Environmental Crimes Blog

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