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# Table of Contents

Page No.

**I. Overview 1**

**II Summary of Program Changes N/A**

**III. Appropriations Language and Analysis of Appropriations Language
N/A**

IV\. Decision Unit Justification

A. Environment and Natural Resources Division **5**

1\. Program Description 5

2\. Performance Tables 17

3\. Performance, Resources, and Strategies 20

V. E-Gov Initiatives 30

VI\. Exhibits

A.  Organizational Chart

> B. Summary of Requirements
>
> C. Program Increases by Decision Unit N/A

D.  Resources by DOJ Strategic Goal/Objective

E.  Justification for Base Adjustments

F.  Crosswalk of 2007 Availability

G.  Crosswalk of 2008 Availability

H.  Summary of Reimbursable Resources

I.  Detail of Permanent Positions by Category

J.  Financial Analysis of Program Increases/Offsets N/A

K.  Summary of Requirements by Grade

L.  Summary of Requirements by Object Class

M.  Status of Congressionally Requested Studies, Reports, and
    Evaluations N/A

I. [Overview of the Environment & Natural Resources
Division]{.underline}

A. Introduction:

*[Environment and Natural Resources Division (ENRD)
Mission]{.underline}*: ENRD's mandate is to enforce civil and criminal
environmental laws and programs protecting the health and environment of
the United States and to defend suits challenging those laws and
programs. To accomplish this mission in FY 2009, the Division is
requesting a total of \$103,093,000, including 445 General Legal
Activities (GLA) funded positions, and 499 Full-Time Equivalents (FTE).

Electronic copies of the Department of Justice's Congressional Budget
Justifications and Capital Asset Plan and Business Case exhibits can be
viewed or downloaded from the Internet using the Internet address:
<https://www.usdoj.gov/jmd/2009justification/>.

**B. Issues, Outcomes, and Strategies:**

As the Nation\'s chief environmental litigator, ENRD supports the
Justice Department's Strategic Goal Two: Enforce Federal Laws and
Represent the Rights and Interests of the American People, and Strategic
Objective 2.7: Vigorously enforce and represent the interests of the
United States in all matters over which the Department has jurisdiction.

The Division initiates and pursues legal action to enforce federal
pollution abatement laws and obtain compliance with environmental
protection and conservation statutes. ENRD also represents the United
States in all matters concerning protection, use, and development of the
nation\'s natural resources and public lands. The Division defends suits
challenging all of the foregoing laws, and fulfills the federal
government's responsibility to litigate on behalf of Indian tribes and
individual Indians. ENRD's legal successes protect the federal fisc,
reduce harmful discharges into the air, water, and land, enable clean-up
of contaminated waste sites, and ensure proper disposal of solid and
hazardous waste.

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In affirmative litigation, ENRD obtains redress for past violations
harming the environment, ensures that violators of criminal statutes are
appropriately punished, establishes credible deterrents against future
violations of these laws, recoups federal funds spent to abate
environmental contamination, and obtains money to restore or replace
natural resources damaged by oil spills or the release of other
hazardous substances into the environment. ENRD also ensures that the
federal government receives appropriate royalties and income from
activities on public lands and waters.

By vigorously prosecuting environmental criminals, ENRD spurs
improvements in industry practice and greater environmental compliance.
Additionally, the Division obtains civil penalties and fines against
violators, thereby removing the economic benefits of non-compliance and
leveling the playing field so that companies complying with
environmental laws do not suffer competitive disadvantages.

In defensive litigation, ENRD represents the United States in challenges
to federal environmental and conservation programs and all matters
concerning the protection, use, and development of the nation\'s public
lands and natural resources. ENRD faces a growing workload in a wide
variety of natural resource areas, including litigation over water
quality and watersheds, the management of public lands and natural
resources, endangered species and sensitive habitats, and land
acquisition and exchanges. The Division is increasingly called upon to
defend Department of Defense training and operations necessary to
military readiness and national defense.

Additionally, ENRD continues to defend the federal government in
lawsuits alleging the United States has breached its trust
responsibilities to Indian Tribes by failing to provide "full and
complete" historical accountings of tribal trust funds and non-monetary
trust resources, failing to administer properly tribal accounts that
receive revenues from economic activity on Tribal lands, and failing to
manage properly tribal non-monetary trust resources. As a result of a
statute of limitations which expired December 31, 2006, ENRD received a
number of new case filings in this area. Approximately 86 of the 104
currently filed cases were filed after November 2005 (some 72 cases were
filed in November and December 2006 alone). Two of the cases feature
requests to certify classes of over 250 Tribal plaintiffs. If such
requests are granted, the United States will have been sued by more than
300 Tribes. To date, we have settled two Tribal Trust cases. ENRD is
engaged in formal alternative dispute resolution (ADR) processes or
informal settlement discussions with the Tribes in 13 other cases. ENRD
is actively litigating approximately twenty of the Tribal Trust cases;
and we are only beginning to review the claims and understand the issues
involved in the 72 additional cases which were filed in the first
quarter of FY 2007. For these Tribal Trust cases, regardless of
litigation posture, the Division is obligated to identify, locate,
review, scan, manage, and produce over 400 million pages of documents
relevant to Tribal Trust fund accounts, resources, and assets.
Consequently, we expect the Tribal Trust litigation to continue in full
force for the foreseeable future.

**C. Full Program Costs:**

The Division is one single Decision Unit. Its operations include both
criminal and civil litigating activities directly related to the
strategic goals and objectives of the Department of Justice. The
methodology used to allocate expenses is based on the percentage of
hours worked on criminal and civil cases. These percentages are then
used to allocate the expenses of the Division into the two areas of
criminal and civil litigating activities. These two areas of execution
correlate directly to Strategic Objective 2.7 under the Departmental
Strategic Goal Two: Vigorously enforce and represent the interests of
the United States in all matters over which the Department has
jurisdiction.

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**D. Performance Challenges:**

*[External Challenges]{.underline}*

The Division has limited control over the filing of defensive cases,
which make up the majority of our workload. Court schedules and
deadlines drive the pace of work and attorney time devoted to these
cases. ENRD's defensive caseload is expected to increase in FY 2009 as a
result of numerous factors.

-   The 76 newly filed Tribal Trust cases in the first quarter of FY
    2007 will have a profound impact on ENRD's caseload in FY 2009, as
    these cases mature and enter the discovery and trial phases of
    litigation.

-   ENRD expects a number of challenges to the simplified energy
    development and permitting provisions of the 2005 Energy Policy Act.
    Based on ENRD's past experience -- in the 1970s and 1980s, the
    Interior Department conducted offshore oil and gas lease sales in
    nearly all coastal regions of the continental U.S. and in Alaska --
    we realize that sizeable, energized leasing programs result in
    sizeable increases in case work.

-   Hurricane Katrina-related inverse condemnation (Fifth Amendment
    takings) lawsuits have the potential to inundate ENRD's workforce.
    These non-discretionary cases (which have a 6-year limitation on
    filing \[i.e., until August 2011\], rather than 2-year limitation
    period for tort claims under the FTCA), largely claim that the
    construction of defective levees, the failure to erect a levee
    system capable of withstanding a Category 5 hurricane, or other
    actions/projects undertaken by the Army Corps of Engineers resulted
    in a "taking" of real property under the Fifth Amendment.

-   Additionally, beginning in late FY 2008, Indian and other federal
    water rights adjudications currently stayed for settlement
    negotiations are expected to resume.

The Division also will be responsible for handling cases that arise from
the Administration's focus in other environment arenas, such as white
collar environmental crimes. Prosecution of white collar crimes and
corporate fraud is one of the Attorney General's six stated priorities;
and casework involving the prosecution of corporations and corporate
executives may impose a greater-than-expected workload demand on the
Environment Division in FY 2009 and beyond. ENRD realized a number of
legal victories in the area of white collar environmental crimes in FY
2007 (described in the Accomplishments section of this Performance
Budget), and we foresee more investigative and litigative activity in
the immediate future. Although we expect an increased workload in the
area of white collar criminal litigation, we are not seeking a program
enhancement in this area for FY 2009 because we believe offsetting
resource demands will allow us to accommodate prospective needs from our
base.

***[Internal Challenges]{.underline}***

ENRD's overwhelming internal challenge is to ensure sufficient attorney
FTEs and dollars to carry out the increasing demands of our defensive
workload. ENRD will continue to face other internal challenges related
to the effort of balancing available personnel and resources against
workload demands.

Another challenge involves maintaining adequate information technology
resources for our workforce. Like other litigating components, ENRD must
provide computer resources for our attorneys that meet the changing,
increasingly technological demands of the legal industry. With the
introduction of new technologies and new requirements -- such as
e-filing, on-line document repositories, electronic trials, extranet
docketing systems, etc. -- we need to continually provide our workforce
with the necessary hardware and systems to accommodate these business
process challenges.

