Criminal and Civil Enforcement of Environmental Laws

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Environmental Law & Property Rights Practice Group, was recorded on Wednesday, January 16, 2019 during a live teleforum conference call held exclusively for Federalist Society members.  

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is Criminal and Civil Enforcement of Environmental Laws. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the expert on today's call.

 

Today we are fortunate to have with us John Irving, who is a Partner at Holland & Knight and is a member of their White Collar and Governmental Investigations team. After our speaker gives his remarks, we will then go to audience Q&A. Thank you for sharing with us today. John, the floor is yours.

 

John S. Irving IV:  Thank you, Micah. I very much appreciate the opportunity to speak with your members. Just kind of a brief overview of what I plan to do today: I was going to discuss, give an overview, of the enforcement provisions of the major federal environmental laws, talk a little bit about government decision making and policies, and discuss current issues and trends at DOJ and EPA, and then talk a little bit about the current state of enforcement. Just briefly about me: I've been in private practice here at Holland & Knight for little over 10 years. I work on internal investigations that include civil and criminal environmental enforcement, as well as Foreign Corrupt Practices Act and [inaudible 1.33], False Claims Act cases. I spent 10 years at DOJ, seven in the U.S. Attorney's Office, and then I went to the main Justice and ended up in the Environment Division, mostly working for the Environmental Crime Section.

 

To start with an overview of enforcement provisions of the federal environmental laws, I'll make one note about statutory references here. You need to look in several places to find these penalties: the United States Code, obviously, CFR. There are updated civil penalties that are adjusted for inflation every couple of years. And the criminal provisions provide fines that can be confusing because there's another provision of Title 18 that provides for fines of up to $250,000 for individuals and up to $500,000 for corporations. And to make it even more confusing, there's an alternative fines provision that says that the fine can be twice the gain or loss resulting from the conduct. That's kind of a mystery sometimes as to what that is, and that's an explanation for why some of these enforcement cases carry penalties that are above what would seem to be the statutory minimums -- or maximums, rather.

 

Because sitting here and giving a million statutory citations would be extremely boring and awful, if you are looking for those, please go to my bio at hklaw.com. Select Speaking Engagements, and then there are a couple of environmental enforcement overviews from 2018. January was a broad overview and October focused on hazardous materials. If you click on Program Materials, those will provide you with the slides that I used for those presentations. They have all the statutory citations that you could ever want, and I don’t have to bore you to death going through them here.

 

The enforcement provisions of environmental laws note that nearly all of the federal environmental laws contain felony criminal provisions for violations. One important thing to note is that nearly all of the criminal provisions are general intent crimes. They prohibit "knowing", quote/unquote, violations – "knowingly" doing something. But that simply means that you knew that you were doing something when you did it and that the act violated the law, not that you knew that you were violating the law when you did it. So in other words, it's a crime unless you are asleep or so intoxicated that you didn't realize what you were doing. And that's important because the same facts can give rise to either a criminal or civil enforcement action, and much of that decision is left to the government's discretion. So I'll get into some of the various policies about that in a few minutes, but the bottom line is that a criminal case is more likely when there is evidence of lying, cheating, or stealing, like submitting false documents, lying to investigators, or tricking monitoring equipment.

 

So some of the most common statutes and offenses are the Clean Water Act, which provides for criminal penalties for falsely discharging a pollutant without a permit, or in violation of a permit. Individuals: up to three years in prison. Companies: up to five years of probation, lots of fines. The Clean Water Act also contains a negligent misdemeanor. It's one of the few environmental federal crimes that does. It's up to a year in prison for individuals. So rather than "knowingly" doing something, you "negligently" did something, which arguably suggests that you actually had more knowledge when you negligently did it than when you knowingly did it, but that's okay. I'll save that for another day.

 

Civil penalties: as with all of these, they're adjusted for inflation, so you got to look in a whole bunch of different places. Please, again, go to the slides on my bio for all the details on that. It's a $51,570 per day violation. Clean Air Act is popular as well. That prohibits knowingly violating one of the many monitoring, record keeping, or reporting requirements for performance standards, solid waste combustion, blah, blah, blah . . . Individuals can receive up to five years in prison, up to a $250,000 fine. The Act prohibits knowingly making false statements or material admissions on applications, records, reports, etc.; knowingly failing to notify or report as required by the Clean Air Act; knowingly falsifying or tampering with monitoring devices; failing to pay required fees; releasing listed pollutants; and placing another person in eminent danger of death or serious bodily injury. And the Clean Air Act also has a negligent provision -- misdemeanor provision as well and several civil penalties.

