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Smithfield Foods Inc. Environmental Training Conference June 4-6, 2012 Orlando, FL

Smithfield Foods Inc. Environmental Training Conference June 4-6, 2012 Orlando, FL. Focus on Compliance What You Should Know About Your Individual Liability David E. Evans McGuireWoods LLP Richmond, VA. True or False?. Investigations of potential environmental crimes are rare. False

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Smithfield Foods Inc. Environmental Training Conference June 4-6, 2012 Orlando, FL

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  1. Smithfield Foods Inc.Environmental Training ConferenceJune 4-6, 2012Orlando, FL Focus on Compliance What You Should Know About Your Individual Liability David E. Evans McGuireWoods LLP Richmond, VA

  2. True or False? • Investigations of potential environmental crimes are rare. • False • In FY 2009, EPA launched 387 new criminal investigations. • In FY 2010, EPA opened 346 new investigations. • In FY 2011, 371 criminal investigations were opened by EPA.

  3. True or False? • Most EPA investigations result in the filing of criminal charges. • True • Of the 387 new criminal investigations launched in FY 2009, over 200 defendants were charged. • Of the 346 investigations began in FY 2010, 289 resulted in criminal charges. • Of the 371 criminal investigations opened in FY 2011, 249 defendants were charged. • An average of 87 percent of the FY 2011 cases included at one individual defendant, with the individual defendants sentenced to an total of 895 years in prison.

  4. True or False? • Ignorance of the law is a defense to liability. • False • Federal environmental laws impose strict civil liability. • Defenses to liability are limited to extraordinary circumstances. • All other factors such as lack of knowledge, absence of environmental harm, past compliance record, efforts to comply, etc. are relevant only to the amount of the fine or penalty, the length of the sentence, and compliance schedules.

  5. True or False? • Only those who intentionally violate environmental laws can be criminally prosecuted. • False • Negligent violations are crimes under most federal environmental statutes. • Many prosecutions result from misconduct after unintentional violations have occurred.

  6. True or False • The company will defend me if I am being investigated for or charged with an alleged environmental crime. • Maybe • An employee being investigated for or charged with an environmental crime must retain his or her own legal counsel. • The real question is whether the company will pay for the employee’s legal counsel, which depends on company policy and the circumstances surrounding the employee’s involvement in the alleged crime.

  7. True or False? • How you respond to a violation is generally more important than the violation itself. • True • EPA rarely files judicial enforcement actions where responsible parties submit timely notices of violations, respond promptly to correct the source of the violation, and act promptly to address any threat to the environment or public health from the violation.

  8. True or False? • A state investigation and enforcement action will protect the company and me against a federal investigation or prosecution. • False • Although federal and state environmental laws overlap and impose many of the same requirements, companies and individuals can be prosecuted under both federal and state law for the same acts. • With limited exceptions, a state enforcement action will not protect a company or individual against a federal civil or criminal prosecution.

  9. True or False? • EPA only prosecutes those cases that are called to its attention. • False • There are numerous examples of prosecutions that began with investigations of alleged violations that had nothing to do with the crimes that were prosecuted. • Alleged violations of health and safety laws have led to prosecutions for environmental crimes. • Same for alleged violations of labor laws. • Criminal conduct disclosed during citizen environmental suits have led to investigations and prosecutions.

  10. True or False? • Prompt, complete, and accurate disclosure is the best protection against individual criminal liability. • True • Individuals cannot be criminally prosecuted for the acts of others unless they knew of the violations and acted to conceal them. • Most prosecutions of individuals result from concealment of misconduct, falsification of records or lying to investigators.

  11. The Basics for Avoiding Individual Liability • Knowledge • Attention to detail • Diligence • Openness and transparency • Honesty

  12. Questions or Comments? www.mcguirewoods.com Ó 2012 McGuireWoods LLP

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