The most significant information technology system challenge which will
confront ENRD in FY 2009 is expected to be the Department's Litigation
Case Management System (LCMS). LCMS is a shared case management system
for the Executive Office of United States Attorneys, the 94 United
States Attorneys Offices, the Civil Division, the Civil Rights Division,
the Environment and Natural Resources Division, the Criminal Division,
the Tax Division, and the Antitrust Division. This new, unified system
is intended to provide accurate, timely, and useful data for all end
users and managers across the seven Department of Justice litigating
divisions. Implementation of LCMS is expected to be an expensive and
time-consuming initiative in FY 2009. Based on information provided by
DOJ's Office of the Chief Information Officer (LCMS PMO), ENRD will be
required to contribute significant sums of money and personnel resources
in FY 2009 and subsequent years in order to implement and administer
this required system. The required expenditures will pay for software
license fees and ENRD\'s share of the costs of the Justice Data Center
(JDC), LCMS PMO, and contractor support services. We expect to incur
significant additional costs in FY 2009 in the conversion and testing of
data and reports from our old case management system to the new case
management system.

The Division will complete its business process assessment and common
data model planning for LCMS in early FY 2008. Throughout the rest of FY
2008, we will begin mapping data, prioritizing reports, building
conversion tools, migrating data, and cleaning up conversion/migration
discrepancies. And in FY 2009, we will engage in testing, full
implementation, and final roll-out of the system. This sizeable endeavor
will require the effort and attention of existing government employees
as well as the specialized expertise and supplemental labor of industry
consultants and/or contractor resources.

To access the Exhibit 300 submission for ENRD and other DOJ components,
please go to:
[**http://www.usdoj.gov/jmd/2009justification/exhibit300/**](http://www.usdoj.gov/jmd/2009justification/exhibit300/).

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**IV. Decision Unit Justification**

**[A. Environment and Natural Resources Division]{.underline}**

  --------------------------------------- ---------- ------ --------------
  FY 2009 Request Summary                 Perm. Pos. FTE    Amount (\$000)

  2007 Enacted with Rescissions           436        490    \$ 95,093

  2007 Enacted with Rescissions and       436        490    95,093
  Supplementals                                             

  2008 Enacted                            445        495    99,365

  Adjustments to Base and Technical       \-         4      3,728
  Adjustments                                               

  2009 Current Services                   445        499    103,093

  2009 Program Increases                  \-         \-     \-

  2009 Request                            445        499    103,093

  Total Change 2008-2009                  \-         4      \$ 3,728
  --------------------------------------- ---------- ------ --------------

**1. [Program Description]{.underline}**

Number range CHAPTERAs stated in the Department of Justice Strategic
Plan, ENRD works to:

-   Investigate and prosecute environmental crimes, including both
    wildlife and pollution violations;

-   Pursue cases against those who violate laws that protect public
    health, the environment, and natural resources;

-   Defend U.S. interests against suits challenging statutes and agency
    actions;

-   Develop constructive partnerships with other federal agencies, state
    and local governments, and interested parties to maximize
    environmental compliance and stewardship of natural resources;

-   Act in accordance with United States trust responsibilities to
    Indian tribes and individual Indians in litigation involving the
    interests of Indians.

The Division focuses on both civil and criminal litigation regarding the
defense and enforcement of environmental laws and regulations. The
Division serves as the nation's environmental litigator and represents
many federal agencies in environmental litigation (e.g., the
Environmental Protection Agency, Department of Agriculture, Department
of the Interior, Department of Defense, and Department of Homeland
Security.)

As the nation's chief environmental litigator, ENRD strives to obtain
compliance with environmental and conservation statutes. To this end, we
seek to obtain redress of past violations that harmed the environment,
establish credible deterrence against future violations of these laws,
recoup federal funds spent to abate environmental contamination, and
obtain money to restore or replace natural resources damaged through oil
spills or the release of other hazardous substances. The Division
ensures illegal emissions are eliminated, leaks and hazardous wastes are
cleaned up, and drinking water is safe. Our actions, in conjunction with
the work of our client agencies, enhance the quality of the environment
in the United States and the health and safety of its citizens.

Civil litigating activities include cases where ENRD defends the United
States in a broad range of environmental litigation and enforces the
nation's environmental laws. The majority of the Division's cases are
defensive or non-discretionary in nature. They include claims alleging
noncompliance with federal, state and local pollution control and
natural resource laws. Civil litigating activities also involve the
defense and enforcement of environmental statutes such as the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), the Clean Air Act (CAA), the Clean Water Act (CWA), the
National Environmental Policy Act (NEPA), and the Endangered Species Act
(ESA).

The Division defends Fifth Amendment taking claims brought against the
United States alleging that federal actions have resulted in the taking
of private property without payment of just compensation, thereby
requiring the United States to strike a balance between the interests of
property owners, the needs of society, and the public fisc. ENRD also
prosecutes eminent domain cases to acquire land for congressionally
authorized purposes ranging from national defense to conservation and
preservation. Furthermore, the Division assists in fulfillment of United
States trust responsibilities to Indian Tribes. ENRD is heavily involved
in defending lawsuits alleging the United States has breached trust
responsibilities to Tribes by mismanaging Tribal natural resources and
failing to properly administer accounts that receive revenues from
economic activity on Tribal lands. The effectiveness of our defensive
litigation is measured by percent of cases successfully resolved and
savings to the federal fisc. These results can be seen in the
Performance and Resources Table contained in this submission.

Criminal litigating activities focus on identifying and prosecuting
violators of laws protecting wildlife, the environment, and public
health. These cases involve issues such as fraud in the environmental
testing industry, smuggling of protected species, exploitation and abuse
of marine resources through illegal commercial fishing, and related
criminal activity. ENRD enforces criminal statutes designed to punish
those who pollute the nation's air and water; illegally store, transport
and dispose of hazardous wastes; illegally transport hazardous
materials; unlawfully deal in ozone-depleting substances; and lie to
officials to cover up illegal conduct. The effectiveness of criminal
litigation is measured by the percentage of cases successfully resolved.
These results can also be seen in the Performance and Resources Table
contained in this submission.

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**ACCOMPLISHMENTS**

In FY 2007, ENRD successfully litigated 881 cases while working on a
total of 5,459 cases and matters. The estimated value of federal
injunctive relief (i.e., clean-up work and pollution prevention actions
by private parties) as a result of cases litigated by ENRD in FY 2007
was \$6.7 billion. In addition, as a result of ENRD's affirmative civil
and criminal enforcement efforts, the Division imposed \$480 million in
civil penalties, cost recoveries, criminal fines, restitutions and
criminal supplemental sentences in FY 2007. ENRD achieved a favorable
outcome in 96 percent of cases resolved. Below are notable successes
from the Division's civil and criminal litigation dockets.

**Civil Cases**

-   ***Tribal Trust Cases***

The extraordinarily complex and multifaceted Tribal Trust Cases continue
to command a large portion of ENRD's time and resources. Over the past
several months, the Division has engaged in a number of activities,
including ADR and settlement, to defend the government's interests
against 104 filed claims of trust mismanagement. In response to a
December 31, 2006 deadline for the filing of certain claims, 72 of the
current 104 cases were filed in the first quarter of FY 2007. This
"filing frenzy" has required an immense amount of coordination,
research, communication, and motions practice over the past several
months. The substantial activity in the Tribal Trust cases has also
required the identification, acquisition, and propagation of volumes of
discovery and related litigation documents. Through the end of FY 2007,
ENRD has acquired, processed, and produced over 28 million pages of
tribal records relevant to the 104 Tribal Trust cases.

-   ***Cobell/Tribal Trust Settlement Legislation***

ENRD has been actively involved in developing the Administration's
proposal to settle the *Cobell* and Tribal Trust litigation and to
improve management of Indian trust assets. There have been numerous
activities on this front during FY 2007, including (1) preparation and
transmission of a letter from Attorney General Gonzales and Secretary
Kempthorne to key Congressional leaders on the settlement proposal, and
(2) a hearing at which the Associate AG testified in support of the
proposal. We expect to continue to be involved in these matters in FY
2009. Personnel from various ENRD litigating sections have come together
to help shoulder some of the burden of newly-filed Tribal Trust cases;
one Law & Policy Section (LPS) attorney has taken on some tribal trust
work, and another will be taking on a Natural Resources Section (NRS)
case to enable NRS to reallocate its assignments to accommodate the
newly-filed tribal trust cases.

-   *Number range CHAPTER**Helping to Ensure National Security***

In FY 2007, tNumber range CHAPTERhe Division filed new cases for such
diverse military installations as the Navy's Air Facility, El Centro;
the Harvey Point Defense Testing Facility; the Naval Computer and
Telecommunications Area Master Station; the Army's Gowen Field Training
Area in Idaho; and the Air Force's Seymour Johnson Air Force Base and
Travis Air Force Base*.* In addition, ENRD continued its litigation
efforts in existing cases such as that involving property at Eielson Air
Force Base in Alaska, a case which concerns complex lease issues arising
from the military's "section 801 housing" project, pursuant to which the
military leased land on installations to private developers who
constructed military housing that was leased back to the military.

