Environmental Crimes Blog

Target or Subject?

When there is an investigation into an environmental crime, typically, witnesses are called before the grand jury.  On occasion, I have been asked the question by appearing witnesses: “Am I a target?”  Being a “target” or a “subject” has different meanings than what a lay person may ascribe to the terms. 

Before I allow a witness to testify before a grand jury, I contact the AUSA handling the matter and ask whether the person is a target or subject and then ask for such a letter, if appropriate. 

As defined by the United States Attorney’s Manual: “A ‘target’ is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.  . . .  A ‘subject’ of an investigation is a person whose conduct is within the scope of the grand jury's investigation.” US Attorney’s Manual, Section 9-11.151 - Advice of “Rights” of Grand Jury Witnesses.  The United States Attorney’s Manual provides a sample target letter.  sample target letter

More later.

As always, feel free to contact me by e-mail with any questions at walter.james@jamespllc.com.

WDJiii

USEPA Cover-Up – Part 2?

The Government Accountability Office report has been release regarding the overstatement of enforcement of environmental penalties by the USEPA.  Here is a link to the twenty-one (21) page report http://www.gao.gov/new.items/d081111r.pdf.

 

The GAO report finds that the USEPA has overstated its enforcement of environmental violations to the public and to Congress by reporting the fines and penalties levied even though the fines and penalties may never be paid.  The USEPA defended its reporting practices as “that's the way the agency has always reported fines, including before President Bush took office.”  Granta Nakayama, the head of USEPA's Office of Enforcement and Compliance Assurance, responded in a letter to the GAO that reporting the penalties levied rather than those collected deters polluters.  “We do not believe that penalties collected should be publicly reported,” Nakayama wrote. 

 

My question is, why not?  How much money is the government leaving on the table?  Could a citizen bring a private attorney general action to collect those unpaid fines and penalties?

 

Removing those penalties, when compared to fines and penalties collected, “results in a significant reduction in the overall level of penalties reported,” the Report finds.  House Energy and Commerce Committee Chairman Rep. John Dingell, D-Mich., who requested the GAO investigation, accused the USEPA of trying to cover up its enforcement record.  “The bottom line is that environmental enforcement has significantly declined since the Bush administration took office,” Dingell said.

 

More later.

 

As always, feel free to contact me by e-mail with any questions at walter.james@jamespllc.com.

 

WDJiii

USEPA Cover-Up?

The Associated Press is reporting this morning that congressional investigators are looking into the accounting practices at the USEPA which have helped mask how much the Bush administration has slashed penalties against polluters.  The Government Accountability Office (“GAO”) report which is to be released today (Tuesday, October 21, 2008) finds that the USEPA has overstated its enforcement of environmental violations by including fines that may never be paid when it tallies penalties.  In its defense, the USEPA officials say that is the way the USEPA has always reported fines, including before President Bush took office.

 

Enforcement fines levied by the USEPA decreased from $240,600,000.00 in 1998 to $137,700,000.00 in 2007.  This comes as no surprise to those practicing in the environmental enforcement arena.  The USEPA is currently undermanned in the number of criminal investigators mandated by statute.  The AP also reports that Michigan Congressman John Dingell, who requested the GAO investigation, accuses the USEPA of trying to cover up its enforcement record. 

 

From my perspective, there is no cover up of the enforcement record; rather, there has been a decided and conscious lack of emphasis on environmental enforcement, both civil and criminal.  As evidence, just look at the number of criminal investigation agents in the CID (as compared to the statutorily mandated levels).  This, coupled with a heighted awareness of environmental issues in the private sector, can also factor into the decrease.

 

Is the GAO report accurate?  If you just stick with the numbers, yes.  The important aspect, though, is what conclusion should be drawn from the numbers.

 

More later.

 

As always, feel free to contact me by e-mail with any questions at walter.james@jamespllc.com.

 

WDJiii

An Arizona Land Developer

Although this is not an environmental criminal matter, it could have been.  An old adage is that the only difference between an environmental crime and an environmental civil violation is who gets to your door first. 

 

On October 7, 2008, an Arizona land developer and a contractor agreed to settle allegations of violations of the Clean Water Act for bulldozing, filling, and diverting approximately five miles of the Santa Cruz River, a major waterway in Arizona.  According to the settlement, Scottsdale, Arizona based developer George H. Johnson (and his company Johnson International, Inc.), General Hunt Properties, Inc. and land-clearing contractor 3-F Contracting, Inc. will pay a combined $1,250,000.00 civil penalty.  The penalty is the largest obtained in the history of USEPA’s Pacific Southwest Region, and one of the largest in USEPA’s history, under Section 404 of the Clean Water Act.  Section 404 protects against the unauthorized filling of federally protected waterways through a permit program administered jointly by USEPA and the USACE.  The settlement resolves a Clean Water Act complaint filed in 2005 by the Justice Department and EPA against Johnson and his companies for clearing and filling an extensive stretch of the lower Santa Cruz River and a major tributary, the Los Robles Wash, without a permit from the Corps of Engineers.

 

The alleged violations occurred in 2003 and early 2004, when defendants bulldozed 2000 acres of the historic King Ranch and La Osa Ranch in Pinal County, Ariz.  The bulldozed areas are within the largest active floodplain of the lower Santa Cruz River, which meanders through the two ranches in natural braids, a rarity for this heavily channelized waterway. 

 

The settlement, in the form of a proposed consent decree, was lodged in the United States District Court in Phoenix.  It is subject to a thirty (30) day comment period.  After that thirty (30) day comment period, the court may either approve or disapprove the settlement.  A copy of the proposed consent decree is available on the United States Department of Justice Department web site at www.usdoj.gov/enrd/Consent_Decrees.html.

 

The seven-figure penalty in this type of enforcement case is unprecedented and should serve as a deterrent.  Granta Nakayama, assistant administrator for USEPA's Office of Enforcement and Compliance Assurance, was quoted as stating that the “action contributes to EPA's record-shattering enforcement results.  To date, EPA has concluded enforcement actions requiring polluters to spend an estimated $11 billion on pollution controls, clean-up and environmental projects, an all time record for EPA.” 

 

More later.

 

As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.

 

WDJiii

BP and the Crime Victims Act

As previously discussed on this blog, the United States District Court in the Southern District of Texas, Houston Division had scheduled a hearing for October 7, 2008, in the plea agreement that the United States had reached with BP PLC on the criminal case over the 2005 explosion at BP’s Texas City refinery.  At the hearing, Judge Lee Rosenthal heard arguments from the crime victims and from BP on why she should either accept or reject the plea agreement.  In essence, the plea agreement required BP to pay a $50,000,000.00 fine and serve three years probation.  There are also safety issues that were to be addressed.  The Court’s role is to either accept or reject the plea agreement. 

 

While BP formally entered its plea in February 2008, blast victims objected, complaining that they had not been consulted as required by the Crime Victims’ Rights Act.  The case was appealed to the Fifth Circuit Court of Appeals and to the United States Supreme Court (which denied the victims’ request to delay the decision on the plea agreement). 

 

Judge Rosenthal gave no indication as to when a ruling would be forthcoming.   

 

More later.

 

As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.

 

WDJiii