ENVIRONMENTAL CRIMINAL LIABILITY: WHAT FEDERAL OFFICIALS KNOW (OR SHOULD
KNOW) CAN HURT THEM

[Lieutenant Colonel Joseph E. Cole]{.smallcaps}[^1]

##### **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.[^2] While individual criminal liability for corporate officials is not a new concept in environmental law,[^3] the application of the RCO doctrine, especially in concert with the Public Welfare Offense doctrine,[^4] 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.[^5] 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.[^6] 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)[^7] requirement that certain reports be made.[^8]

*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."[^9]
Vicarious liability does away with "personal *actus reus*,"[^10]
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.[^11] 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***[^12]

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.[^13] As the
Supreme Court has observed, however, \"\[t\]he existence of a *mens rea*
is the rule of, rather than the exception to, the principles of
Anglo-American criminal jurisprudence.\"[^14]

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.[^15] 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.[^16]

*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."[^17] 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.[^18] 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.[^19]

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."[^20] 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.[^21] 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."[^22]

*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.*[^23] In
*New York Central*, the railroad company was found to have violated the
Elkins Act[^24] 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."[^25]

*2. Traditional Theories of Civil Liability*

Under the doctrine of *respondeat 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.[^26] 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" [^27] 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.[^28]

######### **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,[^29] and for crimes they fail to prevent despite their
responsible positions.[^30] 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,*[^31] 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.[^32] 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.[^33] 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.[^34] 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."[^35]

*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.*[^36]

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.*[^37] 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.[^38] The
corporation was charged with violating 18 U.S.C. § 834(f) for "knowingly
violating any such regulation," in reference to a regulation created for
the safe transportation of corrosive liquids.[^39] 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.[^40]

The Supreme Court, quoting from *Morissette v. United States*,[^41] 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."[^42] 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.[^43] 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.[^44]

*b.* *Liparota v. United States*[^45]

Another oft-cited case in the application of the public welfare offense
doctrine to environmental cases is *Liparota v. United States*.[^46] In
this case, a restaurant owner was convicted under 7 U.S.C. § 2024(b)(a)
for unlawfully acquiring and possessing food stamps for less than the
face value of the stamps.[^47] 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."[^48] 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.[^49] 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.[^50] 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.[^51]

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.[^52]

*c. Staples v. United States*[^53]

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*.[^54] In this case, the defendant was charged
with violating a felony provision of the National Firearms Act[^55] 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.[^56]

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.[^57]

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."[^58] The Court went to great lengths to distinguish this holding
from its decision in *United States v. Freed*[^59] 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,"[^60] it refrained from stating that it was inappropriate to
consider that public welfare offenses may not be punished as
felonies.[^61] The Court determined that "such a definitive rule of
construction" did not need to be adopted to decide this case.[^62]

*d. United States v. X-Citement Video, Inc.*[^63]

In *United States v. X-Citement Video, Inc.,*[^64] 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.[^65] 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"[^66]
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.[^67] To do otherwise, the Court opined, would
allow the convictions of defendants who "had no idea they were even
dealing with sexually explicit material."[^68] 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."[^69] 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."[^70] 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."[^71]

*United States v. Hanousek*[^72]

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*.[^73] In doing so, the Court let stand the Ninth Circuit's
treatment of a Clean Water Act (CWA)[^74] 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."[^75] 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.[^76]
Defendant was convicted of negligently discharging oil into a navigable
river in violation of CWA §§ 309(c)(2)(A) and 311(b)(3).[^77]

On appeal before the Ninth Circuit, the defendant contended he should be
held to a standard of criminal negligence rather than ordinary
negligence.[^78] The Ninth Circuit, however, concluded that "Congress
intended that a person who acts with ordinary negligence . . . may be
subject to criminal penalties."[^79] 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."[^80]

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 . . . [^81]

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.[^82]

**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."[^83] 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*[^84]

The United States Supreme Court in *United States v. Dotterweich*[^85]
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).[^86] The FDCA
was enacted by Congress to expand its ability to prevent noxious
articles from entering the commerce stream.[^87] 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.[^88]

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[^89] 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."[^90] 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.[^91]

*b. United States v. Park*[^92]

The Supreme Court further clarified the RCO doctrine in *United States
v. Park*.[^93] 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.[^94] 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."[^95] 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,"[^96] 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."[^97]

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."[^98] 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."[^99] 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.[^100]

*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 rea*), 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.[^101]

*United States v. Johnson & Towers, Inc.*[^102]