-   ***Resolving Historic Indian Claims Commission Litigation***

The Environment Division resolved the final remaining action by a tribe
filed with the Indian Claims Commission (ICC), which was constituted in
1946 and retired in 1978, in the case of *Pueblo de San Ildefonso v.
United States*. The "Pueblo de San Ildefonso Claims Settlement Act of
2005,\" which was necessary to implement our negotiated settlement,
became law in September 2006. The final hearing before the Court of
Federal Claims occurred in the first quarter of FY 2007, at which time
Pueblo representatives and the United States executed stipulations and
the court entered final judgment. The settlement resolves the last of
615 petitions for compensation for historic wrongs filed by tribes with
the Indian Claims Commission. Also, in *Pueblo of Isleta v. United
States*, the Division completed a favorable settlement in an action
brought under a Special Jurisdictional Act for a Pueblo that failed to
file an action with the Indian Claims Commission. The court entered
judgment in FY 2007, ending what appears to be the last of the historic
Indian claims docket at the Court of Federal Claims.

-   ***Clean Air Act Enforcement***

Number range CHAPTERDuring the past year, ENRD continued to successfully
litigate Clean Air Act (CAA) claims against operators of coal-fired
electric power generating plants. The violations arose from companies
engaging in major life extension projects on aging facilities without
installing required state of the art pollution controls, resulting in
tens of millions of tons of excess air pollution that has adversely
affected the health of the elderly, the young, and asthma sufferers,
degraded forests, damaged waterways, and contaminated reservoirs. This
year, the Division achieved a notable Supreme Court victory upholding
the Environmental Protection Agency (EPA) interpretation of the CAA that
underlies many of these enforcement efforts. In *Environmental Defense
v. Duke Energy Corp.,* the Supreme Court, in a 9-0 decision, agreed with
the United States that the lower courts had impermissibly reviewed the
validity of EPA's Prevention of Significant Deterioration (PSD)
regulations, which they lacked authority to do under the CAA.

In *United States v. East Kentucky Power Cooperative*, ENRD obtained a
consent decree that resolved claims under the CAA's New Source Review
(NSR)/PSD provisions, under which EKPC agreed to system-wide tonnage
limits on its emissions of SO^2^ and NOx reducing annual emissions by
approximately 50,000 tons per year. In *United States v. Wisconsin
Electric Power Company*, the district court entered an amended consent
decree, nearly four years after its lodging. This system-wide power
plants settlement requires WEPCO to install pollution control equipment
at an estimated cost of \$620 million and pay a \$3.1 million civil
penalty. The Division also obtained the first consent decree with an
electric utility, Nevada Power Co., for violations at a gas-fired plant.
Pursuant to the consent decree, Nevada Power will install approximately
\$60 million in pollution controls to secure significant reductions of
NOx from four of its operating units. The settlements achieved thus far
will, when fully implemented, remove almost two million tons of
pollutants from the air each year.

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-   ***Addressing Air Pollution From Oil Refineries***

Number range CHAPTERThe Division also made progress in its national
initiative to combat CAA violations within the petroleum refining
industry by obtaining consent decrees with three more refiners: Total
Petrochemical USA Inc., Valero Energy Corporation, and Hunt Refining Co.
Total agreed to pay a \$2.9 million penalty and upgrade pollution
controls to resolve claims under the CAA. The changes to its facility,
estimated to cost \$37 million, will significantly reduce the facility's
emissions of air pollutants, ultimately reducing annual emissions of
NOx, SO~2~, and carbon monoxide by more than 180, 800, and 120 tons,
respectively. Valero agreed to pay a \$4.25 million penalty and install
\$232 million worth of new and upgraded pollution controls at refineries
in three states. The controls will eventually reduce annual emissions of
NOx and SO~2~ by more than 1,870 and 1,810 tons per year, respectively,
and will result in additional reductions of carbon monoxide, volatile
organic compounds, and particulate matter from each of the refineries.
Valero will also spend \$1.6 million on mitigation projects. Hunt agreed
to pay a \$400,000 civil penalty and spend more than \$48.5 million for
new and upgraded pollution controls at three refineries to resolve
claims under the CAA. The work is expected to reduce more than 1,250
tons of harmful emissions annually from the company's refineries. The
States of Alabama and Mississippi joined in the settlements.

With these settlements, ENRD's petroleum refinery enforcement initiative
will have addressed more than 92 individual refineries -- comprising
approximately 85% of the nation's refining capacity -- and will reduce
air pollutants by more than 325,000 tons a year.

-   ***Enforcement of the Clean Water Act Through Publicly Owned Sewer
    Cases***

Number range CHAPTERThrough its aggressive national enforcement program,
ENRD continued to protect the nation's waterways by ensuring the
integrity of municipal wastewater treatment systems. The Division lodged
a consent decree with the City of Indianapolis, resolving claims
relating to discharges from the City's sanitary sewers and overflows
(SSOs) from the portions of its sewer system where storm water and
sanitary sewage are combined (CSOs). The City will implement a long-term
control plan at an estimated cost of \$1.86 billion, perform a pollution
reduction SEP valued at \$2 million, and pay a civil penalty of \$1.17
million. In a landmark settlement with federal, state, and county
authorities, the defendant in *United States v. Allegheny County
Sanitary Authority* agreed to a comprehensive plan to greatly reduce the
annual discharge of billions of gallons of untreated sewage into local
waterways. ALCOSAN has agreed to a multi-year strategy to upgrade the
sewage systems serving Pittsburgh and 82 surrounding municipalities at a
cost in excess of \$1 billion. The settlement also requires ALCOSAN to
pay a \$1.2 million penalty for past CWA violations, and to undertake
\$3 million in environmental projects.

-   ***Enforcement Under Comprehensive Environmental Response,
    Compensation and Liability Act ("CERCLA" or "the Superfund Act")***

Number range CHAPTERThe Environment and Natural Resources Division
secured the commitment of responsible parties to clean up additional
hazardous waste sites, at costs estimated in excess of \$270 million,
and recovered approximately \$200 million for the Superfund to help
finance future cleanups. Examples of some of the major Superfund cases
resolved by the Division this year include: *United States v. Kennecott
Utah Copper Corporation* (defendant to spend approximately \$15 million
to remedy groundwater contamination caused by past mining operations at
the Bingham Canyon mine in Utah); *United States v. MidAmerican Energy
Company* (defendants to pay \$4.6 million in past costs and assist EPA's
response actions at the LeMars Coal Gas Superfund site in Iowa); *United
States v. Frazer Exton Development Corp.* (defendant to perform \$22
million remedial action and pay 50% of EPA's unreimbursed costs at the
Foote Mineral Superfund site in Chester, PA); *United States v. Exxon
Mobil Corporation* (101 defendants to ensure a site-wide \$48 million
cleanup of the Beede Waste Oil site in Plaistow, NH, pay more than \$9
million for future federal and state oversight costs, and \$17 million
in past federal and state response costs); *United States v. EPEC
Polymers, Inc.* (defendant to remediate two of the three remaining known
contaminated areas of the Turtle Bayou site in Liberty County, TX, at an
estimated cost of \$13.4 million; reimburse the United States for \$6.9
million of past costs and interim costs estimated at \$1 million; and
pay the United States' future response costs, estimated at \$2.1
million).

-   *Number range CHAPTER**Defending the Constitutionality of the
    Superfund Law***

In addition to its enforcement actions to secure the cleanup of
hazardous waste sites, the Division has also successfully defended
lawsuits aimed at interfering with cleanup actions by EPA and other
federal agencies. For example, in *United States v. Capital Tax Corp.,*
a Superfund cost recovery and penalty action involving the National
Lacquer and Paint site in Chicago, the defendant brought counterclaims
alleging an EPA pattern and practice of unconstitutional implementation
of its administrative order authority under section 106 of CERCLA. The
Division prevailed on a motion to dismiss. The court found that the
company lacked standing and, in the alternative, that there is no due
process violation because the unilateral administrative order recipient
gets a pre-deprivation hearing, thus upholding the constitutionality of
key enforcement.

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-   ***Defending Fish and Wildlife Service's Endangered Species Act
    Listing/Critical Habitat Program***

Number range CHAPTERThe Endangered Species Act (ESA) requires either the
Fish and Wildlife Service (FWS) or the National Marine Fisheries Service
(NMFS), depending on the species, to determine whether a species should
be listed as endangered or threatened under a set of five criteria and
to designate critical habitat for listed species. In FY 2007, we had
notable success defending such determinations. In *Alabama-Tombigbee
Rivers Coalition v. Kempthorne***,** the Eleventh Circuit rejected an
industry trade group's challenges to the FWS's listing of the Alabama
Sturgeon under the ESA as an endangered species. The court found that
there was substantial evidence in the record that the Alabama sturgeon
was not the same fish as the shovelnose sturgeon, a much more plentiful
species. In *American Wildlands et al. v. Norton et al.*, the court
upheld a FWS listing determination for the westslope cutthroat trout on
the basis that the Service's use of morphological data, as well as
genetic data, to identify the species was reasonable. In *National
Association of Homebuilders v. Kempthorne*, the court agreed with the
Division's argument that the FWS's decision not to list the pygmy owl
was reasonable, where the population in the United States was peripheral
to a large pygmy-owl population in northern Mexico. In *Home Builders of
N. Cal. v. FWS,* the court upheld FWS's designation of critical habitat
for 15 vernal pool species, where certain California lands had been
excluded because they already had adequate management plans. In *Alsea
Valley Alliance v. Lautenbacher*, the Division prevailed against a
challenge to the NMFS's decision to list 16 "Evolutionarily Significant
Units" of salmon.

