This is a preliminary response to the request for an opinion on the potential liability of Commerce employees in light of the recent criminal convictions under the Resources Conservation and Recovery Act (RCRA) 42 U.S.C. 6961 (1982) of federal employees at the Aberdeen Proving Grounds in Maryland. As a result of this request, a member of my staff attended a presentation at the Environmental Protection Agency (EPA) by one of the prosecuting Assistant U.S. Attorneys in the Aberdeen case. Individuals from the Office of Administrative Services Management and the Environmental Compliance Division were also in attendance. At this meeting, it was agreed that an expedited preliminary response would be limited to the implications of the Aberdeen case for violations under RCRA, and that a more detailed response would subsequently be developed to address potential civil and criminal liability under RCRA, as well as other federal and state environmental laws.

At the time of this writing, the federal managers in the Aberdeen case had been convicted in their personal capacities by a jury for knowingly storing and disposing of hazardous wastes without the required RCRA permit. *The sentencing of those individuals is now scheduled for May 11, 1989. Under RCRA those individuals could be sentenced to a maximum of 5 years in prison and fined $250,000 per violation. 42 U.S.C. 6928 (d). RCRA also provides more stringent penalties for more culpable violations in which an individual knowingly endangers others. 42 U.S.C. 6928 (e).

In the presentation by the Assistant U.S. Attorney Jane Barrett, it was explained how the Justice Department decided to prosecute the individuals in this Aberdeen case. She emphasized that the substances stored and disposed were extremely hazardous chemicals used for developing chemical warfare munitions. The federal managers charged in that case were found culpable because they failed to take any actions to remedy problems resulting from noncompliance with RCRA after receiving several warnings from various sources. These individuals testified that "environmental safety was not a priority" within their program objectives. They indicated that because of budgetary concerns they did not notify their superiors of the problems or make any efforts towards compliance. The managers were concerned that compliance would prove costly and perhaps jeopardize their project.

The prosecution showed that the environmental problems were (1) within the area of responsibility, authority and supervisory control of these individuals, (2) that they had the power or the capacity to correct the violation, and (3) that the individuals knowingly failed to take any action to prevent, detect of correct the violation. Ms. Barrett pointed out that the defendants' testimony about mission priorities and the lack of funds to correct the situation were an unsuccessful defense in the case. Hence, federal officials acting within the scope of their employment who knowingly violate RCRA and other environmental statutes may be subject to the criminal sanctions set forth in those statutes.

In guiding Commerce officials on how to avoid prosecution we have several preliminary suggestions. First, officials with the responsibility and authority over storing and disposing of hazardous substances should document all their compliance efforts. At the outset the officials should document their requests on what environmental laws are applicable to their activities and what they need to do in order to comply. The officials should document communications which alert their superiors on potential environmental problems. They should also document their efforts to identify the resources available to remedy the situation and the remedial actions taken. Second, if compliance requires additional resources such as personnel or funds, then document such notice to the proper authorities so that the responsible officials can incorporate such needs into future budget requests to the Congress. Ms. Barrett indicated that had the defendants notified their superiors of the problems, the U.S. Attorneys Office would have gone up the chain-of-command and sought an indictment of such officials who had knowledge of the problems but knowingly failed to take any corrective actions.

This office will provide a more detailed analysis of the Aberdeen case, RCRA and other environmental laws as they develop in the future, and remains available to provide counsel as necessary.

* Note that these individuals were prosecuted in their individual capacities and not as agency officials. While the Department of Justice will not sue another agency, employees are not necessarily immune form prosecution.