 

RCRA is the Resource Conservation and Recovery Act that pertains to hazardous waste. Criminal provisions include knowingly causing hazardous waste to be transported to an unpermitted facility; knowingly causing hazardous waste to be treated or disposed of without a permit or in violation of a permit; knowingly making false statements or material omissions on reports, records, etc.; knowingly treating, storing, disposing of hazardous waste or used oil and destroying or filling the file records; knowingly causing hazardous waste to the transported without a manifest; knowingly exporting hazardous waste; treating or disposing or storing of used oil unlawfully. Again, there are criminal penalties of up to two years in prison and $250,000 for individuals, $500,000 restitution and what not for corporations. I'm kind of trying to fly through this so I don’t bore everybody to death. Civil fines up to $71,264 for a violation.

 

You also see a fair amount of Endangered Species Act and Lacey Act cases. So Endangered Species Act provides misdemeanor criminal penalties for knowingly importing, selling, taking, possessing, whatever, certain listed animals or plants. But the Lacey Act makes it a felony for knowingly importing, exporting, selling, purchasing any animal or plant taken, possessed, transported in violation of U.S. law. So instead of the misdemeanor provision of up to a year in prison under the Endangered Species Act, if the Lacey Act applies, and it usually does, then it's now a felony and individuals can get up to five years in prison, a $250,000 fine. There are also civil penalties as well.

 

There are also some less common statutes, but I thought I'd kind of go through them real quickly. TSCA is the Toxic Substances Control Act. It regulates certain substances like PCPs, asbestos, metal working fluids. Pesticides are excluded. That would be the Federal Insecticide, Fungicide, and Rodenticide Act, FIFRA. Both contain criminal penalties and civil fines. And then, let's see . . . TSCA is the -- I said that one. Toxic Substances Control Act. EPCRA is another one: Emergency Planning and Community Right-to-Know Act. It essentially says that facilities have to list hazardous substances in excess of specified amounts. They have to notify authorities that they're covered and provide emergency notification of releases. The idea is to protect the community and first responders from running into a fire or something where there is some kind of hazardous chemical. The problem here is that it can be very difficult to figure out which chemicals are listed where. There's several different categories of substances and you have to look in a whole bunch of different places in order to find them.

 

And don't forget about the traditional, if you will, Title 18 criminal offenses. So a lot of times you see environmental criminal cases that either end up being a plea to making false statements or some combination of these and the environmental offenses. But false statements: 18 U.S.C § 1001. Conspiracy: up to five years of prison for felonies, one year for misdemeanors. Mail fraud, wire fraud: 18 U.S.C. § 1341 and 43, which carries up to 20 years in prison. And obstruction of justice, which can be typically one of three provisions: 18 U.S.C § 1505, 1512, or 1519. So those pertain to witness tampering, evidence destruction in an agency proceeding is 1505, and then witness tampering or evidence destruction in an official proceeding, which is 1512, and destruction, alteration, falsification of records in a federal investigation is 1519. The second two carry up to 20 years in prison. So those are obviously very serious.

 

Let me talk a little bit about this government decision making and policies. So like I said before, a lot of these things the same facts could, theoretically, be either a civil or criminal case. Here are some basics and where to look for policies about how DOJ and EPA make decisions about whether to pursue enforcement actions, and if so, whether they should be civil or criminal actions. As with the statutory citations, these can all be found in the two enforcement overview presentations under Speaking Engagements on my bio on hklaw.com. You can get them there rather than sit here on the phone and try to list websites.

 

Basic polices are DOJ's Federal Principles of Prosecution, both for individuals and for business organizations. Both of those are found in the U.S. Attorney's Manual at 9-27.000 and 9-28.000. ENRD, the DOJ's Environment and Natural Resources Division has "[Factors in Decisions on Criminal Prosecutions for Environmental Violations] in the Context of Significant Voluntary Compliance or Disclosure Efforts by the Violator" from back in 1991. It discusses voluntary disclosure, cooperation, preventative measures and compliance programs, pervasiveness of the non-compliance, internal disciplinary action, subsequent compliance efforts. Those are factors that ENRD considers. Of note, in the Federal Principles of Prosecution for Business Organizations are similar provisions that pertain to cooperation and effective compliance programs.