-   *Number range CHAPTER**Protecting the Nation's Wetlands ***

Number range CHAPTERIn June 2006, the Supreme Court issued a splintered
opinion in *Rapanos v. United States* on the extent of federal
jurisdiction under the Clean Water Act (CWA) to regulate wetlands and
upstream tributaries of navigable waters. In numerous cases in district
and appellate courts during FY 2007, the Division has litigated the
meaning of the *Rapanos* decision and the extent of federal regulatory
jurisdiction. After *Rapanos*, the Sixth Circuit Court of Appeals
remanded *United States v. Cundiff*, a civil enforcement action for the
illegal filling of wetlands, to the district court, which ruled that the
United States had established jurisdiction over the defendants' wetlands
based on both the test enunciated by the plurality and the test put
forth in Justice Kennedy's concurring opinion in *Rapanos*. The court
ordered defendants to perform the government's proposed restoration
plan.

*United States v. Fabian* is a CWA civil enforcement action in
connection with the unauthorized filling of wetlands located along the
Little Calumet River in Indiana. The Division obtained a favorable
decision on summary judgment in this case. The court found that the
United States had demonstrated that defendant's property contained
wetlands that were within federal jurisdiction under the CWA and that
defendant had added pollutants to the wetlands. In *United States v.
Bailey*, the Division worked with the U.S. Attorney's Office to obtain a
favorable ruling in a civil enforcement action for violations of the CWA
in wetlands adjacent to Lake of the Woods in Minnesota. The defendant
constructed a one-quarter mile long road in wetlands abutting the lake.
In granting summary judgment for the government, the court held that the
United States can establish regulatory jurisdiction under either Justice
Scalia's plurality opinion, or Justice Kennedy's concurring opinion in
*Rapanos*.

-   ***Successfully Defending the U.S. Army Corps of Engineers' Clean
    Water Act Permits***

Number range CHAPTERENRD successfully defended permitting decisions by
the Corps under Section 404 of the CWA in a number of cases. In *Natural
Resources Defense Council v. Army Corps of Engineers*, plaintiffs
challenged a regional general permit issued by the Corps regulating
discharges of dredged and fill material into waters of the United States
in a 48,000-acre area in the Florida Panhandle. The Division prevailed
on summary judgment. *Bering Strait Citizens v. Army Corps of Engineers*
was a challenge to a CWA permit issued in connection with the
construction and operation of the Rock Creek Mine/Mill Complex and the
Big Hurrah Mine, near Nome, Alaska. The Division successfully defended
the permit. In *Friends of Magurrewock v. Army Corps of Engineers*, the
Division defeated a motion for preliminary injunction seeking to enjoin
a Corps permit issued to the Maine Department of Transportation to fill
6.8 acres of wetlands and riverbed in connection with the construction
of an international border crossing between Calais, Maine, and St.
Stephen, New Brunswick. The district court found that the Corps had
reasonably assessed practicable locations for the international border
crossing and reasonably concluded that impacts of the bridge on a nearby
wildlife refuge were speculative.

-   ***Protecting the Federal Fisc -- Royalties Due to the United
    States***

Number range CHAPTERIn *BP America Production Co. v. Burton*, oil and
gas companies that hold federal oil and gas leases on which they owe
production royalties to the federal government argued that the Interior
Department's Minerals Management Service (MMS) could not enforce orders
to the companies to reaudit past payments for inadequacies for more than
the six-year period in the general statute of limitations in 28 U.S.C.
2415(a). The Supreme Court disagreed, holding that the limitations
period pertained only to damage actions founded on contracts brought by
the United States, not to an agency's issuance of administrative orders.
This holding will require the oil companies involved in the law suit to
reaudit their accounts for the years 1989-1996 and could potentially
result in tens of millions of dollars of royalty payments owed to the
federal government.

![](media/image16.jpeg){width="5.746527777777778in"
height="1.788888888888889in"}

**Criminal Cases**

-   Number range CHAPTER***Vessel Pollution Cases***

The Vessel Pollution Initiative is an ongoing, concentrated effort to
detect, deter, and prosecute those who illegally discharge pollutants
from ships into the oceans, coastal waters and inland waterways. The
Division continues to have great success prosecuting deliberate
violations. In *United States v. Overseas Shipholding Group*, the
defendant pled guilty to and was sentenced on charges that it engaged in
conspiracy, obstructed justice, made false statements, and violated the
Act to Prevent Pollution from Ships (APPS) and the Clean Water Act, as
amended by the Oil Pollution Act of 1990. The offenses -- involving
twelve OSG oil tankers -- involved intentional falsification of oil
record books to conceal the discharge of sludge and oil contaminated
waste, as well as bypassing required pollution prevention equipment. OSG
was sentenced to pay a total of \$37 million in penalties, the
largest-ever penalty involving deliberate vessel pollution, to serve a
three-year term of probation, and to implement a stringent environmental
compliance plan.

In *United States v. Pacific Gulf Marine, Inc.*, the defendant, an
American shipping company, pled guilty to four APPS violations involving
the illegal discharge of hundreds of thousands of gallons of
oil-contaminated bilge waste from four of its ships. PGM was sentenced
to pay a \$1 million fine, to pay \$500,000 to fund environmental
projects on the Chesapeake Bay and provide environmental education, to
complete a three-year term of probation, and to implement an
environmental compliance plan. In *United States v. Ionia Management
S.A., et al.*, the defendant company, a Greek operator, was convicted by
a jury on 18 counts, including falsifying records and presenting false
oil record books to the Coast Guard, for overboard dumping of waste oil
into international waters. In *United States v. Petraia Maritime Ltd.,
et al.*, the defendant, a Swedish owner and operator of the *M/V Kent
Navigator*, was convicted on three APPS violations for failure to
maintain an accurate oil record book. Coast Guard investigators
discovered evidence of illegal bilge waste discharges and concealment of
the discharges.

In *United States v. Chian Spirit Maritime Enterprises*, *Inc., et al.
al.*, the named defendant and its Greek owner/operator each pled guilty
to one APPS violation, and each was sentenced to pay \$1.25 million for
misleading Coast Guard investigators during an inspection of the *M/V
Irene* *E.M.* In *United States v. Kassian Maritime Navigation Agency
Ltd., et al.*, the corporate defendant pled guilty to one APPS violation
for maintaining a false oil record book and was sentenced to pay a \$1
million fine, to serve 30 months probation, and to pay \$300,000 to fund
community service projects. In *United States v. Nicanor Jumalon et
al.,* the defendant, captain of the *M/V Sportsqueen*, pled guilty to
obstruction of justice and was sentenced to serve eight months in prison
for illegally dumping oil-contaminated ballast water from the ship. The
India-based shipping company, Accord Ship Management Inc., pled guilty
and was sentenced to pay a \$1.75 million fine and serve a three-year
term of probation for conspiracy, an APPS violation, and two counts of
obstruction for dumping sludge, bilge wastes, and oil contaminated
ballast water from the ship. The Chief Engineer also pled guilty to two
obstruction violations and was sentenced to serve five months
incarceration.

-   ***Enforcing the Laws Protecting Wildlife***

Number range CHAPTERIn *United States v. James Miller, et al.*, the
defendant and his son each pled guilty for their roles in running a
big-game hunting guide operation in Alaska between 1999 and 2001. Miller
pled guilty to one felony Lacey Act charge and one felony false
statement charge and was sentenced to serve 18 months' incarceration
followed by a three-year term of probation. He also will forfeit his
Super Cub aircraft, a hunting rifle, and several hunting trophies. His
son was previously sentenced. In *United States v. Antonio Vidal Pego,
et al.*, Pego and Vadilur S.A., a Uruguayan corporation, each pled
guilty to and was sentenced on charges involving the illegal importation
of Patagonian and Antarctic toothfish (also known as Chilean Sea Bass).
The government seized more than 53,000 pounds of toothfish, valued at
\$314,397. Pego pled guilty to obstruction of justice and was sentenced
to serve a four-year term of probation and pay a \$400,000 fine. Vadilur
pled guilty to false labeling, importation of illegally possessed fish,
and attempted sale of those fish. The company was sentenced to a
four-year term of probation and ordered to pay a \$100,000 fine, cease
all corporate activities, and dissolve as a business.

In *United States v. Jan Swart, d/b/a Trophy Hunting Safaris, et al.
al.,* Swart, a South African big-game outfitter, pled guilty to one
felony smuggling violation, and was sentenced to serve 18 months'
incarceration followed by a three-year term of probation. The charge
stems from his involvement in a scheme to import five hides and three
skulls of leopards illegally killed in South Africa and smuggled to
Zimbabwe, before being imported through Denver. In *United States v.
Jeffrey Diaz,* the defendant pled guilty on November 28, 2006, to two
felony smuggling counts and two felony false statement counts for
smuggling 12 Australian Eagle Owl eggs, and lying about it on customs
forms. He was sentenced to serve 21 months' incarceration, followed by a
three-year term of probation, and pay a \$5,000 fine. The smuggling of
the fertile eggs into the United States from Australia without the
required quarantine period posed a tangible threat of disease
transmission to humans, including bird flu, as well as a threat to the
commercial poultry industry in the form of Newcastles Disease.

