Oops! My client had a spill – what do I do now?! By Gerald L. Hilsher


Originally published in Oklahoma Bar Journal - Volume 83, No.5 - February 11, 2012.

Anyone who has raised a child or represented a company in a regulated industry knows that accidents will happen. This article will address what should happen when a business regulated by one of the state’s environmental agencies has a spill, release or upset that involves environmental contamination. The article will also address the attorney’s responsibilities and considerations when the client fails to do the right thing to redress the accident.

The statutory and regulatory framework of state and federal environmental laws is designed to be self-policing. It requires honest and candid environmental permit applications, conscientious monitoring of environmental protection systems and procedures, and truthful reporting to authorities of releases or upsets, and permit deviations. At least that is how it is designed to work in order to prevent significant risk of harm to human health and/or the environment. Because concerns for the public welfare are the driving forces behind the environmental regulatory scheme, crimes can be committed and prosecuted as strict liability crimes, without any apparent mens rea or intent required. Thus, many environmental violations can occur by accident or simple neglect, and the difference between criminal prosecutions versus the imposition of civil or administrative penalties is often how the client and/or attorney respond.

It is important to note that the decision to bring a criminal prosecution, as opposed to a civil or administrative enforcement action, is one based on “prosecutorial discretion.” In deciding whether to bring a criminal action, the prosecuting authority (e.g., Oklahoma Attorney General’s Office, District Attorney’s Office, or U.S. Attorney’s Office) will generally consider

  1. The significance of the actual or threatened harm;
  2. Whether there was a failure to report an actual discharge, release or emission;
  3. Whether the violation appears to be widespread in the industry requiring deployment of a stratagem of deterrence;
  4. Whether the conduct was intentional or negligent;
  5. Whether there is a history of past violations;
  6. Whether there was concealment of misconduct or whether the violator self-reported;

Whether there was tampering with monitoring equipment; or 8) whether documents were falsified.

Article authored by McAfee & Taft Attorney: Gerald L. Hilsher .

Please see full article below for more information.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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