Environmental Crimes Blog

Not an Environmental Crime, but a Crime Nonetheless

I recently returned from a long weekend trip to San Diego, California with my wife to escape the 100º heat in the Dallas/Fort Worth area.  I got in some great golf at Torrey Pines and the wife got in some great spa time (a good trade-off).  Anyway, I digress.  Once we got back from San Diego, I left my golf bag – still fully packed – in my living room.  A couple of days later, I unpacked my golf bag and discovered that my Maui Jim sunglasses (cost me about $125.00) were missing.  Upon further examination, the nylon webbing that attached to the case (which was not there) appeared to be cut (straight edge, no fraying).  They were there when I was in San Diego (I wore them there) but they were not there when I got back to Dallas.  Only two entities had access to my bag other than me – TSA and American Airlines.     

 

I then got on line to see about notifying the TSA and AA about my suspected theft from my golf bag.  I have traveled with my clubs various locations around the world for the last twenty years or so with no incident.  After rooting around on the TSA website, I finally found the complaint submission link and I submitted a complaint.  I also submitted a complaint to AA. 

 

The response I got from the TSA was essentially, “Thanks for writing; however, you need to contact the TSA San Diego and ask for lost and found.”  The sunglasses were not lost – they were stolen.  I do not think a call to “lost and found” would have been helpful.  The response I got from AA was a little different.  Here is the response from AA:

Thank you for contacting Customer Relations via AA.com. We are as concerned as you are about the circumstances you described. Personnel in our Security Department use a program of surveillance and other means to prevent property loss -- especially in this era of heightened security. Our statistical measures reflect that our efforts are highly successful but I realize this is of little solace to you since you are reportedly missing some of your belongings.

While we work very hard to avoid these mishaps, unfortunately, they do sometimes occur. When this kind of difficulty happens, every effort is made to make amends in a reasonable manner. However, our conditions of liability exclude any claim not initially reported in person within 24 hours after the arrival of your checked items.
Still,we have documented your concerns and have shared your experience with key personnel at the both the SAN and DFW Airports for internal review purposes.

Mr. James, our position in no way suggests that we are insensitive to what happened. Again, we are genuinely sorry for the reported loss of your sunglasses. Please be assured that we will work harder than ever to restore your confidence in our ability to provide good service. We realize we must earn back your respect.    

 

The response by TSA was pure BS.  The response by AA was worthless; however, it made me feel better that they were at least sharing the experience for “internal review purposes.”

 

While I doubt I will ever see my sunglasses again, I hope that the SOB that took them gets caught.

 

More later.

 

As always, feel free to contact me via e-mail at walter.james@jamespllc.com.

 

WDJiii

W.R. Grace Redux

The National Law Journal sat down with David Krakoff, wh represented Harry Eschenbach, the former director of health and safety for W.R. Grace’s industrial chemicals group.  The interview is an interesting read on how the case turned in favor of the defense.  You can read the interview here:

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202431910746&src=EMC-Email&et=editorial&bu=National%20Law%20Journal&pt=NLJ.com-%20Daily%20Headlines&cn=20090701NLJ&kw=The%20anatomy%20of%20an%20acquittal%20in%20the%20W.R.%20Grace%20asbestos%20trial&slreturn=1

 

There is no doubt that the current administration will continue to bring cases alleging environmental crimes; however, based upon the events during and the outcome of the Grace case, one can only hope that the government will be a little more careful in how it indicts and then how its lawyers act duringthe pre-trial and trial stages.

 

One can only hope.

 

More later.

 

As always, feel free to contact me via e-mail at walter.james@jamespllc.com.

 

WDJiii

W.R. Grace – A Follow-up

On June 18, 2009, the USEPA announced that it was declaring a “clean-up emergency” for Libby, Montana for the asbestos contamination resulting from mining operations.  You can read the full article here http://www.cnn.com/2009/US/06/17/montana.asbestos/index.html.

 

What I find interesting is that the USEPA was all up in arms about W.R. Grace’s activities and actually entered into an agreement with Grace where Grace paid for some of the clean-up.  You may also recall a minor event in which Grace was indicted for environmental crimes, including a knowing endangerment claim (which basically means that the USEPA and the USDOJ thought that Grace knew it was endangering the town of Libby). 