In *United States v. Panhandle Trading Inc., et al.,* two corporate and
one individual defendant pled guilty to conspiracy to violate the Lacey
Act and conspiracy to commit money laundering, for their roles in an
illegal catfish importation scheme. The individual was sentenced to
serve 51 months' incarceration followed by a three-year term of
supervised release. Both companies will complete five-year terms of
probation, and all three defendants will be held jointly and severally
liable for \$1,139,275 in restitution to the Department of Homeland
Security.

-   ***Prosecuting Clean Water Act Violations***

Number range CHAPTERIn *United States v. Moses*, the defendant, an Idaho
real estate developer used a bulldozer and other heavy equipment to
channelize and reroute Teton Creek in an attempt to prevent periodic
flooding of an adjacent subdivision that he had developed. When he
continued these actions despite repeated orders to stop from state and
federal officials, he was indicted for multiple violations of the Clean
Water Act (CWA). He was convicted and sentenced to 18 months in prison
and fined \$9,000. In *United States v. Sinclair Tulsa Refining Company,
et al.,* the defendant, a subsidiary of Sinclair Oil, pled guilty to two
felony CWA violations. Two company managers each pled guilty to one
felony CWA count for manipulating the sampling and discharges of
wastewater into the Arkansas River in violation of Sinclair's NPDES
permit. Sinclair was sentenced to pay a \$5 million fine, pay \$500,000
to fund a community service project on the Arkansas River, and serve a
two-year term of probation. In *United States v. Acquity Specialty
Products, et al.*, the defendant pled guilty to one CWA violation and
was sentenced to pay a \$3.8 million fine and complete a three-year term
of probation. Acquity admitted that from September 1998 until November
2002, while inspectors conducted sampling, employees altered the
wastewater flow in order to distort the sampling results. The Director
of Environmental Compliance pled guilty to conspiracy to violate the CWA
and was sentenced to pay a \$5,000 fine and serve a five-year term of
probation.

-   ***Prosecuting Hazardous Waste and Clean Air Act Violations***

Number range CHAPTERIn *United States v. Dennis Rodriguez*, the
defendant, president and chief operator of North American Waste
Assistance, pled guilty to three Resource Conservation and Recovery Act
(RCRA) violations, and was sentenced to five months incarceration,
followed by five months of house arrest, and a two-year term of
probation. Rodriguez generated a manifest that stated 84 drums contained
"Non RCRA, Non-regulated hazardous waste" when the drums actually
contained an expired petroleum-based compound which was an ignitable
hazardous waste. Using the false manifest, he delivered the waste to
non-RCRA landfills**.** In *United States v. Dylan Starnes, et al.,* the
defendant, who had been convicted in 2005 on 15 counts, including Clean
Air Act (CAA) and false statement violations, was sentenced to serve 33
months' incarceration, followed by a three-year term of probation.
Starnes and his co-defendant did not follow asbestos work practice
regulations, and filed false air monitoring reports related to a
remediation project in a HUD-funded housing project. In *United States
v. Citgo Petroleum Corporation, et al.*, Citgo Petroleum and Citgo
Refining and Chemical Company were convicted on two CAA violations.
Between 1994 and 2003, the defendants operated tanks that contained oil
without installing the proper emission controls. Citgo Refining and
Chemical Company was also convicted on three misdemeanor violations of
the Migratory Bird Treaty Act. The tanks attracted migratory birds,
several of which (including cormorants, pelicans, and several species of
ducks) were killed after they landed in the open tanks and became
trapped in the oil.

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height="1.788888888888889in"}

2.  **[Performance and Resources Table]{.underline}**

![](media/image18.wmf){width="9.797222222222222in" height="6.50625in"}

**[Performance and Resources Table (Cont.)]{.underline}**

![](media/image19.wmf){width="9.797222222222222in"
height="4.579861111111111in"}

**[Performance Measure Table]{.underline}**

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height="3.9631944444444445in"}

**3. [Performance, Resources, and Strategies]{.underline}**

> The Environment and Natural Resources Division contributes to the
> Justice Department's Strategic Goal Two: Prevent Crime, Enforce
> Federal Laws, and Represent the Rights and Interests of the American
> People; and, more specifically, Strategic Objective 2.7: Vigorously
> enforce and represent the interests of the United States in all
> matters over which the Department has jurisdiction. The Division
> focuses on both civil and criminal litigation within this strategic
> objective. An explanation by litigating activity follows.

![](media/image21.jpeg){width="5.746527777777778in"
height="1.788888888888889in"}

**Criminal Litigating Activities**

***A. Performance Plan and Report for Outcomes***

> Vigorous prosecution remains the cornerstone of the Department's
> integrated approach to ensuring broad-based environmental compliance.
> It is the goal of investigators and prosecutors to discover and
> prosecute criminals before they have done substantial damage to the
> environment (including protected species), seriously affected public
> health, or inflicted economic damage on consumers or law-abiding
> competitors. The Department's environmental protection efforts depend
> on a strong and credible criminal program to prosecute and deter
> future wrongdoing. Highly publicized prosecutions and tougher
> sentencing for environmental criminals are spurring improvements in
> industry practice and greater environmental compliance. Working
> together with federal, state and local law enforcement, the Department
> is meeting the challenges of increased referrals and more complex
> criminal cases through training of agents, officers and prosecutors,
> outreach programs, and domestic and international cooperation.

**Performance Results**

**I. [Performance Measure]{.underline} - Percent of Criminal
Environmental Cases Successfully Resolved \[ENRD Only\]**

-   ***FY 2007 Target: 85%***

-   ***FY 2007 Actual: 94%***

-   ***FY 2007 ENRD Resources Expended: \$9.95 million***

> [Discussion:]{.underline} FY 2007 proved to be a very strong year for
> criminal enforcement in ENRD's Environmental Crimes Section (ECS).
> Through the end of the fiscal year, the Environmental Crimes Section
> successfully prosecuted 110 defendants, achieving a 94% success rate,
> and imposing criminal fines and penalties totaling over \$203 million.
> Successes include one of several vessel pollution cases successfully
> litigated by ENRD in which the company agreed to pay \$37 million in
> penalties, the largest-ever penalty involving deliberate vessel
> pollution. The company responsible, Overseas Shipholding Group, was
> also required to serve a three-year term of probation and required to
> implement a stringent environmental compliance plan.
>
> The Division also logged a number of successes involving criminal
> prosecution of federal wildlife laws. In one case of note, *United
> States v. Antonio Vidal Pego, et al.*, Pego and Vadilur S.A., a
> Uruguayan corporation, each pled guilty to and was sentenced on
> charges involving the illegal importation of Patagonian and Antarctic
> toothfish (also known as Chilean Sea Bass). The government seized more
> than 53,000 pounds of toothfish, valued at \$314,397. Pego pled guilty
> to obstruction of justice and was sentenced to serve a four-year term
> of probation and pay a \$400,000 fine. Vadilur pled guilty to false
> labeling, importation of illegally possessed fish, and attempted sale
> of those fish. The company was sentenced to a four-year term of
> probation and ordered to pay a \$100,000 fine, cease all corporate
> activities, and dissolve as a business.

[FY 2007 Performance Plan Evaluation:]{.underline} Based on the
end-of-the-fiscal-year performance data, we exceeded our original goal
by 9 percent for FY 2007.

> [FY 2008/2009 Performance Plan:]{.underline} Considering our past
> performance, we have increased our targets to 90 percent of cases
> successfully litigated in FY 2008 and FY 2009. ENRD targets are set
> lower than the actual performance so that there is no incentive to
> ramp up prosecutions or lawsuits against insignificant targets for
> "easy" wins solely to meet higher targets. Such an approach would do a
> disservice to the public by steering litigation away from more
> complicated problems facing the country's environment and natural
> resources. The past eight years of data demonstrates that our targets,
> set at achievable levels, have not deterred high performance as shown
> in the actual successes.
>
> [Public Benefit:]{.underline} The Division continues to produce
> successful criminal prosecutions relating to environmental statutes.
> These successes ensure compliance with the law and lead to specific
> improvements in the quality of the environment of the United States,
> and the health and safety of its citizens. Additionally, ENRD has had
> numerous successes in prosecuting vessels for illegally disposing of
> hazardous materials into United States waterways. These successes have
> improved the quality of our waterways and promoted compliance with
> proper disposition of hazardous materials. Also, the Division has
> successfully prosecuted numerous companies for violations of
> environmental laws which endangered their workers. Our successes lead
> to safer workplaces and fewer lives lost to hazardous conditions.