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.*[^103]
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) § 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.[^104] 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."[^105]

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.'"[^106] 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.[^107]

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),[^108] it is a felony offense to
*knowingly* violate a condition of a permit issued under the Act.[^109]
Likewise, this same conduct, *knowing* violation of a permit, is also an
offense under the Clean Air Act (CAA).[^110] In the Resource
Conservation and Recovery Act (RCRA),[^111] any person who *knowingly*
transports any hazardous waste is subject to liability.[^112] Finally,
in the Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA),[^113] it is a felony to *knowingly* fail to report the
release of a hazardous substance.[^114]

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.[^115] 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."[^116]
A review of the specific statutory offenses at issue[^117] 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*[^118]

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. §
7413(c). The CAA makes criminal the unpermitted release of any hazardous
pollutant into air by any person.[^119] 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.[^120] 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.[^121]

Liability under the above provisions is dependent upon whether an
individual falls within the definition of a "person."[^122] As defined
in the statute, a "responsible corporate officer"[^123] is a "person."

*2. Clean Water Act*[^124]

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.[^125] The criminal provisions of the CWA proscribe
knowing and negligent conduct by a "person."[^126] The definition of
"person" includes a "responsible corporate officer."[^127]

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.[^128] 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.[^129] 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.[^130] 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.[^131]

*3. Resource Conservation and Recovery Act* *(RCRA)*[^132]

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.[^133]
However, unlike the CWA and CAA, RCRA does not expressly include
responsible corporate officers as "persons."[^134]

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.[^135] A person who knowingly generates
and transports a hazardous waste either to an unpermitted facility or
without the required manifest faces criminal sanctions.[^136] The Act
also prohibits knowing false statements or omissions in required
documents or knowingly failing to file such documents;[^137] knowing
destruction, alteration, or concealment of required records;[^138]
knowing export of hazardous wastes without consent or in violation of
agreements between the United States and the receiving country.[^139] 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.[^140]

*4. Comprehensive Environmental Response, Compensation and Liability
Act* *(CERCLA)*[^141]

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.[^142] Likewise, knowing and willful failure to report
a release of certain identified chemicals by a "person" is an
offense.[^143] 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.[^144]

**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[^145] 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."[^146]

*1. United States v. Weitzenhoff*[^147]

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.[^148] 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.[^149] At trial, the managers were found in violation of CWA §
309 for knowingly discharging pollutants in violation of their
permit.[^150]

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.[^151] 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."[^152]

The Court's holding in *Weitzenhoff* seems to apply a strict liability
standard.[^153] 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.[^154]

Of even greater concern to some was the Court's conclusion that
environmental laws are public welfare statutes.[^155] In an amended
opinion, the Court affirmed its previous opinion in *Weitzenhoff*, but
revised it to address the applicability of *Staples*[^156] to treatment
of environmental statutes as public welfare statutes.[^157]

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.[^158] 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."[^159] Citing to discussion in *Staples* of public
welfare offenses as encompassing "those regulations that govern handling
of 'obnoxious materials,'"[^160] 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.[^161]

*2. United States v. Wilson*[^162]

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 § 309,
in the context of a wetlands issue.

The defendants were convicted of discharging fill material and excavated
dirt into wetlands without a permit.[^163] 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.[^164]

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.[^165] 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.[^166]

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.[^167] (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."[^168]) 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.[^169]

This result appears to be squarely contradicted by the Supreme Court's
subsequent opinion in *United States v. Bryan*.[^170] In *Bryan*, the
Court interpreted both "knowingly" and "willfully" as used in the
Firearms Owners' Protection Act,[^171] prohibiting unlicensed dealing in
firearms. The Act contained three provisions using the term "knowingly"
and one that used "willfully."[^172] The defendant was found guilty of
dealing in firearms without a license in violation of 18 U.S.C. §
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."[^173]

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.'"[^174] 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.[^175]

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."[^176]

3\. *United States v. Hayes International Corp.* [^177]

The Eleventh Circuit in *United States v. Hayes International Corp.*
addressed a conviction under RCRA Section 3008(d)(1)[^178] 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.[^179] Subsequently, over six
hundred drums of wastes generated by Hayes were found to have been
illegally disposed of by Performance Advantage. [^180]

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[^181] 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. § 6928(d)(1), unlawful
transportation of hazardous waste, is the principal issue in this
appeal."[^182]

The Court first considered the legislative history of § 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."[^183] The Court then turned to *International
Minerals*[^184] 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 § 6928(d) was "undeniably" a public
welfare statute.[^185] 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."[^186]