 

If the USEPA knew about the danger (at least as far back as when the indictment was handed down), why did it take so long to declare a “clean-up emergency” in Libby?  It just makes you go hmmm.  Now I know that the USEPA is not the fastest acting agency; however, if it truly was in need of an “emergency clean-up” why did the USEPA wait so long?  Why not declare it as such when the problem was first encountered or, when it decided that Grace should be indicted for knowing endangering Libby, Montana.  Where is the protection in the Environmental Protection Agency?      

 

More later.

 

As always, please feel free to contact me at walter.james@jamespllc.com/

 

WDJiii

This Goes Under The Category Of Just Plain Stupid

The Tyler Morning Telegraph is reporting that three men have been arrested for allegedly dumping gasoline into a creek.  The Van Zandt County Sheriff’s office and the Grand Saline Police Department responded to a citizen’s complaint of illegal dumping on Tuesday, June 2, 2009, on a county road.  The investigation determined that several individuals were pumping the contents of underground storage gas tanks from the B-Z Mart in Grand Saline to containers on a truck and then dumping it on Van Zandt County Road 1805.  The investigators found a large quantity of a hazardous fluid had been dumped on the roadway and into the creek behind the Grand Saline City Lake.  The sheriff, Pat Burnett, said a concerned citizen contacted investigators and told them that the truck that dumped the substance was filling back up and would be heading back out to dump the fluid again.  Investigators went to the B-Z Mart and watched the individuals filling four containers on a trailer and truck. 

 

The truck broke down before arriving at the spot chosen for the dumping and that was when investigators began questioning the two men in the truck.  The two men, Billy Perdue Jr. and Gilbert Perry Jr. told detectives they had been hired by Shahzad Zulifqar, the B-Z Mart owner to pump out the underground storage tanks and dispose of the fluid.  All three were arrested and charged with felonies of illegal dumping.  Further criminal and civil actions are likely. 

 

You can read the full article here: http://www.tylerpaper.com/article/20090605/NEWS01/906059995.

 

More later.

 

As always, feel free to contact me via e-mail at walter.james@jamespllc.com.

 

WDJiii

An Illegal Search?

On June 3, 2009, the Texas Commission on Environmental Quality (“TCEQ”) announced that starting the first week of June 2009, it would use a Bell Jet Ranger helicopter to fly over many industrial facilities located on the Houston Ship Channel.  The fly-overs are part of a project between the TCEQ and the University of Houston to field test a new type of remote sensing technology intended to identify sources of benzene emissions.  The helicopter will be equipped with specialized remote sensing technology known as Differential Absorption Light Detection and Ranging (“DIAL”) (which has been used in the past by the TCEQ in a past study in the Texas City area to measure emissions from such industrial sources as liquid storage tanks and flares).  The project is field testing a smaller, more specialized version of DIAL technology.  The project is scheduled to conclude on June 30, 2009.

 

So, what happens if the TCEQ spots any wrong-doing while conducting the fly over?  Is it an illegal search?  Do you have a Fourth Amendment right to the air space over your facility?  Probably not.  Especially if the “open fields” doctrine is applied.  The “open fields” doctrine is a judicially created standard for evaluating claims of an unreasonable search by the government in violation of the Fourth Amendment of the United States Constitution.  You can learn more about the “open fields” doctrine by reviewing the case law:  Hester v. United States, 265 U.S. 57 (1924) which held that “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields."  Id.  The doctrine was further refined Katz v. U.S., 389 U.S. 347 (1967) which established a two-part test for what constitutes a search within the meaning of the Fourth Amendment.  The relevant criteria are, generally, an actual expectation of privacy and that society is prepared to recognize that expectation as reasonable.  To further raise the bar, in Oliver v. United States, 466 U.S. 170 (1984) the Supreme Court held that a privacy expectation regarding an open field is unreasonable.

 

So, a fly over by a helicopter collecting data probably would not be an illegal search under the Fourth Amendment. 

 

More later.

 

As always, feel free to contact me via e-mail at walter.james@jamespllc.com.