**II. [Performance Measure]{.underline} - \$ Awarded in Criminal
Environmental Cases \[ENRD Only\]**

-   ***FY 2007 Target: In accordance with Department guidance, targeted
    levels of performance are not projected for this indicator.***

-   ***FY 2007 Actual: \$203.3 million***

> [Discussion:]{.underline} Successes in FY 2007 include a number of
> Vessel Pollution cases, wildlife prosecutions, and criminal violations
> of both the Clean Air Act (CAA) and Clean Water Act (CWA). Both the
> depth and breadth of successes in the area of criminal monetary
> impositions in FY 2007 was particularly impressive. In the Vessel
> Pollution cases alone, ENRD cases were responsible for over \$40
> million in federal criminal penalties. Number range CHAPTERIn plea
> agreements announced in October 2007, British Petroleum agreed to pay
> \$50 million in criminal fines for Clean Air Act violations relating
> to a catastrophic explosion that killed 15 employees and injured at
> least 170 others, as well as \$12 million in criminal fines, \$4
> million in community service payments, and \$4 million in restitution
> to the state for Clean Water Act violations relating to pipeline leaks
> onto the tundra and into a frozen lake in Alaska. Number range
> CHAPTERIn one significant Clean Water Act case, *United States v.
> Acquity Specialty Products, et al.*, the defendant pled guilty to one
> CWA violation and was sentenced to pay a \$3.8 million fine and
> complete a three-year term of probation. Acquity admitted that from
> September 1998 until November 2002, while inspectors conducted
> sampling, employees altered the wastewater flow in order to distort
> the sampling results. The Director of Environmental Compliance pled
> guilty to conspiracy to violate the CWA and was sentenced to pay a
> \$5,000 fine and serve a five-year term of probation.
>
> [FY 2008/2009 Performance Plan:]{.underline} Not Applicable. In
> accordance with Department guidance, levels of performance for FY 2008
> and FY 2009 are not projected for this indicator. Many factors affect
> our overall performance, such as proposed legislation, judicial
> calendars, etc. The performance of the Division also tends to realize
> spikes and valleys when large cases are decided. Therefore, we do not
> project annually, but our goal is to improve overall performance over
> a 5-year span.
>
> [Public Benefit:]{.underline} The Division continues to obtain
> criminal fines from violators, thereby removing economic benefits of
> non-compliance and leveling the playing field for companies that
> comply with environmental laws. Additionally, our prosecution efforts
> deter others from committing crimes and promote adherence to
> environmental and natural resource laws and regulations. These efforts
> result in the reduction of hazardous materials and wildlife violations
> thereby improving the quality of the United States' waterways,
> airways, land, and wildlife resulting in improved public health and
> safety.

**B. Strategies to Accomplish Outcomes**

> The Division will continue efforts to obtain convictions and to deter
> environmental crimes through initiatives focused on vessel pollution,
> illegal timber harvesting, laboratory fraud, chlorofluorocarbon (CFC)
> smuggling, wildlife smuggling, transportation of hazardous materials
> and worker safety. ENRD will also continue to prosecute international
> trafficking of protected species of fish, wildlife, and plants with a
> host of international treaty partners.
>
> International trade in wildlife is second in size only to the illegal
> drug trade, and our criminal prosecutors work directly on these cases,
> as well as assist United States Attorneys Offices and share ENRD
> expertise nationwide with state and federal prosecutors and
> investigators. We will focus on both interstate trafficking and
> poaching cases on federal lands, and seek to ensure that wildlife
> conservation laws are applied uniformly and enforced across the
> country, seeking consistency in the United States' position in these
> criminal prosecutions and a vigorous enforcement program that serves
> as an international role model.
>
> Number range CHAPTERThe Division will also focus on illegal timber
> cutting and trafficking in FY 2009. This is an issue which has
> commanded the Administration's increasing attention. For example, the
> President's Initiative Against Illegal Logging has resulted in
> increasing efforts by the United States to assist other nations in the
> prevention of timber theft. Surprisingly there appears to be no one
> federal agency tracking theft of timber within the United States
> border. Timber theft has for the most part been handled by federal and
> state authorities on an ad hoc basis; and while most states with large
> tracts of public land would indicate timber theft is a problem no one
> authority has taken a lead in coordinating the investigation and
> prosecution of timber theft. ENRD is prepared to take the lead on this
> important issue.
>
> ENRD has partnered with other federal agencies, such as EPA, to pursue
> litigation against criminal violators of our nation's environmental
> policies. Egregious offenders are being brought to justice daily. The
> Division has worked collaboratively to identify violators who pose a
> significant threat to public health. By prosecuting criminal
> violations of regulations, ENRD is forcing compliance and discouraging
> continued disregard for public health.

![](media/image26.jpeg){width="5.746527777777778in"
height="1.788888888888889in"}

**Civil Litigating Activities**

***A. Performance Plan and Report for Outcomes***

> The Department enforces environmental laws to protect the health and
> environment of the United States and its citizens, defends
> environmental challenges to government programs and activities, and
> represents the United States in all matters concerning the protection,
> use, and development of the nation\'s natural resources and public
> lands, wildlife protection, Indian rights and claims, and the
> acquisition of federal property.

**Performance Results**

**I. [Performance Measure]{.underline} - Percent of Civil Environmental
Cases Successfully Resolved \[ENRD Only\]**

-   ***FY 2007 Target:***

> ***85% Affirmative; 75% Defensive***

-   ***FY 2007 Actual:***

> ***97% Affirmative; 92% Defensive***

-   ***FY 2007 ENRD Resources Expended: \$85.1 million***

[Discussion]{.underline}: In FY 2007, the Number range CHAPTERDivision
obtained nearly \$6.7 billion in injunctive relief, through litigation
or judicially approved consent decrees, that will ensure that harmful
sediments are removed from rivers, state of the art pollution control
devices are added to factories to provide cleaner air, sewage discharges
are eliminated, and damaged land and water aquifers are restored. This
extraordinary result made this the second best year in the Division's
history. In addition, the Division successfully resolved one of the
largest enforcement cases of all time, the massive case against American
Electric Power for alleged Clean Air Act violations, by consent decree
lodged on October 9, 2007. Working jointly with eight states and
thirteen environmental groups, the Division led the effort to bring the
company into compliance with the law and obtain extraordinary pollution
reduction. In the wake of the Supreme Court's recent -- and unanimous --
decision in which the Division vindicated the Environmental Protection
Agency's position on a key liability issue in these cases, the Division
reached a settlement that will require American Electric Power to
undertake remedial actions to reduce its emissions of pollutants at an
estimated cost of \$4.6 billion, the highest value of injunctive relief
obtained in any environmental settlement. The environmental impact is
enormous. The settlement secures at least 183,000 tons per year of air
pollution reductions and is one of the largest percentage decreases
achieved in any settlement with a coal-fired electric utility.

The Division also secured a record civil penalty under the Clean Air
Act's acid rain program in a settlement with the East Kentucky Power
Cooperative. The Division continued to protect the nation's air quality
by successfully pursuing Clean Air Act claims against oil refineries,
automobile manufacturers, and diverse industrial facilities.

ENRD also worked successfully to ensure the integrity of municipal
wastewater treatment systems. Each year, hundreds of billions of gallons
of untreated sewage are discharged into the nation's waters from
municipal wastewater treatment systems that are overwhelmed by weather
conditions they are not adequate to handle. This year, the Division
reached settlements with several cities -- including two of the largest
settlements ever reached, encompassing Indianapolis and the Pittsburgh
region -- that will collectively provide for more than \$4 billion in
expenditures to bring these systems into compliance with the Clean Water
Act. These settlements will ultimately reduce the volume of untreated
sewage discharges by tens of billions of gallons. The Division also
protected the nation's waters and wetlands from illegal fill through
favorable settlements of Clean Water Act enforcement actions.

Further, the Division successfully settled the first court action ever
brought under the Pipeline Safety Act this year. The settlement of this
case -- which arose out of a tragic explosion of an El Paso Natural Gas
Company pipeline which killed twelve people -- will require the
defendant to pay a \$15.5 million civil penalty and to spend at least
\$86 million on comprehensive upgrades of its pipeline system.

[FY 2007 Performance Plan:]{.underline} Based on end of year performance
data, we exceeded our Affirmative and Defensive goals by 12 percent and
17 percent, respectively.

[FY 2008/2009 Performance Plan:]{.underline} Considering our past
performance, we aim to reach 85 percent Affirmative and 75 percent
Defensive (average of 80%) as our rates of cases successfully litigated
for FY 2008 and FY 2009. ENRD's targets are set lower than the actual
performance so that there is no incentive to ramp up prosecutions or
lawsuits against easy targets solely to meet an "ambitious" goal. This
sort of easy approach would do a disservice to the public by steering
litigation away from more difficult problems facing the country's
environment and natural resources. The past eight years of data
demonstrates that our targets, set at achievable levels, have not
deterred the high performance as shown in the actual successes.

The successes delineated in the "Accomplishments" section of this
document demonstrate the Division's effectiveness at defending the
nation's environmental laws. By receiving full base funding in FY 2009,
ENRD hopes to maintain our success rates while effectively defending the
United States. If ENRD cannot offer a strong defense, the Executive
Branch's ability to enforce regulatory compliance or defend policy
challenges may be seriously impaired. For example, the Division's
efforts in the realm of Indian Tribal Trust litigation have been
successful to date. However, if ENRD is forced to fully litigate these
cases with limited resources, the resulting impact would be delays in
resolution and unnecessary expense against the federal coffers.

