This is part of the continuing advice requested by your office concerning the potential liability of federal employees for violating environmental laws. This memorandum will briefly review the facts and implications of a recent conviction of a federal employee in New York. In addition, this office is currently working with your office's Environmental Compliance Division on a more detailed memorandum which will identify the requirements and penalties for the primary federal environmental statutes which may be applicable to the Commerce Department and its employees.

In a recent Second Circuit opinion, the U.S. Court of Appeals affirmed the conviction of David James Carr, a federal civilian employee, under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) for failing to report a hazardous waste release from a facility over which he was "in charge." 42 U.S.C. 9063. See United States v. Carr, F.2d (2d Cir. 1989), 1989 U.S. App. LEXIS 10951. This case illustrates that federal employees who violate environmental laws are subject to criminal penalties.

Mr. Carr was the maintenance foreman at the Fort Drum Army camp, located in Watertown, New York. In connection with his duties as foreman, he directed several workers to dispose of old cans of waste paint into a small man-made pond. After tossing approximately fifty cans into the pond, the workers noticed that the paint was leaking from the cans. The workers decided to stack the remaining cans into a nearby shed and then warned Mr. Carr that they thought the pond dumping was illegal. Mr. Carr subsequently directed one of the workers to cover up the paint cans by dumping tractor loads of dirt into the pond. The Department of Defense conducted an investigation when one of the employees informed a DOD special agent of the incident. Mr. Carr was subsequently indicted for violating the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6928(d) (2) (A), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. 9603, and the Clean Water Act (CWA), 33 U.S.C. 1311 (a), 1319 (c) (1). See 18 U.S.C. 2 (prosecution of principal actors for offenses against the United States). The jury acquitted Mr. Carr of the charges under RCRA and CWA, but convicted on the CERCLA violations. Mr. Carr's sentence of one year in prison was suspended and he was put on one year's probation. See 1989 U.S. App. LEXIS 10951, p. 2-3.

Under section 103 of CERCLA, it is a crime for any person in charge of a vessel or facility to fail to report a prohibited release of hazardous materials to the National Response Center. 42 U.S.C. 9603. The Carr decision is significant for determining who may be found to be "in charge" of a facility.

The appellant argues that Congress never intended for the CERCLA reporting requirement (and penalties) to be applied to individuals like Mr. Carr who are relatively low in an organization's chain of command. the Second Circuit disagreed and found that a lower level supervisor could be found to be in charge of a facility. The court pointed out that Mr. Carr had supervisory responsibilities over the subject grounds and trucks and was in a position to detect, prevent and abate the release of the hazardous substances. See 1989 U.S. App. LEXIS 10951, p. 6 citing United States v. Mobile Oil Corp., 464 F.2d 1124, 1127 (5th Cir. 1972). Hence, supervisors, even of relatively low rank, may be liable for unlawful releases and for failing to report such releases to the proper authorities.

This case also indicates that the convictions in the Aberdeen case are not an anomaly but rather indicate a trend in the Justice Department's efforts to get federal facilities in compliance with environmental laws. It is therefore imperative that the Commerce Department identify the existence and potential for environmental violations so that the appropriate corrective and preventative measures can be taken. The Department should instruct its employees on which environmental laws apply to their activities, what those laws require, and what the agencies and employees need to do in order to avoid liability.

Your office has previously requested comprehensive advice on potential liability for environmental violations. This office is currently preparing a memorandum which will identify the primary federal environmental statutes, their requirements and their penalty provisions. This will be coordinated with your Environmental Compliance Division and the NOAA General Counsel's Office to ensure it is in an appropriate form for your office's use in developing policy guidance to the Department and its employees.

cc: Wendell L. Willkie, II