminal offenses. See 33 U.S.C. [section] 1342(b) and 1319(c)(2).

(208) Iverson, 162 F.3d at 1019.

(209) Id. At 1022.

(210) Id. at 1026.

(211) See United States v. Brittain, 931 F.2d 1413, 1419 (10th Cir.) and Frezzo Bros., Inc., 602 F.2d at 1130 (3rd Cir. 1979). See Iverson. 162 F.3d at 1024 and n.3.

(212) 162 F.3d at 1024.

(213) Id. at 1026 (emphasis in original).

(214) Id. at 1025.

(215) Id.

(216) 242 F.3d 528 (4th Cir. 2001).

(217) The analysis in the Iverson decision was followed again in the Ninth Circuit in United States v. Cooper, 173 F.3d 972 (9th Cir. 1999), cert. denied., 528 U.S. 1019 (1999), and in the Eleventh Circuit in United States v. Hansen, 262 F.3d 1217 (11th Cir. 2001), cert. denied, 122 S. Ct. 2326 (2002).

(218) 242 F.3d at 529-530.

(219) Id. at 530.

(220) Id. at 531.

(221) Id. at 529.

(222) While not listed as a corporate officer of Avion, the defendant maintained an office on the premises at Avion, reviewed marketing reports, suggested marketing strategies, controlled Avion expenses, and signed a lease as president of Avion. See id.

(223) Id. at 532.

(224) After discussing Dotterweich and Park, the court cites to Iverson as setting out the principles for determining when an individual is a responsible corporate officer under the CWA. See id. at 531.

(225) Patrick O. Cavanaugh & Christopher Harris, Environmental Crimes and the Responsible Government Official, NAT. RESOURCES AND ENVT. 23 (1991).

(226) See generally Margaret K. Minister, Federal Facilities and the Deterrence Failure of Environmental Laws." The Case For Criminal Prosecution of Federal Employees, 18 HARV. ENVTL. L. REV. 137, 174 (1994).

(227) See Dee, 912 F.2d at 744.

(228) See id.

(229) See James P. Calve, Environmental Crimes: Upping the Ante for Noncompliance with Environmental Laws, 133 MIL. L. REV. 279 (1991).

(230) See Susan L. Smith, Shields for the King's Men: Official Immunity and Other Obstacles to Effective Prosecution of Federal Officials for Environmental Crimes, 16 COLUM. J. ENVT. L. 1 (1991).

(231) U.S. CONST. art. VI, cl.2.

(232) 135 U.S. 1 (1890).

(233) Id. at 75.

(234) 100 U.S. 257, 262-263 (1879) (quoting Martin v. Hunter's Lessee, 14 U.S. 304, 363 (1816)).

(235) Id. at 61-62.

(236) See Smith, supra note 230, at 38 (citing to Kentucky v. Long, 837 F.2d 727, 744 (6th Cir. 1988) for the modern application of the doctrine).

(237) In a federal prosecution for federal crimes, "[t]he supremacy clause concerns which give rise to Neagle-type immunity are not implicated." United States v. Dee, 912 F.2d 741,744, n.7 (1990).

(238) "The Supreme Court, in essence, has found that corporate officers have a duty to know about the violations within their dominion and control, and that lack of knowledge is no defense" Jane F. Barrett &Veronica M. Clarke, Perspectives on the Knowledge Requirement of Section 6928(d) of RCRA after United States v. Dee, 59 GEO. WASH. L. REV. 862, 883 (1991).

(239) See Calve supra note 229, at 301, 346. See also Timothy Wu & Yong-Sung (Jonathan) Kang, Criminal Liability for the Actions of Subordinates--The Doctrine of Command Responsibility and its Analogues in United States Law, 38 HARV. INT'L L.J. 272 (1997).

(240) See Calve, supra note 229, at 301.

(241) See Brian J. Hopkins, Environmental Crimes: Recent Case Law and Practice, 19 A.F. L. REV. 1, 18 (1996).