 

The Federal Sentencing Guidelines at 8B2.1 discuss what an effective compliance program actually means and has a number of factors for that. EPA has "Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention Violations", which is referred to as the Audit Policy from back in the year 2000. That's available at the EPA's website. And then there is the EPA "Interim Approach to Applying the Audit Policy to New Owners", which essentially provides incentives for new owners to perform environmental audits and disclose violations. It gives them more time, a little bit more flexibility to incentivize them to do those things. EPA also has a "Renewed Emphasis on Self-Disclosure Violation Policies", promoting the agency's long-standing Audit Policy and eDisclosure program. That's a new one, relatively. That's from May of 2018. So the fact that the Audit Policy, and the Interim Approach, New Owners Policy are somewhat dated doesn't mean anything because they are still being referenced and emphasized as recently as May 2018.

 

So a note on individual accountability. There have been -- the Department of Justice has made it clear that it wants to charge individuals where possible instead of just letting the corporation pay a fine and everybody walks away as if nothing happened. So in 2015, then-Deputy Attorney General Sally Yates issued a memo that required federal prosecutors to pursue individual corporate officers and employees where warranted. Just let the company plead guilty, pay a fine. It required corporations to provide information about those individuals in order to receive cooperation credit in the context of a plea agreement. And all of those things were incorporated into the Federal Principles of Prosecution of Business Organizations.

 

There is a new Deputy Attorney General memo from November of 2018. It walks that back a little bit. It recognizes that the company doesn't need to "boil the ocean", as they say, and provide every bit of information about every employee that had anything to do with the subject of the investigation in order to receive cooperation credit. It requires that that information be provided about individuals who were substantially involved in the unlawful conduct.

 

So those are kind of the overview government decision making policies, why would we charge or not charge somebody or a company. And let me move now to some of the current issues and trends.

 

So sticking with DOJ's policies for a bit, there is relatively new guidance at the attorney general and associate attorney general level. There is a -- the former-Attorney General Sessions issued a memo in November of 2017 directing that agency guidance materials are not a binding substitute for notice-and-comment rulemaking. And he states in there, "Nor should guidance create binding standards by which the Department will determine compliance with existing regulatory or statutory requirements." That memo directed the Associate Attorney General, Rachel Brand at the time, to work with the DOJ components to identify guidance documents that should be repealed, replaced, modified.

 

So the Associate Attorney General, again, Rachel Brand at the time, then issued a follow-up memo in January of 2018. It stated that the principles of the Attorney General's memo are, and I'm quoting now, "relevant to more than just the Department's own publication of guidance documents. These principles also should guide Department litigators in determining the legal relevance of other agencies' documents in affirmative civil enforcement." And then it drops a footnote, and it says, "Affirmative civil enforcement refers to the Department's filing of civil lawsuits on behalf of the United States to recover government money lost to fraud or other misconduct," for example False Claims Act litigation, "or to impose penalties for violations of federal health, safety, civil rights, or environmental laws." And keep in mind that the Environment and Natural Resources Division reports to the Associate Attorney General, not the Deputy Attorney General, who is over the Criminal Division and other divisions of the Department.

 

So we have the AG memo in November of 2017 and then the AAG memo in January of 2018, and that was then followed up by, at the time, Jeff Wood, Acting AAG, Associate Attorney General in ENRD. The Environment Division issued a memo -- I'm sorry, the Assistant Attorney General issued a memo on March 12, 2018 that implemented and elaborated on the Attorney General and the Associate Attorney General's memos. And that Assistant Attorney General for ENRD memo laid out seven enforcement principles and five enforcement priorities. So let's go through those.

 

The Enforcement Principles are (1) Adhering to the Impartial Rule of Law. He referenced Associate AG Brand's memo about guidance documents and talked about not pursuing novel liability theories.

 

Enforcement Principle #2, Enhancing Cooperative Federalism. Basically recognizing shared regulatory responsibilities with states and tribes, and noting that many environmental violations can be address at the state level.

 

Principle #3, Exercising Pragmatic Decisionmaking. Important, he explained, that enforcement decisions should be governed by the law, the facts of the case, and common sense. And then quoting the Deputy Attorney General, he said, "The ideal prosecutor is dogged, but not an automaton who proceeds at all costs. Nor is the ideal prosecutor a zealot who demands criminal punishment for every arguable violation of the law."

 

Enforcement Principle #4 is Employing the Full Range of Enforcement Tools, meaning administrative action by the agencies, civil enforcement, and criminal enforcement. As the criminal enforcement, he said that that is "most likely where the facts show a requisite criminal intent, and the conduct creates a serious danger or risk of danger, has severe environmental effects, disregards human safety or the environment, involves dishonest or false conduct that undermines the statutory scheme, or involves repetitive significant violations notwithstanding administrative and civil enforcement efforts to obtain compliance." 