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.[^187]

**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. [^188]

*1. The First Approach:* United States v. MacDonald & Watson Oil Co.
[^189]

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).[^190] 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.[^191]

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.[^192] The Court also distinguished
*Dotterweich*[^193] and *Park*.[^194] 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."[^195]

*2. The second approach:* United States v. Brittain[^196]

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.[^197] 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."[^198] The Court's views are
generally consistent with the Third Circuit's opinion in *Johnson &
Towers*[^199] and are seen as one of the broadest applications of the
doctrine.[^200]

*3. The Third Approach:* United States v. Dee[^201]

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.[^202]

Relying on *International Minerals*,[^203] the Court found that the
extremely hazardous nature of the substances[^204] 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.[^205] 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[^206]

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."[^207] Iverson was convicted of violations of the Clean Water
Act and state and local law[^208] and sentenced to one year in custody,
three years of supervised release, and a \$75,000 fine.[^209]

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.[^210] In addition, he also argued that the
"responsible corporate officer" instruction allowed the jury to convict
him without finding a violation of the CWA.[^211]

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.[^212] 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."[^213]

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."[^214] 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.[^215] 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."[^216] 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[^217]

The Fourth Circuit was the first circuit court to interpret the RCO
doctrine after *Iverson*.[^218] 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 §
1319(c)(1)(A).[^219] 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.[^220]

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."[^221] 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.[^222] 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.[^223] 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.[^224]

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. [^225]

**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. [^226] While a federal employee or
agency official may not "receive a benefit commensurate to the
risk"[^227] 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.[^228] 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.[^229]

*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.[^230] 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.[^231] This concept is
based on the Supremacy Clause of the U.S. Constitution[^232] and is
traced to the seminal case of *In re Neagle*.[^233]

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."[^234]

The Court, discussing the supremacy of the federal government over the
states, quoted *Tennessee v. Davis*[^235] 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 . . ."[^236] 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.[^237]

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.[^238] 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.[^239] "\[T\]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."[^240] The failure
to take measures within a commander's authority may result in the
commander's culpability for the actions of his subordinates.[^241] 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.[^242]

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

*a.* United States v. Dee[^243]

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.[^244] 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.[^245]

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.[^246]
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."[^247] While the *Dee* case
may be the leading decision for what has also been called the
"responsible federal employee doctrine,"[^248] there are two other
circuit court cases that have applied the RCO doctrine to federal
employees as well.

*b.* United States v. Carr[^249]

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."[^250] 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."[^251] 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 Carr and his ability to prevent the hazard, just as in
*Dotterweich*.

*c.* United States v. Curtis[^252]

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.[^253] The Ninth Circuit reasoned
that the defendant's claim for immunity was no different than the claims
made by the defendants in *Dee*.[^254] 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.[^255] \"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.\"[^256]

**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,[^257] it has also been
frequently criticized.[^258] Usually, criticisms of the doctrine attack
its effect on any required *mens rea* element.[^259] 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.[^260]

*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.[^261]

On these grounds, there is considerable debate about the applicability
of the public welfare offense doctrine to environmental statutes.[^262]
The Supreme Court even hints in *Staples*[^263] that punishing a
violation of a public welfare statute as a felony may be
inappropriate.[^264] However, as mentioned above,[^265] the Court was
unwilling to decide that particular issue. Subsequently, in
*Weitzenhoff*,[^266] 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,"[^267] 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[^268] 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.[^269] Under that rule, when a statute is ambiguous, it should
be interpreted in favor of the defendant.[^270] "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."[^271] 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."[^272]

*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,*[^273] it
appears the Court might reject such a broad approach to imposing
environmental liability on corporate officers based on a lack of "actual
control."[^274] 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.[^275]

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.[^276] While CERCLA defines
an "operator" as "any person . . . operating a facility;"[^277] the
Court in *Bestfoods* would require more specificity related to
"managing" or "directing" the activities themselves.[^278]

The *Bestfooods* test for "owner" civil liability under CERCLA was
extended to the CAA in *United States v. Dell'Aquilla*[^279] 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.[^280] 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,[^281] 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.[^282] 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."[^283]

[^1]: ^\*^ *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.*

[^2]: As discussed below, this concept of criminal liability is as
    applicable to federal government officials (military and civilian)
    as it is to corporate officers.

[^3]: 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).

[^4]: 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).

[^5]: [Wayne R. LaFave]{.smallcaps}, [Criminal Law, 214]{.smallcaps}
    (3rd Ed. 2000).