 

WDJiii

This Is Just Incredible - Follow-up

On February 15, 2008, I wrote an entry regarding a case in East Texas regarding a family dairy farm.  The case was started by a complaint made by a neighbor (she alleged that he dairy farm was discharging material from its discharge pond illegally across her property).  During the investigation, this neighbor filed suit against the family alleging that the discharge under criminal investigation caused the death of several of her horses. 

 

On May 9, 2009, based upon received complaints of neglect concerning starving horses, the Texas Blue Animal Rescue and the Bluebonnet Equine Humane Society along with officers from the Hopkins County Sheriff’s Department and Sulphur Springs Police Department removed the horses.  The officers served the owner, Carol Paselk, with a warrant to remove all horses from the property.  There were 57 horses living on the property in unsanitary conditions and without access to sufficient food and water.  There was also one deceased horse.  All of the living horses were removed and relocated.  You can read the full story and review pictures of the horses at http://www.bluebonnetequine.org/breakingnews.htm.

 

The case against Paselk will be heard on Tuesday, May 19, 2009, at 1:30 p.m. in Sulphur Springs, TX.  

 

Perhaps the USEPA should investigate the Paselk property for illegal discharges as there was reportedly uncontrolled run-off from large piles of horse manure?  

 

More later.

 

As always, feel free to contact me via e-mail at walter.james@jamespllc.com.

 

WDJiii

W.R. Grace Instruction to the Jury Regarding Robert Locke Testimony

Below is the instruction given by the judge in the W.R. Grace case regarding the testimony of one of the government’s key witnesses.  One expects better from our government . . ..

 

Ladies and gentlemen, you are now going to hear the continued cross examination of Mr. Robert Locke.  Mr. Locke's cross-examination will continue but only on the area of his special relationship with the United States Attorney's Office and the prosecution team, including federal agents.  Before the examination continues I am going to explain to you why the government will not be allowed to do redirect examination of Mr. Locke and why you can not consider any proof offered by Mr. Locke in deciding any issue regarding Mr. Bettacchi.  I will also explain why you should consider any proof offered by Mr. Locke with skepticism.

 

The United States Attorney and the Department of Justice are representatives not of an ordinary party to a controversy, but of a sovereign whose obligation to govern impartially is the source of its legitimacy to govern at all and whose interest, therefore, in a criminal prosecution is not that it shall win a case but that justice shall be done. The conduct of any criminal case has a defined process.  The process is governed by the United States Constitution, the laws enacted by the United States Congress, and Rules of Criminal Procedure recommended by the United States Supreme Court and adopted by the United States Congress.  Each case is also governed by various orders of the presiding court setting forth a detailed procedural plan, and rulings on specific legal issues that arise in the case.

 

In this case, the Department of Justice and the United States Attorney's Office have violated their constitutional obligations to the defendants, they have violated the Federal Rules of Criminal Procedure, and they have violated orders of the Court. The United States Supreme Court has determined that when a defendant is on trial in the federal court, prosecutors have a constitutional obligation to turn over to the defendant evidence that is favorable to the accused either because it is exculpatory or because it is impeaching, that is, the proof may provide information that undermines the credibility of any witness called by the prosecution in the case. The government and its agents cannot suppress any such proof either willfully or inadvertently.  The rules of criminal procedure place an obligation on the government and its agents, to produce certain kinds of evidence or proof if it is requested by the defendants or ordered by the court.  The suppression by the prosecution of evidence favorable to an accused violates the due process of the law where the evidence is material to the question of guilt, irrespective of the good faith or bad faith of the prosecution. Prosecutors have an affirmative duty to comply with the Constitution, the Federal Rules of Criminal Procedure and the orders of the court. That duty includes the affirmative responsibility to learn of any evidence favorable to the accused and to disclose such evidence in a timely manner so that it can be effectively used by the accused.  The government has violated its solemn obligation and duty in this case by suppressing or withholding material proof pertinent to the credibility of Robert Locke. As a sanction for this inexcusable dereliction of duty the Court has entered an order that prohibits consideration of any proof offered by Robert Locke in the case brought against Robert Bettacchi.