 

Enforcement Principle #5 is Coordinating with Agencies, meaning supporting agency priorities and looking to the agencies for scientific and technical matters. But then ENRD retains the final call as to whether or not to pursue a case.

 

Principle #6 is Collaborating with the United States Attorneys’ Office.

 

Principle, #7 Protecting Taxpayers and the Public Fisc.

 

So those are the seven Enforcement Principles, and now the five Enforcement Priorities are: #1, Advancing the “Back to Basics” Focus on Clean Water, Clean Air, and Clean Land. #2, Maintaining the Integrity of Environmental Laws and Programs. That recognizing self-monitoring and recording is critical to many environmental laws and the priority is to enforce those requirements. Priority #3, Fighting Fraud and Recovering Taxpayer Funds. #4, Fighting Violent and/or Organized Crime. And #5, Protecting America’s Workers, Competitiveness, and Infrastructure. So that references the Division's Worker Safety Initiative that I'll get into in a second, but it also speaks to protecting competitiveness, like sabotage the pipelines in cases involving illegally sourced imports.

 

These concepts are nothing new, by the way. There's a 1994 memo by EPA Director of the Office of Criminal Enforcement, Earl Devaney, under President Clinton, that went into many of the same concepts.

 

Those are the three kind of top-down memos from the AG, the Associate AG, and the Assistant AG for ENRD. But there are some other ones I wanted to mention. There is a -- the Attorney General issued a "Prohibition on Settlements to Third Parties." So in June of 2017 the memo was issued. It prohibited settlement payments to third-party organizations that were neither the victims or the parties to the lawsuit. And the concern there was that DOJ was extracting payments for the benefits of interest groups and other third parties in addition to fines that might go to the Treasury as a requirement to settle civil or criminal cases. The January 2018 ENRD, Environment Division AAG memo, provided additional guidance about certain limited exceptions to the general prohibition in environmental cases. There's a requirement that any third-party payment go directly to remedy the specific harm involved in the case, and the prosecutor needs prior approval, and there's a process for selecting third parties, etc.

 

So shipping from DOJ to EPA for a minute, EPA has also been active. There was -- it issued a prohibition on, what they call, "Sue and Settle" in October 2017. Then-Administrator Scott Pruitt directed the EPA to stop the practice of, what he called, "regulation through litigation" as described in an EPA press release that said that, "Over the years, outside the regulatory process, special interest groups have used lawsuits that seek to force federal agencies – especially EPA – to issue regulations that advance their interests and priorities, on their specified timeframe.  EPA gets sued by an outside party that is asking the court to compel the Agency to take certain steps, either through change in a statutory duty or enforcing timelines set by the law, and then EPA will acquiesce through a consent decree or settlement agreement, affecting the Agency’s obligations under the statute." So this new policy requires greater transparency and prohibits the agency from entering into consent decrees that it says would "exceed the authority of the courts."

 

The EPA has also been very active in the context of the ongoing debate about what qualifies as a Water of the United States under the Clean Water Act. As most of you likely know, that debate has been going on for quite some time. It's about federal jurisdiction under the Clean Water Act, specifically about when a body of water or a wetland becomes a Water of the United States, WOTUS, and about how hydrologically connected the body needs to be to navigable water. And, I mean, taken to the extreme the gutters of my house could be a jurisdictional water as an intermittent stream, and I'm kind of being facetious, but it's important because federal jurisdiction means that builders and other companies would be required to obtain Clean Water Act permits to do a growing number of things, the greater the federal jurisdiction is.

 

So this has been a gray area that even the Supreme Court struggled with since its 2006 Rapanos decision, and here's how it's evolved since Rapanos. Under the Obama administration, EPA issued a final rule on the -- EPA and the Army Corps of Engineers issued a final rule on the definition of WOTUS in May 2015. That was supposed to be effective in August of 2015, but naturally, a U.S. district court, just a couple days prior to the effective date in August of 2015, issued a preliminary injunction blocking implementation of the rule. That was followed soon thereafter by the Sixth Circuit. January of 2017, the Supreme Court granted cert to the Sixth Circuit's case, National Association of Manufacturers v. DOD, and that was a case about whether challenges to the 2015 WOTUS rule must be brought in federal district courts or circuit courts of appeal. So that's January 2017, the Supreme Court granted cert.