[^6]: *See id*. at 215-219.

[^7]: The Comprehensive Environmental Response, Compensation and
    Liability Act, 42 U.S.C.A. §§ 9601-9675 (1988), Codifying Pub. L.
    No. 96-5610, 94 Stat. 2767 (1980) as amended.

[^8]: *See* 42 U.S.C. § 6603(b).

[^9]: *See* [LaFave]{.smallcaps}, *supra* note 4, at 265.

[^10]: *Id*.

[^11]: 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.]{.smallcaps} 1341, 1410 (2002).

[^12]: *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]{.smallcaps}, [Criminal Law,
    224]{.smallcaps} (3rd Ed. 2000).

[^13]: 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. §§ 401-407.

[^14]: United States v. United States Gypsum, 438 U.S. 432, 436 (1978).

[^15]: [Donald A. Carr et al., Environmental Criminal Liability:
    Avoiding and Defending Enforcement Actions]{.smallcaps}, 128 (1995).

[^16]: *See* [Arnold W. Reitze, Jr., Air Pollution Control Law:
    Compliance & Enforcement, 578]{.smallcaps} (2001). *See also* 42
    U.S.C. § 7413(c); 42 U.S.C. § 6928(d)&(e); 42 U.S.C. § 9603(b)&(d);
    7 U.S.C. § 136*l*(b)(ii); 15 U.S.C. §§ 2614-1615; 33 U.S.C. §
    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. § 15(b).

[^17]: Lambert v. California, 355 U.S. 225 (1957).

[^18]: *See* [LaFave]{.smallcaps}, *supra* note 4, at 219.

[^19]: *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]{.smallcaps} 10,145
    (1993).

[^20]: *See* [LaFave]{.smallcaps}, *supra* note 4, at 220.

[^21]: "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.]{.smallcaps} 259 (1992), *citing* Krivo Indus. Supply
    Co. v. National Distillers & Chem. Corp., 483 F.2d 1098, 1102 (5^th^
    Cir. 1973).

[^22]: Keith Welks, C*orporate Criminal Culpability: An Idea Whose Time
    Keeps Coming*, 16 [Colum. J. Envtl. L]{.smallcaps}. 294 (1991).

[^23]: 212 U.S. 481 (1909).

[^24]: Pub. L. No. 57-103, 32 Stat. 847 (1903).

[^25]: *New York Central*, 212 U.S. at 493.

[^26]: "Respondeat 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]{.smallcaps} 1313 (7^th^ Ed. 1999).

[^27]: "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]{.smallcaps} 1168 (7^th^ 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).

[^28]: *See* United States v. Exxon Corp. & Exxon Shipping Co., Crim.
    No. A-90-015-Cr. (D. Alaska 1990).

[^29]: "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]{.smallcaps},
    255 (6^th^ Ed. 1998).

[^30]: *See generally id* at 254[.]{.smallcaps}

[^31]: 320 U.S. 277 (1943).

[^32]: *Id*. at 285.

[^33]: Staples v. United States, 511 U.S. 600, 616 (1994).

[^34]: *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).

[^35]: Liparota v. United States*,* 471 U.S. 419, 433 (1985).

[^36]: 402 U.S. 558 (1971).

[^37]: *Id*.

[^38]: *Id.* at 558.

[^39]: *Id.* at 559.

[^40]: *Id.* at 562.

[^41]: Morissette v. United States, 342 U.S. 246 (1952).

[^42]: *Morissette*, 342 U.S. at 256.

[^43]: *International Minerals*, 402 U.S. at 563-564.

[^44]: *Id*.

[^45]: 471 U.S. 419 (1985).

[^46]: *Id*.

[^47]: *Id*. at 420.

[^48]: *Id*. at 420, n.1.

[^49]: *Id.* at 432.

[^50]: *Id*.

[^51]: *Id.* at 433.

[^52]: *See* [Carr, et al.]{.smallcaps}, *supra* note 14, at 186.

[^53]: 511 U.S. 600 (1994).

[^54]: *Id*.

[^55]: 26 U.S.C. §§ 5801-5872.

[^56]: *Staples*, 511 U.S. at 603.

[^57]: *Id*. at 601.

[^58]: *Id*. at 620.

[^59]: 401 U.S. 601 (1971).

[^60]: *Staples*, 511 U.S. at 603.

[^61]: *Id*.

[^62]: *Id*.

[^63]: 513 U.S. 64 (1994).

[^64]: *Id*.