[Public Benefit:]{.underline} The success of the Department ensures the
correction of pollution control deficiencies, reduction of harmful
discharges into the air, water, and land, clean-up of chemical releases,
abandoned waste, and proper disposal of solid and hazardous waste. In
addition, the Department's enforcement efforts help ensure military
preparedness, safeguard the quality of the environment in the United
States, and protect the health and safety of its citizens.

[]{.mark}

**II. [Performance Measure]{.underline} - Costs Avoided and \$ Awarded
in Civil Environmental Cases \[ENRD Only\]**

-   ***FY 2007 Target: In accordance with Department guidance, targeted
    levels of performance are not projected for this indicator.***

-   ***FY 2007 Actual: \$1.482 billion avoided; \$274 million awarded***

[Discussion:]{.underline} The Division enjoyed unprecedented civil
litigation successes, concerning cases seeking civil penalties and other
monetary recoveries, during FY 2007. During the past fiscal year, the
Division continued to successfully litigate Clean Air Act (CAA) claims
against operators of coal fired electric power generating plants. These
types of violations, litigated out of ENRD's Environmental Enforcement
Section (EES), arise from companies engaging major life extension
projects on their facilities without installing required state of the
art pollution controls. The resulting tens of millions of tons of excess
air pollution has adversely affected human health, degraded forests,
damaged waterways, and contaminated reservoirs.

Number range CHAPTERDuring the past year, the Division continued to
successfully litigate Clean Air Act (CAA) claims against operators of
coal-fired electric power generating plants. The violations arose from
companies engaging in major life extension projects on aging facilities
without installing required state of the art pollution controls,
resulting in tens of millions of tons of excess air pollution that has
adversely affected the health of the elderly, the young, and asthma
sufferers, degraded forests, damaged waterways, and contaminated
reservoirs. In *United States v. East Kentucky Power Cooperative*, the
Division obtained a consent decree that resolved claims under the CAA's
New Source Review (NSR)/PSD provisions, under which EKPC agreed to
system-wide tonnage limits on its emissions of SO~2~ and NOx reducing
annual emissions by approximately 50,000 tons per year. The reductions
will be achieved by the installation of controls estimated to cost \$650
million. The decree also requires EKPC to pay a civil penalty of
\$750,000, and to conduct an environmental mitigation project at a cost
of at least \$5 million. In a separate landmark settlement, EKPC also
agreed to settle claims under the CAA's acid rain program and pay the
largest civil penalty to date under that program -- \$11.4 million -- as
well as take steps to reduce approximately 400 tons of harmful emissions
annually and offset another approximately 20,000 tons of emissions
released from its facility located in Clark County, Ky.

In *United States v. Wisconsin Electric Power Company*, the district
court entered an amended consent decree, nearly four years after its
lodging. This system-wide power plants settlement requires WEPCO to
install pollution control equipment at an estimated cost of \$620
million and pay a \$3.1 million civil penalty. In addition, the Division
secured an amendment of a 2002 consent decree stemming from the failures
of certain coal-fired power plants owned by Public Service Electric Gas
in New Jersey to meet emissions reduction requirements in the 2002
consent decree. The newly achieved air pollution reductions are equal or
in certain respects superior to those that would have been achieved
under the 2002 consent decree. PSEG will also pay a civil penalty of \$6
million and perform environmental mitigation measures valued at \$3.25
million to reduce particulate matter from diesel engines in New Jersey.

The Division also made progress in its national initiative to combat CAA
violations within the petroleum refining industry by obtaining consent
decrees with three more refiners, Total Petrochemical USA Inc., Valero
Energy Corporation, and Hunt Refining Co. Total agreed to pay a \$2.9
million penalty and upgrade pollution controls to resolve claims under
the CAA. The changes to its facility, estimated to cost \$37 million,
will significantly reduce the facility's emissions of air pollutants,
ultimately reducing annual emissions of NOx, SO~2~, and carbon monoxide
by more than 180, 800, and 120 tons, respectively. Valero agreed to pay
a \$4.25 million penalty and install \$232 million worth of new and
upgraded pollution controls at refineries in three states. The controls
will eventually reduce annual emissions of NOx and SO~2~ by more than
1,870 and 1,810 tons per year, respectively, and will result in
additional reductions of carbon monoxide, volatile organic compounds,
and particulate matter from each of the refineries. Hunt agreed to pay a
\$400,000 civil penalty and spend more than \$48.5 million for new and
upgraded pollution controls at three refineries to resolve claims under
the CAA.

The Division furthermore obtained a consent decree in *United States v.
Mercedes-Benz USA and DaimlerChrysler, AG*, resolving claims that the
defendants failed to promptly notify EPA of eight separate
emission-related defects in a number of different Mercedes vehicles. The
CAA requires such prompt notification by auto manufacturers so that the
government can consider whether a recall is necessary. In response to
the investigation, Mercedes began voluntary recalls for two of the
defects at issue and notified owners that it would extend the warranty
coverage to address a third defect, at an estimated cost of about \$59
million. Under the consent decree, Mercedes agreed to pay a penalty of
\$1.2 million and to improve its investigation and reporting system to
ensure future compliance, at an estimated cost of about \$5.4 million.

[FY 2008/2009 Performance Plan:]{.underline} Not Applicable. In
accordance with Department guidance, levels of performance for FY's 2008
through 2009 are not projected for this indicator. There are many
factors that affect our overall performance, including proposed
legislation, judicial calendars, etc. The performance of the Division
tends to realize spikes and valleys when large cases are decided.
Therefore, we do not project annually, but our goal is to improve
overall performance in a 5-year span.

**III. [Efficiency Measures]{.underline}**

**1) Total Dollar Value Awarded per \$1 Expenditures**

**\[Affirmative / ENRD Only\]**

**2) Total Dollars Saved the Government per \$1 Expenditures \[Defensive
/ ENRD Only\]**

-   ***FY 2007 Target: \$76 awarded; \$17 saved***

-   ***FY 2007 Actual: \$117 awarded; \$25 saved***

[Discussion:]{.underline} The Division had a commendable FY 2007 in its
efforts to secure commitments by polluters to take action to remedy
their violations of the nation\'s environmental laws. Actions taken by
the Division in Federal courts resulted in over \$6.79 billion in
settlements and court ordered injunctive relief. Additionally, the
Division saved the government more than \$1.482 billion in defensive
litigation. Number range CHAPTERThese successes and the Division's
enforcement work have produced significant gains for the public fisc,
public health, and the environment. The Division routinely saves the
American taxpayer hundreds of millions of dollars -- many times the
Division's annual budget.

Accordingly, in FY 2007, ENRD exceeded its ambitious performance goals
of (a) total dollar value awarded per \$1 expenditure and (b) total
dollars saved the government per \$1 expenditures.

[FY 2008/2009 Performance Plan:]{.underline} Considering the Number
range CHAPTERexemplary record in protecting the environment, Indian
rights, and the nation's natural resources, wildlife, and public lands,
the Division has continued to establish ambitious targets through FY
2009. The out-year performance goals were set at approximate target
levels. Thus, the Division will monitor future year performance levels
and make the necessary adjustments to reflect actual performance levels.
The Division anticipates continued successes through Number range
CHAPTERvigorous enforcement which generally will produce settlements and
significant gains for the Number range CHAPTERpublic and the public
fisc.

[]{.mark}

[Public Benefit:]{.underline} The Division's efforts to defend federal
programs, ensure compliance with environmental and natural resource
statutes, win civil penalties, recoup federal funds spent to abate
environmental contamination, ensure military preparedness, and ensure
the safety and security of our water supply, demonstrate that the United
States' environmental laws and regulations are being vigorously
enforced. Polluters who violate these laws are not allowed to gain an
unfair economic advantage over law-abiding companies. The deterrent
effect of the Division's work encourages voluntary compliance with the
environmental and natural resource laws, thereby improving the
environment, the quality of our natural resources, and the safety and
health of United States citizens.

![](media/image31.jpeg){width="5.746527777777778in"
height="1.788888888888889in"}

**B. Strategies to Accomplish Outcomes**

As our environment changes, so do the actions we take to preserve the
health and life of those residing within the borders of the United
States. Environmental groups and other interested parties challenge
Administration policies every year. ENRD is responsible for defending
federal agencies carrying out Administration policies every day. The
Division has realized some remarkable successes to date. In an effort to
continue our successful record of litigation, the Division has sought
new and creative ways to utilize our limited resources. ENRD has adopted
a policy of "porosity" whereby specialized attorneys are provided an
opportunity to work on cases outside of their expertise to gain
perspective and depth. This policy has resulted in more flexibility to
shift workloads between attorneys when they become overburdened.
Although cross-training staff grows our workforce's skills and
abilities, it does not address long-term caseload issues.

The Division works collaboratively with client agencies towards
adjudications and settlements. These alternative methods of resolution
are less contentious and save the government expenses associated with
full-blown litigation. Water rights adjudications, reclamations, and
inverse takings cases are typically handled in settlement mode versus
litigation mode. Settlements have the best outcome, and reach the
largest number of people. In order to continue achieving successful
settlements, ENRD must remain committed to collaborative negotiations
with all interested parties. If a policy shift occurs, ENRD will be
forced to take a more aggressive litigation stance, which would be
costly without demonstrating added value for the Federal Government.