 

February 2017, President Trump issued an executive order directing EPA and the Corps of Engineers to consider a new rule that would be consistent with Justice Scalia's definition in Rapanos. June 2017, EPA Administrator Pruitt signed a proposed rule that would repeal the Obama administration's WOTUS rule. July of 2017, EPA and the Corps of Engineers published a proposed rule along the lines of the President's executive order – that is requiring a direct surface water connection for wetlands, removing strains that blow only after heavy rain or snow melt from the definition of a Water of the United States. So there're a couple things going on now. There's the proposed rule that would repeal the old rule, and then there's the proposed new rule.

 

November 2017, EPA and the Corps of Engineers proposed delaying implementation of the Obama-era WOTUS rule until 2020. And then in January of 2018 the Supreme Court held that challenges to the 2015 rule must be brought in federal district courts, not circuit courts of appeal. Shortly thereafter, in February of 2018 EPA and Army Corps of Engineers issued a final rule delaying implementation of the Obama administration's 2015 WOTUS rule. And then December 2018, the EPA and Army Corps of Engineers proposed a new WOTUS rule. So that's where it's at right now. The bottom line is that the proposed WOTUS rule is winding its way through the administrative process, and there is continued forum shopping litigation in various district courts about both the substantive WOTUS rule and the rule delaying implementation of the Obama-era WOTUS rule.

 

There is kind of a similar, not quite as convoluted process going on with the Clean Air Act. The Trump administration is attempting to appeal the Obama era's, what they called, the Clean Power Plan and replace it with what the Trump administration calls the Affordable Clean Energy Rule, ACE rule. The Obama administration's Clean Power Plan was an EPA rule intended to combat climate change by reducing emissions from coal-fired power plants. It was published in the Federal Register in October of 2015 and then stayed by the Supreme Court in February of 2016. So in October of 2017 EPA under the Trump administration proposed to repeal the rule because it exceeded EPA's authority. In August of 2018 EPA proposed the new Affordable Clean Energy Rule that established emissions guidelines for states to use to limit greenhouse gases from power plants. The idea being to leave to individual states the control over how best to reduce their greenhouse gas emissions. It also allows coal-fired powered plants to continue operating and to be upgraded more easily instead of shifting the energy sector to renewables and natural gas and keeping some burdensome permitting requirements that would be needed for coal plant upgrades.

 

In 2018 the Supreme Court rejected -- October 2018 -- the Supreme Court rejected further challenges to the Trump administration's plan to repeal Clean Power Plan. And so now the Affordable Clean Energy Rule is making its way through the rulemaking process. October 2018 was the end of notice-and-comment period, and there's an EPA public hearing in Chicago on October 1.

 

Also, note that there is new leadership at ENRD. Jeff Clark is the new AAG for the Environment Division. He started in November of 2018. He was previously a Deputy Assistant Attorney General at ENRD, responsible for all the appellate work for the Division. Among other things, he was also a Kirkland & Ellis partner. EPA also has a new Acting Administrator, Andrew Wheeler, started in April of 2018. He was previously Deputy Administrator under Administrator Pruitt. Prior service at EPA in the Bush 41 administration. Also prior experience at the Senate Environment and Public Works Committee, as well as law firm experience.

 

So what is the current state of enforcement in the Environment Division? I would say that enforcement remains strong at the ENRD. The Division issued an Accomplishments Report for FY2017 in April of 2018 that said, "In FY2017, ENRD worked on 3,943 cases and matters, while maintaining a robust docket of nearly 7,000 cases and matters. We obtained over $4.8 billion in civil and criminal fines, penalties, and costs . . . The estimated value of federal injunctive relief obtained [for] clean-up and pollution-prevention actions funded by private parties—exceeded $18.7 billion." Those stats are essentially repeated and explained a little further. And in the Division's FY2019 budget justification—any time you're looking at some of these stats, you got to kind of look into them a little deeper—higher-than-normal numbers last year because of the Volkswagen emissions tricking case. And I would also say that criminal enforcement at DOJ's Environmental Crimes Section is also alive and well. You might want to Google, "Environmental Crimes Section Monthly Bulletin" which I thought were only internal documents, but there is a redacted version that is publicly available. It gives you monthly summaries of what ECS has been up to.

 

A quick look through the past few months' publications show cases involving really the same kinds of violations that ECS has been pursing for a long time. There are worker endangerment cases. These are essentially cases where, usually a Clean Air Act hook to what would ordinarily be an OSHA case. Maybe most OSHA cases don't involve jail time, but the environmental offenses do. So if you, for example, a company that allows workers to go remove asbestos from a construction site without protective gear and without the right certifications and what not, that's an OSHA violation certainly, but it's also a Clean Air Act violation. So that's the idea. It's a partnership, really, between ECS and -- or ENRD and the Labor Department.