[^65]: Specifically, the defendant was charged with violating 18 U.S.C.
    § 2252 which states in pertinent part:

    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 . . .

[^66]: *X-Citement Video, Inc.*, 513 U.S. at 69.

[^67]: *Morissette*, 342 U.S. at 256.

[^68]: *X-Citement Video, Inc.*, 513 U.S. at 69.

[^69]: *Id*. at 71.

[^70]: United States v. Dotterweich, 320 U.S. 277, 280-281 (1943),
    (citing United States v. Balint, 258 U.S. 250 (1922)).

[^71]: *Morissette*, 342 U.S. at 255-256.

[^72]: 176 F.3d 1116 (9^th^ Cir. 1999), *cert. denied*, 528 U.S. 1102
    (2000).

[^73]: *Id*.

[^74]: 42 U.S.C. §§ 7401-42 (1988), Codifying Pub. L. No. 95-95, 91
    Stat. 685 (1977) as amended.

[^75]: 176 F.3d at 1119.

[^76]: *Id*.

[^77]: *Id*. at 1118.

[^78]: 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* § 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.3d at
    1121.

[^79]: 176 F.3d at 1121.

[^80]: *Id.*

[^81]: 528 U.S. 1102, 1105 (2000) (Thomas, J., dissenting).

[^82]: *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 proof that defendant knowingly made use of such a scheme).

[^83]: *See* [Knepper & Bailey,]{.smallcaps} *supra* note 28.

[^84]: 320 U.S. 277 (1943).

[^85]: *Id*.

[^86]: 21 U.S.C. § 301 *et seq.*

[^87]: *Dotterweich*, 320 U.S. at 280.

[^88]: *Id*. at 281.

[^89]: 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.]{.smallcaps} 543
    (1996).

[^90]: 320 U.S. 277 at 284.

[^91]: *Id*. at 285.

[^92]: 421 U.S. 658 (1975).

[^93]: *Id*.

[^94]: *Id*. at 661-662.

[^95]: *Id*. at 663-664.

[^96]: *Id*. at 663.

[^97]: *Id*. at 672.

[^98]: *Id*. at 672-673.

[^99]: *Id*. at 673-674.

[^100]: *See id.* at 672.

[^101]: "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.]{.smallcaps} 304, 314-315 (2001).

[^102]: 741 F.2d 662 (3d Cir. 1984).

[^103]: *Id*.

[^104]: *Id*. at 664.

[^105]: *Id*. at 667.

[^106]: *Id*. at 665 (quoting *Dotterweich*, 320 U.S. at 282).

[^107]: *Id*.

[^108]: Federal Water Pollution Control Act, 33 U.S.C. §§ 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.

[^109]: *Id*. § 1319(c)(2).

[^110]: 42 U.S.C. § 7413(c) (1988).

[^111]: The Solid Waste Disposal Act, as amended by The Resource
    Conservation and Recovery Act, 42 U.S.C. §§ 6901--699k (1988),
    codifying Pub. L. No. 94-580, 90 Stat. 2795, 2796, as amended.

[^112]: *Id*. § 6928(d)(1).

[^113]: The Comprehensive Environmental Response, Compensation and
    Liability Act, 42 U.S.C. §§ 9601-9675 (1988), codifying Pub. L. No.
    96-5610, 94 Stat. 2767 (1980) as amended.

[^114]: *Id*. § 9603(b)(3) as amended by The Superfund Amendments and
    Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, § 109, 100
    Stat. 1613, 1632-1633.

[^115]: *See* [LaFave,]{.smallcaps} *supra* note 4, at 214; *see*
    [Reitze,]{.smallcaps} *supra* note 15, at 578 .

[^116]: Brenda S. Hustis & John Y. Gotanda, *The Responsible Corporate
    Officer: Designated Felon or Legal Fiction?*, 25 [Loy. Chi. L.
    J.]{.smallcaps} 169 (1994) (quoting United States v. MacDonald &
    Watson Waste Oil Co., 933 F.2d 35, 52 n.15 (1^st^ Cir. 1991)).

[^117]: The primary laws reviewed in this article are: Clean Air Act, 42
    U.S.C. §§ 7401-7671q (1990), Clean Water Act, 33 U.S.C. §§ 1251-1387
    (1972); Resource Conservation and Recovery Act, 42 U.S.C. §§
    6901--699k (1988); and the Comprehensive Environmental Response,
    Compensation and Liability Act, 42 U.S.C. §§ 9601-9675 (1988).

