In May 2015, one of the largest electrical utility companies in the country, Duke Energy, entered a guilty plea in response to federal criminal charges for polluting rivers in North Carolina. Duke operates in six different states throughout the Southeast, East Coast and the Midwest. Five of the company’s plants in North Carolina were found to have spilled or released toxic coal waste into four of the state’s rivers, in violation of the federal Clean Water Act (33 U.S.C. § 1319.)
The company came under federal scrutiny when 70 miles of the Dan River was polluted with nearly 40,000 tons of ash from a spill at a Duke plant in February 2014. A Federal indictment charged Duke with four counts of criminal negligence in causing that spill, and five other counts of criminal negligence in causing discharges into rivers and streams from four other facilities. (U.S. v. Duke Energy, No. 04-1763).
Duke agreed to a plea deal in which a fine of over $100 million was imposed, and the company was placed on probation for five years. The $100 million in fine were split, with two-thirds of the money going toward restitution and one third of the remaining monies being allocated toward community service projects. Fines for negligent criminal violations under the Clean Water Act may be imposed at a rate of $37,500 per day of violation, and individual corporate officers and employees who are convicted of such negligent violations may be sentenced to imprisonment of up to one year in jail for each violation.
The problems for Duke Energy (and its other facilities), and for other electrical utilities with coal ash wastes, may not be over, as the spill has alerted both the government and the public to the problems of coal ash storage and disposal, and their potential for polluting nearby waterways. Coal ash is a byproduct of burning coal, which leaves a residue which is collected and often piled and stored in close proximity to rivers and streams. This waste may gradually pollute rivers, streams and groundwater over time, or suddenly cause spills triggered by excessive rainfall and erosion.
New Jersey Environmental Lawyers at Michelman & Bricker Help Businesses Understand Their Waste Disposal Compliance Obligations
Duke Energy’s situation highlights the risks that business owners face that violations of environmental requirements may be met with criminal prosecution, and not just civil enforcement. EPA and the Department of Justice have discretion to use administratively-imposed or court-imposed civil penalties to enforce the Clean Water Act. They also have discretion to seek criminal penalties based upon factors including the magnitude and severity of the violation, the degree of culpability in causing it, and the frequency or recurrence of violations. In this case, EPA and the Department of Justice decided that civil sanctions were not sufficient to accomplish their goals of not just restitution and/or remediation, but also punishment and deterrence. Even though the government determined that Duke did not intentionally (knowingly) violate the law and intentionally cause water pollution, they determined that its failure to properly manage its coal ash wastes in a manner that prevented them from accidentally spilling and being discharged into the rivers was criminally negligent. Manufacturers and other commercial businesses cannot avoid producing solid and hazardous wastes as part of their normal business operations. But they can reduce the legal risks that they face by closely monitoring their storage and disposal of industrial wastes to make sure that their practices fully comply with federal and state statutes, regulation. As in Duke Energy’s case, the failure to reduce the likelihood of pollution accidents through compliance with which such standards for waste storage and disposal may result not just in civil liability, but criminal prosecution as well.
New Jersey and Pennsylvania environmental lawyers at Michelman & Bricker are a resource for commercial clients who need legal advice and representation in all areas of environmental law. We understand the statutes, regulations, rules and nuances which regulate and are involved in protection of the environment and enforcement of federal and state laws. The lawyers at Michelman & Bricker are well versed in all aspects of environmental law, including waste storage and disposal, compliance, and remediation. Our firm has three locations on the East Coast, as well as in the Caribbean, including Cherry Hill, New Jersey, Philadelphia, Pennsylvania and Longmeadow, Massachusetts. Our attorneys have more than 30 years of experience in handling matters involving the United States Environmental Protection Agency and the Department of Environmental Protection in New Jersey, Pennsylvania and Massachusetts. We bring the highest level of expertise, experience, professionalism and commitment to the representation we provide to our clients. Call us today at 215-557-9440 or submit an online inquiry for a consultation.