 

So the environmental -- this look that I did through the Environmental Crimes Monthly Bulletins had a number of worker endangerment cases, like a construction company in Pennsylvania that has employees replace windows without protection from lead-based paint; making OSHA training certificates and falsely claiming to be a licensed asbestos removal business, and then burning asbestos at the business owner's house. There are a number of RCRA hazardous waste cases like bogus recyclers and waste disposal companies, illegal storage of nearly 10 million pounds of contaminated abrasives that were used to strip paint from military equipment, an airport services company that illegally stored drums of fuel and other hazardous waste. Those are the typical kinds of cases and there're still going on like as they were before.

 

Clean Water Act cases – there's a car wash, fairly recently in New York that pumped oily waste water into a storm drain, a cattle farm in Iowa that discharged runoff with a permit.

 

Clean Air Act cases like a foundry coke company that was sentenced recently to over $24 million in fines and community service payments. And then the whole Volkswagen thing in fairly recent memory.

 

Vessel oil pollution cases: these are usually the magic pipe kinds of cases that ECS has gone after for quite some time, where engineers fabricate, usually, a separate pipe that allows them to discharge oily waste directly into the ocean instead of pumping it off to a barge or running it through an oil/water separator or incinerating it. There were a couple creek companies in Texas with a plea agreement in November, agreeing for a $4 million fine each. There was a German company in Maine sentenced in November to a $3.2 million fine for a magic pipe case. They were already on federal probation for the same kind of offense in Minnesota.

 

There are biofuel tax fraud cases like a Pennsylvania company that claimed to produce and sell biodiesel and then claimed tax refunds, but created false records and engaged in sham transactions to inflate the fuel amounts they were claiming to produce. There are Endangered Species Act, there are Lacey Act cases that are always interesting factually. There were cases involving trafficking and protective turtles, sea cucumbers, eagle parts, sperm whale teeth, and walrus tusks, Asian Leopard cats, a bird skull, and tiger pelts. There was a seafood company in Virginia falsely labeling Asian crab meat as U.S. Atlantic blue crab meat when it was not. And there was some idiot that shot a condor.

 

There are a fair number of cases involving dog fighting, and I now learned that growing marijuana in national parks seems to be a thing, and a thing that is frowned upon by parks.

 

So anyway, there you have it. That is my effort to discuss, give an overview of environmental enforcement statutes and policies and what not in a fairly short amount of time. Thank you for the opportunity. I'm happy to answer any questions.

                                                                                                                                    

Micah Wallen:  All right. Thanks, John. We will now go to our first question.

 

Brian Freeman:  Hi, Brian Freeman from Robinson & Cole in Hartford. One substantive question and one procedural. The procedural one first: you mentioned we might see the PowerPoints and the like for this presentation on Holland & Knight's website. Is that right?

 

John S. Irving IV:  Well, so I think I will have a link to The Federalist Society site for this, for this presentation, on my bio. But in addition to that, if you go to my bio at hklaw.com, go to Speaking Engagements, and then it should be the top two are a couple of enforcement -- similar-type enforcement presentations that were slide shows --

 

Brian Freeman:  Gotcha. Okay. Terrific.

 

John S. Irving IV:  Those have all the mind-numbly boring citations and all the stuff.

 

Brian Freeman:  Okay, great. I see that. I didn't catch it in complete the first time. Great. And the substantive question. I was curious, not to get too micro, but on the air side, from your experience at DOJ or otherwise, are you aware of any cases that the agency or DOJ brought under the "Once In Always In" policy that's, of course, now been withdrawn with respect to hazardous air pollutants and when you can define yourself out of major source status?

 

John S. Irving IV:  I am not. I'd have to do some looking to see if there's anything like that. But there are certainly some good places to look. One would be the Environmental Crimes Monthly Bulletin. And ENRD has a fairly well-developed press release cite that -- and that would contain civil enforcement matters as well.

 

Brian Freeman:  Yep. Okay.

 

Micah Wallen:  All right, not seeing any other questions in the queue, John, did you have anything you wanted to delve into further, or any closing remarks?

 

John S. Irving IV:  I appreciate the opportunity very much. Certainly, all my information is available on either The Federalist Society thing or the HK Law bio. I'm happy to give training or presentations to whoever may want it.

 

Micah Wallen:  On behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us today. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.