[^118]: 42 U.S.C. §§ 7401-42 (1988), codifying Pub. L. No. 95-95, 91
    Stat. 685 (1977) as amended.

[^119]: *See* 42 U.S.C. § 7413(c)(1) & (3).

[^120]: *See id*. § 7413(c)(2).

[^121]: *See id.* § 7413(c)(4) & § 7413(c)(5).

[^122]: *Id*. § 7413(c).

[^123]: *Id.* § 7413(c)(6).

[^124]: Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§
    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.

[^125]: 33 U.S.C. § 1342.

[^126]: 33 U.S.C. § 1319(c)(1), (c)(2). Again, the term "person" applies
    to both individuals and corporations. See 33 U.S.C. § 1362(5).

[^127]: 33 U.S.C. § 1319(c)(6).

[^128]: 33 U.S.C. § 1342.

[^129]: 33 U.S.C. § 1319(c)(4).

[^130]: 33 U.S.C. §1319(c)(3)(A).

[^131]: 33 U.S.C. § 1321(b)(5).

[^132]: The Solid Waste Disposal Act, as amended by The Resource
    Conservation and Recovery Act, 42 U.S.C.A. §§ 6901--699k (1988),
    codifying Pub. L. No. 94-580, 90 Stat. 2795, 2796, as amended.

[^133]: 42 U.S.C. § 6093(15).

[^134]: In United States v. MacDonald & Watson Oil Co., 933 F.2d 35
    (1^st^ Cir. 1991), the First Circuit refused to extend RCRA
    liability on the RCO doctrine.

[^135]: 42 U.S.C. § 6928(d)(2).

[^136]: *Id*. § 6928(d)(6) and (d)(2).

[^137]: *Id*. § 6928(d)(3).

[^138]: *Id*. § 6928(d)(4).

[^139]: *Id*. § 6928(d)(6).

[^140]: *See* 42 U.S.C. §§ 6928(d)-(e), 6992d(b) & (c).

[^141]: The Comprehensive Environmental Response, Compensation and
    Liability Act, 42 U.S.C.A. §§ 9601-9675 (1988), codifying Pub. L.
    No. 96-5610, 94 Stat. 2767 (1980) as amended.

[^142]: *See* 42 U.S.C. § 9603(b)(3).

[^143]: Pursuant to the Emergency Planning and Community Right-to-Know
    Act, 42 U.S.C. §§ 11001-50, which was added as part of the Superfund
    Authorization and Reauthorization Act amendments. *See id*. §
    11045(b)(4).

[^144]: 42 U.S.C. § 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)).

[^145]: *See* United States v. International Minerals & Chem. Corp., 402
    U.S. 558 (1971).

[^146]: United States v. Dean, 969 F.2d 187, 192 (6^th^ Cir. 1992).

[^147]: 35 F.3d 1275 (9^th^ Cir. 1994), *cert. denied*, 513 U.S. 1128
    (1995).

[^148]: CWA § 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.

[^149]: *Weitzenhoff,* 35 F.3d 1275 at 1282.

[^150]: The relevant portion of 33 U.S.C. § 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.

[^151]: *Weitzenhoff,* 35 F.3d 1275 at 1284.

[^152]: *Id*.

[^153]: *See* [Reitze]{.smallcaps}, *supra* note 15, at 578.

[^154]: *See* [Carr, et al.]{.smallcaps}, *supra* note 14, at 208.

[^155]: *Id*. at 209.

[^156]: 511 U.S. 600 (1994).

[^157]: 35 F.3d 1275 (9^th^ Cir. 1994), *cert. denied*, 513 U.S. 1128
    (1995).

[^158]: *Staples*, 114 S.Ct. at 1799 (citing Liparota v. United States,
    471 U.S. 419, 426 (1985)).

[^159]: *Weitzenhoff*, 35 F.3d at 1285-1286.

[^160]: *Id*. (citing *Staples*, 114 S.Ct. at 1798).

[^161]: *Id*. at 1286.

[^162]: 133 F.3d 251 (4^th^ Cir. 1997).

[^163]: The CWA prohibits the discharge of dredged or fill material into
    the navigable waters of the United States without a permit.

[^164]: 133 F.3d at 260.

[^165]: *Id*. at 265.

[^166]: *Id*. at 262.

[^167]: *Id.* at 264.

[^168]: *Weitzenhoff*, 35 F.3d at 1284.

[^169]: *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.

[^170]: 524 U.S. 184 (1998).

[^171]: 18 U.S.C. § 922(1)(a).

