False stormwater discharge reports bring lab three-year prison term

A judge in U.S. District Court for the Western District of Tennessee, Memphis, sentenced the chief executive officer of Environmental Compliance and Testing (ECT), Memphis, to 36 months in prison in connection with fabricating Clean Water Act-mandated storm water discharge monitoring reports for concrete and other industrial sites, and submission of those documents to the Tennessee Department of Environment and Conservation and Mississippi Department of Environmental Quality. 

Under Diane Gordon, ECT billed itself as a full service consulting firm providing National Pollutant Discharge Elimination System permit compliance services. Following a plea agreement with U.S. District Court for Western Tennessee, she was sentenced to 26 months in prison, plus an additional 10 months’ incarceration on a related probation revocation for having engaged in criminal conduct while on supervision. Gordon was also ordered to pay $222,388 in restitution to more than 20 businesses that had paid ECT for storm water sampling and testing. The bulk of restitution spans Memphis Ready Mix ($45,700); Southern Concrete ($37,700); West TN Ready Mix ($27,100), and BT Redi Mix ($20,500). 

Gordon claimed to gather and send the samples to a full-service environmental testing laboratory. The alleged results were memorialized in lab reports and chain of custody forms submitted to the Mississippi and Tennessee agencies to satisfy permit requirements. In reality, Gordon fabricated the test results and related reports, federal officials note, then forged documents from a reputable testing laboratory in furtherance of her crime, and billed clients for the sampling and analysis. Law enforcement and regulators quickly determined that Gordon created and submitted, or caused to be submitted, at least 405 false lab reports and chain of custody forms from her company to state regulators since 2017.

“[The] sentence appropriately reflects the harm caused by Gordon’s betrayal of her position of trust and her fraud upon her customers, the regulatory authorities, and the citizens of Tennessee and Mississippi,” says Assistant Attorney Todd Kim of the Justice Department’s Environment and Natural Resources Division. 

“The Clean Water Act ensures that water quality is maintained throughout the United States,” adds U.S. Attorney Joseph C. Murphy Jr. for the Western District of Tennessee. “Correct and accurate test results of discharges into rivers and streams and the honest reporting of those results to regulatory authorities are important parts of the Act’s regulatory framework. Without accurate test results and reporting of those results, the Clean Water Act will not work as Congress intended. Because honest reporting of this data is so important to the functioning of the Act, our office will vigorously prosecute individuals who falsely report test results.”

To strengthen enforcement and improve compliance with workplace safety standards and reduce worker injuries and illnesses, the U.S. Department of Labor is expanding Occupational Safety and Health Administration Severe Violator Enforcement Program criteria to encompass violations of all hazards and OSHA standards, with continued focus on repeat offenders in all industries. Previously, an employer could be in the program for failing to meet a limited number of standards. 

The changes will broaden the program’s scope with the possibility that additional industries will fall within its parameters. Since 2010, the Severe Violator Enforcement Program has concentrated enforcement and inspection resources on employers who either willfully or repeatedly violate federal health and safety laws or demonstrate a refusal to correct previous violations. In addition to being included on a public list of the nation’s severe violators, employers are subject to follow-up inspections.

“The Severe Violator Enforcement Program empowers OSHA to sharpen its focus on employers who—even after receiving citations for exposing workers to hazardous conditions and serious dangers—fail to mitigate these hazards,” says Assistant Secretary for Occupational Safety and Health Doug Parker. “Expanded criteria reflect the administration’s commitment to ensuring OSHA has the tools it needs to ensure employers protect their workers or hold them accountable when they fail to provide safe and healthy workplaces.”

Specifically, the updated criteria include the following:

  • Program placement for employers with citations for at least two willful or repeated violations or who receive failure-to-abate notices based on the presence of high-gravity serious violations;
  • Follow-up or referral inspections made one year, but not longer than two years, after the final order;
  • Potential removal from the Severe Violator Enforcement Program three years after the date of receiving verification that the employer has abated all program-related hazards; and,
  • Employers’ ability to reduce time spent in the program to two years, if they consent to an enhanced settlement agreement that includes use of a management system with seven basic elements in OSHA’s Recommended Practices for Safety and Health Programs.