Environmental Crimes : How to Present,

David S. Krakoff is a principal at Beveridge and Diamond in the Washington, D.C. He is a member of ABA and serves as vice chairman of the Environmental Crimes Committee (Section of Environment) and co-chairman of the Environmental Crimes Subcommittee of the White Collar Crime Committee (Criminal Justice Section). He is also a member of the Criminal Litigation Committee. Additionally, Mr. Krakoff is a member of the National Association of Criminal Defense Lawyers and the Edward Bennett Williams American Inn of Court Gary Lincenberg is the co-managing partner of the Los Angeles litigation firm Bird, Marella, Boxer and Wolpert. Before entering private practice, Mr. Lincenberg served as a deputy chief in the Los Angeles U.S. Attorney's Office

Preface	p. vii
Table of Authorities	p. viii
The Development of Environmental Criminal Prosecutions	p. 1
Introduction	p. 1
Statutory Review	p. 2
Growth of the Federal Environmental Criminal Program	p. 3
Criminal Prosecutions by State and Local Authorities	p. 6
The Future of Environmental Enforcement	p. 6
Overview of Federal Criminal Environmental Statutes	p. 10
Introduction	p. 10
Criminal Provisions of Selected Federal Environmental Statutes	p. 10
Resource Conservation and Recovery Act (42 U.S.C. 6901-6992k)	p. 10
Federal Water Pollution Control Act, or Clean Water Act (33 U.S.C. 1251-1387)	p. 11
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601-9675)	p. 13
Clean Air Act (42 U.S.C. 7401-7561q)	p. 14
The Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136-136y)	p. 14
Toxic Substances Control Act (15 U.S.C. 2601-2692)	p. 15
Money Laundering Control Act	p. 15
Other Statutory Tools for Prosecuting Environmental Crimes	p. 16
Conclusion	p. 16
Pretrial Proceedings in Environmental Cases	p. 21
Introduction	p. 21
Motion Practice to Manage the Case	p. 21
Do You Have the Time? Slowing Down the Case	p. 22
Trimming the Fat: Managing the Volume	p. 22
Motion Practice to Ferret Out Information	p. 23
Discovery That Is Material to Preparing the Defense	p. 23
Rough Notes of Statements Taken During Government Investigation	p. 24
Statements and Grand Jury Testimony of Current and Former Employees	p. 26
Summary of Expert Witness Testimony	p. 27
Bill of Particulars	p. 27
Specific Brady Requests	p. 28
Playing to Win: Attacks on the Indictment	p. 29
Cleaning Up the Indictment	p. 29
Constitutionally Based Challenges	p. 29
Challenges Grounded in Regulatory Deficiencies	p. 31
Paperwork Reduction Act	p. 31
Gaps in RCRA State Authorization	p. 33
Mixture Rule	p. 34
The Building Blocks of a Successful Defense	p. 35
Pretrial Evidentiary Objections	p. 35
Fourth Amendment Objections	p. 36
Rule 403 Objections	p. 36
Severance of Counts	p. 37
Understanding the Statutes: The Element of Guilty Knowledge	p. 37
The Resource Conservation and Recovery Act	p. 37
The Clean Water Act	p. 41
Demystify the Chemicals -- Make Them User-Friendly	p. 41
Attack the Science	p. 42
Conclusion	p. 42
Establish Environmental Defenses Early	p. 56
Introduction	p. 56
Establish Defenses Early	p. 56
Prevention	p. 57
Environmental Compliance Programs	p. 57
Self-Audits	p. 61
Preparation	p. 63
Create an Early Warning System	p. 63
Plan Ahead--The Value of Institutional Pessimism	p. 67
Investigation	p. 70
Protecting the Privileged Nature of the Investigation	p. 71
No Violation Occurred	p. 71
The Evidence Does Not Establish that the Accused Possessed Requisite Knowledge and Intent	p. 78
Estoppel by Reliance and Nonreliance	p. 81
Equitable Defenses	p. 83
Conclusion	p. 85
Post-Indictment Strategies in Defense of Environmental Crimes: Coordination of Legal and Technical Defenses at Trial	p. 95
Introduction	p. 95
Legal Defenses to Environmental Crimes	p. 96
Establishing and Presenting the Technical Defense	p. 97
Lack of Fair Notice and the "Knowledge" Requirement	p. 99
"Entrapment by Estoppel" in Environmental Cases	p. 101
Use of Expert Witnesses in the Technical Case	p. 102
Examination of Environmental Experts	p. 104
Direct Examination	p. 105
Cross-Examination	p. 106
Conclusion	p. 107
Sentencing of Environmental Crimes	p. 112
Introduction	p. 112
Guidelines for Individual Defendants	p. 112
No Guidelines for Corporate Defendants	p. 113
Applying the Guidelines	p. 113
Individual Defendants	p. 113
Chapter 2, Part Q: Offense Conduct	p. 114
Chapter 3: Adjustments	p. 118
Chapter 5: Computing and Departing from the Sentencing Range	p. 120
Restitution and Fines for Individual Defendants	p. 121
Corporate Defendants	p. 121
General Approach to Sentencing of Organizations	p. 122
Categorizing the Fine	p. 122
Conclusion	p. 125
United States Sentencing Commission: Draft Environmental Sentencing Guidelines (proposed November 1993)	p. 135
Memorandum from Earl E. Devaney, Director, Office of Criminal Enforcement: The Exercise of Investigative Discretion (Jan. 12, 1994)	p. 163
EPA, Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations, 60 Fed. Reg. 66,706 (1985)	p. 171
Memorandum from Earl E. Devaney, Director, Office of Criminal Enforcement, Forensics, and Training: Implementation of the Environmental Protection Agency's Self-Policing Policy for Disclosures Involving Potential Criminal Violations (Oct. 1, 1997)	p. 190
U.S. Department of Justice: Factors in Decisions on Criminal Prosecutions for Environmental Violations in the Context of Significant Voluntary Compliance or Disclosure Efforts by the Violator (July 1, 1991)	p. 197
Summary of EPA Authority Under Federal Environmental Laws for Administrative Inspections	p. 206
Sample Confidentiality Agreement	p. 210
Sample Memorandum to Employees Regarding Interviews by Government Investigators	p. 213
Sample Document Collection Instructions	p. 215
Sample Memorandum to Employees Regarding Grand Jury Compliance	p. 220
Index	p. 222
About the Editors	p. 231
Table of Contents provided by Syndetics. All Rights Reserved.

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Environmental Crimes : How to Present, Negotiate and Defend Your Case in this Evolving High Risk Arena

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