[^172]: Specifically, Title 18, U.S.C. § 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---

    knowingly makes any false statement . . .

    knowingly violates subsection . . .

    knowingly imports or brings into the United States . . .

    willfully violates any other provisions of this chapter,

    > shall be fined under this title, imprisoned not more than five
    > years or both.

[^173]: *Bryan*, 524 U.S. at 189.

[^174]: *Id*. at 192 (quoting Boyce Motor Lines, Inc. v. United States,
    342 U.S. 337, 345 (1952) (Jackson, J. dissenting)).

[^175]: *Id*. at 193.

[^176]: *Bryan*, 524 U.S. at 193.

[^177]: 786 F.2d 1499 (11^th^ Cir. 1986).

[^178]: The relevant portion of 42 § 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.

[^179]: *Hayes,* 786 F.2d at 1501.

[^180]: *See* 786 F.2d 1499 (11^th^ Cir. 1986).

[^181]: 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
    (5^th^ Cir. 1996) and United States v. Wilson*,* 133 F.3d 251 (4^th^
    Cir. 1997).

[^182]: 786 F.2d at 1500.

[^183]: *Id.* at 1502 (citing to S. Rep. No. 172, 96^th^ Cong., 2d Sess.
    39 (1980), *reprinted in* 1980 U.S.C.C.A.N. 5019, 5038).

[^184]: 402 U.S. 558 (1971).

[^185]: 786 F.2d at 1503.

[^186]: *Id.*

[^187]: *Id.* at 1504-1505.

[^188]: *See* United States v. Johnson & Towers, Inc., 741 F.2d 662
    (3^rd^ Cir. 1984); United States v. Dee, 912 F.2d 741, (4^th^ 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).

[^189]: 933 F.2d 35 (1^st^ Cir. 1991).

[^190]: *Id*. at 50.

[^191]: *Id*. at 50-51.

[^192]: *Id*. at 55.

[^193]: 320 U.S. 277 (1943).

[^194]: 421 U.S. 658 (1975).

[^195]: 933 F.2d at 51-52.

[^196]: 931 F.2d 1413 (10^th^ Cir. 1991).

[^197]: *Id*. at 1419.

[^198]: *Id*.

[^199]: 741 F.2d 662 (3d Cir. 1984).

[^200]: *See* Hustis & Gotanda, *supra* note 115, at 174.

[^201]: 912 F.2d 741 (4^th^ Cir. 1990), *cert denied*, 111 S. Ct. 1307
    (1991).

[^202]: *Id*. at 747.

[^203]: 402 U.S. 558 (1971).

[^204]: 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.

[^205]: *Id*.

[^206]: 162 F.3d 1015 (9^th^ Cir. 1999).

[^207]: *Id*. at 1022.

[^208]: 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. § 1342(b) and
    1319(c)(2).

[^209]: *Iverson*, 162 F.3d at 1019.

[^210]: *Id*. At 1022.

[^211]: *Id*. at 1026.

[^212]: *See* United States v. Brittain, 931 F.2d 1413, 1419 (10^th^
    Cir.) and *Frezzo Bros., Inc.*, 602 F.2d at 1130 (3^rd^ Cir. 1979).
    *See Iverson,* 162 F.3d at 1024 and n.3.

[^213]: 162 F.3d at 1024.

[^214]: *Id*. at 1026 (emphasis in original).

[^215]: *Id*. at 1025.

[^216]: *Id*.

[^217]: 242 F.3d 528 (4^th^ Cir. 2001).

[^218]: 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).

[^219]: 242 F.3d at 529-530.

[^220]: *Id*. at 530.

[^221]: *Id*. at 531.

[^222]: *Id*. at 529.

[^223]: 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*.

[^224]: *Id*. at 532.

[^225]: 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.

[^226]: Patrick O. Cavanaugh & Christopher Harris, *Environmental Crimes
    and the Responsible Government Official*, [Nat. Resources and Envt.
    23]{.smallcaps} (1991).

[^227]: *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.]{.smallcaps} 137, 174 (1994).

[^228]: *See Dee*, 912 F.2d at 744.

[^229]: *See id*.

[^230]: *See* James P. Calve, *Environmental Crimes: Upping the Ante for
    Noncompliance with Environmental Laws*, 133 [Mil. L.
    Rev.]{.smallcaps} 279 (1991).

[^231]: *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.]{.smallcaps} 1 (1991).

[^232]: [U.S. Const]{.smallcaps}. art. VI, cl.2.