(242) 912 F.2d 741 (4th Cir. 1990), cert denied, 111 S. Ct. 1307 (1991).

(243) See generally Margaret K. Minister, supra note 226.

(244) Dee, 912 F.2d 741,748-749.

(245) Id. at 744 (citing RCRA [section] 6903(15)).

(246) Id.

(247) See generally Minister, supra note 226.

(248) 880 F.2d 1550 (2nd Cir. 1989).

(249) Id. at 1554.

(250) Id.

(251) 988 F.2d 946 (9th Cir. 1993).

(252) Id. at 947.

(253) Id. at 947-948.

(254) Id. at 948.

(255) Id. at 949.

(256) See Dotterweich, 320 U.S. 277 (1943).

(257) See Finn, supra note 88; Richard G. Singer, The Myth of the Doctrine of the Responsible Corporate Officer, 6 TOXICS L. REP. 1378 (1992); Richard J. Lazarus, Mens Rea in Environmental Criminal Law: Reading Supreme Court Tea Leaves, 7 FORDHAM ENVTL. L.J. 861,866 (1996).

(258) See Finn, supra note 88 at 548.

(259) LAFAVE, supra note 4, at 242-243. "Requiring the government to prove only that the defendant acted with awareness of his or her conduct does not render [a criminal provision] a strict liability offense. United States v. Sinskey, 119 F.3d 712, 717 (8th Cir. 1997).

(260) See Keith A. Gaynor, et al., Improving Fairness in Environmental Enforcement, 7 TOX. L. REP. 1029, 1031 n.84 (1993).

(261) See also Lazarus, supra note 257 at 866.

(262) 511 U.S. 600 (1994).

(263) Id. at 616.

(264) See supra, text accompanying nn. 59-61.

(265) 35 F.3d 1275 (9th Cir. 1994), cert. denied, 513 U.S. 1128 (1995).

(266) See Bragdon v. Abbott, 524 U.S. 624 (1998).

(267) "For those who dare to study, teach, or practice environmental law, its complexity is virtually a mantra." Richard J. Lazarus, Meeting the Demands of Integration in the Evolution of Environmental Law." Reforming Environmental Criminal Law, 83 GEO. L.J. 2407, 2428 (1995).

(268) See Jonathan Snyder, Back to Reality: What "Knowingly" Really Means and the Inherently Subjective Nature of the Mental State Requirement in Environmental Criminal Law, 8 MO. ENVTL. L. & POL'Y REV. l, 11-12 (2002) (discussion of "rule of lenity" and application to environmental criminal provisions).

(269) See Iverson, 162 F.3d at 1025.

(270) See Snyder, supra note 268, at 12.

(271) Muscarello v. United States, 118 S.Ct. 1911 (1998) (quoted in Iverson, 162 F.3d at 1025, n.8).

(272) 118 S.Ct. 1876 (1998).

(273) Id. at 1886.

(274) Id. at 1887.

(275) Id.

(276) 42 U.S.C. [section] 9601 (20)(A)(ii).

(277) Id. at 1887.

(278) 150 F.3d 329 (3rd Cir. 1999).

(279) Id. at 334.

(280) See United States v. Brittain, 931 F.2d 1413, 1419 (10th Cir. 1991); United States v. Johnson & Towers, Inc., 741 F.2d 662 (3rd Cir. 1984); United States v. Dee, 912 F.2d 741, (4th Cir. 1990), cert. denied., 111 S. Ct. 1307 (1991).

(281) See Hartman and De Monaco, supra note 18.

(281) Dotterweich, 320 U.S. at 285.

LIEUTENANT COLONEL JOSEPH E. COLE, Lieutenant Colonel Joseph E. Cole (B.S., University of Missouri; J.D., Saint Louis University School of Law; LL.M., The George Washington University Law School) is Chief Environmental Compliance, HQ AETC/JA, Randolph AFB, Texas. He is member of the Missouri Bar.

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