The Division's Environmental Enforcement Section (EES) is turning its
attention to toxic air pollutants, mineral processing plant violations
of RCRA, and industry practices that result in toxic emissions in
violation of the Clean Air Act. EPA has been performing inspections of
industries previously protected under the Bevel Amendments, but no
longer exempt from the statutory requirements. To date, EPA has found
100 percent non-compliance in these inspections. Numerous resulting case
referrals are expected, with ENRD prosecuting as many as our resources
will allow.

**C. Results of Program Assessment Rating Tool (PART)**

During FY 2005, the Division was assessed through the Office of
Management and Budget's (OMB) Program Assessment Rating Tool (PART)
along with five other litigating components (Antitrust, Civil Division,
Criminal Division, Civil Rights Division, and Tax Division),
collectively named the General Legal Activities (GLA) Program. At the
end of the assessment, the GLA Program received the highest rating of
"Effective." Other findings showed that:

-   The Program effectively achieves its goal of resolving cases in
    favor of the government. Favorable resolutions, in turn, punish and
    deter violations of the law; ensure the integrity of federal laws
    and programs; and prevent the government from losing money through
    unfavorable settlements or judgments.

-   The Program collaborates effectively with its partners, notably the
    U.S. Attorneys Offices. The two programs work closely to share
    expertise, make referrals, and designate cases for prosecution,
    while minimizing any overlap of responsibilities.

-   The Program exhibits good management practices. This includes strong
    financial management, collecting and using performance information
    to make decisions, and holding managers accountable for program
    performance.

Additionally, to exhibit continual improvement of business practices,
the Program will perform these follow-up actions:

-   Seek regular, independent evaluations of the Program\'s
    effectiveness at resolving cases in favor of the government;

-   Establish a leadership training and mentoring program to continue
    improving the quality of the program\'s management; and

-   Work with the Department\'s Chief Information Officer to evaluate
    and purchase litigation software that will improve productivity and
    efficiency.

The recent actions initiated in FY 2007, but not completed are as
follows:

-   After an unsuccessful attempt to get onto the OIG\'s docket for
    FY07, the Department is reaching out to the Federal Consulting Group
    at the Department of Treasury. The FCG assists federal agencies in
    building an organization\'s program evaluation and performance
    measurement capacity.

[]{.mark}

-   Each of the litigating components has developed a leadership
    training and/or mentoring program, or is in the process of
    developing one. Over the course of this fiscal year, the litigating
    components trained 1,817 attorneys and 623 non-attorneys after
    conducting 682 training sessions. Additionally, 117 new employees
    are enrolled in a mentoring program.

[]{.mark}

-   Development of LCMS continues towards deployment. Stage 1 completed
    the JAD sessions bringing users & designers together to review
    proposed designs. Stage 1 is on track to deploy to 4 USAOs in
    mid 2008. Stage 2 WG met bi-weekly thru 2007 with Stage 3 components
    in attendance. Contractors worked w/Stage 2 Divisions (ENRD, CIV and
    CRT) to complete a requirements tool to project resources & time for
    implementing LCMS. Requirements planning begins in Spring 2008 with
    deployment targeted for 2009.

**V. E-Gov Initiatives**

The Justice Department is fully committed to the President's Management
Agenda (PMA) and the E-Government initiatives that are integral to
achieving the objectives of the PMA. The E-Government initiatives serve
citizens, business, and federal employees by delivering high quality
services more efficiently at a lower price. The Department is in varying
stages of implementing E-Government solutions and services including
initiatives focused on integrating government wide transactions,
processes, standards adoption, and consolidation of administrative
systems that are necessary tools for agency administration, but are not
core to DOJ's mission. To ensure that DOJ obtains value from the various
initiatives, the Department actively participates in the governance
bodies that direct the initiatives and we communicate regularly with the
other federal agencies that are serving as the "Managing Partners" to
ensure that the initiatives meet the needs of the Department and its
customers. The Department believes that working with other agencies to
implement common or consolidated solutions will help DOJ to reduce the
funding requirements for administrative and public-facing systems,
thereby allowing DOJ to focus more of its scarce resources on higher
priority, mission related needs. DOJ's modest contributions to the
Administration's E-Government projects will facilitate achievement of
this objective.

**A. Funding and Costs**

The Department of Justice participates in the following E-Government
initiatives and Lines of Business:

  --------------------- ----------------- ----------------- ----------------
  Business Gateway      E-Travel          Integrated        Case Management
                                          Acquisition       LoB
                                          Environment       

  Disaster Assistance   Federal Asset     IAE - Loans &     Geospatial LoB
  Improvement Plan      Sales             Grants - Dunn &   
                                          Bradstreet        

  Disaster Assist.      Geospatial        Financial Mgmt.   Budget
  Improvement Plan -    One-Stop          Consolidated LoB  Formulation and
  Capacity Surge                                            Execution LoB

  E-Authentication      GovBenefits.gov   Human Resources   IT
                                          LoB               Infrastructure
                                                            LoB

  E-Rulemaking          Grants.gov        Grants Management 
                                          LoB               
  --------------------- ----------------- ----------------- ----------------

The Department of Justice E-Government expenses -- i.e. DOJ's share of
e-Gov initiatives managed by other federal agencies -- are paid for from
the Department's Working Capital Fund. These costs, along with other
internal E-Government related expenses (oversight and administrative
expenses such as salaries, rent, etc.) are reimbursed by the components
to the WCF. The Environment and Natural Resources Division (ENRD)
reimbursement amount is based on the anticipated or realized benefits
from an e-Government initiative. The table below identifies ENRD's
actual or planned reimbursement to the Department's Working Capital
Fund. As such, ENRD E-Government reimbursement to the WCF is \$139,000
for FY 2008. The anticipated ENRD e-Government reimbursement to the WCF
is \$82,000 for FY 2009.

**B. Benefits**

ENRD established baseline cost estimates for each IT investment being
(or planned to be) modified, replaced, or retired due to the
Department's use of an E-Government or Line of Business initiative. ENRD
is measuring actual costs of these investments on an ongoing basis. As
ENRD completes migrations to common solutions provided by an
E-Government or Line of Business initiative, ENRD expects to realize
cost savings or avoidance through retirement or replacement of legacy
systems and/or decreased operational costs. The table below represents
only those E-Government initiatives and Lines of Businesses where ENRD
expects to realize benefits in FY 2008 and FY 2009.

  ------------------ ----------------- --------------- -------------------
  **E-Gov            **FY 2008         **FY 2009       **Comments**
  Initiative**       Benefits          Anticipated     
                     (\$000)**         Benefits        
                                       (\$000)**       

  Enterprise Human   126               126             
  Resource                                             
  Integration                                          

  E-Authentication   43                43              

  Financial Mgmt.    2,698             2698            
  Consolidated LoB                                     

  Human Resource LoB 201               201             

  Case Management    1,060             1,103           
  LoB                                                  
  ------------------ ----------------- --------------- -------------------

![](media/image32.jpeg){width="5.746527777777778in"
height="1.788888888888889in"}

**VI. Exhibits**

**A. Organizational Chart**

![](media/image33.jpeg){width="8.282638888888888in" height="6.1875in"}

**Exhibit A**

**B.** **Summary of Requirements**

![](media/image34.wmf){width="10.363194444444444in"
height="5.063888888888889in"}

**Exhibit B**

**B.** **Summary of Requirements (Cont.)**

![](media/image35.wmf){width="10.372222222222222in" height="3.10625in"}

**Exhibit B**

**D. Resources by Department of Justice Strategic Goal and Objective**

![](media/image36.wmf){width="10.374305555555555in"
height="5.999305555555556in"}

**Exhibit D**

**E. Justification for Base Adjustments**

![](media/image37.wmf){width="8.790277777777778in"
height="6.166666666666667in"}

**Exhibit E**

**E. Justification for Base Adjustments (Cont.)**

![](media/image38.wmf){width="8.790277777777778in" height="5.48125in"}

**Exhibit E**

**F. Crosswalk of 2007 Availability**

![](media/image39.wmf){width="10.373611111111112in"
height="3.4652777777777777in"}

**Exhibit F**

**G. Crosswalk of 2008 Availability**

![](media/image40.wmf){width="10.3625in" height="2.7569444444444446in"}

**Exhibit G**

**H. Summary of Reimbursable Resources**

![](media/image41.wmf){width="10.36736111111111in"
height="5.008333333333334in"}

**Exhibit H**

I.  **Detail of Permanent Positions by Category**

![](media/image42.wmf){width="10.36736111111111in"
height="5.500694444444444in"}

**Exhibit I**

**K. Summary of Requirements by Grade**

![](media/image43.wmf){width="10.370833333333334in" height="4.85in"}

**Exhibit K**

**L. Summary of Requirements by Object Class**

![](media/image44.wmf){width="10.360416666666667in" height="5.94375in"}

**Exhibit L**