[^233]: 135 U.S. 1 (1890).

[^234]: *Id*. at 75.

[^235]: 100 U.S. 257, 262-263 (1879) (quoting Martin v. Hunter's Lessee,
    14 U.S. 304, 363 (1816)).

[^236]: *Id*. at 61-62.

[^237]: *See* Smith, *supra* note 230, at 38 (citing to Kentucky v.
    Long, 837 F.2d 727, 744 (6^th^ Cir. 1988) for the modern application
    of the doctrine).

[^238]: 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).

[^239]: "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.]{.smallcaps} 862, 883 (1991).

[^240]: *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.]{.smallcaps}
    272 (1997).

[^241]: *See* Calve, *supra* note 229, at 301.

[^242]: *See* Brian J. Hopkins, *Environmental Crimes: Recent Case Law
    and Practice*, 19 [A.F. L. Rev.]{.smallcaps} 1, 18 (1996).

[^243]: 912 F.2d 741 (4^th^ Cir. 1990), *cert denied*, 111 S. Ct. 1307
    (1991).

[^244]: *See generally* Margaret K. Minister, *supra* note 226.

[^245]: *Dee*, 912 F.2d 741, 748-749.

[^246]: *Id*. at 744 (citing RCRA § 6903(15)).

[^247]: *Id*.

[^248]: *See generally* Minister, *supra* note 226.

[^249]: 880 F.2d 1550 (2^nd^ Cir. 1989).

[^250]: *Id*. at 1554.

[^251]: *Id*.

[^252]: 988 F.2d 946 (9^th^ Cir. 1993).

[^253]: *Id*. at 947.

[^254]: *Id*. at 947-948.

[^255]: *Id*. at 948.

[^256]: *Id*. at 949.

[^257]: *See* *Dotterweich*, 320 U.S. 277 (1943).

[^258]: *See* Finn, *supra* note 88; Richard G. Singer, *The Myth of the
    Doctrine of the Responsible Corporate Officer*, 6 [Toxics L.
    Rep.]{.smallcaps} 1378 (1992); Richard J. Lazarus, *Mens Rea in
    Environmental Criminal Law: Reading Supreme Court Tea Leaves*, 7
    [Fordham Envtl. L.J.]{.smallcaps} 861, 866 (1996).

[^259]: *See* Finn, *supra* note 88 at 548.

[^260]: [LaFave,]{.smallcaps} *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
    (8^th^ Cir. 1997).

[^261]: *See* Keith A. Gaynor, et al., *Improving Fairness in
    Environmental Enforcement*, 7 [Tox. L. Rep.]{.smallcaps} 1029, 1031
    n.84 (1993).

[^262]: *See also* Lazarus, *supra* note 257 at 866.

[^263]: 511 U.S. 600 (1994).

[^264]: *Id*. at 616.

[^265]: See *supra*, text accompanying nn. 59-61.

[^266]: 35 F.3d 1275 (9^th^ Cir. 1994), *cert. denied*, 513 U.S. 1128
    (1995).

[^267]: *See* Bragdon v. Abbott, 524 U.S. 624 (1998).

[^268]: "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]{.smallcaps}. 2407, 2428 (1995).

[^269]: *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.]{.smallcaps} 1, 11-12 (2002) (discussion of "rule of lenity"
    and application to environmental criminal provisions).

[^270]: *See* *Iverson*, 162 F.3d at 1025.

[^271]: *See Snyder*, *supra* note 268, at 12.

[^272]: Muscarello v. United States, 118 S.Ct. 1911 (1998) (quoted in
    *Iverson*, 162 F.3d at 1025, n.8).

[^273]: 118 S.Ct. 1876 (1998).

[^274]: *Id*. at 1886.

[^275]: *Id*. at 1887.

[^276]: *Id*.

[^277]: 42 U.S.C. § 9601 (20)(A)(ii).

[^278]: *Id*. at 1887.

[^279]: 150 F.3d 329 (3^rd^ Cir. 1999).

[^280]: *Id*. at 334.

[^281]: *See* United States v. Brittain, 931 F.2d 1413, 1419 (10^th^
    Cir. 1991); United States v. Johnson & Towers, Inc., 741 F.2d 662
    (3^rd^ Cir. 1984); United States v. Dee, 912 F.2d 741, (4^th^ Cir.
    1990), *cert. denied*., 111 S. Ct. 1307 (1991).

[^282]: *See* Hartman and De Monaco, *supra* note 18.

[^283]: *Dotterweich*, 320 U.S. at 285.