 

Thus, you may not consider testimony of Robert Locke when you decide the charges pending against Robert Bettacchi.  Locke's testimony is stricken in its entirety as it relates to Robert Bettacchi.

 

Having made this ruling the court does not mean to suggest that you should give any more credence to Robert Locke's testimony as to any of the other defendants.  Indeed, you should examine Locke's entire testimony with great scepticism [sic] and with greater caution than that of other witnesses.  In evaluating his testimony you should consider the bias that he has displayed toward W.R. Grace, his relationship with the prosecution team and the extent to which those matters may have influenced his testimony.

 

You will have to decide what weight to give to Locke's testimony if any but you should be very cautious about making a determination of criminal liability for any defendant based upon his proof.

 

The issues I have described have been fully addressed by the Court, and an adequate remedy is in place to allow the trial to move forward.  It remains your duty to give dispassionate consideration to the proof in the record, within the confines of my instructions to you, and to reach a verdict based on the facts before you and not on any other ground.

 

More later.

 

As always, feel free to contact me via e-mail at walter.james@jamespllc.com.

 

WDJiii

A Chink In the Armor?

On May 4, 2009, the United States Supreme Court decided Flores-Figueroa v. United States, 555 U.S. ___, (2009).  It was an identify theft criminal prosecution.  What makes it of interest in the environmental crimes arena is that the Court found that the word “knowingly” applied to ALL subsequently listed elements of the crime.  You can read the full opinion here http://www.law.cornell.edu/supct/html/08-108.ZS.html.

 

This case will allow those charged with environmental crimes to challenge the government’s typical assertion that the crimes are general intent and that the lower mens rea should apply.  It will be significant at trial and at the time the jury charge is developed and argued.

 

More later.

 

As always, feel free to contact me via e-mail at walter.james@jamespllc.com.

 

WDJiii

USEPA’s 2010 Budget

On May 12, 2009, Lisa P. Jackson, USEPA’s Administrator, appeared before the United States Senate’s Environment and Public Works Committee’s Hearing on EPA’s 2010 Budget Proposal.  As to civil and criminal enforcement, Ms. Jackson is seeking an increase of $32,000,000.00 from last year (for a total of $600,000,000.00 for civil and criminal enforcement alone).  In a prepared statement, she stated: “The $600 million enforcement budget reflects the President’s strong commitment to enforcing of our Nation’s environmental laws and ensures that EPA has the resources necessary to maintain a robust and effective criminal and civil enforcement program.”  The budget request includes an increase of almost thirty (30) additional positions specifically for civil and criminal enforcement.  Jackson also stated: “Experience has shown that investing in our enforcement program yields tangible pollution reductions and fundamental behavioral change in the regulated community.” 

 

So, if you were wondering, you will see an increase in enforcement activity in the coming years.

 

More later.

As always, feel free to contact me via e-mail at walter.james@jamespllc.com.

 

WDJiii

W. R. Grace and The Executives Not-Guilty

On Friday, May 8, 2009, after about 36 hours of deliberations, the jury found W.R. Grace and the remaining executives not guilty on all counts.  The verdict came after an eleven (11) week trial.  The USDOJ had no comment and was uncertain as to whether it would appeal.  When the indictment was handed down, the government asserted that W.R. Grace conspired to knowingly release the asbestos, and then tried to hide the dangers from employees, residents and the government.  In response, the defense claimed that Grace had worked for years to clean up the facility.

It is somewhat surprising that the government did not come away with at least a conviction on one or two counts.  The verdict is a reflection of the evidence heard by the jury; but did they hear all of the evidence?  Too many times the USDOJ indicts and then throws all of the mud on the wall to see what sticks.  Perhaps the USDOJ should take a more critical look at the cases and indict only where they have the evidence to convict?  That is really not the answer; however, this case, along with the Ted Stevens dismissal, screams for more oversight of the prosecutorial function.  Is the answer, in environmental criminal case, for the USDOJ to take back control of the cases (and the type of case) as it once had? 

Who knows?  But, chalk this one up for a defense win (in a Big Way); and kudos to the defense lawyers who work so hard for the acquittal.

More later.

As always, feel free to contact me via e-mail at walter.james@jamespllc.com.

 

WDJiii